author: Branch, Judge.

text:
    A12A1931.
    HOWARD v. GMAC MORTGAGE, LLC.
    (739 SE2d 453)
   Branch, Judge.

In this dispossessory action, Matthew W. Howard appeals, pro se, from two separate orders entered below. The first of these orders granted the landowner, GMAC Mortgage, LLC, a writ of possession for the premises in question. The second order dismissed Howard’s appeal of the writ of possession, based upon his failure to pay rent into the registry of court during the pendency of that appeal. For reasons explained below, we affirm the order of the trial court granting GMAC a writ of possession. Furthermore, because we decide Howard’s original appeal on the merits, his appeal of the order dismissing his appeal of the writ of possession is moot.

The undisputed facts show that in June 2010, GMAC filed a dispossessory warrant against Howard in Cherokee County State Court, asserting that he was a tenant at sufferance as a result of GMAC’s purchase of the property at a May 2010 foreclosure sale. Howard filed an answer asserting as his defense that the foreclosure sale was wrongful and that he had wrongful foreclosure actions pending against GMAC and others in Cherokee County Superior Court, and that action was removed to the United States District Court for the Northern District of Georgia. Howard also asserted a counterclaim for intentional infliction of emotional distress, based on GMAC’s decision to seek a writ of possession despite its knowledge of Howard’s wrongful foreclosure lawsuits. The case was thereafter transferred to Cherokee County Superior Court.

GMAC moved for summary judgment on its claim for a writ of possession and on Howard’s counterclaim. Following an evidentiary hearing, the trial court granted that motion and issued the writ of possession on December 8, 2010. Howard filed his notice of appeal as to that writ on December 13, and then sought to be relieved of paying the costs of his appeal by applying to proceed in forma pauperis. The trial court denied Howard’s application to proceed in forma pauperis on February 18,2011, and Howard attempted to appeal that decision. His application for discretionary appeal, however, was denied by this Court. The court below also entered an order requiring Howard to pay rent into the registry of the court pending his appeal of the writ of possession. Howard filed an untimely notice of appeal as to that order, and the appeal was therefore dismissed for lack of jurisdiction.

After Howard failed for a number of months either to pay rent into the registry of court while his appeal of the writ of possession was pending, or to pay the costs necessary for the docketing of that appeal, GMAC moved to dismiss the appeal. Following the close of Howard’s bankruptcy case, the trial court held a hearing on GMAC’s motion, and thereafter issued an order dismissing Howard’s original appeal and granting GMAC a second writ of possession. Howard then filed his notice of appeal from that order and apparently paid costs in the trial court, as the record in the case was transmitted to this Court. Both Howard’s original appeal from the writ of possession and his appeal from the order dismissing that appeal were docketed together under the current case number. We now turn to the merits of those appeals.

1. We first address Howard’s claim that the court below erred in granting the writ of possession. Howard argues that GMAC was not entitled to the writ because it had wrongfully foreclosed on his property. He further contends that the trial court erred in refusing to allow him to present evidence of wrongful foreclosure; in denying him a jury trial; in threatening him with contempt at the hearing on GMAC’s motion for summary judgment; and in granting the writ without affording him, as a pro se litigant, additional time to address the cases and arguments presented by GMAC at the hearing. We find no merit in any of these claims.

(a) The trial court did not err in granting the writ of possession despite Howard’s allegation that GMAC had wrongfully foreclosed on the property. It is well established that the alleged invalidity of a foreclosure sale cannot be asserted as a defense in a subsequent dispossessory proceeding. See Hurt v. Norwest Mtg., 260 Ga. App. 651, 659 (2) (i) (580 SE2d 580) (2003).

The purchaser at a foreclosure sale under a power of sale in a security deed is the sole owner of the property until and unless the sale is set aside. It is not germane to a dispossessory proceeding to allege that a contract under which the plaintiff claims to derive title from the defendant is void and should be canceled. If the sale of the premises under the power of sale in the loan deed was void on account of its improper exercise, or because the loan was not mature, this [can] not be set up as a defense to a dispossessory proceeding under . . . OCGA §§ 44-7-50 [and] 44-7-53.

(Punctuation omitted; emphasis supplied.) Bellamy v. Fed. Deposit Ins. Corp., 236 Ga. App. 747, 749 (a) (512 SE2d 671) (1999). See also Solomon v. Norwest Mtg. Corp., 245 Ga. App. 875, 876 (1) (538 SE2d 783) (2000) (“after foreclosure sale, the former owner cannot attack dispossession without first setting aside the foreclosure and deed”) (punctuation and footnote omitted); Hague v. Kennedy, 205 Ga. App. 586, 588 (423 SE2d 283) (1992) (“[c]laimed defects in the landlord’s title to premises cannot be raised as a defense” in a dispossessory proceeding) (citations and punctuation omitted). Thus, while Howard was free to — and did — challenge the foreclosure and GMAC’s title to the property by way of his separate lawsuit that was removed to federal court, he could not use the allegation of wrongful foreclosure as a defense to the dispossessory proceeding. Sanders v. Daniel, 302 Ga. App. 350, 351 (1) (691 SE2d 244) (2010).

(b) Howard also asserts that the court below erred in refusing to allow him to present evidence to support his defense of wrongful foreclosure. This argument, however, ignores the fact that wrongful foreclosure is not a defense to a dispossessory proceeding. Accordingly, the trial court properly refused to allow Howard to present evidence of GMAC’s alleged wrongful foreclosure. See Reliance Trust Co. v. Candler, 315 Ga. App. 495, 501 (3) (726 SE2d 636) (2012) (“Although Georgia law favors the admission of relevant evidence, evidence that does not bear directly or indirectly on the questions [before the court] should be excluded as irrelevant.”).

(c) Howard further contends that the court erred in denying him a jury trial. We disagree. While the right to a jury trial exists in dispossessory actions, “[t]he existence of the right does not demand that a jury trial be held in all cases, including those where no issues remain for jury determination.” Hallisy v. Snyder, 219 Ga. App. 128, 129 (3) (464 SE2d 219) (1995). Here, the only potential jury issues that Howard raised related to his claim that GMAC wrongfully foreclosed on the property. Given that this claim could not serve as a defense in a dispossessory proceeding, however, the trial court did not err in refusing Howard a jury trial on this issue. Id. See also Allen v. Tucker Fed. Bank, 236 Ga. App. 245, 246 (2) (510 SE2d 546) (1998) (where defendants in a dispossessory proceeding asserted counterclaims that “lack[ed] merit as a matter of law, the trial court properly denied their motions for a jury trial”).

(d) Howard argues that during the evidentiary hearing that resulted in the writ of possession, the court violated his constitutional rights by threatening him with contempt if he continued the defense of his case. This assertion, however, misrepresents what transpired at the hearing. The transcript shows that the court threatened to hold Howard in contempt only after he repeatedly interrupted the court. After several interruptions, the judge told Howard:

When I’m speaking you need to stop talking. If you want us to continue — I’m conducting this hearing as fairly as I know how to do. I can’t tell you what to do, but I can tell you that when the Court is speaking you don’t need to interrupt me, and if you continue to do it we’re going to discontinue the hearing and I’m going to hold you in contempt.

Under these circumstances, we find nothing improper in the trial court’s admonition of Howard. See OCGA § 15-1-3 (1) (every court has the power “[t]o preserve and enforce order in its immediate presence and, as near thereto as is necessary, to prevent interruption, disturbance, or hindrance to its proceedings”); In re Herring, 268 Ga. App. 390-391 (2) (601 SE2d 839) (2004) (“[c]ontempt of court, in its broad sense, means disregard for or disobedience of the order or command of the court; this also includes the interruption of court proceedings”) (footnote omitted).

(e) At the evidentiary hearing on the writ of possession, GMAC’s lawyer cited several cases to support his argument that wrongful foreclosure is not a defense in a dispossessory action and that, unless and until the foreclosure is put aside, the title holder is entitled to possession of the property. When asked if he had any authority to the contrary, Howard responded, “That argument was not stated in any of the filings. So I was not prepared to make a counter to that argument.” The court then proceeded to hear the evidence and, at the end of the hearing, stated that it was going to grant the writ of possession. On appeal, Howard contends that because he is a pro se litigant, the trial court should have given him additional time to respond to GMAC’s legal arguments before granting the writ of possession. We disagree.

Decided March 7, 2013

Reconsideration denied April 10, 2013.

Moore, Ingram, Johnson & Steele, Matthew J. Howard, for appellant.

Brock & Scott, Kyle S. Kotake, for appellee.

Georgia law makes clear that a litigant’s pro se status does not entitle him to any deferential treatment. It is true that, as Howard points out, pro se litigants are held to less stringent standards than attorneys with respect to their pleadings. Campbell v. McLarnon, 265 Ga. App. 87, 90 (2) (593 SE2d 21) (2003). Other than this exceptionfor pleadings, however, a court cannot apply different standards to a pro se civil litigant and one represented by counsel. Id. See also Long v. Marion, 257 Ga. 431, 434 (2) (360 SE2d 255) (1987) (finding that pro se litigant had waived his defense of insufficient service where, even though he raised it in his answer, he failed to request that the defense be included in the pretrial order). Accordingly, Howard’s pro se status did not obligate the trial court to grant him additional time to respond to arguments made by GMAC’s lawyer at the evidentiary hearing.

2. Given that we have addressed the merits of Howard’s appeal of the writ of possession, his appeal of the trial court’s order dismissing his appeal of the writ is hereby dismissed as moot. See Owens v. Green Tree Servicing, 300 Ga. App. 22, 25 (3) (684 SE2d 99) (2009).

Judgment affirmed.

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

       Additionally, we dismiss as moot GMAC’s motion to dismiss both of Howard’s appeals.

       See Solomon v. Norwest Mtg. Corp., 245 Ga. App. 875, 876 (1) (538 SE2d 783) (2000) (where the former property owner “remains in possession of the premises after lawful foreclosure of the deed, she is a tenant at sufferance and is subject to be summarily dispossessed by the purchaser at the foreclosure sale”) (punctuation and footnote omitted).

