author: DOYLE, Chief Judge.

text:
    A15A0782.
    In the Interest of C. J. V. et al., children.
    (777 S.E.2d 692)
   DOYLE, Chief Judge.

We granted the mother’s application for discretionary review of a trial court order terminating her parental rights to eight-year-old C. J. V. and six-year-old F. N. R. After a thorough consideration of this case, including our review of the transcript of the termination hearing, which transcript was not available at the time we granted the mother’s application, we have determined that the juvenile court’s order was supported by clear and convincing evidence. Accordingly, we find that the application for discretionary appeal was improvidently granted, and we dismiss the mother’s appeal.

This is the second time we have reviewed an order terminating this mother’s parental rights. In In the Interest of C. J. V., a majority of this Court reversed the juvenile court’s termination order, essentially finding that the juvenile court had improperly terminated the mother’s parental rights based solely upon her poverty. The evidence before this Court at that time showed that the mother was unemployed, frequently moved, and was at times dependent upon others for financial support. Based upon the mother’s shortcomings, the juvenile court terminated her parental rights. We reversed, finding that the mother had completed the majority of her case plan goals, secured employment, and made two child support payments totaling $700. We further noted the absence of “evidence of a verifiable mental or physical condition that indicates the mother is incapable of caring for the children.” Under the facts presented, we concluded that the mother’s failure to fully comply with her case plan stemmed largely from her relative poverty.

Following this Court’s reversal, on July 23, 2013, the Department of Family and Children Services (“the Department”) filed a deprivation petition alleging that (1) the mother was without income, (2) she tested positive for methamphetamine, and (3) she and the children were living in her father’s two-bedroom trailer with inadequate space for the children. That petition was dismissed, however, after it was determined that the drug test was a false positive and that there was sufficient space for the children in the trailer.

On September 20, 2013, the Department filed another deprivation petition. Following a hearing, the juvenile court entered an order finding the children deprived and placed them in the custody of the Department. On November 8, 2013, the court entered a case plan requiring the mother to maintain stable housing and income for six months; pay child support; complete an in-person parent nurturing program; and undergo drug and alcohol assessment and complete any resulting recommended treatment. On February 26, 2014, the Department filed a petition to terminate the mother’s parental rights.

At the final hearing held in May 2014, the Department presented the testimony of the children’s foster mother, who, along with her husband, had cared for the children since July 2011. The foster mother testified that the children visited with the mother in September 2012 and then not again until August 2013. The same day the children were returned to their mother, she called the foster parents’ home six to eight times, and within twenty-four hours, the mother returned the children to the foster parents, offering an arrangement wherein the boys would live with the foster parents and that she would visit them. The foster mother agreed, but later became concerned about the mother exercising visitation because the children were “total [ly] different” after their brief visit with the mother. C. J. Y. became scared, refused to use the restroom alone, had two accidents at school, required a night light, and displayed aggression; F. N. R. began wetting the bed and had night terrors.

Brittany Hord, the Department supervisor assigned to the children’s case, testified that on the day in 2013 when the children were returned to their mother, they were extremely upset and begged to return to the foster parents’ home. The mother was two hours late to get the children, at which time they had already been returned to the foster parents. Hord retrieved them from the foster parents’ home, and they had to be physically placed in the car. The mother reported that she was taking the children to her father’s home, where she lived. The mother had previously reported that her father had been physically and verbally abusive to her for her entire life, and law enforcement was regularly called to the home. Hord also testified that the mother had not secured stable independent housing for six months or longer since 2011, and she failed to consistently support the children during that time. Between August 2013 and the May 2014 final hearing, the mother lived in three different places: with her father; with her former girlfriend; and with her mother and mother’s boyfriend. The mother did not have a job, but expected to receive disability, although she was unable to explain the nature of her disability.

The mother’s psychologist testified that the mother’s overall IQ is 57; she does not understand complex sentences or concepts; she reads at a second grade level, and her sentence comprehension is at a first grade level; she has difficulty comprehending medical or academic instructions regarding the children; she is unable to provide emotional stability and support for her children; she is unable to perceive problems with her children; she is prone to uncontrolled anger reactions; she has low empathy; the children will soon pass her developmentally; she is unable to provide food, shelter, clothing, or education for her children; and she functions at the level of an eight-year-old.

Based upon the evidence presented, the juvenile court again entered an order terminating the mother’s parental rights. The court noted that both the court-appointed special advocate and the guardian ad litem recommended termination, and it noted that “[t]he children are in a foster to adopt home where they have been for nearly three years [and] are doing very well.” In the termination order, the trial court stated:

When the court entered the most recent adjudicatory order, the mother stated that she wanted more time to complete her case plan and gain stability to be able to provide for her children. Today she testified that she wants more time. It has been two years [and] ten months since these children first entered care. It is unfortunate that although it is obvious the mother loves her children, she is simply not capable of maintaining the stability to provide for them. The results of her psychological evaluation, combined with her repeated bad decisions, make it patently obvious that she is incapable ... of understanding what it is she needs to do to provide even the basic necessities for these children, let alone meet their emotional, educational, and social needs. It is sad, but a fact that she is of low IQ and functions on the level of an eight year old child, which, in the opinion of an expert[,] renders her incapable of parenting children. Meanwhile, the children, ages five and seven, have been required to remain in care for nearly three years. The court has been unable to allow the mother even supervised visitations because any contact with their mother is so detrimental to the children’s well-being and behavior.

Following entry of the order, the mother filed an application for discretionary appeal, which this Court granted.

1. The mother argues that there was insufficient evidence to support the termination. We disagree. The evidence adduced at the hearing following our reversal of the first termination order supports the trial court’s order. Any strides that the mother had made pertaining to her case plan were temporary. After making two child support payments, the mother has paid no additional support, and she failed to secure stable housing. Although the mother regained custody of her children, she returned them 12 hours later and suggested that they live with the foster parents. Finally, the mother’s mental limitations preclude her from successfully parenting her children. All of these facts support the juvenile court’s order terminating the mother’s parental rights.

2. The mother also contends that the trial court’s termination is “insufficient” because it failed to find that the children were dependent as required by OCGA § 15-11-310 (a) and OCGA § 15-11-320 (a). We find no basis for reversal.

In 2013, the General Assembly amended Title 15 of the Georgia Code “so as to substantially revise, supersede, and modernize provisions relating to juvenile proceedings and enact comprehensive juvenile justice reforms recommended by the Governor’s Special Council on Justice Reform in Georgia.” Ga. L. 2013, p. 294. And as part of that statutory overhaul, the General Assembly amended the definitions applicable to juvenile proceedings. See Ga. L. 2013, p. 294, § 1-1; see also OCGA § 15-11-2 (codification of new definitions for juvenile proceedings). Effective January 1, 2014, the new definitions contained in OCGA § 15-11-2 became applicable to juvenile proceedings commenced on and after that date. Ga. L. 2013, p. 294, § 5-1 (“This Act shall become effective on January 1, 2014, and shall apply to all offenses which occur and juvenile proceedings commenced on and after such date.”). The former definitions used the term “deprived” to mean a child who was “without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health or morals.” See former OCGA § 15-11-2 (8) (A). But the new definitions refer to a child as “dependent,” rather than “deprived,” which is a child who... “[h]as been abused or neglected and is in need of the protection of the court.” OCGA § 15-11-2 (22) (A). “Neglect” is then defined to mean . . . “the failure to provide proper parental care or control, subsistence, education as required by law, or other care or control necessary for a child’s physical, mental, or emotional health or morals.” OCGA § 15-11-2 (48) (A).

The petition in this case was filed in February 2014. Thus, in order to terminate the mother’s parental rights in this case, the trial court was required to find the children dependent, rather than deprived.* Nevertheless, in its final order, the trial court found the children to be deprived. Given the similarities in the two definitions and the fact that evidence supported a finding of dependency as defined by OCGA § 15-11-2 (22) (A), we find no basis for reversal.

We granted the mother’s application for discretionary review without the benefit of the full appellate record, including the transcript of the termination hearing; however, because the record supports the order of the court below, we conclude that the application for discretionary appeal was improvidently granted. Accordingly, the order granting the mother’s application is vacated, and her appeal is hereby dismissed.

Appeal dismissed.

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

Decided September 22, 2015.

W. Bartlett Barnwell, for appellant.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Penny L. Hannah, Senior Assistant Attorneys General; Bruce A Kling, for appellee.

       See OCGA § 15-11-303 (“In all proceedings under this article, the standard of proof tobe adduced to terminate parental rights shall be by clear and convincing evidence.”).

       323 Ga. App. 283 (746 SE2d 783) (2013).

       See id. at 286-288.

       See id. at 284-285.

       See id. at 285.

       See id. at 284-285.

       Id. at 287.

       See id. at 286-287.

       See OCGA § 15-11-310 (“(a) In considering the termination of parental rights, the court shall first determine whether one of the following statutory grounds for termination of parental rights has been met: (1) The parent has given written consent to termination which has been acknowledged by the court or has voluntarily surrendered . . . her child for adoption; (2) The parent has subjected . . . her child to aggravated circumstances; (3) The parent has wantonly and willfully failed to comply for a period of 12 months or longer with a decree to support. . . her child that has been entered by a court of competent jurisdiction of this or any other state; (4)Achildis abandoned by his... parent; or (5) Achild is a dependent child due to lack of proper parental care or control by his... parent, reasonable efforts to remedy the circumstances have been unsuccessful or were not required, such cause of dependency is likely to continue or will not likely be remedied, and the continued dependency will cause or is likely to cause serious physical, mental, emotional, or moral harm to such child, (b) If any of the statutory grounds for termination has been met, the court shall then consider whether termination is in a child’s best interests after considering the following factors: (1) Such child’s sense of attachments, including his . . . sense of security and familiarity, and the continuity of affection for such child; (2) Such child’s wishes and long-term goals; (3) Such child’s need for permanence, including his... need for stability and continuity of relationships with a parent, siblings, and other relatives; and (4)Any other factors, including the factors set forth in [OCGA §] 15-11-26, considered by the court to be relevant and proper to its determination....”). See also In the Interest of T. A., 331 Ga. App. 92, 94 (2) (769 SE2d 797) (2015) (applying former OCGA §§ 15-11-94 and 15-11-2 (8) (A)).

