author: Branch, Judge.

text:
    A12A1188.
    THOMAS v. THE STATE.
    (734 SE2d 823)
   Branch, Judge.

Following a jury trial, Larry Eldon Thomas was convicted of two counts of child molestation (OCGA § 16-6-4) and one count of enticing a child for indecent purposes (OCGA § 16-6-5). He now appeals from the denial of his motion for new trial, asserting that current Georgia law regarding the admission of evidence of prior difficulties between a defendant and a victim violates a defendant’s constitutional rights to a fair trial and due process. Thomas also claims that, even if Georgia law regarding the admission of prior difficulties is valid, the trial court nevertheless erred in admitting that evidence. He further contends that the court below erred by allowing testimony that improperly bolstered the victim’s credibility and improperly commented on the ultimate issue of his guilt. Finally, Thomas asserts that he received ineffective assistance of counsel. Finding no error, we affirm.

Viewed in the light most favorable to the verdict, the record shows that at the time of the two incidents in question Thomas was living with the victim’s older sister, in the same family home where the eleven-year-old female victim resided. The victim testified that on one occasion, while Thomas and she were playing on separate computers in the same room, Thomas came and stood beside her and, while holding his penis in his hand, rubbed it on her arm. On another occasion, the victim’s sister told her that Thomas wanted the victim to go to the basement of the home, because he had something he wanted to show her on the computer. When the victim arrived in the basement, Thomas told her to close her eyes; when Thomas instructed her to open her eyes, the victim saw Thomas standing with his penis exposed and the computer displaying pornographic images. Thomas then tried to get the victim to touch his penis, but she instead screamed for her sister and attempted to flee the room. According to the victim, Thomas grabbed her wrist and shut the door to the room, in an effort to prevent her from leaving.

With regard to prior difficulties, the State presented evidence of four prior occasions on which Thomas acted in a sexually inappropriate way toward the victim. On one occasion, Thomas engaged in a pillow fight with the victim and her young stepsisters. Thomas was standing in a bathroom and the girls threw pillows from the adjoining bedroom at each other and at Thomas, and during this incident Thomas exposed his penis to the victim. Additionally, the victim explained that every time Thomas threw a pillow back, it had a small wet spot on it. During another incident, the victim and her stepsisters were playing on a trailer bed in the yard, using it as a kind of see-saw. Every time the victim went down on the see-saw, she would come close to Thomas, who would fondle her buttocks. The remaining two incidents each involved Thomas exposing his penis to the victim.

1. Thomas argues that the court below erred in admitting evidence of these four incidents because Georgia law allowing the introduction of prior difficulties to show a defendant’s bent of mind or course of conduct violates the defendant’s constitutional rights to a fair trial and due process. Given the constitutional nature of these claims, Thomas appealed to the Supreme Court of Georgia. Finding that Thomas had failed to make his constitutional argument to the trial court, our Supreme Court declined to consider this claim and transferred the case to this Court. See City of Decatur v. DeKalb County, 284 Ga. 434, 435-436 (1) (668 SE2d 247) (2008). Like our Supreme Court, “[t]his court will not consider arguments neither raised nor ruled on in the trial court and that are asserted for the first time on appeal.” (Citations omitted.) Chiaka v. Rawles, 240 Ga. App. 792, 796 (4) (525 SE2d 162) (1999). Accordingly, we decline to address Thomas’s first enumeration of error.

2. Thomas asserts that the court below violated his constitutional rights to due process and a fair trial when, before admitting the evidence of prior difficulties between the victim and Thomas, it failed to conduct an explicit balancing test to determine whether the probative value of this evidence outweighed the prejudice it would cause Thomas. This Court has previously held, however, that “there is no requirement that the trial judge conduct an ‘explicit’ balancing test in order to conclude that the probative value of the evidence outweighs its prejudicial effect.” (Footnote omitted.) Futch v. State, 316 Ga. App. 376, 382 (2) (730 SE2d 14) (2012). Moreover, requiring trial courts to engage in an explicit balancing test before allowing the admission of prior difficulties would be superfluous. By finding that evidence is admissible as a prior difficulty, the trial judge is necessarily finding that

the State seeks to introduce the evidence for an appropriate purpose as it tends to prove the defendant’s motive or intent, or the state of the relationship between the victim and the defendant; there is sufficient evidence that the defendant and the victim were the parties involved in the prior difficulty; and there is a sufficient connection between the prior difficulty and the crime charged.

Wall v. State, 269 Ga. 506, 509 (2) (500 SE2d 904) (1998). Inherent in the finding that evidence of prior difficulties is admissible, therefore, is the conclusion that the probative value of that evidence outweighs its prejudicial impact. Farley v. State, 265 Ga. 622, 625 (2) (458 SE2d 643) (1995). And “evidence that is otherwise relevant or material to the issues in a criminal case does not become inadmissible simply because it concerns separate offenses, or because it incidentally puts a criminal defendant’s character or reputation in evidence.” (Citation, punctuation and footnote omitted.) Attaway v. State, 259 Ga. App. 822, 829 (7) (578 SE2d 529) (2003).

3. Thomas contends that it was error for the trial court to admit evidence of the incident in which Thomas fondled the victim’s buttocks and the incident involving the pillow fight. Specifically Thomas argues that these incidents were not sufficiently similar to the indicted incidents to qualify as prior difficulties. This argument misapprehends the law regarding evidence of prior difficulties.

Unlike similar transactions, prior difficulties do not implicate independent acts or occurrences, but are connected acts or occurrences arising from the relationship between the same people involved in the prosecution and are related and connected by such a nexus. Thus, the admissibility of evidence of prior difficulties does not depend upon a showing of similarity to the crime for which the accused is being tried.

(Citation and punctuation omitted; emphasis supplied.) Stokes v. State, 289 Ga. 702, 705 (3) (715 SE2d 81) (2011). Instead, evidence demonstrating prior difficulties between the victim and the accused is “generally admissible when the crime was perpetrated against the victim and the evidence demonstrates: (1) the relationship between the defendant and victim, and (2) the defendant’s motive, intent or bent of mind.” (Footnote omitted.) Tuff, 278 Ga. at 92 (2). Accordingly, the evidence regarding both incidents was admissible, as it showed both Thomas’s “bent of mind towards and course of conduct with” the victim. Stokes, supra.

Thomas also contends that evidence concerning the pillow fight should have been excluded because it was “extremely prejudicial.” Specifically, Thomas argues that the victim’s testimony that the pillows he threw at the girls had small wet spots on them implied that he was in the bathroom masturbating during the pillow fight. This argument, however, ignores the evidence showing that, just as in the indicted incidents, Thomas exposed his penis to the victim during the pillow fight. The mere fact that some additional aspects of this incident might also reflect negatively on Thomas’s character did not render evidence of that incident inadmissible. Bagwell v. State, 270 Ga. 175, 178 (1) (c) (508 SE2d 385) (1998).

4. Thomas claims the court below erred in admitting certain testimony of both the victim’s mother and the forensic interviewer and in allowing certain questions by the State during direct examination of the victim. We find no merit in these assertions.

(a) The defense theory presented at trial was that the victim, who had been very close to her older sister throughout her life, was jealous of Thomas because of her sister’s relationship with him. Thus, the defense posited that the victim had fabricated the claims of molestation to separate the sister from Thomas. In an attempt to counter this defense theory, the State presented testimony that the victim’s allegations had in fact estranged her sister from the family. And when the prosecutor asked the victim’s mother why she had not spoken to the victim’s sister in several years, the mother responded: “In my opinion, [my daughter] made her choice . . . [s]he married [Thomas] several days after all this happened, and ... I can’t condone her marrying somebody that would do this to her sister. That’s just wrong.” At trial, defense counsel did not object to this testimony, but Thomas now contends that this testimony should have been excluded because it impermissibly bolstered the victim’s credibility andimproperly commented on the ultimate issue of Thomas’s guilt. While Thomas acknowledges that his failure to make a contemporaneous objection would normally preclude appellate review of this claim of error, see Thomas v. State, 256 Ga. App. 712, 714 (2) (569 SE2d 620) (2002), he asserts that the admission of the mother’s testimony was so egregious as to constitute plain error. We disagree.

Under the plain error rule, we will consider issues not properly raised and ruled upon in the trial court where the alleged error is so clearly erroneous as to result in a likelihood of a grave miscarriage of justice or seriously affects the fairness, integrity or public reputation of a judicial proceeding.

(Citation, punctuation, footnotes and emphasis omitted.) Horne v. State, 262 Ga. App. 604, 606 (1) (586 SE2d 13) (2003). This Court has previously held, however, that the admission of evidence which serves only to bolster another witness’s credibility “is not the kind of error that seriously affects the fairness, integrity, or public reputation of a judicial proceeding.” (Footnote omitted). Id. Further, “no grave miscarriage of justice is likely to result if we allow [Thomas’s] procedural default to stand.” Id. Reviewed in the context of all the evidence presented, we find it unlikely that this single statement by the mother affected the outcome of trial; we must conclude, therefore, that no plain error occurred. Al-Attawy v. State, 289 Ga.App. 570, 573 (1) (657 SE2d 552) (2008) (reviewing bolstering testimony in the context of all the evidence to determine whether it affected the outcome of the trial); Horne, 262 Ga. App. at 606 (1) (where the bolstering testimony is not the only evidence linking the defendant to the crime, “it is highly probable” that the admission of such evidence “did not contribute to the jury’s verdict”) (footnote omitted); Gosnell v. State, 247 Ga. App. 508, 510-511 (2) (c) (544 SE2d 477) (2001).

Nor do we find that this testimony improperly commented on the ultimate issue of Thomas’s guilt. To support his claim, Thomas relies on Patterson v. State, 278 Ga. App. 168 (628 SE2d 618) (2006); this reliance is misplaced. Patterson stands for the well-established rule that an expert may not offer an opinion on anultimate issue of fact — including the issue of the defendant’s guilt — where the jury is capable of making that determination without expert assistance. Id. at 170-171. Here, the mother testified not as an expert, but as a presumptively-biased parent. Her testimony merely showed that she believed her child, and it did not impermissibly intrude upon the jury’s fact-finding function.