       On September 12, 2011, the United States District Court granted summary judgment against Howard and in favor of the named defendants, including GMAC, on all of Howard’s claims, including his claim for wrongful foreclosure. See Howard v. Mtg. Electronic Registration Systems, 2012 WL 3582586 (N.D. Ga., August 17, 2012) (denying Howard’s motion for reconsideration of the summary judgment order).

       Howard’s motion to supplement the record on appeal with documents relating to his defense of wrongful foreclosure, but which were not made a part of the record below, is hereby denied. See Dunwoody-Woodlands Condo. Assn. v. Hedquist, 199 Ga. App. 91 (1) (403 SE2d 893) (1991).


source: Caselaw Access Project

author: Boggs, Judge.

license: Public Domain

text:
    A12A2170.
    WATTS v. THE STATE.
    (739 SE2d 129)
   Boggs, Judge.

Taryn Watts appeals from her convictions for simple assault and battery. She contends that the trial court erred by failing to merge her convictions; that the “[e]vidence was insufficient to prove beyond a reasonable doubt that [she] did not act in self-defense”; and that the trial court committed errors in its sentence. While we affirm Watts’ convictions and conclude that the trial court was not required to merge her convictions, we must vacate the trial court’s sentence with regard to restitution and credit for time served and remand this case to the trial court for correction of errors in the sentence.

When reviewing the sufficiency of the evidence,

the relevant question is 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. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.

(Citations and footnote omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979). So viewed, the record shows that the State’s charges against Watts resulted from a physical fight between Watts and her ex-boyfriend’s new girlfriend, Tava Murphy. According to Murphy, while two women were arguing outside about whether Watts and another woman had reported the two women to the Department of Family and Children Services, Watts came “charging down the hill” and approached one of the women “like she’s about to jump on her.” Murphy testified that she grabbed Watts from behind, and they “both kind of wrestled around and rolled around on the ground for a minute, and I ended up on top of her. . . .” Murphy tried to keep Watts “from jumping up or getting up,” while Watts hit her repeatedly. Murphy admitted pulling off Watts’ wig during this fight. Murphy explained that the fight ended when “[sjomebody broke us up.” She then went to a friend’s nearby trailer to wash her face.

Murphy testified that when she went outside to ask for a ride home, she saw Watts “come out from standing by a truck.” She explained that when a group of people outside saw Murphy, “they’re all basically trying to [rev] it up again and agg [sic] it on. And then [Watts] comes up to me and is like, What? What you wanna do? You want some more?’ Murphy explained that because Watts “hit me I don’t know how many times” in the first fight and she “wasn’t about to let that happen again,” she hit Watts first when Watts got close enough. She denied having any weapon or rock in her hand when she hit Watts “two or three times.” She then saw Watts

messing around with her pants, and I remember her bending down like maybe she had dropped something. And when she came back up, that’s when my forehead, it started bleeding and I couldn’t see. So I’m thinking ... I didn’t feel anything. So I was thinking that maybe she hit me with something but I wasn’t sure really what happened.

Murphy tried to keep Watts at arm’s length by holding onto Watts’ left shoulder with her left arm because she “didn’t know if she had a rock or — I didn’t know what she had.” She also “kept trying to hit her and defend [her] self as best [she] could.” She admitted reaching onto the ground looking for something with which to hit Watts, but claimed she found nothing but gravel and dropped it because she could not “do anything” with it. She denied hitting Watts with a rock. She described the fight as “back and forth, back and forth. So, as many as I was throwing, it was coming back at me.” Until the fight was broken up, Murphy did not realize she had been cut. She admitted that she had consumed a lot of alcohol in the hours before the two fights.

Murphy was taken to the hospital where a doctor used a total of 118 external sutures and 47 staples to close her wounds. The length of Murphy’s slash wounds added together totaled 83 centimeters. A forensic pathologist testified that Murphy had multiple slash wounds in the following areas: down the side of her head, through her ear and onto her neck; two inches long on the back of her head; two inches long on her left front shoulder; horizontal on her forehead over the right eye; on the front of her left upper arm near the elbow fold; and three very long ones going diagonally across her back. He opined that the head wounds occurred first and that the back wounds happened last. With regard to the back wounds, which were similar in length and parallel to one another, he opined that Murphy would have been stationary while these “cluster” wounds were inflicted with repetitive movement “very rapidly.” If she had been standing with her left arm forward while bending to the ground with her right arm, she would have been “in a proper position to receive those wounds.”

The forensic pathologist also reviewed a photograph of Watts, and concluded that one of the wounds on her face could have been caused by “an instrument with something that has a linear shape to it, like a one-by-two or perhaps an edge of a brick or something like that.” He testified that this injury could not have been caused by a fist because it had a pattern to it, and agreed that it would be consistent with a piece of concrete.

Watts did not testify at trial, but a police officer testified that she told him at the hospital that she had been hit in the face with a rock while trying to break up a fight. She had visible injuries on her face. In a later statement provided to police, Watts stated that Murphy initiated both fights, and she explained again that she had been hit in the face with a rock and therefore used a small razor to defend herself. She also claimed that Murphy made statements instigating the second fight when she came out of her friend’s house.

1. Watts contends that the trial court erred by failing to merge her battery and simple assault convictions, both of which were lesser included offenses of two of the three crimes for which she was indicted. The record shows that the State indicted Watts for aggravated assault because she assaulted Murphy “with a sharp object... which when used offensively against a person is likely to result in serious bodily injury.” The aggravated battery count against her alleged that she caused bodily harm to Murphy “by seriously disfiguring her face, ear, head, neck, back, arm and chest.” Based upon the serious disfigurement allegation, Watts contends that this count necessarily relates to her conduct in cutting Murphy. She asserts that the wounds were inflicted “in quick succession” and should therefore be considered one offense.

The trial court charged the jury on simple assault as a lesser included offense of aggravated assault. OCGA § 16-5-20 (a) provides: “Aperson commits the offense of simple assault when he or she either: (1) Attempts to commit a violent injury to the person of another; or (2) Commits an act which places another in reasonable apprehension of immediately receiving a violent injury.” The evidence here clearly would support a conviction under subsection (1). Although she did not object to any portion of the charge, Watts contends that subsection (2) cannot be used to support the jury’s verdict, because Murphy testified that she did not know she had been cut until after the fight ended.

But Murphy also testified that she was bleeding so much from her forehead during the fight that she could not see and was trying to keep Watts at arm’s length because she did not know if Watts was using a rock or something else to injure her. “[P]roof that the victim has been placed in apprehension of immediately receiving a violent injury need not necessarily be solely by reason of the victim’s testimony of her mental state but may be inferred from the conduct of the victim such as when she retreats to secure her safety.” (Citations and punctuation omitted.) Cuzzort v. State, 307 Ga. App. 52, 54 (1) (703 SE2d 713) (2010). Murphy’s testimony that she attempted to keep Watts at arm’s length after her forehead began to bleed profusely can therefore support an inference that she reasonably apprehended receiving another immediate violent injury. While Murphy did not know she had been cut, she certainly knew that she had been violently injured and took action to defend herself. A victim’s defensive reaction can provide circumstantial evidence of a reasonable apprehension of immediately receiving violent injury. Strange v. State, 244 Ga. App. 635, 636 (1) (535 SE2d 315) (2000). See also Carter v. State, 248 Ga. App. 139, 140 (1) (546 SE2d 5) (2001).

The trial court also charged the jury on battery as a lesser included offense of aggravated battery. OCGA § 16-5-23.1 (a) provides: “A person commits the offense of battery when he or she intentionally causes substantial physical harm or visible bodily harm to another.” OCGA § 16-5-23.1 (b) defines “visible bodily harm” as “bodily harm capable of being perceived by a person other than the victim and may include, but is not limited to, substantially blackened eyes, substantially swollen lips or other facial or body parts, or substantial bruises to body parts.” Here, Watts caused Murphy to have multiple, permanent scars on the different parts of her body alleged in the indictment (face, ear, head, neck, back, arm, and chest).

Based upon these lesser included offenses for which Watts was convicted, we must determine whether the trial court erred by failing to merge them.

Under the doctrine of merger, a criminal defendant cannot be subject to the imposition of multiple punishment when the same conduct establishes the commission of more than one crime. See OCGA § 16-1-7 (a); Drinkard v. Walker, 281 Ga. 211, 212-213 (636 SE2d 530) (2006). The doctrine of merger does not apply, however, if the multiple convictions are not premised upon the same conduct. See Drinkard, 281 Ga. at 212-213, 216; McKenzie v. State, 302 Ga. App. 538, 539 (1) (a) (691 SE2d 352) (2010); Goss v. State, 289 Ga. App. 734, 738 (3) (658 SE2d 168) (2008).

Johnson v. State, 305 Ga. App. 838, 840 (2) (700 SE2d 726) (2010). Under the “required evidence” test, “if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.” (Citations, punctuation and footnote omitted.) Drinkard, supra, 281 Ga. at 215.

In this case, Watts’ convictions can be sustained based upon different conduct: the first cut to Murphy’s forehead caused reasonable apprehension of immediate violent injury supporting her simple assault conviction, and Murphy’s remaining injuries caused by the knife wounds that followed can support a finding of visible bodily harm to support a battery conviction. See Goss, supra, 289 Ga. App. at 738 (1) (a). Additionally, each crime requires proof of a fact that the other does not. SeeBenn v. State, 309 Ga. App. 373, 375 (2) (710 SE2d 587) (2011). The battery conviction requires proof of a visible bodily harm, while the simple assault conviction requires proof of reasonable apprehension of immediate violent injury.

For all of these reasons, the trial court did not err in denying Watts’ request to merge these convictions.

