author: Miller, Judge. BOGGS, Judge,

text:
    A13A0671.
    THE KROGER COMPANY, INC. v. BRIGGS.
    (746 SE2d 879)
   Miller, Judge.

Najah Briggs sued The Kroger Company for negligence, among other claims, based on its actions that led to his arrest for attempting to pass allegedly counterfeit money. In fact, the money was not counterfeit, and Briggs was ultimately cleared of any wrongdoing only after being arrested and jailed, losing his job, being denied his seniority and other ramifications. The negligence claim was presented to a jury, and it concluded that Kroger was negligent and awarded Briggs $500,000 in damages. Kroger moved for a directed verdict during trial and filed a motion for judgment notwithstanding the verdict after trial. Kroger appeals the denial of those motions and its motion for summary judgment on the negligence claim. We conclude that the evidence was sufficient to support the jury’s verdict and that the summary judgment ruling is moot. Thus, we affirm.

In its review of the denial of a motion for judgment notwithstanding the verdict, this Court is to determine whether there is any evidence to support the jury’s verdict. This same standard of appellate review is to be applied in the situation of the denial of a motion for a directed verdict or a motion for new trial on general grounds. In so doing, this Court must construe the evidence in a light most favorable to the prevailing party in the court below.

(Citations omitted.) Patterson-Fowlkes v. Chancey, 291 Ga. 601, 602 (732 SE2d 252) (2012).

Construed in favor of Briggs, the evidence at trial showed that on August 19, 2009, Briggs was running errands before going to work and stopped at a Kroger store. He needed change for a $ 100 bill so that he could pay for his dry cleaning. Briggs shopped for a few minutes and then went to the self checkout to pay for the items he had selected. After scanning his items, he attempted to pay with the $100 bill, but the machine would not accept the money. Briggs told the attendant in the self checkout area what had happened, and she directed him to the customer service desk.

Briggs went to the customer service desk, explained what had happened, and asked for change for the $100 bill. After Briggs handed the bill to the customer service representative, he saw her mark the bill with a black pen. She then told him that she would have his change for him soon. The representative waited on a few other customers before heading into a back office. Briggs saw the store manager, Bobby Reeder, go into the back office with the customer service representative, and they stayed there for several minutes. The representative then opened the door to the back office and told Briggs that there was a delay because they had been locked out of the safe and that they would have his change shortly. Although Briggs had smaller bills in his wallet, the representative never asked him for another form of payment.

While Briggs thought he was waiting for his change, Reeder made a determination that the bill was counterfeit and called 911. He told the operator that he had a guy trying to pass a counterfeit bill and asked them to send the police. Reeder’s determination was based solely on the fact that the counterfeit detection pen used by the customer service representative had left a mark on the bill. Reeder did not know that the pen came with instructions and never made any attempt to determine whether there were any instructions indicating on which bills the pen would work. The bill that Briggs submitted for payment was a series 1950c bill, and the pen used on it was not able to determine whether a 1950 bill was counterfeit.

Kroger had certain procedures in place to address the issue of counterfeit money. A risk specialist for Kroger testified that, using information obtained from a United States Secret Service website, he prepared a document instructing Kroger employees on the steps to follow if presented with a bill the employee suspects may be counterfeit. Those steps included:

1. Make the customer aware of your suspicion concerning the suspect document.
2. Compare the bill with one you KNOW is genuine.
3. NEVER accuse the customer of intentionally attempting to pass the suspect document.
4. Ask the customer if they know where they received the suspect document.
5. Request another bill or form of payment. Offer the customer the use of the store phone to contact police if they wish.

A separate memorandum addressed to front end managers discussed what to look for and how to handle being confronted with suspected counterfeit money. In that memorandum, managers were informed that if a bill turns black when marked with a counterfeit detection pen, it is “SUSPECT ONLY.” The cashiers or office personnel were instructed to call a floor supervisor or management person to handle the situation. The memorandum further provided:

The customer simply needs to be asked if they have another bill or form of payment. There is no need to contact the authorities unless the customer is presenting a large number of counterfeit bills. . . . The average consumer, in all probability, would not recognize a bogus bill.

According to the risk specialist, both documents were in effect for the Kroger store Briggs visited in 2009, and Reeder should have been aware of their contents.

Reeder testified that he recognized the documents, but admitted that he did not follow the instructions in either. Reeder made no attempt to speak with Briggs before calling the police and did not compare the bill to one he knew was genuine. Nor did Reeder look at the date on the bill because he considered that to be irrelevant. Reeder did understand that by calling 911 and asking the operator to send the police, it was possible that they would arrest Briggs.

The risk specialist testified that although store managers have discretion in these situations, the preferred course of action is for them to contact the risk management department before calling the police. If Reeder had called the risk specialist in this situation, the risk specialist would not have contacted the police. Kroger also had a policy in place that store managers were expected to notify risk management personnel of incidents in their stores, but neither Reeder nor anyone else at his store ever told risk management that Briggs had been arrested for having an allegedly counterfeit bill.

Briggs’s first indication that anything was wrong was when a uniformed police officer approached him and told him that he was being arrested for forgery for having a counterfeit bill. Briggs was not given any opportunity to explain or to offer another method of payment. Instead, Briggs was handcuffed and threatened with the use of a taser gun if he did not cooperate. When the officer asked where he had obtained the money, Briggs explained that he had received it from his mother-in-law and that she had obtained the money from a bank on Jonesboro Road. Briggs was transported to the Clayton County jail where he was photographed and fingerprinted, required to put on prison clothing, and placed in a cell. Briggs remained in jail for 31 hours.

The arresting officer’s testimony was presented by deposition. When asked why he went to the Kroger store, the officer testified:

The manager or customer service representative had gotten a hundred dollar bill at the customer service counter that they had tested with a pen, with one of the money detect pens that they said turned black, which was an indicator for them that it was counterfeit. They also noticed some inconsistencies with it, so they believed it was a counterfeit bill and they called 911, so I responded.

The officer, who had some in-house training on counterfeit detection but no formal instruction, noted some inconsistencies on the bill. Based on his conversation with the customer service representative and possibly the store manager, as well as his personal observations of the bill, the officer arrested Briggs.

Briggs was charged with first degree forgery and hired a criminal attorney to defend him. After Briggs paid the attorney $1,500, the first degree forgery charges were dismissed in 2009.

At the time of his arrest, Briggs was employed by Allied Barton and worked 40 hours a week for them at a rate of $11.00 per hour. He missed two days of work while he was in jail, and was terminated from his job because he had been arrested for a felony. After the forgery charges against him were dismissed, Briggs sought to return to his job at Allied Barton. The position he formerly held had been filled, and there were no other positions available at that location.

Although Briggs was able to return to Allied Barton in January 2010, it was for less pay, and he was required to reapply, submit to another background check, and go through another probationary period. The contract at that location ended in March 2012, and he was not able to find another position at Allied Barton. Briggs testified that he wanted to continue working for Allied Barton because the company had a good reputation and provided good benefits and because he really enjoyed the job.

Briggs’s former supervisor testified that Briggs was a very capable employee and that he would hire him again if he could. The supervisor also testified that he would have kept Briggs on at his initial position if he had not been arrested and that he would have recommended Briggs for promotion if a position was available. A higher level position with higher pay did come available at that location after Briggs left. Briggs sought more than $700,000 in lost future earnings, as well as other damages.