       (Punctuation omitted.) In the Interest of G. R. B., 330 Ga. App. 693, 693-694, n. 1 (769 SE2d 119) (2015).

       See OCGA § 15-11-310 (a) (5).

       See, e.g., Killian v. State, 315 Ga. App. 731, 732 (728 SE2d 258) (2012); Mosley v. Ga. Peace Officer Standards & Training Council, 217 Ga. App. 798 (458 SE2d 503) (1995).


source: Caselaw Access Project

license: Public Domain

text:
    A15A1272.
    THE STATE v. BAXTER.
    (777 S.E.2d 696)
   DOYLE, Chief Judge.

This case presents an issue of first impression concerning the application of OCGA § 17-7-50.1, specifically, whether the 180-day time limitation for the State to obtain an indictment can be waived by a juvenile, thereby allowing the superior court to retain jurisdiction. For the reasons that follow, we conclude that the waiver was not valid and affirm the trial court’s order transferring the case to the juvenile court.

On February 4, 2014, Jason Dakota Baxter was arrested and taken into custody for one count of aggravated sexual battery. Although he was 16 years old at the time, the superior court had exclusive original jurisdiction over his case pursuant to OCGA § 15-11-560 (b) (7). On March 13,2014, counsel for Baxter and the State met in chambers to discuss the case. The meeting was not transcribed, but during a December 2014 hearing on the State’s Motion to Perfect the Record, the assistant district attorney testified that there was some discussion about whether Baxter’s case could be transferred to juvenile court after indictment, and as a result of those discussions, counsel for Baxter indicated that his client would waive the 180-day time limit for indictment.

On March 17, 2014, the day Baxter’s case was scheduled to go before the grand jury, Baxter’s counsel filed a ‘Waiver of Statutory Right to Indictment Within 180 Days,” which stated:

Comes now the defendant in the above-styled case and being confined in the Claxton RYDC, waives his right to indictment in said case by a grand jury during the March 17, 2014 term within 180 days of his arrest in return for additional time for investigation by both the State and Defense.

As a result, Baxter’s case was not presented to the grand jury.

On October 15, 2014, Baxter filed a motion to transfer the case to juvenile court pursuant to OCGA § 17-7-50.1, which provides:

(a) Any child who is charged with a crime that is within the jurisdiction of the superior court, as provided in Code Section 15-11-560 or 15-11-561, who is detained shall within 180 days of the date of detention be entitled to have the charge against him or her presented to the grand jury. The superior court shall, upon motion for an extension of time and after a hearing and good cause shown, grant one extension to the original 180 day period, not to exceed 90 additional days.
(b) If the grand jury does not return a true bill against the detained child within the time limitations set forth in subsection (a) of this Code section, the detained child’s case shall be transferred to the juvenile court and shall proceed thereafter as provided in Chapter 11 of Title 15.

In response, on October 16, 2014, the State filed a motion for an extension of time to present the case to the grand jury pursuant to OCGA § 17-7-50.1 (a).

The superior court granted Baxter’s motion to transfer the case to juvenile court because the time limit set forth in OCGA § 17-7-50.1 (a) had expired without the case being presented to the grand jury. The court also denied the State’s motion for extension of time. The State appeals the superior court’s order granting Baxter’s motion to transfer his case to juvenile court.

Initially, we note that the interpretation of a statute is a question of law, which is reviewed de novo on appeal.

In interpreting a statute, we must give effect to the legislature’s intention, looking diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy. To determine the legislative intent of a statute, we begin with the literal text; where the literal text of a statute is plain and does not lead to absurd or impracticable consequences, we apply the statute as written without further inquiry. The language of a statute is given its most natural and obvious import, without resorting to forced or subtle interpretations to either expand or limit the statute’s operation. We interpret a statute to give effect to the real legislative intent and meaning, however, and not so strictly as to defeat the legislative purpose.

The plain language of OCGA § 17-7-50.1 (a) provides that a child charged with a crime within the superior court’s jurisdiction “who is detained shall within 180 days of the date of detention be entitled to have the charge against him or her presented to the grand jury.” The statute also provides that if the grand jury does not indict the detained child within the specified time, “the detained child’s case shall be transferred to the juvenile court.”

Here, Baxter’s case was not presented to the grand jury within 180 days of his detention. Under the plain language of the statute, it was therefore mandatory that the case be transferred to the juvenile court. In addition, the State’s motion for an extension of time was untimely because it was filed more than 180 days after Baxter was detained. An extension of the 180-day time limit must be sought and granted before the time limit expires or the superior court loses jurisdiction over the case.

We now consider whether the waiver of the 180-day time limit, which was filed before the time limit expired, was valid. We conclude that it was not.

The statute sets forth the time limitations for presenting the case to the grand jury and the appropriate procedure to follow if additional time is needed. The extension of time is limited to one extension of an additional ninety days, not the potentially unlimited extension that would occur if the waiver was enforced. Although the case law interpreting OCGA § 17-7-50.1 is sparse, we consistently have upheld the statute’s mandate that, absent an extension, an indictment must be obtained within 180 days of the juvenile’s detention or the superior court loses jurisdiction over the case. The plain language of the statute indicates that the legislature intended to set time limitations for the State to act in those situations in which a juvenile is detained and the superior court is exercising jurisdiction over the case pursuant to OCGA § 15-11-560 (b). Those time limitations would be defeated if Baxter’s waiver is enforced. Once those time limitations have expired without the juvenile being indicted, the only action the superior court is authorized to take is to transfer the case to the juvenile court, as the superior court did here.

Our holding is in keeping with the general rule that parties may not create subject matter jurisdiction in a court by consent.* Although the superior court had exclusive original jurisdiction over Baxter’s case, it could not unilaterally extend that jurisdiction indefinitely, contravening the plain language of the statute.

The State contends that the 180-day requirement found in OCGA § 17-7-50.1 does not affect jurisdiction in any way because it is merely a statute of limitation, which is subject to waiver. As the State points out,

[a] defendant may waive rights which exist for his own benefit, but he may not waive those which belong to the public generally.... As the protection afforded by statutes of limitation is statutory in origin, does not affect the court’s jurisdiction, and is personal to an individual defendant, it is comparable to the speedy trial provisions of OCGA § 17-7-171, which can be waived.

Decided September 22, 2015

Tom Durden, District Attorney, Sandra Dutton, Jillian L. Harmon, Assistant District Attorneys, for appellant.

Cheryl C. Quick, William O. Cox, for appellee.

The crucial distinction here is that the 180-day requirement does affect the court’s jurisdiction — if the State does not present a juvenile’s case to the grand jury within the time limit or obtain a timely extension to do so, the superior court loses jurisdiction.

The State also contends that it detrimentally relied on the waiver, causing it to forbear in bringing the case before the grand jury, and that Baxter potentially acted in bad faith by agreeing to the waiver and then seeking a transfer to juvenile court. Although we are sympathetic to the State’s position in this case, the State was well aware of the mandatory time limitations set forth in the statute and was not precluded from seeking an extension of time to present the case to the grand jury. Further, there is no evidence in the record of bad faith by Baxter.

Judgment affirmed.

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

       Pursuant to OCGA § 15-11-560 (b), “[t]he superior court shall have exclusive original jurisdiction over the trial of any child 13 to 17 years of age who is alleged to have committed [certain] offenses,” including aggravated sexual battery.

         Spivey v. State, 274 Ga. App. 834 (1) (619 SE2d 346) (2005).

       (Citations and punctuation omitted.) Hill v. State, 309 Ga. App. 531, 533 (710 SE2d 667) (2011).

       (Emphasis supplied.)

       (Emphasis supplied.)

       See id. at 533-534.

       See Nunnally v. State, 311 Ga. App. 558, 559-561 (1) (716 SE2d 608) (2011).

       See Edwards v. State, 323 Ga. App. 864, 868 (748 SE2d 501) (2013) (180-day limitation for State to obtain an indictment is not tolled when accused is released on bond; once 180-day time limit expired without case being presented to grand jury and absent motion to extend time by the State, superior court lost jurisdiction over case); State v. Armendariz, 316 Ga. App. 394, 396-397 (1) (729 SE2d 538) (2012) (180-day period was not tolled when, prior to the expiration of the period, some of the charges against the accused were deemed invalid); Nunnally, 311 Ga. App. at 561 (1) (when specified time limitation authorizing jurisdiction is exceeded, trial court loses jurisdiction over case); Hill, 309 Ga. App. at 533-535 (juvenile court lacked jurisdiction at time juvenile was indicted, approximately 300 days after his detention began).

        See In the Interest of C.B., 313 Ga. App. 778, 780-781 (723 SE2d 21) (2012) (juvenile court could not negate statutory time limitations by transferring case back to superior court after superior court transferred case to juvenile court based on State’s failure to indict juvenile within 180 days of detention).

       See Edwards, 323 Ga. App. at 868.

       See OCGA § 15-1-2; Abushmais v. Erby, 282 Ga. 619, 622 (3) (652 SE2d 549) (2007) (disapproving language suggesting that parties can confer subject matter jurisdiction on a court by agreement).

       See generally In the Interest of D. B., 187 Ga. App. 3, 4-5 (2) (369 SE2d 498) (1988) (construing statute mandating that juvenile court conduct a hearing prior to transferring a juvenile to another court for treatment as an adult criminal defendant, the court held that juvenile had no absolute right to waive juvenile court jurisdiction; transfer could be made only after juvenile court conducted hearing and made specific findings).

       (Punctuation omitted.) Vaughn v. State, 324 Ga. App. 289, 292 (750 SE2d 375) (2013).


author: McMlLLIAN, Judge.

text:
    A15A1446.
    ALLEN v. THE STATE.
    (777 S.E.2d 699)
   McMlLLIAN, Judge.

Appellant Rodney Allen entered negotiated guilty pleas to multiple charges set out in two separate indictments on May 9,2013. The trial court orally pronounced Allen’s sentence and signed the final disposition sentencing sheet on that same day, but the final disposition was not stamped filed by the clerk of the Dougherty County Superior Court until May 16, 2013. On June 7, 2013, Allen filed a pro se motion to withdraw his guilty pleas, and following a hearing at which Allen was represented by counsel, the trial court denied his motion. Allen now appeals from the denial of his motion, arguing that the withdrawal of his pleas is necessary to correct a manifest injustice because he was incompetent at the time he entered his pleas and that he is now incarcerated and serving a mandatory minimum ten-year sentence with violent offenders despite having no prior history of committing violent crimes. As more fully set forth below, we now affirm.

