text:
    A16A0195.
    WORTHWHILE INVESTMENTS, LLC et al. v. HIGGINS.
    (787 SE2d 245)
   Rickman, Judge.

Appellants Worthwhile Investments, LLC (“WI”), and Gary Johnson appeal the trial court’s grant of summary judgment in favor of Terry Higgins and against WI and Johnson on Higgins’s claim for conversion. WI and Johnson assert that the trial court erred in holding that WI, the holder of a security deed which encumbered Higgins’s property sold at a tax sale, lost its right to excess funds that arose from the tax sale because the mortgage title reverted to Higgins pursuant to OCGA § 44-14-80 before the date on which the funds were distributed. WI and Johnson argue that the relevant date when considering who was entitled to the excess funds was the tax sale date, not the fund distribution date. We agree and reverse.

To prevail at summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that the evidence and all reasonable inferences and conclusions drawn therefrom, viewed in the nonmovant’s favor, warrant judgment as a matter of law. We review de novo the trial court’s ruling on a motion for summary judgment.

(Footnote omitted.) Marshall v. Browning, 310 Ga. App. 64-65 (712 SE2d 71) (2011).

So viewed, the evidence showed that on March 15, 2007, Higgins accepted a quitclaim deed to real property known as 203 Flora Avenue, Atlanta, Georgia subject to a security deed. The security deed was held by Medici Financial, Inc. (“MFI”) and had a maturity date of February 16, 2007.

At some point, MFI assigned 62 percent of its interest in the security deed to WI, and the remaining 38 percent of its interest to Dr. Laurence Rivkin. Appellant Gary Johnson is a 50 percent co-member and the manager of WI.

Higgins failed to pay the property taxes and in May 2013, owed $8,000 in back property taxes to DeKalb County Consequently, on June 4, 2013, DeKalb County conducted a tax sale and sold the tax deed for $130,000.

Following the tax sale, WI made an initial claim for 100 percent of the excess funds. However, faced with a competitive claim from Rivkin, who asserted entitlement to a percentage of the funds based upon his security interest in the property at the time of the tax sale, the DeKalb County Tax Commissioner’s office distributed 62 percent of the funds to WI and 38 percent to Rivkin.

Higgins filed a complaint, asserting, among other things, a claim for conversion, alleging that he was entitled to the excess funds because, at the time of distribution of the excess funds, ownership of the property had reverted back to himpursuantto OCGA § 44-14-80. WI, on the other hand, contends that it was entitled to the excess funds because it was an interest holder to the property at the time of the tax sale.

Both sides moved for summary judgment on Higgins’s claim for conversion. The trial court found in favor of Higgins, holding that interest in the property had reverted back to Higgins on February 17, 2014, prior to the payment of the excess funds from the tax sale, and thus Higgins was entitled to payment of the excess funds. It is from this order that WI and Johnson now appeal.

Pursuant to OCGA § 48-4-1, a county may conduct a sale of property if the owner fails to pay property taxes. OCGA § 48-4-5 (a) further provides, in pertinent part:

If there are any excess funds after paying taxes, costs, and all expenses of a sale made by the tax commissioner, tax collector, or sheriff, or other officer holding excess funds, the officer selling the property shall give written notice of such excess funds to the record owner of the property at the time of the tax sale and to the record owner of each security deed affecting the property and to all other parties having any recorded equity interest or claim in such property at the time of the tax sale.... The notice shall state that the excess funds are available for distribution to the owner or owners as their interests appear in the order of priority in which their interests exist.

(Emphasis supplied.)

As this Court recently clarified:

This statute looks to the owner and lienholders prior to the tax sale, and tax-sale purchasers have no claim to the excess funds based on their post-sale ownership. . . . Thus, after a tax sale occurs, the officer holding the excess sale funds provides notice within 30 days of the sale to the recorded owners and interest holders, and then distributes those excess funds to the persons holding interests in the property in existence from the time of the tax sale, such as the owner or owners or any lien holders (or their proper post- sale assignees).

(Footnote omitted; emphasis supplied.) DLT List, LLC v. M7ven Supportive Housing & Dev. Group, 335 Ga. App. 318, 322 (1) (779 SE2d 436) (2015).

In this case, at the time of the tax sale on June 4, 2013, WI held an interest in the property. WI’s right to the excess funds was established at the time of the tax sale, not at the time of the payment of the excess funds. After the tax sale, WI never relinquished its right to the excess funds. See Barrett v. Marathon Investment Corp., 268 Ga. App. 196, 197-198 (1) (601 SE2d 516) (2004) (holding that an owner of property at the time of a tax sale may sell or deed his right to the excess sale proceeds after the tax sale is completed) (pre-2002 statute). The fact that the mortgage title reversion date, under OCGA § 44-14-80, occurred after the tax sale did not affect the right of WI to recover the excess funds. See DLTList, LLC, 335 Ga. App. at 322 (1). Thus, the trial court erred in granting summary judgment on Higgins’s claim for conversion of the excess funds and denying summary judgment in favor of WI and Johnson on Higgins’s conversion claim.

Decided April 28, 2016

Reconsideration denied May 24, 2016

Heyman & Sizemore, William B. Brown, for appellants.

Peavy Law, John R. Peavy, Jr.; Diment Porterfield, Christopher M. Porterfield, for appellee.

Judgment reversed.

Barnes, P. J., and Boggs, J., concur.

       Rivkin is not a party to this suit.

       OCGA § 44-14-80 (a) (1) provides, in pertinent part, “Title to real property conveyed to secure a debt or debts shall revert to the grantor or his or her heirs, personal representatives, successors, and assigns at the expiration of seven years from the maturity of the debt[.]”


source: Caselaw Access Project

author: Peterson, Judge.

license: Public Domain

text:
    A16A0106.
    COOK PECAN COMPANY, INC. v. McDANIEL.
    (786 SE2d 852)
   Peterson, Judge.

Cook Pecan Company, Inc. (“Cook Pecan”), filed suit against William McDaniel, alleging that McDaniel refused to allow Cook Pecan to harvest crops on land owned by McDaniel in violation of the parties’ agreement. Cook Pecan appeals from the superior court’s grant of summary judgment to McDaniel and argues that the superior court erred in its review of McDaniel’s summary judgment motion and in concluding that Cook Pecan failed properly to amend its complaint to assert claims for unjust enrichment and quantum meruit. We reverse the superior court’s order pertaining to the unjust enrichment and quantum meruit claims because the record shows that Cook Pecan properly amended its complaint as a matter of right, and the superior court erred in failing to address these claims. We affirm the grant of summary judgment to McDaniel on the breach of contract claim.

On appeal from the grant of summary judgment, this Court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

Leone v. Green Tree Servicing, LLC, 311 Ga. App. 702, 702 (716 SE2d 720) (2011) (footnote omitted).

So viewed, the evidence shows that Cook Pecan, owned by Mark Cook, farms and harvests pecan crops from lands leased to the company but owned by other entities. In the summer of 2012, McDaniel agreed to purchase a 20-plus-acre pecan orchard from Sara Pyles. Upon learning of the impending sale, Cook informed McDaniel and Pyles that Cook had an agreement with Pyles’ deceased husband to harvest the crops on the property. On July 31, 2012, Cook, McDaniel, and Pyles executed a written agreement providing that, upon acquiring the property, McDaniel would sign a lease agreement with Cook that would allow Cook Pecan to maintain and harvest the crops on the property through the end of 2012. Cook Pecan did not harvest the pecan crop prior to December 31, 2012. On January 3, 2013, McDaniel sent a letter to Cook Pecan informing the company that the lease agreement expired. McDaniel subsequently harvested the pecans on his property from January 7 to January 23, 2013.

In March 2013, Cook Pecan filed this lawsuit in state court without identifying by name the cause of action it was asserting. McDaniel moved for summary judgment, arguing that the July 31, 2012 agreement expired on December 31, 2012. In its brief opposing McDaniel’s motion, Cook Pecan argued that even if McDaniel’s interpretation of the contract was correct, unjust enrichment would prevent him from prevailing on summary judgment. The state court denied McDaniel’s motion for summary judgment, and thereafter granted Cook Pecan’s motion to transfer the case to superior court because the case may involve matters of equity. When Cook Pecan failed to pay transfer costs, McDaniel filed a motion to dismiss. In response, Cook Pecan filed a motion asking the court for an extension of time to pay the transfer costs because of excusable neglect, claiming that it was not aware of the transfer order and stating that it had paid the transfer costs upon receiving McDaniel’s motion to dismiss. The state court granted Cook Pecan’s motion, and the case was subsequently docketed in the superior court.

Soon after the transfer to the superior court, McDaniel moved for a “de novo review” of the state court’s rulings, including the denial of his motion for summary judgment and his motion to dismiss. In response to McDaniel’s motion, Cook Pecan argued that the superior court should review the state court’s rulings for an abuse of discretion. On the same day it filed its response, Cook Pecan filed an amended complaint to state claims for unjust enrichment and quantum meruit. The superior court granted summary judgment to McDaniel on all of Cook Pecan’s claims, ruling that Cook Pecan failed to perform on the parties’ agreement before it expired and Cook Pecan’s unjust enrichment claim was not properly raised through an amendment to the complaint. This appeal followed.

1. Before addressing Cook Pecan’s enumerations of error, we must address McDaniel’s assertion that we lack jurisdiction to consider the appeal because Cook Pecan failed to follow the discretionary appeal procedures. Specifically, McDaniel argues that the superior court’s “de novo review” of the state court’s denial of his motion under Uniform Superior Court Rule 19.1(1) (“Rule 19.1(I)”) triggered application of the discretionary appeal process. Although we have already denied McDaniel’s motion to dismiss on the same grounds, it is our duty to inquire into our jurisdiction wherever it may be lacking. See Forest City Gun Club v. Chatham Cty., 280 Ga. App. 219, 220 (633 SE2d 623) (2006).

Rule 19.1(1) pertinently provides that, upon transfer from one court to another due to lack of jurisdiction or improper venue:

. . . Any interlocutory or other order theretofore entered in the action, upon the motion of any party, shall be reviewed, and thereafter reissued or vacated by the court to which the action was transferred.