(b) The State presented the testimony of the licensed clinical social worker who conducted the forensic interview of the victim and whom the State qualified as an expert on forensic interviewing. On cross-examination, defense counsel asked this witness why a child would ever make a false allegation of child molestation, and she responded that there may be instances where a child had been coached by an adult to say certain things. On redirect, the State asked if the victim showed any signs of coaching or if the interviewer believed that the interview had been successful in determining what actually happened. The witness indicated she did not feel the victim had been coached, explaining that the details provided by the victim were not “what you would commonly think a kid could make up.” The witness further explained that in determining whether a child was giving an accurate account of an incident, “you’re looking for details. You’re looking for consistency. You’re looking for does it make sense. You’re looking for if you ask it differently [,] do they kind of go there.” The witness then concluded that, during the interview, the victim “was able to do that. She didn’t get lost when you asked another question. She determined the answer or clarified what she needed to know to determine the answer.”

Although Thomas did not object to this testimony at trial, he argues that it should have been excluded because it impermissibly bolstered the victim’s credibility by implying that she was telling the truth about Thomas’s alleged molestation of her. We find no error, plain or otherwise, in the admission of this testimony.

An expert witness may not bolster the testimony of a victim by opining “as to whether the complaining witness is telling the truth, because that is an ultimate issue of fact and the inference to be drawn is not beyond the ken of the average juror.” (Punctuation and footnote omitted.) Al-Attawy, 289 Ga.App. at 572 (1). An expert, however, may give “opinion testimony that bolsters the credibility of the indicted allegations of sexual abuse, e.g., . . . ‘the victim’s psychological evaluation was consistent with sexual abuse.’ ” (Punctuation omitted.) Odom v. State, 243 Ga.App. 227 (1) (531 SE2d 207) (2000). See also Brown v. State, 293 Ga. App. 633, 636 (1) (c) (667 SE2d 899). (2008) (physician with expertise in treating rape victims may testify as to her objective observations of the victim, including “whether [the] victim’s demeanor or behavior is consistent with that of a sexual assault victim, generally”). Such testimony is admissible because of its relevance and probative value.

Establishing the credibility of the indicted acts of sexual abuse is what the State’s case is all about and is the purpose for such expert testimony in the first place; the fact that such testimony may also indirectly, though necessarily, involve the child’s credibility does not make it inadmissible.

(Punctuation and footnote omitted.) Odom, 243 Ga. App. at 227-228 (1).

In this case, the expert testified as to her observations of the victim and to her conclusion, based on those observations, that the victim’s description of the molestation did not appear to be coached. There was no error in admitting this testimony because, although it supported the child’s claims, it did not “directly address the credibility of the victim or express a direct opinion that the victim was sexually abused.” (Citations and punctuation omitted.) Id. at 229 (1) (a). See also Anthony v. State, 282 Ga. App. 457, 459 (2) (638 SE2d 877) (2006) (officers trained to look for “certain behaviors in people who might be making false statements” may testify as to whether a victim exhibited any of those behaviors without impermissibly bolstering the victim’s credibility) (punctuation omitted).

(c) Thomas contends that the State’s direct examination of the victim improperly bolstered the victim’s own testimony. Again, Thomas failed to object to this testimony and therefore waived review of its admission. And again, we find no plain error. During her testimony regarding the prior difficulties between Thomas and herself, the victim explained that, prior to conduct for which Thomas was indicted, she told her family of the other occasions on which he had exposed himself to her. She recanted her statements, however, because her father “looked mad at me” and her sister “was pretty much freaking out, like she was crying, she was shaking.” Following this testimony, the prosecutor asked the victim if “the things that you told this jury about what [Thomas] did to you at your dad’s did that really happen?” The victim responded affirmatively and the prosecutor then asked “[d] o you understand that what you told your dad... wasn’t true when you told him you lied?” The victim again responded affirmatively.

After the victim testified as to the charged offenses of molestation, the prosecutor asked “with regard to this last time that you decided to tell, have you ever gone back on that and said that you lied?” The victim stated that she had never recanted her allegations that led to Thomas’s indictment, and the prosecutor then asked her “the stuff that you’re telling the jury about what [Thomas] did to you, is it true or made up?” The victim responded that she was telling the truth.

It is true that one witness “can never bolster the credibility of another witness as to whether the witness is telling the truth.” (Citation and punctuation omitted.) Handley, 289 Ga. at 787-788 (2) (a). We know of no legal reason, however, why a witness should “be prohibited on direct examination from asserting his own credibility by testifying that he is telling the truth and giving some explanation.” (Citations omitted.) Id. at 788 (2) (a). Allowing a witness to explain prior recantations and to assert that she is now being truthful still leaves the issue of credibility up to the jury, which is free to believe or disbelieve all or part of the victim’s testimony, including her assertion as to her truthfulness. Here, the victim testified at trial and was subject to cross-examination by the defendant, “thereby giving the jury the opportunity to judge her demeanor and credibility during that examination.” (Citation, punctuation and footnote omitted.) Lynn v. State, 300 Ga. App. 170, 173 (2) (684 SE2d 325) (2009). It remained solely for the jury, therefore, viewing that testimony in light of the other evidence, to assess the victim’s credibility and determine whether her testimony—including her assertion that she was telling the truth—was, in fact, truthful. Louisyr v. State, 307 Ga. App. 724, 730 (1) (706 SE2d 114) (2011). “Under these circumstances, we find that the challenged testimony did not usurp the authority of the jury on the issue of [the victim’s] credibility,” Al-Attawy, 289 Ga. App. at 574 (1) (footnote omitted), nor did it usurp the jury’s authority to decide the ultimate issue of Thomas’s guilt. Accordingly, we find no plain error regarding the State’s questions to the victim on direct examination.

5. Thomas asserts that he received ineffective assistance of counsel, based on his lawyer’s failure to object to: (a) the testimony of the mother and the expert witness that he alleges improperly bolstered the credibility of the victim; (b) the testimony of the mother that he contends went to the ultimate issue of his guilt; (c) the questions posed by the State during its direct examination of the victim that Thomas claims improperly bolstered the victim’s credibility and addressed the ultimate issue of guilt; (d) the testimony of the victim and her mother that Thomas had exposed himself to the victim on multiple occasions; and (e) the introduction of any evidence of prior difficulties. We find no merit in these claims.

The standard by which we assess a claim of ineffective assistance of counsel is well settled:

To prevail on his claim of ineffective assistance of counsel, [a defendant] must prove both that the performance of his lawyer at trial was deficient and that he was prejudiced by this deficient performance. To prove that the performance of his lawyer was deficient, [a defendant] must show that his lawyer performed his duties at trial in an objectively unreasonable way, considering all the circumstances and in the light of prevailing professional norms. And to prove that he was prejudiced by the performance of his lawyer, [a defendant] must show a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. This burden, although not impossible to carry, is á heavy one.

(Citations and punctuation omitted.) Shields v. State, 307 Ga. App. 830 (706 SE2d 187) (2011). If an appellant fails to meet either prong of the test for ineffective assistance of counsel, it is not incumbent upon this Court to examine the other prong. Battles v. State, 290 Ga. 226, 229 (2) (719 SE2d 423) (2011).

(a) Thomas cannot show that ineffective assistance resulted from trial counsel’s failure to object to the allegedly bolstering testimony of the mother or the State’s expert.

(i) Assuming that Thomas could show that his lawyer was deficient for failing to object to. the allegedly bolstering testimony of the victim’s mother, he cannot show that this deficiency prejudiced him. As explained in Division 4 (a), we find it unlikely that this testimony affected the outcome of trial. Accordingly, the admission of this statement cannot satisfy the prejudice prong of an ineffective assistance claim. See Schofield v. Holsey, 281 Ga. 809, 811-812 (II) (642 SE2d 56) (2007).

(ii) As discussed in Division 4 (b), the testimony of the forensic interviewer did not serve to impermissibly bolster the victim’s testimony. Rather, it was based on the interviewer’s observations of the victim and her expert opinion that the victim’s interview responses did not indicate that she had been coached by an adult. Accordingly, the evidence was relevant and admissible, and the failure of Thomas’s lawyer to object to its admission did not constitute deficient performance. Greene v. State, 295 Ga.App. 803, 811 (8) (b) (673 SE2d 292) (2009).

(b) As also demonstrated in Division 4 (a), the mother’s testimony was not objectionable as improperly commenting on the ultimate issue of Thomas’s guilt, as that testimony did not intrude into the jury’s fact-finding function. Thomas, therefore, cannot show that his lawyer’s conduct in this instance constituted deficient performance. See Williams v. State, 290 Ga. App. 841, 845 (4) (b) (660 SE2d 740) (2008) (“Trial counsel cannot be deemed ineffective for failure to make a futile or meritless objection.”).

(c) Trial counsel also acted properly when he did not object to the State’s direct examination of the victim because, as demonstrated in Division 4 (c), there was nothing objectionable about that line of questioning. Moreover, trial counsel explained at the hearing on Thomas’s motion for a new trial that his decision not to object to that testimony was strategic and based on his understanding of the law. Specifically, the lawyer explained that he did not think he had grounds for a legal objection because “there is a lot more leeway given to direct examination of child witnesses than an adult witness.” See Roberts v. State, 232 Ga. App. 745, 747 (4) (503 SE2d 614) (1998) (in child molestation case, trial court did not abuse its discretion in permitting the prosecution to ask repetitive and leading questions to the victim). He also noted that it is accepted practice to question a child witness as to whether they know the difference between the truth and a lie and whether she understands she must tell the truth on the stand. See Sprayberry v. State, 174 Ga. App. 574, 575-576 (1) (330 SE2d 731) (1985); OCGA § 24-9-7. Additionally, the lawyer felt he might alienate the jury if he objected to the prosecutor’s questions with the child on the stand. Given that the lawyer’s reasons for not objecting to these questions were based on an accurate understanding of the law and that the decision was also strategic in nature, this conduct cannot serve as the basis of an ineffective assistance claim. Farris v. State, 293 Ga.App. 674, 677-678 (2) (667 SE2d 676) (2008) (finding that defense counsel who applied a valid trial strategy was not ineffective for making a tactical decision not to object to certain testimony).