After Briggs presented his case, Kroger moved for a directed verdict on the claims for negligence, punitive damages, and future lost earnings. The trial court denied the motion on the negligence and future lost earnings claims, but granted it on the punitive damages claim. At the close of the evidence, Kroger renewed its motion for directed verdict on the negligence claim, asserting that it was not the proximate cause of any harm suffered by Briggs, and on the future lost earnings claim. The trial court denied the motion entirely. After deliberating briefly, the jury returned its verdict in favor of Briggs for $500,000.

Following the trial, Kroger filed a motion for judgment notwithstanding the verdict or, in the alternative, motion for new trial. Kroger argued that it had not been negligent and that even if it had been negligent, the police officer’s decision to arrest Briggs was the intervening proximate cause of the damages alleged by Briggs. The trial court denied the motion, and Kroger appeals.

1. Kroger contends that the trial court erred in denying its motions for directed verdict and for judgment notwithstanding the verdict on the negligence claim. We disagree and conclude that the evidence was sufficient to support the jury’s verdict.

To recover on his negligence claim, Briggs had to show “(1) a legal duty to conform to a standard of conduct; (2) a breach of this duty; (3) a causal connection between the conduct and the resulting injury; and (4) damage.” (Citation and punctuation omitted.) Greenway v. Northside Hosp., 317 Ga.App. 371, 380(2) (730 SE2d 742) (2012). On appeal, Kroger challenges only the causation element, arguing that the uncontroverted evidence showed that its actions were not the proximate cause of Briggs’s damages because the arresting officer independently found probable cause to arrest Briggs.

It is well settled that there can be no proximate cause where there has intervened between the act of the defendant and the injury to the plaintiff, an independent, intervening, act or omission of someone other than the defendant, which was not foreseeable by defendant, was not triggered by defendant’s act, and which was sufficient of itself to cause the injury. But, if the character of the intervening act claimed to break the connection between the original wrongful act and the subsequent injury was such that its probable or natural consequences could reasonably have been anticipated, apprehended, or foreseen by the original wrong-doer, the causal connection is not broken, and the original wrongdoer is responsible for all of the consequences resulting from the intervening act.

(Citations and punctuation omitted.) Greenway, supra, 317 Ga. App. at 381 (2).

Here, Kroger’s own policy stated that there was no need for an employee to contact the authorities unless the customer was presenting a large number of counterfeit bills. Notwithstanding this policy, Reeder decided that the bill was counterfeit and contacted 911, stating that he had someone trying to pass a counterfeit bill and asking them to send the police. Reeder also admitted that it was foreseeable that Briggs would be arrested when the police were called to the store. Thus, the evidence showed that, but for Reeder’s actions, the police would not have come to the Kroger store and Briggs would not have been arrested.

Moreover, contrary to Kroger’s argument, the uncontroverted evidence did not show that the responding police officer conducted an investigation independent of any exhortations on Kroger’s part. Notably, the officer testified that he relied on his own observation and information supplied by Kroger in concluding that he had sufficient probable cause to arrest Briggs. Furthermore, Briggs testified that he was standing at the customer service counter when he was unexpectedly approached by officers and that within seconds, he was arrested for counterfeiting, was handcuffed and searched, and then was questioned. Thus, even assuming that an officer’s independent investigation can constitute a defense to a negligence claim, as opposed to an intentional tort claim for false imprisonment or malicious prosecution, such a defense did not shield Kroger from Briggs’s negligence claim in this case.

The applicable standard is whether there is any evidence to support the jury’s verdict. Here, the evidence showed that Kroger was negligent in failing to follow its own policies regarding the handling of suspected counterfeit money. Moreover, there is some evidence showing that the officer did not conduct an independent investigation before arresting Briggs. Accordingly, the evidence was sufficient for the jury to find that Kroger’s actions were the proximate cause of Briggs’s injuries.

The cases Kroger cites in support of its argument are distinguishable. In citing these cases, Kroger attempts to suggest that it was not the proximate cause of Briggs’s injuries, and that the officer’s actions were the direct cause of the incident. This is not the case as demonstrated by the evidence.

In Baggett v. Nat. Bank & Trust Co., 174 Ga. App. 346 (330 SE2d 108) (1985), Baggett was arrested and detained as a suspected bank robber when he presented a deposit slip to the teller that, unbeknownst to him, had the words “This is a stek up” on the back. Id. The teller reported the note, completed Baggett’s transaction, and Baggett left the bank without taking anything that did not belong to him. Id. The police were called via a silent alarm activated by the bank manager. Id. They arrested Baggett and detained him for several hours before releasing him without lodging any formal charges against him. Id. at 347. This Court concluded that the bank was entitled to summary judgment on Baggett’s negligence claim because the evidence showed no misconduct. Id. at 348 (2). Here, however, there was evidence that Reeder violated company policy on how to deal with suspected counterfeit money and that if he had followed company policy, Briggs would not have been arrested. See Medley v. Home Depot, 252 Ga. App. 398, 401 (555 SE2d 736) (2001) (summary judgment not appropriate where jury could determine that Home Depot was negligent for failing to follow its own policies); Schofield v. Hertz Corp., 201 Ga. App. 830, 831 (1) (412 SE2d 853) (1991) (“Violations of private guidelines do not establish negligence per se, but can be illustrative of what is considered reasonable behavior for employees.”) (citation omitted). Further, in reaching his determination that the bill was counterfeit and relaying that information to the 911 operator, Reeder admittedly relied solely on the counterfeit marking pen without making any effort to determine whether that type of pen worked only on certain bills.

Kroger also relies on First Union Bank of Ga. v. Daniel, 186 Ga. App. 826, 827-828 (2) (368 SE2d 768) (1988). In that case, someone fraudulently opened an account in Daniel’s name at First Union and wrote checks without funds to cover them. Id. at 826. First Union returned the checks to the merchants stamped either “account closed” or “insufficient funds.” Id. When First Union discovered that Daniel had not uttered the worthless checks, it notified the sheriff’s department, provided them with a photograph of the person who had written the checks, and requested that the sheriff’s department notify the merchants to whom the checks were written. Id. at 827 (1). Daniel was nonetheless arrested. In that situation, this Court held that Daniel’s arrest was not caused by the bank’s actions in stamping the returned checks, but by the sheriff’s department acting despite its knowledge that Daniel was not the person described in the warrants. Id. at 827-828 (2). Thus, any negligence on the bank’s part was cured by its subsequent actions, and was not the proximate cause of Daniel’s arrest. Id. Here, however, Kroger did not attempt to cure any negligence on its part.

The cases cited by Kroger do not alter our conclusion that there was evidence to support the jury’s verdict. The jury’s verdict must therefore be upheld.

2. Kroger asserts an alternative claim — if this Court remands the case to the trial court for a new trial based on lack of proximate cause and damages attributable to Kroger, we should instruct the trial court not to allow the future lost wages claim to go to the jury. Given our determination in Division 1 that the jury’s verdict should be upheld, we need not reach this alternative claim.

3. Kroger also challenges the trial court’s denial of its motion for summary judgment on the negligence claim. The trial court’s denial of Kroger’s motion for summary judgment on this claim was an interlocutory ruling which was reviewable only by certificate of immediate review and an application for interlocutory review. See Thomas v. McGee, 242 Ga. 441, 442 (1) (249 SE2d 242) (1978). There is no record evidence that Kroger followed interlocutory application procedures to obtain review before the case proceeded to trial. After a verdict and judgment it is too late to review an order denying summary judgment as that order becomes moot. Kicklighter v. Woodward, 267 Ga. 157, 162 (4) (476 SE2d 248) (1996); Rowe v. Law Offices of Ben Brodhead, P.C., 319 Ga. App. 10, 17 (3), n. 7 (735 SE2d 39) (2012).

Judgment affirmed.

Doyle, P. J., concurs. Boggs, J., concurs specially.

