author: Miller, Presiding Judge.

text:
    A11A0265.
    LANDRUM v. ENMARK STATIONS, INC. et al.
    (712 SE2d 585)
   Miller, Presiding Judge.

In this “trip and fall” premises liability case, plaintiff Margaret Landrum (“Landrum”) appeals the trial court’s grant of summary judgment in favor of defendants Enmark Stations, Inc., Colonial Oil Industries, Inc., and Colonial Group, Inc. (collectively, “Enmark”). In three related enumerations, Landrum contends the trial court erred in granting summary judgment because material issues of fact remain as to whether Enmark had constructive knowledge of an uneven crack in the paved surface of its service station parking lot, and whether Landrum exercised ordinary care for her own safety when she tripped and fell on the uneven crack. We agree and reverse the trial court’s grant of summary judgment.

“Summary judgment is appropriate when the court, viewing all the facts and evidence and reasonable inferences from those facts in a light most favorable to the non-movant, concludes that the evidence does not create a triable issue as to each essential element of the case.” (Citations omitted.) Rubin v. Cello Corp., 235 Ga. App. 250, 251 (510 SE2d 541) (1998). On appeal of a grant of summary judgment, we must review the evidence de novo to determine whether the trial court erred in concluding that no genuine issue of material facts remain and that the party was entitled to judgment as a matter of law. Id. at 250.

Viewing the evidence in the light most favorable to Landrum, as the non-movant in this case, the record shows that on the day she was injured, Landrum had stopped at Enmark’s service station to purchase gasoline for her car, intending to use her credit card to pay at the gasoline pump. Upon exiting her vehicle, Landrum noticed a sign indicating that the pump was not currently accepting credit cards and that customers could purchase gasoline by prepaying for it inside the service station store. Accordingly, Landrum walked away from her vehicle, across the parking lot, and into the service station store to prepay for her gasoline. When she finished paying, Landrum began to walk back to her vehicle; her return route across the parking lot was slightly different from the one Landrum had originally taken on her way into the service station store. Before Landrum reached her car, however, the toe of her shoe caught on an uneven crack in the surface of the paved parking lot, causing Landrum to fall and injure herself. Landrum testified that she had not seen the crack in the pavement before she tripped; despite it being a clear, sunny day, Landrum stated that the crack was the same color as the surrounding asphalt and blended into the surface of the parking lot.

Landrum subsequently filed the underlying lawsuit against Enmark, seeking to recover the damages she allegedly sustained as a result of her trip and fall. Enmark filed a motion for summary judgment, which the trial court granted, concluding that Landrum failed to establish “Enmark’s superior knowledge of the dangerous condition.”

To prove negligence in a premises liability action that is based upon a trip and fall claim, an invitee must plead and prove two specific elements: “(1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the defendant.” (Punctuation and footnote omitted.) Jackson v. Waffle House, 245 Ga. App. 371, 373 (1) (537 SE2d 188) (2000) (citing Robinson v. Kroger Co., 268 Ga. 735, 748-749 (2) (493 SE2d 403) (1997)); see also American Multi-Cinema v. Brown, 285 Ga. 442, 444 (2) (679 SE2d 25) (2009).

1. The trial court concluded that Enmark was not put on notice of a dangerous condition in its parking lot because there was no evidence that other customers had tripped or fallen as the result of the crack. We disagree, however, that the record supports judgment as a matter of law on the issue of Enmark’s knowledge/notice of the uneven crack in its service station parking lot.

A property owner’s duty to use ordinary care toward making its premises safe for its customers “includes inspecting the premises to discover possible dangerous conditions of which the owner/occupier does not have actual knowledge, and taking reasonable precautions to protect invitees from dangers foreseeable from the arrangement or use of the premises.” (Footnote omitted.) Jackson, 245 Ga. App. at 373 (1). Thus, in the absence of evidence showing actual knowledge on the part of the owner, an invitee may still establish the first element of her trip and fall claim through proof of the owner’s constructive knowledge of the hazard. See, e.g., Shepard v. Winn Dixie Stores, 241 Ga. App. 746, 747-749 (1) (527 SE2d 36) (1999) (analyzing the existence of constructive knowledge where the invitee “presented no evidence that [the owner] had actual knowledge of the hazard which caused her fall”); Avery v. Cleveland Avenue Motel, 239 Ga. App. 644, 645 (2) (521 SE2d 668) (1999) (analyzing the invitee’s slip and fall claim based upon the property owner’s constructive knowledge of the alleged defect).

“Constructive knowledge may be inferred when there is evidence that the owner lacked a reasonable inspection procedure.” (Punctuation and footnote omitted.) Shepard, 241 Ga. App. at 748 (1). Here, Enmark argues that “there is nothing in the record for [Landrum] to show that inspections were not done; the record is devoid of discovery on this subject.” However, in order for an owner to prevail on summary judgment based on the lack of constructive knowledge, the burden is upon the owner to “demonstrate not only that it had a reasonable inspection program in place, but that such program was actually carried out at the time of the incident.” (Punctuation and footnote omitted.) Id.; accord Avery, 239 Ga. App. at 646 (2) (finding that property owner was not entitled to summary judgment where it failed to sufficiently establish that procedures were in place to inspect the alleged defect).

Here, as Enmark itself concedes, the record reflects no evidence whatsoever as to what inspection procedures, if any, were utilized by Enmark. Given Enmark’s failure to sufficiently establish that procedures were in place to inspect its parking lot, it is not entitled to summary judgment on this issue. To the contrary, a material issue of fact remains as to whether Enmark had constructive knowledge of the crack in the parking lot of its service station. Accord Murray v. Fitzgerald Convenient Centers, 239 Ga. App. 799, 802 (1) (b) (521 SE2d 915) (1999) (finding material issues of fact remained as to whether the store owner had constructive knowledge of the hazard on its property where the store presented no evidence that it performed reasonable inspections of the hazards in question).

2. The trial court also determined that the record reflected no basis as to why Landrum could not have seen the crack and concluded that because the crack was obvious, Enmark was relieved of any duty to warn Landrum. We disagree that these grounds entitle Enmark to judgment as a matter of law on the matters of Landrum’s knowledge and whether she exercised ordinary care for her own safety in detecting and avoiding the hazard posed by the uneven crack in the parking lot.

Enmark argues, and the trial court agreed, that the crack in the parking lot pavement was a static defect. Even if we were to make this assumption, however, questions of fact still remain regarding Landrum’s knowledge. “It is a plaintiffs knowledge of the specific hazard which precipitates the [trip] and fall which is determinative, not merely her knowledge of the generally prevailing hazardous conditions or of the hazardous conditions which plaintiff observes and avoids.” (Punctuation and footnote omitted.) Jackson, 245 Ga. App. at 374 (2). Accordingly, a person is presumed to have knowledge of a static defect only when she has successfully negotiated the alleged dangerous condition on a previous occasion. Bullard v. Marriott Intl., 293 Ga. App. 679, 681 (2) (667 SE2d 909) (2008).

Here, Enmark asserts that “[i]t is uncontroverted that [Lan-drum] was a frequent and long-standing customer.” Enmark points to no evidence, however, showing that Landrum had previously encountered or successfully negotiated the area of the parking lot where the crack was located. Indeed, while Landrum admits that she has frequented Enmark’s service station to purchase gasoline at least twice a month since 2003, she also claims that she did not usually go inside the service station store because she paid for gasoline by swiping her credit card at the pump. Moreover, on the day that Landrum was injured, the return route she took when walking back to her vehicle was different from the one she had originally traversed when entering the service station store. Accord Bullard, 293 Ga. App. at 682 (2) (finding an invitee was not familiar with the portion of a brick walkway where she was injured, despite using it numerous times, when she presented evidence that her fall occurred after she left through a door she did not generally use, and she walked down a portion of the brick path that was not familiar to her). While it is certainly conceivable that Landrum may have taken this same return route lot sometime during her frequent trips to Enmark’s service station, there is no evidence establishing when Landrum may have done so or whether the uneven crack at issue had existed on such prior occasions. See id. Consequently, the evidence does not demand a finding that Landrum had knowledge of the uneven crack in the pavement. Accord id. (“[R]egardless of whether [the invitee] had some knowledge of uneven bricks in the area she typically used, the evidence does not demand a finding that she had encountered or successfully negotiated the substantially raised brick that caused her fall.”); Jackson, 245 Ga. App. at 374 (2) (finding that the evidence did not demand a finding that an invitee had constructive notice of a cavity, caused by uneven and unrepaired condition of the property owner’s parking lot; although the invitee had traversed the parking lot many times over the years, she denied she had ever previously traversed the specific area of the parking lot containing the cavity).

Decided June 20, 2011

Noble L. Boykin, Jr., for appellant.

Forbes, Foster & Pool, Morton G. Forbes, for appellees.