(d) Thomas claims his counsel wrongly failed to object to testimony by the victim and her mother to the effect that Thomas had exposed himself to the victim many times. During her testimony, when asked how many times Thomas had exposed himself to her, the victim responded “[pjrobably so many times that I can’t remember all of them.” Similarly, the victim’s mother explained, at the beginning of her testimony, that she asked her older daughter and Thomas to move out of the family home because Thomas “continued” exposing himself to the victim. When asked if the victim had reported to her mother the act of molestation that occurred in the computer room, the mother stated, “I don’t remember. I mean there were so many different times, I don’t remember.” And when recalling the act of molestation that occurred in the basement, the mother testified that the victim came up the stairs shouting, “he did it again, he did it again.”

At the motion for new trial hearing, Thomas’s attorney testified that he did not object to the testimony of the victim and her mother that referred to Thomas exposing himself to the victim on multiple occasions because that testimony was supported by the evidence. The State had presented evidence of four instances of prior difficulties and the two incidents for which Thomas was indicted. The lawyer interpreted the testimony of the victim and her mother as referring to those six instances and, therefore, did not believe he had a basis for an objection. Under the circumstances, we cannot say the lawyer’s conclusion was so objectively unreasonable as to amount to deficient performance. See Farris, 293 Ga.App. at 677 (2) (where trial counsel’s failure to object was based on a reasonable belief that he had no basis for an objection, his performance was not deficient).

(e) Thomas also asserts that his lawyer should have either filed a motion in limine seeking to exclude the four instances of prior difficulties, or he should have objected at trial to the admission of that evidence. For the reasons discussed in Division 3, each of these incidents was admissible as a prior difficulty between Thomas and the victim, to show Thomas’s bent of mind toward and course of conduct with the victim. Accordingly, a motion to exclude this evidence would have been futile, and any objection to its introduction would have been meritless. Failure either to pursue a futile motion or to make a meritless objection cannot constitute deficient performance. Smith v. State, 302 Ga. App. 128, 135 (2) (b) (690 SE2d 449) (2010); Ferguson v. State, 307 Ga. App. 232, 237 (2) (704 SE2d 470) (2010).

Decided November 28, 2012.

Stearns-Montgomery & Proctor, Lance D. Dutton, for appellant.

T. Joseph Campbell, District Attorney, Jana W. Allen, Assistant District Attorney, for appellee.

Finally, Thomas argues that his lawyer’s failure to object to the prior difficulties evidence, either at trial or by way of a motion in limine, together with his failure to object to the testimony referencing the multiple times he exposed himself to the victim, had a cumulative, prejudicial effect on his defense. See Waits v. State, 282 Ga. 1, 6 (4) (644 SE2d 127) (2007) (under Georgia law, “each individual error by defense counsel should not be considered in a vacuum ... it is the cumulative prejudice of counsel’s errors which is constitutionally relevant”) (citation omitted). Thomas’s cumulative prejudice argument fails because, as explained above, none of the errors on which he bases this claim satisfy the first prong of an ineffectiveness claim — i.e., none of the alleged errors constitutes deficient performance. Id. at 6 (4) (where none of the errors alleged by the defendant show deficient performance by trial counsel, there are no errors to be considered in a cumulative-prejudice analysis).

For the reasons set forth above, we affirm the order of the court below denying Thomas’s motion for a new trial.

Judgment affirmed.

Miller, P. J., and Ray, J., concur.

       The jury also acquitted Thomas of one count of false imprisonment.

       Evidence of prior difficulties between a defendant and a victim is generally admissible when the crime charged was perpetrated against the victim and the evidence demonstrates: (1) the relationship between the defendant and victim, and (2) the defendant’s motive, intent or bent of mind. As with any evidence, evidence of prior difficulties may not be unduly prejudicial, remote or confusing to the jury.
      (Footnote omitted.) Tuff v. State, 278 Ga. 91, 92 (2) (597 SE2d 328) (2004).

        Drammeh v. State, 285 Ga. App. 545, 546 (1) (646 SE2d 742) (2007).

       Thomas had dated the sister for a period of time before he moved in with the family, and he is now married to the sister.

       While the victim did not testify at trial that Thomas exposed his penis during the pillow-fighting incident, she did state, during her recorded forensic interview, that Thomas exposed himself during that incident, and the recording of this interview was playedfor the jury. Additionally, Thomas’s wife, who is also the victim’s sister, testified at trial and confirmed that the victim had previously stated that Thomas exposed his penis to her during the pillow fight.

       “Improper bolstering refers to character evidence intended to show a witness’ veracity, that is, his tendency to tell the truth.” (Citation and punctuation omitted.) Greene v. State, 295 Ga. App. 803, 811 (8) (b) (673 SE2d 292) (2009). Thus, improper bolstering occurs where one witness offers testimony indicating that another witness offered truthful testimony. Handley v. State, 289 Ga. 786, 787-788 (2) (a) (716 SE2d 176) (2011).


source: Caselaw Access Project

author: MILLER, Presiding Judge.

license: Public Domain

text:
    A12A1234.
    LOVELL v. GEORGIA TRUST BANK.
    (734 SE2d 847)
   MILLER, Presiding Judge.

Georgia Trust Bank sued Virgil E. Lovell to recover the principal and interest due on a promissory note (the “Note”), along with contractual and statutory attorney fees and expenses. Georgia Trust filed a motion for summary judgment. Lovell responded, contending that Georgia Trust failed to work with him on the loan pursuant to the parties’ oral agreement. Lovell also filed a motion to compel the production of documents in support of his affirmative defenses of estoppel and waiver. The trial court held a hearing on Lovell’s motion to compel and on Georgia Trust’s motion for summary judgment. The trial court denied the motion to compel and granted Georgia Trust’s motion for summary judgment.

Lovell appeals from that order, contending that (1) the trial court erred in denying the Motion to Compel, and finding that the parol evidence rule barred admission of documents sought under that motion; (2) the trial court erred in granting Georgia Trust’s motion for summary judgment, and in finding that Georgia Trust’s oral promise to work with Lovell was inconsistent with the written terms of the Note; and (3) the trial court erred in finding that Lovell did not establish an affirmative defense. Finding no error, we affirm.

“On review of a grant of summary judgment, we apply a de novo standard of review and view the evidence in the light most favorable to the nonmovant. If there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law, summary judgment is proper.” (Footnotes omitted.) Georgia Real Estate Properties v. Lindwall, 303 Ga. App. 12 (692 SE2d 690) (2010).

So viewed, the evidence shows that on January 30, 2007, Lovell executed a promissory note payable to Georgia Trust in the principal amount of $1,000,000. The parties renewed the Note on February 1, 2008, and again on February 9, 2009, both in the principal amount of $1,000,000. The parties then executed a third and final renewal on March 9, 2010, in the principal amount of $996,706.93. Prior to executing the final renewal of the Note, then President and CEO of Georgia Trust, J. Michael Allen, had a series of phone conversations with Lovell, concerning Lovell’s loan with Georgia Trust. Allen discussed with Lovell that Georgia Trust wanted a principal reduction on the loan, considering the value of the secured real estate, and Allen asked Lovell to pay down the loan balance. Allen told Lovell that Georgia Trust would “make every effort, within reasonable business expectations, to work out an amicable resolution.” Allen also informed Lovell that Georgia Trust would retain its contractual rights in the event that Lovell could not cure a default.

At the time of the Note renewal, Lovell paid the past due interest. He made no further payments on the Note. Lovell’s representative contacted Georgia Trust to ask if it would accept a deed in lieu of foreclosure on the secured property. Georgia Trust declined to accept the deed in lieu. On June 28,2010, Georgia Trust sent Lovell a Notice of Default, demanding immediate payment in full of the entire outstanding balance due on the Note, along with accrued and unpaid interest and other fees. When Lovell failed to pay the amounts due, Georgia Trust filed suit against him for breach of the contract, unjust enrichment, attorney fees, costs and expenses.

During discovery in this case, Lovell sought production of non-privileged documents relating to Georgia Trust’s underwriting and approval process of the loan and renewals, internal communications regarding the loan, documents relating to Georgia Trust’s willingness or unwillingness to modify the terms of the loan, and documents reflecting any actions Georgia Trust took to mitigate its damages. Georgia Trust objected to these document requests on the basis that the documents sought were not relevant and not reasonably calculated to lead to the discovery of admissible evidence. After good faith efforts to resolve the dispute in accordance with Uniform Superior Court Rule 6.4, Lovell moved to compel production of these documents pursuant to OCGA § 9-11-37 (a). The trial court denied Lovell’s motion to compel, finding that the documents he requested were irrelevant, outside the scope of discovery and barred from admission by the parol evidence rule. The trial court also granted summary judgment to Georgia Trust, finding that Georgia Trust established a prima facie case for enforcement of the Note, there were no genuine issues of material fact, and Lovell failed to establish an affirmative defense.

1. Lovell challenges the trial court’s denial of his motion to compel, contending that the documents he sought relating to the oral promise are not barred from admission by the parol evidence rule because Georgia Trust’s oral promise to work with him in the event of a default was not inconsistent with the terms of the Note. We disagree.

“[A]s a general rule, we review the denial of a motion to compel discovery only for an abuse of discretion.” (Citation omitted.) Martin v. Hamilton State Bank, 314 Ga.App. 334, 337 (723 SE2d 726) (2012); see also Hickey v. Kostas Chiropractic Clinics, 259 Ga.App. 222, 223 (3) (576 SE2d 614) (2003) (the standard of review on rulings involving discovery disputes is abuse of discretion).

Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action. ... It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

(Punctuation omitted.) OCGA § 9-11-26 (b) (1). In this case, as more fully set forth in Division 2, the documents sought are inadmissible under the parol evidence rule because Georgia Trust’s oral promise to work with Lovell in the event of a default was inconsistent with the written terms of the Note. Therefore, the information sought was not reasonably calculated to lead to the discovery of admissible evidence, the documents would add nothing of substance to Lovell’s claim, and the trial court did not abuse its discretion in denying Lovell’s motion to compel. See Latimore v. Vatacs Group, Inc., 317 Ga.App. 98, 102 (3) (729 SE2d 525) (2012) (disputed discovery items would not add to appellant’s claim and would not create a genuine issue of material fact); see also Martin, supra, 314 Ga. App. at 337 (trial court did not abuse its discretion in denying motion to compel discovery of evidence showing bank’s motivation in declaring default and ultimately refusing to restructure debt).

2. Lovell challenges the trial court’s order granting summary judgment, contending that Georgia Trust failed to honor its oral promise to work with him in the event of default. Lovell further alleged that the trial court erred in finding that Georgia Trust’s promise was inconsistent with the written terms of the Note. We disagree.

A promissory note is an unconditional contract whereby the maker engages that he will pay the instrument according to its tenor.... It is well established that a promissory note may not be modified by the imposition of conditions not apparent on its face----The note being an unconditional promise, the contract is complete as written[.] [P] arol evidence may not be used to impose conditions which are not apparent from the face of the note. An oral agreement between the parties, made contemporaneously with the execution of the note or prior thereto relating to a condition not expressed in the note is incompetent to change the contract as represented on the face of the note.

(Citations and punctuation omitted.) Devin Lamplighter, Ltd. v. American Gen. Finance, 206 Ga. App. 747, 749 (2) (426 SE2d 645) (1992).

A plaintiff seeking to enforce a promissory note establishes a prima facie case by producing the note and showing that it was executed. Once that prima facie case has been made, the plaintiff is entitled to judgment as a matter of law unless the defendant can establish a defense.

(Footnote omitted) Core Lavista, LLC v. Cumming, 308 Ga.App. 791, 795 (1) (b) (709 SE2d 336) (2011). Georgia Trust produced the Note, and its representative submitted an affidavit, which laid the proper foundation for admission of the loan documents as business records. The evidence established that Lovell signed the Note and was responsible for the principal and interest due thereon. By signing the Note, Lovell unconditionally contracted with Georgia Trust to pay the Note according to its terms. Therefore, Georgia Trust established a prima facie case for enforcement of the Note and is entitled to judgment as a matter of law, unless Lovell established a defense to liability on the Note. Id.

Although Lovell sought to introduce evidence showing that Georgia Trust’s agreement to work with him constituted a condition precedent to filing suit, Lovell cannot modify the Note by imposing conditions not apparent on its face. “Parol evidence is inadmissible to add to, take from, or vary a written contract.” OCGA § 13-2-2 (1). “In the absence of fraud, accident or mistake an unconditional promissory note cannot be changed into a conditional obligation by parol evidence.” (Citation and punctuation omitted) Bentley v. Nat. Bank of Walton County, 175 Ga. App. 732, 733 (1) (334 SE2d 331) (1985). “Where the terms of the contract are clear and unambiguous, the court will look to the contract alone to find the intention of the parties.” (Citation, punctuation and footnote omitted) Core Lavista, supra, 308 Ga. App. at 794 (1).

Lovell did not allege that the Note was ambiguous, did not allege fraud, accident or mistake, did not come forward with evidence in the record showing that Georgia Trust intended to depart from or disregard the terms of the Note, and did not contend that Georgia Trust’s promise deprived it of any remedy under the Note. Instead, Lovell contended that the Note was silent regarding the requirement to mediate as a condition precedent to filing suit.

Notwithstanding the fact that the Note did not contain a merger clause, the Note is clearly an integrated document with no evidence on its face to suggest otherwise. The Note unambiguously expressed the remedies that immediately became available to Georgia Trust when Lovell defaulted on the Note. Nothing in the express remedy provisions required Georgia Trust to “work with” or engage in prelitigation negotiations as a condition to filing and pursuing a collection lawsuit. Lovell’s reliance upon parol evidence to impose such non-existent conditions is unavailing. See Trendmark Homes, Inc. v. Bank of North Georgia, 314 Ga.App. 886, 888 (726 SE2d 138) (2012) (debtor did not allege any ambiguity in loan documents or modification in writing, and negotiations regarding lowered payoff amount, which were not reduced to writing, did not alter the written promissory notes or their enforceability); see also Coleman v. Arrington Auto Sales & Rentals, 294 Ga. App. 247, 249 (2) (669 SE2d 414) (2008) (testimony intended to contradict or vary the clear and unambiguous terms of the promissory note and installment contracts was inadmissible under the parol evidence rule).

Furthermore, the Note’s Applicable Law provision provides that “[n]o modification of this agreement may be made without [Georgia Trust’s] express written consent.” The Note’s Payments provision expressly states that any contrary agreements regarding payments must be in writing. The Note’s Default provision states that Lovell will be in default if any of the enumerated circumstances occur, including failure to make a payment on time or in the amount due. The Note’s Remedies provision expressly states that, in the event of default, Georgia Trust may demand immediate payment of all monies due under the Note. Lovell defaulted on the Note when he failed to make the first payment due thereunder, and Georgia Trust exercised its right under the Remedies provision to demand immediate payment when it sent Lovell the Default Notice.

Consequently, the trial court correctly found that Georgia Trust’s oral agreement to work with Lovell was inconsistent with the express and unambiguous terms of the Note, which required any modifications to be in writing and did not impose any conditions precedent to filing suit. The trial court also correctly found that evidence of the inconsistent oral agreement was inadmissible and incompetent to change the contract as represented on the face of the Note. See Bentley, supra, 175 Ga.App. at 733 (1) (testimony regarding contemporaneous oral agreement not to enforce notes according to their terms was not admissible); see also Beacon Engineering Co. v. Reese, 186 Ga. App. 64-65 (1) (366 SE2d 694) (1988) (trial court did not err in refusing to admit evidence that purchase agreement between parties contained implied condition).

3. Lovell also contends that the trial court erred in finding that he did not establish an affirmative defense to enforcement of the Note. We disagree.

Lovell claimed that the doctrines of waiver and estoppel barred Georgia Trust’s claims for relief. When Lovell executed the final renewal of the Note in March 2010, he contends that he relied on Georgia Trust’s promise to work with him if he became unable to make the scheduled payments, and that Georgia Trust’s promise manifested its intent to forgo litigation until it participated in good faith negotiations with Lovell.

The doctrine of promissory estoppel provides that

[a] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. Promissory estoppel does not, however, apply to vague or indefinite promises, or promises of uncertain duration.

Decided November 28, 2012.

Bloom, Sugarman & Everett, Simon H. Bloom, Sherri G. Buda, for appellant.

Taylor, English & Duma, Paul G. Durdaller, Amy K. Woo Weber, for appellee.

(Citations and punctuation omitted.) Georgia Investments Intl. v. Branch Banking and Trust Co., 305 Ga.App. 673, 675 (1) (700 SE2d 662) (2010). In establishing his affirmative defenses, Lovell was not entitled to rest on allegations in his pleadings, but was required to point to specific facts in the record. See Secured Realty & Investments v. Bank of North Georgia, 314 Ga. App. 628, 629 (1) (725 SE2d 336) (2012). Lovell has failed to point to specific facts setting out the terms and conditions of Georgia Trust’s alleged promise to work with him, thus, his claim is too vague and indefinite to sustain a promissoryestoppel claim. See id. at 630 (1) (a); see also Griffin v. State Bank of Cochran, 312 Ga. App. 87, 96 (2) (a) (718 SE2d 35) (2011) (bank’s purported promise to renew a promissory note was too vague and indefinite to support promissory estoppel claim). Furthermore, Lovell knew that Georgia Trust retained its contractual rights in the event of default, and, as explained above in Division 2, the Note’s unambiguous and express terms do not require any condition precedent to filing suit. Accordingly, Lovell has failed to raise a genuine issue of fact with regard to his defenses of estoppel and waiver, and Georgia Bank was entitled to judgment as a matter of law.

Judgment affirmed.

Ray and Branch, JJ., concur.


text:
    A12A1500.
    BOYD et al. v. JOHNGALT HOLDINGS, LLC et al.
    (736 SE2d 459)
   Branch, Judge.

Nathaniel and Lucy Boyd appeal the simultaneous dismissal of two earlier attempts to appeal rulings of the trial court. The chief issue before us is whether the trial court erred when it denied them pauper status with regard to their first appeal. We hold that the court’s ruling on that issue was erroneous as a matter of law and that the effect of the error controls resolution of the remaining issues on appeal.

The facts relevant to our decision are undisputed. In October 2005, the Boyds brought suit for trespass and ejectment against JohnGalt Holdings, LLC, alleging JohnGalt acquired commercial property the Boyds owned in Atlanta as a result of a tax sale that was “null, void and of no force or effect.” In 2007, the Boyds amended their complaint to add claims of tortious interference with property rights, breach of contract, and rescission. JohnGalt answered and filed counterclaims, including a claim for quiet title, which prompted the court to appoint a special master to hear the case. In July 2009, the special master issued findings; on July 30, 2009, the trial court entered a “Non-Final Judgment and Order” in which it approved and adopted those findings and decreed that title to the subject property was vested in JohnGalt. The court also assessed special master fees, 75% ($14,025) to JohnGalt and 25% ($4,675) to the Boyds.

