text:
    A10A2268.
    WILSON v. McNEELY.
    (705 SE2d 874)
   Ellington, Chief Judge.

In 2000, attorney Richard McNeely represented Gary Wilson in connection with Wilson’s purchase of certain real property in Emanuel County, and Wilson subsequently brought this legal malpractice action against McNeely. On the eve of trial, Wilson identified his brother, Rodney Wilson, as the witness who would testify as an expert regarding the acceptable standard of conduct of an attorney in a real estate closing. McNeely moved in limine to exclude the witness’s testimony, arguing that the witness did not qualify as an expert because he did not practice law at the relevant time. After empaneling a jury, the trial court conducted an evidentiary hearing on McNeely’s motion in limine and granted the motion. When Wilson announced that he was not prepared to call any other witness on the issue of the applicable professional standard of care, McNeely moved for a directed verdict. Because Wilson was unable to support his malpractice claim with expert testimony as to the standard of care, the trial court granted McNeely’s motion for a directed verdict. Wilson appeals pro se, contending that the trial court erred in finding that the witness was not qualified as an expert. For the reasons explained below, we affirm.

1. Expert testimony is admissible when “scientific, technical, or other specialized knowledge will assist the trier of fact... to understand the evidence or to determine a fact in issue.” OCGA § 24-9-67.1 (b). Generally, a witness may be qualified to give such testimony by his or her “knowledge, skill, experience, training, or education[.]” Id. The Evidence Code imposes special requirements on expert testimony that is offered in a professional malpractice action on the issue of the acceptable standard of conduct of the professional whose conduct is at issue. OCGA § 24-9-67.1 (c). Such testimony “shall be admissible only if, at the time the act or omission is alleged to have occurred, such expert [w]as licensed by an appropriate regulatory agency to practice his or her profession in the state in which such expert was practicing or teaching in the profession at such time[.]” (Punctuation omitted.) OCGA § 24-9-67.1 (c) (1). As we have held, “in order to comply with the licensing requirement of OCGA § 24-9-67.1 (c) (1), an expert in a professional malpractice action must be licensed and practicing (or teaching) in one of the states of the United States at the time the alleged negligent act occurred.” (Emphasis supplied.) Craigo v. Azizi, 301 Ga. App. 181, 186-187 (3) (687 SE2d 198) (2009). “The determination of whether a witness is qualified to render an opinion as an expert is a legal determination for the trial court and will not be disturbed absent a manifest abuse of discretion.” (Citation and punctuation omitted.) HNTB Georgia, Inc. v. Hamilton-King, 287 Ga. 641, 642 (697 SE2d 770) (2010); see also Moran v. Kia Motors America, 276 Ga. App. 96, 97 (1) (622 SE2d 439) (2005) (accord).

In this case, it is undisputed that the witness was a member in good standing of the State Bar of Georgia at the time of McNeely’s alleged negligence, although he did not have a municipal business license as an attorney or malpractice insurance coverage. On the issue of whether the witness was practicing or teaching law at the relevant time, the witness testified at the hearing on McNeely’s motion in limine that he worked in a family-owned wholesale equipment distribution business, and he described his principal occupation as that of a “merchant.” The witness also described himself as “somewhat corporate counsel” for that business. The witness testified, however, that, at the relevant time, he did not represent his company or any other litigant in court, although he did sometimes informally “try to help people out,” did not draft or file pleadings for judicial proceedings; did not prepare deeds or other conveyancing documents; did not search property title records or issue an attorney’s title certificate; and did not perform the legal tasks inherent in closing real estate transactions. The witness nonetheless considered himself to be practicing law “every day[,] because the things that you learn, the things that you do, the things in life all involve the law.”

The practice of law in Georgia is defined as:

(1) Representing litigants in court and preparing pleadings and other papers incident to any action or special proceedings in any court or other judicial body;
(2) Conveyancing;
(3) The preparation of legal instruments of all kinds whereby a legal right is secured;
(4) The rendering of opinions as to the validity or invalidity of titles to real or personal property;
(5) The giving of any legal advice; and
(6) Any action taken for others in any matter connected with the law.

OCGA § 15-19-50.

Although under this definition a licensed attorney may practice law while representing the interests of a single client, as many in-house corporate attorneys do, the record in this case authorized the trial court to find that, at the time of McNeely’s alleged negligence, Wilson’s witness was not engaged in any of the activities that constitute practicing law in Georgia. As a result, the trial court did not abuse its discretion in granting McNeely’s motion in limine. McGuire Holdings v. TSQ Partners, 290 Ga. App. 595, 598-599 (1) (b) (660 SE2d 397) (2008); Smith v. Liberty Chrysler-Plymouth-Dodge, 285 Ga. App. 606, 608-609 (647 SE2d 315) (2007); Moran v. Kia Motors America, 276 Ga. App. at 98 (1).

2. Wilson contends the trial court erred in applying OCGA § 24-9-67.1 (c) (2), which applies to medical malpractice actions, to his case for legal malpractice. In its order, the trial court determined that Wilson failed to show that, in addition to having been licensed by the State Bar of Georgia, the witness was practicing law in Georgia at the time of McNeely’s alleged negligence and, therefore, that Wilson failed to show that his witness was qualified to testify as an expert in his legal malpractice action under the standards set out in OCGA § 24-9-67.1. See Division 1, supra. In a footnote, the court went on to say:

By analogy[,] the medical malpractice expert requirement under OCGA § 24-9-67.1 (c) (2) (D) could be applied in the legal arena. For example, just because you graduated from medical school AND obtained a license to practice medicine, does not, in and of itself, qualify you to testify in all areas of medical specialty in which you have no specialized training and/or experience; i,e.[,] a general practitioner is not an expert in cardiology!,] and so on.

As Wilson contends, OCGA § 24-9-67.1 (c) (2) by its plain terms applies only in cases of alleged medical malpractice. It would be error, therefore, to require that an attorney witness who was qualified under OCGA § 24-9-67.1 (c) (1) was nevertheless not qualified because his or her credentials did not satisfy a legal-arena equivalent of the standards set out in OCGA § 24-9-67.1 (c) (2) for the medical field. Having reviewed the proceedings, however, we conclude that the trial court’s misguided “analogy” did not result in reversible error and that the trial court did not abuse its discretion in granting McNeely’s motion in limine, for the reasons explained in Division 1, supra.

3. Wilson contends the trial court failed to show him deference as a pro se litigant but, rather, held him to a higher standard of courtroom procedure than it would have applied to a seasoned lawyer. Specifically, Wilson contends that the trial court erred when it refused to allow the witness to “give open colloquy and discussion” but, instead, required Wilson to ask the witness specific questions; refused to allow the witness to help him formulate questions; and refused to let the witness explain that a judge previously assigned to the case had said that the witness was qualified as an expert. As a matter of public policy, Georgia courts generally strive to resolve legal disputes on the merits, rather than on the punctilious enforcement of procedural rules and, therefore, may defer to a litigant’s pro se status. Riley v. Ga. Dept. of Revenue, 295 Ga. App. 656, 657 (673 SE2d 49) (2009); Davis v. Lugenbeel, 283 Ga. App. 642, 645 (642 SE2d 337) (2007); Oduok v. Phillips, 269 Ga. App. 583, 584 (1) (604 SE2d 633) (2004). Still, pro se litigants are not exempt from the rules of evidence and applicable burdens of proof. Riley v. Ga. Dept. of Revenue, 295 Ga. App. at 657; Dockens v. Runkle Consulting, 285 Ga. App. 896, 899 (1) (d) (648 SE2d 80) (2007). Furthermore, the trial court in this case repeatedly accommodated Wilson’s procedural defaults, including his failures to file his portion of the pretrial order, to timely identify his expert, and to appear for a pretrial status conference. Having reviewed the proceedings, we discern no abuse of the trial court’s discretion.

Decided January 24, 2011

Reconsideration denied February 16, 2011

Gary N. Wilson, pro se.

Brown, Rountree & Stewart, Charles H. Brown, Laura H. Wheaton, for appellee.

Judgment affirmed.

Andrews and Doyle, JJ., concur.

       This is the third appearance of this case before this Court. See Wilson v. McNeely, 295 Ga. App. 41 (670 SE2d 846) (2008) (reversing a jury verdict in favor of McNeely because the trial judge should have recused herself), and Wilson v. McNeely, 302 Ga. App. 213 (690 SE2d 512) (2010) (vacating the dismissal of Wilson’s complaint as an overly harsh sanction for his failure to supplement his discovery responses and to submit his portion of a pre-trial order).

       Although the witness testified about his involvement in certain real estate transactions, his testimony unequivocally establishes that he participated in those closings solely in his capacity as a buyer and that he did not prepare any deeds of conveyance, prepare closing statements, have any affidavits signed, or facilitate the execution of any deeds of conveyance for the benefit of any seller, borrower, or lender. See In re UPL Advisory Opinion 2003-2, 277 Ga. 472, 474 (588 SE2d 741) (2003) (Georgia law requires that an attorney be physically present to close a real estate transaction, that is, by preparing, and facilitating the execution of, deeds of conveyance for the benefit of any seller, borrower, or lender.); Daniel F. Hinkel, 3 Pindar’s Georgia Real Estate Law and Procedure, § 26-139 (6th ed., updated 2010).

        See AFLAC, Inc. v. Williams, 264 Ga. 351, 353 (1) (444 SE2d 314) (1994).