OCGA § 5-6-35(a)(l) requires a party to file an application for a discretionary review in order to “appeal[ ] from decisions of the superior courts reviewing decisions of... lower courts by certiorari or de novo proceedings!)]” The plain text of the statute shows that the discretionary application process is implicated when there is an appeal to the superior court. A transfer under Rule 19.1(1) is not an appeal to the superior court. Rather, Rule 19.1(1) expressly states that the transferred “action thereafter shall continue in the transferee court as though initially commenced there[.]” Because this case is treated as though it was initially commenced in superior court, the transfer of the case did not transform the case into an appeal to the superior court.

The fact that McDaniel styled his motion as one seeking “de novo review” is of no consequence because there is no magic in nomenclature. See Chance v. Planters Rural Tel. Coop., Inc., 219 Ga. 1, 5 (131 SE2d 541) (1963). Contrary to McDaniel’s argument, his request for a “de novo review” did not transform the case before the superior court into the equivalent of an appeal, with the attendant judicial mechanisms for reviewing and correcting claimed errors. That the transferee court is not conducting a type of appellate review is demonstrated by the options available under Rule 19.1(1), which are limited to reissuing or vacating the transferor court’s prior rulings. Although appellate courts may vacate, affirm, or reverse lower court orders, they do not “reissue” them. Thus, rather than conducting a judicial review as an appellate body, the transferee court’s task contemplated under Rule 19.1(1) is to stand in the place of the transferor court and consider whether any prior rulings were correct. This type of review is similar to the plenary power a court has to revise or vacate its own orders and judgments during the term in which they were rendered. See Deen v. Baxley State Bank, 192 Ga. 300, 303 (1) (15 SE2d 194) (1941).

Given this plenary authority to revise and modify prior rulings, the superior court, as the transferee court, was allowed to revisit the prior denial of a motion for summary judgment. “A prior denial of a motion for summary judgment does not foreclose the subsequent grant of summary judgment, inasmuch as an order is subject to revision at any time before the entry of judgment adjudicating all the claims and liabilities of the parties.” Buchan v. Lawrence Metal Prods., Inc., 270 Ga. App. 517, 518 (1) (607 SE2d 153) (2004) (footnote omitted). Cook Pecan, as the losing party, had the right to bring a direct appeal from the order granting summary judgment. OCGA § 9-ll-56(h). Accordingly, Cook Pecan was not required to follow the discretionary application process under OCGA § 5-6-35(a)(1), and we have jurisdiction over this appeal.

2. Turning to Cook Pecan’s arguments, Cook Pecan argues that the superior court erred in granting summary judgment to McDaniel on the breach of contract claim because when reviewing the state court’s denial of McDaniel’s summary judgment motion under Rule 19.1(1), the superior court was allowed only to reissue or vacate the state court’s ruling. We disagree.

As discussed above, Rule 19.1(1) provides that, in reviewing any prior orders, the transferee court may thereafter reissue or vacate those orders. Cook Pecan recognizes that the superior court implicitly vacated the state court’s ruling by granting summary judgment to McDaniel but argues that Rule 19.1(1) requires an explicit vacatur. However, nothing in Rule 19.1(1) states that the transferee court must expressly vacate a prior interlocutory order, as opposed to vacating it by implication, and Cook Pecan’s argument to the contrary elevates form over substance.

Cook Pecan also ignores the import of Rule 19.1(I)’s express statement that the transferred “action thereafter shall continue in the transferee court as though initially commenced there[.]” The fact that McDaniel’s motion for summary judgment was previously denied did not foreclose the superior court’s authority to subsequently grant summary judgment. See Buchan, 270 Ga. App. at 518 (1). Thus, the superior court had the authority to grant summary judgment if no issues of material fact existed, and it concluded that McDaniel was entitled to judgment as a matter of law.

Not surprisingly, Cook Pecan makes no argument that McDaniel was not entitled to such a judgment based on the undisputed facts. The written agreement in question provided that, upon McDaniel’s acquisition of the property, he would sign a lease agreement with Cook that would allow Cook Pecan to maintain and harvest the crops on the property through the end of 2012. Although the parties treat this promise to enter into a future leasing agreement as a binding contract, there is no evidence that a leasing agreement was ever entered into. Assuming without deciding that the agreement to enter a future leasing agreement is enforceable, any contractual right that Cook Pecan had to harvest the crops on McDaniel’s property expired on December 31, 2012. Thus, McDaniel could not be said to have breached any agreement, and we affirm the superior court’s grant of summary judgment to McDaniel on the breach of contract claim.

3. Cook Pecan also argues that the superior court erred in concluding that Cook Pecan’s complaint was not properly amended to raise an unjust enrichment claim. We agree.

(a) Under OCGA § 9-11-15(a), amendments to a complaint may be filed at any time before entry of a pretrial order without permission of the court, and “the right to amend pleadings under the Civil Practice Act is exceedingly broad.” Bandy v. Hosp. Auth. of Walker Cty., 174 Ga. App. 556, 557 (1) (b) (332 SE2d 46) (1985). A pending motion for summary judgment will not preclude a party from amending his or her complaint. See Skylake Property Owners Ass’n. v. Powell, 281 Ga. App. 715, 720 (3) (637 SE2d 51) (2006). “[A]nd there is no prohibition against pleading a new cause of action[.]” Hutto v. Plagens, 254 Ga. 512, 514 (2) (330 SE2d 341) (1985).

Here, there was no pretrial order in this case, and Cook Pecan filed its amended complaint raising claims of unjust enrichment and quantum meruit before the superior court ruled on McDaniel’s motion for a “de novo review” of the state court’s denial of his summary judgment motion. Under OCGA § 9-11-15(a), Cook Pecan had the right to amend its complaint to add the additional claims until the superior court ruled on McDaniel’s motion.

McDaniel argues that its right to review under Rule 19.1(1) trumped Cook Pecan’s statutory right to amend its complaint. Specifically, McDaniel argues that Cook Pecan could not amend the complaint to change the posture of the case while the superior court was conducting an appellate-level review of the state court’s ruling under Rule 19.1(1). As explained above in Division 1, however, the superior court was not sitting as an appellate body when reviewing the state court’s order. Rather, because the case is treated as having originated in the superior court, the superior court’s review was akin to a reconsideration of its own rulings. Moreover, because local court rules may not contravene the substantive framework of the Civil Practice Act of which OCGA § 9-ll-15(a) is part, we refuse to read Rule 19.1(1) as placing a limitation on a party’s right to amend a complaint even when a motion for summary judgment is pending. Thus, the superior court erred in concluding that Cook Pecan failed properly to amend its complaint.

Decided May 24, 2016.

Daniels Law, Ronald E. Daniels; Walker, Hulbert, Gray & Moore, Ryan W. English, for appellant.

Minor, Bell & Neal, William F. Jourdain, Michael J. McNeill, for appellee.

(b) McDaniel argues that we nevertheless should affirm the grant of summary judgment to him on Cook Pecan’s unjust enrichment and quantum meruit claims because they fail as a matter of law based on the unchallenged findings of the superior court on Cook Pecan’s contractual claim. We may affirm the trial court’s grant of summary judgment if it is right for any reason, whether stated or unstated, so long as the legal basis was fairly presented in the court below. See Georgia-Pacific, LLC v. Fields, 293 Ga. 499, 504 (2) (748 SE2d 407) (2013); Bailey v. Hall, 267 Ga. App. 222, 223, n. 1 (599 SE2d 226) (2004).

Although McDaniel argued below that any unjust enrichment claim failed, he did not specifically address a quantum meruit claim. Thus, we will not apply the right-for-any-reason rule as to the quantum meruit claim.

Regarding the unjust enrichment claim, as noted above in Division 2, it is unclear whether there was ever a valid contract between the parties. Although it was not necessary for us to resolve the issue in order to affirm the grant of summary judgment on a breach of contract claim, a claim of unjust enrichment will lie only if there is no legal contract. See Jones v. White, 311 Ga. App. 822, 827 (1) (b) (717 SE2d 322) (2011); see also Kwickie/Flash Foods, Inc. v. Lakeside Petroleum, Inc., 246 Ga. App. 729, 730 (541 SE2d 699) (2000) (“Recovery in quantum meruit is not authorized when . . . the claim is based on an express contract[.]”) (citations and footnote omitted). Given the lack of clarity and the absence of a ruling below on this point, we decline to apply the right-for-any-reason rule and consider legal theories not addressed by the superior court on summary judgment. See City of Gainesville v. Dodd, 275 Ga. 834, 838-39 (573 SE2d 369) (2002) (appellate courts retain discretion in determining whether to apply the right-for-any-reason rule and consider alternative legal theories not addressed by the trial court on summary judgment). Accordingly, we affirm in part and reverse in part.

Judgment affirmed in part and reversed in part.

Phipps, P. J., and Dillard, J., concur.

       Ga. Const. of 1983, Art. VI, Sec. IV, Par. I provides that the superior courts “shall have exclusive jurisdiction... in equity cases.” The state courts have concurrent jurisdiction with the superior courts over all “civil actions without regard to the amount in controversy, except those actions in which exclusive jurisdiction is vested in the superior courts[.]” OCGA § 15-7-4(a)(2); see also In the Matter of Inquiry Concern ing a Judge, 265 Ga. 843, 846-47 (4) (462 SE2d 728) (1995) (“Georgia’s state courts, created pursuant to OCGA § 15-7-2, exercise comprehensive jurisdiction over a wide range of claims . . . excluding only felony criminal cases, certain domestic cases, equity matters, and land title cases.”).

       The superior court did not address McDaniel’s motion to dismiss the case for Cook Pecan’s failure to timely pay transfer costs, and McDaniel concedes that his motion to dismiss is not before this Court.

        See Hewitt Assocs., LLC v. Rollins, Inc., 294 Ga. App. 600, 602 (1) (669 SE2d 551) (2008) (“Unless an agreement is reached as to all terms and conditions and nothing is left to future negotiations, a contract to enter into a contract in the future is of no effect. Thus, an agreement to reach an agreement is a contradiction in terms and imposes no obligation on the parties thereto.”).

        Hayes v. Fernandez, 176 Ga. App. 332, 332 (335 SE2d 735) (1985).