On September 18,2009, the Boyds timely filed a notice of appeal to the Supreme Court of the July 30 order and all prior rulings in the case and asked the clerk to omit nothing from the record. On September 29,2009, the Boyds received a bill of costs from the clerk in the amount of $4,414. Sixteen days later, andpursuantto OCGA § 9-15-2 (a) (1), the Boyds each filed affidavits of indigence stating, “I wish to appeal from an adverse decision in this matter, but because of my poverty I am unable to pay costs or post any bond.” JohnGalt did not traverse the affidavit. More than three months later, on January 29, 2010, the trial court, acting sua sponte and without notice or a hearing, issued an order denying pauper status to the Boyds.

The Boyds filed an emergency motion for a hearing to reconsider the issue of indigence, as well as a request for additional time to appeal the ruling. They attached a new affidavit containing detailed factual support for the assertion of indigence. JohnGalt did not traverse this affidavit either. On March 1, 2010, and again without a hearing, the trial court refused to reconsider the issue of indigence. That same day, the Boyds filed a notice of appeal regarding the January 29, 2010 order.

Almost seven months elapsed before the clerk sent a bill for costs related to the Boyds’ second appeal. In the meantime, the Supreme Court announced that, effective June 2, 2010, it had “adopted a change in its rules to ensure that those seeking to appeal a lower court’s ruling will be able to afford to do so.” The rule allows the parties themselves to submit a record appendix in lieu of the court clerk transmitting the record. See Rules of the Supreme Court of Georgia, Rule 67 (2), (4). The Boyds received the bill of costs on September 28, 2010, for $4,489, essentially the same amount as the earlier bill. The Boyds then took steps to prepare a record appendix, including communicating with JohnGalt. They also filed an amended notice of appeal, dated October 29, 2010, indicating they would be operating under the new rule. JohnGalt then moved to dismiss the Boyds’ appeals for failure to pay costs and argued that the Boyds had not complied fully with Rule 67. The Boyds eventually delivered the record appendix to the Supreme Court. Nevertheless, the trial court clerk refused to submit a revised statement of costs or take other steps to certify the Boyds’ appeal so that it could be docketed in the Supreme Court.

The trial court then conducted a hearing on JohnGalt’s motion to dismiss (but not on the pauper issue), following which it dismissed both of the Boyds’ attempts to appeal — from the order adopting the decision of the special master and all prior orders, and from the denial of indigent status. The Boyds appealed for the third time. The Supreme Court transferred the case to this Court on the ground that it did not have jurisdiction because the Boyds had not appealed the merits of the quiet title action but only the dismissal of their two previous attempts to appeal.

1. “The dismissal of an appeal by the trial court is subject to direct appeal.” Castleberry’s Food Co. v. Smith, 205 Ga. App. 859, 860 (424 SE2d 33) (1992). And although the order dismissing these appeals concerns, in part, a trial court’s determination regarding the validity of a pauper’s affidavit, which is normally not subject to review, see Hawkins v. State, 222 Ga.App. 461, 462 (1) (474 SE2d 666) (1996) (the determination by a trial court of whether a criminal defendant is indigent is not subject to appellate review); Barham v. Levy, 228 Ga.App. 594, 596 (4) (492 SE2d 325) (1997) (same in civil case), this appeal concerns the procedure used by the trial court when making an indigence ruling, which is appealable. Hawkins, 222 Ga.App. at 462 (1); see also Barham, 228 Ga. App. at 596 (4).

2. The Boyds contend the trial court erred by denying their initial attempt to secure indigent status because JohnGalt did not traverse their affidavits, the court did not hold a hearing on the matter, and, as a consequence, the court had no evidence upon which to base a denial of indigent status. Whether the trial court followed the correct procedure when it denied the Boyds indigent status is a question of law for this Court. See Hawkins, 222 Ga.App. at 462 (1); Barham, 228 Ga. App. at 596 (4).

Georgia law provides that a party unable to pay costs may present an affidavit to that effect and, as a result, “the party shall be relieved from paying the costs and his rights shall be the same as if he had paid the costs.” OCGA § 9-15-2 (a) (l). Similarly, OCGA § 5-6-47 (a) provides that such an affidavit “shall act as supersedeas.” The language of these two Code sections makes the filing of an affidavit of indigence a substitute for the payment of costs and operative as a supersedeas, such that, if not challenged, the indigent party may proceed without paying costs.

OCGA § 9-15-2 provides two avenues of attack on such an affidavit. First, the opposing party may contest the affidavit by a sworn statement to the effect that the applicant’s affidavit is not true. OCGA § 9-15-2 (a) (2). If such a traverse is filed, the Code section provides that “[t]he issue thereby formed shall be heard and determined by the court, under the rules of the court.” Id. The Supreme Court of Georgia has interpreted this language to mean that a hearing is required before the pauper’s affidavit can be rejected if a traverse has been filed. Taylor v. Public Convalescent Svc., 245 Ga. 805, 806 (2) (267 SE2d 242) (1980) (based on the identical words in prior version of OCGA § 9-15-2 (a) (2)). See also Clay v. State, 122 Ga. App. 677, 679 (4) (178 SE2d 331) (1970) (under prior version of OCGA § 9-15-2, court erred in requiring defendant, who had filed pauper’s affidavit, to pay costs without a hearing thereon “simply because he was out on bond”).

Second, even in the absence of a traverse, the court itself may “inquire into the truth of the affidavit.” OCGA § 9-15-2 (b). Here, the trial court inquired into the validity of the two pauper’s affidavits, but it did not hold a hearing. In its order denying the Boyds indigent status, the court characterized those affidavits as a request to proceed without paying costs, and it analyzed the request as follows:

In this case, the entirety of the proof of the Plaintiffs’ poverty comes from their assertion that they are poor. The Plaintiffs have not supported this assertion by setting out a comparison of their income vis-a-vis their expenses, or in any other matter. The Court therefore has no means by which to judge the Plaintiffs’ ability to pay these costs. And it is the Court’s duty to make this determination, not the parties’.

The court then denied the Boyds indigent status.

To determine whether a hearing was required in the absence of a traverse, we look first to the statute. The rules of construction require us to consider the statute as a whole and look for the intent of the legislature. OCGA § 1-3-1 (a). “When a statute contains clear and unambiguous language, such language will be given its plain meaning and will be applied accordingly.” (Citations omitted.) Opensided MRI of Atlanta v. Chandler, 287 Ga. 406, 407 (696 SE2d 640) (2010). We also must “avoid a construction that makes some language mere surplusage.” (Citations omitted.) Slakman v. Continental Cas. Co., 277 Ga. 189, 191 (587 SE2d 24) (2003); Porter v. Food Giant, 198 Ga. App. 736, 738 (1) (402 SE2d 766) (1991).

OCGA § 9-15-2 (b) sets out a procedure for contesting the truth of a pauper’s affidavit in the absence of a traverse that specifically includes a hearing:

In the absence of a traverse affidavit contesting the truth of an affidavit of indigence, the court may inquire into the truth of the affidavit of indigence. After a hearing, the court may order the costs to be paid if it finds that the deposit, fee, or other costs can be paid and, if the costs are not paid within the time permitted in such order, may deny the relief sought.

(Emphasis supplied.) Id. Thus, the plain language of the statute requires a hearing before a court may order costs to be paid. Nevertheless, two cases from this Court come to opposite conclusions on the question of whether a hearing is required under these circumstances. See Walker v. Crane, 216 Ga.App. 765, 767 (2) (455 SE2d 855) (1995) (“any inquiry on the court’s part in the absence of a traverse affidavit should have taken place during a separate hearing on the matter”). Compare Sweet v. State, 191 Ga. App. 516, 520 (11) (382 SE2d 376) (1989) (court inquiring into truth of indigent affidavit not required to hold hearing). The flaw can be found in Sweet, wherein the Court added its own parenthetical construction to the statute to delete the requirement of a hearing, as can be seen in the emphasized words:

Appellant contends he was entitled to a hearing on the matter by OCGA § 9-15-2 (b). This section, however, does not mandate a hearing upon the mere filing of a petition in forma pauperis. It provides that the court “may” inquire into the truth of the affidavit of indigency, and “after a hearing” (if it holds a hearing) may award costs.

(Emphasis supplied.) Sweet, 191 Ga. App. at 520 (11). But there is nothing in the statute that allows a court inquiring on its own into the truth of a pauper’s affidavit to order the payment of court costs without a hearing. For the above reasons, Sweet v. State is overruled.

The case of Barham v. Levy, 228 Ga.App. 594, upon which both sides rely, need not be overruled, but its citation to Morris v. Dept. of Transp. for the proposition that “a hearing is not required” is dicta. In Barham, after the plaintiff filed an affidavit of indigence, the opposing party did not traverse the affidavit, but the court nonetheless denied the plaintiff indigent status. Id. at 596-597 (4). This Court found there was no evidence in the record to support the trial court’s order denying the plaintiff indigent status and therefore concluded, “the denial of indigent status must be made upon matters in the record.” Id. at 597 (4). Thus, the statement regarding Morris, a case involving a traverse by the opposite party, was not necessary for the Court’s decision. And Barham is consistent with our holding today in that, when the court is making its own inquiry, absent the required hearing there is no evidence in the record upon which to base a denial of indigent status.

Decided November 28, 2012.

Francis X. Moore, for appellants.

Here, without a traverse or a hearing, the Boyds’ affidavits stand unrebutted in the record, and the Boyds should have been relieved from paying costs without any adverse impact on their rights to pursue a legal remedy. Although the trial court attempted to inquire into the validity of the affidavit, it failed to hold the required hearing. All of the subsequent events were the result of this error. The court dismissed the Boyds’ second appeal on the ground that there was an unreasonable delay of over one year in the transmission of the record following the second notice of appeal and that the delay was inexcusable and caused by the Boyds’ failure to pay costs of preparing the record. See OCGA § 5-6-48 (c). Based on the record currently before the trial court, however, the Boyds were entitled to proceed without paying costs, they were incapable of doing so, and it would have been futile to file another affidavit of indigence. Thus the trial court erred by dismissing the Boyds’ second appeal as well. Accordingly, the trial court’s order is reversed, and the case remanded for an evidentiary hearing on the question of indigence before further proceedings on the merits. See Mapp v. We Care Transp. Svcs., 314 Ga. App. 391, 393-394 (1) (724 SE2d 790) (2012) (remanding case for trial court determination of the truth of affidavits of indigence where court wrongly dismissed appeal of appellants who had filed the affidavits); Walker, 216 Ga. App. at 767 (2) (remanding case for a hearing on the validity of the affidavit of indigence). The Boyds’ contention that the trial court’s orders violated their constitutional rights need not be reached.