       OCGA § 24-9-67.1 (c) (2) provides:
      In the case of a medical malpractice action, [the opinions of an expert, who is otherwise qualified as to the acceptable standard of conduct of the professional whose conduct is at issue, shall be admissible, among other requirements, 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:
      (A) The 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
      (B) The teaching of his or her profession for at least three of the last five years as an employed member of the faculty of an educational institution accredited in the teaching of such profession, with sufficient frequency to establish an appropriate level of knowledge, as determined by the judge, in teaching others how to perform the procedure, diagnose the condition, or render the treatment which is alleged to have been performed or rendered negligently by the defendant whose conduct is at issue; and
      (C) Except as provided in subparagraph (D) of this paragraph:
      (i) Is a member of the same profession;
      (ii) Is a medical doctor testifying as to the standard of care of a defendant who is a doctor of osteopathy; or
      (iii) Is a doctor of osteopathy testifying as to the standard of care of a defendant who is a medical doctor; and
      (D) Notwithstanding any other provision of this Code section, an expert who is a physician and, as a result of having, during at least three of the last five years immediately preceding the time the act or omission is alleged to have occurred, supervised, taught, or instructed nurses, nurse practitioners, certified registered nurse anesthetists, nurse midwives, physician assistants, physical therapists, occupational therapists, or medical support staff, has knowledge of the standard of care of that health care provider under the circumstances at issue shall be competent to testify as to the standard of that health care provider. However, a nurse, nurse practitioner, certified registered nurse anesthetist, nurse midwife, physician assistant, physical therapist, occupational therapist, or medical support staff shall not be competent to testify as to the standard of care of a physician.


source: Caselaw Access Project

author: Barnes, Presiding Judge. Dillard, Judge,

license: Public Domain

text:
    A10A1617.
    VENABLE v. PARKER.
    (706 SE2d 211)
   Barnes, Presiding Judge.

After Mark Parker executed a voluntary acknowledgment of paternity stating that he was the natural father of the child born to Meranda Venable, the trial court entered a final order establishing paternity and child support. Several months after the final order establishing paternity, Parker filed a motion to set aside his voluntary acknowledgment of paternity and the final order on the grounds of fraud and material mistake of fact. Following an evidentiary hearing, the trial court denied Parker’s motion to set aside but nevertheless ordered the parties to undergo genetic testing to establish paternity of the child. We granted Venable’s application for discretionary review of the trial court’s order and now reverse.

The record shows that on May 9, 2008, Venable gave birth to a son. It is undisputed that Venable and Parker engaged in one sexual encounter approximately nine months prior to the child’s birth.

On June 4, 2008, Venable and Parker signed a voluntary acknowledgment of paternity indicating that Parker was the natural father of the minor child (the “Paternity Acknowledgment”). See OCGA § 19-7-46.1 (b). The Paternity Acknowledgment expressly stated that Parker could rescind his acknowledgment within 60 days of his signature on the form, or up to the date of an order establishing paternity, whichever occurred first. It further provided that after the rescission period ended, the signed acknowledgment would “constitute a legal determination of paternity and [could] be challenged in a court of law only on the basis of fraud, duress, or material mistake of fact, with the burden of proof on the person challenging the acknowledgment.” Additionally, the Paternity Acknowledgment stated that by signing the form, and after 60 days had passed, Parker would “have given up [his] rights to DNA testing.” The Paternity Acknowledgment was duly recorded in Georgia’s putative father registry, and Parker did not seek rescission within 60 days from signing it.

On December 5, 2008, Venable filed a verified petition to establish paternity and child support, pointing out that Parker had signed the duly recorded Paternity Acknowledgment. That same day, the parties entered into a settlement agreement establishing paternity and child support. On December 11, 2008, the trial court entered a final order establishing paternity and child support that incorporated the terms of the parties’ settlement agreement by express reference (the “Final Order”). The Final Order noted that the Paternity Acknowledgment had been signed by both parties and recorded in the putative father registry “and therefore constitute[d] a legal determination of paternity.” The Final Order also obligated Parker to pay monthly child support.

On April 28, 2009, Parker consented to an order allowing for an automatic deduction of child support payments from his wages. One month later, however, Parker moved to set aside the Paternity Acknowledgment and the Final Order based upon fraud and material mistake of fact pursuant to OCGA §§ 19-7-46.1 (c) and 9-11-60 (d) (2). According to Parker, he had recently learned that Venable was involved with another man at the time of their sexual encounter, raising “a strong probability” that he was not the father of her child. Parker further alleged that because Venable had fraudulently misrepresented the child’s paternity, he was “entitled to have the paternity acknowledgment and judgment set aside and be given an opportunity to have a paternity test.”

The trial court held an evidentiary hearing on the motion to set aside, at which both Venable and Parker testified. Venable testified that she had no sexual partners, other than Parker, around the time that her son was conceived. She further testified that Parker had declined to undergo genetic testing on two separate occasions after her son was born.

Parker testified that he filed his motion to set aside upon learning that Venable had “multiple sex partners” around the time of their sexual encounter. Parker further claimed that he would not have signed the Paternity Acknowledgment if he had doubted that he was the father of the child. At other points in his testimony, however, Parker stated that he already knew that Venable had other sexual partners, and thus was doubtful that he was the father of the child, when he signed the Paternity Acknowledgment. According to Parker, he signed the Paternity Acknowledgment despite his doubts over paternity because Venable had threatened to tell his wife about the sexual encounter and the child if he did not sign it.

Following the hearing, the trial court found that Parker’s testimony was contradictory and did not support an order setting aside the Paternity Acknowledgment and Final Order on the ground of fraud or material mistake of fact. The court further found that Parker had not met the statutory requirements for disestablishing paternity under OCGA § 19-7-54. Based upon these findings, the trial court denied the motion to set aside. Nevertheless, in the same order, the trial court required the parties to undergo genetic testing on the ground that it would be in the best interests of the child to establish whether Parker was the biological father.

1. On appeal, Venable argues that the trial court lacked authority to order the genetic testing, given the court’s denial of Parker’s motion to set aside the Paternity Acknowledgment and Final Order. We agree.

Under Georgia law, genetic testing can be ordered only in cases “in which the paternity of a child or children has not been established,” OCGA § 19-7-43 (d), (e), and such testing cannot be required if the issue of paternity is res judicata. See Dept. of Human Resources v. Hambrick, 216 Ga. App. 606, 606-607 (455 SE2d 120) (1995); Dept, of Human Resources v. Maddox, 198 Ga. App. 650, 651 (402 SE2d 771) (1991); Dept, of Human Resources v. Brown, 196 Ga. App. 875, 875-876 (1) (397 SE2d 73) (1990). See also Dan E. McConaughey, Ga. Divorce, Alimony and Child Custody § 11:62 (2010-2011 ed.). As we have repeatedly held, “public policy is not advanced by the disestablishment of legitimacy and paternity.” In the Interest of T. W., 288 Ga. App. 386, 389 (1) (654 SE2d 218) (2007).

Here, the unappealed and unmodified Final Order, which was predicated on the settlement agreement and Paternity Acknowledgment expressly consented to by Parker, adjudged that Parker was the father of Venable’s child. And while Parker moved to set aside the Final Order, the trial court found that Parker had failed to meet his burden in this regard and denied the motion. A judgment not void on its face is valid and binding upon the parties until set aside or reversed. See Costello v. Costello, 230 Ga. 40, 41 (195 SE2d 408) (1973); State Auto Mut. Ins. Co. v. Relocation & Corporate Housing Svcs., 287 Ga. App. 575, 577 (1) (651 SE2d 829) (2007). “Thus, the application of the doctrine of res judicata clearly proscribe [d] the trial court’s reconsideration of the issue of paternity. Accordingly, the trial court’s order requiring that the [parties] submit to paternity blood testing [was] erroneous[.]” (Citations omitted.) Brown, 196 Ga. App. at 875-876 (1). See Hambrick, 216 Ga. App. at 606-607; Maddox, 198 Ga. App. at 651. See also In the Interest of T. W, 288 Ga. App. at 388-389 (1) (trial court erred in ordering genetic testing where the parties had signed a voluntary acknowledgment of paternity that was duly recorded and had not been successfully challenged). We therefore must reverse the trial court’s order to the extent that it required the parties to undergo genetic testing.

Judgment reversed.

Blackwell, J., concurs. Dillard, J., concurs fully and specially.

Decided February 16, 2011.

Cauthorn, Nohr & O’Dell, Thomas E. Cauthorn III, Leslie A. Dean, for appellant.

Peggy L. Brown, for appellee.

Dillard, Judge,

concurring fully and specially.

I concur fully in the majority opinion. I do so with the understanding that our holding rests squarely on the fact that the trial court ordered genetic testing after it had already denied Venable’s motion to set aside the Paternity Acknowledgment and Final Order, thus, leaving no basis for such a ruling.

As I understand it, our decision leaves open for another day whether a putative biological father might, in certain circumstances, have standing to ask a court to compel genetic testing— before or contemporaneous with the filing of a motion challenging a judgment of paternity—based upon a constitutional right to familial relations with the child, notwithstanding the lack of any statutory authority for doing so.

       OCGA § 19-7-46.1 (b) provides in relevant part:
      When both the mother and father have signed a voluntary acknowledgment of paternity and the acknowledgment is recorded in the putative father registry established by subsection (d) of Code Section 19-11-9, the acknowledgment shall constitute a legal determination of paternity, subject to the right of any signatory to rescind the acknowledgment prior to the date of the support order, any other order adjudicating paternity, or 60 days from the signing of the agreement, whichever is earlier. . . .
      Once the window for rescission closes, “the signed voluntary acknowledgment of paternity may be challenged in court only on the basis of fraud, duress, or material mistake of fact, with the burden of proof on the person challenging the acknowledgment.” OCGA § 19-7-46.1 (c).

       OCGA § 19-7-54 sets forth the statutory criteria for a male paying child support to disestablish a prior determination of paternity, but one of the criteria is that he must not have signed a voluntary acknowledgment of paternity under OCGA § 19-7-46.1, as Parker did in this case. See OCGA § 19-7-54 (b) (5) (F); Baker v. Baker, 276 Ga. 778, 782-783 (4) (582 SE2d 102) (2003). A prior judgment establishing paternity also can be set aside through an extraordinary motion for new trial based upon newly discovered evidence, but Parker did not file such a motion in this case. See Roddenbery v. Roddenbery, 255 Ga. 715, 715-717 (342 SE2d 464) (1986); Cohen v. Nudelman, 269 Ga. App. 517, 522 (2) (604 SE2d 580) (2004).

