author: McFadden, Judge.

text:
    A15A1889.
    GOBRAN AUTO SALES, INC. v. BELL.
    (783 SE2d 389)
   McFadden, Judge.

Charity Bell sued Gobran Auto Sales, Inc., alleging that Gobran Auto misrepresented the condition of a used car it sold her. She asserted claims for violation of the Georgia Motor Vehicle Emission Inspection and Maintenance Act (OCGA § 12-9-40 et seq.), violation of the Georgia Fair Business Practices Act (OCGA § 10-1-390 et seq.), violation of the odometer statute (OCGA § 40-8-5), and fraud. The jury handed down a verdict in her favor on all counts and awarded both compensatory and punitive damages. In its final judgment, the trial court applied the treble damages provisions of both the Fair Business Practices Act and the odometer statute to the compensatory damages award and entered an additional award for attorney fees and litigation expenses.

On appeal Gobran Auto argues that it was entitled to a directed verdict on all counts and that the trial court erred in calculating treble damages and in awarding both punitive and treble damages. About the Georgia Motor Vehicle Emission Inspection and Maintenance Act, we agree with Gobran Auto that it does not support a private right of action. But as to the other counts, we find the evidence sufficient. We also agree with Gobran Auto that the trial court erred in calculating treble damages. Gobran Auto’s other claims of error are without merit. Because of the errors we find the trial court to have committed and because the verdict did not allocate compensatory damages among the several counts, we must reverse the judgment entered on the verdict in Bell’s favor.

1. Facts.

“In reviewing the denial of a motion for directed verdict, we construe the evidence in the light most favorable to the prevailing party, and determine whether there is any evidence to support the jury’s verdict.” Eco-Clean v. Brown, 324 Ga. App. 523 (749 SE2d 4) (2013) (citation and punctuation omitted).

So viewed, the evidence at trial showed that on March 29, 2013, Bell purchased a 2001 Toyota Avalon from Gobran Auto. Before agreeing to the purchase, Bell and her husband questioned Awny Gobran, the owner of Gobran Auto, about the car. They asked if the car had been in any accidents, if the odometer was accurate, and if there were any hidden issues. Gobran assured them that nothing was wrong with the car and that it was in good condition.

The odometer showed that the car had been driven 147,000 miles. That number was a factor Bell and her husband considered in making the purchase. It turned out not to be true.

Gobran Auto gave Bell an odometer disclosure statement. But it was ambiguous, and Gobran lied about it. It provided:

I, GOBRAN AUTO SALE, INC. state [sic] that the odometer now reads EXEMPT miles and to the best of my knowledge that it reflects the actual mileage of the vehicle described below, unless one of the following statements has been checked.
[ ] (1) I hereby certify that to the best of my knowledge the odometer reading reflects the amount of mileage in excess of its mechanical limits.
[ ] (2) I hereby certify that the odometer reading is NOT the actual mileage. WARNING: ODOMETER DISCREPANCY.

Neither (1) nor (2) was checked. Gobran explained to Bell that the word “exempt” appeared on the statement because he had purchased the car at auction. The odometer disclosure statement was referenced on a warranty disclaimer, which Bell signed, acknowledging that Gobran Auto sold the car “as is.” Like the odometer disclosure statement, the warranty disclaimer also stated, “Current Odometer Mileage: EXEMPT.” Again Gobran explained that the document said “exempt” because he had purchased the car from an auction and that he would change it. Bell specifically asked if the odometer had been rolled back, and Gobran said no, that the odometer reflected the car’s actual mileage. This turned out not to be true.

Four days after Bell purchased the car, the check engine light came on. She returned the car to Gobran Auto, where a mechanic said a hose needed to be replaced. He replaced the hose and the light went out, but it came back on later that night. Again Bell returned the car to Gobran Auto, which kept it for two or three days. When Bell picked up the car, the light was initially off but it came back on again. This time she took the car to a Toyota dealership. A service advisor at the dealership told Bell that something had been spliced to get the light off and that the car needed a charcoal canister and a VSV valve in order to solve the problem.

Bell took the car for an emission inspection. It did not pass. She took the car back to Gobran Auto, which kept it for three or four days. When she picked up the car, Gobran Auto gave her a certificate stating that the car had passed its emission inspection on April 18, 2013, almost three weeks after Bell had purchased the car. But once again, the check engine light came on. For the second time, Bell took the car to the Toyota dealership. The service advisor explained that since the last time he had seen the car, someone had done a poor job trying to repair it and had grounded a wire near a fuel filter neck. He explained that this repair could cause a fire and was not legal. According to another witness, a mechanic who had worked on Gobran Auto cars, this was something Gobran had done before. From his experience, the Toyota dealership’s service advisor believed that this repair was made to keep the check engine light off or to enable the car to pass an emission inspection. For a final time, Bell took the car back to Gobran Auto, but Gobran refused to do further work on the car.

At that point, Bell contacted Georgia’s Clean Air Force, the state emissions testing program, which informed her that the car did not have a valid emission inspection at the time of the sale. Bell secured a vehicle history report from Carfax, which showed that the car had been damaged in an accident and that its last reported odometer reading was 237,271, about 90,000 miles more than the mileage shown on the odometer.

A certified mechanic testified at trial that he formerly worked at a shop that did work for Gobran. He testified that Gobran would bring cars to the shop and instruct the mechanic to replace their control modules — even though control modules rarely fail. When the control modules were replaced, the mechanic explained, the cars’ odometers would show the mileage from the newly installed control modules rather than the actual mileages. The mechanic said that, essentially, he was putting new, false mileages on the cars by replacing the control modules.

An independent vehicle appraiser testified at trial that given the car’s condition, including its possibly rolled-back odometer, collision repairs, lack of a valid emissions certificate at the time of the sale, and failed emissions testing, the car was worth $1,690.50 — $3,209.50 less than the $4,900 Bell had paid.

The jury completed a special verdict form, finding that Gobran Auto violated the Motor Vehicle Emission Inspection and Maintenance Act, the odometer statute, and the Fair Business Practices Act (the latter intentionally); that Gobran Auto committed fraud; and that Gobran Auto’s fraudulent actions “showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care that would raise the presumption of conscious indifference to consequences.” The jury awarded Bell $4,114.50 in compensatory damages and $3,000 in punitive damages. The trial court entered judgment on the jury’s verdict, reserving the issues of attorney fees and treble damages. After a hearing, the trial court awarded Bell $17,603 in attorney fees and litigation expenses and — on the basis of the treble damages provisions in both the Fair Business Practices Act and the odometer statute — held that the jury’s $4,114.50 compensatory damages award should be multiplied by six to $24,684 (rounded down). Gobran Auto filed this appeal.

2. Georgia Motor Vehicle Emission Inspection and Maintenance Act.

Gobran Auto argues that the trial court erred in denying its motion for a directed verdict on Bell’s claim under OCGA § 12-9-54 of the Georgia Motor Vehicle Emission Inspection and Maintenance Act. It contends that a private civil cause of action may not be implied to remedy a violation of that statute, which prohibits the sale of some motor vehicles without a valid certificate of emission inspection. We agree.

OCGA § 12-9-54 of the Act provides in part:

No person shall sell any motor vehicle which is intended for highway use if such vehicle is at the time of the sale a responsible motor vehicle required to have a certificate of emission inspection under Code Section 12-9-45, unless there appears on such vehicle an unexpired valid certificate of emission inspection issued pursuant to this article. Any person violating this Code section shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of $100.00 for a first offense, $500.00 for a second offense, and $1,000.00 for each subsequent offense. . . .

The statute does not provide a civil remedy nor contain an express private cause of action. It is a penal statute, as it provides that any person who sells a vehicle without a required, valid certificate of emission inspection is guilty of a misdemeanor. See Anthony v. American Gen. Financial Svcs., 287 Ga. 448, 454 (2) (a) (697 SE2d 166) (2010). Although

civil liability may be authorized where the legislature has indicated a strong public policy for imposing a civil as well as criminal penalty for violation of a penal statute [,] . . . the indication that the legislature meant to impose a civil as well as criminal penalty must be found in the provisions of the statute at issue, not extrapolated from the public policy the statute generally appears to advance.

Id. at 455 (2) (a) (citations, punctuation and emphasis omitted). The Act imposes only a criminal penalty; “nothing in the provisions of [OCGA § 12-9-54] creates a private cause of action in favor of the victim purportedly harmed by the violation of the penal statute.” Id. (citation and emphasis omitted). Therefore, “a private civil cause of action may not be implied to remedy a violation of OCGA § [12-9-54].” Id. at 459 (2) (d). It follows that the trial court erred by denying Gobran Auto’s motion for directed verdict on this count of the complaint.

Bell argues that Gobran Auto’s violation of the Act entitled her to damages under OCGA §§ 51-1-6 (“When the law requires a person to perform an act for the benefit of another or to refrain from doing an act which may injure another, although no cause of action is given in express terms, the injured party may recover for the breach of such legal duty if he suffers damage thereby.”) and 51-1-8 (“Private duties may arise from statute or from relations created by contract, express or implied. The violation of a private duty, accompanied by damage, shall give a right of action.”). However, those statutes do not create causes of action, but simply set forth general principles of tort law, “authorizing] the recovery of damages for the breach of a legal duty otherwise arising, though not expressly stated, under a statute or common law.” Bridges v. Wooten, 305 Ga. App. 682, 684 (1) (700 SE2d 678) (2010) (citation and punctuation omitted). See also Wells Fargo Bank v. Jenkins, 293 Ga. 162, 164 (744 SE2d 686) (2013); Reilly v. Alcan Aluminum Corp., 272 Ga. 279, 281 (1) (528 SE2d 238) (2000). Therefore, in spite of Bell’s reference to those general tort statutes, this particular claim is actually based on Gobran Auto’s violation of the Act, a criminal statute. And, as detailed above, a private civil cause of action may not be implied to remedy such a violation. OCGA §§ 51-1-6 and 51-1-8 do not change this outcome.