We further find that factual questions remain as to whether Landrum should have seen the crack before she tripped over it. Landrum testified that on the day she fell, she was not able to see the uneven crack in the pavement as it was the same color and shading as the surrounding parking lot pavement. We cannot therefore conclude as a matter of law that Landrum’s failure to see the crack was unreasonable or showed a lack of ordinary care. Accord Bullard, 293 Ga. App. at 682 (2) (noting the invitee’s assertion that she did not see the hazard prior to her fall and refusing to “conclude that, as a matter of law, [the invitee’s] failure to see the raised brick was unreasonable or showed a lack of ordinary care”).

Given that the foregoing questions of fact still remain in this case, the trial court erred in granting summary judgment to En-mark.

Judgment reversed.

Ellington, C. J., and Doyle, J., concur.

       We have defined a static condition as “one that does not change and is dangerous only if someone fails to see it and walks into it.” (Footnote omitted.) Bullard v. Marriott Intl., 293 Ga. App. 679, 681 (2) (667 SE2d 909) (2008).

       Moreover, the characterization of an alleged hazard as
      a static condition, ostensibly open and obvious, cannot automatically absolve the owner/occupier from liability, if any, from its failure to exercise ordinary care to keep the approaches safe. To do so would relegate a business patron to a licensee status by requiring the patron to be on the alert to discover and avoid defects in the approaches. We do not understand this to be the law in trip and fall cases.
      (Punctuation and footnotes omitted.) Jackson, 245 Ga. App. at 374 (2).

       Cf. James v. Sirmans, 299 Ga. App. 262, 263 (683 SE2d 354) (2009) (presuming invitee to have knowledge of hazard only where the evidence showed invitee had successfully negotiated the alleged dangerous condition on previous occasions); Nemeth v. RREEF America, LLC, 283 Ga. App. 795, 797-798 (1) (643 SE2d 283) (2007) (presuming invitee to have knowledge of an uneven and unstable surface of a patio where the invitee had already successfully traversed that same specific area of the patio).


source: Caselaw Access Project

author: Dillard, Judge.

license: Public Domain

text:
    A11A0425.
    BRADFORD MORTGAGE COMPANY v. JOHNNIE GANEM APPRAISAL COMPANY.
    (712 SE2d 859)
   Dillard, Judge.

Bradford Mortgage Company (“Bradford”) appeals the trial court’s grant of summary judgment to Johnnie Ganem Appraisal Company (“Ganem”) on its claim for professional negligence related to appraisals performed by Ganem. Bradford argues that the trial court erred in concluding that (1) it presented no evidence that Ganem failed to comply with the appropriate standard of care and (2) any negligence on Ganem’s part was superseded by the intervening acts of other defendants. Finding no error, we affirm for the reasons noted infra.

To prevail on summary judgment, the moving party must demonstrate that there is no genuine issue of material fact, and that the undisputed facts, when viewed in the nonmovant’s favor, entitle the movant to judgment as a matter of law. We review de novo a trial court’s grant of summary adjudication, construing the evidence in the light most favorable to the nonmoving party.

So construed, the record shows that Bradford provided mortgages for the purchase of three townhomes in an upscale development on Tybee Island. These townhomes were purchased by three members of a so-called investment group, representatives of which negotiated a bulk sale that was assignable, thus allowing individual members of the group to purchase townhomes in the development. Three members applied for loans with Bradford, and prior to approving these loans, Bradford used the “Fast & Easy” approval method — which Bradford’s own chairman admits was “inherently risky” because it only required verification of the potential borrowers’ employment and nothing else. Bradford also ordered individual appraisals of the subject properties from Ganem. And shortly thereafter, Bradford advanced ninety percent of the purchase price for the three subject townhomes (two of which sold for $815,000 and one of which sold for $825,000).

After the foregoing loans were approved, and shortly after the sales of the subject properties had closed, things went awry when all three corresponding mortgages went into default. Only then did Bradford conduct additional research and discover that the purchasing individuals had significantly overstated their income/assets and failed to disclose certain liabilities. Bradford subsequently filed suit against the investment group and its broker, alleging fraud for recruiting the three purchasers and encouraging them to make misstatements on their respective loan applications; the three defaulting purchasers; the closing attorney, for breach of fiduciary duty and professional negligence; and Ganem, for professional negligence in overstating the values of the subject properties. Ganem moved for summary judgment, which the trial court granted based on Bradford’s failure to demonstrate that the appraisal company breached the relevant standard of care. In the alternative, the trial court concluded that even if Ganem was negligent, liability did not extend to the appraisal company because of intervening acts committed by the defendant-purchasers. This appeal by Bradford follows.

In order for Bradford to successfully maintain a cause of action for professional negligence against Ganem, it must show that (1) Ganem had a legal duty to conform to a standard of conduct; (2) Ganem breached this duty; (3) there is a causal connection between Ganem’s conduct and the resulting injury; and (4) Bradford was damaged as a result of Ganem’s conduct. And to prevail on a motion for summary judgment, Ganem must show that “the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of [Bradford’s] claim.” Finally, while questions of negligence are ordinarily for a jury, “plain and indisputable cases may be decided by the court as a matter of law.” With the foregoing principles in mind, we will now address Bradford’s enumerations of error.

1. Bradford argues that the trial court erred in concluding that there was no evidence that Ganem failed to comply with the appropriate standard of care when appraising the subject properties. We disagree.

Prior to approving the loans noted supra, Bradford’s area production manager/vice president personally engaged Ganem to conduct individual appraisals of the three subject townhomes because she had worked with the appraisal company on a frequent basis in her prior employment. Additionally, Ganem was already familiar with these townhomes, having previously appraised the entire development when the developers began negotiations to conduct the bulk sale to the investment group.

Ganem’s previous appraisal of the development, the so-called “master appraisal,” was ordered and paid for by the developers and prompted by the investment group’s inexplicable desire to purchase the subject properties for their full appraisal values — despite the developers’ agreement to sell each property for the significantly reduced rate of $570,000 per unit as an incentive for the group to purchase in bulk. Indeed, when the investment group first became interested in purchasing the properties comprising the development, and prior to the master appraisal, the developers listed units for pre-construction sale at $650,000 apiece, which the developers purportedly believed to be below the market value but, nevertheless, listed at that price in an attempt to be competitive.

Thereafter, the master appraisal, which compared the development to similar properties in the area, returned an estimated value of $385 per square foot — or $790,000 to $845,000 per townhome, depending on the floorplan. And when Ganem was retained by Bradford to conduct individual appraisals of the three subject properties only a few months later, the three townhomes were valued at $835,000; $820,000; and $815,000, respectively.

These individual appraisals are what Bradford maintains were overstated by more than 20 percent as a result of Ganem allegedly failing to comport with the appropriate standard of care. But with its motion for summary judgment, Ganem submitted numerous exhibits — including depositions, an affidavit, and paperwork related to the property sale — to establish that it used appropriate comparable properties, personnel, and methodology in appraising the individual townhomes. In response, Bradford submitted an expert affidavit from an appraiser averring that Ganem “deviated from the appropriate standard of care” by (1) overvaluing the townhomes in light of market conditions, (2) agreeing to conduct the individual appraisals when it had a “vested interest in protecting” the valuations given for the prior master appraisal, and (3) looking to comparables that were superior to the subject property.

In reaching the foregoing conclusions, Bradford’s expert averred that he reviewed documents relating to the individual appraisals conducted by Ganem but failed to specify or attach these documents to his affidavit. And while the expert claimed his opinions were “the product of reliable principles and methods developed as a result of [his] actual professional knowledge, experience, education, and training in the field of real estate appraisal” and that he “applied said principles and methods reliably to the facts of [the] case in reaching the opinions,” nothing was attached to his affidavit to show how he reached his opinion that Ganem’s appraisals were overvalued. Accordingly, the trial court granted summary judgment for Ganem because Bradford’s expert affidavit was “silent as to . . . the actual valuation or range of valuation that was supposed to represent the market at the time of the sales,” while Ganem’s evidence was “replete with justification as to what factors and enhancements [were] considered in reaching [the] appraisal values.”

Given the foregoing, we agree with the trial court that summary judgment for Ganem was appropriate because Bradford failed to present any evidence sufficient to create a genuine issue of material fact as to whether the appraisals in question were conducted negligently.

First, Bradford presented no evidence to support its contention that Ganem overvalued the three townhomes in light of market conditions or used superior comparable properties in its appraisal. Instead, Bradford’s expert affidavit contained generalized arguments that amounted to mere conclusions, which “have no probative value to pierce the facts presented by the movant for summary judgment.” Therefore, Bradford has “failed to point to or adduce specific evidence that gave rise to a triable issue in this regard.”

Second, summary judgment is appropriate in the case sub judice because Bradford’s expert seemingly relied on various documents to reach his conclusion, but these documents were neither attached to the affidavit nor specifically identified. And “[w]hile material need not be attached if the affidavit is based upon material that is part of the record and before the court, the affidavit still must specifically identify those documents[,] and failure to do so results in summary judgment.”

Finally, Bradford’s assertion that Ganem’s prior appraisal of the development resulted in a “vested interest” that amounted to subsequent negligent appraisals is wholly without merit. We fail to see how a prior appraisal conducted for a different client is evidence that Ganem was negligent in performing subsequent appraisals at Bradford’s request only a few months later. And Bradford cites no authority for the proposition that conducting a prior appraisal of property disqualifies an appraiser from conducting future appraisals. Accordingly, summary judgment was appropriate.