        See Lehr v. Robertson, 463 U. S. 248, 248 (103 SC 2985, 77 LE2d 614) (1983) (holding that “[w]here an unwed father demonstrates a full commitment to the responsibilities of parenthood by ‘comfing] forward to participate in the rearing of his child,’ his interest in personal contact with his child acquires substantial protection under the Due Process Clause” (citation omitted)).

       We have recognized two procedural vehicles by which a final paternity judgment may be challenged: (1) a motion to set aside paternity pursuant to OCGA § 19-7-54; and (2) an extraordinary motion for new trial based on newly discovered evidence. See Roddenbery v. Roddenbery, 255 Ga. 715, 715-17 (342 SE2d 464) (1986).


author: Smith, Presiding Judge.

text:
    A10A1737.
    BAKER v. THE STATE.
    (706 SE2d 214)
   Smith, Presiding Judge.

A jury found Donald Baker guilty on two counts of armed robbery and one count of theft by receiving stolen property. Following the denial of his motion for new trial, Baker appeals, arguing that the evidence was insufficient to sustain his conviction, that the trial court erred in allowing improper character evidence, and that he received ineffective assistance of counsel. Having reviewed these claims, we affirm.

Construing the evidence presented in Baker’s second trial in favor of the verdict, the record reveals that on February 23, 2005, as Michael Brawner stopped at a stop sign, an unfamiliar white car that had been following him pulled around and blocked him in. The car had a colorful Kentucky vehicle tag. A masked man jumped out of the car with a shotgun, ordered Brawner to the ground, and told him “don’t look.” A second man got out of the car and ordered Brawner to get in the trunk of the car. The two men took Brawner’s money and identification. When a van approached, the men fled, taking Brawner’s car. Brawner ran to a nearby house where he called police, who eventually found his car, which had been damaged and was missing a wheel, a CD player, a DVD player, a stereo, and several speakers.

On the same night that Brawner was robbed, Shirley Pittman arrived home from a business dinner. A masked gunman approached her SUV and ordered her out, threatening to kill her. After taking Pittman’s keys, the gunman ordered Pittman to the ground and drove away in her SUV As the gunman drove away, a second man waiting in a white car told Pittman “if you look, we’re going to kill you.” A tracking device in Pittman’s SUV alerted police as to its location, and they returned it to Pittman the next day. At trial, Pittman identified Baker in court as the masked gunman. She testified that she could see the gunman’s eyes and mouth during the robbery.

On March 5, 2005, as Cedric McCune pulled inside his garage, a masked man with a shotgun appeared and ordered McCune to the ground and threatened that he [was] “fixing to kill somebody tonight.” The gunman took McCune’s car keys, cell phone, and cash. The gunman then instructed a second man to watch McCune while the gunman attempted to enter McCune’s home. When McCune’s fiancée appeared at the door of the home, the gunman threatened her and took her purse. Both men fled, taking McCune’s car.

Also on March 5, 2005, in the late evening, as Teaya Edwards and her friend arrived at her friend’s condominium, a masked man with a shotgun confronted them in the parking lot. The gunman ordered Edwards to open the door of the condominium, and when she informed him that she did not have the keys, the gunman chased Edwards around her friend’s vehicle. The gunman then ordered Edwards to the ground and said “you know what I want.” Edwards threw her purse and the gunman picked it up and “started going through it.” He then told her to “count to ten and not look up.” Other men in a white Chevrolet Impala yelled to the gunman to “come on, let’s go.” The gunman then left in the Impala. Edwards called the police, who responded and, while investigating on the scene, received a radio dispatch to investigate a motel room where they found Bowe and from which they recovered most of the victims’ belongings. Officers also found a shotgun in the motel room.

The tip that officers received to investigate the motel room following the armed robbery of Edwards came from a call Baker made to police. Baker told officers that Bowe had just committed an armed robbery and that he and his family were afraid of Bowe. Upon learning that Baker may have also been involved in the robberies, police obtained a search warrant and executed a search of Baker’s home where they discovered several items belonging to the victims. Officers also discovered a white Chevrolet Impala registered to Baker and a blue Chevrolet Malibu with a colorful Kentucky vehicle tag that belonged to Baker’s girlfriend. Baker gave a statement to police claiming that he was forced by Bowe to drive around and participate in the robberies, and also gave similar testimony at trial.

1. Baker first argues that the State elicited improper character evidence from him during cross-examination. During trial, the State sought to admit a photograph of Baker wearing braids in his hair based on the testimony from one of the victims who stated that the armed robbery perpetrator wore braids. When the State attempted to admit the photograph, defense counsel objected that the State had not laid a proper foundation for admission of the photograph and that “it does not tell when that accurately depicts what he looked like.” When the trial court suggested to the State “[w]ell, why don’t you ask him,” the following colloquy took place:

[The State:] When do you presume that photograph was taken?
[Baker:] When? Well, for sure I can assure you that it was before — I know for a fact it was before 2004.
[The State:] Okay. When?
[Baker:] It had to be 2004.
[The State:] Okay. Where?
[Baker:] I can explain why I know that.
[The State:] Explain.
[Baker:] 2004 I went through diagnostic in the Federal penitentiary over here in Atlanta and your hair is cut off. There is no way possible that I could have braids after 2004 because I came home in 2005.

The State moved to admit the photograph, and when defense counsel again objected, the State responded: “I’ll withdraw it.” The State then continued its cross-examination of Baker. The prosecutor asked Baker: “You were in the penitentiary you say?” and continued to ask Baker questions concerning his statement. Baker revealed that he was referring to a probation violation of a federal sentence from a conviction for the sale of cocaine in Kentucky. Defense counsel made no objections during this colloquy and only objected later during Baker’s testimony when the State commented: “You’ve conducted activities in the street. We know you have a drug conviction.” The court sustained defense counsel’s objection that the statement was “calling for character evidence.”

There is nothing to show that the question posed by the State here — asking Baker to explain why he knew when the photograph was taken — was intended to elicit the response Baker gave concerning his prior incarceration. See Thomas v. State, 270 Ga. App. 181, 183-184 (3) (606 SE2d 275) (2004). And

[w]here the defendant testifies and admits prior criminal conduct, he has not placed his character “in issue” within the meaning of OCGA § 24-9-20 (b). Rather, he has raised an issue which may be fully explored by the State on cross-examination. It was appellant. . . who introduced the topic. He cannot now complain that the prosecutor followed up on cross-examination.

(Citations and punctuation omitted.) Cobb v. State, 251 Ga. App. 697, 698 (555 SE2d 79) (2001); see Mitchell v. State, 193 Ga. App. 214, 215-216 (2) (387 SE2d 425) (1989). Although Baker argues that there was no determination by the trial court concerning the relevance of this testimony, defense counsel made no objection during the testimony, objecting only when the State commented that Baker had a drug conviction, and did not move the court for a ruling on relevance. See, e.g., Rupert v. State, 239 Ga. App. 128, 130-131 (1) (a) (520 SE2d 695) (1999) (any error waived where belated objection to question based on character was not made until after evidence had been admitted without objection). This claim of error is without merit.

2. Baker contends counsel was ineffective for failing to object to the State’s follow-up questions concerning Baker’s prior incarceration, and for failing to move for a mistrial following counsel’s objection to the State’s comment that Baker “conducted activities in the street.” To show ineffective assistance of counsel, a defendant must show that his trial counsel’s performance fell below an objective standard of reasonableness and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). “In reviewing a trial court’s determination regarding a claim of ineffective assistance of counsel, this court upholds the trial court’s factual findings unless they are clearly erroneous.” (Citation, punctuation and footnote omitted.) Bruce v. State, 268 Ga. App. 677, 679 (603 SE2d 33) (2004). “Failure to satisfy either prong of this two-part test is fatal to an ineffective assistance claim.” (Citation and punctuation omitted.) Freeman v. State, 282 Ga. App. 185, 187 (2) (638 SE2d 358) (2006).

Decided February 16, 2011

Baker argues that trial counsel was ineffective in failing to object to the evidence of his prior incarceration. But as we have held in Division 1, the State could properly cross-examine him on the issue because Baker opened the door to this evidence. Therefore, trial counsel’s failure to object in this circumstance cannot be ineffective assistance. See Taylor v. State, 264 Ga. App. 665, 669-671 (5), (7) (592 SE2d 148) (2003). Baker also complains that trial counsel was deficient for failing to move for a mistrial following the State’s comment that Baker “conducted activities in the street.” The trial court sustained trial counsel’s objection to the comment. But even assuming trial counsel’s failure to move for a mistrial was deficient here, Baker has not shown that a mistrial would have been granted had counsel done so. See, e.g., Leon v. State, 237 Ga. App. 99, 106 (4) (c) (513 SE2d 227) (1999).

3. Finally, Baker contends that the evidence was insufficient to sustain his convictions. On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and do not weigh the evidence or determine witness credibility, but only determine whether a rational trier of fact could have found the defendant guilty of the charged offenses beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).

The evidence presented here showed that (a) Baker admitted to being present at the scene of the armed robberies, (b) Pittman identified him in court as the man who robbed her at gunpoint, (c) several items belonging to the victims were found in Baker’s home, (d) Baker and his girlfriend owned vehicles similar to those used in the robberies, and (e) each victim testified that the robber worked in cooperation with an accomplice. This evidence was sufficient to sustain Baker’s conviction for theft by receiving stolen property and two counts of armed robbery under the standard of Jackson, supra. See OCGA §§ 16-8-41 (a), 16-8-7 (a); Lawrence v. State, 305 Ga. App. 199, 200 (1) (699 SE2d 406) (2010); Bowe, supra, 288 Ga. App. at 382 (2).

Judgment affirmed.

Mikell and Adams, JJ., concur.

Robert H. Citronberg, for appellant.

Gwendolyn Keyes Fleming, District Attorney, Leonora Grant, Assistant District Attorney, for appellee.

       This appeal is from Baker’s second trial. We reversed his convictions following his first trial on the ground that the trial court erred in denying his motion to sever his case from that of his then co-defendant Elijah Bowe. Bowe v. State, 288 Ga. App. 376 (654 SE2d 196) (2007).