In support of her contention that she has a cause of action against Gobran Auto for violating OCGA § 12-9-54, Bell argues that “Georgia courts have sustained numerous private causes of action for violations of the Georgia Motor Vehicle Inspection and Maintenance Act.” But she cites no binding authority in support of this argument. Instead, she gives only Westlaw citations to unpublished orders of United States district courts and Georgia superior courts.

Because the jury did not allocate the compensatory damages award among the several counts, we cannot ascertain if and to what extent the jury based that award on the unsustainable emissions count. “Accordingly, the jury’s verdict must be reversed in its entirety and the case remanded for a new trial.” Legacy Academy v. Mamilove, LLC, 297 Ga. 15, 21 (3) (771 SE2d 868) (2015) (citation omitted). We will address Gobran Auto’s other enumerations of error because they are relevant to retrial.

3. Fraud, Georgia Fair Business Practices Act, and odometer statute.

Gobran Auto also appeals from the trial court’s denial of its motion for directed verdict as to Bell’s other claims — fraud, violation of the Georgia Fair Business Practices Act, and violation of the odometer statute. Specifically it argues that those claims are barred by her failure to obtain a Carfax report before purchasing the car. Citing Isbell v. Credit Nation Lending Svc., 319 Ga. App. 19, 25-26 (2) (b) (735 SE2d 46) (2012), Gobran Auto argues that without a Carfax report, Bell’s reliance on any representations about the car was not justified. We disagree.

It is true that in Isbell we held as, a matter of law, that the plaintiff buyers had failed to exercise due diligence. But there is no evidence here of the sort of notice that controlled our decision in Isbell. There the buyers of a used truck asserted claims for fraud, breach of an oral contract, violations of the Georgia Fair Business Practices Act, and violations of the federal Truth in Lending Act (15 USC § 1601 et seq.). Id. at 19. They sued the seller and the seller’s financier, contending that the condition of the truck had been misrepresented to them. Id. at 19-21. The evidence showed that the buyers failed to obtain a vehicle history report or to have their own mechanic inspect the truck even though they “were specifically warned that the vehicle may have a bent frame” and were offered an opportunity to have the truck inspected. Id. at 26 (2) (b). Given this specific warning, we concluded that as a matter of law, the buyers had failed to exercise due diligence to discover that the truck had suffered frame damage in a prior automobile accident. Id. Here, in contrast, Gobran Auto has pointed to no evidence that Bell was put on notice that the odometer reading was false or that the car did not have a valid emission inspection at the time of the sale. These facts distinguish Bell’s case from Isbell.

Gobran Auto argues that the “as is” disclaimer was sufficient to put Bell on notice of the false odometer reading. We are not persuaded. Bell testified that she specifically asked if the odometer had been rolled back and Gobran responded that the odometer reflected the car’s actual mileage. “Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.” OCGA § 11-2-313 (1) (a). See also Mitchell v. Backus Cadillac-Pontiac, 274 Ga. App. 330, 337-338 (5) (618 SE2d 87) (2005). And “the ‘as is’ language used here is ineffective to negate an express warranty.” City Dodge v. Gardner, 232 Ga. 766, 767 (1) (208 SE2d 794) (1974).

Decided March 1, 2016.

David H. Wood, for appellant.

Hormozdi Law Firm, Shireen Hormozdi; Fortas Law Group, E. Scott Fortas, for appellee.

4. Damages.

Gobran Auto argues that the trial court erred by awarding Bell treble damages twice. We agree. The jury awarded Bell compensatory damages of $4,114.50. In addition to that amount, the trial court awarded $24,684 on the basis of both the treble damages provision in the Fair Business Practices Act, OCGA § 10-1-399 (c), and the treble damages provision in the odometer statute, OCGA § 40-8-5 (g) (1) (A). The verdict did not allocate the compensatory damages among the four counts for which the jury found Gobran Auto liable. Therefore, we must presume that no more than part of the total compensatory damages award was for the Fair Business Practices Act violation and no more than part was for the odometer statute violation. See OCGA § 9-12-4 (“Verdicts shall have a reasonable intendment and shall receive a reasonable construction.”). It follows that the trial court erred by awarding treble damages of the entire compensatory damages award for each violation, which amounted to sextuple damages for each violation.

We pretermit whether, in a proper case, damages arising from conduct that violates the odometer statute can be doubled under that statute and redoubled under the Fair Business Practices Act, which likewise is violated by the conduct. We would be able to decide this issue only on a record in which damages under the odometer statute are segregated, which, as detailed above, is not the case here.

Judgment reversed.

Ellington, P. J., concurs. Dillard, J., concurs fully in Divisions 1, 2, and 4 and concurs in judgment only in Division 3.


source: Caselaw Access Project

author: MCFADDEN, Judge.

license: Public Domain

text:
    A15A1986.
    LIPSCOMB v. DAVIS.
    (783 SE2d 398)
   MCFADDEN, Judge.

Ericka Lipscomb sued Kenneth Davis for personal injuries sustained in an automobile accident on August 15, 2012. The suit was filed on August 12, 2014, three days before the two-year statute of limitation expired. See OCGA § 9-3-33. Davis filed a special appearance answer on December 8,2014, in which he asserted lack of service of process as a defense. He also filed a motion to dismiss or, in the alternative, motion for summary judgment on that ground. The court granted Davis’s motion, stating that “[Lipscomb] has not demonstrated the greatest possible diligence in attempting to serve [Davis].” Finding no abuse of discretion, we affirm.

The record shows that after Lipscomb filed her complaint against Davis on August 12, 2014, the sheriff attempted service at 2673 Evans Mill Drive on August 21, 2014. The sheriff was unable to serve Davis, who had moved without leaving any forwarding information. On or about October 13, 2014, Lipscomb filed an affidavit of nonser-vice from a private process server, which recited that the process server had attempted to serve Davis on September 13, 2014 at 2669 Evans Mill Drive, but received no answer, and again at the same address on September 20, 2014 when a neighbor told the server that the apartment had been vacant for several months. The process server also stated in his affidavit that the address at which the sheriff had attempted to serve Davis did not exist. A final attempt to serve Davis was made on December 11 — three days after Davis filed a special appearance answer — at an address belonging to Davis’s ex-girlfriend who claimed that Davis had moved.

“Absent a showing of an abuse of discretion, a trial court’s finding of insufficient service of process must be affirmed.” Franchell v. Clark, 241 Ga. App. 128, 131 (3) (524 SE2d 512) (1999) (citations omitted). Where service is made after the statute of limitation expires, “the timely filing of the complaint tolls the statute only if the plaintiff shows that he acted in a reasonable and diligent manner in attempting to [e]nsure that a proper service was made as quickly as possible.” Slater v. Blount, 200 Ga. App. 470, 472 (408 SE2d 433) (1991). However, when the statute of limitation has expired, and a defendant raises the issue of defective service, the plaintiff must act with “the greatest possible diligence” from that point forward in order to serve the defendant or risk dismissal of his case. See Ingraham v. Marr, 246 Ga. App. 445, 447 (2) (540 SE2d 652) (2000). Under both standards, a plaintiff has the burden of showing she exercised the required diligence and that there are no unexplained lapses in her attempts to serve the defendant; this showing “must be supported by specific dates and details.” Duffy v. Lyles, 281 Ga. App. 377, 378 (636 SE2d 91) (2006) overruled in part on other grounds, Giles v. State Farm Mut. Ins. Co., 330 Ga. App. 314 (765 SE2d 413) (2014). The evidence in this case authorized the trial court to find that Lipscomb did not act with the greatest possible diligence after Davis raised the issue of defective service.

Decided March 1, 2016.

Jaffe Law Center, Adam S. Jaffe, Katherine N. Franke, for appellant.

Law Office of Dan J. Colley, William E. Gray II, for appellee.

The record shows that after Davis filed a special appearance answer on December 8, Lipscomb made only one more attempt to serve Davis, when the sheriff located Davis’s ex-girlfriend who claimed that he had moved. In determining whether a plaintiff exercised the greatest possible diligence, “we focus on [the plaintiff’s] actions, not [the Defendant’s. The fact that a defendant maybe hard to find does not justify a lack of effort on the part of a plaintiff.” Ingraham, 246 Ga. App. at 447 (2). The trial court was authorized to hold that this lone attempt was insufficient to satisfy the “greatest possible diligence” requirement. See Williams v. Patterson, 306 Ga. App. 624, 626 (703 SE2d 74) (2010). We therefore cannot say as a matter of law that the trial court abused its discretion in holding that Lipscomb did not act with the greatest possible diligence after Davis filed his special appearance answer.

Judgment affirmed.

Ellington, P. J., and Dillard, J., concur.


text:
    A15A2092.
    CITY OF LOVEJOY et al. v. CLAYTON COUNTY et al.
    (783 SE2d 395)
   MCFADDEN, Judge.

In Title 36 of our Code, Local Government, is Chapter 36, which sets out several procedures by which a city can annex territory. At issue is the procedure set out in Article 3 of that chapter, OCGA § 36-36-30 et seq., which provides for annexation pursuant to application by the owners of 60 percent of the land at issue and 60 percent of the electors residing on it.

As a prerequisite to annexation under that procedure, a city must substantially comply with, among other things, the requirements of OCGA § 36-36-36 regarding notice and opportunity to be heard. Specifically OCGA § 36-36-36 (a) requires that a public hearing be held before the city exercises this annexation authority and requires that notice of that hearing “be advertised once a week for two consecutive weeks immediately preceding the hearing in a newspaper of general circulation in the municipal corporation and in the area proposed for annexation.” Id.

In this case the city of Lovejoy undertook to annex certain property in Clayton County using that procedure. The county filed a declaratory judgment action, contending that the city had failed a number of the statutory prerequisites to annexation. The trial court agreed and granted summary judgment in favor of the county, invalidating the annexation.