2. We find no merit in Watts’ contention that the evidence was insufficient to prove beyond a reasonable doubt that she did not act in self-defense. “[T]he question of self-defense is to be determined by the jury when there is conflicting evidence on the issue.” (Citation omitted.) Campbell v. State, 258 Ga. App. 863, 866 (575 SE2d 748) (2002). In this case, the evidence was sufficient to authorize a jury to conclude that Watts used force greater than necessary for her defense. See Whitaker v. State, 287 Ga. App. 465, 466 (1) (652 SE2d 568) (2007); Fields v. State, 285 Ga. App. 345, 346 (1) (646 SE2d 326) (2007).

3. Watts contends that the trial court erred in ordering her to pay restitution in the amount of $7,584.35 to the Crime Victim Compensation Program and $1,000 in “token” restitution to the victim because the record contains no evidence to support these awards.

The record shows that during the sentencing hearing, the State requested at the end of its argument regarding sentence: “If Your Honor is considering in any way any kind of probation, I would ask that crime victims compensation be reimbursed. There’s restitution due to medical bills for Ms. Murphy in the amount of $7,584.35.” The trial court then gave Watts an opportunity to speak before announcing its sentence, which included “token restitution to the victim or replacement costs for victim compensation of $1,000.” (Emphasis supplied.) Its written sentence stated “restitution of $7,584.35; Victim: token rest, of $1,000.00 Crime Victim Compensation Program.” No evidence was introduced during the sentencing hearing to support the amount of Murphy’s medical bills or to show the amount of any payments made to Murphy by the Crime Victims Compensation Board. On appeal, the State points to no evidence from the trial transcript supporting the trial court’s restitution award.

“Where a defendant appeals from an order of restitution, we determine whether the evidence was sufficient, under the preponderance of the evidence standard, to support that order, including the amount of restitution. [Cit.]” Adams v. State, 291 Ga. App. 681, 682 (662 SE2d 782) (2008), disapproved on other grounds by Turner v. State, 312 Ga. App. 799, 804, n.15 (720 SE2d 264) (2011) (written findings of fact supporting restitution award no longer required for orders issued on or after July 1, 2005). In this case, the evidence was not sufficient to support the trial court’s award of restitution as the State presented no evidence supporting its request for $7,584.35. See Turner, supra, 312 Ga. App. at 803-805 (2) (state failed to demonstrate amount of restitution by a preponderance of the evidence); Radford v. State, 223 Ga. App. 312, 313 (2) (477 SE2d 428) (1996) (record “devoid of any evidence to support the amount of restitution ordered by the trial court”). Additionally, the record does not show that the trial court considered the factors outlined in OCGA § 17-14-10 (a) before requiring restitution as a condition of probation. See Tobias v. State, 319 Ga. App. 320, 329 (5) (735 SE2d 113) (2012). We must therefore vacate the trial court’s restitution award and remand this case to the trial court to set an amount of restitution based upon competent evidence and the factors outlined in OCGA § 17-14-10 (a). See Lomax v. State, 200 Ga. App. 233, 235 (407 SE2d 462) (1991); Slater v. State, 209 Ga. App. 723, 726 (4) (434 SE2d 547) (1993) (no waiver resulted from defendant’s failure to dispute amount of restitution ordered below).

4. Watts contends that the trial court erred in its sentence by specifying that her credit for time served would not begin until December 5,2008, the date her probation for another offense expired. The record shows that at the time of Watts’ arrest in Cherokee County on May 2,2008, she was seven months short of completing a five-year probation period under a first offender sentence in Cobb County. After her arrest in Cherokee County, she was initially denied bond by the magistrate judge. In a hearing held on July 16, 2008, the superior court judge orally granted bond to Watts, stating, “[S]o I guess I’ll let you prepare the Order if you want to. If it does you any good.” A written order memorializing this oral finding, however, was not prepared and filed by Watts’ attorney until December 5, 2008, the same day that Watts completed her probation period in Cobb County. In the motion for new trial hearing, a Cherokee County Sheriff’s Office employee testified that Watts was confined in the Cherokee County jail from May 2, 2008, the date of her arrest, until December 13, 2008, when she bonded out.

Based upon the evidence in the record before us, we agree with Watts’ contention that the trial court erred to the extent it specified that she was to receive “credit for time served since after [sic] December 5,2008.” “The clear policy behind OCGA §§ 17-10-9 through 17-10-12 is that time spent in incarceration under the authority of this state or a political subdivision thereof should count toward the time which a prisoner must serve.” (Citation, punctuation and footnote omitted.) Johnson v. State, 248 Ga. App. 454, 455 (3) (546 SE2d 562) (2001).

[U]nder OCGA § 17-10-12, the amount of credit for time spent in confinement while awaiting trial is to be computed by the convict’s pre-sentence custodian, and the DOC [(Department of Corrections)] has the duty to award the credit for time served based upon that calculation. ... [A] trial judge has no authority to interfere with the administrative duties of the correctional custodians and the DOC to determine and award credit for time served.

Decided March 21, 2013

Reconsideration denied April 10, 2013

Sharon L. Hopkins, for appellant.

Garry T. Moss, District Attorney, Holly L. Varner, Cliff Head, Shannon G. Wallace, Assistant District Attorneys, for appellee.

(Citations omitted.) Cochran v. State, 315 Ga. App. 488, 489-490 (727 SE2d 125) (2012). We must therefore vacate this portion of Watts’ sentence and remand with direction to the trial court to strike the portion of its order specifying “credit for time served since after December 5, 2008.” Id. (remedy for trial court’s gratuitous reference to calculation of time served is remand with direction to strike improper language from sentence).

5. Watts’ remaining enumeration of error relates to the trial court’s alleged mechanical sentencing scheme in the context of credit for time served, not the imposition of consecutive sentences on the two convictions before the trial court. We therefore conclude that it is rendered moot by our holding in Division 4.

Judgment affirmed in part and vacated in part, and case remanded with direction.

Doyle, P. J., and Andrews, P. J., concur.

       Murphy denied yelling to Watts, ‘You and me, one-on-one,” when she came outside looking for a ride.

       Watts stated that she worked as a cosmetologist and used the razors to trim eyebrows.

       The State also indicted Watts for attempted murder, hut it subsequently sought and obtained an order of nolle prosequi on this count of the indictment.

       Based upon the separate proof supporting Watts’ convictions under the required evidence test, the Supreme Court’s “quick succession” analysis in Culpepper v. State, 289 Ga. 736, 738-739 (2) (a) (715 SE2d 155) (2011), does not apply in this case.

       The record shows that the sentencing hearing was postponed to provide the victim with an opportunity to appear, which she declined. A written statement prepared hy the victim was provided to the court, but it contained no information about any of her economic losses.

       As this Court has previously reminded the State in a criminal case, “this Court will not cull the record on a party’s behalf.” (Citations, punctuation and footnote omitted.) Johnson v. State, 313 Ga. App. 895, 897, n. 8 (723 SE2d 100) (2012). In this case, the trial lasted six days, and the transcript alone contains 2,000 pages.

       We note that the trial court’s written order on restitution could be interpreted to require that separate amounts of restitution be paid directly to the victim and the Georgia Crime Victims Compensation Board. This written order may conflict with the trial court’s oral statement in the hearing regarding the amount and to whom restitution would be made. While a trial court can order that restitution be paid to the Georgia Crime Victims Compensation Board, see OCGA §§ 17-14-2 (9) (B) and 17-15-13, “a restitution order shall require that all restitution to a victim... under the restitution order be made before any restitution to any other person or entity under that restitution order is made.” OCGA § 17-14-6 (d).

       While the record shows that Cobb County put a “hold” on her following her arrest in Cherokee County, we cannot determine from the record before us the date this hold was placed, whether an arrest warrant was issued in Cobb County based upon her probation violation, or whether her probation was revoked.

       This is an apparent reference to the following statement by Watts’ counsel: “We realize that even if she bonds out, that she would probably go to Cobb County and try to resolve her case there.”


author: McMILLIAN, Judge.

text:
    A12A2198.
    WILANN PROPERTIES I, LLC v. GEORGIA POWER COMPANY.
    (740 SE2d 386)
   McMILLIAN, Judge.

Georgia Power Company (“Georgia Power”) operates an electrical transmission line over the property of Wilann Properties I, LLC (“Wilann”) in Floyd County. Georgia Power filed this action seeking a declaration that it had the right to construct, operate, and maintain new poles and new electrical lines within its two easements across Wilann’s property and seeking to enjoin Wilann from interfering with its construction and maintenance activities. Wilann, who contended that the easements were too vague to make a determination of their boundaries, counterclaimed for a declaration that Georgia Power had no right to expand its electric lines and asserted claims for inverse condemnation, trespass, and injunctive relief. After the superior court granted interlocutory relief to Georgia Power and Wilann’s associated appeal was dismissed by this Court, Georgia Power moved for summary judgment on its claims and on Wilann’s counterclaim. The trial court granted summary judgment to Georgia Power, and Wilann appeals. Wilann claims that the trial court erred in finding that (i) the easements’ boundaries were clearly established, (ii) the change in use of the easements was a change in degree of use and did not amount to an inverse condemnation, (iii) Georgia Power had not abandoned the easements’ 100-foot right-of-way, and (iv) a construction company employed by Georgia Power was an independent contractor for whose actions Georgia Power could not be held liable. For the reasons set forth below, we find that Wilann’s claims of error have no merit. Accordingly, we affirm.

“Summary judgment is appropriate if the pleadings and the undisputed evidence show that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. OCGA § 9-11-56 (c).” Bank of North Ga. v. Windermere Dev., Inc., 316 Ga. App. 33, 34 (728 SE2d 714) (2012). “On appeal from the grant or denial of summary judgment, the appellate courts conduct a de novo review, construing all reasonable inferences in the light most favorable to the nonmoving party.” (Citation omitted.) Id.