BOGGS, Judge,

concurring specially.

While I agree that we must affirm in this case, I would do so for a reason different than that relied upon by the majority and I therefore concur specially as to Division 1. And, while the majority has adopted part, but not all, of the analysis in this special concurrence, I write to address the merit of extending the rule providing for a defense in false arrest, malicious prosecution, and false imprisonment cases — where an official makes an independent decision to arrest or prosecute — to negligence cases. Nevertheless, because jury questions exist here as to the applicability of this defense, I would affirm under the specific circumstances of this case.

The negligence count in Briggs’ complaint alleged that Kroger “negligently” failed to follow “its own management’s advice, guidance, suggestions and/or directives where counterfeit currency is suspected,” and that as a result of such negligence Briggs “was unlawfully detained and arrested for first degree forgery.” The majority concludes that Kroger’s actions were the proximate cause of Briggs’ injuries by focusing exclusively on the alleged negligence of Kroger in failing to follow its own guidelines. Briggs’ damages, however, would flow not from Kroger’s failure to follow its guidelines, but from his ensuing arrest. And I would conclude that when a law enforcement officer conducts an independent investigation providing a basis upon which professional judgment is exercised in deciding to arrest a suspect, independently of any exhortations by the defendants, that act alone, where uncontroverted, would constitute a defense to such a negligence claim. This defense should be available in any negligence case sounding in false arrest, such as the one before us, even though the plaintiff casts its theory of recovery as one arising from a defendant’s alleged negligence in failing to follow its own established guidelines.

“The law draws a fine line of demarcation between cases where a party directly or indirectly urges a law enforcement official to begin criminal proceedings and cases where a party merely relays facts to an official who then makes an independent decision to arrest or prosecute.” Jacobs v. Shaw, 219 Ga. App. 425, 426 (1) (465 SE2d 460) (1995), overruled on other grounds, Infinite Energy v. Pardue, 310 Ga. App. 355 (713 SE2d 456) (2011). And it is well settled that there can be no liability against a defendant who contacted law enforcement officers to report a suspected crime when the officer exercises his or her own professional judgment in arresting the plaintiff. While this rule has generally been applied in cases involving the intentional torts of false arrest, malicious prosecution, and false imprisonment, its application has not been expressly limited to intentional torts. I would therefore conclude that the same rule should also be applied in cases asserting a negligence theory of recovery for damages flowing from an arrest, because it is in fact a defense which would defeat recovery.

As we have held in malicious prosecution actions, the public policy of this state is “to encourage citizens to report an individual they suspect may have committed crimes.” Achor Center v. Holmes, 219 Ga. App. 399, 402 (1) (465 SE2d 451) (1995); see also K-Mart Corp. v. Coker, 261 Ga. 745, 747-748 (4) (410 SE2d 425) (1991). “Citizen cooperation is essential to efficient police operation and should not be stifled.” (Citations omitted.) Baggett v. Nat. Bank & Trust Co., 174 Ga. App. 346, 348 (2) (330 SE2d 108) (1985). A party who reports a suspected crime should not be held liable for either an intentional tort or for negligence (especially a negligence claim sounding in false arrest), when the officer arriving on the scene conducts his own investigation and determines that in his professional judgment he has probable cause to arrest.

The public has a clearly stated role in aiding law enforcement in combating crime, particularly in matters of counterfeit bills where, as the recipients of counterfeit notes, their role is vital. When presented with a suspect note, as here, it is reasonably foreseeable that by calling the police, someone might be arrested. However, it is likewise reasonable to conclude that upon their arrival, the police will do their job and conduct an independent investigation to determine whether probable cause exists for arresting a person. Certainly, Kroger was within its right to expect that law enforcement will not arrest someone falsely. Accordingly, there appears to be no logical basis to preclude the defense provided in false arrest, malicious prosecution, and false imprisonment cases from also applying to negligence theories of recovery, particularly when, as here, the negligence claim sounds in false arrest.

Decided July 16, 2013

Gray, Rust, St. Amand, Moffett & Brieske, Matthew G. Moffett, Jennifer M. Guerra, for appellant.

Dixon Mills, Sherard K. Dixon, Michael A. Mills, for appellee.

Nevertheless, under the specific facts in this case, there was conflicting evidence on the issue of whether the officer actually conducted an independent investigation. And there was some evidence from which the jury could have concluded that there was exhortation on the part of Kroger. In short, this evidence was not uncontroverted. The officer testified that to conclude he had sufficient probable cause to arrest Briggs he “relied on [his] own observation and . . . relied on information supplied by Kroger.” Briggs, on the other hand, testified that while he was standing at the customer service counter, he was unexpectedly approached by the officers, and within seconds told that he “was being arrested for forgery, of counterfeiting,” handcuffed, searched, and then questioned. And the manager admitted that in his 911 call played for the jury he stated: “I have a guy trying to pass a counterfeit bill.” For this reason only, I believe that the trial court’s denial of Kroger’s motion for directed verdict and motion for judgment notwithstanding the verdict was not in error.

       Briggs also asserted claims for false arrest and malicious prosecution; however, those claims did not proceed to trial and are not before this Court on appeal. Nevertheless, we note that in cases involving false arrest or malicious prosecution,
      [t]he law draws a fine line of demarcation between cases where a party directly or indirectly urges a law enforcement official to begin criminal proceedings and cases where a party merely relays facts to an official who then makes an independent decision to arrest or prosecute. In the former case there is potential liability for false imprisonment or malicious prosecution; in the latter case there is not. ... If the defendant . . . merely states what he believes, leaving the decision to prosecute entirely to the uncontrolled discretion of the officer, or if the officer makes an independent investigation, or prosecutes for an offense other than the one charged by the defendant, the latter is not regarded as having instigated the proceeding; but if it is found that his persuasion was the determining factor in inducing the officer’s decision, or that he gave information which he knew to be false and so unduly influenced the authorities, he may be held liable.

      (Citations and punctuation omitted; emphasis supplied.) Welton v. Ga. Power Co., 189 Ga. App. 17, 20 (2) (375 SE2d 108) (1988).

        Hammond v. D. C. Black Inc., 53 Ga. App. 609 (186 SE 775) (1936) (“Where a person calls police officers to his place of business where there is a man he suspects of having committed a crime, and the officers come, and after taking in the situation arrest the suspected person, and the arrest is illegal, the person calling the officers is not guilty of an illegal arrest where he does not direct or request the making of the arrest, notwithstanding he may acquiesce in the arrest and do nothing to prevent or discourage it.”); Barnette v. Coastal Hematology & Oncology, 294 Ga. App. 733, 736 (670 SE2d 217) (2008) (“[A] defendant may successfully defend against a claim of malicious prosecution when the arresting officer provides an uncontroverted affidavit that the decision to arrest plaintiff was made solely by him in the exercise of his professional judgment and independently of any exhortations by the defendants”) (citation and punctuation omitted); Holmes v. Achor Center, 249 Ga. App. 184, 190-191 (2) (b) (547 SE2d 332) (2001); Corporate Property Investors v. Milon, 249 Ga. App. 699, 701 (1) (a) (549 SE2d 157) (2001) (physical precedent only) (“Had the evidence revealed that [the officer], in fact, made an independent investigation, as was her professional duty to do, and based her decision to arrest ' [the plaintiff] on her independent investigation and the statements of [another], then there would be a basis upon which professional judgment was exercised, and such would constitute a defense.”).