We conclude that the city failed to publish a notice as required by OCGA § 36-36-36 (a) that accurately described the property to be annexed. So we hold that the city failed to comply, or to substantially comply, with the requirements of that statute. We therefore affirm.

1. Facts.

The issue is whether certain owners of property in the area the city proposed to annex received the notice to which they were entitled under the annexation statute.

The relevant facts are undisputed, so the application of law to these facts is subject to de novo review. City of Brookhaven v. City of Chamblee, 329 Ga. App. 346 (766 SE2d 33) (2014).

On December 14,2012, the managing member of Lovejoy Station/ SAV LLC filed an application with the mayor and city council of the city of Lovejoy seeking to have the city annex its 10.177 acres located at 11143 Tara Boulevard, Hampton, Georgia, into the city’s boundaries. He asserted that he represented not less than the requisite 60 percent of the property owners and electors as required under the Article 3 procedure. See OCGA § 36-36-32. And in fact, Lovejoy Station owned the entire 10.177-acre parcel. The representative attached a map to the application, with an arrow drawn from the notation “subject” to a 10.177-acre parcel.

Four days later, as requiredby OCGA § 36-36-6, the city attorney sent to the chair of the Clayton County board of commissioners notice of the city’s intent to annex the property. That statute allows annexation upon application of owners of 60 percent of the land proposed to be annexed and 60 percent of the resident electors. The city attorney’s letter described the property to be annexed as 11143 Tara Boulevard, Hampton, Georgia and included Lovejoy Station’s annexation application.

An attorney for Clayton County’s board of commissioners replied that the notice letter did not comply with the requirements of the annexation statute. On January 7, 2013, the city attorney responded with another letter that included “attachments to the proposed annexation of 11143 Tara Blvd. including the legal description and map,” documents that “were inadvertently excluded from the previous mailing.” She included with the letter a copy of Lovejoy Station’s warranty deed with a legal description of the 10.177-acre parcel. Nothing in this correspondence indicated the city’s intention to annex anything more than the 10.177-acre parcel.

On January 11, 2013, the city’s mayor sent to the board of commissioner’s attorney “a copy of the map and adjoining property information in reference to the annexation notification on Tara Blvd.” This letter included not only the document sent with the city attorney’s January 7 letter for the 10.177-acre parcel, but also copies of warranty deeds for approximately five more acres: a .9318-acre tract owned by Fortune Properties, Inc.; a .982-acre tract owned by Chick-Fil-A, Inc.; a .8421-acre tract owned by the trustee of the James G. Levratto and Renee M. Levratto Trust; a .826-acre tract owned by Prime Commercial Group, LLC; a .50-acre tract owned by Papa John’s USA, Inc.; and a tract known as 11200 Tara Boulevard owned by W&W Realty Company, LLP.

At some point not clear from the record, apparently in an effort to comply with the notice requirements of OCGA § 36-36-36 (a), the city published in a newspaper and on its website notice of a January 28, 2013, public hearing to address “an application to annex the property located in land lot 158 of the 6th district located at 11143 Tara Boulevard . . . .” The notices did not mention the proposed annexation of the adjoining properties. The city council conducted the January 28, 2013, public hearing, and then, on February 11, 2013, at a public meeting, voted to “annex the Publix Shopping Center into the city of Lovejoy.” But the written ordinance reflecting the vote referred only to Lovejoy Station’s 10.177-acre parcel. So on September 9,2013, the city adopted another ordinance to supply that omission, attaching a map that included the adjoining parcels as well as the 10.177-acre parcel.

In response Clayton County filed this action seeking a declaration that the annexation was void for multiple reasons. The trial court granted the county’s motion for summary judgment, declaring the ordinance of annexation null and void. The trial court held that neither the annexation application nor the notice of public hearing referenced anything other than Lovejoy Station’s 10.177 acres, so the owners of the adjoining properties were never placed on notice that their land was being considered for annexation. The city filed this appeal.

2. Notice to adjoining property owners.

OCGA § 36-36-32 (a), under which the city proceeded, allows a municipal corporation to annex unincorporated areas contiguous to its boundaries “upon the written and signed application of not less than 60 percent of the electors resident in the area included in any such application and of the owners of not less than 60 percent of the land area, by acreage, included in such application.”

To satisfy the prerequisites for an annexation under Article 3, an application submitted by land owners and electors must “contain a complete description of the land proposed to be annexed.” OCGA § 36-36-32 (b). If the municipal corporation determines that the annexation application complies with statutory requirements, it must conduct a hearing on the application. OCGA § 36-36-36 (a). It must give

. . . [n]otice of the time and place of the hearing ... to the persons presenting the application and [the notice] shall be advertised once a week for two consecutive weeks immediately preceding the hearing in a newspaper of general circulation in the municipal corporation and in the area proposed for annexation.

Id. All “persons resident or owning property in the municipal corporation or in the area proposed for annexation” may be heard at the hearing. OCGA § 36-36-36 (b).

The city does not dispute that the notice it published in the newspaper and on its website specified only the Lovejoy Station property and not the adjoining properties. But it argues that this deficiency was cured in three ways: (1) when the city’s mayor sent to the board of commissioner’s attorney notice that contained a map that depicted all the properties, not just Lovejoy Station’s property, and copies of the deeds of the adjoining properties; (2) by the mayor describing the entire parcel sought to be annexed at the January 28, 2013, public hearing; and (3) by referring to the “Publix Shopping Center” rather than “Lovejoy Station” at the February 11, 2013, public meeting at which the city council adopted the ordinance. Consequently, the city argues, it substantially complied with the notice requirements of the annexation statute, and the trial court erred by declaring the annexation ordinance void.

It is true that substantial compliance is the standard. OCGA § 36-36-39 (b) provides:

The judgment of the court on any... petition [for declaratory judgment as to the annexation’s validity] may declare the annexation ordinance null and void upon a finding that the application and the municipal corporation’s action thereon are not in substantial compliance with this article. . . .

But we disagree with the city’s contention that it cured the defects so as to render the annexation substantially compliant with the statutory scheme.

As the trial court held, the owners of the other properties adjoining Lovejoy Station’s property were never placed on notice that their land was being considered for annexation. And the city’s cures were ineffective. There is no indication that the mayor’s notice to the county containing information about the adjoining properties was published so as to give those property owners the notice required by OCGA § 36-36-36 (a). Assuming without deciding that the references to other properties at the January 28, 2013, public hearing and the reference to the “Publix Shopping Center” rather than “Lovejoy Station” at the February 11, 2013, public meeting communicated the city’s intent to annex more than the Lovejoy Station property, this did not amount to notice of that intention before the hearing as the statute requires. See OCGA § 36-36-36 (a) (“Notice of the time and place of the hearing shall be given in writing to the persons presenting the application and shall be advertised once a week for two consecutive weeks immediately preceding the hearing in a newspaper of general circulation in the municipal corporation and in the area proposed for annexation.”) (emphasis supplied).

The city also argues, relying on Bradley Plywood Corp. v. Mayor & Aldermen of Savannah, 271 Ga. App. 828 (611 SE2d 105) (2005), that the trial court could void the annexation ordinance for lack of notice only if the county proved harm. We reject that contention. In Bradley Plywood, the plaintiffs challenged an annexation ordinance, arguing, among other things, that the ordinance was void because they failed to receive timely notice of the city’s intent to annex their property. Id. at 830 (2). The trial court rejected the plaintiffs’ challenge, holding “the ordinance could be voided for lack of notice only if the plaintiffs could prove harm.” Id. We affirmed under the right-for-any-reason principle on the ground that the plaintiffs, in fact, had received timely notice. Id. We did not adopt the trial court’s holding that the plaintiffs had to prove harm.

Decided March 1, 2016.

Lewis, Brisbois, Bisgaard & Smith, L’Erin F. Barnes, for appellants.

Freeman, Mathis & Gary, Jack R. Hancock, for appellees.

For these reasons, the trial court did not err in granting summary judgment to the county and in declaring the ordinance of annexation null and void.

3. Trial court’s order.

The city argues that even if the annexation ordinance is procedurally defective, the trial court’s order is erroneous because it does not comply with OCGA § 36-36-39 (b)’s requirement that the court frame its judgment to uphold the ordinance. That statute provides in part: “Upon a finding that procedural defects or defects in the plan for service to the annexed area exist, the court, where possible, shall frame a judgment to perfect such defect and uphold the ordinance.” OCGA § 36-36-39 (b). But the city does not explain how the court could have framed the judgment to perfect the lack of pre-annexation notice to the adjoining property owners. Given that notice is required before the passage of the annexation ordinance, we do not believe that it was possible both to correct the deficiencies and to uphold the ordinance.

Judgment affirmed.

Ellington, P. J., and Dillard, J., concur.

       The representative’s name and title are illegible on the application.


author: DOYLE, Chief Judge.

text:
    A15A1813.
    JOHNSON v. THE STATE.
    (782 SE2d 50)
   DOYLE, Chief Judge.

Ricky J. Johnson appeals from the denial of his motion in arrest of a judgment of conviction for burglary and theft by taking (four counts). He contends that the trial court erred because the indictment was filed outside the applicable statute of limitation and failed to allege any exception thereto. Because the indictment at issue was filed within the six-month extension authorized by OCGA § 17-3-3, we affirm.

The record shows that Johnson was first accused of the underlying crimes in a timely filed indictment that alleged multiple crimes of theft in November 2007 from a victim identified as “Reid and Reid Construction.” Johnson filed a special demurrer to the indictment, and on June 7, 2013, the trial court granted it on the ground that the indictment’s reference to the victim failed to identify properly the natural persons in the partnership as required by Buffington v. State.