So viewed, the evidence shows that in 1926, for consideration of $74 and $249, respectively, Wilann’s predecessor granted Georgia Power’s predecessor two express easements (the “Easements”) establishing a 100-foot right-of-way across Wilann’s property. The Easements provide Georgia Power with the right to go on the lands and “at any time now or hereafter, construct, operate and maintain perpetually upon said right-of-way,... lines for transmitting electric current with towers, frames, poles, wires and other necessary apparatus and appliances ... .’’As further provided therein, Georgia Power may “at any and all times . . . enter upon said premises for the purpose of inspecting said lines and making repairs, renewals and alterations thereon.” In addition, among other things, Georgia Power has “the right to cut away and keep clear of said transmission line or lines all trees and other like obstructions that may now or hereafter interfere or be likely to interfere” with the lines’ proper operation.

Also during 1926, Georgia Power’s predecessor constructed an electric transmission line consisting of wooden poles with a copper conductor across the right-of-way as part of what was designated the Lindale-Cave Spring Line (the “Line”). The conductor lost its efficiency over time, and in 2009 Georgia Power decided to upgrade the Line. The project consisted of replacing the old conductor with more effective materials and replacing the wooden poles with steel-reinforced concrete poles. According to Georgia Power’s manager, the new poles would be, on average, 20 feet higher than the existing poles.

In conjunction with the planned construction, Georgia Power contracted with Caffrey Construction Company to trim and clear trees and vegetation along the Line within Georgia Power’s right-of-way. The boundaries of Georgia Power’s easements along the Line were marked before Caffrey began its clearing activities. Georgia Power’s contract with Caffrey provided that Caffrey was to act as an independent contractor, and a Georgia Power supervisor averred that Georgia Power did not in any way control the time, manner, or method of Caffrey’s work.

Caffrey entered Wilann’s property on and around October 23, 2009, and cut trees in what is described as a “stream buffer/wetland area.” Several large trees were cut down on an earthen embankment dam, and the stumps left to deteriorate. Later that month, Wilann blocked access to the Easements and only allowed access by a third-party inspector. From late October 2009 through late March 2010, Georgia Power crews and contractors conducted no land disturbing activities on that portion of Georgia Power’s right-of-way located on Wilann’s property, and they worked on other areas of the Line.

On March 10, 2010, Georgia Power filed a complaint against Wilann for declaratory judgment and an injunction precluding Wilann from interfering with Georgia Power’s survey, assessment, construction, and maintenance activities within the Easements. Wilann filed an answer and a counterclaim for inverse condemnation, for declaratory judgment that the Easements do not include the right to expand the electrical transmission line to a higher voltage, and to enjoin the construction on its property, among other things. Following a hearing solely on the question of injunctive relief, the trial court granted Georgia Power’s request for an interlocutory injunction and denied Wilann’s request for an injunction.

After the trial court entered its order, a crew began to replace the existing lines and poles within the Easements. Georgia Power completed all construction and reenergized the transmission lines on April 22, 2010. The 14 existing wooden poles were replaced with 13 steel-reinforced concrete poles. The replacement poles were placed along the pre-existing centerline within inches, longitudinally, of the poles originally placed within the Easements.

The original plan sheet for the Line describes it as a 38,000-volt (38kV) transmission line. As replaced, the transmission line cannot support a higher voltage transmission than 46kV. Georgia Power’s line supervisor averred that a 38kVline “has the same characteristics and the same through capacity as a [dOjkV[] line. 38kV is no longer used as a voltage level by Georgia Power — [46]kV is the modern equivalent.” Although Wilann suggests that the replacement poles can support a 115kV line or a 230kV line, the testimony showed that such an upgrade would require even bigger poles.

Shortly after the trial court entered the interlocutory injunction, the Environmental Protection Division (“EPD”) of the Georgia Department of Natural Resources inspected the construction activities along the Line. Georgia Power and the EPD subsequently entered into a consent order requiring, among other things, that Georgia Power file a revised notice of intent accurately describing disturbed acreage and pay appropriate land disturbing fees.

Also following the trial court’s interlocutory injunction, Wilann filed a notice of appeal to this Court from the trial court’s order. Wilann filed another appeal from the trial court’s subsequent order denying its request for supersedeas and injunction pending appeal. In view of Georgia Power’s completion of the project to upgrade and re-energize the transmission lines, we dismissed the first appeal as moot in Case No. A10A1687. By our order in Case No. A10A2131, we allowed Wilann to withdraw the second appeal.

Following remittitur, Wilann amended its counterclaim to allege, among other things, that Georgia Power had cut trees on a dam located on Wilann’s property, leaving the stumps in the ground to deteriorate and thereby causing erosion. Georgia Power moved for summary judgment as to its claims and as to Wilann’s counterclaim. Upon finding that Caffrey was an independent contractor, that Georgia Power did not abandon the Easements, that the description and boundaries of the Easements are clearly established, and that Georgia Power’s change of its degree of use of the Easements did not amount to an inverse condemnation, the trial court granted summary judgment to Georgia Power. The trial court found that Georgia Power had the right to construct the new transmission line over the Easements and that the new transmission line is within the scope of the rights granted to Georgia Power. The trial court also permanently enjoined Wilann from interfering with Georgia Power’s use of the Easements, and it denied all relief sought by Wilann in its counterclaim, including Wilann’s claim for an injunction, a declaratory judgment, and monetary awards based upon a taking and trespass. Wilann appeals.

1. Wilann claims that the trial court erred in finding that the description and boundaries of the Easements are clearly established. We disagree.

The Easements each provide: “The center line of said right-of-way being shown on plat made by the Georgia Utilities Company, its successors and assigns, and filed or to be filed in the office of the Clerk of the Superior Court of the County in which said lands are situated.” Notwithstanding this provision, no plat was attached to the Easements when they were recorded, and a search of the record by a Wilann representative failed to identify any other plat that described the centerline of the Easements. Georgia Power’s position is that the Easements’ centerline corresponds to the placement of the original poles. Wilann contends that Georgia Power’s interests remain vague and undefined such that it had no legal right to install new poles and electrical lines on its property. The trial court held that because Georgia Power’s power lines have been erected and used over several decades, the centerline is defined thereby and no issue of material fact remains.

Wilann points out that a power company in providing a notice to condemn an easement for a right-of-way for purposes of erecting an electrical transmission line, “shall describe the property with the same definiteness as is required in a deed of conveyance of land.” (Citations and punctuation omitted.) Gunn v. Ga. Power Co., 205 Ga. 85, 86 (52 SE2d 449) (1949). See OCGA § 22-3-20 (“[a]ny person operating ... a plant for generating electricity shall have the right to . . . condemn rights of way or other easements over the lands of others in order to run power lines____”). But we are unpersuaded that this principle has any application here. Rather, “where the parties have established the actual location and dimensions of an easement, that determination is the controlling factor under Georgia law.” Sloan v. Sarah Rhodes, LLC, 274 Ga. 879, 880 (560 SE2d 653) (2002). And although the precise location of the Easements’ right-of-way was indefinite, it “became definite by the actual placement of the poles,” followed by the passage of a considerable period of time, more than 80 years in this case, from the completion of the original work. (Citations omitted.) Bibb County v. Ga. Power Co., 241 Ga. App. 131, 133 (2) (525 SE2d 136) (1999). See Jackson Electric Membership Corp. v. Echols, 84 Ga. App. 610, 611 (66 SE2d 770) (1951) (“While the easement relied upon by the plaintiff did not specifically designate the location or the extent of the line or system of lines to be erected on and over the defendants’ lands, the subsequent erection of a line and the termination of the work thereon for a considerable period of time operated to fix and determine this feature of the contract.”). Accordingly, we find no merit to this claim of error.

2. Wilann claims that the trial court erred in finding that the use of the Easements is a change in the degree of use and does not amount to inverse condemnation. We disagree.

“The normal rules of contract construction govern review of the meaning of an express easement, which generally presents a question of law for the court.” Kammerer Real Estate Holdings, LLC v. PLH Sandy Springs, LLC, 319 Ga. App. 393, 395 (1) (734 SE2d 249) (2012). And if the terms are clear and unambiguous, the court looks to the contract alone to determine the parties’ intent. Parris Properties, LLC v. Nichols, 305 Ga. App. 734, 738 (1) (a) (700 SE2d 848) (2010). By the terms of the Easements, Georgia Power is allowed to construct “one or more lines for transmitting electric current with towers, frames, poles, wires and other necessary apparatus,” whether “now or hereafter,” without any express limitation; provided, however, that Georgia Power’s predecessor was required to compensate the grantor if it erected more than 13 poles as to one easement, and more than 27 poles as to the other. Compare, e.g., Donalson v. Ga. Power & Light Co., 175 Ga. 462, 462-463 (165 SE 440) (1932) (dedication by property owner of land to City for use as a street did not allow power company to erect thereon poles and wires to transmit electricity).

Wilann contends that the type of lines and voltage contemplated by the parties was nevertheless limited by the plan sheets for the Line. It also points out that this Court has found that where an easement for construction of an electric power transmission line did not specify the location or extent of the line, the grant became fixed once constructed and could not be extended absent a new grant of easement by the property owner or proper condemnation. Jackson Electric Membership Corp., 84 Ga. App. at 612. In either case, Wilann’s position is that the transmission lines, as originally erected, “exhaust the limits of the” Easements, which do not contemplate an upgrade of the lines by Georgia Power to transmit power in excess of 38kV, or the upgrade of lines, towers, frames, and poles to that of modern construction, and so the construction undertaken by Georgia Power was a taking for which Wilann is entitled to compensation. See generally Solid Equities, Inc. v. City of Atlanta, 308 Ga. App. 895, 897 (2) (710 SE2d 165) (2011) (“[a]n inverse condemnation claim arises when the [condemning authority] creates a condition on private property that amounts to a taking without compensation”) (citation and punctuation omitted).