Decided June 20, 2011

Savage, Turner, Pinson & Karsman, Brent J. Savage, Ashleigh R. Madison, for appellant.

Weissman, Nowack, Curry & Wilco, Ned Blumenthal, Lauren M. Gunnels, Brannen, Searcy & Smith, David R. Smith, for appellee.

2. Because we have held that Bradford failed to present evidence that Ganem breached its duty and have affirmed the grant of summary judgment on this ground, we need not address Bradford’s second enumeration of error.

Accordingly, for the foregoing reasons, the trial court’s grant of summary judgment is affirmed.

Judgment affirmed.

Blackwell, J., concurs. Adams, J., concurs in judgment only.

        See, e.g., Pew v. One Buckhead Loop Condo. Ass’n, 305 Ga. App. 456, 456 (700 SE2d 831) (2010); see also OCGA § 9-11-56 (c).

        See, e.g., Pew, 305 Ga. App. at 456.

       Bradford settled with the closing attorney, and the trial court issued a verdict and judgment for damages against the remaining defendants.

        See, e.g., Martha H. West Trust v. Mkt. Value of Atlanta, 262 Ga. App. 90, 91 (1) (584 SE2d 688) (2003).

        Holcomb v. Norfolk S. Ry. Co., 295 Ga. App. 821, 822 (673 SE2d 268) (2009).

        See, e.g., Johns v. Hous. Auth. for the City of Douglas, 297 Ga. App. 869, 871 (678 SE2d 571) (2009).

         She also testified that she continued to use the company for appraisals and that she thought the company was “wonderful.”

       Even after the appraisal, the developers accepted the original negotiated price of approximately $570,000 per unit, and the excess amount of the purchase price was covered by an extremely large real estate commission. The real estate commission for the closing attorney was approximately thirty-two percent on the three subject properties — and this became part of Bradford’s claim against the closing attorney. But although this commission amount was clearly disclosed to Bradford in paperwork the company approved before closing, Bradford admits that its representatives neglected to read this portion of the paperwork and did not discover the suspicious size of the commission until after the troubles began.

        Bridges v. Dep’t of Transp., 209 Ga. App. 33, 34 (1) (432 SE2d 634) (1993) (holding that, in dispute regarding a land survey, affidavit that merely stated a conclusion that measurements were incorrect, without providing factual basis for conclusion, was insufficient to overcome summary judgment).

        Id. at 34 (1); see also Motorola, Inc. v. Ward, 223 Ga. App. 678, 679 (478 SE2d 465) (1996) (physical precedent only) (“If the plaintiffs claim is based upon an expert affidavit, that affidavit must contain some explanation of how the affiant reached his conclusion; a mere conclusory allegation is insufficient.” (citation and punctuation omitted)).

        Goring v. Martinez, 224 Ga. App. 137, 139 (2) (b) (ii) (479 SE2d 432) (1996); see also Crawford v. Phillips, 173 Ga. App. 517, 517-18 (1) (326 SE2d 593) (1985) (same).

        Compare Ga. Real Estate Appraisers Bd. v. Krouse, 299 Ga. App. 73, 79 (1) (681 SE2d 737) (2009) (involving appraiser who violated standards of conduct by preparing fraudulent and/or misleading appraisal report for property in which he also had a contemplated or prospective ownership interest).


author: Adams, Judge.

text:
    A11A0523.
    HANDY ANDY OF EASTMAN, INC. v. EVANS et al.
    (712 SE2d 589)
   Adams, Judge.

Handy Andy of Eastman, Inc. appeals the trial court’s grant of summary judgment to L. C. (Buster) Evans, Neal S. Patton, Max Beasley, Toni Beasley, Joanne Thompson, Lee A. Thompson, Lannie W. Et Hamsley, Cynthia Rena Britt, Todd A. Belflower & Kelly Belflower, and Derek L. Childs Property, LLC (“Appellees”), in their action to remove liens filed by Handy Andy on their respective properties and to quiet title. Because we find that Handy Andy failed to comply with the statutory requirements for filing such liens, we affirm.

M & M Construction (“M & M”) purchased building materials and supplies from Handy Andy pursuant to an open account agreement for the construction, building and improvement of the Appel-lees’ respective properties. M & M, however, failed to pay Handy Andy for these materials and supplies. And in December 2009, Handy Andy recorded mechanic’s and materialman’s claims of lien on each of the Appellees’ properties.

Under OCGA §§ 44-14-361.1 (a) (3) and 44-14-367, a lien claimant has 365 days from the date of filing of the claim of lien to commence a lien action, and the failure to do so renders the claim of lien unenforceable. And pursuant to OCGA § 44-14-361.1 (a) (3), a lien claimant must file notice of the commencement of the lien action within 30 days after commencing such an action, or the lien becomes unenforceable. See also OCGA § 44-14-367. Accordingly, OCGA § 44-14-367 provides that “[a] claim of lien may be disregarded if no notice of commencement of lien action was filed within 395 days from the date the claim of lien was filed.” And the statute requires that any lien filed after March 31, 2009, must contain the following notice in at least 12-point bold font: “This claim of lien expires and is void 395 days from the date of filing of the claim of lien if no notice of commencement of lien action is filed in that time period.” OCGA § 44-14-367. The failure to include this required language “shall invalidate the lien and prevent it from being filed. No release or voiding of such liens shall be required.” Id.

The liens filed by Handy Andy contained a notice that differed from the required language in two respects. First, the Handy Andy language stated that the lien expired in “365” days, not “395” days as provided in the statute. Second, it omitted the word “action” so that it read that the lien expired “if no notice of commencement of lien is filed” within 365 days. (Emphasis supplied.) The trial court found that because Handy Andy’s notice language failed to strictly comply with the statutory language, the liens were unenforceable and granted the Appellees summary judgment. Handy Andy argues, however, that these changes were merely typographical errors and that the language in its liens not only substantially complied with the statute, but actually worked to the Appellees’ benefit.

“The materialman’s statutes are construed in favor of the property owner and against the materialman. Further, the material-man’s statute requires strict compliance. Before a materialman’s lien can be allowed, the lien claimant must show compliance with all conditions of the statute.” (Punctuation and footnotes omitted.) Kendall Supply v. Pearson Communities, 285 Ga. App. 863, 865 (648 SE2d 158) (2007) (failure to pay filing fees for notice of lien rendered lien unenforceable). We require strict compliance because

a materialman’s lien effectively permits the transfer of liability from the person who actually contracted with the materialman for materials to be used in improving real estate to the owner of the improved property, even though that property owner usually will have no relationship with the materialman, contractually or otherwise.

Decided June 20, 2011.

Busch & Reed, Chad K. Reed, for appellant.

Gwinnett-Club Assoc. v. Southern Elec. Supply Co., 242 Ga. App. 507, 508 (529 SE2d 636) (2000). While strict compliance may not be required for all portions of the lien statutes, Georgia courts have generally required that a lienholder strictly comply with the notice provisions of these statutes. See Horner v. Robinson, 299 Ga. App. 327, 330 (2) (682 SE2d 578) (2009); see also Purser Truck Sales v. Horton, 276 Ga. App. 17, 19-20 (2) (622 SE2d 405) (2005); A Tow, Inc. v. Williams, 245 Ga. App. 661 (538 SE2d 542) (2000). Nothing in the language of OCGA § 44-14-367 provides that substantial compliance with the notice provision is sufficient; rather the title of the statute indicates that it is a “required statement,” and the statute provides the lien “shall include” the statement.

Although Handy Andy may have altered the notice language inadvertently, we conclude that these alterations cannot be viewed as mere typographical errors. Rather the Handy Andy language provides misinformation regarding the applicable law. The Handy Andy language incorrectly informed the property owners that the lien expired within 365 days, but such liens do not expire by operation of law until 395 days, or 30 additional days, have passed. And it is timely notice of the commencement of a lien action, not notice of the lien itself, that prevents the expiration of the lien. Accordingly, we conclude that the trial court correctly granted summary judgment to the Appellees.

Judgment affirmed.

Barnes, P. J., and Blackwell, J., concur.

W. Dennis Mullis, for appellees.

       OCGA § 44-14-367 further provides that “[a] lien shall expire sooner and be disregarded once it is determined that no notice of commencement was timely filed in response to a notice of contest pursuant to Code Section 44-14-368.”