       We note that the facts presented in Baker’s second trial are nearly identical to the facts presented during his first trial. See id.


author: SMITH, Presiding Judge.

text:
    A10A1775.
    MOORE v. MOORE.
    (706 SE2d 465)
   SMITH, Presiding Judge.

In this discretionary appeal, Philip Moore appeals from the trial court’s award of attorney fees to William Charles Moore, pursuant to OCGA § 9-15-14. Appellant contends, in part, that the trial court’s award should be vacated because the trial court failed to hold a hearing or to make findings of fact and conclusions of law supporting the award in its written order. We agree.

1. As appellant asserts, it is “black letter law” that a hearing is required to enter an award of attorney fees. “In order for an award under OCGA § 9-15-14 (b) to be valid, the trial court must conduct an evidentiary hearing to determine the amount of reasonable and necessary attorney fees, and the failure to do so is reversible error.” (Citations, punctuation and footnote omitted.) Slone v. Myers, 288 Ga. App. 8, 12 (3) (653 SE2d 323) (2007). The trial court’s judgment must be vacated, and the matter remanded for an evidentiary hearing regarding whether the defendant was entitled to an award under OCGA § 9-15-14 (b) based on the plaintiffs misconduct, and if so, the amount of the award. Honkan v. Honkan, 283 Ga. App. 522, 523 (1) (642 SE2d 154) (2007).

2. Appellant also correctly asserts that a trial court is required to make express findings of fact and conclusions of law as to the statutory basis for an award of attorney fees under OCGA § 9-15-14.

A judgment devoid of these findings must be vacated and the case must be remanded for reconsideration. As the trial court’s order omitted these mandatory findings, we must remand this case with direction that the trial court either include in its order findings of the conduct that authorized the award or vacate its order.

(Citations and punctuation omitted.) Gilchrist v. Gilchrist, 287 Ga. App. 133, 133-134 (1) (650 SE2d 795) (2007).

3. Appellant’s remaining enumeration of error asserts that the trial court’s award of attorney fees was not warranted. In light of our • holdings above, “these contentions are not ripe for our review.” Morris v. Morris, 222 Ga. App. 617, 619 (3) (475 SE2d 676) (1996).

Decided February 16, 2011.

Schklar, Ney & Heim, William B. Ney, for appellant.

Thomas S. Fisher, for appellee.

Accordingly, the trial court’s judgment is vacated, and we direct ; the trial court upon remand to conduct a hearing, reconsider the ¡ award under OCGA § 9-15-14, make appropriate findings of fact, and l enter a new judgment from which appeal by either party is authorized.

Judgment vacated and case remanded.

Mikell and Adams, JJ., concur.

       While the trial court’s brief order does not specify the basis for the award, this is the statute under which appellee sought attorney fees.


author: Adams, Judge.

text:
    A10A1788.
    SCHENCK v. THE STATE.
    (706 SE2d 218)
   Adams, Judge.

Anthony Marcus Schenck was convicted by a jury of driving under the influence. He appeals following the denial of his amended motion for new trial, challenging the sufficiency of the evidence and arguing that the trial court should have declared a mistrial after the prosecutor impermissibly commented on his failure to testify at trial.

The evidence presented at trial, construed to support the jury’s verdict, showed that on December 14, 2008, Keith Lengacher, a long haul truck driver from Indiana, was driving along Interstate 75 near Chattanooga, Tennessee when he came upon a slow moving vehicle traveling in the middle lane of the three southbound lanes. Lengacher moved into the right-hand lane to pass the vehicle, but the vehicle moved toward him and was about to strike the side of his truck, forcing Lengacher to move over to avoid a collision. The vehicle continued to speed up and slow down and to weave across all three lanes. Because of the erratic manner in which the vehicle was being driven, Lengacher became concerned for his safety and the safety of other drivers so he continued to follow the driver. After observing the vehicle for another mile or two, Lengacher decided to call 911. During the call, a recording of which was played at trial, Lengacher described the vehicle, gave the license tag number and described the manner in which the vehicle was being driven. Lengacher continued to follow the vehicle until the responding officer got behind it and executed a stop as it was exiting off the highway. Lengacher testified he observed the vehicle almost hit a guard rail as it was exiting and being stopped.

Officer Thomas Agredano of the Tunnel Hill police department responded to a Be On the Lookout (BOLO) issued as a result of Lengacher’s 911 call. Agredano spotted the vehicle traveling down the interstate and pulled in behind it. He also activated the video camera inside his vehicle, and the recording was introduced at trial. Agredano testified he observed that the vehicle was being driven at a slow rate of speed and that it was weaving across its lane, crossing over the divider lines between the lanes and back over the fog line several times; the video recording also showed the vehicle going from one side of the lane to the other. Based on these observations, Agredano decided to initiate a stop of the vehicle.

After the stop, Agredano approached the vehicle and observed that there were four persons in the vehicle, including the driver, subsequently identified as Schenck. Agredano testified he noticed the odor of alcoholic beverage coming from inside the vehicle and asked Schenck to step outside. The video showed and Agredano testified that Schenck was unsteady on his feet and veered into the side of the vehicle as he exited. Agredano also testified that Schenck’s speech was slightly slurred, his eyes were bloodshot and glassy and that a strong odor of alcohol was coming from his breath or person, all of which, along with the unsteadiness, were additional indicators of impairment. Agredano testified that once Schenck exited the vehicle he had no doubt the odor was emanating from him, especially since Schenck mentioned that he had consumed a couple of beers or drinks.

Based on his observations, Agredano requested that Schenck perform several standardized field sobriety tests. Agredano testified, and the video recording confirmed, that Schenck had difficulty following the instructions for the tests and that despite being given several opportunities, he could not successfully complete the tests; this failure also indicated impairment.

Schenck then agreed to blow into an alcosensor, which indicated positive for alcohol. Schenck was placed under arrest and Agredano read him the implied consent warnings. Schenck, who Agredano testified was “rambling” and making statements about being smarter than Agredano thought, refused to take the state administered test. During the ride to the police station, Schenck made various statements to Agredano, including that he was in better physical shape than Agredano and that he wanted to fight him. Agredano also stated that Schenck made remarks of a threatening nature toward Agredano’s daughter, and although it upset him to hear those remarks, “it appeared [to him] that it was the alcohol talking. It didn’t appear that the threats were valid.” 1. Schenck first argues that his constitutional and statutory rights were violated when the State commented on his failure to testify at trial. During closing argument, the prosecutor stated:

Now, in this case, [defense counsel] wishes to point you to numerous pieces of evidence to call them into question. There are some pieces of the puzzle that are not called into question. I didn’t hear much about [Schenck’s] demeanor. You saw it here in court. The court will instruct you when you are back in that jury room, you are to assess the credibility of the witnesses. . . . Now, the Judge will instruct you, at the end of this trial, you are not to hold it against the defendant that he did not testify. That’s a right in our country and you uphold that right. But did the defendant testify, [the prosecutor made air quotation marks around the testify] No. He didn’t take the witness stand —

Defense counsel then objected, and the prosecuting attorney indicated that he was not commenting on Schenck’s failure to testify but on the video recording that was introduced at trial. The trial court overruled the objection “if that’s what you’re referring to.”

The prosecuting attorney then continued the argument: “Let’s make that elegir. We’re not talking about here in court. We’re talking about the video.” Additionally, he commented, “[u]nderstand that evidence that was played for you today, that’s as good as evidence that’s on that witness stand. In fact, in some ways, it’s better.” The prosecutor continued his closing remarks, referring numerous times throughout the remainder of his argument to the videotape.

As a rule of both constitutional law and Georgia statutory law, a prosecutor may not make any comment upon a defendant’s failure to testify at trial. [Cits.] Generally, comments made by the State regarding the defendant’s decision not to testify may constitute reversible error if (1) the prosecutor’s manifest intention was to comment on the accused’s failure to testify, or (2) the remark was of such a character that a jury would naturally and necessarily take it to be a comment on the accused’s failure to testify.

(Citations and punctuation omitted.) Cannon v. State, 288 Ga. 225, 230 (6) (c) (702 SE2d 845) (2010).

But, as the trial court noted, our appellate courts have emphasized many times that the allegedly impermissible comment must be evaluated in the context in which it was made at trial. In this case, the trial court found that the prosecutor did not manifestly intend to comment on Schenck’s failure to testify, and the nature of the statement was not such that the jury would naturally and necessarily take it to be such a comment. Rather, the statement was meant to draw the jury’s attention to Schenck’s conduct on the videotape, “behavior that the State believed constituted testimony of Schenck’s impairment. The State wanted to impress upon the jury the probative value of Schenck’s demeanor captured on the videotape, despite the fact that he had not ‘testified’ in court[,]” and that was why the prosecutor had used “air quotes” to indicate he was making a distinction between any reference to Schenck’s in-court testimony and his “testimony” on the videotape.

Decided February 16, 2011.

Benjamin D. Goldberg, for appellant.

Kermit N. McManus, District Attorney, Benjamin B. Kenemer, Assistant District Attorney, for appellee.

We agree. Moreover, and

even assuming the statement was an improper comment on [Schenck’s] failure to testify, considering that the comment did not appear intentionally designed to or likely to urge any negative inference, the context in which the comment was made, and the strength of the evidence against [Schenck], ... , we conclude that any error was harmless beyond a reasonable doubt. Chapman v. California, 386 U. S. 18 (87 SC 824, 17 LE2d 705) (1967); Raheem v. State, 275 Ga. 87 (7) (560 SE2d 680) (2002)[, overruled in part by Patel v. State, 282 Ga. 412, 413, n. 2 (651 SE2d 55) (2007)].

Billings v. State, 278 Ga. 833, 835 (4) (607 SE2d 595) (2005). See also Cannon, 288 Ga. at 230 (6) (c).

2. Schenck also challenges the sufficiency of the evidence, arguing that the evidence established only that he had been drinking, not that he was less safe to drive. However, the evidence as set forth above, as well as other evidence presented at trial, was more than sufficient to establish not only that Schenck had been drinking, but that he was a less safe driver because he was impaired. This enumeration thus also presents no basis for reversal.