Wilann’s reliance on Jackson is misplaced inasmuch as we concluded therein that the electric company could not enter upon the defendant’s land and take “additional portions thereof” for erection of a line extension without compensation. Jackson Electric Membership Corp., 84 Ga. App. at 612. Thus, Jackson has been cited for the proposition that “[o]nce the path of the easement became fixed, the path could not be unilaterally relocated or widened by either of the parties.” (Citations omitted.) Parris Properties, 305 Ga. App. at 739 (1) (b). Here, however, Georgia Power has not attempted to unilaterally change the location of the Easements as established by the initial construction. And to the extent Jackson also infers that the “extent of the line” contemplated by the easement was also established by the erection of the actual line, we cannot conclude that Georgia Power was thereby subject to any limitation that would take the Easements outside the operation of the general rules regarding permissible changes in use of an easement. See, e.g., Kerlin v. Southern Bell Telephone & Telegraph Co., 191 Ga. 663, 668-669 (3) (13 SE2d 790) (1941) (where there was a prescriptive easement for pole lines and wires, change in degree of use was a reasonable and normal incident of the right). And as to Wilann’s reliance on the plan sheets for the Line, it presents no argument or authority for the proposition that the plan sheets would act as an express limitation as to the terms of the Easements.

In light of the foregoing, we find that the general rule applies here.

[A] change in the manner, frequency, and intensity of use of the easement within the physical boundaries of the existing easement is permitted without the consent of the other party, so long as the change is not so substantial as to cause unreasonable damage to the servient estate or unreasonably interfere with its enjoyment.

(Citations, punctuation and emphasis omitted.) Parris Properties, 305 Ga. App. at 739 (1) (b) (finding that where owner granted express easement for construction of a sewer, the grantee could unilaterally replace the four-inch diameter sewer pipe with a six- or eight-inch diameter sewer pipe). In the context of transmission lines, we have found that the replacement of poles and lines constitute such a permissible change in use, even if the poles are taller and have wider cross arms, additional wires are added, or equipment added so as to accommodate higher voltage. See Faulkner v. Ga. Power Co., 243 Ga. 649 (256 SE2d 339) (1979) (new high-voltage line not an additional servitude on the underlying fee); Humphries v. Ga. Power Co., 224 Ga. 128, 129 (3) (160 SE2d 351) (1968) (installation of taller poles with wider cross arms and facilities to accommodate higher voltage electric lines was a change in the degree of use rather than in the kind of use); Kerlin, 191 Ga. at 668-669 (3) (the installation of additional telephone wires amounted to a permissible change in the degree of use); Municipal Elec. Auth. of Ga. v. Gold-Arrow Farms, 276 Ga. App. 862, 869 (2) (625 SE2d 57) (2005) (easements for electric communication lines permitted use of fiber optic communication lines as an accommodation for new technology and as such was a change in degree of use). And given the foregoing, Georgia Power’s construction, which involved replacing 14 wooden poles with 13 taller, steel-reinforced concrete ones, and installing new conducting lines, falls within such a permissible change in degree of use. Further, even if we accepted Wilann’s claim that the plan sheet for the Line restricted the transmission lines located on the Easements to 38kV, the undisputed evidence is that a 46kV line and a 38kV line have the same characteristics. Accordingly, Georgia Power did not take anything from Wilann that was not inherent in the original grant, and the trial court did not err in finding that Wilann had no right to compensation arising from Georgia Power’s use of the easements.

3. Wilann further claims that the trial court erred in finding that the entire 100-foot right-of-way of the Easements had not been abandoned as a result of nonuse since 1926. Again, we disagree.

Wilann contends that “the original taking area” of 100 feet in width has been abandoned. Generally, “an express easement may be abandoned when nonuse is accompanied by acts manifesting a clear intent to abandon, and which destroy the object for which the easements were created or the means of their enjoyment.” (Citation and punctuation omitted.) Crystal Farms, Inc. v. Road Atlanta, LLC, 302 Ga. App. 494, 497 (1) (690 SE2d 666) (2010). Here, given our findings in Division 1, the undisputed evidence is that the Easements were clearly defined and that the transmission line crossing them has been in operation continuously since 1926. Wilann nevertheless suggests that Georgia Power’s nonuse and intent to abandon is manifested by evidence that the Easements were maintained by Georgia Power approximately every six years, and that parts thereof had previously been clear cut only to a width of 68 feet. Whether it might be argued that the foregoing is actually more indicative of use than nonuse, the timing and extent of Georgia Power’s periodic maintenance is definitely not evidence of nonuse accompanied by “clear, unequivocal and decisive evidence of an intent to abandon the easement.” (Citations and punctuation omitted.) Plantation Pipe Line Co. v. Milford, 257 Ga. App. 709, 712 (2) (a) (572 SE2d 67) (2002). We find no error.

4. Lastly, we consider Wilann’s claim that the trial court erred in finding that Caffrey was an independent contractor and that Georgia Power cannot be held liable for Caffrey’s actions. “An employer generally is not responsible for torts committed by his employee when the employee exercises an independent business and in it is not subject to the immediate direction and control of the employer.” OCGA § 51-2-4. As we have explained, the rationale for the general rule is ‘because the employer has no right of control over the manner in which the work is to be done, it is to be regarded as the contractor’s own enterprise, and he, rather than the employer, is the proper party to be charged with the responsibility for preventing the risk.” (Citation and punctuation omitted.) Ga. Messenger Svc., Inc. v. Bradley, 311 Ga. App. 148, 149 (1) (715 SE2d 699) (2011).

(a) We agree with the trial court that there remain no issues of genuine fact as to whether Caffrey was an independent contractor. The inquiry as to the “independent business” requirement of OCGA § 51-2-4 turns upon “whether the contractor has a bona fide existence apart from the employer or functions instead as the employer’s alter ego.” (Citation and punctuation omitted.) Slater v. Canal Wood Corp., 178 Ga. App. 877, 878 (1) (345 SE2d 71) (1986). And the chief test for distinguishing a servant from an independent contractor is “whether the contract gives, or the employer assumes, the right to control the time, manner, and method of the performance of the work, as distinguished from the right merely to require certain definite results in conformity with the contract.” (Citation and punctuation omitted.) Id. See OCGA § 51-2-5 (5) (employer liable for contractor’s negligence “[i]f the employer retains the right to direct or control the time and manner of executing the work or interferes and assumes control so as to create the relation of master and servant or so that an injury results which is traceable to his interference”).

Here, the contract between Caffrey and Georgia Power specifies that Caffrey is an independent contractor. See Bartlett v. Northside Realty Assoc., 191 Ga. App. 10 (380 SE2d 744) (1989) (where the contract denominates the other party as an independent contractor, that relationship is presumed to be true absent evidence that the employer assumed right to control the time, manner, and method of executing the work). Further, Caffrey and Georgia Power did not have an exclusive arrangement, and Caffrey was free to provide services to other entities. And Caffrey was responsible for all means, methods, techniques and procedures associated with trimming trees and vegetation within the right-of-way. Wilann does not show otherwise. Accordingly, the relationship between Caffrey and Georgia Power was not that of employer and servant, but of employer and independent contractor.

(b) Wilann nevertheless contends that, other than the allegation Caffrey left stumps in the ground of the dam which has resulted in unsafe conditions, “all the issues in this case turn on the boundaries of the areas described in the . . . Easements.” Thus, Wilann argues, because Georgia Power accepted Caffrey’s work and was responsible for marking the lines of its right-of-way, Caffrey was not responsible for clear cutting Wilann’s property outside the boundaries of the Easements. We agree with Wilann that if Georgia Power had incorrectly marked the Easements’ boundaries and then directed Caffrey to clear cut therein, with the result that Caffrey went outside Georgia Power’s right-of-way and trespassed upon Wilann’s property, Georgia Power would not be relieved of liability by Caffrey’s status as an independent contractor. “[I]f it appears that the contractor has followed the plans and directions of his employer and injury has resulted, the employer, and not the contractor, is to be held liable. For unskillful or negligent execution of the work the contractor (and usually not the employer) is liable.” (Citation omitted.) Lee v. Southern Telecom Co., 303 Ga. App. 642, 645 (2) (694 SE2d 125) (2010) (where evidence did not show whether employer directed the location of the cable installed by the contractor, employer could not show for purpose of summary judgment that it had no liability for the alleged trespass of its contractor). See Sorrow v. Hadaway, 269 Ga. App. 446, 448 (1) (a) (604 SE2d 197) (2004) (“OCGA §§ 51-2-4 and 51-2-5 limit an employer’s vicarious liability only and do not apply to a claim arising from the employer’s own conduct”) (citation and punctuation omitted). But Wilann’s argument is dependent upon there being at least an issue of material fact as to whether Georgia Power failed to correctly instruct Caffrey as to the boundaries of the Easements. However, as we concluded in Divisions 1 and 3, above, the centerline of the Easements was established by the placement of the original poles, and the Easements have not been abandoned. Georgia Power’s construction services supervisor averred that before Caffrey began clearing, Georgia Power’s right-of-way was located and flagged, with Caffrey instructed to limit its clearing activities to the right-of-way. Accordingly, the evidence shows only that Georgia Power gave Caffrey proper direction as to the boundaries of the right-of-way.

The remaining issue, as framed by Wilann, is whether Georgia Power is liable as “Caffrey improperly left stumps in the ground of the eastern dam which has resulted in unsafe conditions.” The undisputed evidence is that Caffrey controlled the time, manner, and method of executing the removal of trees, and Wilann does not show that the alleged impropriety in leaving the stumps was pursuant to the plan and direction of Georgia Power. Because Georgia Power “did not retain the right to direct or control the time and manner of executing the work or interfere and assume control so as to create the relation of master and servant,” the trial court correctly concluded that Caffrey was an independent contractor and Georgia Power could not be held liable for Caffrey’s work. Perry v. Ga. Power Co., 278 Ga. App. 759, 761 (1) (629 SE2d 588) (2006).

Decided March 25, 2013

Reconsideration denied April 10, 2013

Chamberlain, Hrdlicka, White, Williams &Aughtry, Richard N. Hubert, for appellant.