       Although we conclude that Cook Pecan properly amended its complaint to assert equitable claims, this does not divest us of jurisdiction over the appeal. Our Supreme Court’s exclusive appellate jurisdiction over “equity cases” is not invoked when, as here, the grant or denial of equitable relief was merely ancillary to underlying issues of law, but rather is limited to cases in which a specific substantive issue raised on appeal involves the legality or propriety of equitable relief sought in the superior court. See Durham v. Durham, 291 Ga. 231, 232-34 (2) (728 SE2d 627) (2012) (also noting that the case law regarding that Court’s jurisdiction “long ago broke any direct link with the jurisdiction of the superior courts over ‘equity cases.’ ”) (footnote omitted); see also GMAC Mortgage, LLC v. Pharis, 328 Ga. App. 56, 58 n.2 (761 SE2d 480) (2014) (noting that the Supreme Court transferred that appeal to this Court because the “unjust enrichment claims [did] not involve substantive issues of equity since resolution of the claim involves only the determination of the underlying legal issues.”).


text:
    A16A0297.
    GRAHAM v. THE STATE.
    (786 SE2d 857)
   Peterson, Judge.

Marshall Martin Graham appeals his convictions for hijacking a motor vehicle and aggravated assault. He argues that (1) the evidence was insufficient to support his convictions; (2) the trial court erred by instructing the jury that the State did not have to prove all of the acts listed in each count of the indictment; and (3) the trial court erred by improperly commenting on the evidence during its instructions to the jury Because the evidence was sufficient to support Graham’s convictions and because the jury instructions of which he complains were not erroneous, we affirm.

1. Graham argues that the evidence was insufficient to authorize his convictions, specifically contending that the eyewitness identification evidence was insufficient because the victims gave contradictory descriptions based purely upon race and clothing. We disagree.

When appellate courts review the sufficiency of the evidence, they do not “re-weigh the evidence or resolve conflicts in witness testimony” but instead defer “to the jury’s assessment of the weight and credibility of the evidence.” Greeson v. State, 287 Ga. 764, 765 (700 SE2d 344) (2010) (citation omitted). We determine whether, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 S. Ct. 2781, 61 LE2d 560) (1979) (citation omitted) (emphasis in original).

So viewed, one of the victims, Bobby, had escorted his mother, Rebecca, to her car at his apartment complex when they were approached by two men, one of whom asked to borrow a cell phone. The request denied, the two men walked off. Bobby called 911 at around 2:01 a.m., reporting that a robbery might be imminent.

The men quickly returned, however, and Bobby ended his call. One of the men pressed what appeared to be a handgun to Bobby’s temple, telling Bobby to empty his pockets and hand over his wallet. Bobby handed over his wallet, and the gunman nudged him toward the curb of the parking lot. Meanwhile, the other man, who was on the passenger’s side of Rebecca’s car, entered the car through the back door and began rummaging around the car and Rebecca’s pockets. One of the men ordered Rebecca out of the car, and the two men drove away in her vehicle. The victims testified that they did not know which man was in which seat when the car departed but said they had not seen the men switching sides of the car.

Around 2:11 a.m., about 10 minutes after Bobby’s initial 911 call, a deputy stopped Rebecca’s automobile after a brief chase. The driver of the car pulled into a gas station parking lot, stopped, and ran away without ever being apprehended. The deputy found Graham sitting in the passenger seat, with a dark shirt tied around his neck like a bandana. A few small items that Rebecca claimed were hers — a lighter, lip balm, and a broken knife — were in Graham’s pants. Rebecca’s purse was found on the floor of the vehicle. Rebecca also claimed that between nine and thirteen dollars had been taken from her purse before it was returned to her by police, and thirteen dollars were found in Graham’s pants. Bobby’s wallet was not found in the car or on Graham. No gun was found on Graham, although a gun was found resting on the console of the car.

At trial, both Bobby and Rebecca provided descriptions of the perpetrators or what they were wearing, although only Rebecca positively identified Graham as one of the hijackers. In his trial testimony, Bobby said the person who approached on the driver’s side and put a gun to his head was wearing all black. Bobby said he could see only the gunman’s eyes, as though his mouth were covered with some sort of red, black or otherwise dark mask. The perpetrator who approached the passenger’s side was wearing red clothing and a red bandana with white polka dots as a mask, Bobby testified. Bobby was not asked to identify Graham at trial.

Rebecca testified that the man who put a gun to her son’s head had dark skin and wore all black, including something over his face. She said the other man might have been wearing something red, but she did not recall him wearing a mask. In her trial testimony, Rebecca identified Graham as the man who had stood at her driver’s side door, holding a gun to her son’s head, not the man who walked up on the passenger’s side. She explained that she was able to make the identification based on his skin coloring and his eyes, which she described as “sad eyes, down at the cornersDefense counsel attempted to show during cross-examination that the descriptions provided by the victims at trial were inconsistent with those previously provided to police.

Graham did not testify at trial but told police that he did not participate in the robbery and instead was in the car to catch a ride from the Fieldstone housing complex. A deputy testified that at some point subsequent to Graham’s arrest, he drove from Bobby’s apartment complex to the location of the stop via the highway, and the trip took 11 minutes traveling at 80 mph, the speed Rebecca’s car was traveling during the pursuit. Although it is not entirely clear from the cold record, witnesses gave testimony that prosecutors characterize as demonstrating that Fieldstone, where Graham said he was picked up, is in the opposite direction from that in which the vehicle was seen traveling when it left Bobby’s apartment complex.

The jury acquitted Graham of Counts 1 and 2, which charged Graham with the armed robbery of Rebecca and Bobby, respectively, and Count 5, which charged Graham with the aggravated assault of Bobby The jury convicted Graham on Count 3, which charged him with hijacking a motor vehicle, and Count 4, which charged him with the aggravated assault of Rebecca.

Graham argues that the victims’ testimony was suspect because eyewitness identifications, particularly cross-racial ones, are often wrong. He also argues that their testimony was suspect because it was largely limited to race and clothing and because the victims’ encounter with the perpetrators was brief, stressful, and in a dark location. However, the reliability of a witness’ identification goes to the credibility and weight of the witness’ testimony, a matter that is within the province of the jury, not this Court. Jones v. State, 329 Ga. App. 478, 479 (1) (765 SE2d 657) (2014) (rejecting sufficiency argument that identification of defendant was suspect given that victim saw only perpetrator’s eyes during robbery). Graham cites Rutland v. State, 129 Ga. App. 313 (199 SE2d 595) (1973), for the proposition that an identification largely based on race and clothing is insufficient to sustain a conviction. However, in our opinion in that case there was no indication that the victim, whose face was covered during the crime, was able to identify the defendant. See id. at 313. The evidence deemed insufficient there was that the perpetrator was black and barefoot, that other witnesses had seen the defendant walking barefoot in the vicinity of the crime, that the victim had attempted to scratch the perpetrator, and that scratches were noted on the defendant’s arm. See id. at 313-14. In contrast, Rebecca positively identified Graham as the gunman, and her testimony was largely corroborated by additional evidence — particularly Graham being found in her stolen vehicle shortly after the 911 call and his possession of items that she claimed were stolen from her.

Graham also argues that descriptions given by the victims at trial contradicted one another as well as Bobby’s pretrial descriptions. However, any such inconsistencies go to the weight and credibility of the in-court identifications, and it is for the jury to assess the witness’ credibility and resolve any conflicts in the evidence. McCrary v. State, 310 Ga. App. 215, 216 (1) (712 SE2d 622) (2011) (inconsistencies among witnesses’testimony); Sherman v. State, 225 Ga. App. 869, 872 (2) (485 SE2d 557) (1997) (inconsistencies between pre-trial and in-trial identifications).

Graham additionally argues that the jury’s decision to convict him on Counts 3 and 4 and acquit on Counts 1,2, and 5 was illogical given that Rebecca identified him as the man who pointed a gun at Bobby, but Rebecca is the named victim in Counts 3 and 4, and Bobby is the named victim in Counts 1, 2, and 5. Graham acknowledges that our Supreme Court has abolished the rule against inconsistent verdicts, see Milam v. State, 255 Ga. 560, 562 (2) (341 SE2d 216) (1986), but suggests in a footnote it might be time to reinstate that rule. However, “this Court has no authority to overrule or modify a decision made by the Supreme Court of Georgia [.] ” Pak v. Ga. Dep’t of Behavioral Health & Developmental Disabilities, 317 Ga. App. 486, 488 (731 SE2d 384) (2012).

2. Graham next argues that the trial court erred by instructing the jury that the State did not have to prove all of the acts listed in each count of the indictment. We disagree.

Counts 3 and 4, the two counts on which Graham was convicted, each referred to both a “firearm and a replica of a firearm.” Count 3, the hijacking charge, accused Graham of obtaining a vehicle “while in possession of a firearm and a replica of a firearm,” and Count 4, one of the aggravated assault charges, alleged that he “did brandish a firearm and a replica of a firearm.” The State requested that the trial court instruct the jury that, in order for the jury to find the defendant guilty, the State need prove only that the defendant committed at least one act that satisfied each element of the crime charged. The trial court gave an instruction that was similar, but not identical, to that requested by the State:

I charge you that to find the defendant guilty of the crime charged, the State need only prove that the defendant committed at least one act which satisfies each and every element of the crime charged. Merely because two or more separate acts are listed in the charge does not require the State to prove all of the listed acts to find the defendant guilty of the crime charged.
In addition the presence of the word, and, in the description of actions taken by the accused is not required for the State to prove each act listed.

After the trial court sent the jury out to deliberate, defense counsel said he had no objections to the jury instructions.

Because the defendant failed to lodge any specific objection to the instruction he complains of now, we review the instruction to determine whether it “constitutes plain error which affects substantial rights of the parties.” OCGA § 17-8-58(b). Under that standard, the court must consider “whether the instruction was erroneous, whether it was obviously so, and whether it likely affected the outcome of the proceedings.” State v. Kelly, 290 Ga. 29, 33 (2) (a) (718 SE2d 232) (2011) (citation and punctuation omitted). If it answers all three of these questions in the affirmative, the appellate court may reverse “if the error seriously affects the fairness, integrity, or public reputation of the proceedings below.” Id. (citation omitted).

Here, the instruction in question does not constitute error at all. Although the instruction was not perfectly clear, the essence of the instruction was a correct statement of the law: “If a crime may be committed in more than one way, it is sufficient for the State to show that it was committed in any one of the separate ways listed in the indictment, even if the indictment uses the conjunctive rather than disjunctive form.” Gipson v. State, 332 Ga. App. 309, 317 (5) (772 SE2d 402) (2015) (citation and punctuation omitted). For that reason, in Gipson, we ruled that it was not error to instruct the jury on the elements of aggravated battery by using the disjunctive language of the statute, even though the indictment charged the crime in the conjunctive. Id. Similarly, here it did not shift the burden of proof to the defense to instruct the jury that the prosecution need prove only the use of a firearm or a replica.