       In Adams v. Carlisle, 278 Ga. App. 777 (630 SE2d 529) (2006), two store patrons alleged, among other things, a negligence claim against the corporate defendants whose employees contacted police to report the patrons’ passing of suspected counterfeit bills. Id. at 778-781. We concluded that because “the facts could have led a reasonable person to believe that probable cause existed to arrest the appellants for passing counterfeit bills,” their negligence claim fails. Id. at 787-788 (3) (b) and 793 (9) (binding precedent with regard to these divisions). But our opinion did not expound on whether probable cause to arrest is a defense to negligence or whether it vitiates an element of negligence, and if so, which element. Kroger has not asserted here that probable cause precludes the appellants’ negligence claim.

       It appears from the record that Kroger’s disseminated counterfeit currency policy entitled “KNOW YOUR MONEY’ was prepared from the same information located on the “Know Your Money” page on a website maintained by the United States Secret Service. http://www.secretservice.gov/know_your_money.shtml. The policy of the United States Secret Service for combating counterfeit bills is aptly stated on this page: “Only with the public’s cooperation can the United States Secret Service reduce and prevent these crimes.” Id. It also asks the public to "[c]ontact your local police department or United States Secret Service field office” if a note is suspected to be counterfeit, http://www.secretservice.gov/money_receive.shtml. Finally, a “Counterfeit Note Report” instructs in bold print within a section titled “Important Notice” that the person surrendering the suspected counterfeit bill should “TELEPHONE the local police department or Secret Service office IMMEDIATELY and hold the note.” (Emphasis in original.) http://www.secretservice.gov/forms/ssfl604.pdf.


source: Caselaw Access Project

author: Branch, Judge.

license: Public Domain

text:
    A13A0703.
    DAVIS v. THE STATE.
    (746 SE2d 890)
   Branch, Judge.

On appeal from his conviction for aggravated sexual battery and child molestation, Albert Davis argues that the trial court erred when it failed to charge the jury on accident, when it closed the courtroom during the victim’s testimony, and when it received an ex parte communication from a juror. Davis also argues that the statute of limitation had run before he was indicted for aggravated sexual battery, that he was deprived of his right to effective and conflict-free counsel, and that his sentence on the aggravated sexual battery count was illegal. We affirm Davis’s conviction but vacate his sentence and remand for resentencing because the rule of lenity requires that he be resentenced under the lesser penalty prescribed by the version of OCGA § 16-6-22.2 in effect before July 1, 2006.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.” (Citation omitted.) Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165) (2004). We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

So viewed, the record shows that in February 2010, the 13-year-old victim sent her cousin a number of text messages to the effect that Davis, her stepfather, had sexually abused her. When the cousin informed the Treutlen County sheriff of these messages, the sheriff went to the house the victim shared with her mother and Davis and saw the victim, who had just returned home from school, begin to cry. The victim’s mother told the victim to go with the sheriff, “to tell the truth,” and that “it would be all right.” The sheriff drove the victim to the local courthouse and called in an agent from the Georgia Bureau of Investigation (GBI), who interviewed the victim in a judge’s chambers. In the meantime, the sheriff called Davis and asked him to meet at the courthouse. When Davis arrived, he waived his Miranda rights and admitted that he often bathed with the victim, during which occasions he sometimes touched her breasts, buttocks, and inner thighs; that he regularly went into her room naked in the morning to “wake her up”; and that he might have touched the victim inappropriately while carrying her to her bedroom a few years earlier. The sheriff then arrested Davis for child molestation.

The GBI agent’s interview of the victim was played for the jury at trial. In the course of the interview, the victim stated that when she was between the ages of 7 and 13, Davis would sometimes come into her room naked and kiss her while touching himself; that Davis often washed her body while she bathed; that he had once inserted his finger in her vagina while carrying her from her mother’s room, where she had fallen asleep, to her bedroom; and that he once told her to squat in the shower and then checked her private parts for ticks, during which time he inserted his finger in her vagina. At trial, and in addition to confirming these incidents, the victim also testified that Davis would come into her room, lie down on top of her, and try to kiss her on the mouth. During his own interview with the same GBI agent, Davis admitted to scratching his privates at times when he walked into the victim’s room naked to awaken her in the morning, to showering with and touching the victim, and to searching her pubic hair for ticks.

Davis was charged with one count of aggravated sexual battery for penetrating the victim with his finger without her consent between December 18, 2004, and December 18, 2006. Davis was also charged with two counts of child molestation — the first for masturbating in the victim’s presence between October 1, 2008, and February 4, 2010, and the second for fondling her breast and vagina between October 1, 2009, and February 4, 2010. A jury found Davis guilty of aggravated sexual battery and the second count of child molestation, but acquitted him of the first child molestation charge. Davis was convicted and sentenced to forty years to serve with life on probation on the aggravated sexual battery charge and twenty years with ten to serve, running concurrently, on the child molestation charge.

1. We have reviewed the record and conclude that the evidence was sufficient to sustain Davis’s conviction for aggravated sexual battery and child molestation. See OCGA §§ 16-6-22.2 (b) (defining aggravated sexual battery as the intentional penetration with a foreign object of “the sexual organ or anus of another person without the consent of that person”), 16-6-4 (a) (defining child molestation as doing “any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person” committing the act); Jackson, supra.

2. Davis argues that the trial court erred when it failed to charge the jury on accident, which he characterizes on appeal as his sole defense to the charge of aggravated sexual battery. We disagree.

The record shows that Davis was charged with aggravated sexual battery in that he “did unlawfully and intentionally penetrate the sexual organ of [the victim] with . . . his finger” without the victim’s consent. Davis told the sheriff and the GBI agent, however, that he was not sure or could not remember whether he had penetrated the victim in the course of carrying her from her mother’s bedroom to her own, and he conceded to the victim’s mother only that he might have touched the victim’s privates.

“[I]f a defendant does not admit to committing any act which constitutes the offense charged, [he] is not entitled to a charge on the defense of accident.” (Punctuation and footnote omitted.) Sevostiyanova v. State, 313 Ga. App. 729, 736 (9) (722 SE2d 333) (2012). Here, Davis admitted to carrying the victim and to touching her privates during that act of carrying, but not to the act of penetration that was the basis of the charge of aggravated sexual battery. Because Davis did not admit to the act of penetration that was the basis of the charge of aggravated sexual battery, he was not entitled to a jury charge on accident as an affirmative defense to that charge. See OCGA § 16-6-22.2 (b); Sevostiyanova, supra; compare Jones v. State, 161 Ga. App. 610, 612 (4) (288 SE2d 788) (1982) (physical precedent only) (where defendant admitted to penetrating victim’s vagina with his finger, and where accident was his sole defense to a charge of child molestation, a trial court erred in not charging the jury on that defense).

3. Davis also argues that the trial court erred when it closed the courtroom and excluded Davis’s family for the duration of the victim’s testimony. We disagree.

The record shows that when the trial court asked both sides for alternatives to closure, Davis’s counsel affirmatively agreed to the closure. At the hearing on his motion for new trial, Davis testified that although he immediately informed counsel that he wished to have his family present during the victim’s testimony, counsel ignored this wish on the ground that the victim, whom he found a “very sympathetic witness,” would likely be less defensive when not faced with those who had sided with Davis in this “very gut-wrenching, family-splitting incident.”

Former OCGA § 17-8-54 provided that a trial court “shall clear the courtroom of all persons except parties . . . and their immediate families or guardians, attorneys and their secretaries, officers of the court, jurors, newspaper reporters or broadcasters, and court reporters” when a person under the age of 16 testifies about a sex offense. See Goldstein v. State, 283 Ga. App. 1, 4 (2) (640 SE2d 599) (2006) (trial court’s closure of a courtroom during the testimony of a victim of a sex offense does not violate the accused’s right to a public trial).