1. We first consider the question of whether the motion to withdraw guilty plea was timely filed such that the trial court retained jurisdiction to determine the merits of the motion. See Rubiani v. State, 279 Ga. 299, 299 (612 SE2d 798) (2005) (“Once the term of court in which a defendant was sentenced has expired, the only available means for an appellant to withdraw his guilty plea is through habeas corpus proceedings.”). Although no statute sets forth the procedures by which a motion to withdraw a guilty plea may be entertained by the trial court after a sentence has been pronounced, it is well settled that a “motion to withdraw a guilty plea must be filed within the same term of court as the sentence entered on the guilty plea.” (Citation omitted.) Lay v. State, 289 Ga. 210, 212 (2) (710 SE2d 141) (2011). McKiernan v. State, 286 Ga. 756, 757 (692 SE2d 340) (2010); Davis v. State, 274 Ga. 865 (561 SE2d 119) (2002). “This is a judicially created rule, which evolved from the established common law tenet that a court cannot set aside or alter a judgment after the expiration of the term at which it was entered, unless the proceeding for that purpose was begun during the original term.” (Citations omitted.) McKiernan, 286 Ga. at 757.

Ordinarily, the term of court is readily determined. But here, the guilty plea was entered, and sentence was orally announced, reduced to writing and signed by the trial court on May 9, 2013, which was within the March term of court. OCGA § 15-6-3 (15). The May term of court began the following Monday on May 13, 2013, and the final disposition and sentence were stamped filed by the clerk three days later on May 16, 2013. Allen then filed his motion to withdraw on June 7, 2013, which was also within the May term.

“An oral declaration as to what the sentence shall be is not the sentence of the court; the sentence signed by the judge is.” Curry v. State, 248 Ga. 183, 185 (4) (281 SE2d 604) (1981). This is because “[w]hat the judge orally declares is no judgment until it has been put in writing and entered as such.” (Citations and punctuation omitted.) Bradshaw v. State, 163 Ga. App. 819, 820 (2) (296 SE2d 119) (1982). See also OCGA § 5-6-31 (“[t]he filing with the clerk of a judgment, signed by the judge, constitutes the entry of a judgment within the meaning of this article”); Sharp v. State, 183 Ga. App. 641, 642 (360 SE2d 50) (1987) (same). Thus, when the trial court orally pronounced sentence in one term, but the sentence was not signed and filed until the next term, as was the case here, the motion to withdraw was timely filed within the term in which the sentence was entered, that is, filed by the clerk. See Young v. State, 328 Ga. App. 91, 92-93 (761 SE2d 504) (2014) (although the sentence was orally announced in the prior term, defendant’s “motion to withdraw his guilty plea was timely in that it was filed during the same term of court that the sentence was entered”).

2. We now turn to the merits of Allen’s appeal.

After sentencing, the decision on a motion to withdraw a guilty plea is within the trial court’s discretion and withdrawal of the plea is allowed only when necessary to correct a manifest injustice. Walden v. State, 291 Ga. 260[, 261] (1) (728 SE2d 186) (2012); Uniform Superior Court Rule (USCR) 33.12. Wright v. State, 292 Ga. 825, 826 (1) (742 SE2d 468) (2013).

Phelps v. State, 293 Ga. 873, 876 (2) (750 SE2d 340) (2013).

The test for manifest injustice will by necessity vary from case to case, but it has been said that withdrawal is necessary to correct a manifest injustice if, for instance, a defendant is denied effective assistance of counsel, or the guilty plea was entered involuntarily or without an understanding of the nature of the charges.

(Citation omitted.) Williams v. State, 318 Ga. App. 744, 745 (734 SE2d 745) (2012). “The trial court is the final arbiter of all factual issues raised by the evidence, and its refusal to allow a withdrawal will not be disturbed absent a manifest abuse of discretion.” Green v. State, 324 Ga. App. 133, 133-134 (749 SE2d 419) (2013).

The crux of Allen’s argument is that he was not competent to enter his pleas and thus his pleas were not entered knowingly or voluntarily with an appreciation of the consequences of pleading guilty. As to this issue, the record shows that at the time of the guilty plea hearing, the trial court had been made aware of Allen’s mental health and substance abuse history, and it was placed on the record that Allen had been diagnosed with schizophrenia and anti-social personality disorder and that he was being given medication at the jail to control his conditions. The record further shows that Allen had undergone a mental health evaluation, and he had been deemed competent to stand trial. Morrow v. State, 266 Ga. 3 (463 SE2d 472) (1995) (“the standard of competency for pleading guilty is the same as the competency standard for standing trial”). Additionally, the trial court questioned Allen at the guilty plea hearing to determine if he was oriented as to time, place, and person, and Allen gave appropriate responses to the trial court’s questions. The trial court also questioned Allen to determine if he understood the nature of the charges against him and the mandatory nature of his sentence, whether he was satisfied with the services of his attorney, and the rights he was waiving. The court also advised him of his post-plea appeal rights, including his right to a court-appointed lawyer under certain circumstances, and determined that a factual basis existed for the plea.

Decided September 22, 2015.

Ronald R. Parker, for appellant.

Gregory W. Edwards, District Attorney, M. April Wynne, Lela A. Alvonellos, Assistant District Attorneys, for appellee.

At the hearing on the motion to withdraw, the trial court reviewed the steps it took to ascertain Allen’s competency prior to accepting his guilty plea and made a finding that he would not have accepted Allen’s guilty pleas “if [he] had had any hint” that he did not believe Allen was competent at the time he entered his pleas. The trial court also noted, as it did at the guilty plea hearing, that he followed the State’s recommendation and sentenced Allen to the minimum amount of prison time and noted that he took Allen’s mental health issues into account in imposing that sentence. Other than the fact that he had a history of mental illness and was taking psychotropic drugs to control his illness at the time he entered his guilty plea, Allen points to nothing to indicate that he was not competent at the time he entered his guilty plea. Accordingly, we discern no abuse of discretion in the trial court’s denial of the motion on this basis. Phelps, 293 Ga. at 878 (2) (b). See also Jones v. State, 325 Ga. App. 845, 847 (2) (755 SE2d 238) (2014); Williams, 318 Ga. App. at 749 (2).

Judgment affirmed.

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

       Allen, was charged with armed robbery, robbery by sudden snatching, burglary, aggravated assault, and various firearm charges.

       Withdrawal of a guilty plea before judgment is governed by OCGA § 17-7-93 (b), which gives a defendant an absolute right to withdraw his or her plea any time before judgment is “pronounced.” As used in this Code section, our Supreme Court has held that “pronounced” means “orally announced.” State v. Germany, 246 Ga. 455, 455 (1) (271 SE2d 851) (1980).

       Pursuant to OCGA § 15-6-3 (15) the terms of the Dougherty County Superior Court commence the second Monday in January, March, May, July, September and November.


text:
    A15A1467.
    CRUZ et al. v. PAREDES.
    (777 S.E.2d 702)
   DOYLE, Chief Judge.

We granted the application for discretionary appeal filed by Ruben J. Cruz and James Janarious, former counsel for the claimant (hereinafter “former counsel”) in this workers’ compensation case. Former counsel appeal the superior court’s order reversing the decision of the Appellate Division of the State Board of Workers’ Compensation (“the Board”), which had adopted the decision of the administrative law judge (“ALJ”) approving the attorney fee contract between the claimant and his former counsel. Former counsel contend that the superior court applied the wrong standard of review and erroneously interpreted the attorney fee contract. For the reasons that follow, we reverse and remand.

The undisputed facts show that on February 17, 2011, Andres Paredes suffered a work-related back injury. Four weeks later, on March 19, 2011, Paredes signed an attorney fee contract with former counsel. While represented by former counsel, Paredes was awarded ongoing total temporary disability benefits.

On December 19, 2013, Paredes terminated former counsel and retained new counsel. On January 7, 2014, former counsel filed an attorney lien pursuant to Board Rule 108 (e), seeking to recover fees in the amount of $35,207. On January 9,2014, former counsel filed an attorney fee approval form pursuant to Board Rule 108 (a). Paredes objected, maintaining that the request for attorney fee approval was untimely and therefore contractually barred.

The ALJ approved the fee contract, “finding] that the record substantiates that the contingency provided for in the attorney’s fee contract was met” and that “[djuring [fjormer [cjounsel’s representation and as a result of [their] efforts [,] income benefits were commenced.” The ALJ awarded former counsel 25 percent of Paredes’s income benefits beginning January 9, 2014, for a period not to exceed 350 weeks. Paredes appealed, and the Board affirmed and adopted the ALJ’s decision, finding that the ALJ’s decision was supported by a preponderance of competent and credible evidence. Paredes appealed to the superior court, which reversed the Board’s decision, concluding that former counsel was not entitled to collect fees because they were terminated prior to submitting their attorney fee approval form. Former counsel filed an application for discretionary appeal, which this Court granted.

1. Former counsel argues that the trial court erred by applying a de novo standard of review rather than an “any evidence” standard, which resulted in the disregard of the Board’s statutorily conferred authority to exercise discretion in approving attorney fee contracts.

When reviewing a workers’ compensation ruling, both the appellate court and the superior court must construe the evidence in the light most favorable to the party prevailing before the Appellate Division of the Board, and must affirm findings of fact as to disputed evidence if they are supported by any evidence. Both levels of court apply a de novo standard of review when considering the Appellate Division’s application of law to the facts.

“The question of whether the superior court applied the correct legal standard in evaluating the evidence... is one of law, which we review de novo.”

Here, the superior court specifically found that “[t]his is a case of straightforward contract interpretation [,] and there is no factual dispute between the parties.” “[A]n issue of contract construction is usually a question of law for the court to resolve and, as such, it is subject to de novo review.” Accordingly, this enumeration is without merit.

2. Former counsel further contend that pretermitting whether the superior court applied the proper standard of review, the court erred by reversing the Board’s award of attorney fees.