3. Graham also argues that the trial court improperly commented on the evidence when it told jurors, “you now have a pretty good idea where things happened.” We disagree.

Near the end of the trial court’s charge to the jury, it instructed:

Now I want to caution you about one other thing. You now have a pretty good idea about where things happened, all that’s — you know, the distances, times that may be important in this case.
This is not a free lance committee work where somebody needs to go out and do anymore evaluation or investigation. Don’t get on Google, don’t get on Maps, don’t go check out whose address is what. Stay away from all that stuff as it relates to this case.

Again, the defense did not object to the charge.

Graham argues that the trial court’s instructions in this regard amounted to an impermissible comment on the evidence requiring a new trial under OCGA § 17-8-57. He argues that the trial court’s statement conveyed to jurors that the court thought that venue and a number of essential elements of the crime had been proven. Graham contends that the trial court’s statement “served to highlight” the State’s argument that his story that he was just catching a ride was false.

The version of OCGA § 17-8-57 in effect at the time of Graham’s trial provided:

It is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused. Should any judge violate this Code section, the violation shall be held by the Supreme Court or Court of Appeals to be error and the decision in the case reversed, and a new trial granted in the court below with such directions as the Supreme Court or Court of Appeals may lawfully give.

Decided May 24, 2016.

Michael S. Webb, for appellant.

Richard R. Read, District Attorney, Roberta A. Earnhardt, Assistant District Attorney, for appellee.

As underscored by our Supreme Court in Rouse v. State, 296 Ga. 213, 214-15 (2) (765 SE2d 879) (2014), any violation of that version of OCGA § 17-8-57requiredanewtrialregardlessofwhethertherehad been any showing of actual prejudice to the defendant.

Graham argues that the trial court’s instruction was akin to the comments found to merit reversal in Rouse, in which the trial court during preliminary instructions told members of the venire that they would “be hearing about a case, which is a murder case, that happened in Muscogee County [.] ”Rouse, 296 Ga. at 215 (2). However, the trial court’s instructions here are different because they were not “an explicit comment by a trial judge indicating the court’s opinion that a critical element that must be proved by the State was not in dispute.” Id. at 216 (2). The comments here were made in the context of telling jurors not to do their own investigation. They are more akin to the trial court’s inartful comments in Atkins v. State, 253 Ga. App. 169, 170-71 (2) (558 SE2d 755) (2002), which included an admonishment that prospective jurors “listen carefully to the facts as contained in the indictment.” In an opinion that was distinguished, not overruled, in Rouse, this court found that those comments did not violate OCGA § 17-8-57, particularly in the light of the trial court’s otherwise accurate instructions on the State’s burden of proof and other related matters. See Rouse, 296 Ga. at 216-17 (2); Atkins, 253 Ga.App. at 170-71 (2). Similarly, here, the trial court instructed the jury that the State bore the burden to prove each essential element of the charged crimes, as well as venue, beyond a reasonable doubt. The trial court also instructed jurors that it had not intended by any of the rulings or comments to express any opinion on the evidence or guilt of the accused. The trial court did not err in making the complained-of comment here.

Judgment affirmed.

Phipps, P. J., and Dillard, J., concur.

       Without requesting any sanction, Graham notes that the State’s brief was filed three days late despite our Court having granted a one-week extension. While noting that Graham filed an amended brief more than a month after filing his original brief, we remind counsel of the importance of our deadlines and exercise our discretion to consider the parties’ arguments. See Daniel v. State, 296 Ga. App. 513, 522 (7) (675 SE2d 472) (2009).

       The trial prosecutor stated during the trial that the gun recovered from the car was a pellet gun.

       Graham does not point to record evidence of the victims’ race.

       In fact, Rebecca is the victim named in Count 1 of the indictment. Moreover, both Counts 3 and 4 involved the hijacking or attempted hijacking of Rebecca’s vehicle. Although both Counts 3 and 4 made reference to a firearm, evidence the defendant pointed a gun directly at Rebecca is not necessary to support convictions on those counts. See OCGA § 16-5-44.1(b) (“A person commits the offense of hijacking a motor vehicle when such person while in possession of a firearm or weapon obtains a motor vehicle from the person or presence of another by force and violenceor intimidationox attempts or conspires todo so”) (emphasis added); OCGA §§ 16-5-20, 16-5-21 (aggravated assault may be committed by use of a deadly weapon to place someone “in reasonable apprehension of immediately receiving a violent injury”).

       “A person commits the offense of aggravated battery when he or she maliciously causes bodily harm to another by depriving him or her of a member of his or her body, by rendering a member of his or her body useless, or by seriously disfiguring his or her body or a member thereof.” OCGA § 16-5-24(a).

       Graham was tried in November 2014. The legislature amended the statute in 2015. Ga. L. 2015, p. 1050. The new statute “limits the scope of appellate review in cases in which no timely objection was made at trial.” Pyatt v. State, 298 Ga. 742, 747 (3) n.9 (784 SE2d 759) (2016). Our Supreme Court recently suggested that this limit on appellate review might apply even to cases that were tried before the effective date of the new statute. See id. Like that Court, we need not decide whether the 2015 amendment applies to this case because we find no reversible error even under the former version of the statute. See id.


author: Branch, Judge.

text:
    A16A0330.
    JONES v. SPRUILL.
    (786 SE2d 848)
   Branch, Judge.

Mack Spruill obtained a family violence protective order from the Clayton County Superior Court against his brother, Antwione Jones. Following entry of the order, Jones filed both a motion for reconsideration and a motion for a new trial, and he requested a hearing on both. The trial court thereafter dismissed both motions without holding a hearing on either. Jones now appeals, arguing that the trial court erred by dismissing his motion for a new trial without affording him a hearing on the same. Jones further contends that the trial court was without jurisdiction to enter an order against him under Georgia’s Family Violence Act, OCGA § 19-13-1 et seq., because conduct between siblings does not fall within the statutory definition of “family violence.” We agree with Jones that the trial court erred in dismissing his new trial motion without holding a hearing thereon. We further find, however, that the trial court had jurisdiction to enter the protective order at issue, as Jones’s conduct constituted an act of family violence under OCGA § 19-13-1. Accordingly, we affirm the order dismissing Jones’s new trial motion.

The record shows that on May 1, 2015, Spruill filed a verified application for a temporary protective order against Jones. In that application, Spruill alleged that he and Jones were brothers who formerly resided in the same household, and that on April 30, 2015, Jones had punched him, brandished a gun in his face, and threatened to kill him. Based on this application, the trial court entered a temporary, ex parte family violence protective order and scheduled a hearing on Spruill’s petition for May 29. Prior to that hearing, Jones filed a verified response in which he denied the material allegations of Spruill’s petition. Jones also asserted that the petition failed to allege an act of family violence, as he and Spruill were siblings who had not resided in the same household for more than 20 years.

At the May 29 hearing, Spruill testified as to the events that led him to seek the protective order. Spruill stated that Jones was his younger brother, but that the two have not lived in the same household for more than two decades. According to Spruill, on the evening of April 30, he went to visit Jones at a house owned by Jones’s mother-in-law and which was under renovation. During that visit, Jones accused Spruill of stealing $200 from him. When Spruill denied taking the money, Jones punched him several times and then threatened him with a pool cue. Spruill left the house to go to his car, and Jones followed him. The men engaged in further conversation, during which Spruill again attempted to convince his brother that Spruill had not stolen his money. After Spruill got into his car, Jones pulled out a gun, brandished it in his brother’s face, and threatened to kill Spruill.

Spruill took pictures of the bruises he suffered as a result of his altercation with Jones, and these pictures were introduced into evidence. Additionally, Spruill testified that Jones hadbeen convicted in 1999 of simple battery, and that this conviction resulted from another incident in which Jones had attacked and threatened Spruill. A certified copy of that conviction was introduced and admitted into evidence.

Although he did not testify, Jones appeared at the hearing and was represented by counsel, who cross-examined Spruill. At the conclusion of the hearing, the trial court found there was probable cause to support the issuance of a protective order, and the court entered the written order later that day. In that order, the trial court specifically found that it had jurisdiction over the parties and over the subject matter of the hearing. The protective order enjoined and restrained Jones from threatening, injuring, harassing, or harming Spruill or any member of his family or household; enjoined and restrained Jones from approaching within 100 yards of either Spruill or his minor children; ordered Jones not to have any contact with Spruill either directly or indirectly, either through other persons or by written or electronic means; required Jones to enroll in a certified family violence intervention program; and ordered Jones to surrender any firearms in his possession to the Clayton County Sheriff’s Department.

On June 24, 2015, Jones filed both his motion for reconsideration and his motion for new trial. The trial court dismissed his motion for reconsideration without prejudice on July 1, and dismissed the new trial motion without prejudice on July 15. In each order, the trial court stated that dismissal was appropriate because “[t]he court held a full hearing, with [Jones] represented by counsel, and found sufficient probable cause that an act of family violence occurred between siblings and [Jones] was the primary aggressor.”

After the trial court dismissed both his motion for reconsideration and his motion for new trial, Jones filed an application for a discretionary appeal, which this Court granted. This appeal followed.

1. Although the trial court purported to dismiss Jones’ motion for new trial, that order was substantively a denial of the motion, and we therefore treat it as such. See State v. Chapman, 322 Ga. App. 82, 83 (744 SE2d 77) (2013) (“orders are construed according to their substance and function and not merely by nomenclature”) (citations and punctuation omitted) (treating a mistrial granted following a jury verdict as the grant of a motion for a new trial). On appeal, Jones contends that the trial court erred in denying his new trial motion without conducting a hearing. We agree.

Under Georgia law, a trial court is required to hold a hearing before deciding a motion for a new trial. See Green v. McCart, 273 Ga. 862-863 (1) (548 SE2d 303) (2001); Garner Plumbing v. Slate Constr., 300 Ga. App. 656 (1) (686 SE2d 301) (2009); Uniform Superior Court Rule 6.3. Thus, because Jones specifically requested a hearing on his new trial motion, the trial court erred in denying that motion before conducting such a hearing. See Ricks v. State, 294 Ga. App. 398, 399 (670 SE2d 164) (2008) (unless waived, movant entitled to a hearing on a motion for new trial); Shockley v. State, 230 Ga. 869 (199 SE2d 791) (1973); Foster v. State, 230 Ga. 870 (1) (199 SE2d 790) (1973); Lee v. State, 308 Ga. App. 711, 716 (3) (708 SE2d 633) (2011).