Judgment affirmed.

Smith, P. J., and Mikell, J., concur.


author: Miller, Presiding Judge.

text:
    A10A1851.
    JOYNER v. THE STATE.
    (706 SE2d 221)
   Miller, Presiding Judge.

Christopher Joyner entered a negotiated guilty plea to the offense of child molestation (OCGA § 16-6-4 (a) (1)), and was sentenced under the First Offender Act, OCGA § 42-8-60 et seq., to ten years probation. Approximately five years later, Joyner filed a motion to correct the record, contending that the prior sentencing judge had issued an order that reduced his probation to five years, but the order had been lost and omitted from the record in the trial court. The trial court denied the motion, from which Joyner appeals. We discern no error and affirm.

We review orders declaring a lost record “established” or “not established” under OCGA § 24-8-1 for abuse of discretion. OCGA §§ 24-8-1 and 24-8-2. The trial court’s exercise of discretion in such regard will be affirmed where there is evidence to support it. In the Interest of J. I. H., 191 Ga. App. 848, 849 (1) (383 SE2d 349) (1989).

The record shows that in November 2005, Joyner filed a motion to terminate his probation based on his status as an active member of the Florida National Guard, and the trial court granted the motion in February 2007. Thereafter, however, the trial court rescinded its prior order terminating his probation stating that: “[the prior termination order was] not valid or legal and the court orders that this defendant remain[ ] on probation unless he goes to Iraq.” In a subsequent order, the trial court further clarified that Joyner’s probation was active and that its prior order terminating Joyner’s probation was a nullity based on Joyner’s fraudulent representation that he was then en route to Iraq for military service.

On September 3, 2009, Joyner filed a motion to correct record which attached a copy of a July 1, 2005 order purporting to reduce Joyner’s probation from ten years to five years and a copy of the Clerk’s index of all the filings in his case. The order was stamped “[fjiled” in the clerk’s office on July 1, 2005 with the signature of the deputy clerk. The index, however, did not list the foregoing order.

Thereafter, the trial court held a hearing on Joyner’s motion to correct the record. Arguing that the July 1, 2005 order was genuine, Joyner maintained that “his first offender probation should terminate” and he “should be released from probation” as five years had elapsed since his sentence date. To support his claims, Joyner elicited testimony from the sentencing judge’s secretary and the deputy clerk. Each authenticated the sentencing judge’s signature on the foregoing order and that of Joyner’s probation officer. The deputy clerk further testified that she recognized her signature on the order, but she did not believe the order was in the actual case file. While the probation officer also testified that her signature appeared on the order, she denied preparing or submitting the motion to the court.

The State introduced in evidence a copy of a letter that had been sent to Joyner’s counsel regarding its plea offer, which stated that if Joyner wished to receive first offender treatment, the State would adjust its original offer of five years probation to ten years probation and require sex offender evaluation and treatment as a special condition of his probation. After hearing the evidence and arguments presented by the parties, the trial court declared that it was taking judicial notice of the fact that court was not in session on July 1, 2005, and thus, the sentencing judge could not have signed the July 1, 2005 order. Based upon these findings, the trial court denied the motion and declined to discharge Joyner from his first offender sentence.

Joyner contends that the trial court erred in failing to correct the court record to include the July 1, 2005 order reducing his probation to five years because the evidence showed that the signatures on the order were genuine, yet the order was either lost or destroyed. We disagree.

OCGA § 24-8-1 provides: “Where any public records have been lost, mutilated, stolen, or destroyed, the superior court of the county where the records belong may establish copies. When so established, such records shall be in all respects evidence as the original records would have been.” (Emphasis supplied.)

Notwithstanding the fact that the signatures of the sentencing judge, probation officer, and deputy clerk were authenticated as they appeared on the July 1, 2005 order, the testimony doing so did not go to the terms of the order. A closer examination of the order reveals that the sentencing judge did not actually grant the relief sought by Joyner, as it contains no language stating the disposition of the motion to modify sentence. While the order appeared to have been file stamped, the order was not listed in the Court Index as required by standard office operating procedure. There also was evidence that such an order had not been prepared or submitted to the court for signature.

Finally, the prerequisites for judicial notice were satisfied in this matter. The trial court notified the parties of its intent to take judicial notice that the sentencing judge had not been present to sign the order in issue as there had been “no court ... in Camden County” on July 1, 2005, a fact which was readily ascertainable, and a matter particularly within the province of the judge. See Graves v. State, 269 Ga. 772, 774 (2) (504 SE2d 679) (1998) (specifying subject matter appropriate for judicial notice). In the discussion which followed, trial counsel raised no objection to judicial notice as taken.

Under these circumstances, the trial court did not abuse its discretion in denying Joyner’s motion to correct record. OCGA §§ 24-8-1, 24-8-2; In the Interest of J. I. H., supra, 191 Ga. App. at 849 (1).

Decided February 16, 2011

Edward W. Clary, for appellant.

Stephen D. Kelley, District Attorney, Jacquelyn L. Johnson, Michele G. McPhatter, Assistant District Attorneys, for appellee.

Judgment affirmed.

Phipps, P. J., and McFadden, J., concur in judgment only.


author: Mikell, Judge.

text:
    A10A2004.
    In re ESTATE OF ROBERT E. LONG.
    (706 SE2d 704)
   Mikell, Judge.

Audrey Long (“Audrey”), caveator and beneficiary under the will of her late father, Robert E. Long (“the decedent”), appeals the probate court’s order settling his estate. We affirm the judgment but remand the case for proceedings consistent with this opinion. The relevant facts follow.

The decedent died testate in 2004. In his will, the decedent’s three children, Robert J. Long (“Robert”), Grace Cristo, and Audrey, were each given thirty percent of his estate, and his ex-wife, Gladys Long (“Gladys”), was given ten percent. Robert was named as the executor, and he was appointed in 2005. Asserting that Robert was not timely fulfilling his duties, Audrey petitioned the probate court for an accounting. Following a hearing, the court appointed Gregory W Hammonds, a C. E A., as estate accountant, authorizing him “to follow all inquiries relevant to estate assets.” The court ordered Robert to provide documents to Hammonds, but Robert failed to do so. Audrey then filed a petition to revoke Robert’s letters testamentary, alleging that he wasted and mismanaged assets of the estate. A consent order was entered in April 2006 permitting Robert to resign as executor and appointing Hammonds as administrator C. T. A.

Hammonds identified $42,655.26 in questionable expenditures made by Robert, including $25,000 that he transferred to his wife, Dawn Long, from the decedent’s personal account on the date of his death. After consulting an attorney, Hammonds declined to pursue a total of $30,967.48 in claims against Robert. Audrey petitioned the court to order Hammonds to assign the claims to her pursuant to OCGA § 53-7-45.

Hammonds then petitioned the probate court for a final settlement of accounts pursuant to OCGA § 53-7-62. The petition stated that the sole remaining asset in the estate was $59,609.42 in cash, and Hammonds sought permission to distribute the funds to the beneficiaries, less a $5,000 reserve for expenses. Hammonds also requested that the court determine whether any of the disputed claims against Robert should be assigned to one or more of the beneficiaries; that Robert be ordered to account to the estate in the amount of $13,057.11; and that Audrey and Gladys be required to account for less than $700 each. Finally, Hammonds sought discharge as administrator. Audrey filed an objection, alleging that Hammonds had failed to discharge his duties by failing to pursue Robert to recover for the estate the $25,000 death-bed transfer, proceeds from the decedent’s retirement account, and sums charged on the decedent’s credit cards.

A hearing was held at which Hammonds, his attorney, Audrey, Gladys, and Robert’s former counsel testified. Based on the evidence adduced at the hearing, the probate court found that Hammonds properly fulfilled his fiduciary duties to the estate; that it was not in the estate’s best interest to pursue the claim regarding the death-bed gift; that assignment of the claim passed to the residual beneficiaries under the decedent’s will; and that the disputed retirement funds were not part of the estate because Robert was the designated beneficiary on the decedent’s retirement account. The court authorized Hammonds to pay attorney and administrative fees and granted him a discharge from office. Audrey challenges the court’s rulings.

1. In her first enumeration of error, Audrey argues that the probate court should have ordered Hammonds to pay interest on sums held in the estate’s checking account. As Audrey did not raise this claim in the probate court, she has failed to preserve it for appellate review.

[O]ur appellate courts are courts for the correction of errors of law committed in the trial court. Routinely, this Court refuses to review issues not raised in the trial court. To consider the case on a completely different basis from that presented below would be contrary to the line of cases holding, “He must stand or fall upon the position taken in the trial court.” Fairness to the trial court and to the parties demands that legal issues be asserted in the trial court.

Audrey did not assert a claim for interest either in her objection to Hammonds’s petition for a final settlement of accounts or during the hearing held thereon. Therefore, this issue is waived.

2. Audrey challenges the probate court’s factual findings concerning the death-bed gift and the retirement funds. She also alleges that the court erred in failing to order that the death-bed gift claim be assigned to her and that the court lacked jurisdiction to determine the merits of the retirement funds dispute. We reject these assertions.

On appellate review, we will not set aside the probate court’s factual findings unless they are clearly erroneous, deferring to the court’s opportunity to judge the credibility of the witnesses. The clearly erroneous test is the same as the “any evidence” rule. Thus, where the probate court’s findings of fact are supported by any evidence, they will be upheld on appeal.

(a) The death-bed gift. The probate court found as a fact that it was not in the estate’s best interest to pursue the claim regarding the $25,000 death-bed gift to Robert’s wife. There is evidence to support this finding. Hammonds testified at the hearing on the petition to settle the estate that the costs of litigating the claim would be prohibitive and that the likelihood of collecting the sum from Robert was doubtful.

