author: MCFADDEN, Judge.

text:
    A14A0140.
    MOSES v. THE STATE.
    (760 SE2d 217)
   MCFADDEN, Judge.

A jury found Marco Moses guilty of aggravated assault, aggravated assault with a deadly weapon, and possession of a firearm during the commission of a felony. He appeals his convictions. He argues that the trial court erred in denying his motion to suppress evidence found during a search of a house that he and his mother owned and at which his mother lived. We agree with Moses that the trial court erred in holding that he lacked standing to make this challenge but find that the trial court did not err in denying his motion on the merits, and we find that Moses has waived appellate review of alternative grounds for suppression that he raised post-conviction. Moses argues that the trial court erred in allowing certain impeachment evidence, but we find that the state laid the necessary foundation for the evidence. Moses argues that the trial court erred in allowing various other evidence, argument, and lines of questioning at trial, but we find that he waived appellate review of these claims by failing to object at trial. Finally, Moses argues that his trial counsel was ineffective, but we find he has not met his burden of showing he received ineffective assistance of counsel. Accordingly, we affirm.

1. Facts.

Viewed in the light most favorable to the verdict, the evidence showed that shortly after midnight on September 26, 2007, Dantavious Walker drove his friend’s car to a convenience store. As Walker returned to the car after making a purchase, a van (whose driver Walker later identified as Moses) pulled up and a man (whom Walker also later identified) emerged and began shooting at Walker and the car. Walker was shot several times as he fled the scene in the car. Walker identified Moses as the van’s driver in an interview with police at the hospital several hours later.

On October 1, 2007, police obtained a warrant to arrest Moses and a warrant to search for him at a house where his mother lived. They found Moses there and arrested him. Later that day, police obtained another warrant to search that house for items including guns. In a bathroom adjoining the master bedroom, police found a gun that a ballistics expert subsequently tied to shell casings found at the scene of the shooting. In the master bedroom, police found Moses’s belongings, including his clothing, jewelry, identification, and paperwork bearing his name.

2. Motion to suppress.

Moses moved to suppress the evidence found during the search of the house at which he had been arrested on the ground that the search warrant affidavit contained insufficient facts to support the issuance of the warrant. The trial court denied the motion, finding both that Moses lacked standing to challenge the search of the house and, alternatively, that the motion failed on its merits. The trial court reiterated these two holdings in an order denying Moses’s motion for new trial.

“On reviewing a trial court’s ruling on a motion to suppress, evidence is construed most favorably to uphold the findings and judgment and the trial court’s findings on disputed facts and credibility must be accepted unless clearly erroneous.” Wright v. State, 294 Ga. 798, 801 (2) (756 SE2d 513) (2014) (citation and punctuation omitted). “[W]e may consider all relevant evidence of record, wherever located, including evidence introduced at a suppression hearing and that introduced at trial.” Jackson v. State, 295 Ga. App. 427, 430 (3) (671 SE2d 902) (2009) (citation omitted).

(a) Standing to challenge search.

Moses argues that the trial court erred in finding that he lacked standing to challenge the search. “In order to claim the protection of the Fourth Amendment against unreasonable search and seizure, a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable.” Smith v. State, 284 Ga. 17, 21 (3) (663 SE2d 142) (2008) (citations and punctuation omitted). In other words, “a defendant must demonstrate both a ‘subjective’ expectation of privacy and that the expectation is one that society is willing to recognize as reasonable.” Rashid v. State, 292 Ga. 414, 418 (3) (737 SE2d 692) (2013) (citation omitted). The trial court held that Moses lacked standing to challenge the search of the house because he did not live there and because people “came and went from the room in question.”

Viewed most favorably to the trial court’s findings and judgment, the evidence is sufficient to sustain the trial court’s finding that Moses did not live in the house. Moses concedes in his appellate brief that there was a “clear dispute in the evidence” on this point. Moses’s mother testified that he did not live there, and the trial court expressly credited that testimony despite the mother’s equivocation on the point and contradictory evidence presented by Moses.

Nevertheless, “a place need not be respondent’s ‘home,’ temporary or otherwise, in order for him to enjoy a reasonable expectation of privacy there. The Fourth Amendment protects people, not places, and provides sanctuary for citizens wherever they have a legitimate expectation of privacy.” Arnold v. State, 237 Ga. App. 857, 859 (1) (517 SE2d 97) (1999) (citation omitted). See generally Minnesota v. Olson, 495 U. S. 91, 95-100 (II) (110 SCt 1684, 109 LE2d 85) (1990) (discussing considerations for determining whether person has legitimate expectation of privacy in place where he does not live).