The ALJ determined that the fee contract was valid, the contingency provided in the attorney fee contract was met, and former counsels’ representation resulted in the commencement of income benefits for the claimant, and the Board agreed with the ALJ’s findings. Nonetheless, the superior court found the findings contrary to law, pursuant to OCGA § 34-9-105 (c) (5).

The fee agreement contained the following provision: “I understand that your hourly rate is $200[ ]. It is agreed that you can also charge and be paid for services rendered, [25] percent... of the gross weekly indemnity benefits, ... or in quantum meruit, which ever is greater, prior to termination of this contract by either party.” The superior court interpreted this clause to preclude former counsel from collecting attorney fees because Paredes dismissed them before they made a claim for fees before the Board.

The cardinal rule of contract construction is to ascertain the intention of the parties. If the terms of a contract are plain and unambiguous, the contractual terms alone determine the parties’ intent. A dictionary can supply the plain and ordinary meaning of a term, but a dictionary does not always provide a complete answer. If a term used in a contract is of uncertain meaning and may be fairly understood in more ways than one, it is ambiguous, and we apply the rules of contract construction in an effort to resolve the ambiguity. The proper construction of a contract is a question of law for a court to determine.

“An ambiguity is defined as duplicity, indistinctness, an uncertainty of meaning or expression used in a written instrument, and also signifies of doubtful or uncertain nature; wanting clearness or definiteness; difficult to comprehend or distinguish; of doubtful purport; open to various interpretations.”

Here, the trial court specifically found that the provision at issue was “plain and unambiguous.” We disagree. By concluding that former counsel were not entitled to payment in this case because they failed to get paid before Paredes terminated them, the trial court found that the “prior to termination of this contract by either party” limitation in the parties’ fee agreement modified the phrase “you can . . . charge and be paid.” One could also, however, reasonably construe the limitation to modify the term “for services rendered,” so that former counsels’ fee demand could be approved for any services rendered before termination by Paredes.

Thus, the trial court erred by ruling that the fee agreement was plain and unambiguous. In light of the ambiguity, the trial court should have applied the pertinent rules of contract construction, including consideration of extrinsic evidence and parol evidence, as permitted. We therefore remand this case for further proceedings consistent with this opinion.

Decided September 22, 2015.

Cruz & Associates, Ruben J. Cruz, James Janarious, for appellants.

John E. Morrison, for appellee.

Judgment reversed and case remanded.

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

        Monk v. Parker, 331 Ga. App. 736, 739 (1) (771 SE2d 424) (2015), citing Ray Bell Constr. Co. v. King, 281 Ga. 853, 854 (642 SE2d 841) (2007).

       (Punctuation omitted.) Flores v. Keener, 302 Ga. App. 275, 276 (690 SE2d 903) (2010).

       (Emphasis omitted.) Atlanta Emergency Svcs. v. Clark, 328 Ga. App. 9, 11 (1) (761 SE2d 437) (2014).

       OCGA § 34-9-105 (c) authorizes the superior court to set aside the Board’s award if its members acted in excess of their powers, the decision was procured by fraud, the facts do not support the decision, there is insufficient competent evidence to warrant its decision, or the decision is contrary to law.

       (Punctuation omitted.) Carnett’s Properties v. Jowayne, LLC, 331 Ga. App. 292, 294 (771 SE2d 5) (2015).

       (Punctuation omitted.) Kammerer Real Estate Holdings v. PLH Sandy Springs, 319 Ga. App. 393, 396 (1) (740 SE2d 635) (2012), overruled on other grounds by Artson, LLC v. Hudson, 322 Ga. App. 859, 862 (2), n. 1 (747 SE2d 68) (2013).

       See Empire Distrib. v. George L. Smith II Georgia World Congress Center Auth., 235 Ga. App. 742, 744 (509 SE2d 650) (1998).

       See Amah v. Whitefield Academy, 331 Ga. App. 258, 261 (1) (770 SE2d 650) (2015) (remanding to trial court to resolve ambiguity in statute); Eells v. State Farm Mut. Auto. Ins. Co., 324 Ga. App. 901, 906 (2) (752 SE2d 70) (2013).


text:
    A15A1480.
    In the Interest of B. L., a child. In the Interest of E. B., a child.
    A15A1481.
    (777 S.E.2d 705)
   DOYLE, Chief Judge.

In the above-styled cases, two minor children appeal from the denial of their motions to dismiss delinquency petitions filed against them. The children argue that the juvenile court should have dismissed the petitions because during the pendency of their cases, they were confined in secure residential facilities longer than 30 days, which confinement exceeded the 30-day maximum disposition authorized under OCGA § 15-11-601 (b) (2). The two cases arise from similar facts and present the same legal issue, so we have consolidated them for review. For the reasons that follow, we affirm in each case.

Case No. A15A1480

1. On December 3, 2014, the State filed a delinquency petition alleging that B. L. had committed criminal trespass.* On January 6, 2015, a detention hearing was held, and the child was ordered detained for the purpose of “protect [ing] the person or property of others or of the child,” and on January 7,2015, the State filed a second petition alleging that B. L. committed the offenses of fleeing or attempting to elude, 3driving without a license, obstruction of a law enforcement officer, entering a motor vehicle with intent to commit theft, and theft by taking an automobile.

On January 16, 2015, adjudication of the petition was resolved when B. L. admitted the allegations of obstruction and theft by taking, and the State dismissed the remaining allegations. B. L. remained in custody, and the juvenile court continued the proceedings disposition for 30 days.

On January 28, 2015, B. L. moved to be released from restrictive custody by February 4, i.e., 30 days after his initial pre-adjudication detention. On February 6,2015, B. L. remained in custody and moved to dismiss the petitions against him on the ground that he had already served 30 days in confinement as of February 4, which would be the maximum length of post-disposition confinement authorized under OCGA § 15-11-601 (b) (2).

On February 13, 2015, the juvenile court entered an order, nunc pro tunc February 4, 2015, ordering that B. L. be released from restrictive custody on February 15 and placed on house arrest pending his upcoming disposition hearing on February 20. On February 20, the juvenile court entered an order finding B. L. delinquent and placing him on probation without further confinement. On March 17, 2015, following a hearing, the juvenile court denied B. L.’s motion to dismiss the petition, reciting the above time line and concluding that “[djetaining the juvenile after February 4, 2015, did not violate OCGA § 15-11-601.” B. L. now appeals, enumerating this ruling as error.

OCGA § 15-11-601 authorizes the juvenile court to enter certain orders following a disposition hearing for a juvenile found to have committed a delinquent act. The orders are to be crafted in a way “best suited to [the] child’s treatment, rehabilitation, and welfare,” and may include, for example, participation in counseling, pursuing a course of study in pursuit of a high school diploma or the equivalent, performing community service, or making restitution. In addition, if a child commits an offense that would be a felony if committed by an adult, or if the child has a sufficient record of prior offenses, the juvenile “court may order such child to serve up to a maximum of 30 days in a secure residential facility.” Under subsection (c),

[a]ny child ordered to a secure residential facility under subsection (b) of this Code section [as part of the disposition] and detained after the adjudication hearing in a secure residential facility or nonsecure residential facility pending placement in a secure residential facility shall be given credit for time served in a secure residential facility or nonsecure residential facility awaiting placement.

Likewise, under OCGA § 15-11-604 (a),

[a] child adjudicated to have committed a delinquent act shall be given credit for each day spent in a secure residential facility . . . awaiting adjudication, pending disposition and in connection with and resulting from a court order entered in the proceedings for which the disposition was imposed... . Such credit shall be applied toward the child’s disposition.

Here, B. L. was first detained on January 6, his adjudication occurred on January 16, he was ordered released to house arrest on February 15, and his disposition occurred on February 20, after which he was placed on probation without further confinement. Based on the 30-day maximum dispositional confinement in OCGA § 15-11-601 (b) and the credit due for time served in a secure residential facility before disposition, B. L. argues that his confinement past February 4 (for a total of 41 days) was unlawful.

We begin our analysis ... by recognizing that fundamental rules of statutory construction require us to construe a statute according to its terms, to give words their plain and ordinary meaning, and to look diligently for the intention of the General Assembly. Where the plain language of a statute is clear and susceptible of only one reasonable construction, we must construe the statute according to its terms.

Adose reading of each subsection demonstrates that despite the 41-day confinement, the juvenile court complied with the statutory limits relied upon by B. L. First, the juvenile court’s disposition order did not include any confinement in a secure residential facility, so the 30-day confinement limit in subsection (b) was not directly implicated by the disposition order. Second, by its plain terms, the credit-for-time-served requirement in subsection (c) addresses dispositional confinement, not other confinement: “[a]ny child ordered to a secure residential facility under subsection (b) of this Code section [i.e., as part of a disposition] and detained after the adjudication hearing in a secure residential facility... shall be given credit for time served in a secure residential facility . . . .” Thus, subsection (c) applies to dispositions of confinement for children detained after the adjudication hearing. Similarly, the credit for time served afforded by OCGA § 15-11-604 “shall be applied toward the child’s disposition.”

Here, by contrast, B. L. was not ordered to a secure residential facility as part of his disposition; his confinement was entirely predispositional. Thus, B. L.’s disposition did not fail to account for any credit B. L. was due because his disposition did not include any confinement. Moreover, despite having continued B. L.’s disposition, the juvenile court ordered that B. L. be released within 30 days of his adjudication date, ensuring that his confinement would not extend past the earliest date the 30-day maximum disposition term would have elapsed. Under these circumstances, the juvenile court did not violate OCGA § 15-11-601 or § 15-11-604, nor did it err by denying B. L.’s motion to dismiss the delinquency petition against him.

Decided September 22, 2015.

Erica J. Austin, for appellant (case no. A15A1480).

Robert C. Richardson, for appellant (case no. A15A1481).

Joseph K. Mulholland, District Attorney, MorufO. Oseni, Assistant District Attorney, for appellee.