After entering the finding of fact at issue, the probate court ruled that assignment of the claim passed to the residual beneficiaries under the decedent’s will, and that pursuant to OCGA § 53-7-45, the prosecution of the claim would be at the beneficiary’s expense. Audrey complains that the court should have granted her petition to order Hammonds to assign the claim to her. No authority cited by Audrey supports this proposition. Moreover, we interpret the court’s ruling as assigning the claim to the beneficiaries, including Audrey, who may pursue it at her own expense. This ruling comports with OCGA § 53-7-45, and the court had the authority to enter it. Probate courts have “original, exclusive, and general jurisdiction” over the probate of wills and “[a]ll other matters and things as appertain or relate to estates of deceased persons.” The probate court did not err in its ruling regarding the death-bed gift.

(b) The retirement funds. At the hearing, Hammonds introduced into evidence a notice issued by The Kroger Company on March 11, 1999, stating that the decedent had named Robert as beneficiary of an annual retirement income of $15,722.42, to be paid until the expiration of 15 years from the date of the decedent’s retirement, and had designated Robert to receive a $5,000 death benefit. The designation of Robert as beneficiary conflicts with the will, which directs that monthly retirement checks be used to pay maintenance and repairs on property occupied by Gladys for 18 months, and that future retirement checks be distributed after the property is sold. Hammonds testified that he concluded that the retirement funds were not an estate asset so he did not attempt to collect them from Robert, despite Audrey’s objection. The probate court found that the retirement funds belonged to Robert because he was named as beneficiary, and, therefore, that the funds did not pass into the estate. There is evidence, recounted above, and legal authority to support this ruling.

Audrey complains that the court’s order on this issue is confusing because in its conclusions of law, the court first stated that she had the right to request assignment of claims, including one for the retirement funds. But the court followed this conclusion with a finding that the funds were not assets of the estate, and we interpret the order as declining to assign this claim to her.

Audrey further argues that the court lacked jurisdiction to decide the merits of this claim, citing the rule that “probate courts do not have jurisdiction to adjudicate conflicting claims of title to real or personal property.” The rule upon which Audrey relies does not apply under the facts of this case. Where, as here, a probate court decides a petition for settlement of accounts, the court may “hear evidence upon any contested question, and make a final settlement between the personal representative and the heirs or beneficiaries.” Resolution of the issue of the retirement proceeds in the context of a petition for settlement of accounts under OCGA § 53-7-63 fell within the probate court’s jurisdiction.

Audrey also argued at the hearing that a constructive implied trust was established, and she contends on appeal that Robert was named to receive the benefit in trust for the purpose of distributing it in accordance with the testator’s intent. The probate court was not the proper forum in which to assert this claim, however. “Trusts are peculiarly subjects of equity jurisdiction.” Equity jurisdiction lies in the superior court, not the probate court. And the probate court did not err in failing to transfer this claim to the superior court. Pursuant to OCGA § 53-7-75, when a question concerning the construction of a will arises during the course of an accounting, the probate court is required to transfer the proceeding to the superior court for the determination of such question. This claim, however, involved a conflict between the will and a designation of beneficiary, and not the construction of the will itself. As such, the probate court had jurisdiction to decide it.

3. Audrey contends that the court erred in failing to order Robert to reimburse the estate for the amount that Hammonds showed was due. Hammonds asserts that the court should have entered a ruling on the amount of money each beneficiary owed to the estate. We agree that the case must be remanded for a ruling on this issue.

OCGA §§ 53-7-62 and 53-7-63 empower the probate judge to make a final settlement of accounts between the personal representative of an estate and the beneficiaries. In his petition, Hammonds showed projected and net distributions to the estate, accounting for the amounts owed by the beneficiaries. Evidence was adduced on this issue at the hearing, yet the probate’s order is silent thereon. A final settlement of accounts, as the order purports to be, must resolve all pending issues. Accordingly, the case is remanded for the probate court to determine whether, and in what amount, any beneficiary owes funds to the estate, and to order such reimbursements, if the court finds it appropriate based on the evidence adduced at the hearing.

Within this enumeration of error, Audrey reiterates arguments previously made regarding the $25,000 death-bed gift and the retirement funds, and we will not revisit those issues here. Additionally, Audrey asserts that after permitting Robert to resign as executor, the probate court should have ordered Robert to reimburse the estate for attorney fees in the amount of $2,530. Audrey cites the principle that “an executor cannot be reimbursed for costs and expenses of litigation caused by his own misconduct.” Hammonds testified, however, that the bills for attorney fees were for services rendered on behalf of settlement of the estate, and not for defending Robert on Audrey’s motion to have him removed as executor. Accordingly, the trial court did not err in failing to order Robert to reimburse the estate for attorney fees.

4. We construe Audrey’s fourth enumeration of error as contending that the probate court erred in ruling that Hammonds fulfilled his fiduciary duties as administrator of the estate. These duties are set out in OCGA § 53-7-1 (a):

A personal representative is a fiduciary who, in addition to the specific duties imposed by law, is under a general duty to settle the estate as expeditiously and with as little sacrifice of value as is reasonable under all of the circumstances. The personal representative shall use the authority and powers conferred by law, by the terms of any will under which the personal representative is acting, by any order of court in proceedings to which the personal representative is a party, and by the rules generally applicable to fiduciaries to act in the best interests of all persons who are interested in the estate and with due regard for their respective rights.

Decided February 16, 2011.

Clarence L. Leathers, Jr., for appellant.

Smith, Welch & Brittain, David M. Waldroup, Birdia M. Greer, Larry J. Overman II, for appellee.

In this case, the probate court found that Hammonds “was timely in his distributions, and properly distributed assets, as keeping money on hand was a prudent decision, especially with regard to such a disputed matter.” Given the evidence adduced at the hearing, the finding that Hammonds fulfilled his fiduciary duties is not clearly erroneous.

In sum, the judgment is affirmed but the case is remanded for the probate court to determine whether, and in what amount, any beneficiary owes funds to the estate, and to order such reimbursements, if the court finds it appropriate based on the evidence.

Judgment affirmed and case remanded with direction.

Smith, P J., and Adams, J., concur.

       Cum testamento annexo, or administration “with the will annexed.” Black’s Law Dictionary, p. 380 (6th ed.). See OCGA § 53-7-3: “An administrator with the will annexed shall have all rights, powers, privileges, exemptions, and immunities of the executor, including the dispensation by the testator of the necessity of making inventory and returns.”

       OCGA § 53-7-45 authorizes a personal representative who declines to litigate any claim to assign the claim to “a beneficiary of a testate estate for the purpose of prosecuting the claim at that person’s own expense.”

       OCGA § 53-7-62 (a) provides, in pertinent part:
      Any person interested as an heir or beneficiary of an estate or the probate court may, after the expiration of six months from the granting of letters, cite the personal representative to appear before the probate court for a settlement of accounts. Alternatively, . . . the personal representative may cite all the heirs or beneficiaries ... to be present at the settlement of the personal representative’s accounts by the court. The settlement shall be conclusive upon the personal representative and upon all the heirs or beneficiaries. . . .

       See OCGA § 53-7-64, delineating the personal representative’s duty to account for income on property administered.

       (Punctuation and footnotes omitted.) Pfeiffer v. Ga. Dept. of Transp., 275 Ga. 827, 829 (2) (573 SE2d 389) (2002). See also Old Stone Co. I, LLC v. Hughes, 284 Ga. 259, 261 (2) (663 SE2d 687) (2008) (“A litigant is required to stand his ground and fight in order to successfully enumerate as error an alleged erroneous ruling by the trial judge”) (citation and punctuation omitted).

        Tanksley v. Parker, 278 Ga. 877-878 (1) (608 SE2d 596) (2005).

        Fowler v. Cox, 264 Ga. App. 880, 882 (592 SE2d 510) (2003).

        Glaze v. Lemaster, 279 Ga. 361, 362 (2) (613 SE2d 617) (2005).

       See, e.g., Cornelison v. Sansom, 175 Ga. 467, 470 (165 SE 264) (1932) (duty of administrator to recover estate funds held by another).

       OCGA § 15-9-30 (a) (1), (10). Accord Benefield v. Martin, 276 Ga. App. 130 (622 SE2d 469) (2005).

       See, e.g., Kirksey v. Teachers’ Retirement System of Ga., 250 Ga. 884, 886 (3) (302 SE2d 101) (1983) (survivor’s benefits under the state teachers’ retirement system made payable to designated beneficiary did not constitute part of decedent’s estate). See Radford, Redfearn’s Wills & Administration in Georgia (7th ed.), § 2:4 D, p. 35. According to this treatise,
      Employer retirement plans typically provide a mechanism by which any remaining retirement benefits are to be paid out upon the death of the retiree to a beneficiary named by the retiree. ... If the retiree has not named a beneficiary, the payments will typically be made to the retiree’s estate. It is only if the benefits are payable to the retiree’s estate that they become probate assets.
      (Footnotes omitted.)

       (Citations omitted.) In re Estate of Adamson, 215 Ga. App. 613 (1) (451 SE2d 501) (1994).

       (Citation and punctuation omitted.) Greenway v. Hamilton, 280 Ga. 652, 653 (1) (631 SE2d 689) (2006) (OCGA § 53-7-63 empowered probate court to determine ownership of estate accounts), citing Brooks v. Brooks, 184 Ga. 872, 875-876 (193 SE 893) (1937); Fowler, supra at 883-884.

       See Brooks, supra at 875 (where the issue, which arose in a citation for settlement, was a dispute between the administratrix and distributees concerning whether certificates of deposit were to be administered, and the administratrix, insisting that they were not part of the estate, the probate court had the authority to decide the issue).

       OCGA § 53-12-6 (a).

       (Citations omitted.) In re Longino, 281 Ga. App. 599, 602 (3) (636 SE2d 683) (2006).

       Cf. Geeslin v. Sheftall, 263 Ga. App. 827, 828 (589 SE2d 601) (2003) (where issues as to the settlement of the estate remain pending, and may require that beneficiaries return assets or pay money to the estate, no settlement of accounts is possible).

       Audrey also argues that the probate court should have ordered Robert to reimburse the estate for travel expenses, but she fails to cite the correct Code section, OCGA § 53-6-61, which provides: “Personal representatives shall be allowed reasonable expenses incurred in the administration of the estate, including without limitation expenses for travel.” Therefore, this argument fails.