       “[A]s to questions other than class of persons and kind of property, the courts should give the [lien] statutes a fair and equitable construction.” Athens Lumber Co. v. Burton, 84 Ga. App. 249, 251 (66 SE2d 124) (1951). “Reason and equity unite in a conclusion that a materialman or laborer should not be deprived of the lien for reasons beyond his control and in the realm of the statute where a strict construction is not required.” (Citation and punctuation omitted.) Melton v. Pacific Southern Mtg. Trust, 241 Ga. 589, 593 (247 SE2d 76) (1978). Compliance with the clear notice provision of OCGA § 44-14-367 was not a matter beyond Handy Andy’s control, nor does it fall in the realm of the statute where strict construction is not required, such as OCGA § 44-14-361.1 (a) (2), which requires that a lien be “in substance” like the statutory language. See, e.g., J. H. Morris Bldg. Supplies v. Brown, 245 Ga. 178 (264 SE2d 9) (1980) (holding that under predecessor to OCGA § 44-14-361.1 (a) (2) lien not invalidated because lienholder failed to specify the amount or due date in the lien claim); Vulcan Constr. Materials v. Franklin Builders Properties, 298 Ga. App. 120, 122-123 (679 SE2d 356) (2009) (same where lien failed to state the date the claim was due).


text:
    A11A0541.
    MEMAR v. JEBRAEILLI.
    (712 SE2d 592)
   Miller, Presiding Judge.

This is the third appearance of this case before this Court. In Memar v. Jebraeilli, 303 Ga. App. 557, 562 (1), 563 (3), (4) (694 SE2d 172) (2010) {“Memar I”), we affirmed the trial court’s authority to award damages in quantum meruit to Appellee Allie Jebraeilli (“Jebraeilli”) on his counterclaim, its admission of certain testimony, and its denial of attorney fees to Appellant Joseph Memar (“Memar”). Because the trial court’s damages award on the counterclaim was inconsistent with its findings and could not be reconciled, we reversed and remanded for recalculation of the damages award to Jebraeilli. Memar I, supra, 303 Ga. App. at 562-563 (2) (b). On remand, the trial court entered an order recalculating Jebraeilli’s damages award. Memar appeals from this order, arguing that the trial court’s damages recalculation is inconsistent with the trial court’s original order; that the trial court makes no attempt to explain or support its new order; and that the trial court erred in failing to hear the parties’ arguments prior to entering its new order. We disagree and affirm the final damages awards set forth in the trial court’s new order.

In a bench trial[,] the court sits as the trier of fact and his findings shall not be set aside unless clearly erroneous. The clearly erroneous test is the same as the any evidence rule. Thus, an appellate court will not disturb fact findings of a trial court if there is any evidence to sustain them.

(Citations and punctuation omitted.) CRS Sirrine, Inc. v. Dravo Corp., 213 Ga. App. 710, 721 (4) (445 SE2d 782) (1994).

The evidence supporting the trial court’s findings of fact is fully set forth in Memar I:

Facts underlying Memar’s complaint. In 2001, Memar and Jebraeilli entered into a joint venture regarding the ownership and rental of real property located at 4423 Buford Highway, Norcross (. . . “Tract 1”). The partners purchased the property for $150,000, and rented the property to several tenants for a total of $1,900 per month. The partners agreed that, after paying the mortgage ($1,183.19 per month), taxes, and other expenses, they would split the remaining income equally. According to Memar, however, Jebraeilli began collecting rent payments in October 2005 and refused to tender to Memar the amounts necessary so that Memar could pay the above expenses and Memar’s portion of the net income. In November 2006, Memar filed a lawsuit against Jebraeilli asking for an injunction preventing Jebraeilli from collecting rental payments for Tract 1, an award of damages for the amount owed to him for his net portion of the rental payments and for the amount he had paid toward the mortgage and other expenses, punitive damages, and attorney fees.
Facts underlying Jebraeilli’s counterclaim. In 2002, the partners purchased a second piece of real property at 4408 Buford Highway, Norcross (“Tract 2”) for $100,000 cash. The partners intended to convert a house located on the property to commercial use and agreed that Jebraeilli would act as a general contractor in renovating the property based upon his experience in construction, his engineering degree, and other relevant experience. According to Jebraeilli, Me-mar promised to pay him $65,000 for his efforts performed in repairing and renovating the property.
In response to Memar’s complaint, Jebraeilli filed a counterclaim asserting that Memar owed him an amount equal to one-half of the expenses he incurred in maintaining the property. He also claimed that Memar failed to pay him $65,000 for his work in developing Tract 2.
The trial court’s judgment. Following a bench trial, the court ruled in favor of Memar on his complaint, finding that Jebraeilli owed Memar the following amounts in net rental income, mortgage payments, and expenses related to Tract 1 [the sum total of which equaled $29,375.63]:
October 2005 through June 2006: $12,332.76
July 2006 through November 2006: $ 7,707.97
December 2006 through July 2007: $ 1,612.82
August 2007 through June 2008: $ 7,099.14
July 2008 through November 2008: $ 622.94
The trial court then awarded Memar $17,042.87, the sum of the amount Jebraeilli owed Memar for the period from July 2006 through November 2008. Without further explanation, however, the court also ruled that it would apply the amount Jebraeilli owed to Memar for October 2005 through June 2006 ($12,332.76) to the amount Memar owed to Jebraeilli on the latter’s counterclaim.
On Jebraeilli’s counterclaim, . . . [t]he court concluded . . . that Jebraeilli’s two years of work on Tract 2 was worth at least the $65,000 he was seeking from Memar. Consequently, the court ruled that Jebraeilli was entitled to $65,000 on his counterclaim in quantum meruit, but that this amount should be offset by $26,086.76 Jebraeilli had already received from Memar [this $26,086.76 included the following amounts: $6,254 (one-half of $12,508, the amount Jebraeilli withdrew from the partners’ joint checking account to pay to subcontractors); $7,500 (the amount Memar loaned to Jebraeilli during the latter’s divorce proceedings); and $12,332.76 (the rental proceeds for Tract 1 from October 2005 through June 2006)]. Although the court made these express rulings in its order, it ultimately awarded Jebraeilli $15,000 on his counterclaim. The order does not explain how the court arrived at that amount.

(Punctuation and footnotes omitted.) Memar I, supra, 303 Ga. App. at 559-560, 562.

Addressing Memar’s appeal of the trial court’s original order, we found in Memar I that the final award to Jebraeilli of $15,000 on his counterclaim was inconsistent with the trial court’s findings, and given the trial court’s lack of explanation for such discrepancy, we reversed and remanded Jebraeilli’s award. Id. at 562-563 (2) (b). We provided the trial court with two options on remand: (i) enter an order specifically demonstrating how it calculated the $15,000 award, or (ii) recalculate the award and enter an order which contained sufficient facts that were based on the evidence presented and that explained and supported the recalculated award. Id. at 563 (2) (b).

On remand, the trial court recalculated the damages to be awarded to both Jebraeilli and Memar. Like its original order, the trial court’s new order held that Jebraeilli was entitled to recover $65,000 in quantum meruit for his services related to Tract 2, less certain amounts that Jebraeilli had already received from Memar. Whereas these set-off amounts previously totaled $26,086.76, however, the trial court’s new order offset Jebraeilli’s recovery by a total of $13,754, which included only the following amounts: $6,254 (one-half of $12,508, the amount Jebraeilli withdrew from the partners’ joint checking account to pay to subcontractors) and $7,500 (the amount Memar loaned to Jebraeilli during the latter’s divorce proceedings).

With respect to the $12,332.76 (the rental proceeds for Tract 1 from October 2005 through June 2006), which was previously credited against Jebraeilli’s direct damages award, the trial court’s new order awarded this amount directly to Memar on his complaint. The recalculation of Memar’s direct damages award to include this $12,332.76 resulted in an increase of the final damages awarded not only to Memar, but also to Jebraeilli. Specifically, the trial court’s new order awarded $29,375.63 to Memar on his complaint, and $51,246 to Jebraeilli on his counterclaim.

1. In his first two related enumerations, Memar contends that the damages calculations entered into by the trial court on remand are inconsistent with the trial court’s original order, and that the trial court made no attempt to explain or support its new order. We disagree.

In Memar I, we did not reverse the trial court’s findings of liability and specific amounts owed to each party. Rather, we reversed only with respect to the trial court’s final damages award of $15,000 to Jebraeilli, as we found such award was not consistent with the trial court’s findings. Id. at 562-563 (2) (b). Thus, the purpose of remanding this case was clarification or recalculation of Jebraeilli’s award. We believe that the trial court’s new award and order provide both.

The trial court’s new order sets forth itemizations of the amounts utilized in recalculating the damages awards for both Memar and Jebraeilli. These itemizations include nothing more than the same amounts we found to be supported by the record in Memar I. Id. at 559, 562 (2) (b) (citing CRS Sirrine, supra, 213 Ga. App. at 721 (4) (“[A]n appellate court will not disturb fact findings of a trial court if there is any evidence to sustain them.”) (punctuation omitted). As explained above, the trial court’s new final damages awards differ from those in its original order only as a result of the trial court directly awarding Memar the $12,332.76 in rental proceeds, rather than crediting it toward the amount Memar owed Jebraeilli on the latter’s counterclaim. The mere movement of the $12,332.76 to the damages directly awarded to Memar on his complaint, which Memar in fact requested in Memar 1, does not render the trial court’s new awards inconsistent with its previous ruling. To the contrary, we find that the trial court’s new damages awards are supported by the evidence presented and consistent with the trial court’s ruling as set forth in Memar I.

2. In his final enumeration, Memar contends that the trial court erred in failing to allow arguments by the parties prior to entering a decision on remand. We disagree.