Three days later, on June 10,2013, the State filed the indictment at issue in this case, re-alleging one count of burglary and four counts of theft by taking and naming the victim as “Reid and Reid Contractors, LLLP, comprised of partners Danny L. Reid and Bradley M. Reid.” Johnson filed a second special demurrer and plea in bar, both seeking to quash the indictment on the ground that it was filed outside the four-year statute of limitation for prosecuting felonies under OCGA § 17-3-1 (c). The trial court denied both challenges to the indictment, and following a jury trial, Johnson was convicted on each count. Johnson filed a motion in arrest of judgment, making the same argument on statute of limitation grounds, and the trial court denied that motion on the ground that the State was authorized under OCGA § 17-3-3 to re-indict Johnson within six months of the quashing of the original indictment. Johnson now appeals.

1. Johnson argues that the second indictment was defective because it was filed outside the four-year statute of limitation, and it failed to allege any exception to the statutory deadline. Based on the record before us, we discern no reversible error.

Under OCGA § 17-3-1 (c), prosecution for certain felonies including burglary and theft by taking “shall be commenced within four years after the commission of the crime.” The crimes alleged in this case were committed in November 2007, so the second indictment, filed in 2013, was outside of that time period. But this does not end the analysis. Under OCGA § 17-3-3, “[i]f an indictment is found within the time provided for [by] statute, and is quashed or a nolle prosequi entered, the limitation shall be extended six months from the time the first indictment is quashed or the nolle prosequi entered.” Here, after the first indictment was quashed pursuant to a special demurrer seeking greater specificity as to the identity of the victims, the State reindicted Johnson three days later, well within the six-month extension authorized under OCGA § 17-3-3.

Nevertheless, Johnson argues that the second indictment was still defective because it did not on its face allege an exception to the statute of limitation. He relies on Hodges v. State, which addressed language similar to that in OCGA § 17-3-3 found in an earlier version of the Code. In Hodges, the Court stated:

[I]n order to prevent an indictment or accusation which shows on its face that it was returned more than two years after the commission of a known . . . offense from being barred by the statute of limitations because returned within six months after the nolle prosequi of a former indictment returned within time, the second indictment or accusation must show [on its face] that the former was not nol prossed because of a fatal defect therein, or because it was void, but that such nol pros was for an “informality” or some other good reason which did not render it void.

Based on this, Johnson argues that the second indictment was defective because it failed to allege an extension of the statute of limitation or that it followed a timely, valid indictment.

We note that Hodges did not address the exact Code language at issue in this case, and after Hodges, the Supreme Court has interpreted and applied OCGA § 17-3-3. For example, in Sallie v. State, the Supreme Court addressed a scenario in which an indictment was nolle prossed, and the State reindicted the defendant less than six months later, but outside the applicable limitation period. The defendant argued that the State was required to allege an exception to the statute of limitation, and the Supreme Court disagreed:

The State did not need to allege an exception to the statute of limitation for any of the charged crimes ... since [the defendant] was prosecuted within the applicable statute of limitation for all the charged offenses. OCGA § 17-3-3 specifies that the statute of limitation is extended six months if an indictment brought within the statute of limitation is later nolle prossed. In other words, the State may re-indict a defendant within six months after the first indictment is nolle prossed without running afoul of the statute of limitation even if the initial statute of limitation period has run. Therefore, OCGA § 17-3-3 provides an extension of the statute of limitation period and not an exception to it that must be pled in the indictment. The [second] indictment was not improper.

Applying this rule here, Johnson’s second indictment did not need to allege an exception to the four-year statute of limitation because it was filed within the extension provided by OCGA § 17-3-3. Accordingly, the trial court did not err on this ground.

2. Johnson also argues that the original indictment was void, so the State could not rely on it to qualify for the six-month extension in OCGA § 17-3-3. But this misapprehends the procedure that occurred in this case. Johnson’s first indictment was quashed due to his special demurrer, which essentially pointed to a flaw in the way the victim was identified, as opposed to showing that the indictment was void altogether, as would be asserted in a general demurrer. A general (not special) demurrer asserts that

the substance of the indictment is legally insufficient to charge any crime, and it should be granted . . . when an indictment is absolutely void in that it fails to charge the accused with any act made a crime by the law. Put another way, the true test of the sufficiency of an indictment to withstand a general demurrer is found in the answer to the question: Can the defendant admit the charge as made and still be innocent? If he can, the indictment is fatally defective. If the indictment is fatally defective, the sufficiency of the indictment can be questioned by general demurrer or by motion in arrest of judgment.

Decided February 10, 2016

Reconsideration denied March 2, 2016

Ricky J. Johnson, pro se.

Penny A. Penn, District Attorney, James A. Dunn, Assistant District Attorney, for appellee.

Here, Johnson’s challenge to the first indictment was not that it failed to allege any crime; it was merely that the State failed to name the theft victim with sufficient specificity. Although the first indictment did not name the members of the partnership, it was sufficient to charge Johnson with a crime — he could not admit that he stole the property of someone else (the partnership) without admitting the theft offense. “[W]hile it is necessary for the State to prove that the stolen property belonged to someone other than the defendant in order to support a theft by taking conviction, the identity of the owner is not a material element of the crime that must be alleged and proved.” Accordingly, the first indictment, while perhaps not perfect in form, was not void. Therefore, under OCGA § 17-3-3, the statute of limitation was extended by an additional six months after the first indictment was quashed, and the State did not need to allege any exception to the limitation period in the second indictment.

3. Johnson’s motion to expedite the appeal is denied as moot.

Judgment affirmed.

Phipps, P. J., and Boggs, J., concur.

       OCGA § 16-7-1 (b).

       OCGA § 16-8-2.

       See OCGA § 17-3-1 (c).

       124 Ga. 24 (52 SE 19) (1905) (“If the indictment lays the ownership of the goods alleged to have been stolen in a partnership, without alleging the names of the partners composing the firm, it is fatally defective.”). The State asserted that this rule is antiquated and not applicable in a modern context. We note that the authority relied upon in that case expresses the common law offense of larceny, and not the offense as codified at OCGA § 16-8-2. See id., citing People v. Bogart, 36 Cal. 245, 248 (1868) (“At common law, if the stolen goods are the property of partners, or joint owners, the names of all the partners, or joint owners, must be stated.”). See also Kilpatrick v. State, 72 Ga. App. 669, 671 (34 SE2d 719) (1945) (noting that Georgia has had only statutory offenses, rather than common-law crimes, since 1833). Nevertheless, deciding the precedential value of that rule today is not necessary to resolve the appeal.

       See Jenkins v. State, 278 Ga. 598, 601 (1) (A) (604 SE2d 789) (2004) (burglary has a four-year statute of limitation); State v. Bair, 303 Ga. App. 183, 185 (692 SE2d 806) (2010) (“The period of limitation for theft by taking is four years.”).

       (Emphasis supplied.)

       214 Ga. 614 (106 SE2d 795) (1959). We note that Hodges relied in part on Taylor v. State, 160 Ga. 331 (127 SE 652) (1925), which addressed a second indictment that charged an entirely new offense not charged in the earlier indictment. See id. at 336. Such is not the case here; as a matter of substance, both of Johnson’s indictments charged the offenses at issue on appeal.

        Hodges, 214 Ga. at 614 (1).

       276 Ga. 506 (578 SE2d 444) (2003).

       (Emphasis supplied.) Id. at 513-514 (12). An exception, as opposed to an extension, would be, for example, facts showing how the statute of limitation was tolled by the lack of discovery of the offense. See, e.g., Pennington v. State, 323 Ga. App. 92, 101-102 (1) (c) (ii) (746 SE2d 768) (2013) (physical precedent only) (‘both counts also alleged that an exception applied to the running of the limitation period, specifically, that the offenses were not discovered” until a later time within the four years prior to the indictment).

       Cf. State v. Cohron, 324 Ga. App. 137, 138 (749 SE2d 416) (2013).

       See State v. Eubanks, 239 Ga. 483, 485 (238 SE2d 38) (1977) (“A demurrer to an indictment may he general or special. A general demurrer challenges the very validity of the indictment and may he raised anytime; the special objects merely to its form or seeks more information and must he raised before pleading to the indictment”).

       (Citation and punctuation omitted.) Poole v. State, 326 Ga. App. 243, 247-248 (2) (a) (756 SE2d 322) (2014), quoting Eubanks, 239 Ga. at 485.

       See generally Palatini v. State, 333 Ga. App. 523, 524 (774 SE2d 818) (2015) (“By special demurrer an accused claims, not that the charge in an indictment... is fatally defective and incapable of supporting a conviction ..., but rather that the charge is imperfect as to form or that the accused is entitled to more information.”).

       “A person commits the offense of theft by taking when he unlawfully takes or, being in lawful possession thereof, unlawfully appropriates any property of another with the intention of depriving him of the property . . . .” OCGA § 16-8-2.

        Brandeburg v. State, 292 Ga. App. 191, 193 (1) (663 SE2d 844) (2008).

       See Sallie, 276 Ga. at 513-514 (12).


author: PHIPPS, Presiding Judge.

text:
    A15A1895.
    LESTER v. BOLES.
    (782 SE2d 53)
   PHIPPS, Presiding Judge.

Richard Eugene Lester appeals from the trial court’s orders modifying custody of his minor child. Lester complains that the court improperly entered a self-executing custody order and wrongly amended that order based on newly discovered evidence. For reasons that follow, we find no abuse of discretion and affirm.

The record shows that Lester and Nichole Renee Boles, who have never been married, had a son in 2009. In 2011, the trial court entered an order legitimating the child and establishing custody, visitation, and child support. Boles was made the child’s primary legal and physical custodian, with Lester enjoying significant visitation rights. In 2012, Lester filed a petition to modify the 2011 order to grant him primary custody on the ground that Boles had begun traveling extensively for work, whereas he had a flexible schedule. In April 2014, after a hearing for which no transcript has been submitted, the trial court entered an order granting Lester’s petition in part. The court ruled:

[SJince 2011, there has been a change of circumstances in the parent’s [sic] lives which has affected the child. Specifically, the Court finds that because of [sic] the mother changed her employment, and her new job obligates her to travel out of town, the father has spent additional time with the child while she was away on business. The Court finds that the minor child will need additional stability once he begins the first grade.