Judgment reversed and case remanded.

Ellington, C. J., Barnes, P. J., Miller, P. J., Phipps, P. J., Doyle, P. J., Andrews, Adams, Dillard, McFadden, Boggs and Ray, JJ., concur.

Schreeder, Wheeler & Flint, David H. Flint, J. Carole Thompson Fiord, for appellees.

       The special master only addressed JohnGalt’s counterclaims for quiet title as to right of redemption and prescriptive rights. The trial court entitled the order “Non-Final,” and the order is limited to approval and adoption of the special master’s report. The parties’ other claims, therefore, remain pending.

       Due to problems with service of the special master’s report, the trial court vacated the July 30, 2009 order and reentered it on August 19, 2009.

       The Boyds appealed to the Supreme Court under that court’s jurisdiction of cases involving title to land based on the special master’s adjudication of JohnGalt’s counterclaim to quiet title.

       The Court Services Director of the Fulton County Superior Court Clerk’s Office later testified that filing such an affidavit triggers no action by the clerk; she testified that unless there is a court order the appeal stops and, “We don’t do anything. The cost hill has not been paid, there’s nothing we can do.”

       The new bill reflects a different amount due, in part because of a change in the number of pages to be processed.

       The complete subsection (a) (1) provides as follows:
      When any party, plaintiff or defendant, in any action or proceeding held in any court in this state is unable to pay any deposit, fee, or other cost which is normally required in the court, if the party shall subscribe an affidavit to the effect that because of his indigence he is unahle to pay the costs, the party shall be relieved from paying the costs and his rights shall be the same as if he had paid the costs.

       Compare Uniform Superior Court Rule 29.2, which, in criminal cases, requires “an application for appointment of counsel and certificate of financial resources, made under oath and signed by the accused” when accused persons contend they are financially unable to employ a defense attorney.

       OCGA § 9-15-2 (a) (2) provides:
      Any other party at interest or his agent or attorney may contest the truth of an affidavit of indigence by verifying affirmatively under oath that the same is untrue. The issue thereby formed shall be heard and determined by the court, under the rules of the court. The judgment of the court on all issues of fact concerning the ability of a party to pay costs or give bond shall be final.

       Prior to the addition of the court’s own authority to inquire into the validity of the indigent affidavit in the absence of a traverse, Code Ann. § 24-3413 read as follows:
      When any party, plaintiff or defendant, in any suit at law or proceedings ... shall be unable to pay any deposit, fee or other cost which may normally be required in such court, if such party shall subscribe an affidavit to the effect that from poverty he is unable to pay these costs, such party shall be relieved from paying such costs and his rights shall be the same as if he had paid such costs. Any other party at interest, or his agent or attorney, may contest the truth of such pauper’s affidavit by verifying affirmatively under oath that the same is untrue. The issue thereby formed shall be heard and determined by the court under the rules of the court. The judgment of the court on all issues of fact concerning the ability of a party to pay costs or give bond shall be final.
      (Punctuation omitted; emphasis supplied.) Heath v. McGuire, 167 Ga. App. 489, 492 (4) (306 SE2d 741) (1983); Ga. L. 1955, p. 584, §§ 1, 2. See also Ga. L. 1982, p. 933, § 1.

       But see Morris v. Dept. of Transp., 209 Ga. App. 40 (432 SE2d 638) (1993) (where the pauper’s affidavit has been traversed, OCGA § 9-15-2 (a) (2)’s requirement that the issue formed “shall be heard and determined by the court,” does not require an evidentiary hearing). Because the present case does not involve a traverse, we need not address the apparent inconsistency between Morris and Taylor.

       Furthermore, Morris, a case involving a traverse, cited Sweet, a case where the court determined the matter on its own, for the proposition that a hearing was not required.


text:
    A12A1511.
    CLARK v. THE STATE.
    (734 SE2d 839)
   Branch, Judge.

On appeal from his conviction after a bench trial for driving under the influence (DUI), Justin Clark argues that the trial court erred when it denied his motion to suppress the results of a blood test administered after Clark was pulled over during a roadblock that he claims was illegal. Clark also asserts that the evidence establishing venue in Polk County was insufficient. We find no error and affirm.

“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.” (Citation omitted.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979). “In reviewing a trial court’s ruling on a motion to suppress, we accept the court’s findings of fact unless they are clearly erroneous, and we construe the evidence most favorably to uphold the court’s ruling.” (Footnote omitted.) Harwood v. State, 262 Ga. App. 818, 819 (1) (586 SE2d 722) (2003).

So viewed, the record shows that on the morning of May 30,2010, over Memorial Day weekend, a sergeant with the Georgia State Patrol verbally authorized a roadblock near the intersection of State Route 101 and State Route 6 in Polk County. The sergeant in charge testified that he implemented the roadblock for the purpose of checking driver’s licenses, insurance, and driver sobriety. Although he was not present at the event itself, the sergeant testified that the troopers under his command frequently performed road checks and that they “kn[e]w what to do ... as far as knowing how to check license, insurance verification, [and] sobriety.” The troopers executing the roadblock had undergone training and had extensive experience in field sobriety and were authorized to involve local officers in their efforts.

The roadblock began shortly after 8:00 a.m. Both troopers testified that the purpose of the roadblock was to check for traffic and equipment violations as well as DUI. Two Polk County officers also participated. The officers had two marked Georgia State Patrol cars and two marked Polk County cars on each side of the three-lane road so that oncoming motorists would be alerted to the existence of the roadblock. Two uniformed officers stood in the middle lane of the three-lane road facing north and two of the same faced south. Although a report filed sometime that day indicated that the officers’ blue lights had been activated, in fact, they had not been. The sergeant testified that such lights were not necessary at a daytime roadblock. The officers did not set out any cones or wear reflective vests.

When Clark stopped at the roadblock at approximately 11:00 a.m. and produced his license, the trooper taking the license smelled alcohol coming from the car. After Clark pulled the car over to the side of the road and stepped out, a second trooper also smelled alcohol on him. Clark admitted to consuming alcohol earlier that morning, and an alco-sensor breath test was positive. Clark, who was under 21 years old at the time, was arrested for DUI. A blood test showed that Clark’s blood-alcohol level was 0.074.

The trial court denied Clark’s motion to suppress the results of his breath and blood tests on the ground that the daylight roadblock was “well-identified as a police checkpoint for the stated and authorized purposes” of driver’s license, insurance, and registration verification, seatbelt and safety compliance, and driver impairment. After a bench trial, the court found Clark guilty of less-safe DUI and sentenced him to twelve months with one day to serve.

1. Clark argues that the roadblock was illegal under the United States Supreme Court’s holding in City of Indianapolis v. Edmond, 531 U. S. 32, 37-38 (II) (121 SC 447, 148 LE2d 333) (2000), that checkpoint stops aimed only at detecting evidence of ordinary criminal wrongdoing violate the Fourth Amendment. Specifically, Clark asserts that the purpose of the roadblock was not sufficiently clear to the field officers conducting it and that the roadblock would not have been identifiable as such to motorists. We disagree.

The Supreme Court of Georgia has set out the factors to be considered in evaluating whether a roadblock is legal as follows:

A roadblock is satisfactory where the decision to implement the roadblock was made by supervisory personnel rather than the officers in the field; all vehicles are stopped as opposed to random vehicle stops; the delay to motorists is minimal; the roadblock operation is well identified as a police checkpoint; and the screening officer’s training and experience are sufficient to qualify him to make an initial determination as to which motorists should be given field tests for intoxication.

(Punctuation omitted.) LaFontaine v. State, 269 Ga. 251, 253 (3) (497 SE2d 367) (1998), citing State v. Golden, 171 Ga. App. 27, 29-30 (2) (318 SE2d 693) (1984).

[F]or a roadblock to pass constitutional muster, the supervisory officers must have a valid primary purpose for the roadblock other than merely seeking to uncover evidence of ordinary criminal wrongdoing. Thus, the State has the burden of proving that the roadblock had a legitimate primary purpose.

(Citation, punctuation and footnote omitted.) Kellogg v. State, 288 Ga. App. 265, 267 (1) (a) (653 SE2d 841) (2007).

(a) In arguing that the roadblock at issue had no legitimate primary purpose, Clark makes much of the fact that one of the two troopers involved testified on cross-examination that the officers were looking not only for traffic, equipment and DUI violations but “[p]retty much any... violation of state law.” According to Clark, this testimony shows that the checkpoint was undertaken only to uncover ordinary criminal wrongdoing and was thus illegal under Edmond. But this record, including the sergeant’s testimony and the report completed on the day of the checkpoint, shows that it was undertaken for proper purposes including not only DUI detection but also traffic and equipment violations, each of which “has been held to be a legitimate primary purpose.” (Citations and footnotes omitted.) Id. at 267 (1) (a); Buell v. State, 254 Ga.App. 456, 457 (562 SE2d 526) (2002) (checks for driver’s license, proof of insurance, impaired drivers, seat belts, child restraints, defective equipment, and expired tags did not render the roadblock’s purposes overbroad).