(c) Wilann further explains that its claims are not solely reliant on the determination of whether Caffrey was an independent contractor or the application of the traditional rules for determining the scope of liability of an employer for the acts of an independent contractor. Rather, Wilann contends, these questions yield to “the constitutional duty imposed upon a condemnor to pay compensation for the taking or damaging of private property for public purposes whether or not such taking or damaging was done by an independent contractor hired by the condemnor.” Woodside v. Fulton County, 223 Ga. 316, 321 (1) (b) (155 SE2d 404) (1967). But the clearing work performed by Caffrey was not done pursuant to the power of eminent domain but pursuant to Georgia Power’s property rights under the Easements. As we have said,

the basis for allowing recovery directly from a public utility whose independent contractor damages property in the exercise of a taking under eminent domain but prohibiting such direct recovery in other cases [is based on] the fact that one injury arises from a constitutional taking and the other injury arises from a traditional tort.

Bell South Telecommunications v. Widner, 229 Ga. App. 634, 637 (4) (495 SE2d 52) (1997). Compare Ga. Power Co. v. Jones, 122 Ga. App. 614 (178 SE2d 265) (1970) (where damage alleged to arise from wilful trespass on property adjacent to certain property that was the subject of pending condemnation proceeding between the parties, defendant could not escape liability on ground that the injury was caused by an independent contractor).

In light of the foregoing, Wilann shows no error, and the trial court’s grant of summary judgment to Georgia Power is affirmed.

Judgment affirmed.

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

Brinson, Askew, Berry, Seigler, Richardson & Davis, Robert M. Brinson, Alison S. Warren, for appellee.

       The affidavit sometimes refers to “46kV” and at other times to “48kV,” although the intent, it appears, is to refer to 46kV. According to testimony at the preliminary injunction hearing, the voltage of the new transmission line would he “[t]he same thing, 46 kV.”

       Pretermitting whether, if otherwise, it would have any impact on our analysis, there is no evidence that the Easements were acquired in a condemnation proceeding.

       Wilann also suggests that Caffrey was engaged in a "public works proj ect,” and its actions should be viewed accordingly. The evidence does not show that Caffrey was “a contractor engaged in public work under contract with the State or one of its political subdivisions.” Abercrombie v. Ledbetter-Johnson Co., 116 Ga. App. 376 (157 SE2d 493) (1967).


author: BARNES, Presiding Judge.

text:
    A12A2328, A12A2329.
    ZHENG v. NEW GRAND BUFFET, INC. et al.; and vice versa.
    (740 SE2d 302)
   BARNES, Presiding Judge.

We granted this discretionary appeal from a decision of the Appellate Division of the State Board of Workers’ Compensation affirmed by operation of law pursuant to OCGA § 34-9-105 (b), (d). Mei Yu Zheng appeals that portion of the decision holding that Zheng’s employer was not liable for payment of some of her medical bills. The employer, New Grand Buffet, Inc., and its insurer, Amguard Insurance Company (collectively “employer”), cross-appeal that portion of the award directing the recommencement of Zheng’s temporary total disability benefits. We affirm the Board’s conclusion that the employer is not liable for payment of certain medical bills and not subject to a 15 percent late payment penalty, and we dismiss the employer’s appeal for lack of jurisdiction.

On appeal, we affirm factual findings by the Board that are supported by any evidence, but review de novo the application of law to undisputed facts. Trent Tube v. Hurston, 261 Ga. App. 525 (583 SE2d 198) (2003).

The parties do not dispute that Zheng sustained a compensable injury on May 27,2010, and began receiving medical care andincome benefits. Her employer suspended Zheng’s income benefits on October 1,2010, asserting that Zheng underwent a change in condition for the better based on a regular duty work release from her authorized treating physician. Zheng disputed that she underwent a change in condition for the better and sought the reinstatement of her income benefits, as well as payment of certain medical expenses, permission to change her authorized treating physician, a late penalty, and an assessment of attorney fees.

After a hearing, the administrative law judge (“ALJ”) found that the employer’s suspension of benefits “was not improper” in view of an August 24, 2010 statement from the treating physician that he anticipated that Zheng would be able to return to work on August 31, 2010. The work release was prospective, however, depending on test results and an evaluation, and Zheng did not return to see Dr. Armstrong on August 31, 2010 as scheduled. Instead, Zheng elected to see another physician of her own choosing. After reviewing evidence from the physicians who saw Zheng before and after Dr. Armstrong, the ALJ reinstated Zheng’s income benefits as of October 1, 2010, concluding that the employer did not establish by a preponderance of the evidence that Zheng had undergone a change in condition for the better that allowed her to return to work without restrictions.

The ALJ also found that the employer had a panel of physicians and that the employer’s manager had explained the panel’s function to Zheng when she had been rehired two months before she was injured. Zheng had received treatment from the three physicians on the panel: Dr. Chang, Dr. Wu, and Dr. Armstrong, but instead of returning to Dr. Armstrong, she changed physicians on her own without Board approval. Because the employer had been providing appropriate medical treatment, it did not lose control of Zheng’s treatment and was not responsible for paying the new physicians’ expenses. The ALJ denied Zheng’s request that one of her new physicians be designated as her authorized treating physician, finding that the employer should first have the opportunity to offer Zheng treatment by another physician of the employer’s choice. Finally, finding that the case was closely contested on reasonable grounds, the ALJ denied the employee’s request for attorney fees and penalties.

Both sides appealed the ALJ’s decision to the Appellate Division of the State Board of Workers’ Compensation, which adopted the ALJ’s findings of fact and conclusions of law. Both parties appealed this decision to the superior court, which conducted a hearing. The superior court did not issue an opinion within 20 days of the hearing, however, and thus the Board’s decision was affirmed by operation of law. OCGA § 34-9-105 (b), (d). This court granted Zheng’s application for discretionary appeal, and the employer cross-appealed.

Case No. A12A2328

1. Zheng contends that the Board erred in affirming the ALJ’s finding (1) that the employer had a panel of physicians, (2) that the employer had not lost control of Zheng’s medical treatment, (3) that the employer is not responsible for payment of treatment by nonpanel doctors, (4) that Zheng needed Board approval to change doctors, and (5) that Dr. Armstrong is the authorized treating physician.

Zheng’s change of physicians from Dr. Armstrong, whom she last saw on August 24,2010, to nonpanel physicians, the first of whom she saw on August 3, 2010, underlies much of the dispute in this case. Zheng’s employer initially took her to see Dr. Chang, who obtained an x-ray and referred Zheng to Dr. Wu, a chiropractor. Dr. Wu referred Zheng to Dr. Armstrong, an orthopedic surgeon.

Armstrong saw Zheng first on June 1, 2010, then again on June 28, 2010, August 10, 2010, and August 24, 2010. At the August 24, 2010 visit, Dr. Armstrong noted that Zheng had completed her physical therapy and that while her MRI showed some abnormalities, he thought they were pre-existing rather than caused by her work-related injury. He also thought Zheng’s complaints were disproportionate to her clinical findings and, in contrast to previous visits, could no longer clearly identify a direct relationship between her pathology and the “work circumstances at the time of onset” of her complaints. Dr. Armstrong planned to obtain EMGs and nerve conduction studies and anticipated releasing Zheng to return to work on August 31, 2010, depending on the test results and his examination, noting that at that time she could consider a second opinion or further advice from another attending physician.

Zheng did not return to Dr. Armstrong for further treatment. On July 30, 2010 her attorney faxed a letter to the insurance adjuster seeking a copy of the employer’s panel of physicians, and on August 24, 2010 he faxed another letter to the adjuster advising him that Zheng had chosen Dr. Delgado as her authorized treating physician. Zheng first saw Dr. Delgado on August 3,2010, and he referred her for a surgical consult and pain management. She was still seeing Dr. Delgado and the doctors he had referred her to as of the hearing on March 30, 2011.

The employer’s manager testified that she had posted a panel of approved physicians at the restaurant and had explained it to Zheng when she started working. In contrast, Zheng testified there was no panel of physicians posted at the restaurant and no one had explained it to her. At the end of the hearing, the ALJ said she would leave the record open for ten days to allow Zheng’s attorney to “make inquiry about the panel,” and then the record would close. The ALJ continued, stating that if Zheng’s counsel had something “to say about that” he needed to set up a conference call with opposing counsel and the ALJ to discuss it. Zheng did not submit anything to the ALJ regarding the panel within the next ten days, as the ALJ noted in her award, issued May 25, 2011.

In its post-hearing brief, the employer argued that Zheng was not entitled to change physicians on her own accord because it had been providing her with appropriate medical treatment, and therefore it should not be required to pay for the treatment from the unauthorized physicians. Zheng argued in her post-hearing brief that she had requested a copy of the panel on July 30, 2010, and included as an exhibit a letter from her lawyer to the insurance adjuster asking for it. She also argued that, acting on the insurance adjuster’s representation that no panel of physicians existed, she elected Dr. Delgado as her treating physician and notified the adjuster of her election by letter on August 24, 2010. Zheng argued that the employer should be estopped from restricting her treatment to the panel doctors, or at least be required to pay the outstanding medical bills from the doctors who had been treating her for seven months, based on its representation that no panel existed. The employer replied that whether or not a panel existed was irrelevant because the employer had been providing medical care at the time Zheng changed doctors and she was required to petition the Board for approval.

The ALJ did not directly address Zheng’s argument that she had acted upon the claims adjuster’s representation that no panel existed and thus the employer should be estopped from claiming its existence to avoid paying outstanding medical bills. Instead, the ALJ found that a panel existed, that the manager had explained it to Zheng, that Zheng had seen three of the physicians on the panel (Drs. Chang, Wu, and Armstrong), and that Zheng had never asked her employer if she could see a different doctor. The ALJ further held that, because the employer had been providing Zheng with appropriate medical treatment, Zheng could not unilaterally change physicians without Board approval.