Accordingly, the court ordered that Lester and Boles would alternate physical custody of their son on a weekly basis until he began first grade, after which the boy would live primarily with Boles and visit Lester on alternating weekends, holidays, and school breaks.

Boles filed motions for reconsideration and a new trial on the ground that Lester had been drinking and driving on two occasions, one of which occurred after the modification hearing. Lester also filed motions for reconsideration and new trial, arguing that the court had erred by speculating about the child’s possible future needs upon entering first grade. After another hearing, the transcript of which was filed below, the court granted the mother’s motion for reconsideration, finding that Lester had twice “operate [d] a motor vehicle while in a less safe condition because of his alcohol consumption” and had been arrested for DUI, though he had not been convicted. Based on this finding, the court amended its prior order to include language prohibiting both parents from consuming alcohol while the child was with them. Lester appeals, arguing that the court erred by “ordering a self executing modification of custody” and by amending its original order based on newly discovered evidence.

1. “A trial court faced with a petition for modification of child custody is charged with exercising its discretion to determine what is in the child’s best interest.” Our standard of review is deferential: we will uphold the trial court’s decision unless the court abused its discretion, and “[w]here there is any evidence to support the trial court’s ruling, a reviewing court cannot say there was an abuse of discretion.”

Lester contends that the trial court abused its discretion by including a self-executing provision in its custody award. “Self-executing change of custody provisions allow for an ‘automatic’ change in custody based on a future event without any additional judicial scrutiny.” Our Supreme Court has held that “any self-executing change of custody provision that fails to give paramount import to the child’s best interests in a change of custody as between parents must be stricken as violative of Georgia public policy.” In Scott v. Scott, the Supreme Court reversed a custody order that gave the mother primary physical custody of the parties’ minor daughter, but provided that such custody would “automatically revert to [the father]” if the mother moved out of the county. The Court noted that upon the occurrence of the “triggering event” — the mother’s relocation — the daughter would be “automatically uprooted without any regard to the circumstances existing at that time.”

A year later, in Dellinger v. Dellinger, , the Supreme Court again reversed an order providing for an automatic custody change if the mother chose to relocate. The Court highlighted two problems with the self-executing provision in that case. First, “the challenged provision lacks any expiration date at all” and could take effect “at any time, even though the change could be triggered months or even years in the future.” As such, the provision lacked the flexibility needed to “adapt to the unique variables ... that must be assessed in order to determine what serves the best interests and welfare of a child.” Second, the mother’s relocation was an “arbitrary triggering event” that had “only a tangential connection with the children’s best interests.” Under these circumstances, the provision “improperly authorized an open-ended, automatic, material change in [custody] without providing for a determination whether the [custody] change is in the best interests of the parties’ children and without connecting the triggering event to those best interests.”

The challenged provision in the custody order in this case provides that when the child begins first grade — approximately 16 months after entry of the order — Boles will assume primary physical custody and Lester will have regular visitation. Though admittedly self-executing, the provision has neither infirmity identified in Del-linger. It is not an open-ended provision conditioned upon the occurrence of some future event that may never take place; rather, it is a custody change coinciding with a planned event that will occur at a readily identifiable time. Moreover, the triggering event is not an arbitrary change that may or may not affect the child’s best interests at some unknown date; instead, the event is the child beginning first grade, at which point — according to the trial court’s findings — he will need the additional stability associated with having one primary residence. Because the challenged custody provision in this case gave “paramount import to the child’s best interests,” we find no abuse of discretion.

2. Lester contends that the trial court lacked authority to add the alcohol-related provisions to the custody order because Boles failed to satisfy the six criteria for a new trial based on newly discovered evidence. The criteria that Lester references, however, apply to extraordinary motions for new trial, which are filed more than 30 days after entry of the challenged judgment. “In contrast to a motion for new trial made within 30 days of a judgment, an extraordinary motion for new trial is not favored; consequently, a stricter rule is applied to an extraordinary motion for a new trial based on the ground of newly available evidence than to an ordinary motion on that ground.” Boles’s motion, filed 21 days after entry of the modification order, was an ordinary motion for new trial, which may be granted when a party timely brings to the court’s notice “any material evidence, not merely cumulative or impeaching in its character but relating to new and material facts . . . discovered by the applicant after the rendition of a verdict against him.” We will not reverse a trial court’s ruling on a motion for new trial on the ground of new evidence absent an abuse of discretion.

Decided February 10, 2016

Reconsideration denied March 2, 2016

Hildebrand Law Office, Jennifer E. Hildebrand, for appellant.

Larry B. Hill, for appellee.

Here, the new evidence consisted of a police officer’s testimony that he had arrested Lester for DUI in January 2014, approximately three months after the modification hearing to show a pattern of behavior, Boles also presented the testimony of a different officer who had arrested Lester for DUI in April 2010 under similar circumstances. Because the evidence of the January 2014 arrest, and its similarity to the previous arrest, was new, material, and not merely cumulative or impeaching, the trial court did not abuse its discretion by amending the custody order to include an alcohol-related provision.

Judgment affirmed.

Doyle, C. J., and Boggs, J., concur.

        Vines v. Vines, 292 Ga. 550, 552 (2) (739 SE2d 374) (2013) (citation and punctuation omitted); see also OCGA § 19-9-3 (a) (2).

        Vines, supra (citation omitted).

        Scott v. Scott, 276 Ga. 372, 373 (578 SE2d 876) (2003).

        Dellinger v. Dellinger, 278 Ga. 732, 733 (1) (609 SE2d 331) (2004), citing Scott, supra at 375; see also Johnson v. Johnson, 290 Ga. 359, 360 (721 SE2d 92) (2012).

       Supra.

        Scott, 276 Ga. at 372-373.

       Id. at 375.

       Supra.

       Id. at 735.

       Id., quoting Scott, supra at 375 (citation and punctuation omitted).

       Id.

       Id. at 736; see also Rumley-Miawama v. Miawama, 284 Ga. 811, 813 (2) (671 SE2d 827) (2009) (revised “visitation schedule which automatically takes effect whenever Wife may move out of Georgia” was a self-executing custody provision that could not stand).

       Lester complains that there was no evidence that the child would need such stability, but “we must assume in the absence of a transcript that there was sufficient competent evidence to support the trial court’s findings.” Holmes v. Roberson-Holmes, 287 Ga. 358, 361 (1) (695 SE2d 586) (2010) (citation and punctuation omitted).

        Dellinger, supra at 733.

       Lester also argues that a motion for reconsideration was not the proper vehicle for the relief that Boles sought. We need not reach this argument given our conclusion, infra, that the court did not abuse its discretion by entertaining the motion for new trial based on newly discovered evidence. We are mindful that the court purported to grant the motion for reconsideration and deny the motion for new trial. But because substance controls over nomenclature in construing orders, see Bobick v. Community & Southern Bank, 321 Ga. App. 855, 859 (1) (743 SE2d 518) (2013), we focus on whether the court was authorized to grant the relief it did, regardless of what it chose to call that relief.

       See OCGA §§ 5-5-40 (a); 5-5-41 (a).

        Bharadia v. State, 326 Ga. App. 827, 829 (755 SE2d 273) (2014) (citation and punctuation omitted).

       OCGA § 5-5-23.

        Med. Staffing Network v. Connors, 313 Ga. App. 645, 647 (1) (722 SE2d 370) (2012).


author: Rickman, Judge.

text:
    A15A1639.
    HALL v. THE STATE.
    (783 SE2d 400)
   Rickman, Judge.

Following a jury trial, Fredrick Hall was convicted of armed robbery, burglary, aggravated assault, two counts of false imprisonment, and two counts of possession of a firearm during the commission of a crime. He argues that the trial court erred by allowing the State to impeach a defense witness with evidence of a prior crime for which she pled guilty and received first offender treatment, by including the complete definition of aggravated assault in the jury charge, and by denying his motion to suppress evidence of the victims’ pretrial and trial identifications of him as a perpetrator. Hall further argues that his trial counsel rendered ineffective assistance of counsel. We find no reversible error and affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to support the jury’s verdict, and the defendant no longer enjoys a presumption of innocence. We do not weigh the evidence or judge the credibility of the witnesses, but determine only whether the evidence authorized the jury to find the defendant guilty of the crimes beyond a reasonable doubt in accordance with the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

(Citation and punctuation omitted.) Williams v. State, 304 Ga. App. 787 (697 SE2d 911) (2010).

So construed, the evidence adduced at trial showed that on the afternoon in question, the male victim was standing outside of his apartment when he was approached by two men, both of whom he knew by their street names, “Freddie G” and “KD.” The men pulled out guns and demanded money, and after the male victim demonstrated that he did not have any, forced him at gunpoint into his apartment where his pregnant girlfriend was resting on the couch. As “Freddie G,” later identified as Hall, remained with his gun trained on the victims, “KD,” later identified as Kevin Deloach, rummaged through the apartment looking for valuables. They ultimately placed numerous pairs of the male victim’s basketball shoes into a laundry basket and took the female victim’s purse.

As the men exited the apartment with the victims’ belongings, they forced the male victim at gunpoint to walk them to their vehicle. One of the perpetrators stumbled down the stairs outside the apartment, resulting in the victims’ neighbor hearing a “bumping” sound that caused her to open the door. She observed the male victim and a man whom she later identified as Hall standing outside her door, but was told to go back inside. The gunmen then entered a light blue four-door vehicle and fled. The female victim immediately called law enforcement and reported the tag number of the fleeing vehicle.

A short time later, a sheriff’s deputy observed a light blue vehicle driving through a neighborhood at a high rate of speed. The deputy activated his blue lights and attempted to conduct a traffic stop, but the vehicle instead turned into a different neighborhood in an effort to evade the deputy. Almost immediately after the deputy initiated pursuit, he received a dispatch report that the same vehicle was wanted in connection with the victims’ home invasion. At some point, the deputy was forced to reduce his speed due to public safety concerns, and he temporarily lost sight of the fleeing vehicle. Shortly thereafter, the vehicle was located; although the occupants had absconded, the victims’ belongings were found inside.