Had this Court expressly stated in Memar I that it was remanding the case for further proceedings, we agree that such direction would have been mandatory and that the trial court would have had no discretion in such case to refuse to comply with the direction on remand. See, e.g., Rabern v. State of Ga., 231 Ga. App. 84, 84-85 (497 SE2d 631) (1998) (finding where this Court issued an opinion expressly stating that case was being remanded for further proceedings, such direction to hold a hearing was mandatory and the trial court had no discretion to refuse to comply with such direction).

However, we gave no such directive in Memar I. Rather, we specifically remanded the case for clarification of the trial court’s $15,000 damage award to Jebraeilli. Memar I, supra, 300 Ga. App. at 563 (2) (c). In doing so, we instructed the trial court to either demonstrate how it calculated Jebraeilli’s $15,000 award or recalculate Jebraeilli’s award and enter an order demonstrating the basis of such recalculation (which the trial court did in its new order). Id. Thus, contrary to Memar’s contention that this Court “ruled that a hearing be held for arguments of both parties for a collective recollection of the events and evidence presented at trial,” we discern no language in Memar I instructing the trial court to conduct further proceedings or otherwise hold a hearing on the damages matter.

Moreover, Memar does not argue, nor does the supplemental record reflect, that Memar specifically made any requests for a hearing between the time this Court issued its remittitur and the time the trial court entered its new order. Accordingly, the trial court did not err by failing to conduct an additional hearing prior to entering its new order.

Decided June 20, 2011.

Graham J. Purpura, for appellant.

Jon A. Green, for appellee.

Judgment affirmed.

Ellington, C. J, and Doyle, J., concur.

       Prior to Memar I, Jebraeilli had also filed a separate appeal from the judgment, but later withdrew it because the asserted errors were duplicative of the issues in Memar I and would therefore be rendered moot by the Court’s decision therein. Memar I, supra, 303 Ga. App. at 558, n. 1.

       Moreover, in light of our remand to the trial court for recalculation of the damages awarded on Jebraeilli’s counterclaim, we declined to rule on Memar’s contention that the trial court should have directly awarded him, as damages pursuant to his complaint, the $26,086.76 in rental income, loans, and other funds that the trial court found Jebraeilli owed to him, instead of crediting that amount to what Memar owed Jebraeilli on Jebraeilli’s counterclaim. Memar I, supra, 303 Ga. App. at 563 (2) (c).

       As noted earlier, the trial court had determined in Memar I that $29,375.63 was the total amount that Jebraeilli owed Memar in net rental income, mortgage payments, and expenses related to Tract 1. See Memar I, supra, 303 Ga. App. at 559.

       Notably, Memar argued that the trial court should have directly awarded him, as damages pursuant to his complaint, the $26,086.76 in rental income, loans, and other funds that the trial court found Jebraeilli owed to him, instead of crediting that amount to what Memar owed Jebraeilli on Jebraeilli’s counterclaim. Memar I, supra, 303 Ga. App. at 563 (2) (c).


text:
    A11A0588.
    ROZIER v. MAYOR AND ALDERMEN OF THE CITY OF SAVANNAH.
    (712 SE2d 596)
   Miller, Presiding Judge.

Ben Rozier d/b/a D.I. Grille (“Rozier”) appeals the trial court’s order dismissing his lawsuit against the Mayor and Aldermen of the City of Savannah (the “City Council” or the “City”). Rozier’s lawsuit was based on the City Council’s revocation and denial of an alcoholic beverage license held by Rozier. Because Rozier failed to properly seek review of the City Council’s adverse decisions regarding his alcoholic beverage license, we affirm the trial court’s dismissal of his lawsuit.

“When reviewing the grant of a motion to dismiss for failure to state a claim, we review the dismissal de novo, construing the complaint’s allegations and all possible inferences therefrom in favor of the plaintiff.” Daly v. Mueller, 279 Ga. App. 168, 168 (630 SE2d 799) (2006).

We sustain the dismissal if the allegations of the complaint disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts asserted in the complaint and if the movant establishes that the plaintiff could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought.

Id.

The record shows that Rozier owned and operated a restaurant and bar that served liquor pursuant to an alcoholic beverages license (“liquor license”) previously issued by the City. Following the occurrence of two separate incidents involving gunfire, both of which occurred on or adjacent to Rozier’s premises, the City proposed to revoke Rozier’s liquor license. The City Council conducted a hearing on the matter in November 2009. After hearing testimony from both Rozier and the City Attorney, the City Council decided to revoke Rozier’s liquor license pursuant to the City of Savannah’s Alcoholic Beverage Ordinance, § 6-1208 (a) (3), which authorizes the revocation of an alcoholic beverage license where “[t]he operation of the licensee’s business [is] in such a manner as to constitute a threat to public safety . . .

Thereafter, on April 9, 2010, Rozier filed a complaint in the Superior Court of Chatham County, seeking monetary damages for alleged tortious interference with business. The City Council responded to Rozier’s complaint on May 18, 2010, filing a combined answer and motion to dismiss. Around the same time, and upon the expiration of the requisite six-month waiting period after revocation of a liquor license, Rozier filed an application for a new license. The City Council notified Rozier via letter that a show cause hearing would take place on June 3, 2010, during which time Rozier would have the opportunity to show cause why his application should not be denied.

Represented by counsel, Rozier appeared at the June 3, 2010, hearing to present his arguments and evidence in favor of his application and to respond to adverse claims and evidence raised by the City Council. At the conclusion of the hearing, however, the City Council voted to deny Rozier’s application, predicating its decision on a number of grounds contained within § 6-1208 of the City of Savannah’s Alcoholic Beverage Ordinance. Shortly thereafter, Rozier filed an amended complaint, which, in addition to seeking damages for tortious interference with business, also stated claims for equitable relief and mandamus.

On August 18, 2010, the trial court granted the City Council’s motion to dismiss and entered an order dismissing Rozier’s lawsuit in its entirety. The trial court concluded that Rozier failed to state a cause of action for which relief could be granted, as a petition for certiorari with the superior court was Rozier’s sole remedy to challenge the City Council’s decision to revoke his liquor license and later deny his application for a new one. We agree that Rozier failed to properly appeal the City Council’s orders “at law by a duly filed writ of certiorari in the trial court,” Jordan v. City of Atlanta, 283 Ga. App. 285, 285 (641 SE2d 275) (2007); accordingly, we need not consider the trial court’s other grounds for dismissal.

Here, Rozier’s exclusive remedy was review of the City Council’s decisions via writ of certiorari under OCGA § 5-4-1 (a). OCGA § 5-4-1 (a) provides in relevant part that “[t]he writ of certiorari shall lie for the correction of errors committed by any inferior judicatory or any person exercising judicial powers.” In considering whether a writ of certiorari is the appropriate method of review, the hearing officer or lower tribunal whose order is being reviewed must have exercised judicial or quasi-judicial powers; certiorari is not appropriate where the power exercised was merely administrative, ministerial, or legislative in nature. Mack II v. City of Atlanta, 227 Ga. App. 305, 307 (1) (489 SE2d 357) (1997).

To determine whether an action was judicial or quasi-judicial in nature, the Court must first look to the particular function performed at the hearing. Mack II, 227 Ga. App. at 310. A hearing that is judicial or quasi-judicial in nature “is one in which all parties are as a matter of right entitled to notice and to a hearing, with the opportunity afforded to present evidence under judicial forms of procedure; and that no one deprived of such rights is bound by the action taken.” Id. at 307. When an aggrieved party is afforded this type of hearing, “appeals from such decisions can only be had by writ of certiorari under [OCGA § 5-4-1 (a),] where no additional right of appeal is provided by law.” (Punctuation omitted.) Starnes v. Fulton County School Dist., 233 Ga. App. 182, 185 (503 SE2d 665) (1998).

We addressed a situation similar to this case in Soerries v. City of Columbus, 222 Ga. App. 745 (476 SE2d 64) (1996). There, the city revoked a licensee’s liquor license, and rather than seeking review via writ of certiorari under OCGA § 5-4-1 (a), the licensee filed a complaint in superior court seeking declaratory relief, a preliminary and permanent injunction, and damages. Soerries, 222 Ga. App. at 745-746. Since the licensee’s claim for damages was contingent on the alleged wrongful revocation of his liquor license, however, a petition for certiorari was the exclusive mechanism by which the licensee could have challenged the city’s revocation of his liquor license. Id. at 746 (“In deciding to revoke [the licensee’s] license based on violations of the City’s Ordinance, the Council exercised judicial power in the same manner as a court would exercise power in investigating whether a person violated a law.”). As such, the licensee’s claim for damages lacked any legal basis for recovery, and we affirmed the trial court’s dismissal of the complaint in its entirety. See id. at 746.