In most cases, the trial court’s failure to hold the requisite hearing on a motion for a new trial would constitute reversible error, requiring us to vacate the order denying the motion and remand the case for a hearing. See, e.g., Green, 273 Ga. at 863 (1); Ricks, 294 Ga. App. at 399. We find, however, that remand is not required in this case for two reasons. First, as noted above and as discussed more fully in Division 2, the basis for Jones’s new trial motion is that the trial court lacked jurisdiction to enter the protective order. And remand is unnecessary where the question on appeal involves subject matter jurisdiction. “The judgment of a court having no jurisdiction of the ... subject matter ... is a mere nullity and may be so held in any court when it becomes material to the interest of the parties to consider it.” OCGA § 17-9-4. See also Bush v. State, 273 Ga. 861 (548 SE2d 302) (2001).

Moreover, in this case, the facts are undisputed and the question presented by Jones’s new trial motion is one of law. In such cases, judicial economy dictates that we exercise our discretion to address the “controlling question of law... rather than require the same issue to arise on [any subsequent] appeal from denial of the [new trial motion].” Radio WEBS v. Tele-Media Corp., 249 Ga. 598, 604 (2) (292 SE2d 712) (1982) (on appeal from an interlocutory injunction, “judicial economy dictate[d]” that the appellate court decide the “controlling question of law,” as that question would control issues relevant to the issuance or denial of the permanent injunction) (footnote omitted). See also Ward v. State, 248 Ga. 60, 61 (1), n. 1 (281 SE2d 503) (1981) (even where a constitutional issue is not raised in the trial court, then, “so as to avoid the relitigation of these issues on habeas corpus,” the appellate court may exercise its “discretion to decide these questions in the interest of judicial economy”) (citation omitted); Arnold v. State, 253 Ga. App. 307, 308 (1) (560 SE2d 33) (2002) (where trial court fails to hold an evidentiary hearing on a defendant’s ineffective assistance of counsel claim, “[rjemand is unnecessary . .. when it appears as a matter of law that the appellant cannot satisfy the two-prong test to establish ineffectiveness of counsel”) (citation, punctuation and footnote omitted); J. M. High Co. v. Arrington, 45 Ga. App. 392 (3) (165 SE 151) (1932) (where the material facts in the case are undisputed, and the only issue on appeal is a question of law, “it is unnecessary to send the case back for another hearing in the trial court”) (citation omitted). Accordingly, we will proceed to address the merits of Jones’s new trial motion, which asserted only that the trial court lacked subject matter jurisdiction.

2. Georgia’s Family Violence Act authorizes trial courts, “upon the filing of a verified petition,” to “grant any protective order ... to bring about a cessation of acts of family violence.” OCGA § 19-13-4 (a). The statute defines “family violence” as the commission of any felony or the commission of battery, simple battery, simple assault, assault, stalking, criminal damage to property, unlawful restraint, or criminal trespass ‘Tetween past or present spouses, persons who are parents of the same child, parents and children, stepparents and stepchildren, foster parents and foster children, or other persons living or formerly living in the same household[.]” OCGA § 19-13-1. (emphasis supplied).

On appeal, Jones contends that the trial court erred in interpreting OCGA § 19-13-1 to encompass acts committed between siblings. In support of this argument, Jones points to the fact that the legislature has enhanced criminal penalties where certain crimes are committed between family members or “other persons living or formerly living in the same household.” The legislature, however, specifically excluded crimes committed between siblings from such enhanced penalties. See OCGA §§ 16-5-20 (d); 16-5-21 (k); 16-5-23 (f); 16-5-24 (h) (providing enhanced penalties for the offenses of simple assault, aggravated assault, simple battery, and aggravated battery if the offense “is committed between past or present spouses, persons who are parents of the same child, parents and children, stepparents and stepchildren, foster parents and foster children, or other persons excluding siblings living or formerly living in the same household”) (emphasis supplied). Thus, Jones argues that despite the absence of any language expressly excluding acts between siblings from the definition of family violence set forth in OCGA § 19-13-1, we should nevertheless interpret the statute so as to exclude such conduct from the act. We disagree.

Decided May 24, 2016.

Allen W. Bodiford, for appellant.

Mack Spruill, pro se.

When appellate courts in Georgia consider the meaning of the statute, we begin with the presumption “that the General Assembly meant what it said and said what it meant.” Deal v. Coleman, 294 Ga. 170, 172 (1) (a) (751 SE2d 337) (2013) (citation and punctuation omitted). Thus, our search for the meaning of a statute “must begin with the words of the statute, and if those words are clear and unambiguous, the search also must end there.” Northeast Atlanta Bonding Co. v. State of Ga., 308 Ga. App. 573, 577-578 (1) (707 SE2d 921) (2011) (citations omitted). See also Deal, 294 Ga. at 173 (1) (a) (“if the statutory text is ‘clear and unambiguous,’ we attribute to the statute its plain meaning, and our search for statutory meaning is at an end”) (citation omitted). Here, OCGA § 19-13-1 defines family violence as including the commission of certain acts, including battery and assault, “between persons living or formerly living in the same household.” Given this unambiguous language, and given that it is common for siblings to live in the same household at some point in their lives, we must conclude that the legislature intended to include the commission of certain acts between siblings within the scope of the Family Violence Act. Accordingly, the trial court had jurisdiction to enter a protective order against Jones, and his motion for a new trial was without merit. We therefore affirm the denial of that motion.

Judgment affirmed.

Mercier, J., concurs. Ellington, P. J., concurs in judgment only.

       Jones has not appealed the trial court’s dismissal of his motion for reconsideration.

       The court also found that probable cause existed to arrest Jones on charges of aggravated assault and aggravated battery and ordered that Jones be taken into custody. The record does not show the outcome of any criminal charges filed against Jones, and those charges are not at issue on this appeal.

       This conclusion is reinforced by the fact that, as noted above, in imposing enhanced penalties for certain crimes that could be considered an act of family violence, the legislature incorporated language expressly excluding crimes between siblings from those provisions. We therefore must assume that had the legislature intended to exclude conduct between siblings from the Family Violence Act, it would have included express language to that effect in OCGA § 19-13-1.


author: MILLER, Presiding Judge.

text:
    A16A0432.
    THE STATE v. COOK.
    (786 SE2d 876)
   MILLER, Presiding Judge.

Nekia Cook was injured in a car accident and taken to Grady Hospital. Security officers at the hospital allegedly noticed an odor of marijuana emanating from Cook’s backpack, confiscated the bag, and searched it. Inside, they found a mason jar full of marijuana. The security officers called the Atlanta Police Department, and the officer who responded then searched the bag without obtaining a warrant. After Cook was arrested and charged with possession with intent to distribute marijuana (OCGA § 16-13-30), he moved to suppress the evidence. The trial court granted the motion, and the State now appeals. We affirm.

In reviewing the grant ... of a motion to suppress, we construe the evidence in a light most favorable to upholding the trial court’s findings and judgment. . . . [W]e will not disturb the lower court’s ruling if there is any evidence to support its findings. . . . The trial court’s application of law to undisputed facts, however, is subject to de novo review.

(Citation omitted.) Adkinson v. State, 322 Ga. App. 1 (743 SE2d 563) (2013). Where the trial court has made express findings of disputed facts, this Court is limited to those facts, and we will accept them unless they are clearly erroneous. Hughes v. State, 296 Ga. 744, 746 (1) (770 SE2d 636) (2015).

So viewed, the testimony at the suppression hearing showed that Cook was transported at his request by ambulance to Grady Hospital following a traffic accident. Upon arrival, Grady’s security officers searched the backpack he was carrying in his lap. The officers found a mason jar of marijuana and called the police. When a police officer responded, he searched the bag and found the drugs and some clothing. The officer had no personal knowledge of what Grady security personnel had seen, nor did he smell the marijuana himself, and none of this information was included in his police report. The officer arrested Cook and then obtained a search warrant.

In its sole enumeration of error, the State argues that the trial court erred by suppressing the evidence because (a) the exclusionary rule did not apply; (b) the search was reasonable; and (c) no warrant was necessary because the search did not invade Cook’s expectation of privacy. We disagree.

“The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated.” (Citations, punctuation and emphasis omitted.) Smith v. State, 324 Ga. App. 542, 544 (1) (751 SE2d 164) (2013). Officers may gain “access justified by the Fourth Amendment by obtaining a warrant, obtaining consent, or by the existence of exigent circumstances which require the officers to act immediately without [a] warrant or consent.” (Citation and punctuation omitted.) Id. “[A] warrantless search is presumed to be invalid, and the State has the burden of showing otherwise.” Williams v. State, 296 Ga. 817, 819 (771 SE2d 373) (2015); see also OCGA § 17-5-30 (b) (the State bears the burden of proving that a search was lawful).

Here, the only testimony presented was that of the police officer who was called to Grady Hospital. Importantly, the officer did not testify that he personally smelled marijuana. Notably, the State did not present any testimony from the hospital security officers who allegedly smelled the marijuana, confiscated the bag, and searched it.

Moreover, the State does not argue that Cook consented or that there were exigent circumstances justifying a warrantless search. Therefore, on these facts, we must conclude, as a matter of law, that the State failed to meet its burden under OCGA § 17-5-30 (b) to prove that the warrantless search of Cook’s bag was lawful.

To the extent that the State argues that the officer’s inspection of the backpack was not a search because it did not extend any further than the prior search conducted by security personnel, the State did not raise this issue before the trial court. “Inasmuch as we are a court for the correction of errors, we do not consider issues which were not raised below and ruled on by the trial court.” (Citation and punctuation omitted.) Spivey v. State, 272 Ga. App. 224, 228 (2) (612 SE2d 65) (2005). We also do not address the State’s argument as to whether Grady Hospital security personnel are governmental actors or governmental law enforcement actors because the trial court did not address this issue below. Id. Accordingly, because the State failed to meet its burden to prove that the search was lawful, we affirm the trial court’s grant of the motion to suppress.

Decided May 25, 2016.