       (Footnote omitted.) In re Estate of Arnsdorff, 273 Ga. App. 612, 614 (3) (615 SE2d 758) (2005).


text:
    A10A2227.
    MITCHELL v. THE STATE.
    (706 SE2d 223)
   Adams, Judge.

Bruce Edward Mitchell was convicted by a jury of multiple counts of aggravated sodomy, aggravated child molestation and child molestation. He appeals, challenging the sufficiency of the evidence and the trial court’s charge to the jury. We affirm.

1. Mitchell first challenges his conviction on the aggravated sodomy counts, arguing that the State failed to prove that he perpetrated the acts of oral and anal sodomy on his three male victims, who ranged in age from seven to nine years, forcibly and against their will. See Brewer v. State, 271 Ga. 605 (523 SE2d 18) (1999).

Only a minimal amount of evidence is necessary to prove that an act of sodomy involving a child was done with force and against the child’s will, and such evidence can consist of “threats of death or physical bodily harm, or mental coercion, such as intimidation.” Brewer v. State, 271 Ga. 605, 607 (523 SE2d 18) (1999).

Driggers v. State, 295 Ga. App. 711, 714 (1) (673 SE2d 95) (2009).

“Moreover, (f)orce may be proved by direct or circumstantial evidence.” (Citations and punctuation omitted.) Boileau v. State, 285 Ga. App. 221, 223 (1) (a) (645 SE2d 577) (2007).

In this case, two of the victims, who were brothers, testified about the repeated acts of anal and oral sodomy Mitchell performed on them, and the other victim, who was their cousin, testified that Mitchell also anally sodomized him and put lotion on his penis. All three victims testified that there was a gun on a nearby table when these acts were performed. All of the victims testified that they did not like it when Mitchell performed these acts on them, and one victim told a doctor who examined him that it “hurt a great deal” when Mitchell anally sodomized him. One of the brothers testified that Mitchell threatened to hurt and shoot him if he told and that he did not tell his mother “right away” about what Mitchell was doing because he was scared that Mitchell would shoot him with his gun. He also testified that he asked Mitchell to stop and Mitchell told him “to wait a little while.” The cousin also testified that Mitchell threatened to shoot him if he told. The evidence was sufficient to prove that the victims were forced to perform these acts against their will. E.g., Driggers, 295 Ga. App. at 714. This enumeration thus presents no basis for reversal of Mitchell’s conviction of aggravated sodomy.

2. Mitchell also argues that the trial court erred by failing to instruct the jury on the essential elements of the crime of aggravated child molestation.

As to this issue, the transcript shows that the trial court first charged the essential elements of the offense of sodomy as follows: “a person commits the offense of sodomy when he performs or submits to any sexual act involving the sex organ of one person and the mouth or anus of another” and then charged that “a person commits the offense of aggravated sodomy when he commits sodomy with force and against the will of the other person.” Subsequently, the trial court also charged “that a person commits a child molestation when he does any immoral or indecent act to or in the presence of or with any child under the age of fourteen years with the intent to arouse or satisfy the sexual desire of either the child or the accused.” Although the trial court did not specifically define the offense of aggravated child molestation for the jury, it did inform the jury that Mitchell was charged with that offense, as well as aggravated sodomy and child molestation. Moreover, the indictment was sent out with the jury, and the jurors were informed not to begin their deliberations until the indictment and exhibits had been delivered to the jury room. The indictment in this case recited the essential elements of the charged offenses and specified the exact manner in which the aggravated child molestations, which involved acts of sodomy, were alleged to have been committed. And the jury was instructed that the burden was on the State “to prove every material allegation of the indictment, every essential element of the crime charged, beyond a reasonable doubt.” Moreover, the victims’ testimony showed that the acts of aggravated child molestation were committed as alleged.

In Floyd v. State, 193 Ga. App. 17 (387 SE2d 16) (1989), the defendant was charged with aggravated child molestation and the molestations involved acts of sodomy. On appeal, the defendant argued that the trial court erred by failing to define sodomy in its charge to the jury. Although first noting that “undoubtedly,” it would have been better practice for the trial court to include the definition in its charge to the jury, this Court went on to find that the failure to do so was not reversible error, “particularly in view of the fact that the indictment specified the manner in which the alleged acts of sodomy had been committed,” the testimony of the victims disclosed that the defendant had perpetrated the acts as alleged in the indictment, and the charge as a whole sufficiently instructed the jury as to the basic principles of law. (Punctuation omitted.) Id. at 17-18. In this case, the defendant was likewise charged with aggravated child molestation, and the alleged molestations involved acts of sodomy. Those acts were also specified in the indictment, and the victims’ testimony showed that Mitchell committed those acts of sodomy as alleged. The charge as a whole sufficiently instructed the jury on the basic principles of law and contained specific instructions on the offenses of child molestation, sodomy and aggravated sodomy. Finally, the jury was specifically instructed on the State’s burden to prove every material allegation of the indictment and the essential elements of the crimes charged. In light of these circumstances, we also discern no reversible error in this case. See also Turner v. State, 246 Ga. App. 49, 54 (5) (a) (539 SE2d 553) (2000) (trial court’s failure to define “destructive device,” an essential element of the offense charged, not reversible error when, inter alia, the indictment specified the device and the experts described devices found in defendant’s bedroom).

Decided February 16, 2011.

Peter D. Johnson, for appellant.

Ashley Wright, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

Judgment affirmed.

Smith, P. J., and Mikell, J., concur.

       Effective July 1, 2000, the General Assembly amended OCGA § 16-6-2 (a) (2) so that it now provides that aggravated sodomy is committed either when acts of sodomy are committed with force and against the will of the victim or “with a person who is less than ten years of age.” Ga. L. 2000, p. 1346, § 1. Mitchell was indicted and convicted prior to the effective date of this amendment.

       There is no contention that the acts alleged did not constitute the offense of aggravated child molestation.


text:
    A10A2308.
    ANIEBUE v. JAGUAR CREDIT CORPORATION.
    (708 SE2d 4)
   Adams, Judge.

Chukwuemeka A. Aniebue, pro se, appeals the trial court’s grant of summary judgment to Jaguar Credit Corporation (“JCC”) in the company’s suit to recover the deficiency on an automobile lease.

To prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact, and that the undisputed facts, viewed in a light most favorable to the party opposing the motion, warrant judgment as a matter of law. OCGA § 9-11-56 (c); Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). This Court applies a de novo review to a grant of summary judgment, viewing the evidence and all reasonable inferences therefrom in the light most favorable to the nonmovant. Versey v. Citizens Trust Bank, 306 Ga. App. 479 (702 SE2d 479) (2010).

So viewed, the evidence shows that on September 10, 2007, Chukwuemeka A. Aniebue (“Aniebue”) and his wife, Alma Aniebue, signed a Motor Vehicle Lease Agreement with Hennessey Jaguar of Gwinnett. Under this Agreement, the Aniebues entered into a four-year monthly payment lease for a 2008 Jaguar, which required them to make a $999.27 payment each month. At the end of the lease, the Aniebues had the option of purchasing the car for the stated “residual value” of $19,684.

The Agreement further provided that the Aniebues could voluntarily terminate the lease by returning the vehicle. But if they chose to terminate, they were required to pay the difference between the unpaid portion of Adjusted Capitalized Cost, which the lease calculated at $59,145, and the vehicle’s fair market wholesale price, in addition to any other costs due and owing under the lease. In the event of a default, JCC was entitled to a return of the vehicle, and the Aniebues were required to pay the difference between the Adjusted Capitalized Cost and “the value that could be realized at the wholesale sale of the Vehicle,” as well as any other costs due and owing.

JCC purchased the lease from Hennessey Jaguar in the ordinary course of business and serviced the Aniebues’ account. JCC’s account records indicate that the Aniebues made regular monthly payments of $1,000 to $1,010 for the first four months of the lease, from October 2007 to January 2008, but made no payments in February or March 2008. The Aniebues then resumed payments in varying amounts from April through June 2008, including payments of only $500 for two of those months. Although no payment is recorded for either July or September 2008, the Aniebues made two $1,000 payments in August.

On October 8, 2008, the Aniebues voluntarily surrendered the car to JCC. Aniebue denies that he made the surrender because the lease was in default, despite the fact that JCC records indicate that the lease was not current at that time. Rather, Aniebue states that he initiated the surrender primarily because the automobile had “developed major technical problems ranging from bad seat belt, noisy brakes, and occasional lock-engine.” At the time of surrender, Aniebue signed a voluntary surrender form, which reflects that the balance remaining under the lease was $52,496.09. By signing the form, Aniebue agreed that the car could be sold and if the sale price did not cover the balance due plus sale expenses, he agreed to pay JCC the difference. The form also provided that Aniebue was not “waiving his right to redeem the property or to be advised of any proposed sale of the property before it is sold.”

JCC sold the car at auction for $29,600 in January 2009. Aniebue states that he received no prior notice of this sale, and JCC has provided no proof of such notice. JCC applied the sales proceeds to the balance due on the account, which the company had adjusted downward from the balance shown on the voluntary surrender form to $48,591.29, leaving a balance of $18,991.29. The company then added charges in the amount of $5,248.17, reflecting repossession expense, maintenance fee, lease extension fee, late charges and service charges, resulting in a total of $24,239.46. JCC initiated this action to collect this amount plus interest and attorney fees, and the trial court subsequently granted summary judgment in its favor against Aniebue.

1. Aniebue argues that the trial court erred in granting JCC’s motion for summary judgment because JCC failed to provide him notice as required under OCGA §§ 10-1-36 and 11-9-611 (b). The applicability of these sections, however, “depends on whether the contract denominated a lease by the parties is a true lease or is a disguised secured transaction. If the lease is not a security transaction the notice provisions are inapplicable, and the [post-surrender] sale was properly conducted.” (Citation and punctuation omitted.) Mejia v. C & S Bank, 175 Ga. App. 80, 81 (332 SE2d 170) (1985).