Even assuming that the enforcing troopers misunderstood the nature of the stop, moreover, “the law only requires that some admissible evidence, whether testimonial or written, show that supervisory officers decided to implement the roadblock, decided when and where to implement it, and had a legitimate primary purpose for it.” (Citations and punctuation omitted; emphasis in original.) Kellogg, supra at 268-269 (1) (b). Given the sergeant’s testimony that a primary purpose of the stop was DUI detection, we are in no position to contest the trial court’s factual conclusion that the roadblock was legitimate. Id. at 269 (1) (b) (affirming trial court’s conclusion that roadblock was constitutional where “some evidence” supported that conclusion); Wrigley v. State, 248 Ga.App. 387, 390 (2) (546 SE2d 794) (2001) (screening officer’s testimony that the “primary purpose” of the roadblock was checking for driver’s licenses and insurance cards, taken with presence of DUI countermeasures team, supported the conclusion that the roadblock was legitimate).

Decided November 28, 2012.

Gammon, Anderson & McFall, W. Wright Gammon, Jr., for appellant.

(b) Undisputed evidence also shows that the roadblock was performed in daylight with four uniformed officers stopping each car traveling in both directions. “We find no authority for the proposition that the Fourth Amendment requires that roadblocks be identified with orange cones and that officers working there wear reflective hats,” Harwood, supra at 821 (1) (b), and we have been shown no evidence that any driver, including Clark, misunderstood the nature of the stop. Under the circumstances of the daylight search at issue here, we are in no position to contest the trial court’s factual conclusion that the roadblock was sufficiently identifiable as a police checkpoint. Id.; Loney v. State, 245 Ga.App. 376, 377 (537 SE2d 780) (2000) (where area of roadblock was “well-illuminated” and officers were all in uniform, the evidence supported the conclusion that the roadblock was well-identified as a police checkpoint).

2. Clark also argues that the evidence was insufficient to show venue in Polk County. On the contrary, a trooper present at the scene and the sergeant in charge both testified that the roadblock was conducted on a road located in Polk County. This evidence was sufficient to sustain the trial court’s conclusion that Clark was guilty of less-safe DUI in that county. Burchette v. State, 283 Ga.App. 271, 272 (1) (641 SE2d 262) (2007) (evidence including that underaged defendant had odor of alcohol on his person and admitted that he had consumed an alcoholic beverage “was sufficient to establish venue for possession of an alcoholic beverage by an underaged person in the county in which the officer encountered the person”) (citations omitted); Hanson v. State, 275 Ga. 470, 471 (1), (2) (569 SE2d 513) (2002); OCGA § 40-6-391 (a) (1) (defining less-safe DUI); Jackson, supra.

Judgment affirmed.

Miller, P. J., and Ray, J., concur.

Robert E. Brooks, Jr., District Attorney, Ryan H. Remsen, Assistant District Attorney, for appellee.

       See OCGA § 40-6-391 (k) (1) (barring driving of “any moving vehicle” by a person under the age of 21 with a blood alcohol level of “0.02 grams or more at any time within three hours” after driving).

       See OCGA § 40-6-391 (a) (1) (defining less-safe DUI as driving a vehicle “[u]nder the influence of alcohol to the extent that it is less safe for the person to drive”).


text:
    A12A1643.
    ANDERSON v. TATTNALL COUNTY.
    (734 SE2d 843)
   MILLER, Presiding Judge.

Lois Anderson filed the instant personal injury lawsuit against Tattnall County to recover for injuries that she allegedly sustained when the county-operated ambulance was involved in a collision while transporting her to a local hospital. Tattnall County filed a motion for summary judgment, claiming that it was entitled to statutory immunity as an emergency care provider under OCGA § 31-11-8. The trial court granted Tattnall County’s motion, from which Anderson appeals. Anderson contends that her transport in the county’s ambulance did not involve emergency care, and thus, the trial court erred in applying statutory immunity in this case. We discern no error and affirm.

“On appeal from the grant of summary judgment, we view the record in the light most favorable to the nonmoving party, construing all evidence and inferences to be drawn therefrom in the light most favorable to the nonmoving party. We review issues of law de novo.” (Citations and punctuation omitted.) Crewey v. American Medical Response of Ga., 303 Ga. App. 258, 258-259 (692 SE2d 851) (2010).

So viewed, the evidence shows that on the evening of January 16, 2010, Anderson was traveling on a roadway in Tattnall County when her vehicle collided with a tree that had fallen across the road. After hitting the tree, Anderson lost control of her vehicle, and the vehicle descended into a ditch beneath the roadway.

Following the accident, Anderson called her son and a friend for assistance. When Anderson’s friend arrived at the scene, Anderson ran to the roadway to meet her. Anderson’s son and daughter-in-law also came to the scene. At that time, Anderson told them that she “was shook up” but was not physically injured. Anderson, however, complained that she had a headache and back pain, symptoms that arose after the accident while she was still at the scene.

A call to 911 was placed to report the accident. The Tattnall County emergency medical technicians (“EMTs”) received the 911 dispatch call and responded to the scene in an ambulance. When the EMTs arrived, Anderson was sitting inside her vehicle in the ditch. Anderson advised the EMTs that she was experiencing head and back pain. Although Anderson otherwise claimed to be “okay,” she testified that “everybody [wanted her] to go to the hospital and make sure that [she] [got] checked out.” Anderson agreed to be transported to the hospital by the ambulance.

The EMTs stated that Anderson’s complaints of head and back pain raised a possibility of spinal trauma, and therefore, they followed protocol by immobilizing her using head blocks, a cervical collar, and a spinal board to prevent the risk of movement that would aggravate the injury. After the EMTs extricated Anderson from her vehicle and strapped her onto the spinal board in accordance with the immobilization procedure, they carried Anderson from the ditch to the ambulance. The EMTs then moved Anderson onto a stretcher and placed her in the ambulance for transport to the hospital.

During the transport, it was raining and the streets were wet. The ambulance traveled at a speed of approximately 45 miles per hour. The ambulance driver testified that it was an emergency situation, but lights and sirens were not needed during the transport. The EMTs elected not to activate their sirens and strobe lights since using the strobe lights in rain conditions decreased the ambulance driver’s visibility. Anderson appeared to be stable, but continued to complain of head and back pain.

While en route to the hospital’s emergency room, the ambulance was involved in a collision with a vehicle driven by a third party, who had failed to yield to the right-of-way and drove into the ambulance’s path. During the collision, Anderson slid forward off of the stretcher and hit her head, which caused her to sustain a large laceration to her scalp. The ambulance came to rest in a ditch.

Another ambulance transported Anderson from the second accident scene to the hospital. Upon examination at the hospital, Anderson was diagnosed as having a laceration on her head, fractured ribs, fractured vertebrae, and a collapsed lung.

Anderson sued Tattnall County, alleging that its EMTs had been negligent while transporting her in the ambulance. Tattnall County denied the negligence claims, and asserted that it was afforded immunity under OCGA § 31-11-8. We agree that statutory immunity applies in this case.

OCGA § 31-11-8 states, in relevant part, as follows:

(a) Any person, including agents and employees, who is licensed to furnish ambulance service and who in good faith renders emergency care to a person who is a victim of an accident or emergency shall not be liable for any civil damages to such victim as a result of any act or omission by such person in rendering such emergency care to such victim.
(c) The immunity provided in this Code section shall, apply only to those persons who perform the aforesaid emergency services for no remuneration.

(Emphasis supplied.) In explaining the purpose of this statutory immunity, the Supreme Court of Georgia recognized that OCGA § 31-11-8

was enacted as a part of a comprehensive Act to provide the citizens of this state with efficient, safe and professional ambulance service.
In providing the immunity found in [the statute] it appears that the General Assembly recognized that insurance for civil liability covered by the exemption would be extremely expensive and difficult to obtain. This problem, combined with the virtually unlimited potential civil liability, could be enough to drive many providers of ambulance service out of the business and greatly discourage others from entering. The effect, in many areas of the state, would be to make emergency ambulance service virtually unobtainable. In recognition of this, the legislature chose to grant immunity from civil liability to providers of such emergency services who were licensed under the Act.

(Punctuation omitted.) Anderson v. Little & Davenport Funeral Home, 242 Ga. 751, 754-755 (2) (251 SE2d 250) (1978). “The statute is carefully drawn so as to grant immunity to providers of ambulance service only for their acts and omissions in rendering such emergency care.” (Punctuation omitted.) Id. at 754 (2).

In this case, Anderson asserts that the only issue for determination is whether the EMTs were providing “emergency care” as contemplated by OCGA § 31-11-8 (a). She otherwise concedes that the remaining prerequisites for immunity under the statute were met since the EMTs were properly licensed, acted in good faith, and did not receive remuneration for their services.

In construing this immunity statute, the Supreme Court of Georgia has defined “emergency care” to mean “the performance of necessary personal services during an unforeseen circumstance that calls for immediate action.” Anderson, supra, 242 Ga. at 753 (1). In this case, the undisputed evidence established that the EMTs were providing emergency care to Anderson during their response to her accident and their ensuing transport. The evidence showed that the EMTs responded to a 911 call reporting Anderson’s accident. When the EMTs arrived at the accident scene, Anderson’s vehicle was in a ditch; Anderson was sitting inside of her vehicle and was complaining of a headache and back pain. In light of Anderson’s complaints, the EMTs extricated her from her vehicle by immobilizing her and placing her on a spinal board. At that time, Anderson did not walk up the hill to the ambulance on her own volition; rather, the EMTs secured her and carried her on the spinal board from the ditch to the ambulance. Although Anderson’s friend and son were at the accident scene and could have transported her to the hospital for examination, Anderson agreed to be transported by ambulance with the EMTs, who continued to monitor her condition throughout the transport.