Even if the trial court erred by violating the terms of the statute when it excluded Davis’s family from the courtroom for the duration of the victim’s testimony, Davis has waived this issue by failing to object. Sandifer v. State, 318 Ga. App. 630, 631 (1) (734 SE2d 464) (2012). Moreover, even assuming that Davis had preserved this objection, the trial court’s decision to remove Davis’s family from the courtroom does not constitute reversible error because Davis has not shown how this error harmed him. Id. at 632 (1). Specifically, Davis’s assertion of prejudice ignores the fact that his conviction was founded not only on the victim’s trial testimony but also on his own inculpatory statements to the GBI. In light of this evidence, we cannot say that Davis “was prejudiced by the fact that the trial court may have made it easier for the young victim[ ] to testify by removing all spectators, other than [her] immediate family members, from the courtroom.” Id.; see also Driggers v. State, 295 Ga. App. 711, 716-717 (3) (673 SE2d 95) (2009).

To the extent that Davis is suggesting that counsel was ineffective when he agreed to the closure, the Supreme Court of Georgia has held that even assuming that counsel could have raised a meritorious objection to a courtroom closure, a defendant “still must show that he was prejudiced by counsel’s decision not to object” to that closure. (Citations omitted.) Reid v. State, 286 Ga. 484, 487 (3) (c) (690 SE2d 177) (2010); compare Presley v. Georgia, 558 U. S. 209, 214 (130 SCt 721, 175 LE2d 675) (2010) (trial court was “required to consider alternatives to closure even when they are not offered by the parties”) (citation omitted). In light of the other evidence against him noted above, Davis can make no such showing here. Sandifer, supra at 632 (2) (where victims’ testimony was not the only evidence against him, defendant could not show prejudice resulting from the trial court’s exclusion of defendant’s sister from the courtroom during the testimony of the victim). For both of these reasons, Davis’s contention lacks merit.

4. Davis also argues that he was deprived of his due process right to be present and to see and hear all proceedings against him when the trial court received a communication from a juror that the juror had a final examination on the day after he was empaneled. Again, we disagree.

Although ex parte communications are presumptively harmful, we will not consider the issue when a party does not raise it at the first opportunity. See Ga. Power Co. v. Ga. Pub. Svc. Comm,., 196 Ga. App. 572-573 (1) (396 SE2d 562) (1990) (complaint of ex parte communication had been waived on appeal when party did not raise the issue at the first opportunity); In the Interest of D. D., 310 Ga. App. 329, 332-333 (2) (713 SE2d 440) (2011) (remanding for determination whether party waived issue of ex parte communication by failing to raise it below).

This record shows that the trial court informed the parties of this communication, including the court’s suggestion that the juror call his instructor to obtain an alternate date for the examination, and that neither side had any objection to this disposition of the matter. It follows that Davis has waived any issue concerning this ex parte communication. See Ga. Power Co., supra at 572-573 (1).

5. Davis also argues that his conviction for aggravated sexual battery must be set aside because he was not indicted for the crime within four years of its occurrence and because the indictment did not invoke the seven-year statute of limitation as to victims under the age of eighteen. See OCGA § 17-3-1 (c); Moss v. State, 220 Ga. App. 150 (469 SE2d 325) (1996) (trial court did not err in directing a verdict of acquittal when State failed to initiate prosecution within the four years provided by OCGA § 17-3-1 (c) and when the indictment failed to allege the seven-year exception in the same statute). Under OCGA § 17-3-1 (b), however, a seven-year statute of limitation also applies to offenses punishable by life imprisonment, which category includes aggravated sexual battery. See OCGA §§ 16-6-22.2 (c) (authorizing life imprisonment for the crime of aggravated sexual battery), 17-3-1 (b) (except as provided in OCGA §§ 17-3-1 (d) (as to crimes involving DNA evidence) and 17-3-2.1 (a) (as to crimes not including aggravated sexual battery committed between 1992 and2012), “prosecution for other crimes punishable by death or life imprisonment shall be commenced within seven years after the commission of the crime”). D avis’s contention that the four-year limitation period applies thus lacks merit.

6. Davis argues that (a) the trial court erred when it instructed the jury that it “need[ed]” to reach a verdict and (b) counsel was ineffective when he failed to object to the trial court’s initial charge or to request an Allen charge later in the proceedings. We disagree.

(a) In reviewing a trial court’s instructions to a jury as to the desirability of reaching a verdict, we must answer the question “ ‘whether the instruction is so coercive as to cause a juror to abandon an honest conviction for reasons other than those based upon the trial or the arguments of other jurors.’ ” Burchette v. State, 278 Ga. 1, 3 (596 SE2d 162) (2004), quoting Mayfield v. State, 276 Ga. 324, 330 (578 SE2d 438) (2003).

The record shows that before the trial court sent the jury out to begin its deliberations, the court noted that members of the jury “should never surrender an honest opinion in order to be congenial or just to reach a verdict because [of] the opinions of the other jurors” and that “[y]ou will need to find [Davis] either guilty or not guilty” as to each of the three counts. The jury began its deliberations at 2:30 p.m.

During the same afternoon, the jury sent a note that it was hung on the aggravated sexual battery count. Davis’s counsel then asked whether the court was in the habit of giving Allen charges as to the desirability of reaching a verdict. After the State recommended against an Allen charge, the trial court sent a response that the jury should “[p]lease continue to deliberate until you are able to reach a verdict.” That evening, and on a report from the bailiff that tempers were “getting pretty hot” in the jury room, the trial court brought the jury back into the courtroom and granted a break until the following morning, commenting that “we want you to ultimately reach a decision one way or the other,” and that “hopefully, you can reach a verdict if we allow you to come back in the morning.” A few minutes after deliberations commenced the following morning, the jury returned its verdict. In a poll, each juror affirmed that the verdict had been reached “freely and voluntarily.”

Although it is true that the trial court told the jury that it “need[ed]” to reach a verdict, the record also shows that moments before making this suggestion, the trial court also instructed that no juror should surrender his or her convictions for the sake of reaching a verdict. We therefore conclude that this instruction, taken as a whole, was not coercive. See Dortch v. State, 204 Ga. App. 822, 823 (3) (420 SE2d 778) (1992) (even when a jury charge included disapproved language that a criminal indictment would have “to be determined by some jury at some time,” the charge was not coercive when it included the instruction that no juror should “give up honestly held convictions”). As to the trial court’s decision not to give an Allen charge after the jury sent out a note that it was hung on the aggravated sexual battery count, a trial court does not abuse its discretion in failing to give an Allen charge sua sponte when it has previously told the jury that none of its members should surrender an honest opinion as to the case. Ponder v. State, 268 Ga. 544, 546 (491 SE2d 363) (1997); compare Howard v. State, 218 Ga. App. 346, 348-350 (1) (461 SE2d 274) (1995) (granting new trial when trial court made repeated comments including that “we’re not going to mistry this case,” leading the jury to believe it was required to reach a verdict).

(b) Given that the trial court’s initial charge to the jury was not erroneous, Davis cannot show that trial counsel was ineffective for failing to object to that charge. Sims v. State, 281 Ga. 541, 543-544 (2) (640 SE2d 260) (2007) (failure to raise a meritless objection cannot constitute ineffective assistance of counsel). As to counsel’s failure to request an Allen charge later in the proceedings, Davis has not pointed to any evidence at the new trial hearing “as to trial counsel’s reasons for not requesting any further jury instructions.” Cantu v. State, 304 Ga. App. 655, 658-659 (2) (b) (697 SE2d 310) (2010). We therefore presume that counsel’s decision not to request an Allen charge was strategic. Id.