Paul L. Howard, Jr., District Attorney, Paige Reese Whitaker, Kevin C. Armstrong, Assistant District Attorneys, for appellant.

Sarina J. Woods, for appellee.

Judgment affirmed.

McFadden, J., concurs. McMillian, J., concurs in judgment only.

       In support of this argument, the State cites State v. Young, 234 Ga. 488, 493 (2) (216 SE2d 586) (1975), setting out three categories of searches: those by private persons, those by governmental agents, and those by governmental law enforcement agents. The Supreme Court held in Young that there is no Fourth Amendment interest at stake in searches conducted by private persons; searches by governmental agents are subject to Fourth Amendment protections, but not the exclusionary rule; and governmental law enforcement agents are covered by Fourth Amendment standards as well as by the exclusionary rule. Id.

       The States concedes for purposes of appeal that Grady Hospital security officers are “state actors.”

       We note that the smell of marijuana, alone, can be sufficient probable cause to support a search warrant. State v. Kazmierczak, 331 Ga. App. 817, 823 (771 SE2d 473) (2015). Thus, the proper action here would have been to obtain a warrant before searching the bag.


text:
    A16A0455.
    HUDSON v. BUTLER et al.
    (786 SE2d 879)
   MILLER, Presiding Judge.

Nicola Hudson was denied unemployment compensation after she voluntarily quit her job as a certified nursing assistant (“CNA”) at Pinehill Nursing Center. Hudson appealed, and after a hearing, an administrative hearing officer (“AHO”) affirmed the decision. Hudson also sought review by the Department of Labor’s Board of Review (“the Board”), which also affirmed. Hudson then filed a petition for review in superior court, which affirmed the Board’s decision. Hudson requested permission to file a discretionary appeal, which this Court granted. Hudson’s sole enumeration of error on appeal is that the Board’s decision is contrary to Georgia law because she had good cause for quitting her position as a CNA. For the reasons that follow, we agree with Hudson and therefore reverse the Board’s decision.

“Judicial review of an administrative decision requires [this Court] to determine that the findings of fact are supported by ‘any evidence’ and to examine the soundness of the conclusions of law that are based upon the findings of fact.” (Citation and punctuation omitted.) Davane v. Thurmond, 300 Ga. App. 474, 475 (685 SE2d 446) (2009). “When this Court reviews a superior court’s order in an administrative proceeding, our duty is not to review whether the record supports the superior court’s decision but whether the record supports the final decision of the administrative agency.” (Citation and punctuation omitted.) Id. This Court reviews legal conclusions de novo. Ga. Dept. of Agriculture v. Brown, 270 Ga. App. 646, 649 (2) (607 SE2d 259) (2004). “[T]he question of whether [Hudson] quit [her] job either with or without ‘good cause’ requires a legal conclusion. . . Holstein v. North Chemical Co., 194 Ga. App. 546, 548 (3) (390 SE2d 910) (1990).

According to the evidence obtained at the administrative hearing, Hudson worked as a CNA at Pinehill Nursing Center from October 29, 2014, through March 10, 2015. She voluntarily quit her job because she was often required to single-handedly tend to patients who required two-person assistance. Working in this manner aggravated a pre-existing back injury, which caused her to limp, and put both her own safety and that of her patients at risk. The nursing home was aware of her back injury because she listed it in her employment application when she was hired. Hudson testified that beginning in February 2015, she asked the assistant director of nursing for assistance at least ten times, but she never received any help. On March 10, Hudson submitted a written request to the assistant director of nursing and the director of nursing, asking that she be placed on “PRN” (as needed) status, effective immediately. When she learned that she would not have any assistance on her shift the following day, she advised the director of nursing that she was on PRN status and that she would not be coming in to work because no one was scheduled to assist her that day. The director of nursing told her she was just “having a bad day,” that changing to PRN status required two weeks notice for the change to be effective, and if she did not come in, she would be considered a “no call/no show,” which would effectively terminate her job. Hudson believed that she had done all that was required to change to PRN status, and she was unaware that she could not change her status to PRN until the new shift schedule, two weeks later. Hudson did not want to quit her job and only planned to be on PRN status until staffing improved.

Human resources manager Carrie Kilpatrick testified that she believed Hudson quit without notice, and she was unaware of any requests for assistance Hudson may have made. The director of nursing, Charlotte Best, testified that Hudson never requested assistance. Best further testified that PRN status was not designed to allow staff to fail to work when scheduled, and changing to PRN status required two weeks advance notice, enough time for the new shift schedule to go into effect. Thus, when Hudson did not report to her shift on March 11, Best considered Hudson to have quit without notice.

After noting that there was no dispute that Hudson had voluntarily quit her job, the AHO found that Hudson had complained to her supervisor multiple times that she needed assistance. Nevertheless, the AHO determined that under OCGA § 34-8-194 (1), Hudson was disqualified from unemployment compensation because she voluntarily left her position for personal reasons. The Board affirmed the AHO’s decision, as did the superior court.

“[T]he public policy of this state is [that] economic insecurity due to unemployment is a serious menace to the health, morals, and welfare of the people of this state. . . OCGA § 34-8-2. Therefore, “Georgia . . . has a strong public policy favoring payment of unemployment benefits to persons unemployed through no fault of their own.” (Emphasis in original.) Williams v. Butler, 322 Ga. App. 220, 223 (1) (744 SE2d 396) (2013). Moreover, in light of the expressed purpose of the Employment Security Law, OCGA § 34-8-1 et seq., courts should liberally construe the provisions of the unemployment statutes in favor of the employee, and statutory exceptions and exemptions that are contrary to the expressed intention of the law should be narrowly construed. Dalton Brick & Tile Co. v. Huiet, 102 Ga. App. 221, 224 (2) (115 SE2d 748) (1960) (construing the former Code section applicable to the denial of benefits, Ga. Code § 54-610 (d) and explaining that exceptions must be narrowly construed).

Under OCGA § 34-8-194 (1),

[a]n individual shall be disqualified for benefits . . . after such individual has left the most recent employer voluntarily without good cause in connection with the individual’s most recent work. Good cause ... shall be determined by the Commissioner according to the circumstances in the case.... [T]he burden of proof of good cause . . . shall be on the individual.

OCGA § 34-8-194 (1) (A), (B), (D).

This Court has ruled that unhealthy conditions in the workplace can constitute good cause for resigning from one’s employment under OCGA § 34-8-194 (1), concluding that, if the employee

voluntarily quit [her] job because the work environment caused or aggravated a pre-existing medical condition to the extent that [she] either was unable to perform properly [her] employment duties, or was unable to perform properly [her] employment duties without unreasonable risk of harm to [her] health due to continued employment, and that the employee timely notified [her] employer of the reason for [her] decision, such voluntary quitting would be with due cause as a matter of law.

(Citations and emphasis omitted.) Holstein, supra, 194 Ga. App. at 548 (3). Moreover, the Georgia Department of Labor’s Rules state that an employee who voluntarily quits is not disqualified from receiving benefits if she can show a “good work connected cause” for quitting. Ga. Comp. R. & Regs., r. 300-2-9-.05. Factors under consideration include

[w]hether the employee’s health was placed in jeopardy by conditions on the job. There must be some clear connection between the health problem and the performance of the job, and professional medical advice is required unless the reason would be obvious that harm to the employee would result from continued employment. This includes such obvious things as broken limbs, violent reactions such as allergies due to the environment on the job and similar circumstances. Provided, however, the employee must discuss the matter with the employer to seek a solution by another assignment or other changes that would be appropriate to relieve the medical problem before the employee can show good work-connected cause for quitting.

(Emphasis supplied.) Ga. Comp. R. & Regs., r. 300-2-9-.05 (1) (e).

There is no dispute here that Hudson voluntarily quit her job. Therefore, the only question before this Court is whether the AHO and the Board erred when they found that Hudson did not have good cause for quitting her job. We find Holstein, supra, instructive here and conclude that the AHO’s legal determination that Hudson quit for personal reasons was incorrect. The AHO found that Hudson had informed the assistant director of nursing and the director of nursing of her pre-existing injury and lack of assistance with residents on many occasions; however Hudson was given no relief. Hudson testified that working on her own, handling patients who required two-person assistance, aggravated her back injury and caused her to limp. Additionally, she explained that working in this manner posed a safety risk to both Hudson and the residents. Hudson’s limp would have been obvious to her employer, especially given that she informed them of her pre-existing back injury when she was hired. Moreover, the director of nursing and assistant director would have been aware of the risks involved in allowing one employee to handle patients requiring two-person assistance. Thus, we find that Hudson’s health problem and harm were obvious, and that Hudson’s discussion of her concerns with the assistant director of nursing and the director of nursing were sufficient to constitute alerting her supervisor of the problem. Holstein, supra, 194 Ga. App. at 548 (3); Ga. Comp. R. & Regs., r. 300-2-9-.05 (1) (e). We therefore conclude that Hudson quit her job with good cause, and she was not disqualified from receiving unemployment benefits. Accordingly, we reverse the Board’s decision.

Decided May 25, 2016.

William L. Sanders, for appellant.

Samuel S. Olens, Attorney General, Kimberly B. Lewis, Senior Assistant Attorney General, for appellee.

Judgment reversed.

McFadden and McMillian, JJ., concur.

       The AHO questioned whether Hudson had submitted medical records. Hudson responded that she was not treated by a doctor for her injury and there were no medical records. Hudson stated, however, that she had listed the pre-existing injury in her application to Pinehill’s human resources. Although Hudson subpoenaed the nursing home for copies of this record, the human resources director testified that she did not receive a subpoena.

       Notifying her supervisors was sufficient to “discuss the matter with the employer,” and Hudson was not required to bring her complaints to human resources.


author: Phipps, Presiding Judge.

text:
    A16A0534.
    WOLF CREEK LANDFILL, LLC v. TWIGGS COUNTY.
    (786 SE2d 862)
   Phipps, Presiding Judge.

Following the grant of its application for interlocutory review, Wolf Creek Landfill, LLC (“Wolf Creek”) appeals from the denial of its motion to dismiss a breach of contract action. Wolf Creek contends that the six-year statute of limitation for breach of contract actions barred the action filed against it by Twiggs County, Georgia (“the County”) and that the trial court erred in concluding that an anti-waiver clause in the parties’ agreement allowed the County to proceed on its claims. Because the anti-waiver clause applies to “provisions” of the contract and not to claims arising from breach thereof, we reverse the denial of Wolf Creek’s motion to dismiss.