Likewise, a petition for certiorari was the exclusive mechanism by which Rozier could have challenged the City Council’s revocation and denial of his liquor license in this case. Indeed, the record clearly reflects that Rozier received notice of both the November 2009 and June 2010 hearings, and that at each hearing, the respective parties were provided with the opportunity to appear, to be represented by counsel, and to present evidence. Accord Starnes, 233 Ga. App. at 184; Mack II, 227 Ga. App. at 309 (1). The City Council was then required to examine and weigh the evidence and “make a decision according to the law — to exercise discretion and judgment in application of the law [in this case, the City of Savannah’s Alcoholic Beverage Ordinance, § 6-1208 (a)] to a particular set of facts.” Mack II, 227 Ga. App. at 309 (1). “Such action by the [City Council] speaks of judicial, rather than merely ministerial or administrative, functions.” Id. Accordingly, once the City Council’s decisions to revoke and later deny Rozier’s application for a liquor license became final, Georgia law provided Rozier with an orderly, and exclusive, mechanism of seeking review — a writ of certiorari. Accord Starnes, 233 Ga. App. at 185.

Nevertheless, like the licensee in Soerries, Rozier chose not to file such writ as required by OCGA § 5-4-1 (a). Instead, he filed a new action in which he requested not only damages for tortious interference with business, but also equitable relief and mandamus for the City Council to “fairly consider” his application for a liquor license. However, because his claims are contingent on the alleged wrongful revocation of his liquor license and the subsequent denial of his application for a new one, a writ of certiorari was the only available legal remedy for the correction of any alleged errors committed by the City Council in reaching these decisions. Accord Soerries, 222 Ga. App. at 746.

Rozier’s attempt to challenge the City Council’s adverse decisions as to his liquor license by means of a separate action was improper; indeed, “[t]his means of review simply was not authorized under the law.” Starnes, 233 Ga. App. at 185. Consequently, the trial court did not err in dismissing Rozier’s complaint in its entirety. See Jordan, 283 Ga. App. at 286-287 (“[Dismissal of the complaint was proper for failure to state a claim upon which relief may be granted for lack of subject matter jurisdiction, [appellant] having [not] timely applied for writ of certiorari.”).

Judgment affirmed.

Ellington, C. J., and Doyle, J., concur.

Decided June 20, 2011.

Savage, Turner, Kraeuter, Pinckney, Britt & Madison, Brent J. Savage, Karl C. Zipperer, for appellant.

Wiseman, Blackburn & Futrell, James B. Blackburn, Peter A. Giusti, for appellee.

       The City Council specifically cited the following provisions of § 6-1208 as the bases for denying Rozier’s application of a liquor license:
      (a) Previous violations of the business;
      (b) Restrictions contained in [Rozier’s] lease agreement;
      (c) The location of the business;
      (d) The effect the operation under the previous license had [sic] on adjacent and and surrounding properties;
      (e) The number of incidents at this location requiring police intervention;
      (f) The Plaintiffs failure to submit a plan of operation.

       Rozier’s request for equitable relief and mandamus sought to compel the City Council to “fairly consider” his application for a liquor license.

       The other grounds cited in the trial court’s ruling were as follows: (i) the City Council had the benefit of sovereign immunity from Rozier’s action for damages; and (ii) Rozier did not have standing to assert any claims based on the City Council’s alleged refusal to accept the alcoholic beverage licenses of third parties.


text:
    A11A0677.
    RHONE v. THE STATE.
    (712 SE2d 601)
   Miller, Presiding Judge.

Kenny Rhone entered a negotiated plea of guilty to two counts of aggravated stalking (OCGA § 16-5-91 (a)) on August 16, 2010. On September 13, 2010, after a new term of court had commenced, Rhone filed a document entitled “Withdrawal of Plea,” asserting ineffective assistance of counsel and requesting that the trial court withdraw his plea. The trial court treated this document as a motion to withdraw the guilty plea and dismissed it for being untimely filed outside the term of court. Rhone appeals, raising several grounds allegedly entitling him to withdraw his plea We find that the trial court was without jurisdiction to entertain Rhone’s untimely motion to withdraw the plea and affirm.

“It is well settled that when the term of court has expired in which a defendant was sentenced pursuant to a guilty pleat,] the trial court lacks jurisdiction to allow the withdrawal of the plea.” (Citation and punctuation omitted.) Davis v. State, 274 Ga. 865, 865 (561 SE2d 119) (2002). “[A]fter the expiration of the term . . . the only remedy available to the defendant for withdrawing a plea is through habeas corpus proceedings.” (Citation and punctuation omitted.) Downs v. State, 270 Ga. 310, 310 (509 SE2d 40) (1998).

Here, the record shows that Rhone was sentenced on August 16, 2010, in the Superior Court of DeKalb County, Stone Mountain Circuit. An amended sentence was entered on August 25, 2010. Pursuant to OCGA § 15-6-3 (37), Rhone’s sentencing occurred during the July term of court. See OCGA § 15-6-3 (37) (“The terms of court for the superior courts for each of the judicial circuits shall commence as follows: . . . STONE MOUNTAIN CIRCUIT: DeKalb County — First Monday in January, March, May, July, September, and November.”). Accordingly, the trial court’s jurisdiction to consider Rhone’s motion to withdraw a guilty plea ended with the July 2010 term of court in which the judgment of conviction was entered. See Downs, supra, 270 Ga. at 310.

Decided June 20, 2011.

Kenny Rhone, pro se.

R. Javoyne Hicks White, District Attorney, Jessica K. Rock, Assistant District Attorney, for appellee.

It was on September 13, 2010, after a new term of court had commenced, see OCGA § 15-6-3 (37), that Rhone filed his motion to withdraw the guilty plea. Thus, the trial court lacked jurisdiction to consider the merits of Rhone’s claims, and his motion was properly dismissed. Accord Martin v. State, 266 Ga. App. 190, 191 (596 SE2d 705) (2004).

Judgment affirmed. Ellington,

C. J., and Doyle, J., concur.

       Although Rhone does not make this argument on appeal, we note that his motion to withdraw the plea cannot be treated as a habeas corpus petition, as his motion was brought against the State in the county of conviction rather than against the warden in the county in which Rhone is incarcerated. See Davis, supra, 274 Ga. at 865-866.


author: Phipps, Presiding Judge.

text:
    A11A0729.
    NUNNALLY v. THE STATE.
    (713 SE2d 408)
   Phipps, Presiding Judge.

Challenging his judgment of conviction, Ralph Nunnally contends that the evidence was insufficient to support the verdicts upon charges of: (i) turn signal violation, and (ii) possession of less than one ounce of marijuana. He also maintains that the drug evidence should have been suppressed as fruit of an illegal seizure. For reasons that follow, we affirm the conviction for the traffic offense and reverse the conviction for the drug offense.

The state’s witnesses testified to the following. On the afternoon of October 3, 2008, a patrol officer saw Nunnally twice fail to use his turn signal when traffic conditions required Nunnally to do so. During the ensuing traffic stop, a backup officer arrived with a dog trained in narcotics detection. While being walked around Nunnally’s vehicle, the dog signaled at the driver’s door that narcotics were inside. Nunnally, who had been traveling alone, was arrested. Subsequent searches of Nunnally’s person and the driver’s floorboard of his vehicle yielded marijuana.

1. We consider first Nunnally’s sufficiency challenge to his traffic conviction. When an appellant challenges the sufficiency of the evidence to support the conviction, “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.”

Nunnally argues that there was evidence showing that the officer who testified that he had turned without signaling in violation of OCGA § 40-6-123 was not credible. In addition, he points to his own testimony that he did use his turn signal. However, the jury, not this court, resolves conflicts in the testimony and weighs the evidence. And decisions regarding credibility are uniquely the province of the jury, which was not required to believe Nunnally’s testimony, nor to disbelieve that of the officer. The evidence, viewed in the light most favorable to the prosecution, authorized the jury to find that Nunnally turned without signaling in violation of OCGA § 40-6-123.

2. We turn to Nunnally’s challenge to the drug conviction. Nunnally maintains that the marijuana evidence should have been suppressed. He asserts that the patrol officer illegally detained him in order to conduct a drug investigation. When the backup officer arrived with the drug dog, Nunnally argues, the traffic stop was impermissibly expanded, thus rendering the marijuana — found only thereafter — the fruit of an illegal seizure.

“Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a ‘seizure’ of ‘persons’ within the meaning of [the Fourth Amendment].”

Because a routine traffic stop, even one based on probable cause of a traffic code violation, is a type of seizure more akin to an investigative stop under Terry v. Ohio,[]than a formal arrest, we apply the principles of Terry when analyzing the Fourth Amendment requirement that the scope and duration of the investigation conducted during a valid stop must be reasonable under the circumstances.

“An investigative detention usually must last no longer than is necessary to effectuate the purpose of the stop, and the scope of the detention must be carefully tailored to its underlying justification.” “ ‘[A] seizure that is justified solely by the interest in issuing a warning [or traffic] ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission.’ ”

In determining whether the length of [Nunnally’s] detention was within the brief investigative period authorized by Terry, we consider “whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.”

The facts relevant to that issue are not disputed, and the trial court’s application of the law to the undisputed facts is subject to de novo review.

After the patrol officer stopped Nunnally for failing to use his turn signal, he requested and received from Nunnally his driver’s license and insurance documentation. The officer testified that, during their exchange, Nunnally displayed fidgety hand movements and did not look him in the eye. Because the officer therefore perceived that Nunnally was “very nervous,” as he walked back to his patrol car, the officer called for safety purposes a backup unit. On that day, the patrol officer’s backup was a K-9 unit.