For both of these reasons, the trial court did not err when it denied Davis’s motion for new trial on this ground.

7. Davis also argues that counsel was ineffective due to an actual conflict arising from his representation of the Department of Family and Children Services (DFCS) during the same period in which DFCS was involved in the placement of Davis’s own children pending a law enforcement investigation of the victim’s allegation that she was pregnant with Davis’s child. We disagree for two reasons: because the trial court did not clearly err when it held that Davis waived any conflict, and because counsel’s decision not to impeach the victim’s credibility on the subject of the pregnancy allegation was both strategic and reasonable.

Defense counsel have an ethical obligation to avoid conflicting representations and to advise the court promptly when a conflict of interest arises during the course of trial. Absent special circumstances, therefore, trial courts may assume either that multiple representation entails no conflict or that the lawyer and his clients knowingly accept such risk of conflict as may exist. . . . Unless the trial court knows or reasonably should know that a particular conflict exists, the court need not initiate an inquiry.

(Footnotes omitted; emphasis supplied.) Cuyler v. Sullivan, 446 U. S. 335, 346 (IV) (A) (100 SCt 1708, 64 LE2d 333) (1980). Our Supreme Court has recently confirmed that “a defendant asserting ineffective assistance of counsel based on an actual conflict of interest must demonstrate that the conflict of interest existed and that it significantly affected counsel’s performance.” (Citation and punctuation omitted; emphasis supplied.) State v. Abernathy, 289 Ga. 603, 604 (1) (715 SE2d 48) (2011); see also Cuyler, supra at 348 (IV) (B) (when a defendant raises no objection to an alleged conflict during trial, he must demonstrate on appeal both the existence of an actual conflict and its significant effect on counsel’s performance); Taylor v. State, 320 Ga. App. 596, 602-603 (2) (740 SE2d 327) (2013) (same, citing Abernathy and Cuyler).

At the hearing on Davis’s motion for new trial, counsel testified that at the time he was representing Davis, he was also a special assistant attorney general representing DFCS. In the course of discovery, the victim was found to have alleged that she was pregnant by Davis, but a subsequent DFCS investigation, including a physical examination, showed no evidence of any pregnancy. Counsel did not introduce this evidence at trial.

Davis’s mother testified that she had retained her son’s trial counsel because she had worked for said counsel and trusted him; that she knew trial counsel was representing DFCS in this same period; and that she knew of no connection between or conflict arising from trial counsel’s representation of her son and trial counsel’s work for DFCS. Over the course of her son’s trial, however, Davis’s mother came to believe that counsel should have questioned the victim more aggressively and should have introduced the topic of the victim’s disproved allegation of pregnancy.

(a) This record shows that counsel discussed his dual representation of Davis and DFCS with Davis and his wife and that the dual representation had no effect on any decision he made at trial, including his decision not to introduce evidence of the victim’s pregnancy allegation for purposes of impeaching her. In light of this record, including counsel’s account of his discussion of the issue with Davis and his wife, we cannot say that the trial court clearly erred when it concluded that Davis waived any conflict. Taylor, supra at 604 (2) (a) (where defendant waived any conflicts arising from counsel’s prior and simultaneous representation of defendant and her co-defendant, any error in allowing a trial to proceed was induced and could not provide the basis for a claim that counsel was ineffective as a result of the conflict).

(b) As we have recently repeated in the specific context of allegations as to conflicts arising from counsel’s simultaneous representation of two different clients, “which witnesses to call and all other strategies and tactical decisions are the exclusive province of the lawyer after consultation with his client, and whether an attorney’s trial tactics are reasonable is a question of law, not fact.” (Citation and punctuation omitted.) Taylor, supra at 604 (2) (b). Here, counsel testified that his representation of DFCS amounted to only a potential conflict, and his strategic decision not to impeach the victim’s credibility by means of the false pregnancy accusation was a reasonable one. Thus Davis has not shown that any actual conflict between his and DFCS’ interests “caused divided loyalties” or “compromised” trial counsel’s representation of him. Id., quoting Abernathy, supra at 605 (1); see also Johnson v. State, 320 Ga. App. 161, 166 (4) (739 SE2d 469) (2013) (where counsel testified that he had not shared any information that would have affected his ability to represent a criminal defendant with other attorneys in his office who represented the victims in other matters, the defendant could show neither an actual conflict nor any adverse effect on counsel’s representation of him). The trial court did not clearly err when it denied Davis’s motion for new trial on this ground.

8. Davis also argues that because the dates charged in the indictment for aggravated sexual battery span from December 2004 through December 2006, he should have been sentenced under the rule of lenity to the 10- to 20-year period provided by the version of OCGA § 16-6-22.2 (c) in effect before July 1, 2006, rather than the 25-year-to-life period provided by the same statute as effective July 1, 2006. We agree.

This record contains some evidence that Davis inserted his finger into the victim’s vagina on two occasions: while carrying her in 2006, when she was nine years old, which includes not only the six-month period from January 2006 to July 1, 2006, but also the five-month period from July 1, 2006, to the victim’s tenth birthday in December 2006; and while checking her for ticks in January 2010.

The single aggravated sexual battery count before us “covers any offense of the nature charged within the period of limitation, including the dates alleged,” such that “the State is not confined to proof of a single transaction, but may prove or attempt to prove any number of transactions of the nature charged within the period.” (Citation and punctuation omitted; emphasis supplied.) Bowman v. State, 184 Ga. App. 197 (2) (361 SE2d 58) (1987).

Where, as here, the State alleges a certain range of dates in an indictment and does not specifically allege that those dates are material, the State is not restricted at trial to proving that the crimes occurred within that range of dates. State v. Layman, 279 Ga. 340, 341 (613 SE2d 639) (2005). “And, if there is a variation between the date alleged and the date proved at trial, the variance does not entitle a defendant to a new trial unless it prejudiced the defense.” State v. Layman, supra.

Adams v. State, 288 Ga. 695, 698-699 (2) (707 SE2d 359) (2011).

Our analysis does not end here, however, as we must also consider the rule of lenity in light of the 2006 change to the sentence imposed under OCGA § 16-6-22.2 (c) and the verdict as rendered.

“The rule of lenity applies where two or more statutes prohibit the same conduct while differing only ‘with respect to their prescribed punishments.’ Dixon v. State, 278 Ga. 4, 7 (1) (d) (596 SE2d 147) (2004). According to the rule, ‘[w]here any uncertainty develops as to which penal clause is applicable, the accused is entitled to have the lesser of the two penalties administered.’ Brown v. State, 276 Ga. 606, 608-609 (2) (581 SE2d 35) (2003).”

Daniels v. State, 320 Ga. App. 340, 344 (3) (739 SE2d 773) (2013), quoting White v. State, 319 Ga. App. 530, 532 (2) (737 SE2d 324) (2013).

Here, we cannot determine from the general verdict form the date of the act upon which the jury pronounced guilt — that is, whether it found Davis guilty of an act committed before July 1,2006, or guilty of an act committed after that date. Thus, under the rule of lenity, Davis “cannot be given the higher sentence” imposed for the offense of aggravated sexual battery by the version of OCGA § 16-6-22.2 (c) applicable after July 1, 2006. Daniels, supra at 344 (3). We therefore vacate Davis’s sentence and remand this case for resentencing under the version of OCGA § 16-6-22.2 (c) in effect between 2004 and July 1, 2006. Id. at 344-345 (4) (vacating and remanding for resentencing where the dates alleged in separate charges of molestation occurring both before and after July 1, 2006, were not material elements of the charges, thus “blurring the distinction between the counts alleging crimes before July 1, 2006, and those alleging crimes on or after that date”).