Anderson nevertheless points to evidence that her vital signs were stable during transport, and argues that immediate care was not necessary. Significantly, however, the definition of “emergency care” set forth in Anderson “does not require that the victim be in a critical or life-threatening condition.” (Citation and punctuation omitted.) Willingham v. Hudson, 274 Ga. App. 200, 204 (1) (a) (617 SE2d 192) (2005). Considering Anderson’s complaints of head and back pain following her accident, the EMTs could not exclude the possibility that Anderson had internal injuries or fractures. The undisputed evidence showed that the EMTs did not have access to an x-ray machine at the scene and could not accurately exclude the possibility that Anderson had internal injuries or fractures that required immediate care. As such, the EMTs testified that they treated Anderson’s symptoms as presenting an emergency situation by immobilizing her and consistently monitoring her during their transport toward the hospital, where she could receive a proper diagnosis and treatment. Anderson’s current opinion that no emergency existed is based upon hindsight and fails to provide evidence as to whether the EMTs were necessarily providing emergency care at the time of the incident. As aptly stated by Tattnall County,

Ms. Anderson’s subjective belief, guided by 20/20 hindsight, that her condition did not require immediate attention is irrelevant. Simply put, because the [p]aramedic and EMT had no information to cause them to reach a contrary determination, they had no option but to conclude that this was an emergency for which immediate action was necessary. To do otherwise would have risked Ms. Anderson’s health and would have subjected the County to possible suit for not acting in an emergency.

(Emphasis omitted.) Cf. Beursken v. Gwinnett County, 311 Ga. App. 467, 467-470 (1) (716 SE2d 540) (2011) (reflecting that plaintiff’s wife died of a heart attack soon after she refused transport to a hospital by a county ambulance crew, who had advised her that although her heart “appeared to be fine,” the only way to confirm her condition was to be transported by ambulance to the hospital; ruling that the county was entitled to immunity under OCGA § 31-11-8); Bixler v. Merritt, 244 Ga.App. 82, 82-83 (534 SE2d 837) (2000) (reflecting that plaintiff sued the county since the emergency medical technicians failed to take her to the hospital after responding to her 911 call; summary judgment was entered in the county’s favor since immunity under OCGA§ 31-11-8 applied). The evidence of the circumstances and Anderson’s symptoms following her accident established that the EMTs had rendered emergency care during Anderson’s transport en route to the hospital. The trial court correctly ruled that OCGA § 31-11-8 was controlling in the case, and that Tattnall County was entitled to statutory immunity thereunder.

Judgment affirmed.

Ray and Branch, JJ., concur.

Decided November 28, 2012.

Jones & Smith, Julian B. Smith, Jr., Turkheimer & Hadden, John D. Hadden, for appellant.

Oliver Maner, Patrick T. O’Connor, Benjamin M. Perkins, Dubberly & McGovern, Joseph D. McGovern, for appellee.

       Anderson also sued the driver of the vehicle that allegedly caused the collision with the ambulance. Anderson and the driver later reached a settlement, and the driver was voluntarily dismissed from the suit.

       Tattnall County’s motion also argued that it was entitled to summary judgment since the negligence of the driver who caused the collision was the sole proximate cause of Anderson’s injuries. Anderson argues that a question of fact existed as to the proximate causation issue. In light of our affirmance of the trial court’s decision that Tattnall County is entitled to statutory immunity, we need not address this alternative ground.

       Anderson’s suggestion that “emergency care” under OCGA § 31-11-8 (a) can be defined similarly to “emergency medical care” under OCGA § 51-1-29.5 (a) (5) is unavailing. Contrary to Anderson’s argument, the definition of “emergency care” under OCGA § 31-11-8 (a) is controlled by Anderson, supra, 242 Ga. at 753 (1), which did not set forth the definition of “emergency medical care” under OCGA § 51-1-29.5 (a) (5). If the Legislature had intended for the same definition and standard to apply in both statutes, it could have done so by amending OCGA § 31-11-8 to incorporate that definition. See, e.g., Lamad Ministries, Inc. v. Dougherty County Bd. of Tax Assessors, 268 Ga.App. 798, 803-804 (2) (602 SE2d 845) (2004) (ruling that when a Georgia statute specifically adopts and incorporates by reference another statute, the regulations that interpret such statute are also incorporated). The Legislature, however, did not do so. As highlighted by the facts of this case, an EMT in an ambulance does not have the same access to tests and equipment as those typically found in a hospital, and thus, the distinction to be drawn in defining the circumstances presented is understandable.

       While Anderson now denies that the EMTs were providing emergency care during her transport, Anderson has failed to explain why she agreed to he transported in the ambulance with the EMTs. Tattnall County notes that if immediate action was not necessary, Anderson could have instead been driven to the hospital by her friend and son who were available and present to assist her at the accident scene.


author: Adams, Judge.

text:
    A12A0902.
    SMART v. THE STATE.
    (732 SE2d 850)
   Adams, Judge.

Following a bench trial, Vince Smart, a used car dealer, was tried and convicted of violating a Fayette County ordinance for having two unlicensed vehicles at his residential property. Smart appeals and primarily challenges the sufficiency of the evidence with regard to each vehicle. We review the case “under the standard espoused in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979) to determine if the evidence, when viewed in the light most favorable to the prosecution, supports the verdict.” (Citation omitted.) Mack v. State, 272 Ga. 415, 416-417 (1) (529 SE2d 132) (2000). Because the evidence was sufficient under that standard and Smart’s other arguments lack merit or were not raised in the trial court, we affirm.

Construed in favor of the verdict, the evidence shows that in March 2011, a Fayette County marshal responded to a complaint that maintenance was being performed on untagged vehicles at Smart’s address. On March 15, the marshal observed two vehicles in the driveway without current tags displayed, but he was unable to contact anyone at the address, so he left his card. The following day, Smart called and stated that he owned a car dealership and would occasionally drive vehicles to his residence to perform minor repairs. The marshal returned on April 18, 2011, and observed two vehicles with out-of-state tags. In a subsequent telephone call, the marshal advised Smart that he could not bring business vehicles to his home to work on them without a “home occupation license,” which Smart admitted he did not have. The marshal testified that he read Section 302.8 of the “International Quality [sic] Maintenance Code” to Smart and advised him that “vehicles stored at his residence must be operational and have a license.”

On April 30, 2011, a deputy went to Smart’s home and spoke to Smart, informing him that there had been a complaint about him working on unlicensed vehicles at his home. Smart told her that all of the vehicles that she could see belonged to him. But the registration records introduced by the State showed that the white Chrysler was registered to a different person located at a different address. The deputy testified about two cars: a white Chrysler parked on the street with a license tag that expired on April 21 (nine days earlier); and a burgundy Mazda parked on the county right-of-way with a dealer tag that expired in 2007. Smart admitted the Mazda was his. Smart was charged with two violations of Section 302.8 of the International Property Maintenance Code (“IPMC”), one each with regard to the burgundy Mazda and the white Chrysler.

Smart testified and admitted that he lives in a residential area and that he frequently has cars at his residence that are not registered to him. Smart admitted that he did not have a current license tag for the Mazda and that he had driven it to his home to test drive it. Smart videotaped some of the events, which two deputies admitted, and the court admitted the video into evidence.

Following the presentation of evidence, the trial judge read aloud the following selection from Section 302.8 of the IPMC:

Except as provided for in other regulations, no inoperative or unlicensed motor vehicle shall be parked, kept, or stored on any premises.

Based on the evidence presented, the trial court found that Smart admitted both cars were his and that

there were two vehicles parked at your premises that were unlicensed. You had one that was—that had an expired tag, and you had the other one that was displaying a dealer tag that had expired in 2007.

The court sentenced Smart to 60 days probation on each count, consecutively, fined him $810, and gave him a special condition of probation that “no vehicle other than those registered to Defendant or visitors to residence parked at residence.”

1. Smart begins by asserting that the State failed to prove the ordinance itself. Local ordinances “must be alleged and proved by production of the original or of a properly certified copy.” (Citation and punctuation omitted.) Latimore v. City of Atlanta, 289 Ga.App. 85, 86 (2) (656 SE2d 222) (2008). See also Police Benevolent Assn. of Savannah v. Brown, 268 Ga. 26, 27 (2) (486 SE2d 28) (1997). The prosecutor introduced a certified copy of the IPMC and a certified copy of the ordinance by which the county adopted the IPMC as a part of the same exhibit—Exhibit 5 — without obj ection from Smart. Thus, the State adequately proved the ordinance. Latimore, supra.

Decided October 5, 2012

Reconsideration denied November 29, 2012.

Leon Hicks, for appellant.

2. Smart claims for the first time on appeal that the ordinance conflicts with state statutes, in violation of Ga. Const, of 1983, Art. III, Sec. VI, Par. TV (a).

Our Supreme Court has exclusive appellate jurisdiction over cases in which the constitutionality of a law, ordinance, or constitutional provision has been drawn into question, but will not rule on a constitutional question “unless it clearly appears in the record that the [lower] court distinctly ruled on the point.”

(Citations omitted.) City of Atlanta v. Jones, 283 Ga. App. 125, 125-126 (1) (640 SE2d 698) (2006). The constitutional issue was not raised or ruled on below. Thus, we have jurisdiction to consider the appeal on its merits. Id. at 126 (1).

Because Smart did not raise the issue in the trial court, his constitutional challenge is waived on appeal. Perez-Castillo v. State, 275 Ga. 124, 125 (562 SE2d 184) (2002); Croft v. Fairfield Plantation Property Owners Assn., 276 Ga. App. 311, 314 (2) (623 SE2d 531) (2005).

3. Smart contends that the trial court improperly admitted Exhibits 1 through 4, the computer printouts of the registration and title information obtained by the deputy who issued Smart the citations. As Smart points out, the proper method of introducing proof of a computer check of a car tag is “through the introduction of a properly authenticated printout of the computer record rather than by the officer’s testimony alone.” (Citation and punctuation omitted.) Holland v. State, 310 Ga. App. 623, 627 (3) (714 SE2d 126) (2011). That is exactly how Exhibits 1 through 4 were introduced. Smart’s challenge to their admission therefore lacks merit.

Judgment affirmed.

Barnes, P. J., and McFadden, J., concur.

JamieK. Inagawa, Solicitor-General, Joseph B. Myers, Jr., Assistant Solicitor-General, for appellee.

       The certified copy of the IPMC was added to the appellate record as a supplement to the original record.