We review a trial court’s ruling on a motion to dismiss de novo. “Our role is to determine whether the allegations of the complaint, when construed in the light most favorable to the plaintiff, and with all doubts resolved in the plaintiff s favor, disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts.”

On or about July 8, 2005, the County, along with Wilkinson County, sold to Wolf Creek a landfill that was located in the County As a condition of closing, the parties also entered into a Landfill Operating Agreement (the “Agreement”). The County’s complaint, which was filed on March 6, 2015, arises out of Wolf Creek’s alleged breach of the Agreement.

Wolf Creek answered the complaint and filed a motion to dismiss under OCGA §§ 9-11-12 (b) (6) and 9-3-24 for failure to state a claim upon which relief could be granted, arguing that the County’s claims were barred by the six-year statute of limitation governing breach of contract. The County replied that the Agreement extended the limitation period for the permitted life of the landfill.

The trial court denied Wolf Creek’s motion to dismiss, concluding that Section 18 of the Agreement allowed the County to proceed on its claims. Wolf Creek appeals.

1. Wolf Creek argues that the applicable statute of limitation bars the County’s breach of contract claims. The County responds that the parties agreed to waive the benefit of the statute of limitation during the term of the Agreement and that any ambiguity in the contract should be construed against Wolf Creek, as the drafter of the agreement.

Section 11 of the Agreement (“Expansion Fee”) provided that Wolf Creek would pay the County for each cubic yard of expansion of the landfill, upon receipt of a nonappealable expansion permit from the Georgia Department of Natural Resources (“DNR”). Section 9 of the Agreement provided that upon accepting municipal solid waste in the landfill from sources other than Twiggs or Wilkinson County, Wolf Creek would pay the County a quarterly host fee based upon the tonnage of waste received (but no less than $135,000 per year).

According to the complaint, Wolf Creek breached Section 11 of the Agreement on January 28, 2007, when it failed to pay the expansion fee of $330,152.55 upon receipt of a nonappealable permit from the Georgia DNR which almost doubled the volume of the landfill. The County also alleged that Wolf Creek breached the Agreement by underpaying quarterly host fees for the years 2006 (by $27,525) and 2007 (by $2,457).

Under Georgia law, “[a] 11 actions upon simple contracts in writing shall be brought within six years after the same become due and payable.” This statute of limitation begins to run at the time the alleged breach of contract occurs, not at a later time when damages are alleged to result or are discovered.

Because quarterly host fees were due within 30 days of the end of each calendar quarter, any fees for 2006 and 2007 would have been due no later than January 2008, more than six years before the County filed suit. As the complaint alleged, the expansion fee was due in January 2007, 30 days after the expansion permit was issued. Thus, the six-year statute of limitation barred the County’s claims unless the parties agreed otherwise.

The Agreement provides in relevant part:

8. Term. The term of this Agreement (the “Term”) shall commence on the Effective Date [July 5, 2005] and shall continue in full force and effect for the permitted life of the Acquired Landfill and all future expansions thereof.
18. Waiver. Failure to enforce any provision hereof shall not constitute a waiver by either party and any such provision shall remain in full force and effect and may be asserted by either party at any time during the period of this Agreement.

The record does not reveal the permitted life of the landfill. The “Expansion Fee” section, however, provides that if the capacity of the landfill is increased “by not less than five million cubic yards, then the term of this Agreement shall thereby be extended for an additional twenty (20) year term.” Because the complaint alleges that the expansion increased the volume of the Acquired Landfill by 6.6 million cubic yards, we can infer that the term is at least 20 years.

Georgia appellate courts have not addressed whether an anti-waiver provision, such as the one in Section 18, indicates an intent to waive or extend the statutory limitation period for breach of contract. While some states have statutory or judicial restrictions prohibiting or limiting contractual extensions of statutes of limitation, Georgia does not. Although we typically are called upon to interpret a shortening (rather than an extension) of the statute of limitation, we have stated that “ [contractual periods of limitation are generally enforceable under Georgia law.”

In this regard, the County primarily relies on a case from 1898, in which our Supreme Court stated:

As the law may prescribe such a limitation in which actions shall be brought by the party to be affected, it is also within the power of the contracting parties to agree among themselves upon a period of time which would amount to a statute of limitations, either greater or less than the period fixed by the law.

We need not decide whether Georgia law allows parties to contractually extend or waive completely the statute of limitation, however, as the anti-waiver provision in this case did neither.

“The cardinal rule of [contract] construction is to ascertain the intention of the parties. If that intention is clear and it contravenes no rule of law and sufficient words are used to arrive at the intention, it shall be enforced irrespective of all technical or arbitrary rules of construction.” “A contract... must be read reasonably, in its entirety, and in a way that does not lead to an absurd result.” In addition, we will not infer waiver of an important right unless the waiver is clear and unmistakable. “Parties may stipulate for other legal principles to govern their contractual relationship than those prescribed by law; however, these must be expressly stated in the contract.”

The anti-waiver clause in the Agreement applied when a party failed to enforce one of its provisions. In such event, the party may still assert such provision, which remains in full force and effect. “Under Georgia law, words in a contract generally bear their usual and common meaning and the usual and common meaning of a word may be supplied by common dictionaries.”

A “provision” is defined as: “1. A clause in a statute, contract, or other legal instrument. 2. A stipulation made beforehand.” An “action,” on the other hand, is statutorily defined as “the judicial means of enforcing a right.” A “ ‘[c]ivil action’ means an action founded on private rights, arising either from contract or tort.”

Construing the contract as a whole, we find only one reasonable interpretation of the anti-waiver clause in the Agreement. The clause would allow a party to require strict compliance with a contract provision going forward, despite its failure to do so previously. Under the facts of this case, for example, the anti-waiver clause would allow the County to demand strict compliance with Wolf Creek’s obligation to pay future quarterly host fees, despite its failure to do so in the past.

Decided May 25, 2016

Jones, Cork & Miller, Robert C. Norman, Hays B. McQueen, for appellant.

R. Lars Anderson, for appellee.

A statute of limitation, on the other hand,

has as its purpose the limiting of the time period in which an action may be brought, thereby providing a date certain after which potential defendants can no longer be held liable for claims brought on such actions. It is a procedural rule limiting the time in which a party may bring an action for a right which has already accrued.

While the anti-waiver clause applies to “provisions” in the Agreement, the statute of limitation applies to the parties’ rights to bring a civil action to remedy an alleged breach of those provisions.

The parties, who are presumed to have contracted with reference to the existing laws and their effect on the subject matter, did not express an intent to extend the six-year statute of limitation. We are not at liberty to rewrite a contract while purporting to construe it. Accordingly, we find that the trial court erred in interpreting the anti-waiver clause to extend the statute of limitation.

2. Because we find that the six-year statute of limitation barred the County’s claims based on the alleged failure to pay the expansion fee and underpayment of quarterly host fees for 2006 and 2007, we need not address Wolf Creek’s argument that a contractual extension of a statute of limitation period would violate public policy.

Judgment reversed.

Dillard and Peterson, JJ., concur.

        Sanders v. Trinity Universal Ins. Co., 285 Ga. App. 705, 706 (647 SE2d 388) (2007).

       Id. (punctuation and footnote omitted).

       The complaint also alleged that Wolf Creek underpaid 2010 quarterly host fees (by $344). In its motion to dismiss the complaint below, Wolf Creek acknowledged that the alleged breach in failing to pay 2010 host fees fell within the limitation period and did not seek dismissal of this claim in its motion. We thus do not address this claim.

       OCGA § 9-3-24.

        Hamburger v. PFM Capital Mgmt., 286 Ga. App. 382, 385 (1) (649 SE2d 779) (2007).

       See Miss. Code Ann. § 15-1-5 (“The limitations prescribed in this chapter shall not be changed in any way whatsoever by contract between parties, and any change in such limitations made by any contracts stipulation whatsoever shall be absolutely null and void, the object of this section being to make the period of limitations for the various causes of action the same for all litigants.”); N.Y. Gen. Oblig. Law § 17-103 (3) (“Apromise to waive, to extend, or not to plead the statute of limitation has no effect to extend the time limited by statute for commencement of an action or proceeding for any greater time or in any other manner than that provided in this section, or unless made as provided in this section.”). See also Amu v. Barnes, 283 Ga. 549, 553 (662 SE2d 113) (2008) (“Prescribing periods of limitation is a legislative, not a judicial, function.”) (citation and punctuation omitted).

       See Haggerty v. Williams, 855 A2d 264, 268-269 (Conn. App. 2004) (collecting cases regarding enforceability of permanent waiver of statutes of limitation at the inception of the original contract).

       See Gen. Elec. Credit Corp. v. Home Indem. Co., 168 Ga. App. 344, 346 (309 SE2d 152) (1983) (“Georgia has no statute preventing parties from contracting to limit the time within which an action on an insurance policy may be brought.”).

       See, e.g., Rabey Elec. Co. v. Housing Auth. of Savannah, 190 Ga. App. 89, 90 (2) (378 SE2d 169) (1989) (“While the statute of limitation for actions on simple contracts in writing is six years, .. . the Georgia courts have permitted parties to contract as to a lesser time limit within which an action may be brought so long as the period fixed be not so unreasonable as to raise a presumption of imposition or undue advantage in some way.”) (citations and punctuation omitted).

        N4D, LLC v. Passmore, 329 Ga. App. 565, 566 (1) (765 SE2d 717) (2014) (citation and punctuation omitted).

        Mass. Benefit Life Assn. v. Robinson, 104 Ga. 256, 272 (30 SE 918) (1898) (citations omitted; emphasis supplied).

       OCGA § 13-2-3.

        Office Depot v. The District at Howell Mill, 309 Ga. App. 525, 530 (2) (710 SE2d 685) (2011) (citation omitted).

        Accurate Printers v. Stark, 295 Ga.App. 172, 177 (1) (671 SE2d 228) (2008).

         Jenkins v. Morgan, 100 Ga.App. 561, 562 (1) (112 SE2d 23) (1959).

        King v. GenOn Energy Holdings, 323 Ga. App. 451, 455 (2) (747 SE2d 15) (2013).

       Black’s Law Dictionary, p. 1345 (9th ed. 2009).

       OCGA § 9-2-1 (1).

       OCGA § 9-2-1 (2).