Under Georgia’s version of the UCC, “[wjhether a transaction creates a lease or security interest is determined by the facts of each case.” OCGA § 11-1-201 (37). That statute “defines the distinction between a ‘true lease’ and a security interest in an agreement involving ... a purchase option [by] focusing the inquiry on the economics of the transaction, not the intent of the parties.” (Citation and punctuation omitted.) Coleman v. DaimlerChrysler Svcs. of North America, 276 Ga. App. 336, 337 (623 SE2d 189) (2005). Accordingly, under OCGA § 11-1-201 (37),

a transaction creates a security interest if [1] the consideration the lessee is to pay the lessor for the right to possession and use of the goods is an obligation for the term of the lease not subject to termination by the lessee, and . . . [2] [t]he lessee has an option to become the owner of the goods for no additional consideration or nominal additional consideration upon compliance with the lease agreement.

OCGA § 11-1-201 (37). This two-pronged analysis has been termed the “Bright-Line Test” for determining whether a security interest exists. Coleman, 276 Ga. App. at 238. In addition, the statute provides that

[a] transaction does not create a security interest merely because it provides that. . . [t]he lessee has an option to become the owner of the goods for a fixed price that is equal to or greater than the reasonably predictable fair market value of the goods at the time the option is to be performed.

Id. Accordingly, we have recognized that “[t]here is a set of purchase options whose fixed price is less than fair market value but greater than nominal that must be determined on the facts of each case to ascertain whether the transaction in which the option is included creates a lease or a security interest.” Id. Thus, regardless of whether other provisions of the Agreement are

indicative of a security agreement, it is commonly held that “the best test” for determining the intent of an agreement which provides for an option to buy, is a comparison of the option price with the market value of the equipment at the time the option is to be exercised. Such a comparison shows whether the lessee is paying actual value or acquiring the property at a substantially lower price.

(Citation and punctuation omitted.) Mejia v. C & S Bank, 175 Ga. App. at 81.

The Agreement here sets the end-of-lease purchase option price for the vehicle, which it denominates the “residual value,” at $19,684, but it does not expressly state that this figure represents the estimated fair market value as of September 2011, the time the purchase option could be exercised. And JCC failed to provide the trial court with information regarding such value. Without this information, we cannot apply the “best test” for determining whether the Agreement creates a security interest. However, the use of the term “residual value” suggests the parties were attempting to value the car at lease end. And the record demonstrates that the $19,684 purchase option price is approximately one-third of the car’s value in September 2007 as agreed upon by the parties at the beginning of the lease and approximately two-thirds of the sale price netted at the wholesale auction in January 2009. Accordingly, even if the option price were less than the fair market value as of September 2011, we conclude that it cannot be deemed a merely nominal amount.

Moreover, application of the Bright-Line Test under OCGA § 11-1-201 (37) “does not necessarily end the analysis.” Coleman v. DaimlerChrysler Svcs., 276 Ga. App. at 339. Rather, we have recognized that

the key issue the Court must determine is whether the lessor retains a meaningful residual interest at the end of the lease term. If there is a meaningful reversionary interest . . . the parties have signed a lease, not a security agreement. If there is no reversionary interest, the parties have signed a security agreement, not a lease.

(Citations and punctuation omitted.) Id. Courts across the country have applied various tests in determining whether the lessor retained a meaningful reversionary interest under the UCC. We conclude that the test employed in In re QDS Components, 292 BR 313, 342 (S.D. Ohio 2002), is appropriate for application in this case. That test analyzes two factors: “(1) whether the purchase option price is nominal; and (2) whether the agreement contains any provision for the lessee’s acquisition of equity in the vehicle.” (Citation omitted.) In re QDS Components, 292 BR at 342. We have already concluded that the option price must be considered more than nominal, and a review of the Agreement shows no provision purporting to grant the Aniebues’ equity in the vehicle prior to exercise of the purchase option. Thus, we conclude that JCC retained a meaningful reversionary interest in the car.

Under these circumstances, we find that the lease agreement entered into by the parties was intended to be a true lease and not to evince a secured transaction. Accordingly, JCC was not required to comply with the notice provisions of OCGA §§ 10-1-36 and 11-9-611 (b), and the trial court did not err on this ground in granting summary judgment in favor of JCC and against Aniebue.

2. Aniebue also contends that the trial court erred in awarding JCC the principal balance of $24,239.46, because the company provided no backup documentation or explanation to support its damage calculations, particularly the maintenance, repossession, service and other charges. In his discovery responses and pleadings, Aniebue disputed the amount JCC claimed was due under the Agreement and asked that JCC explain its calculations, although he apparently never served any discovery of his own.

Nevertheless, on summary judgment, the movant bears the burden of showing that no issue of fact remains as to any material fact of his claim. Edmonds v. Bd. of Regents &c. of Ga., 302 Ga. App. 1, 2 (689 SE2d 352) (2009). JCC therefore bore the burden of establishing the amount of Aniebue’s debt in order to prove that no material fact remains as to damages. In that regard, JCC presented an affidavit from Beverly Villanueva, an account representative familiar with the Aniebues’ JCC account. Villanueva addresses at least one of these fees in her affidavit, stating that “the expenses incurred by [JCC] for the resale of the vehicle amounted to $400, as shown by Exhibits [sic] ‘E.’” But Exhibit “E” shows only $225 in sale costs: $95 for “reconditioning” the car and $130 in sales fees charged by the auction company. No explanation is given for this discrepancy. Additionally, JCC’s attorney prepared a calculation of damages, which was attached as an exhibit to Villanueva’s affidavit. That exhibit lists a “repossession expense” of $400, a maintenance fee of $452.23, a lease extension fee of $599.56, late charges of $537.08 and service charges of $3,259.30. Villanueva states that the attorney’s exhibit “accurately reflects the calculation of principal balance due. After applying the resale proceeds to the balance due plus other debits or credits required or authorized by the terms of the contract, [Aniebue] still owes the principal sum of $24,239.46.” Villanueva, however, does not explain the basis of these fees, which added an additional 28 percent to Aniebue’s account balance after resale, nor does she point to any supporting documentation. And neither Villanueva’s affidavit, nor JCC’s briefing identifies the provision of the Agreement requiring Aniebue to pay these additional charges.

Thus, the only specific document Villanueva cites in support of any of the fees reflects a figure lower than the amount stated in the affidavit. To the extent that other supporting documents exist to explain this discrepancy, they were not attached as part of the noted Exhibit. “Business records, when appropriate, must accompany an affidavit purporting to establish the amount of a debt. When records relied upon and referred to in an affidavit are neither attached to the affidavit nor included in the record, the affidavit is insufficient.” (Citations omitted.) OVIP, Inc. v. Blockbuster Textiles, 289 Ga. App. 276, 279-280 (2) (656 SE2d 907) (2008). See also Powers v. Hudson & Keyse, 289 Ga. App. 251, 252 (1) (656 SE2d 578) (2008). And to the extent that Villanueva relied upon the attorney’s summary exhibit in determining the amount of Aniebue’s indebtedness, such reliance would be inadequate to establish damages. See Gateway Leasing Corp. v. Heath, 168 Ga. App. 858, 859-860 (1) (310 SE2d 549) (1983).

Decided February 16, 2011.

Chukwuemeka A. Aniebue, pro se.

Bridgers, Peters & Kleber, Jerry C. Tootle, for appellee.

We conclude, therefore, that JCC failed to carry its burden of showing that there is no genuine issue of material fact as to the amount of Aniebue’s indebtedness under the Agreement. Accordingly, the trial court erred in awarding the principal amount of $24,239.46 on summary judgment.

3. Aniebue further asserts that the trial court erred in failing to hold an evidentiary hearing to determine damages, but the record shows that neither party requested a hearing on JCC’s motion for summary judgment. In the absence of such a request, it was not error for the trial court to rule on the motion for summary judgment without a hearing. Uniform Superior Court Rule 6.3; Southern Intl. Pictures v. Friedman, 201 Ga. App. 87 (1) (410 SE2d 51) (1991).

Judgment affirmed in part and reversed in part.

Smith, P. J., and Mikell, J., concur.

       JCC filed suit against both Chukwuemeka Aniebue and his wife Alma, but Chukwue-meka is the only appellant before this Court. The Aniebues represented themselves pro se in the trial court. After the court entered a default judgment against Alma for failure to file a timely answer, she filed a motion to set aside the default, which the trial court denied. Alma filed a second motion to set aside on June 8, 2010, the same day Chukwuemeka filed the notice of appeal in this case. Although the notice indicates that “Defendants” were appealing the trial court’s “final judgment,” the notice was signed only by Chukwuemeka. Alma Aniebue never filed a notice of appeal, and Chukwuemeka, a non-attorney, could not file an appeal on her behalf. Thus, Alma Aniebue is not a party to this appeal, and we will not consider Chukwuemeka’s enumeration regarding the default judgment entered against Alma because he has no standing to appeal that ruling. See Stonica v. State Farm Fire &c. Co., 198 Ga. App. 717 (402 SE2d 553) (1991).

       JCC records do not reflect that the Aniebues ever reimbursed JCC for at least three months of skipped payments or made up the two half-payments in April and May, and Aniebue produced no evidence of any further payments. Although the account records show a $1,000 payment in October 2008 at the time of surrender, a subsequent entry appears to indicate that this payment may have been reversed.

       The account documentation reflects that this reduction was due to a rebate credit on the account.

       Although Aniebue also asserts violations of OCGA §§ 44-14-161, 44-14-162, and 44-14-162.1, those statutes address the sale of real estate on foreclosure and have no application in this case.

       We have previously recognized the QDS Components case as authority on these UCC provisions. Coleman, 276 Ga. App. at 338.

       For example, Aniebue questions why JCC is attempting to charge him over $3,000 in service charges when the lease reflects that the car was under a standard manufacturer’s warranty and the car’s odometer reflected only 12,981 miles at the time of resale. No explanation appears in the record as to whether the service charge refers to service on the vehicle, service on the account or some other matter.

       Although the printout of the account attached as a separate exhibit reflects various rebates, credits, fees and assessments, those items are designated by codes or abbreviated descriptions, making it difficult to identify these account adjustments or to relate them to the fees sought as damages by JCC.