The officer recounted that, after he reached his patrol car, “[I] [h]ad dispatch run the driver’s license, things such as that. I did not start on the citation at that time. I mainly focused my attention on Mr. Nunnally due to his moving around within the vehicle. Once [the backup unit] arrived, I asked Mr. Nunnally from the vehicle.” The officer testified that Nunnally complied with his request to step out of his car, and he conducted a pat-down of Nunnally’s person and found no weapon.

We note that, even after the backup officer arrived at the scene and the patrol officer had removed Nunnally from his vehicle and determined that Nunnally did not have a weapon on his person, the patrol officer admittedly did not engage in any traffic law enforcement. For example, he did not start writing any citation or warning. In fact, he testified afterward that he had “no idea” whether the driver’s license information he had requested from dispatch had been made available to him by the time the backup unit arrived at the scene. Thus, the officer was asked, “So you kind of made the decision to not worry about the license at that time. Your priority was to wait for the officer to come with a drug dog?” The patrol officer responded, “Yes.”

After the K-9 unit arrived and Nunnally was removed from his vehicle and his person was checked for weapons, the record shows, the patrol officer next asked Nunnally for consent to search his vehicle. When Nunnally refused, the patrol officer instructed the backup officer (a police canine handler) to walk the dog around Nunnally’s car to sniff for the odor of narcotics. The patrol officer was later asked, “So basically, whether Mr. Nunnally consented or not, you were going to have that dog walk around the car.” The officer responded, “Absolutely.”

However, the sole justification for the patrol officer stopping Nunnally’s vehicle was his failure to use his turn signal. As noted above, “[u]nder Terry, an officer’s actions taken during a valid traffic stop must be reasonably related in scope to the circumstances which justified the stop in the first place, and limited in duration to the time reasonably necessary to accomplish the purpose of the stop.” “The officer’s purpose in an ordinary traffic stop is to enforce the laws of the roadway, and ordinarily to investigate the manner of driving with the intent to issue a citation or warning.”

Pretermitting whether it was permissible for the patrol officer to prolong the traffic stop to await the arrival of a backup unit for safety purposes, we conclude that the state failed to present to the trial court evidence authorizing a determination that the later detention to allow for the dog sniff was lawful. There was no evidence that, once the K-9 unit arrived, either police officer diligently pursued a means of investigation that was likely to confirm or dispel quickly any suspicion related to the observed traffic infractions. Indeed, neither officer so claimed. Rather, the patrol officer acknowledged that, with the K-9 unit at the scene, he turned his attention to a search of Nunnally’s car, which search included executing his earlier-formed plan to employ the drug dog to sniff the car’s exterior (if Nunnally withheld consent). The purpose of the traffic stop — to enforce the laws of the roadway and to investigate Nunnally’s manner of driving with the intent to issue a citation or warning — was thereby temporarily abandoned. Under these circumstances, there was no evidence that the investigative detention of Nunnally lasted “no longer than [was] necessary to effectuate the purpose of the stop” and no evidence that the scope of Nunnally’s detention was “carefully tailored to its underlying justification.”

Nor was any evidence adduced that the prolonged detention was justified by a reasonable, articulable suspicion of other criminal activity. When the K-9 unit arrived, Nunnally was ordered out of his vehicle; a pat-down of his person revealed neither weapon nor contraband. Further, the patrol officer’s earlier perception that Nunnally was nervous, gleaned from his fidgety hand movements and not looking the officer in the eye, did not support a finding of reasonable, articulable suspicion that would have justified prolonging the detention. Indeed, the officer never claimed so; his roadside investigation for purposes of traffic law enforcement was admittedly suspended while he pursued a drug law investigation. The resulting detention was unlawful; the marijuana, found as a result of the drug dog’s alert on Nunnally’s car during that time, constituted fruit of an illegal seizure.

In its order denying Nunnally’s motion for new trial, the trial court revealed its basis for not suppressing the drug evidence. It pointed out that, from the time the patrol officer stopped Nunnally until the drug dog arrived, approximately eight minutes elapsed. The court concluded that this detention was constitutional, in light of cases such as Boyd v. State, State v. Williams, and Williams v. State, which upheld longer detentions.

Critical to each of those decisions, however, was evidence either that, after the stop of the vehicle, the police diligently pursued a means of investigation likely to confirm or dispel their suspicions regarding a traffic infraction or that, during the course of a valid traffic stop, information developed that provided a reasonable, articulable suspicion to prolong the detention beyond the time reasonably required for completion of the traffic stop. No such evidence was presented in this case.

Decided June 20, 2011.

Virginia L. Garrard, for appellant.

Layla H. Zon, District Attorney, Kimberly M. Minicozzi, Assistant District Attorney, for appellee.

Because the marijuana evidence should have been suppressed, Nunnally’s conviction of possession of less than one ounce of marijuana is reversed.

Judgment affirmed in part and reversed in part.

Andrews and McFadden, JJ., concur.

       OCGA § 40-6-123.

       OCGA § 16-13-30 (a).

        Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

        Wells v. State, 297 Ga. App. 153, 154 (1) (676 SE2d 821) (2009).

       See Cleveland v. State, 285 Ga. 142, 147 (674 SE2d 289) (2009).

        Wells, supra at 157 (1) (b).

         Jackson v. Virginia, supra; Wells, supra.

        Whren v. United States, 517 U. S. 806, 809-810 (II) (116 SC 1769, 135 LE2d 89) (1996).

       392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968).

        State v. Williams, 264 Ga. App. 199, 201 (590 SE2d 151) (2003) (citation omitted).

        Smith v. State, 281 Ga. 185, 187 (2) (640 SE2d 1) (2006) (citation and punctuation omitted).

        Salmeron v. State, 280 Ga. 735, 736 (1) (632 SE2d 645) (2006), quoting Illinois v. Caballes, 543 U. S. 405, 407 (125 SC 834, 160 LE2d 842) (2005).

        Boyd v. State, 300 Ga. App. 455, 458 (1) (685 SE2d 319) (2009), quoting United States v. Sharpe, 470 U. S. 675, 686 (II) (B) (105 SC 1568, 84 LE2d 605) (1985).

        Vansant v. State, 264 Ga. 319, 320 (443 SE2d 474) (1994); see Williams, supra at 199. See also White v. State, 263 Ga. 94, 98 (5) (428 SE2d 789) (1993) (suppression hearing transcript and trial transcript may be considered on review of suppression ruling); Arnold v. State, 304 Ga. App. 90, n. 2 (695 SE2d 402) (2010).

       See generally Becoats v. State, 301 Ga. App. 768, 770 (688 SE2d 686) (2009) (“It does not unreasonably expand the scope or duration of a valid traffic stop for an officer to prolong the stop to immediately investigate and determine if the driver is entitled to continue to operate the vehicle by checking the status of the driver’s license, insurance, and vehicle registration.”) (punctuation and footnote omitted).

       See Salmerón, supra (Fourth Amendment is not violated when, during valid traffic stop, officer questions driver or occupants of vehicle and requests consent to conduct a search); Rosas v. State, 276 Ga. App. 513, 518 (1) (c) (624 SE2d 142) (2005) (out of concern for safety, an officer making a traffic stop may also order driver and any passengers out of vehicle).

        Williams, supra at 202 (citations omitted); see Smith, supra.

        Salmeron, supra (citation and punctuation omitted).

       See OCGA § 17-5-30 (b) (pertinently providing that “the burden of proving that the search and seizure were lawful shall be on the state”); State v. Massa, 273 Ga. App. 596, 597 (615 SE2d 652) (2005) (state has burden to establish existence of circumstances constituting exception to general prohibition against warrantless searches and seizures), citing OCGA § 17-5-30 (b)).

        Smith, supra.

       See Bell v. State, 295 Ga. App. 607, 609-610 (2) (672 SE2d 675) (2009) (Terry recognizes that, if there is a reasonable suspicion of criminal wrongdoing, based upon specific and articulable facts from which it can be determined that the action of the police officer is not arbitrary or harassing, the police officer may make a brief, investigatory detention of the individual while obtaining more information); Boyd, supra at 457-458 (1) (developments that occurred after the vehicle was validly stopped provided the officers with a reasonable basis to suspect that the passenger in the stopped vehicle was hiding illegal drugs on his person; thus, the officers had a basis independent of the traffic stop to briefly detain the passenger pursuant to Terry to investigate their reasonable suspicion of other criminal activity by summoning and employing a drug-sniffing dog).

       See Bell, supra (nervousness, perceived from driver’s refusal to make eye contact with officers, together with driver’s “dry mouth,” did not constitute a particularized and objective basis for officers to suspect that motorist possessed contraband); Payne v. State, 244 Ga. App. 734, 739-743 (4), (5) (536 SE2d 791) (2000) (deputy’s testimony — that the stopped driver, inter alia, was nervous, had “shaking” hands, dropped items from his wallet, would not “look me in the eye,” and was “shuffling around” — showed no particularized and objective basis for suspecting that driver was, or was about to be, engaged in criminal activity; thus, driver’s detention was unlawful).