Decided July 16, 2013

Brian Steel, for appellant.

L. Craig Fraser, District Attorney, Robert B. Faircloth, Assistant District Attorney, for appellee.

Judgment vacated and case remanded for resentencing.

Phipps, C. J., and Miller, J., concur in Divisions 1, 2, 5, and 8, and in the judgment.

       Although Davis asks us to reject the Supreme Court’s decision in Reid and to find reversible error without a showing of prejudice, we have no authority to do so.

       For the 2006 revisions of the statute, see Ga. L. 2006, p. 379, § 16.


author: DOYLE, Presiding Judge. BOGGS, Judge,

text:
    A13A0740.
    THOMPSON v. LaFARGE BUILDING MATERIALS, INC.
    (746 SE2d 908)
   DOYLE, Presiding Judge.

LaFarge Building Materials, Inc., filed a complaint on an account and personal guaranty, and for foreclosure of liens against Elite Dwellings, LLC, Larry Thompson, and Greer Chapel Development, Inc., alleging that the defendants were liable in the amount of $59,916.88. After the parties filed cross-motions for summary judgment, the trial court determined that Thompson had personally guaranteed the line of credit and was therefore liable for the debt. Thompson now appeals, arguing that the personal guaranty did not satisfy the Statute of Frauds, so the trial court erred by granting LaFarge’s motion for summary judgment. For the reasons that follow, we reverse.

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

So viewed, the record shows that in 2007, Elite Dwellings, of which Thompson was president and owner, applied for a line of credit with LaFarge in order to purchase building supplies for various construction jobs. The form used by LaFarge is titled “Application for Credit,” which is followed by spaces in which an entity identified on the form as “company/individual,” in this case Elite, checked the appropriate box regarding whether it is a corporation, partnership, sole proprietorship, or individual status and then provided areas for a name and address. Here, the box for corporation was checked, and Elite Dwellings, LLC, was identified on the blank line next to “Name of Company/individual.” The form showed that the “Description of Business” was residential construction and stated the “year business began” as 2007. Underneath the business description line, the application stated, “Mr. Thompson has been in business 35+ years.” The first page of the application also asked for the company’s owner’s names and identifying information, requested references, and sought information on whether the credit would be extended for building residential or commercial property.

Page 2 of the application stated:

This application and the information contained herein is a request for the extension of credit. The Applicant authorizes La [F] arge to obtain a written or oral credit report from any credit reporting agency. The Applicant further authorizes any bank or commercial business with whom the Applicant is doing or has done any type of business to give any and all necessary information to La [F] arge [,] which will assist in the credit investigation. The Applicant further authorizes La [F] arge to reinvestigate the Applicant’s credit status from time to time as La [F] arge deems necessary. La [F] arge reserves the right to limit or terminate any extension of credit to Applicant.

It further stated:

The undersigned does hereby certify that he/she is authorized to sign this Application on behalf of the Applicant; that the information contained herein is true; that the Applicant will advise La[F]arge in writing at the address shown above if there are any changes which occur in respect to any of the information, and until such advice is given, La[F]arge may continue to rely on the information; that Applicant will promptly pay when due and all indebtedness that Applicant may now or hereafter owe to La[F]arge, with all cost of collection including 15 percent of the principal and interest as attorney’s fees if collected by law or through an attorney at law; that Applicant shall pay to La[F]arge a charge of $25.00 or 5% of the amount of any non sufficient fund check given for payment toward any indebtedness, whichever is greater, for each such non sufficient fund check. The Applicant acknowledges that in the routine course of business La[F]arge may elect to file materialmen’s liens to enforce its collection rights. Applicant agrees that all costs of filing, including attorney’s fees incurred, shall be a part of the indebtedness applicant may now or hereafter owe to La[F] arge.

Beneath this provision, the document was signed by Arlene D’Aquillo, who listed as her title, “Office Manager.”

Below this portion of the application, a section entitled “Continuing Guaranty” was set off within a box, and this section contained Thompson’s signature over a line stating “Signature of Individual Guarantor.” The “Continuing Guaranty” portion of the application stated:

In consideration of the credit extended to the Applicant identified on page 1 of this Application for Credit, the entirety of said applications being incorporated herein by reference thereto, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned guarantor (jointly and severally if more than one), unconditionally guaranty the payment when due of all indebtedness now due or which may become due by Applicant to LAFARGE, together with all costs of collection including 15% of all indebtedness or attorney’s fees if collected by or through an attorney at law.

After Elite failed to pay its account totaling $53,142.77, LaFarge brought suit against Elite, Thompson, and Greer Chapel Development, LLC. The defendants answered, and the parties filed cross-motions for summary judgment; LaFarge contended, inter alia, that Thompson’s signature in the “Continuing Guaranty” portion of the application for credit constituted a personal guaranty on his part for Elite’s account debts owed to LaFarge, and it contended that the document satisfied the Statute of Frauds. The trial court agreed with LaFarge, and it granted summary judgment in LaFarge’s favor, entering judgment in the amount of $105,147. This appeal followed.

In a single enumeration of error, Thompson contends that the trial court erred by granting summary judgment in favor of LaFarge because the “Continuing Guaranty” did not satisfy the Statute of Frauds.

As the Supreme Court explained, under the Statute of Frauds and cases applying the Statute, a promise to answer for another’s debt is only enforceable against the promisor if it identifies the debt, the principal debtor, the promisor, and the promisee. It is well settled that a guaranty must identify the principal debtor by name. [If] a guaranty omits the name of the principal debtor, of the promisee, or of the promisor, the guaranty is unenforceable as a matter of law. Even where the intent of the parties is manifestly obvious, where any of these names is omitted from the document, the agreement is not enforceable because it fails to satisfy the Statute of Frauds. Moreover, a court must strictly construe an alleged guaranty contract in favor of the guarantor. The guarantor’s liability may not be extended by implication or interpretation. And parol evidence is not admissible to supply any missing essential elements of a contract required to be in writing by our Statute of Frauds. Thus, this Court is not authorized to determine the identity of the principal debtor, of the promisee, or of the promisor by inference as this would entail consideration of impermissible parol evidence.

Thompson relies on LaFarge Bldg. Materials v. Pratt in which this Court reversed a grant of summary judgment to LaFarge in a similar circumstance. There, this Court explained that Lowell Pratt could not be held personally liable for the debts of the debtor corporation because “the Guaranty [did] not incorporate the terms of the [credit] Application by reference. [And], while the Guaranty refer [red] to the principal debtor as the ‘Applicant,’ that term [was] not defined in the Application, nor [did] the Application identify any entity as the ‘Applicant.’ ”

LaFarge contends that the continuing guaranty in Pratt is materially different from the continuing guaranty on the Elite Application because Elite’s application contains the following operative language that did not appear in the Pratt application: “In consideration of the credit extended to the Applicant identified on page 1 of this Application for Credit, the entirety of said application being incorporated herein by reference thereto....” Thus, LaFarge argues, the application was incorporated into the personal guaranty in a manner that the application was not incorporated in Pratt, and therefore, we should affirm the trial court in this instance because no ambiguity exists as to the identity of the principal debtor. We disagree.

Although it is true that the “Continuing Guaranty” section incorporates the rest of the “Application for Credit,” this is simply insufficient because the application itself fails to define “Applicant.” While this is an overly technical result, we are constrained by this Court’s holding in Pratt, in which this Court reviewed the identical application and found it insufficient. Furthermore, “[n]o ‘entity’ is identified as the ‘Applicant’ ” in the signature line. Accordingly, because the guaranty omits the name of the principal debtor, and because we cannot infer the identity of the applicant even though the intent of the parties appears manifestly obvious, the Statute of Frauds was not satisfied, and the trial court erred by granting summary judgment in favor of LaFarge.