At the apartment, both victims were able to provide to the investigator a detailed physical description of the perpetrators, and the male victim also relayed their street names. The ensuing investigation led to the creation of a lineup containing a photograph of Hall among photographs of five other males. Approximately five hours after the crime, the victims were shown the lineup, and both immediately identified Hall as the gunman who had forced his way into their apartment.

During the ensuing trial, both of the victims again identified Hall as the perpetrator. The victims’ neighbor also identified Hall as the man she had seen with the male victim on the stairway outside of the victims’ apartment.

Hall’s girlfriend testified as an alibi witness and claimed that she had been with Hall throughout the day in question and denied that they had been to the victims’ apartment. Over Hall’s objection, the trial court allowed the State to cross-examine her about a letter that Hall had written in a previous case in which he accepted responsibility for a crime to which she had pled guilty and received first offender treatment.

Hall was convicted, and the trial court denied his motion for new trial. This appeal follows.

1. Hall argues that the trial court erred by allowing the State to impeach his girlfriend using her first offender plea. At the time of trial, Hall’s girlfriend was still serving first offender probation and had not been adjudicated guilty of that crime. See OCGA § 42-8-62 (a) (“Upon fulfillment of the terms of [first offender] probation, . . . the defendant shall be discharged without court adjudication of guilt.”).

Hall is correct that “unless there is an adjudication of guilt, a witness may not be impeached on general credibility grounds by evidence of a first offender record.” Matthews v. State, 268 Ga. 798, 802 (4) (493 SE2d 136) (1997); see Sanders v. State, 290 Ga. 445, 446 (2) (721 SE2d 834) (2012) (“The successful completion of probation as a first offender shall not be considered a criminal conviction and cannot be used to impeach a witness on general credibility grounds”). An exception to this general rule exists, however, when the purpose of the impeachment is to show a witness’s bias. See Sanders, 290 Ga. at 446 (2) (“When the impeachment is to show bias, ... we have previously held that the Confrontation Clause of the Sixth Amendment permits a defendant in a criminal case to cross-examine witnesses about their first offender status.”). The trial court “retain[s] broad discretion to impose reasonable limits on cross-examination to avoid harassment, prejudice, confusion, repetition, or irrelevant evidence.” Id.

Here, the State did not use Hall’s girlfriend’s guilty plea to impeach her general credibility, but instead used it to show bias through evidence that Hall had previously attempted to accept responsibility for her criminal conduct in a different matter. When overruling Hall’s objection, the trial court explicitly noted that the witness’s first offender status did not amount to a conviction and instructed the State to “be careful how you structure the questions.” The trial court later sustained Hall’s objection and excluded the testimony of the prior crime’s victim.

The trial court acted well within its discretion in allowing the State to explore whether Hall’s previous attempt to accept responsibility for his girlfriend’s criminal conduct may have influenced her trial testimony. See OCGA § 24-9-68 (“The state of a witness’s feelings toward the parties and his relationship to them may always be proved for the consideration of the jury.”); Melson v. State, 263 Ga. App. 647, 648 (2) (588 SE2d 822) (2003) (holding that the trial court erred in failing to allow the defendant to cross-examine the victim as to her first offender status to show possible bias).

2. Hall contends that the trial court erred in charging the jury on more than one manner of committing aggravated assault when Hall had been indicted based upon one specific method of committing the crime. Specifically, the indictment alleged that Hall committed aggravated assault in that he committed an assault upon the female victim with “a deadly weapon.” Over Hall’s objection, the trial court instructed the jury that “[a] person commits the offense of aggravated assault when that person assaults another person with intent to murder or rob or with a deadly weapon . . . .” (Emphasis supplied.) See OCGA § 16-5-21 (b) (1), (2).

Under Georgia law, it is error for the trial court “to charge the jury that a crime may be committed by either of two methods, when the indictment charges it was committed by one specific method.” (Citation and punctuation omitted.) Childs v. State, 257 Ga. 243, 253 (17) (357 SE2d 48) (1987). As conceded by the State, the trial court’s definition of aggravated assault was overly broad given the indictment in this case.

Nevertheless, the trial court also read and provided to the jury the indictment, and instructed the jury that “[t]he burden of proof rests upon the State to prove every material allegation of the indictment and every essential element of the crime charged beyond a reasonable doubt.” This cured any error that the trial court committed in overcharging the jury. See Flournoy v. State, 294 Ga. 741, 744 (2) (755 SE2d 777) (2014) (“Even where a jury instruction is defective in that the trial court instructs the jury that an offense could be committed by other statutory methods than the one method charged in the indictment, . . . such a defect is cured [when] . . . the court provides the jury with the indictment and instructs jurors that the burden of proof rests upon the State to prove every material allegation of the indictment and every essential element of the crime charged beyond a reasonable doubt.”); see also Williams v. Kelley, 291 Ga. 285, 286-287 (728 SE2d 666) (2012) (reversing the habeas court’s grant of relief to defendant based upon trial court’s overly broad charge on aggravated assault because the trial court also provided the jurors with the indictment and charged them on the State’s burden of proof).

3. Hall next argues that the trial court erred in denying his motion to suppress the victims’ pretrial photographic lineup identification and their subsequent in-court identification of him on the grounds that the identifications had been tainted by the allegedly suggestive nature of the photographic lineup. Specifically, he contends that of the six men depicted in the lineup, he was the only one “pursing his lips” and not looking directly at the camera.

“[C]onvictions based on a pretrial identification by photograph and a subsequent identification at trial will be set aside only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable mis-identification.” (Citation and punctuation omitted.) Pinkins v. State, 300 Ga. App. 17 (684 SE2d 275) (2009). To this end, “[a]n identification procedure becomes impermissibly suggestive when it leads the witness to an all but inevitable identification of the defendant as the perpetrator, or is the equivalent of the authorities telling the witness, ‘This is our suspect.’ ” (Citation and punctuation omitted.) Id. “A court need not consider whether there was a substantial likelihood for misidentification if it finds that the identification procedure was not impermissibly suggestive.” (Citation and punctuation omitted.) Id. at 17-18.

Here, each of the men in the lineup was the same race and approximate age as Hall, and had similar complexions, facial features, facial hair, and hairstyles. Although Hall’s lips were slightly pursed and he was not looking into the camera, there was similar variance among the other men in this regard, i.e., at least one man was smiling and two men had their heads tilted at angles. Our review of the photographic array contained in the appellate record fully supports the trial court’s conclusion that the lineup procedure was not impermissibly suggestive. See Buchanan v. State, 273 Ga. App. 174, 178-179 (1) (a) (614 SE2d 786) (2005) (affirming trial court’s holding that photographic array was not rendered impermissibly suggestive by “minor differences” such as appellant’s wearing of a patterned shirt and canting his head to one side); Daniels v. State, 296 Ga. App. 795, 798-799 (4) (676 SE2d 13) (2009) (affirming the trial court’s denial of appellant’s motion to suppress a photographic lineup in which he was the only person depicted wearing a light-colored shirt).

Regardless, this is not a case in which there was a substantial likelihood of irreparable misidentification. See Pinkins, 300 Ga. App. at 17-18. The male victim was not only personally familiar with Hall; he relayed Hall’s street name to law enforcement officials. Both victims viewed Hall’s unobstructed face throughout the duration of the crime, and when shown the photographic array separately and approximately five hours after the crime, each victim “immediately” and “without hesitation” selected him as the perpetrator. The trial court did not err in allowing the identification evidence. See generally Jackson v. State, 288 Ga. App. 339, 345-346 (3) (654 SE2d 137) (2007).

4. Finally, Hall argues that his trial counsel was ineffective because counsel failed to call his girlfriend’s mother to testify as an alibi witness. Hall’s girlfriend testified at trial that on the day of the crime, she and Hall had been looking for jobs and had gone to her mother’s office in order to print a job application.

In order to prevail on his claim of ineffective assistance, Hall “must establish both that his counsel’s performance was deficient and that the deficient performance prejudiced his defense.” (Citation omitted.) Arellano v. State, 304 Ga. App. 838, 840 (698 SE2d 362) (2010). “The test for prejudice is whether there is a reasonable probability that the outcome of the proceedings would have been different, but for counsel’s deficiency.” (Citation and punctuation omitted.) Id. Hall’s claim fails if he is unable to satisfy either prong of this test. See id.

During the motion for new trial hearing, Hall’s trial counsel testified that he did not call Hall’s girlfriend’s mother as a witness because, although she confirmed that she had printed job applications for Hall using her office computer, she could not remember the date or time that she had done so. Indeed, the witness herself testified at the hearing that she could not even remember if she had printed the applications during the same month that the crime had occurred. Hall’s counsel testified that he was concerned that the State would use the fact that his girlfriend’s mother could not verify his whereabouts against Hall.

Counsel’s failure to call an alibi witness who could not account for Hall’s whereabouts on the day of the crime did not constitute deficient performance, nor is there a reasonable probability that it affected the outcome of the proceedings. See Rogers v. State, 271 Ga. App. 698, 700 (6) (610 SE2d 679) (2005) (recognizing that “[t]he defense of alibi involves the impossibility of the accused’s presence at the scene of the offense at the time of its commission”); Todd v. State, 275 Ga. App. 459, 463 (4) (620 SE2d 666) (2005) (affirming trial court’s holding that counsel was not ineffective for failing to call alibi witnesses who could not reasonably exclude the possibility of defendant’s presence at the scene of the crime). Moreover, counsel’s fear that the witness may have actually hurt Hall’s defense was a matter of reasonable trial strategy. See Payne v. State, 273 Ga. App. 483, 485 (2) (615 SE2d 564) (2005) (“Decisions regarding which defense witnesses to call are matters of trial strategy and tactics, and tactical errors do not constitute ineffective assistance of counsel.”) (citation and punctuation omitted). It follows that the trial court did not err in denying Hall’s motion for new trial based upon ineffective assistance of trial counsel.