OCGA § 34-9-200 (a) requires an employer to furnish the injured employee with medical treatment which “shall be reasonably required and appear likely to effect a cure, give relief, or restore the employee to suitable employment,” and OCGA § 34-9-201 (b) (1) allows the employer to satisfy that requirement by posting a panel of six physicians from which an employee may accept services. An employee may make one change from a panel physician to another panel physician, and a panel physician may refer the employee to a non-panel physician, although that nonpanel physician may not make further nonpanel referrals. OCGA § 34-9-201 (b) (1). An employee may also ask the Board to order a change of physician or treatment, and if granted the employer is liable for those expenses. OCGA §§ 34-9-200 (b); 34-9-201 (e).

“If the employer fails to provide any of the procedures for selection of physicians as set forth in subsection (c) of [OCGA § 34-9-201], an employee may select any physician to render service at the expense of the employer.” OCGA § 34-9-201 (f). Further, if an employer terminates the employee’s medical benefits, the employee is entitled to see any doctor she chooses and make the employer pay for it if she can prove she was still injured at that time as a result of the accident. Boaz v. K-Mart Corp., 254 Ga. 707, 710 (1) (334 SE2d 167) (1985).

We find no error in the ALJ’s findings and conclusions. There was evidence that there was a valid panel of physicians posted at the time of Zheng’s injury and that the function of this panel was appropriately explained to Zheng by the employer in compliance with OCGA § 34-9-201 (c). Moreover, the employer in this case did not terminate Zheng’s medical benefits, and Zheng was being treated by Dr. Armstrong when she first saw Dr. Delgado on August 3, 2010. In fact, she saw Dr. Armstrong two more times before notifying her employer that she had chosen Dr. Delgado as her treating physician. Under these circumstances, if Zheng was unhappy with the treating physician her options were to ask her employer to change her treating physician or to petition the Board for approval to change, but she was not entitled to change physicians unilaterally and require her employer to pay for it. Accordingly, Zheng’s enumerations of error one through five have no merit.

2. Zheng also contends the ALJ erred in concluding that the employer was not liable for a 15 percent late payment penalty under OCGA § 34-9-221 (e). Based on our preceding discussion and the following discussion about the income benefits suspension, Zheng’s argument in this regard is unavailing.

Case No. A12A2329

3. The employer contends that the Appellate Division erred in affirming the ALJ’s finding that the employer failed to prove that Zheng had undergone a change in condition for the better that justified its termination of benefits and ordering it to restart them as of October 1, 2010.

Before considering that issue, however,' we must consider our jurisdiction to review this claim based on the timing of the employer’s notice of appeal from the Appellate Division to the superior court. The Workers’ Compensation Act contains no provision allowing for a cross-appeal of the Board’s final decision to the superior court. OCGA § 34-9-103 (a) grants an appellee the right to institute a cross-appeal from the ALJ award to the Appellate Division by filing a notice of appeal within 30 days of the award (ten days after the appellant must file). OCGA § 5-6-38 (a) likewise grants an appellee the right to institute a cross-appeal from the superior court to this court by filing notice “within 15 days from service of the notice of appeal by the appellant.” But OCGA § 34-9-105 (b) provides only that either party may appeal the Board’s decision to the superior court within 20 days of the Board’s final order, “but not thereafter.” Thus, by its plain language, OCGA § 34-9-105 (b) does not give an appellee additional time to file a cross-appeal. It provides only that either party may file an appeal within 20 days of the Appellate Division’s order.

The employer argues that the cross-appeal provisions of OCGA § 5-6-38 should apply in this case because the superior court was acting as an appellate court. But the statute refers explicitly to the Court of Appeals and the Supreme Court of Georgia, not to any court acting in an appellate capacity. The Appellate Division also acts in an appellate capacity, and the statute specifically allows an appellee 30 days from the ALJ award to file a notice of cross-appeal, while the appellant has 20 days. Further,

[t]he State Board of [Workers’] Compensation is not a court, but is an administrative body with only those powers and duties given it by statute. Therefore, . . . provisions of the Civil Practice Act . . . are not applicable to [workers’] compensation claims unless made so by statute pertaining specifically to [workers’] compensation claims.

(Citations omitted.) Nat. Biscuit Co. v. Martin, 225 Ga. 198, 199-200 (167 SE2d 140) (1969). See also McClendon v. Advertising That Works, 292 Ga. App. 677, 680 (2) (665 SE2d 370) (2008).

The employer also argues that it “would make no sense whatsoever under the law” for the parties to have a right of cross-appeal from the ALJ to the Appellate Division and from the superior court to the Court of Appeals, but not in between from the Appellate Division to the superior court. But limiting to 20 days the time within which both parties must file a notice of appeal to the superior court is consonant with other strict time limitations placed upon such appeals. For example, under OCGA § 34-9-105 (b), the superior court must hold a hearing within 60 days and issue an order within 20 days of the hearing to avoid the affirmance of the award by operation of law.

If a party to a workers’ compensation award does not seek review of an issue by the superior court within the time prescribed, the award becomes final as to that issue, and the party is not entitled to review of that issue by this court. Bryant v. J. C. Distributors, 108 Ga. App. 401, 405-406 (2) (133 SE2d 109) (1963). See also Dawson v. Atlanta Processing Co., 190 Ga. App. 293, 294 (378 SE2d 695) (1989). Because the employer did not file its notice of appeal to the superior court within 20 days of the Appellate Division award, as required by OCGA§ 34-9-105 (b), we do not have jurisdiction to consider its claims on appeal. Accordingly, the appeal in Case No. A12A2329 is dismissed.

Decided March 20, 2013

Reconsideration denied April 10, 2013

Hwang & Litzky, Jimmy Hwang, for appellant.

Scrudder, Bass, Quillian, Horlock, Taylor & Lazarus, Alfred A. Quillian, Jr., Rodney W. Hood, for appellee.

Judgment affirmed in Case No. A12A2328. Appeal dismissed in Case No. A12A2329.

McFadden and McMillian, JJ., concur.


text:
    A12A2494.
    THE STATE v. NICHOLSON. THE STATE v. JONES.
    A12A2495.
    (739 SE2d 145)
   Boggs, Judge.

In these consolidated appeals, the State appeals from the trial court’s grant of a new trial to Jason Nicholson and Laranda Jones. The State contends that the trial court erred by granting a new trial because alleged errors in the written instructions and verdict form provided to the jury were waived by defense counsel and do not amount to plain error. For the reasons explained below, we agree and reverse.

We review the grant of a motion for new trial on special grounds involving a legal question de novo and reverse if the trial court committed legal error. O’Neal v. State, 285 Ga. 361, 363 (677 SE2d 90) (2009). Because the trial court in this case granted a new trial based upon legal errors in its written charge as well as the verdict form and not the general grounds, we will conduct a de novo review. O’Neal, supra.

The record shows that the charges against Nicholson and Jones arose out of Nicholson’s methamphetamine transactions with the male victim, allegations of theft against the male victim by Nicholson, and a subsequent physical altercation between Nicholson, Jones, and the male victim and his girlfriend, the second victim. Following their convictions, Nicholson and Jones moved for a new trial, asserting that they received ineffective assistance of counsel and that the trial court erred in its charge to the jury and in the verdict form provided to the jury. They asserted, in part, that the trial court erred by inadvertently providing the jury the following inapplicable written charge to use during their deliberations:

Form of Verdict

If, after considering the testimony and evidence presented to you, together with the charge of the court, you should find and believe beyond a reasonable doubt that the defendants in Floyd County, Georgia, did commit the offenses of statutory rape, child molestation, and enticing a child for indecent purposes, as alleged in the indictment, you would be authorized to find the defendants guilty.

(Emphasis supplied.) The trial court concluded that this “was a typographical error.” Its oral charge and the verdict form provided to the jury did not list the same inapplicable offenses against children.

Nicholson and Jones also asserted that the verdict form, in conjunction with the oral charges of the court, improperly instructed the jury that they were only authorized to consider lesser included offenses if they first unanimously agreed to an acquittal of the greater offense. In support of this argument, they point to the following language in the verdict form that was listed in each of the counts for which the jury was instructed on a lesser included offense (aggravated assault and aggravated battery): “(Lesser Offense — Complete this section only if you find the Defendant. . . not guilty of [greater offense]).” (Emphasis supplied.) Based upon the trial court’s oral and written instructions to the jury that their verdict must be unanimous, as well as its oral charges on the lesser included offenses generally, appellees asserted that the charge as a whole was improper and entitled them to a new trial.

The trial court accepted both of these arguments and granted appellees a new trial, reasoning

that its verdict form and instructions, taken as a whole, required unanimity of the jurors on the greater offenses of Aggravated Assault and Aggravated Battery (Counts 2, 3, 4 and 6) before considering lesser included offenses. Accordingly, the verdict form and instructions were in contravention of the courts’ holdings in Kunselman v. State, 232 Ga. App. 323 [(501 SE2d 834)] (1998) and Cantrell v. State, 266 Ga. 700 [(469 SE2d 660)] (1996). Further, the written jury instructions inadvertently set forth certain offenses (statutory rape, child molestation, and enticing a child for indecent purposes) with which the defendants were not charged. Although it is apparent to the Court that this was a typographical error, the jury could have believe [d] that these Defendants had previously been charged with the inapplicable offenses, thereby improperly placing their character in issue.

1. The State contends that the trial court erred by granting a new trial on all counts based upon an inadvertent reference to the inapplicable offenses of statutory rape, child molestation, and enticing a child for indecent purposes in the written instructions it provided to the jury. Because no objection was raised to the written instructions below, we must consider whether plain error entitled the appellees to a new trial on all counts. State v. Kelly, 290 Ga. 29 (718 SE2d 232) (2011).

In Kelly, the Supreme Court of Georgia held that each of the ‘following four prongs must exist to demonstrate plain error:

First, there must be an error or defect — some sort of deviation from a legal rule — that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error — discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.