       See Nebo Ventures v. NovaPro Risk Solutions, 324 Ga. App. 836, 844 (4) (752 SE2d 18) (2013) (“[N]o ambiguity exists where, examining the contract as a whole and affording the words used therein their plain and ordinary meaning, the contract is capable of only one reasonable interpretation.”) (citation and punctuation omitted); Office Depot, supra at 529-530 (2) (“[A] contract is not ambiguous, even though difficult to construe, unless and until an application of the pertinent rules of interpretation leaves it uncertain as to which of two or more possible meanings represents the true intention of the parties.”) (citations and punctuation omitted).

       See, e.g., Glimcher Properties v. Bi-Lo, LLC, 271 Ga.App. 322, 324 (1) (609 SE2d 707) (2005) (“Here, the evidence shows that the lease contained a valid ‘No Waiver’ provision, providing that [the tenant’s] failure to exercise any power given to it under the lease or to insist upon strict compliance with the lease terms in a given instance did not waive [the tenant’s] right to insist upon strict compliance with the terms of the lease at a later time.”). But see Smith v. Gen. Finance Corp., 243 Ga. 500, 501 (255 SE2d 14) (1979) (anti-waiver provisions may themselves be waived).

        Cedartown North Partnership v. Ga. Dept. of Transp., 296 Ga.App. 54, 57 (2) (673 SE2d 562) (2009) (citation and punctuation omitted; emphasis supplied).

       Id.

        Satterfield v. Southern Regional Health System, 280 Ga. App. 584, 586(1) (634 SE2d 530) (2006).

       Compare N4D, supra at 565 (construing contract provision entitled “Statute of Limitations,” which provided: “ ‘No action, regardless of form, arising out of the services under this Agreement, may be brought by either party more than one year after the cause of action has accrued, except that an action for nonpayment may be brought within one year of the date of the last payment.’ ”).

        Mull v. Mickey’s Lumber & Supply Co., 218 Ga. App. 343, 346(2) (461 SE2d 270) (1995).


author: DOYLE, Chief Judge.

text:
    A16A0377.
    BETHEA v. THE STATE.
    (786 SE2d 891)
   DOYLE, Chief Judge.

Following a jury trial, Anthony Bethea was convicted of voluntary manslaughter and concealing the death of another. He appeals from the denial of his motion for new trial, contending that the trial court erred by excusing a juror for cause after deliberations began. For the reasons that follow, we affirm.

Construed in favor of the verdict, the record shows that Bethea got into a drunken altercation with his roommate, Darrell Bailey, after a night out. The altercation ended when Bethea grabbed Bailey in a choke hold that caused Bailey to die. When Bailey did not revive from the choke hold, Bethea dragged his body to the woods, where it was discovered a few weeks later due to the strong odor of decomposition.

Bethea was charged with murder, felony murder, aggravated assault, and concealing the death of another. He testified at trial, making a self-defense argument. After the close of the evidence and the trial court’s instructions, the jury retreated to the jury room to deliberate at 4:17 p.m. The jury later asked the court a question, seeking clarification as to the use of hands as deadly weapons, which the trial court answered in writing with consent of both counsel. By 6:15 p.m., the jury was still deliberating, so the trial court adjourned for the day and reconvened proceedings the next day at 10:00 a.m.

The next morning, the courtroom deputy reported that when he opened the door to the jury room, a juror stated: “[S]he wants out, she can no longer be a part of this, bring an alternate in, she wants out.” With the consent of the parties, the court brought in the juror to inquire as to the circumstances.

The trial court first instructed the juror not to indicate her view on the verdict nor the view of any other jurors. The juror agreed and explained that one or two other people agreed with her, but she believed they “would be still in that room all week.” The trial court explained that they had only deliberated for two hours, and they needed to take more time to deliberate. The juror replied that she tried to complete the deliberation process, “but I just feel like I don’t want to be a part of it.” The trial court again explained the jury’s responsibility to examine the evidence and deliberate and asked if the juror could talk to the other jurors and try and reach a verdict. The juror responded, “Yes, ma’am, I can do that. We have to have one verdict. And if they keep what they going on and on [sic], ain’t nobody coming together . . . but I’m not going to be forced to go along with what they were saying just to put a verdict on the table. I can’t do that.”

During the conversation, the juror appeared to be upset and crying, and the trial court attempted to calm her. As the trial court spoke, the juror repeatedly interrupted the court. The juror expressed her opinion that she was “very static about the case ... I’m solid about the case.” The trial court asked if she would be able to listen to the other jurors in their deliberations, and the juror responded that “I listened to everybody’s opinion[,] and that’s what brought me to this point. They are set with staying with their opinion and not hearing... I’m not going to be swayed into go[ing] that route. I know that.” The court again reminded the juror of the short amount of time they had been deliberating and asked the juror if she could listen to the other jurors and “try to deliberate and decide the case,” and the juror responded that she would “try one more time.”

The juror returned to the jury room, and the courtroom deputy recounted that he had heard her say the prior day that she had already made her decision. After hearing from both parties, the court examined case law and explained that “I’m not looking at her saying she’s got a different opinion with somebody else.... My concern is the way she . . . approached [the deputy] and she was wanting to leave, wasn’t wanting to talk to anybody, her mind was made up.” The deputy confirmed that the juror said “she was wanting to go.” The court also expressed a concern, based on the juror’s demeanor and repeated interruptions, that the court did not expect the juror to engage in rational, impartial deliberation with the other jurors. Based on the court’s inquiry and argument of counsel, the court excused the juror over Bethea’s objection. As the juror was being escorted out of the jury room, the juror stated that the other jurors were “beginning to do what they’re supposed to be doing in there . . . now they’re making that decision more where I was — I am.” After further deliberation, the jury, with the alternate, returned a verdict of guilty as to voluntary manslaughter as a lesser included offense of felony murder, aggravated assault, and concealing the death of another. The trial court then merged the aggravated assault count with the manslaughter count. Bethea’s motion for new trial was denied, giving rise to this appeal.

Bethea argues that the trial court erred by excusing the juror and replacing her with an alternate. We find no basis for reversal.

OCGA § 15-12-172 provides: “If at any time, whether before or after final submission of the case to the jury, a juror dies, becomes ill, upon other good cause shown to the court is found to be unable to perform his duty, or is discharged for other legal cause, the first alternate juror shall take the place of the first juror becoming incapacitated.” The trial court must exercise its discretion in removing a juror, and it may effect such a removal even after deliberations have begun. There must be some sound basis upon which the trial judge exercises his discretion to remove the juror. A sound basis may be one which serves the legally relevant purpose of preserving public respect for the integrity of the judicial process. Where the basis for the juror’s incapacity is not certain or obvious, some hearing or inquiry into the situation is appropriate to the proper exercise of judicial discretion. Dismissal of a juror without any factual support or for a legally irrelevant reason is prejudicial.

“[A] trial court has broad discretion to determine whether it is appropriate to remove a juror,” and such a ruling is reviewed for an abuse of the court’s discretion.

Here, the trial court’s main concern was that the juror was visibly upset and had reached a fixed and definite opinion so soon after the deliberation began without fully vetting the evidence with the other jurors. The juror had expressed that her mind was made up, she “wanted to go,” and she could “no longer be a part of this.” “Legal cause [for excusing a juror] arises when the court determines, in its sound discretion, that the juror holds an opinion so fixed and definite that he or she cannot lay it aside and decide the case on the evidence presented and the court’s charge.” Although the juror did equivocate about her ability to deliberate, there was evidence that she had reached an unwavering opinion fewer than two hours into the deliberation. Unlike other cases where, for example, a trial court erred by excusing a lone holdout after more than two days of deliberation, there is evidence showing that, very early on, the juror had ceased deliberating with the other members of the jury and “wanted out” of the process.

Decided May 26, 2016.

Kenneth D. Kondritzer, for appellant.

Paul L. Howard, Jr., District Attorney, Cynthia Cartwright, Assistant District Attorney, for appellee.

The fact that the juror eventually stated that [s] he could be impartial [and deliberate] does not require the trial court to ignore the numerous times [s]he equivocated or the other [evidence] showing that [s]he expressed a fixed and definite opinion and does not make the trial court’s credibility decision to strike [her] error.

Further, the record is clear that, despite excusing the juror, the trial court carefully considered avoiding excusing the juror simply because she might be in the minority or a potential holdout. The trial court voiced her concern that jurors not be removed simply because they were holdouts, saying “the [mere] fact that one juror does not agree with the other [does] not constitute cause for removal.” Instead, the court’s basis for excusing her was the juror’s unwillingness to meaningfully participate in deliberation based on a thorough review of the evidence.

In light of the trial court’s inquiry on the record into the juror’s mindset and demeanor, the court’s careful consideration of the relevant concerns, and the juror’s explicit resistance to deliberation, and the evidence supporting a finding that the juror held a fixed and definite opinion so early in the process, the trial court did not abuse its discretion by excusing the juror. Accordingly, we discern no reversible error.

Judgment affirmed.

Andrews, P. J., and Ray, J., concur.

       OCGA § 16-5-2 (a).

       OCGA § 16-10-31.

       See Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).

       The trial court cited Reynolds v. State, 271 Ga. 174, 175 (2) (517 SE2d 51) (1999), in which the Supreme Court of Georgia affirmed the decision of a trial court to excuse a juror who became aware that he knew several of the defendant’s relatives and believed this would impact his decision.

       Bethea made no argument about potential racial bias in the jury composition.

       (Citations and punctuation omitted.) Butler v. State, 290 Ga. 412, 417 (5) (721 SE2d 876) (2012).

        Smith v. State, 298 Ga. 357, 360 (3) (782 SE2d 26) (2016).

       See State v. Clements, 289 Ga. 640, 645, n. 5 (715 SE2d 59) (2011).

        Ganas v. State, 245 Ga. App. 645, 648 (3) (537 SE2d 758) (2000).

       See, e.g., Mason v. State, 244 Ga. App. 247, 249 (1) (535 SE2d 497) (2000) (“Contrary to the trial court’s ruling, the juror did not fail to deliberate, but instead had reached her decision after having fully deliberated for more than two days.”).

       (Punctuation omitted.) Butler, 290 Ga. at 418 (5).

       See Alford v. State, 244 Ga. App. 234, 237-238 (534 SE2d 103) (2000), citing Cloud v. State, 235 Ga. App. 721, 722 (1) (510 SE2d 370) (1998).