Judgment affirmed.

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

Decided March 2, 2016.

Russell R. Jones, for appellant.

Ashley Wright, District Attorney, Joshua B. Smith, Madonna M. Little, Assistant District Attorneys, for appellee.

       Hall was acquitted of theft by receiving stolen property.

       This provision in substantially the same form is now contained in the new Evidence Code at OCGA § 24-6-622.

       The trial court gave the aggravated assault charge twice, because the first time it inadvertently omitted the words “or rob.”


author: Dillard, Judge. McFadden, Judge,

text:
    A15A1788.
    WRIGHT v. BROWN et al.
    (783 SE2d 405)
   Dillard, Judge.

Willie Wright, Jr., an inmate in the Macon State Prison acting pro se, filed suit in the Superior Court of Wilcox County against State prison officials, alleging claims under State tort law and 42 USC § 1983, and requesting to proceed in forma pauperis (“IFP”) so as to waive filing fees. The defendants filed a traverse to Wright’s IFP request, arguing that his numerous previously dismissed federal lawsuits counted as strikes under the Georgia Prison Litigation Reform Act (“PLRA”) and, thus, barred him from proceeding IFP in this matter. The trial court agreed and dismissed the case without prejudice. On appeal, Wright contends, inter alia, that the court erred in ruling that his previously dismissed federal lawsuits count as strikes under the Georgia PLRA. We agree and, therefore, reverse the court’s ruling and remand the case for further proceedings consistent with this opinion.

The undisputed record shows that since 2010, Wright has been an inmate incarcerated in the Macon State Prison and serving a 20-year sentence. Over the course of the last five years, Wright filed seven lawsuits in the United States District Court for the Middle District of Georgia against various prison officials, all of which were dismissed. In the sixth such lawsuit, Wright sued 14 State officials, alleging, inter alia, that he suffered injuries when Antonio Brown, a prison guard, stomped on his hand, and that prison staff failed to provide adequate medical treatment for that injury. Nevertheless, on January 27, 2014, the district court dismissed Wright’s suit without prejudice on the ground that it was barred by the “three strikes rule” of the federal Prison Litigation Reform Act.

Consequently, on December 31, 2014, Wright filed the subject lawsuit in the Superior Court of Wilcox County against Brown and at least one other prison official (“defendants”), alleging claims under State tort law and 42 USC § 1983. And rather than pay the filing fee, Wright filed a request to proceed IFP. Shortly thereafter, the defendants filed a special appearance and traverse to Wright’s IFP request. Specifically, the defendants argued that Wright’s seven previously dismissed federal lawsuits qualified as strikes under OCGA § 42-12-7.2 of the Georgia PLRA and, thus, the statute barred him from proceeding IFP. The trial court agreed and, therefore, dismissed Wright’s lawsuit without prejudice. This appeal follows.

1. We first note that in his appellate brief, in addition to challenging the trial court’s construction of the three-strikes provision in the Georgia PLRA, Wright contends that the court erred in (1) failing to find that the statute was unconstitutional, vague, and overbroad; (2) finding that the trial court and the federal district court are the same sovereign; and (3) finding that filing in the federal district court imposes a cost on the State. These alleged errors, however, have been waived on appeal. Wright, in contravention of this Court’s rules, has “not shown how [these enumerations] of error [were] preserved for our review, nor has [he] provided any relevant citation to the record showing that [these claims] of error [were] raised below.” In fact, nothing in the appellate record indicates that these particular arguments were raised below. And we will not consider an issue raised for the first time on appeal, “because the trial court has not had the opportunity to consider it.”

2. In three enumerations of error, Wright essentially contends that the trial court erred in ruling that his federal lawsuits in the United States District Court for the Middle District of Georgia qualify as strikes under OCGA § 42-12-7.2 of the Georgia PLRA. We agree and, therefore, reverse the court’s ruling.

At the outset, we note that in interpreting any statute, we necessarily begin our analysis with familiar and binding canons of statutory construction. And in considering the meaning of a statute, our charge as an appellate court is to “presume that the General Assembly meant what it said and said what it meant.” Thus, we must afford the statutory text its plain and ordinary meaning, consider the text contextually, read the text “in its most natural and reasonable way, as an ordinary speaker of the English language would,” and seek to “avoid a construction that makes some language rhere surplusage.” Importantly, when the language of a statute is plain and susceptible of only one natural and reasonable construction, “courts must construe the statute accordingly.”

Bearing these guiding principles in mind, we will now consider the relevant text of OCGA § 42-12-7.2, the “three strikes” provision of Georgia’s PLRA, which provides:

In no event shall a prisoner file any action in forma pauperis in any court of this state if the prisoner has, on three or more prior occasions while he or she was incarcerated or detained in any facility, filed any action in any court of this state that was subsequently dismissed on the grounds that such action was frivolous or malicious, unless the prisoner is under imminent danger of serious physical injury.

On appeal, Wright argues that the trial court erred in construing the phrase “any action in any court of this state” to include the lawsuits he filed in federal district'court. We agree.

Turning first to the plain text of the statute, we note that, while the federal district court where Wright filed his previous lawsuits is certainly in or within this State, the word of — the term the statute actually uses — indicates “the thing, place, or direction whence anything goes, comes, or is driven or moved ... ,” And indeed, although the appellate courts of this State have yet to address the specific language at issue in OCGA § 42-12-7.2, in construing an early version of the renewal statute, the Supreme Court of Georgia held that the nearly identical phrase, “courts of this state,” did not apply to federal courts but, rather, limited it to mean “courts created by the constitution and laws of this State.” Approximately 90 years later, this Court, within the context of the garnishment statute, similarly interpreted the phrase “a court of this State” to include only courts “created by the constitution and laws of Georgia.” We then went on to note that federal courts, obviously, are not created by the constitution or laws of this State.

Arguing that the overarching purpose of the Georgia PLRA, as expressly stated in OCGA § 42-12-2, is to “address the rising costs of litigation caused by the filing of meritless and frivolous lawsuits by prisoners,” the defendants contend that construing the phrase “any action in any court of this state” to include lawsuits filed in federal court fully effectuates the General Assembly’s intent in enacting OCGA § 42-12-7.2. We find this argument unavailing.

As previously noted, the plain meaning of OCGA § 42-12-7.2 makes clear that “any action in any court of this state” cannot be reasonably interpreted as including an action filed in a federal court. Furthermore, the contextual backdrop of this statutory provision only serves to bolster this conclusion. Context is, of course, “a primary determinant of meaning.” And for context, we may look to “other provisions of the same statute, the structure and history of the whole statute, and the other law — constitutional, statutory, and common law alike — that forms the legal background of the statutory provision in question.” We must also presume that the General Assembly had “full knowledge of the existing state of the law and enacted the statute with reference to it.”

Here, in light of the fact that well before the General Assembly enacted OCGA § 42-12-7.2 the appellate courts of this State have, in at least two separate contexts, construed the phrase “courts of this state” as not including federal courts, we are not persuaded by the argument that our legislature, employing the nearly identical phrase, nonetheless intended for federal courts to be included in this context and actions filed in such courts to count as strikes under OCGA § 42-12-7.2. Had the General Assembly intended to attribute a broader meaning to the phrase “courts of this state,” so as to include federal courts, it could have done so. Indeed, even a cursory review of the Georgia Code yields several examples of the General Assembly expressly distinguishing between state and federal courts and explicitly stating when legislation will implicate or be implicated by actions in the latter. And while the defendants may have perfectly sound policy arguments in favor of why frivolous filings in federal courts such as Wright’s should constitute strikes under Georgia’s PLRA, “it is emphatically the province and duty of the judiciary to say what the law is, not what judges or parties believe it should be.”

Given the foregoing, the trial court erred in ruling that Wright’s lawsuits in federal district court qualify as strikes under OCGA § 42-12-7.2 and in thereby dismissing his request to proceed IFP and his lawsuit on this ground. Accordingly, we reverse the trial court’s ruling and remand this case for further proceedings consistent with this opinion.

3. Wright also argues that the trial court erred in granting defendants’ traverse despite the fact that defendants never contested his affidavit of indigence. But as discussed supra, the court’s dismissal of Wright’s lawsuit was grounded exclusively in the erroneous premise that Wright’s federal lawsuits counted as strikes under Georgia’s PLRA, and nothing in the record indicates that the court even considered the veracity of Wright’s pauper’s affidavit. Thus, this contention lacks merit.

4. In light of our holding in Division 2, supra, Wright’s remaining enumeration of error is moot.

Judgment reversed and case remanded with direction.

Ellington, P. J., concurs. McFadden, J., concurs fully and specially.

McFadden, Judge,

concurring fully and specially.

I concur fully. I agree that, for the reasons well and thoughtfully explained by the majority, we cannot adopt the Attorney General’s arguments about the intention of the General Assembly regarding the statute before us today. I write separately to emphasize, however, that Georgia courts are bound by statute and precedent to give due consideration to the intention of the General Assembly.

OCGA § 1-3-1 (a) directs:

In all interpretations of statutes, the courts shall look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy. Grammatical errors shall not vitiate a law. A transposition of words and clauses may be resorted to when a sentence or clause is without meaning as it stands.

Similarly OCGA § 13-2-3 directs that in the interpretation of contracts, “[t]he cardinal rule of construction is to ascertain the intention of the parties. If that intention is clear and it contravenes no rule of law and sufficient words are used to arrive at the intention, it shall be enforced irrespective of all technical or arbitrary rules of construction.”