Case No. A15A1481

2. This case presents an identical challenge brought by E. B. under facts that do not differ materially from those analyzed in Case No. A15A1480. E. B. was taken into custody along with B. L. on January 6, 2015, and the State filed a delinquency petition alleging that E. B. had committed the same acts as B. L. (except driving without a license), and on January 15, the State filed an amended petition alleging that E. B. had committed acts amounting to burglary, possession of marijuana less than one ounce, theft by receiving a stolen pistol, possession of a firearm by an underage person, and possession of a firearm by a convicted felon. On January 16, E. B.’s petitions were adjudicated; he admitted possessing marijuana, theft by receiving, and possession of a firearm; and the State dismissed the remaining counts. E. B.’s disposition was continued, and he remained in custody until February 15. Like B. L., E. B. moved to dismiss the petition on the ground that the length of his pre-disposition detention violated OCGA § 15-11-601. E. B. also appeals from the denial of that motion, and for the reasons stated in Case No. A15A1480, we affirm the juvenile court’s judgment in this case.

Judgments affirmed.

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

       OCGA § 16-7-21 (b) (1).

       OCGA § 40-6-395 (a).

       OCGA § 40-5-20 (a).

       OCGA § 16-10-24 (a).

       OCGA § 16-8-18.

       OCGA § 16-8-2.

       The State argues that the appeals in both cases are moot because the juveniles have already been released from custody. But the juveniles appeal from the denial of their motions to dismiss the petition, which if successful would vacate the delinquency adjudications and disposition. This remedy bears on the juveniles’ existing rights governed by the Juvenile Code because certain consequences can vary depending on the juvenile’s record of prior adjudications, such as the one before us. See, e.g., OCGA § 15-11-601 (a) (10) (B), (a) (11), (b) (1) (B). See also Atlanta Gas Light Co. v. Ga. Public Svc. Comm.., 206 Ga. App. 315, 316 (425 SE2d 340) (1992) (“A moot case is one which seeks to determine an abstract question which does not arise upon existing facts or rights.”) (punctuation omitted). Accordingly, these cases are not moot.

       See OCGA § 15-11-601 (a).

       Id.

       See id. at (a) (2).

       See id. at (a) (5).

       See id. at (a) (6).

       See id. at (a) (7).

       Id. at (b).

       (Citations omitted.) Atlanta Independent School System v. Atlanta Neighborhood Charter School, 293 Ga. 629, 631 (748 SE2d 884) (2013). See also OCGA § 1-3-1 (a) (construction of statutes generally).

       OCGA § 15-11-604 (a).

       The confinement was based on sworn allegations of fleeing a vehicle stop, obstructing an officer, and felony automobile theft, and for the purposes of protecting “the person or property of others or of the said child.” See OCGA §§ Í5-11-500 (“If it appears from a filed affidavit or from sworn testimony before the court that the conduct, condition, or surroundings of an alleged delinquent child are endangering such child’s health or welfare or those of others or that such child may abscond or be removed from the jurisdiction of the court or will not be brought before the court, notwithstanding the service of the summons, the court may endorse upon the summons an order that a law enforcement officer shall serve the summons and take such child into immediate custody and bring him or her forthwith before the court.”); 15-11-503 (a) (“Restraints on the freedom of an alleged delinquent child prior to adjudication shall be imposed only when there is probable cause to believe that such child committed the act of which he or she is accused, that there is clear and convincing evidence that such child’s freedom should be restrained, that no less restrictive alternatives will suffice, and that: (1) Such child’s detention or care is required to reduce the likelihood that he or she may inflict serious bodily harm on others during the interim period; (2) Such child has a demonstrated pattern of theft or destruction of property such that detention is required to protect the property of others; (3) Such child’s detention is necessary to secure his or her presence in court to protect the jurisdiction and processes of the court; or (4) An order for such child’s detention has been made by the court.”).


author: Dillard, Judge.

text:
    A15A0892.
    ROBERTSON v. ROBERTSON.
    (778 S.E.2d 6)
   Dillard, Judge.

Elizabeth Louise Robertson and her mother, Dorothy Keene, appeal the grant of partial summary judgment to Elizabeth’s ex-husband, Robert Robertson, in their action to set aside or modify the Robert-sons’ divorce decree, for enforcement of an implied trust, and for conversion of property. On appeal, Elizabeth and Dorothy argue that the trial court erred in (1) finding that their request to set aside or modify the divorce decree was barred by a three-year statute of limitation; (2) rejecting their request for equitable relief, which was based on the existence of an implied trust, and finding that it was barred by a seven-year statute of limitation; and (3) finding that Elizabeth’s claims were barred because she had unclean hands. For the reasons set forth infra, we affirm in part and reverse in part.

Viewed in the light most favorable to Elizabeth and Dorothy (i.e., the nonmoving parties), the record shows that the Robertsons were married on September 2, 1969. At some point during the 1990s, the couple purchased property that is the subject of this dispute, and the deed was in both of their names. Initially, the property was undeveloped, but the Robertsons eventually built their home there. In 2002, the Robertsons executed a warranty deed, conveying the property in fee simple to their only child, Melanie Collins. Elizabeth, who had a serious medical condition that often required hospitalization, testified that they conveyed the property to Collins because she was unable to obtain health insurance and Robert had retired. Specifically, Elizabeth was concerned that if she incurred substantial medical debt due to hospitalizations, a hospital or other medical creditor might obtain a judgment against the property. At the time of the conveyance, the Robertsons had a “verbal agreement” with Collins that they could continue to live on the property for the rest of their lives.

In May 2008, Elizabeth filed a verified complaint for divorce against Robert, asserting, inter alia, that she and Robert did not jointly own any real estate. On July 8,2008, the superior court issued a final judgment and decree, granting the divorce. During the divorce proceeding, Elizabeth swore under oath that she and Robert were separated and that their marriage was “irretrievably broken.” But, in fact, the couple never separated, discontinued marital relations, or divided any of their assets.Around that time, the Robertsons learned that Collins had mortgaged ten acres of the property to facilitate the purchase of a car, and they demanded that she convey the property back to them. Subsequently, on August 26, 2008, Collins executed a warranty deed, conveying the property in fee simple solely to Robert in exchange for “ten dollars and other valuable consideration.”

In July 2009, Robert approached Dorothy, Elizabeth’s mother, and convinced her to sell her home and move in with them. Robert told Dorothy that he would treat her as if she were his own mother and that she could reside at the property until her death. Thereafter, in December 2009, Dorothy moved in with the Robertsons, where she had a separate living quarters in the upstairs area of the house. Initially, Dorothy paid $450 per month to Robert for rent and utilities, and later, the monthly payments increased to $600.

At some point, while still living with Elizabeth, Robert became romantically involved with another woman, whom he eventually married in August 2013. In February 2013, approximately six months before Robert remarried, he sent a letter to Elizabeth and Dorothy, notifying them that they must vacate the property within 60 days. But instead of vacating the property, Elizabeth and Dorothy filed a complaint against Robert, requesting that the trial court set aside the 2008 divorce decree because the Robertsons never actually separated and continued to live as husband and wife. They further contended that, in the alternative, the divorce decree should be modified to provide for disposition of the property, which they claimed had been held in trust for their benefit. Elizabeth and Dorothy also alleged that Robert acted willfully and fraudulently in converting their property to his own use and benefit. Finally, Elizabeth and Dorothy contended that they were each entitled to damages for Robert’s conversion of the property. Later on, when Elizabeth and Dorothy failed to vacate the property, Robert filed a dispossessory action against them.

Robert answered Elizabeth and Dorothy’s complaint against him, asserting several defenses. Discovery then ensued, and on August 14,2013, Robert filed a motion for partial summary judgment as to Elizabeth and Dorothy’s request to modify or set aside the divorce decree, arguing that they had no legal or equitable interest in the property. Robert further argued that Elizabeth and Dorothy’s action to set aside or modify the divorce decree was barred by a three-year statute of limitation. Likewise, he argued that their request for the enforcement of an implied trust was barred by a seven-year statute of limitation. After Elizabeth and Dorothy responded, Robert amended his motion to assert that Elizabeth is precluded from claiming a legal or equitable interest in the property because she has “unclean hands.” Specifically, he contended that Elizabeth conveyed the property to Collins in an attempt to defraud her potential medical creditors. Ultimately, in a summary order, the trial court granted Robert’s motion for partial summary judgment. The court also granted Elizabeth and Dorothy’s petition for a certificate of immediate review, and we granted their application for an interlocutory appeal. This appeal follows.

At the outset, we note that summary judgment is appropriate when the moving party can show that “there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law.” And a movant meets this burden when “the court is shown that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of the plaintiff’s case.” Finally, if the moving party satisfies this burden, “the nonmoving party cannot rest on its pleadings, but must point to specific evidence giving rise to a triable issue.” With these guiding principles in mind, we turn now to Elizabeth and Dorothy’s specific claims of error.

1. Elizabeth and Dorothy first argue that the trial court erred in finding that their action to set aside or modify the 2008 divorce decree was barred by a three-year statute of limitation. We disagree.

OCGA § 9-11-60 (f) provides, in relevant part, that “all motions to set aside judgments [except motions asserting lack of personal or subject matter jurisdiction, and motions for a new trial] shall be brought within three years from entry of the judgment complained of.” And here, Elizabeth and Dorothy’s complaint to set aside or modify the 2008 divorce decree was filed on April 10, 2013, well over three years after the decree was entered. Thus, the trial court did not err to the extent that it found that the request to set aside or modify the divorce decree was time-barred.

Nevertheless, Elizabeth and Dorothy argue that the divorce decree and the incorporated settlement agreement were the product of fraud, and the statute of limitation for fraud does not begin to run until the parties discover the fraud. And according to Elizabeth and Dorothy, they did not become aware of Robert’s “plan to defraud them of their interest in the property” until immediately before they filed this action. To be sure, Elizabeth and Dorothy are correct that under OCGA § 9-3-96, “[i]f the defendant or those under whom he claims are guilty of a fraud by which the plaintiff has been debarred or deterred from bringing an action, the period of limitation shall run only from the time of the plaintiff’s discovery of the fraud.” And to toll the limitation period under this statute, a plaintiff must show that: (1) a defendant committed actual fraud; (2) the fraud concealed the cause of action from the plaintiff; and (3) the plaintiff exercised reasonable diligence to discover the cause of action despite her failure to do so within the statute of limitation. Finally, a plaintiff bringing an action for fraud “has the burden of showing the existence of facts that would toll the statute of limitation.”