(Citations and punctuation omitted.) Id. at 33 (2) (a). In this case, the error did not affect the substantial rights of the appellees. While the written instructions to the jury made a passing reference to inapplicable charges in one isolated instance, the remainder of the written charge accurately stated the offenses for which the appellees were actually indicted (robbery, aggravated assault, terroristic threats and aggravated battery), the definition and elements of each indicted offense, and the appropriate lesser included offenses. Additionally, the court’s oral charge to the jury made no reference to any inapplicable offenses, and the verdict form accurately stated the offenses to be considered by the jury. Based upon the charge as a whole and the lack of any evidence in the trial raising issues concerning the two defendants’ conduct toward any children, we cannot conclude that the isolated reference to inapplicable charges affected the outcome of their trial. See Jackson v. State, 316 Ga. App. 588, 596-597 (5) (c) (730 SE2d 69) (2012) (new trial not required when trial court inadvertently labeled crime aggravated assault instead of aggravated battery in its charge to the jury). The trial court therefore erred in granting a new trial on this ground.

2. The State contends that the trial court also erred by granting a motion for new trial based upon alleged errors in its charge on lesser included offenses. In order to evaluate this contention, we must first examine the rule upon which the trial court relied to grant appellees a new trial.

In the oft-cited case of Cantrell, supra, 266 Ga. 700, the Supreme Court of Georgia held that “where, as here, a jury deliberates a greater offense and an included offense, unanimity is not required for the greater offense before the jury can vote on the included offense. [Cit.]” 266 Ga. at 703. Because the trial court in Cantrell required the jury to continue deliberating after it announced that it could not agree unanimously on the indicted offense, but had reached a verdict of guilty on the lesser included offense, the Supreme Court held that the defendant was entitled to a new trial. It reasoned that

[wjhile this case does not involve a unanimity instruction, the end result is the same. By refusing to accept the jury’s verdict of guilty on the possession offense, the court forced the jury to reach unanimous agreement on the [greater offense] before considering the [lesser] offense.

(Footnote omitted.) Id.

The Supreme Court took care to note in its Cantrell opinion that “[i]t was necessary for the jury to consider the intent to distribute charge before it considered the possession charge. The court so instructed the jury and it complied with that instruction.” (Emphasis in original.) Id. at 703, n. 3. It also observed that “[w]e have no quarrel with such a charge so long as the court does not insist upon unanimity and is willing to accept a verdict on the lesser offense.” (Emphasis supplied.) Id. at 702, n. 2.

In the only subsequent Georgia decision granting a new trial based upon an improper unanimity charge, the trial court instructed the jury that “with respect to the burglary count in Count 1, if you find the defendant not guilty of burglary, you would then and only then be authorized to consider the lesser included offense of criminal trespass on that count.” (Citation, punctuation and footnote omitted; emphasis supplied.) Kunselman, supra, 232 Ga. App. at 324 (1). This court found it significant that shortly after giving this charge, “the court also gave the usual pattern charge requiring [a] unanimous verdict, instructing, ‘Whatever your verdict is, it must be unanimous, that is, agreed to by all 12 of you.’ ”Id. at 324-325 (1). We concluded there was no “qualitative difference between this case and the practice disapproved in Cantrell,” supra, and “reversed] with instructions to employ the pattern charge on lesser offenses during retrial.” Id. at 325.

Following our decision in Kunselman, the Supreme Court considered the following charge: “Should you find the defendant not guilty of the crime of burglary, you would be authorized to consider under the evidence whether or not he did, at said time and place, commit the lesser offense of criminal trespass.” Camphor v. State, 272 Ga. 408, 414-415 (6) (d) (529 SE2d 121) (2000). It concluded that this charge, while not preferable, was “not faulty under Cantrell or Kunselman” because it “does not compel the jury to reach a unanimous verdict on the greater offense before it may consider the lesser offense.” Id. at 415. See also Arrington v. Collins, 290 Ga. 603, 607-608(3) (724 SE2d 372) (2012) (findingno reversible error resulted from charge to jury “that it could consider the lesser-included offense of simple possession if it first found Collins not guilty of trafficking”) (punctuation omitted).

This court has also declined to reverse for a new trial when the charge at issue allows for consideration of a lesser included charge when a jury does not find the defendant guilty of the greater offense beyond a reasonable doubt, even if some mandatory sequential language such as “only if” or “then” is included. See Dockery v. State, 308 Ga. App. 502, 504-505 (1) (707 SE2d 889) (2011) (charge acceptable when “jury was instructed to consider the lesser offense of possession of methamphetamine only if they did not believe beyond a reasonable doubt that Dockery was guilty of possession of methamphetamine with intent to distribute”) (citation and footnote omitted); Allison v. State, 259 Ga. App. 775, 779 (4) (577 SE2d 845) (2003) (acceptable sequential charge when jury “instructed to consider the lesser offense of possession of cocaine only if they did not believe beyond a reasonable doubt that defendants were guilty of conspiracy to traffic in cocaine”).

Finally, in Horton v. State, 264 Ga. App. 907, 908-909 (592 SE2d 534) (2003), we concluded that the following charge, in conjunction with the trial court’s recharge, did not compel a jury to reach a unanimous verdict on the greater offense before considering the lesser offense: “And if you find that the defendant is not guilty of the offense of criminal attempt to obtain marijuana, you may then go on and consider whether or not the defendant is guilty of the offense of criminal solicitation.” Id. In its recharge, the trial court clarified that the jury had choices on the verdict form with regard to greater and lesser offenses and that it could consider these choices “in whatever order [they] would like.” Id. at 908.

Decided March 26, 2013

Reconsideration denied April 10, 2013.

Leigh E. Patterson, District Attorney, Emily G. Johnson, Assistant District Attorney, for appellant.

September Guy, for appellees.

Having examined the law on improper sequential unanimity charges, we conclude that the charges and verdict form in this case “more closely resemble [ ] the charge allowed by the Supreme Court in Camphor[,] supra, 272 Ga. at 414, than the charge disapproved in Kunselman[,] supra, 232 Ga. App. at 324.” Horton, supra, 264 Ga. App. at 909. As in Horton, “ft]he court did not instruct the jury that it had to reach a unanimous verdict on the greater offense before it could address the lesser offense,” id., and it did not insist upon unanimity or compel the jury to do so. See Camphor, supra, 272 Ga. at 414-415 (6) (d) (charge did not “compel” jury); Cantrell, supra, 266 Ga. at 702, n. 2 (court cannot “insist” upon unanimity). Instead, “[t]he instructions merely required a unanimous verdict as a whole.” Pittman v. State, 273 Ga. 849, 849-850 (2) (546 SE2d 277) (2001), disapproved on other grounds, Ledford v. State, 289 Ga. 70, 85 (14) (709 SE2d 239) (2011). Because the trial court erred by concluding that it gave an improper sequential unanimity charge, we must reverse its grant of a new trial to appellees on this ground as well.

3. As in Kelly, supra, the trial court did not reach all of the grounds asserted in Nicholson and Jones’ motion for new trial and amended motion for new trial in its order granting the motion on two of the grounds asserted. We therefore remand this case to the trial court to consider the issues that were raised but not yet ruled upon. 290 Ga. at 34-35 (3).

Judgments reversed and cases remanded with direction.

Doyle, P. J., and Andrews, P. J., concur.

       We have jurisdiction over these direct appeals based upon OCGA §§ 5-7-1 (a) (7) and 5-7-2 (b) (2) and (c).

       The State charged Nicholson with robbery, two counts of aggravated assault, aggravated battery, and terroristic threats. It charged Jones with the same crimes, plus an additional count of aggravated assault. At the conclusion of the State’s case, the trial court granted a directed verdict in Nicholson’s favor on the aggravated battery charge. The jury convicted Nicholson of robbery and two counts of aggravated assault; it found him not guilty of terroristic threats. The jury convicted Jones of robbery, two counts of aggravated assault, a lesser included offense of simple assault, and a lesser included offense of simple battery; it found her not guilty of terroristic threats and aggravated battery.

       The State’s claim that the only ground upon which appellees sought a new trial was ineffective assistance of counsel is not supported by the record. While the first amendment to the motion for new trial asserted only ineffective assistance of counsel, Appellees’ counsel clearly asserted that the trial court also erred during the motion for new trial hearing and in supplemental briefs submitted after the hearing.

       The trial court charged, “Whatever your verdict is, it must be unanimous; that is, agreed to by all twelve.”

       The trial court orally charged the jury as follows:
      I am also going to give you the charge of simple assault because should you find the defendants not guilty of aggravated assault, you would be authorized to find the defendant guilty or not guilty of the lesser offense of simple assault.
      Should you find Ms. Jones not guilty of the offense of aggravated battery, you would then be called upon to find her either guilty or not guilty of the lesser offense of battery. . . .
      And with respect to the assault and battery counts, you’ll first determine whether the defendant is guilty of aggravated assault or aggravated battery. Only if you find the defendant not guilty, then you should complete the second section and determine whether the defendant is guilty or not guilty of the offense of simple assault or simple battery ... as the case may be.

       The trial court’s written charge to the jury on the lesser included offenses differed, providing: “If you do not believe that the defendant is guilty of [the greater offense], but you do believe beyond a reasonable doubt that the defendant is guilty of [the lesser offense], then you would be authorized to find the defendant guilty of [the lesser offense].. . .”
      This written charge more closely tracks the pattern charge on lesser included offenses: “If you do not believe beyond a reasonable doubt that the defendant is guilty of (indicted crime), but do believe beyond a reasonable doubt that the defendant is guilty of_, then you would be authorized to find the defendant guilty of_.” (Emphasis supplied.) Suggested Pattern Jury Instructions, Vol. II: Criminal Cases § 1.60.11 (2010). The trial court omitted the italicized language in the pattern charge from its written charge.

       It did not analyze plain error based upon the appellees’ failure to object to the charges or the verdict form.