Those provisions are deeply imbedded in our law. A Westlaw search indicates that each statute — or the principle set out in it — has been cited hundreds of times by this court and by our Supreme Court. Very often the authority cited for the principles set out in those statutes is case law rather than the statutes. See, e.g., Cox v. Fowler, 279 Ga. 501, 502 (614 SE2d 59) (2005) (citing Carringer v. Rodgers, 276 Ga. 359, 363 (578 SE2d 841) (2003) for the proposition that “the cardinal rule in construing a legislative act, is ‘to ascertain the legislative intent and purpose in enacting the law, and then to give it that construction which will effectuate the legislative intent and purpose’ ”); TermNet Merck. Svcs. v. Phillips, 277 Ga. 342, 344 (588 SE2d 745) (2003) (citing Gen. Elec. Credit Corp. v. Brooks, 242 Ga. 109, 112 (249 SE2d 596) (1978) for the proposition that “[w]hen construing statutory phrases, of course, we look diligently for the General Assembly’s intention, bearing in mind relevant old laws, evils sought to be addressed and remedies interposed”); Holcim (US) v. AMDG, 265 Ga. App. 818, 820 (596 SE2d 197) (2004) (citing Nguyen v. Talisman Roswell, L.L.C., 262 Ga. App. 480, 482 (585 SE2d 911) (2003) for the proposition that “the cardinal rule of contract construction is to ascertain the intention of the parties”); Seaboard C.L.R. Co. v. Blackmon, 129 Ga. App. 342, 344 (199 SE2d 581) (1973) (citing Barrett & Carswell v. Pulliam, 77 Ga. 552 (1866), and Jenkins v. State, 93 Ga. App. 360 (92 SE2d 43) (1956), for the proposition that in interpreting legislative acts, “the courts shall look diligently for the intention of the General Assembly keeping in view at all times the old law, the evil and the remedy”).

Both of those statutes were in the first Georgia Code. Current OCGA § 1-3-1 (a) was § 5 of the Code of 1863. Current OCGA § 13-2-3 was § 2719 of that Code.

And the principle set out in OCGA § 1-3-1 (a) predates the Code of 1863. A few years after that Code was adopted our Supreme Court wrote:

The Code directs that statutes be construed with reference to the intention of the legislature, and that the old law, the mischief and the remedy, be considered to arrive at that intention (Code, § 4, par. 9); and such was the rule long before there was any code of laws compiled for this state.

Decided March 2, 2016.

Willie E Wright, Jr., pro se.

Everett v. Planters’ Bank, 61 Ga. 38, 41 (1878). See also Forman v. Troup, 30 Ga. 496, 498-499 (1860) (“[0]ur Act of 1854 seems to me conclusive. Look at [the statute in question] by the old rule of construction — the old Law — the mischief, and the remedy.”).

Indeed the line of Georgia authority for that principle reaches back to Blackstone’s Commentaries on the Laws of England. See Booth v. Williams, 2 Ga. 252, 254 (1847) (“One of the fundamental common law rules for the construction of remedial statutes is, to consider the old law, the mischief, and the remedy; and it is the business of the Judges so to construe the statute, as to suppress the mischief and advance the remedy. 1 Black. Com. 87.”). See also Persons v. Hight, 4 Ga. 474, 501 (1848) (Warner, J., dissenting) (“ ‘There are three points,’ says Blackstone, ‘to be considered in the construction of all remedial statutes; the old law, the mischief, and the remedy; that is, how the old law stood at the making the Act; what the mischief was for which the Common Law did not provide; and what remedy the Legislature hath provided to cure this mischief. And it is the business of the Judge so to construe the Act as to suppress the mischief and advance the remedy.’ 1 Bl. Com. 87.”).

Accordingly our Supreme Court has adopted Justice Oliver Wendell Holmes’s poetic observation that, “A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.” Towne v. Eisner, 245 U. S. 418, 425 (38 SCt 158, 62 LE 372) (1918), quoted in Everitt v. LaSpeyre, 195 Ga. 377, 379 (24 SE2d 381) (1943) and in Robbins v. Vanbrackle, 267 Ga. 871, 872 (485 SE2d 468) (1997) (Carley, J., dissenting).

Implicit in that observation is recognition that an idea and the words used to express it are intertwined but distinct. It follows that the words used to express an idea sometimes, and perhaps always, do so imperfectly.

But in recognizing such imperfections of expression, judges must take care not to confuse their own policy preferences for the policy choices of the legislature. And a judge’s recognition of the policy a statute was intended to advance does not authorize the judge to advance that policy further than did the legislature — particularly where, as here, the advance of one policy is at the expense of others.

Samuel S. Olens, Attorney General, A. Ellen Cusimano, Assistant Attorney General, for appellees.

        See OCGA § 42-12-1 et seq.

        See Wright v. Brown, Case No. 5:13-CV-386 (M.D. Ga. 2014).

        See 28 USC § 1915 (g) (“In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.”).

       OCGA § 42-12-1 et seq.

        White Oak Homes, Inc. v. Cmty. Bank & Trust, 314 Ga. App. 502, 504 (2) (724 SE2d 810) (2012); see also Court of Appeals Rule 25 (a) (1).

        White Oak Homes, Inc., 314 Ga. App. at 504 (2) (punctuation omitted); see also Sitton v. Print Direction, Inc., 312 Ga. App. 365, 370 (3) (718 SE2d 532) (2011).

        Deal v. Coleman, 294 Ga. 170, 172 (1) (a) (751 SE2d 337) (2013) (punetuationomitted);see also Martinez v. State, 325 Ga. App. 267, 273 (2) (750 SE2d 504) (2013) (same).

        See Deal, 294 Ga. at 172 (1) (a) (“To that end, we must afford the statutory text its plain and ordinary meaning.” (punctuation omitted)); State v. Able, 321 Ga. App. 632, 636 (742 SE2d 149) (2013) (“Ajudge is charged with interpreting the law in accordance with the original and/or plain meaning of the text at issue (and all that the text fairly implies). .. .”).

        See Arizona v. Inter Tribal Council of Az., Inc.,_U. S._,_(II) (B) (133 SCt 2247, 186 LE2d 239) (2013) (“Words that can have more than one meaning are given content, however, by their surroundings.” (punctuation omitted)); Deal, 294 Ga. at 172 (1) (a) (“[W]e must view the statutory text in the context in which it appears[.]”); see also OCGA § 1-3-1 (b) (“In all interpretations of statutes, the ordinary signification shall he applied to all words____”); Hendry v. Hendry, 292 Ga. 1, 3 (1) (734 SE2d 46) (2012) (same).

        Deal, 294 Ga. at 172-73 (1) (a); accord Martinez, 325 Ga. App. at 273 (2).

        In the Interest of L. T., 325 Ga. App. 590, 592 (754 SE2d 380) (2014) (punctuation omitted); accord Holcomb v. Long, 329 Ga. App. 515, 518 (1) (765 SE2d 687) (2014).

        Luangkhot v. State, 292 Ga. 423, 424 (1) (736 SE2d 397) (2013) (punctuation omitted); accord Chase v. State, 285 Ga. 693, 695-96 (2) (681 SE2d 116) (2009); Martinez, 325 Ga. App. at 273 (2).

       The Compact Oxford English Dictionary 1201 (2ded. 1991) (emphasis supplied); see also Webster’s New International Dictionary of the English Language 1689 (2d ed. 1957) (defining “of” as “proceeding from, belonging to; relating to .. ..”).

        See Code 1873, § 2932.

        Constitution Publ’g Co. v. DeLaughter, 95 Ga. 17, 18 (21 SE 1000) (1894).

        See former Code Ann. § 46-101.

        Hubert v. City of Acworth, 154 Ga. App. 101, 102 (267 SE2d 823) (1980) (punctuation omitted).

        See id.

        In the Interest of K. W., 233 Ga. App. 140, 140 (1) (503 SE2d 394) (1998) (punctuation omitted) (physical precedent only); see OCGA § 42-12-2.

        May v. State, 295 Ga. 388, 391 (761 SE2d 38) (2014) (punctuation omitted).

        Id. at 391-92; see also Chase, 285 Ga. at 695-96 (2) (punctuation omitted).

        Chase, 285 Ga. at 695 (2); accord Luangkhot, 292 Ga. at 424 (1).

        See Ga. L. 1996, p. 400, § 1.

        See Summerlin v. Ga. Pines Cmty. Serv. Bd., 286 Ga. 593, 595 (2) (690 SE2d 401) (2010) (concluding that because the General Assembly is presumed to enact statutes with full knowledge of existing law, it expected courts to apply the legal definition of a certain term as developed under the common law and existing jurisprudence).

        See id.

        See OCGA § 9-2-61 (a) (“When any case has been commenced in either a state or federal court within the applicable statute of limitations and the plaintiff discontinues or dismisses the same, it may be recommenced in a court of this state or in a federal court either within the original applicable period of limitations or within six months after the discontinuance or dismissal____”); OCGA § 9-12-81 (b) (“As against the interest of third parties acting in good faith and without notice who have acquired a transfer or lien binding the property of the defendant in judgment, no money judgment obtained within the county of the defendant’s residence in any court of this state or federal court in this state shall create a lien upon the property of the defendant unless the execution issuing thereon is entered upon the execution docket. . . .”); OCGA § 34-8-122 (b) (“Any finding of fact or law, judgment, determination, conclusion, or final order made by an adjudicator, examiner, hearing officer, board of review, or any other person acting under the authority of the Commissioner with respect to this chapter shall not he admissible, binding, or conclusive in any separate or subsequent action or proceeding between a person and such person’s present or previous employer brought before any court of this state or the United States ....”).

        AA-Professional Bail Bonding v. Deal, 332 Ga. App. 857, 861 (775 SE2d 217) (2015) (physical precedent only); see also Finney v. Dep’t of Corr., 263 Ga. 301, 302-03 (1) (434 SE2d 45) (1993) (noting that the purpose of the judiciary is not to say what the law ought to provide, and that its authority extends only to interpreting the law as it was enacted by the legislature).

        See OCGA § 9-15-2 (a) (2) (“Any other party at interest or his agent or attorney may contest the truth of an affidavit of indigence by verifying affirmatively under oath that the same is untrue. The issue thereby formed shall be heard and determined by the court, under the rules of the court. . . .”).