But here, Elizabeth and Dorothy have not presented evidence that Robert committed any act of fraud concealing their action to set aside or modify the divorce decree. Nevertheless, they argue that there is a genuine issue of material fact regarding whether the Robertsons actually intended to divorce because, after the divorce, Elizabeth and Robert continued living as if they were married. But at the time of the divorce, Elizabeth was well aware that she and Robert had no intention of separating, discontinuing marital relations, or dividing assets. Indeed, Elizabeth and Dorothy admit that “[t]he divorce was to keep the parties from financial ruin if [Elizabeth] Robertson . . . incurred astronomical medical bills and to allow her more benefits financially.” Moreover, Elizabeth falsely represented to the divorce court that she and Robert were separated and that their marriage was “irretrievably broken” when she knew at the time that the divorce was a sham. Thus, although Elizabeth and Dorothy now claim that the divorce decree should be set aside because it was fraudulent, Elizabeth was well aware of the alleged fraud in 2008, more than three years before she filed the instant complaint.

Elizabeth and Dorothy further contend that their action is not barred by the three-year statute of limitation because the Robertsons’ divorce settlement agreement did not provide for the disposition of the property. They also contend that the settlement agreement itself was fraudulent because Elizabeth was unaware of Robert’s intent to have their daughter deed the property back only to him. But Elizabeth knew at the time of the divorce that the property had been conveyed to her daughter, via warranty deed, four years earlier, and that she and Robert no longer had a legal interest in the property. Indeed, in her verified complaint for divorce, Elizabeth represented to the court that “[t]he parties do not jointly own any real estate.” And it is well established that a party may “make admissions in judicio in their pleadings, motions, and briefs,” and “[w]hat a party admits to be true in its pleadings may not subsequently be denied.” Because Elizabeth admittedly owned no joint real estate with Robert at the time of the divorce, the divorce decree and settlement agreement were not invalid because they failed to provide for the disposition of the property. Thus, Robert’s subsequent actions with respect to the property did not “fraudulently conceal” Elizabeth and Dorothy’s cause of action to set aside or modify the divorce decree on that basis.

In sum, to constitute concealment of a cause of action so as to prevent the running of the limitation period, “some trick or artifice must be employed to prevent inquiry or elude investigation, or to mislead and hinder the party who has the cause of action from obtaining information, and the acts relied on must be of an affirmative character and fraudulent.” And here, Elizabeth and Dorothy simply have not identified any affirmative fraudulent conduct on the part of Robert that concealed their action to set aside or modify the 2008 divorce decree or the incorporated settlement agreement. Thus, while Elizabeth and Dorothy assert that Robert’s silence regarding his intent to acquire the property after the divorce somehow concealed their cause of action, mere silence is insufficient to show fraudulent concealment.

2. Next, Elizabeth and Dorothy argue that the trial court erred in den'ying their claims for equitable relief because an implied trust resulted from the Robertsons’ 2002 conveyance of the property to Collins and her subsequent conveyance to Robert in 2008. They further argue that the court erred by applying a “mechanical” seven-year statute of limitation. We agree that, as to Elizabeth only, there is a genuine issue of material fact regarding whether she is entitled to enforcement of an implied trust agáinst Robert and that her action is not barred by the applicable statute of limitation.

As an initial matter, it is undisputed that, at the time of the 2002 and 2008 conveyances, Dorothy had no legal or beneficial interest in the property, and she did not begin living there until 2009. Moreover, Elizabeth and Dorothy do not identify at what time and under what circumstances an implied trust was created for Dorothy’s benefit. Instead, evidence shows that Dorothy was merely a tenant of the property because, for the entire time she lived there, she made monthly payments to the owner, Robert, for rent and utilities. Thus, Dorothy, as a tenant, has an adequate remedy at law (i.e., contesting the dispossessory action), and she is not entitled to equitable relief. And to the extent that Elizabeth and Dorothy contend that Dorothy obtained equitable interest in the property when, as conceded by Robert, she invested approximately $10,000 to make improvements to her living quarters, we note that a tenant does not obtain equitable interest in property merely by voluntarily spending money to make improvements to the landlord’s property. Accordingly, Dorothy is not entitled to equitable relief, and we consider this enumeration of error with respect to Elizabeth only.

Robert contends that Elizabeth’s action to enforce an implied trust is barred by the statute of limitation because her complaint was filed more than seven years after the 2002 deed to Collins was executed. In this regard, the Supreme Court of Georgia has held that implied trusts are “subject to statutes of limitation, and an action to impose or enforce such a trust regarding real property must generally be brought within seven years from the time the cause of action accrues.” And the statute of limitation begins to run against the party asserting title under an implied trust when “there has been notice of an adverse claim by the alleged trustee or such change of circumstances as would put a reasonably prudent person on notice that any trust relationship has ceased.”

As noted by Robert, more than seven years elapsed between the 2002 conveyance to Collins and when Elizabeth and Dorothy filed this action in 2013. However, Collins, the purported trustee as of the 2002 conveyance, is not a defendant in this action and no longer has an interest in the property. Regardless, Robert has identified no “adverse claim” by Collins that would have notified Elizabeth that the trust relationship had ceased prior to when Collins executed the 2008 deed. Here, Elizabeth seeks to enforce an implied trust against Robert, who could not have become a trustee of the property until he regained legal interest in the property in August 2008. Because Elizabeth filed this action less than seven years after the 2008 conveyance, her action is not barred by the statute of limitation.

Turning to the merits of Elizabeth’s claim, the Supreme Court of Georgia has explained that “[a]n implied trust is defined as either a resulting trust or a constructive trust.” And under the Revised Georgia Trust Code of 2010, “[a] resulting trust is a trust implied for the benefit of the settlor or the settlor’s successors in interest when it is determined that the settlor did not intend that the holder of the legal title to the trust property also should have the beneficial interest in the property. . . .” Such an implied resulting trust can arise under three circumstances: “(1) an express or implied trust is created but fails for any reason; (2) a trust is fully performed without exhausting all the trust property; and (3) a purchase money resulting trust is established.” A constructive trust, however, is a trust implied whenever “the circumstances are such that the person holding legal title to property, either from fraud or otherwise, cannot enjoy the beneficial interest in the property without violating some established principle of equity.” Indeed, equity will not allow “one with a legal interest in a piece of property a windfall recovery when the beneficial interest should flow to another.” Thus, a constructive trust is “a remedy created by a court in equity to prevent unjust enrichment.”

In the case sub judice, there is no evidence that, in 2008, the parties intended to create a trust, either express or implied, for the benefit of Elizabeth. Indeed, prior to the execution of the 2008 deed, Collins believed that she held title to her parents’ property “subject to their right to live in it for a lifetime.” And all parties agreed that the property was deeded to Collins for the sole purpose of protecting the property and Collins’s future inheritance from potential creditors. Both Collins and Elizabeth maintain that, in 2008, they intended for full legal title to be transferred jointly to the Robertsons. Collins averred that, when she signed the 2008 deed, she believed that her parents were still married and that she was conveying the property back to them as requested. Robert, on the other hand, testified that Collins conveyed the property solely to him because Elizabeth did not want her name on the deed and she said she “didn’t want no more to do with the property.” Thus, the trial court did not err to the extent that it found that, as a matter of law, an implied resulting trust did not arise in 2008 because no evidence suggests that any party intended for Robert to hold legal title to the land in trust, either express or implied, for Elizabeth’s benefit.

Nevertheless, viewing the evidence in a light most favorable to Elizabeth, there is a genuine issue of material fact regarding whether an implied constructive trust arose at the time of the 2008 conveyance from Collins to Robert. According to Elizabeth, she continued living with Robert at the property as “man and wife” until 2012, when he “decided to leave [her] for another woman.” She also averred that Robert let her “design the house and improve the property however [she] . . . wanted,” and that he repeatedly told her that it was “[her] house” and that “[he] built it for [her].” Furthermore, it was undisputed that Elizabeth contributed jointly with Robert to the $100,000 purchase price for the property, she invested her own inheritance money to pay off the mortgage that Collins had taken out, and prior to when he left in 2012, Robert conducted himself as though he owned the property jointly with Elizabeth. Finally, Elizabeth testified that she invested approximately $90,000 to make improvements to the property during the time when she lived there “as man and wife” with Robert, and that the market value of the property had increased over that time to $296,000. Under these particular circumstances, a reasonable jury could find that allowing Robert to retain sole ownership of a property worth nearly $300,000 that the Robertsons purchased and invested in together from the 1990s until 2012 would result in an inequitable windfall recovery to him and that a constructive trust may be imposed to prevent such a result.

3. Finally, Elizabeth and Dorothy argue that the trial court erred to the extent that it found that Elizabeth’s claims were barred because she had “unclean hands.” We agree.

The unclean-hands doctrine, “which bars a complainant in equity from obtaining relief[,] has reference to an inequity which infects the cause of action so that to entertain it would be violative of conscience.” Here, Robert seeks to take advantage of the equitable doctrine of unclean hands by asserting that Elizabeth engaged in wrongdoing when she deeded the property to her daughter for the purpose of defrauding potential creditors in 2002. However, Robert fails to identify any particular creditor that was actually defrauded by the 2002 conveyance. Moreover, as explained above, Elizabeth cannot seek to enforce an implied trust arising from the 2002 conveyance because Collins is not a party to this action, and she no longer has an interest in the property. Regardless, even if the parties had fraudulent intent in making the 2002 conveyance and even if that transaction bore any relation to the potential constructive trust that arose in 2008, Robert concedes that he engaged in the exact same fraudulent conduct that he complains of. And when, as here, both parties are equally at fault, Robert cannot avail himself of the equitable defense of unclean hands.

Decided September 23, 2015.

Palmour Law Firm, Albert C. Palmour, Jr., Melissa G. Hise, for appellants.

Larry B. Hill, for appellee.

For all of the foregoing reasons, we affirm the trial court’s grant of summary judgment to Robert as to Elizabeth and Dorothy’s action to set aside or modify the Robertsons’ divorce decree and as to Dorothy’s action to enforce an implied trust. But we reverse the court’s grant of summary judgment as to Elizabeth’s claim for enforcement of an implied trust.