Judgment reversed.

Phipps, C. J., Ellington, P. J., and McFadden, J., concur. Barnes, P. J., concurs in judgment only. Boggs and Branch, JJ., dissent.

BOGGS, Judge,

dissenting.

Because I believe the guaranty here adequately identifies Elite as the “Applicanf’/principal debtor, I respectfully dissent. While the term “Applicant” is not defined in the guaranty and application, “[t]his Court has long recognized that dictionaries may supply the plain and ordinary meaning of a word.” (Citation and punctuation omitted.) Capital Color Printing v. Ahern, 291 Ga. App. 101, 107 (1) (661 SE2d 578) (2008). Webster’s Unabridged Dictionary (2nd edition 1983) defines “applicant” as “one who applies or makes application.” I would hold that the principal debtor is sufficiently identified when a guaranty that is part of an “Application for Credit,” and incorporates that application by reference, refers to the principal debtor as “Applicant” and the first line following the date and amount on the application lists the “Name of Company/Individual.” Elite, the name handwritten on the line next to this heading, is unquestionably the party applying for credit and therefore the “Applicant.”

Even if such a holding could be construed to extend the guarantor’s obligation by interpretation, I would conclude in the alternative that the guaranty did not run afoul of the Statute of Frauds. I agree with the majority that under the Statute of Frauds, an agreement is not enforceable where it “omits the name of the principal debtor, of the promisee, or of the promisor.” (Citations, punctuation and footnote omitted; emphasis supplied.) Legacy Communities Group v. Branch Banking & Trust Co., 316 Ga. App. 496, 498 (729 SE2d 612) (2012).

But as explained in Ahern, supra, “while the Statute of Frauds prohibits using parol evidence to supply completely missing terms, it does not prohibit using parol evidence to explain ambiguities in descriptions.” (Citations and punctuation omitted; emphasis supplied.) Id. at 105 (1). This is not a case in which the name of the principal debtor is entirely omitted from the guaranty, as in Legacy Communities Group, supra, 316 Ga. App. at 498. Rather, it involves an ambiguity in the guaranty and application in the description of the “Applicant.” See Ahern, supra, 291 Ga. App. at 104-105 (1). Certainly in an application for credit, the party applying for credit will be named therein. Therefore, the question is which name or names listed on the application are the “Applicant.” See id. at 105-106 (1).

Decided July 16, 2013

To resolve any ambiguity as to the entity applying for credit, we may look to parol evidence. Thomas averred that “Elite Dwellings, LLC entered into an application for credit with La[F]arge North America.” This testimony was sufficient to resolve any ambiguity created by the absence of a line titled “Applicant” on the application for credit. See Ahern, supra. For this reason, under the circumstances of this particular case, I would hold that the guaranty sufficiently identifies the principal debtor as Elite and satisfies the Statute of Frauds.

The cases cited by the majority are distinguishable. LaFarge Bldg. Materials v. Pratt, 307 Ga. App. 767 (706 SE2d 131) (2011), is not controlling, because in that case, this court only held that the guaranty violated the Statute of Frauds because it did not incorporate the application by reference. Id. at 771 (1). Therefore, the opinion’s discussion concerning the failure of the application to identify an entity as “Applicant” is nonbinding dicta. Moreover, it did not discuss ways in which that failure might be cured or explained. McDonald v. Ferguson Enterprises, 274 Ga. App. 526 (618 SE2d 45) (2005), also does not demand a different result. In McDonald, the guaranty provided that the creditor was extending credit to the “entity applying for credit above (‘Applicant’).” Id. at 526 (1). We held that there was no entity identified in the application as “Applicant” or “entity.” Id. But there is no indication that Dunn Plumbing, the alleged principal debtor, was listed anywhere on the application at issue, which was not incorporated by reference. See id. at 527 (1), n. 2. We therefore held that the guaranty failed to identify the principal debtor and was unenforceable. Id. at 527 (1).

I agree with the majority that the better practice is to simply name the principal debtor instead of using a description or title. But under the particular circumstances of this case, I would hold that the guaranty satisfies the Statute of Frauds.

I am authorized to state that Judge Branch joins in this dissent.

Dupree & Kimbrough, Hylton B. Dupree, Jr., Blake R. Carl, for appellant.

Evans, Scholz, Williams & Warncke, John A. Williams, Cohen, Cooper, Estep & Allen, Scott A. Schweber, for appellee.

        Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

       Under the title “Application for Credit,” there is a handwritten notation: “(See Lawrence Yancey).” The record does not identify Yancey, nor does it indicate how he relates to the transaction.

       To the extent that Thompson contended below that he signed the continuing guaranty only in his capacity as president of Elite, he has failed to raise the issue on appeal and has therefore abandoned it.

       (Citations and punctuation omitted.) Legacy Communities Group v. Branch Banking & Trust Co., 316 Ga. App. 496, 498 (729 SE2d 612) (2012), quoting Dabbs v. Key Equip. Finance, 303 Ga. App. 570, 572-573 (694 SE2d 161) (2010). See siso Builder’s Supply Corp. v. Taylor, 164 Ga. App. 127, 127-128 (296 SE2d 417) (1982) (Because “a contract of guaranty... [is] required to [be] entirely in writing under the Statute of Frauds[,]” a contract of guaranty that omits the name of the principal debtor “has no validity[,]” and parol evidence is not admissible to prove the identity of the principal debtor, even if the guaranty is manifestly intended to indemnify the promisee from loss and is otherwise complete and unambiguous and where the putative guarantor admits executing the document.) (citations omitted; emphasis supplied).

       307 Ga. App. 767 (706 SE2d 131) (2011).

       (Citations omitted.) Id. at 770 (1).

       See Capital Color Printing v. Ahearn, 291 Ga. App. 101, 106 (1) (661 SE2d 578) (2008) (“Ambiguity exists where the words used in the contract leave the intent of the parties in question. . . . Conversely, no ambiguity exists where, examining the contract as a whole and affording the words used therein their plain and ordinary meaning, the contract is capable of only one reasonable interpretation.”) (citation omitted).

       See McDonald v. Ferguson Enterprises, 274 Ga. App. 526 (1) (618 SE2d 45) (2005) (reversing grant of summary judgment in favor of creditor against personal guarantor because “no entity is identified elsewhere in the application as the ‘Applicant’ or the ‘entity’ ” as the principal debtor to whom the guarantor was agreeing to assume liability). See also Pratt, 307 Ga. App. at 770 (1).

       307 Ga. App. at 770 (1) (“Moreover, while the Guaranty refers to the principal debtor as the ‘Applicant,’that term is not defined in the Application, nor does the Application identify any entity as the ‘Applicant.’ ”) (citing McDonald, 274 Ga. App. at 527 (1)).

        McDonald, 274 Ga. App. at 527, n. 3 (holding that signature of owner/officer of debtor corporation was not sufficient to identify debtor corporation as the principal debtor in order to satisfy the Statute of Frauds for purposes of enforcing a personal guaranty). In Pratt, the manager provided his printed name and title, but failed to actually sign the application. As in this case, no entity was identified in the signature lines as the “Applicant.” See 307 Ga. App. at 767-768, 770 (1).

       We note that credit lenders can easily avoid this outcome by not only incorporating all of the terms of the application into the guaranty, but by simply including the name of the principal debtor in the guaranty itself instead of using generic terms such as “applicant” and labeling the name of the principal debtor in the application itself.