       See Bell, supra at 610 (officers impermissibly exceeded scope of initial traffic stop when, due to suspicions raised by driver’s perceived nervousness, the officers detained travelers to await the arrival of a K-9 unit); Cuaresma v. State, 292 Ga. App. 43, 46-47 (2) (663 SE2d 396) (2008) (police officer who stops a motorist for traffic violation is not permitted to “expand the detention into a fishing expedition for evidence of unrelated offenses”; thus, where officers had no particularized, objective basis for suspecting stopped driver of other criminal activity, yet decided to conduct a drug investigation rather than ticket driver and release him, consent to search driver’s vehicle that was obtained during unlawful detention was invalid); State v. Blair, 239 Ga. App. 340, 342 (521 SE2d 380) (1999) (affirming grant of motion to suppress where “officer abandoned [registration and license] investigation and detained the occupants of the car in order to conduct a search for drugs”) (citation omitted). Compare Caballes, supra at 410 (dog sniff conducted during lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment); Barnett v. State, 275 Ga. App. 464, 466 (2) (620 SE2d 663) (2005) (finding no prolongation of the valid traffic stop to enable drug dog to conduct open air search around stopped vehicle, where dog was walked around car and alerted before the results of the requested driver’s license check were returned to the patrol officer); Becoats, supra at 770-771 (traffic stop was not impermissibly expanded to allow for drug dog sniff, where dog arrived and alerted on the vehicle while motorist was validly detained due to the patrol officer being engaged in checking his license).

       See generally Miller v. State, 288 Ga. 286, 287 (1) (702 SE2d 888) (2010) (instructing that a court reviewing ruling on motion to suppress must focus on facts found by the trial court in its order, because the trial court sits as the trier of fact).

       Supra.

       Supra.

       233 Ga. App. 70 (503 SE2d 324) (1998).

       See Boyd, supra at 455-458 (1) (holding that dog sniff was not conducted during an unlawful detention, even though stopped passenger was detained for about 15 minutes before dog arrived, where the police had a basis independent of the traffic violation to briefly detain the passenger); Williams, 264 Ga. App. at 200-204 (holding that the consent to search was voluntary and not the product of an illegally expanded traffic stop, even though consent did not occur until about 26 minutes after the vehicle was stopped, where the record showed no basis for concluding that officer did not diligently pursue the traffic investigation or that he postponed writing the traffic ticket while engaging in activity that unreasonably expanded the duration or scope of the stop); Williams, 233 Ga. App. at 71-72 (1) (holding that the consent to search was not the product of an illegally expanded traffic stop, even though consent did not occur until about 35 minutes after the vehicle was stopped, where the record showed that the officer was diligently pursuing the traffic investigation throughout that time).


author: McFadden, Judge.

text:
    A11A1105.
    GADDIS v. THE STATE.
    (712 SE2d 599)
   McFadden, Judge.

In 2001, James Gaddis was convicted of two counts of child molestation and was sentenced to serve seven years in confinement, followed by thirteen years on probation. In 2010, the trial court revoked Gaddis’ probation on the ground that he had tested positive for marijuana and thereby violated the special condition of his probation which prohibits him from taking into his body any controlled substance or mind-altering drug. Gaddis appeals, challenging the sufficiency of the evidence and the trial court having taken judicial notice of another court’s ruling that the drug test in question is of verifiable certainty. Because there is sufficient evidence to support the trial court’s ruling and the trial court did not err in taking judicial notice of another court’s decision, we affirm.

1. “It is well settled law that the quality and quantum of evidence necessary for revocation of probation is not that demanded for conviction of crime.” (Citation and punctuation omitted.) Carlson v. State, 280 Ga. App. 595, 598-599 (2) (634 SE2d 410) (2006). “[T]he evidence produced at the revocation hearing must establish the violations of probation only by a preponderance of the evidence, not beyond a reasonable doubt.” (Citations and punctuation omitted.) Parker v. State, 275 Ga. App. 35, 36 (619 SE2d 750) (2005). “On appeal, we will not interfere with a lower court’s revocation of probation absent manifest abuse of discretion.” (Citation omitted.) Milanovich v. State, 278 Ga. App. 669 (1) (629 SE2d 556) (2006).

In this case, two witnesses testified at the revocation hearing. Gaddis’ probation officer, Dain Dias, testified that he has been trained to administer the OnTrak TesTstik drug test. On May 11, 2010, Officer Dias administered the test to Gaddis, testing a urine sample for the presence of cocaine, amphetamine and marijuana. The test results were negative for cocaine and amphetamine, but positive for marijuana. The probation officer had previously told Gaddis that he had the right to an independent test, and Gaddis signed an “Instructions to Offenders” form which, among other things, stated that after a positive test he had the right to request an independent test by an approved laboratory. There is no evidence that he requested another test.

An expert witness also testified as to the drug testing procedures used in this case, noting that the Georgia Bureau of Investigation uses the same type of procedures. He testified that the OnTrak TesTstik has been approved by the Food and Drug Administration and that its testing method is accepted within the scientific community, and he provided a list of cases from Georgia and other jurisdictions which have approved the test. He further gave his expert opinion that the tests are accurate and have met a scientific standard of verifiable certainty.

Gaddis contends that the revocation of his probation must be reversed because there were conflicts in the evidence presented by the state. However, any conflicts constitute issues of credibility that must be resolved by the trial court, not this court. Reece v. State, 257 Ga. App. 137, 139 (1) (b) (570 SE2d 424) (2002). “It was the duty of the factfinder, here the superior court, to weigh the evidence, determine the credibility of witnesses, and decide whether to accept or reject evidence introduced[.]” Cannon v. State, 260 Ga. App. 15, 16 (579 SE2d 60) (2003). Given the probation officer’s testimony that Gaddis tested positive for marijuana and the expert’s opinion that the test used is scientifically reliable, the evidence “is sufficient to authorize the trial court’s finding, by a preponderance of the evidence, that [Gaddis failed a drug test].” Carlson, supra at 599 (2). Accordingly, the trial court did not manifestly abuse its discretion in revoking Gaddis’ probation. See Cheatwood v. State, 248 Ga. App. 617, 621 (2) (548 SE2d 384) (2001).

2. Gaddis claims that the trial court erred in taking judicial notice of another superior court ruling that found the drug test in question to be of verifiable certainty. The claim is without merit.

In Harper v. State, 249 Ga. 519, 525 (1) (292 SE2d 389) (1982), the Supreme Court of Georgia held that it is proper for the trial court to decide whether a scientific procedure or technique has reached a scientific state of verifiable certainty.

The trial court may make this determination from evidence presented to it at trial by the parties; in this regard expert testimony may be of value. Or the trial court may base its determination on exhibits, treatises or the rationale of cases in other jurisdictions. The significant point is that the trial court makes this determination based on the evidence available to him rather than by simply calculating the consensus in the scientific community. Once a procedure has been recognized in a substantial number of courts, a trial judge may judicially notice, without receiving evidence, that the procedure has been established with verifiable certainty, or that it rests upon the laws of nature.

(Citations omitted; emphasis supplied.) Id. at 525-526 (1).

In the instant case, the trial court did not simply calculate a consensus in the scientific community, but instead properly determined the reliability of the drug test based on the evidence presented at the revocation hearing. As noted above in Division 1, that evidence included extensive testimony by an expert witness explaining the history of the drug test, the science behind it, its use in many other states, and his opinion that the test is accurate and has met a standard of verifiable certainty. Consequently, this case is similar to, and controlled by, Cheatwood v. State, supra, which involved use of the same type of drug test to prove a probation violation. In that case, we recognized that this court had previously reversed probation revocations where the state did not present expert testimony to establish the reliability of the test. Cheatwood, 248 Ga. App. at 620 (1). However, in Cheatwood, as in the case at bar, such expert testimony establishing the verifiable certainty of the test was submitted by the state, and we therefore concluded that the trial court did not err in admitting the drug test results into evidence. Id.

Furthermore, contrary to Gaddis’ claim, the trial court did not err in taking judicial notice of another court’s ruling. “[I]f a trial court intends to take judicial notice of any fact, it must first announce its intention to do so on the record, and afford the parties an opportunity to be heard regarding whether judicial notice should be taken.” (Citation and punctuation omitted.) Mann v. State, 285 Ga. App. 39, 42 (645 SE2d 573) (2007). Here, the trial court did just that, announcing its intention to take judicial notice of the prior court ruling in question and giving the parties an opportunity to be heard on that issue. Moreover, even though the trial court judicially noticed that ruling, it did not do so without receiving other evidence. Rather, as previously recounted, the trial court also received the testimony of the expert witness, the probation officer and various exhibits. Accordingly, there was no violation of the requirement that the trial court base its determination on the evidence presented to it. See Harper, supra.

Decided June 20, 2011.

Anne L. Watson, for appellant.

Lee Darragh, District Attorney, Vanessa E. Sykes, Assistant District Attorney, for appellee.

Judgment affirmed.

Phipps, P. J., and Andrews, J., concur.