Judgment affirmed in part and reversed in part.

Ellington, P. J., and McFadden, J., concur.

        See, e.g., Garden City v. Herrera, 329 Ga. App. 756, 757 (766 SE2d 150) (2014).

       Robert testified that, after the 2008 divorce, he continued living with Elizabeth, they did not divide any personal property, and they shared a joint bank account until sometime in 2012.

       Although the court’s order does not specify, it appears that the court granted summary judgment as to the entirety of Elizabeth and Dorothy’s complaint, except for their conversion claim.

       Elizabeth and Dorothy initially appealed to the Supreme Court of Georgia, seeking to invoke that Court’s jurisdiction over divorce and equity cases. But the Supreme Court transferred the appeal to this Court, concluding that Elizabeth and Dorothy’s action essentially sought to set aside Collins’s transfer of the property to Robert alone, and thus, the case did not invoke its jurisdiction over divorce and alimony cases. See, e.g., Dunlap v. Pope, 177 Ga. App. 539 (339 SE2d 662) (1986) (retaining and deciding an appeal from a post-divorce civil action seeking damages for fraud and to recover possession of property awarded to plaintiff in divorce decree, but allegedly retained by the defendant). The Court further noted that its equity jurisdiction is not invoked if the issue raised on appeal involves only whether the evidence is sufficient to authorize the imposition of an implied trust. See Reeves v. Newman, 287 Ga. 317, 319 (695 SE2d 626) (2010) (noting that the mere imposition of an implied trust as an equitable remedy does not automatically trigger the Supreme Court of Georgia’s jurisdiction).

        Garden City, 329 Ga. App. at 758 (punctuation omitted).

        Id. (punctuation omitted).

        Id. (punctuation omitted).

       As previously noted, the trial court entered a summary order, which did not include specific findings of fact or conclusions of law. Nevertheless, a grant of summary judgment must be affirmed if “it is right for any reason, whether stated or unstated in the trial court’s order, so long as the movant raised the issue in the trial court and the nonmovant had a fair opportunity to respond.” Anderson v. Jones, 323 Ga. App. 311, 312 n.2 (745 SE2d 787) (2013).

        See Mehdikarimi v. Emaddazfuli, 268 Ga. 428, 429-30 (2) (490 SE2d 368) (1997) (holding that wife’s action to set aside a portion of the divorce decree that obligated her to pay child support was barred by the three-year statute of limitation set forth in OCGA § 9-11-60 (f)); Black v. Donehoo, 229 Ga. 712, 713 (194 SE2d 90) (1972) (holding that, when a judgment in a divorce proceeding was not void because of lack of personal or subject-matter jurisdiction, a motion to set aside portions of that judgment must be brought within three years).

        See Lehman v. Keller, 297 Ga. App. 371, 372-73 (1) (677 SE2d 415) (2009) (“The tort of fraud has five elements: (1) a false representation or omission of a material fact; (2) scienter; (3) intention to induce the party claiming fraud to act or refrain from acting; (4) justifiable reliance; and (5) damages.” (punctuation omitted)).

        Daniel v. Amicalola Elec. Membership Corp., 289 Ga. 437, 445 (5) (b) (711 SE2d 709) (2011); accord Moore v. Mack, 266 Ga. App. 847, 849 (1) (b) (598 SE2d 525) (2004).

        Falanga v. Kirschner & Venker, P.C., 286 Ga. App. 92, 94 (1) (a) (648 SE2d 690) (2007).

        See Hamburger v. PFM Capital Mgmt., Inc., 286 Ga. App. 382, 389 (4) (649 SE2d 779) (2007) (holding that the statute of limitation was not tolled based on fraudulent concealment when the plaintiff was aware of the facts giving rise to her complaint); see also N4D, LLC v. Passmore, 329 Ga. App. 565, 567 (1) (765 SE2d 717) (2014) (holding that statute of limitation for a hreach-of-contract action was not tolled when the plaintiff “was aware” of the alleged breach within the one-year limitation period); Allmond v. Young, 314 Ga. App. 230, 231 (1) (723 SE2d 691) (2012) (noting that “mere silence or a failure to disclose ... will not toll the statute of limitation for fraud where the information was open and available” (punctuation omitted)).

        Am. Arbitration Ass’n v. Bowen, 322 Ga. App. 51, 54 (1) (743 SE2d 612) (2013) (punctuation omitted); accord Builder Marts of Am., Inc. v. Gilbert, 257 Ga. App. 763, 766 (3) (572 SE2d 88) (2002).

        Bowen, 322 Ga. App. at 54 (1); see Builder Marts of Am., Inc., 257 Ga. App. at 766 (3) (explaining that, when an admission is made in judicio, “it is then binding on the party and estops the party from denying the admission”).

        Mayfield, v. Heiman, 317 Ga. App. 322, 327 (2) (730 SE2d 685) (2012) (punctuation omitted); accord McElmurray v. Augusta Richmond County, 274 Ga. App. 605, 615 (4) (a) (618 SE2d 59) (2005).

        See Allmond, 314 Ga. App. at 231 (1) (holding that statutes of limitation for breach-of-contract and fraud claims regarding the sale of property were not tolled when the plaintiffs raised no argument that the defendant “took any specific action to prevent them from discovering the sales to another party, especially in light of the fact that the records of the sales were readily and publicly available” (emphasis supplied)); Fed. Ins. Co. v. Westside Supply Co., 264 Ga. App. 240, 243-44 (2) (590 SE2d 224) (2003) (“Concealment of the cause of action must be by positive affirmative act and not by mere silence.” (punctuation omitted)); Feinour v. Ricker Co., 255 Ga. App. 651, 655 (2) (566 SE2d 396) (2002) (same).

        See Davis v. DeVaughn, 7 Ga. App. 324, 325 (66 SE 956) (1910) (“Rent, by its definition, being merely the compensation due from the one party to the other for the use of the premises where the relation of landlord and tenant exists, it will be presumed, until the contrary is shown,.. . that the rent sued for in the present case is simply the compensation which should legally flow from the tenant to the landlord for the use of the premises.”).

        See Lee v. Peck, 228 Ga. 448, 450 (3) (186 SE2d 94) (1971) (“It is fundamental [that] ... absent special circumstances, such as insolvency of the landlord, or inadequacy of any legal defense which could be interposed thereto, that equity will not interfere with a dispossessory proceeding to enjoin the same ....”); DeFloreo v. Tarvin, 193 Ga. 760, 762 (20 SE2d 29) (1942) (“A tenant has an adequate remedy at law by which he may resist or contest a dispossessorywarrant proceeding, and equity will not interfere with such regular process.” (citation omitted)).

        See Morris v. Britt, 275 Ga. App. 293, 295 (1) (620 SE2d 422) (2005) (holding that tenants could not sue landlord under the equitable doctrine of unjust enrichment when they acted with the intention of personally benefitting from repairs and additions to the house and they failed to exercise their option to purchase the property or to reach a separate agreement with the landlord regarding the repairs); Meco of Atlanta, Inc. v. Super Valu Stores, Inc., 215 Ga. App. 146, 148 (1) (449 SE2d 687) (1994) (holding that a landlord was not liable for improvements made to a leased property by a tenant even if the landlord knew that the improvements were being made unless the landlord expressly or impliedly authorized the tenant to make the improvements for the former’s benefit).

       We acknowledge that, in 2012, Elizabeth also wrote four checks to Robert for $600 and indicated that they were for “rent.” But no one testified that anyone other than Dorothy paid rent and the record does not contain checks from Elizabeth and Dorothy for the same months. Thus, it is unclear whether Elizabeth made these four payments on her own behalf or on behalf of her mother. Regardless, unlike Dorothy, Elizabeth jointly purchased the property during her nearly 40-year marriage to Robert and shared finances with him until 2012. Thus, for reasons discussed more fully infra, evidence shows that she was not merely a rent-paying tenant.

        Swanson v. Swanson, 269 Ga. 674, 675 (1) (501 SE2d 491) (1998); accord Gaul v. Kennedy, 246 Ga. 290, 290 (1) (271 SE2d 196) (1980).

        Swanson, 269 Ga. at 675 (1); accord Whitworth v. Whitworth, 233 Ga. 53, 56 (2) (b) (210 SE2d 9) (1974).

        See Swanson, 269 Ga. at 675 (1); accord Gaul, 246 Ga. at 290 (1).

        Ansley v. Raczka-Long, 293 Ga. 138, 141 (2) (744 SE2d 55) (2013); see OCGA § 53-12-2 (5).

       OCGA § 53-12-130; see Ansley, 293 Ga. at 141 (2).

        Ansley, 293 Ga. at 141 (2) (punctuation omitted); see OCGA § 53-12-131 (a) (“Apurchase money resulting trust is a resulting trust implied for the benefit of the person paying consideration for the transfer to another person of legal title to real or personal property.”).

       OCGA § 53-12-132 (a); see Ansley, 293 Ga. at 141 (3).

        Ansley, 293 Ga. at 141 (3) (punctuation omitted); accord Weekes v. Gay, 243 Ga. 784, 787 (3) (256 SE2d 901) (1979).

        Ansley, 293 Ga. at 141 (3) (punctuation omitted); accord St. Paul Mercury Ins. Co. v. Meeks, 270 Ga. 136, 138 (2) (508 SE2d 646) (1998).

       SeeOCGA § 53-12-130; Ansley, 293 Ga. at 141 (2) (holding that a resulting trust was not created when the plaintiff failed to allege disputed issues of material facts showing an intention to create an implied resulting trust in her favor).

        See Ansley, 293 Ga. at 141-42 (3) (holding that a defendant was not entitled to summary judgment on the plaintiff’s claim for enforcement of a constructive trust, a type of implied trust created to prevent unjust enrichment, when there was evidence that the defendant, who owned legal title to the property, did not pay any money for it either at closing or through monthly payments); Weekes, 243 Ga. at 786 (upholding a trial court’s enforcement of an implied trust against the estate of a deceased co-tenant in favor of the other co-tenant, who paid the entire purchase amount for one property, one-half of the purchase price of a second property, all the tax payments on the second property, and a portion of the insurance premiums for a policy only in the deceased co-tenant’s name); Bullard v. Bullard, 214 Ga. 122, 123 (1) (103 SE2d 570) (1958) (holding that a husband’s action to enforce an implied trust against his wife was sufficient to withstand a general demurrer when he alleged that he had a 50 percent interest in the purchase money and the couple jointly operated a café on the property with the understanding that each would have a one-half interest); McCollum v. McCollum, 202 Ga. 406, 409-10 (1) (43 SE2d 663) (1947) (“The principle is well settled by the elementary writers, and numerous adjudicated cases, that when the purchase money is paid by one, and the legal title taken in the name of another, the person named in the conveyance is but a trustee of him who paid the consideration.”); Whiten v. Murray, 267 Ga. App. 417, 420-21 (2) (599 SE2d 346) (2004) (holding that a constructive trust arose in favor of wife when, during the marriage, a third party held legal title to property but the couple made all the mortgage payments and taxes, and the third party sold the property after the couple was divorced and retained the proceeds). Cf. Troutman v. Troutman, 297 Ga. App. 62, 65 (1) (676 SE2d 787) (2009) (holding that equity prevented the imposition of a constructive trust on a brother in favor of his siblings when their father deeded a farm to the brother, the brother invested $500,000 into the farm and worked it for 18 years, while his siblings did not work on the farm and paid only a small fraction of the cost to maintain it and pay the debt on it).

        Zaglin v. Atlanta Army Navy Store, Inc., 275 Ga. App. 855, 858 (2) (622 SE2d 73) (2005) (punctuation omitted); see OCGA § 23-1-10 (“He who would have equity must do equity and must give effect to all equitable rights of the other party respecting the subject matter of the action.”).

        Holmes v. Henderson, 274 Ga. 8, 8-9 (1) (549 SE2d 81) (2001) (characterizing “unclean hands” as an equitable doctrine).

        See OCGA § 23-1-15 (“When both parties are equally at fault, equity will not interfere but will leave them where it finds them. The rule is otherwise if the fault of one decidedly overbalances that of the other.”); Dobbs v. Dobbs, 270 Ga. 887, 888 (515 SE2d 384) (1999) (holding that one brother’s indebtedness to another did not support an unclean-hands defense when the brother loaning the money did not disclose the amount of the debt until trial); BEA Sys., Inc. v. WebMethods, Inc., 265 Ga. App. 503, 510-11 (2) (595 SE2d 87) (2004) (noting with respect to an unclean-hands defense that the trial court must consider the misconduct of the petitioner as compared to the conduct of the respondent). Cf. Dixon v. Murphy, 259 Ga. 643, 644 (2) (385 SE2d 408) (1989) (holding that a mother, who conveyed certain property to her son to defraud her creditors in a bankruptcy proceeding, was barred by the doctrine of unclean hands from seeking equitable relief when her son refused to reconvey the property to her).


author: Boggs, Judge.

text:
    A15A0904.
    MOSS v. THE STATE.
    (777 S.E.2d 709)
   Boggs, Judge.

After being stopped at a traffic safety checkpoint, Kyle Moss was charged by accusation with two counts of driving under the influence of alcohol. Moss was found guilty in a bench trial on stipulated facts, and he appeals, asserting as his sole enumeration of error the denial of his motion to suppress. He contends that the State failed to establish that the checkpoint had a valid purpose when viewed at the programmatic level, in accordance with the Supreme Court of Georgia’s recent decisions in Williams v. State, 293 Ga. 883 (750 SE2d 355) (2013), and Brown v. State, 293 Ga. 787 (750 SE2d 148) (2013). In denying Moss’ motion to suppress, the trial court explicitly found that “[a]t the programmatic level, the testimony indicated that the purpose for the checkpoints is to check licenses, the drivers’ conditions, and vehicle registration.” Because this finding was supported by some evidence, we affirm.

In Williams and Brown, supra, both decided on the same day, our Supreme Court held that

the State must show that the law enforcement agency’s checkpoint program had an appropriate primary purpose other than ordinary crime control — a purpose examined at that programmatic level, rather than by trying to determine the motives of the supervisor who implemented and the officers who conducted the particular checkpoint at issue. [Cit.]

Brown, supra, 293 Ga. at 798-799 (2) (f); see also Williams, supra, 293 Ga. at 886-887 (2). With regard to “the primary purpose of the [law enforcement] agency’s overall checkpoint program [,]” the State must show that “at that programmatic level . . . the agency has not authorized vehicle checkpoints primarily for general crime control but rather for an appropriately limited purpose like traffic safety.” (Citations, punctuation and footnote omitted.) Brown, supra, 293 Ga. at 798-799 (2) (e). Brown also notes the appropriate standard of review: if the trial court’s factual determination was supported by some evidence and therefore not clearly erroneous, the court’s order on the motion to suppress should be affirmed. Id. at 788; see also Williams, supra, 293 Ga. at 889 (2) (a) (“We must defer to that finding if there is any evidence in the record to support it. [Cit.]”).

It is not in dispute that the Cobb County Police Department has a detailed written policy governing permissible purposes for checkpoints. The policy was discussed at considerable length at the hearing by counsel, the trial court, and the witnesses, and Moss’ counsel referred to it by its section number. Moreover, Brown, supra, 293 Ga. at 788 (1) (a), and that case’s earlier appearance before this court, State v. Brown, 315 Ga. App. 154, 159 (726 SE2d 654) (2012), also addressed a Cobb County police roadblock and quoted extensively from the text of the provision in question. Brown was cited repeatedly in the hearing by the parties and the trial court. But the State failed to identify or introduce a copy of the written policy into evidence at the hearing on the motion to suppress, and it is not part of the record before us.

But even in the absence of a copy of the written policy, as our Supreme Court noted in Williams, supra:

The Constitution . . . does not mandate that a law enforcement agency delineate its checkpoint program in writing (although a written policy certainly provides clearer guidance to the agency’s officers and stronger proof for reviewing courts). We therefore must also consider whether the State offered any other evidence that the primary purpose of the [county sheriff’s] vehicle roadblock program was properly limited, such as testimony about restrictions being imposed through verbal orders or training or records showing that checkpoints have been done only for an appropriate purpose.

(Emphasis supplied.) 293 Ga. at 892 (3) (b). See also id. at 893 (3) (b), n. 5 (State may show that a “checkpoint program has an appropriate purpose other than general crime control.”).

In Wiliams, no such testimony or records were offered into evidence. Here, however, the State introduced additional testimony and documents to show that the primary purpose of the county’s checkpoint program was properly limited on a programmatic level. A two-page document titled “Cobb County Police Department/Uniform Division/Traffic Services Unit/Safety Checkpoint Log” was identified and introduced into evidence. This document includes pre-printed checklists for numerous details of checkpoint planning and operation, including “Site Selection (Method/Reason)” with a series of boxes to be checked as applicable including “Crash Analysis Report,” “Sobriety Checkpoint,” and “Other (Describe in Summary).” The “Other” box was checked and the summary reads: “Checkpoint established to ensure driver’s were complying with all applicable driver’s license and insurance requirements. Any other violations of law discovered during this encounter was investigated and handled by the officers. [Sic].” The road sergeant who implemented the checkpoint testified that he completed the forms in the course of supervising the checkpoint. He acknowledged the county policy governing checkpoints and specifically section 5.19 of the police department manual, but added that it had “been a while” since he had read it.

Decided September 23, 2015.

Filipovits Law Firm, Jeffrey R. Filipovits, for appellant.

Asked about the primary purpose of the checkpoint, the sergeant testified that in the absence of specialty training, the county’s road officers’ “primary, sole purpose in doing a checkpoint would be just to check for, like I say, license, insurance. In fact, we don’t have any —■ we don’t do specialized checkpoints.” He reiterated on cross-examination that “[t]hat’s the main purpose we do checkpoints for as road officers” and that “[o]ur sole purpose ... is to set it up and do driver’s license and insurance.” He also testified that he had no “input in or authority over the policy.” The sergeant’s testimony that the sole purpose for which road officers were authorized to set up a checkpoint was driver’s licenses and insurance necessarily excludes other purposes, including those of general crime control.

The State therefore did present some évidence supporting the trial court’s conclusion. The log itself is an official record at the programmatic level, “showing that checkpoints have been done only for an appropriate purpose.” Williams, supra, 293 Ga. at 892 (3) (b). Compare Armentrout v. State, 332 Ga. App. 370, 374 (1) (772 SE2d 817) (2015) (“[T]here was no testimony nor any written evidence admitted regarding the ... checkpoint policy or program as a whole.”) The sergeant’s testimony regarding the limitation of road officers’ purposes for checkpoints, taken in conjunction with the log and the limitations shown there, authorized the trial court to conclude that at the programmatic level, the Cobb County Police Department authorizes checkpoints for the purpose of checking licenses and insurance, and not for general crime control. While we agree with our Supreme Court that “a written policy certainly provides clearer guidance to the agency’s officers and stronger proof for reviewing courts,” Williams, supra, 293 Ga. at 892 (3) (b), the evidence was sufficient to support the trial court’s ruling.

Judgment affirmed.

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

Barry E. Morgan, Solicitor-General, Flynn D. Broady, Jr., Assistant Solicitor-General, for appellee.

       The checkpoint at which Moss was stopped took place on April 19, 2013. Williams and Broum were decided on October 21,2013, and the hearing on Moss’ motion to suppress occurred on December 18, 2013.

       In its brief, the State asserts the contents of the policy, citing Brown. In some circumstances, “this Court may take judicial notice of the records of other cases before this Court, in the interest of doing substantial justice and as a means of judicial economy.” Davis v. State, 287 Ga. 414, 415, n. 1 (696 SE2d 644) (2010). But under both current and former law, a court must explicitly do so. See OCGA § 24-2-201; Graves v. State, 269 Ga. 772, 775 (4) (a) (504 SE2d 679) (1998), overruled on other grounds, Jones v. State, 272 Ga. 900, 903 (2), n. 13 (537 SE2d 80) (2000).

       In Williams, the “two-sentence vehicle roadblock policy authorize [d] ‘general roadblocks which serve legitimate law enforcement purposes,’ without limitation,” id. at 892 (3) (b), and no testimony or other evidence was presented that the programmatic policy “excluded checkpoints for purposes of general crime control.” Id.