Notwithstanding the evidence that Moses did not live in the house, there was undisputed evidence that he had a legitimate expectation of privacy there. First and foremost, Moses owned the house, possessing joint tenancy with his mother. Georgia cases acknowledge that a party’s ownership interest in property is relevant to the party’s standing to contest a search of that property. See, e.g., Thomas v. State, 274 Ga. 156, 159 (3) (549 SE2d 359) (2001) (noting that defendant had no expectation of privacy where he had “no ownership or possessory interest in the premises”); Carreno v. State, 272 Ga. App. 229, 231 (1) (c) (612 SE2d 62) (2005) (finding defendant had no standing to contest search of apartment in which he had “no ownership or possessory interest”); Floyd v. State, 237 Ga. App. 586, 587 (516 SE2d 96) (1999) (“A defendant does not have a reasonable expectation of privacy in the premises of another where the defendant is a transient visitor who has no ownership or possessory interest.”).

The trial court discounted Moses’s ownership of the house on the ground that a property owner can lack a reasonable expectation of privacy in property when it is leased to a tenant. As noted in 6 LaFave, Search & Seizure § 11.3 (a) (5th ed. 2012),

the mere fact of ownership standing alone will not necessarily suffice. In particular, if the owner of certain premises has leased them to another without reserving any right of possession to himself, then it cannot be said that a police intrusion into those premises encroaches upon his expectation of privacy.

Id. at 170 (citations omitted). But no evidence showed that Moses leased the property to a tenant. The persons residing at the house were his mother (who co-owned the property) and his minor daughter. And undisputed evidence showed that, in addition to his ownership, Moses retained other rights in the house ■— he received mail there and kept his personal property in the master bedroom, including his clothing, jewelry, identification, and personal papers. At the time of his arrest, Moses was at the house, and his vehicle was parked in the garage. In fact, at trial the state emphasized Moses’s connection with the house, although it maintained that he lived elsewhere.

This undisputed evidence showed that Moses was neither a transient visitor at the house nor a landlord who had relinquished his rights of possession to a tenant. He owned the house, had access to it, kept personal items there, and spent time there. Moses had an expectation of privacy that was “rooted in understandings that are recognized and permitted by society [and was an expectation] society is prepared to recognize as reasonable.” State v. Brown, 212 Ga. App. 800, 803 (442 SE2d 818) (1994) (citations and punctuation omitted).

Although the trial court found that people “came and went from the room in question” — presumably the master bedroom and its adjoining bathroom — the record does not demonstrate any people having access to those rooms other than Moses, his mother, the mother of his minor child, and “cleaning people.” It is undisputed that both Moses’s mother and the child lived in the house, and that the mother co-owned the house with Moses. The state has pointed to no authority that a property owner who otherwise had a reasonable expectation of privacy in the house relinquished that expectation by allowing persons such as household residents, family members of residents, or housecleaners access to the house. See Arnold, 237 Ga. App. at 859 (1) (language in tenant’s lease agreement giving landlord “right of entry” into apartment for specific, normally scheduled purposes such as maid service or repairs did not demonstrate that tenant had waived any expectation of privacy as to all entries into the premises).

For these reasons, we find that the evidence viewed in the light most favorable to the trial court’s findings and judgment nevertheless showed that Moses had standing to challenge the search of the house. Accordingly, the trial court erred in holding that he did not have standing.

(b) Merits of the motion to suppress.

Moses moved to suppress the evidence found in the search of the house on the ground that there was not probable cause for the warrant authorizing the search. See OCGA § 17-5-21 (a). Our Supreme Court, in State v. Palmer, 285 Ga. 75 (673 SE2d 237) (2009), described the standards applicable to the various levels of judicial scrutiny involved in the warrant process as follows:

The magistrate’s task in determining if probable cause exists to issue a search warrant is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.
The trial court may then examine the issue as a first level of review, guided by the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant, and the principle that substantial deference must be accorded a magistrate’s decision to issue a search warrant based on a finding of probable cause. Adeferential standard of review is appropriate to further the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant. Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.
Our appellate courts will review the search warrant to determine the existence of probable cause using the totality of the circumstances analysis.. .. The duty of the appellate courts is to determine if the magistrate had a substantial basis for concluding that probable cause existed to issue the search warrant. ... In reviewing the trial court’s grant or denial of a motion to suppress, we apply the well-established principles that the trial court’s findings as to disputed facts will be upheld unless clearly erroneous and the trial court’s application of the law to undisputed facts is subject to de novo review, keeping in mind that a magistrate’s decision to issue a search warrant based on a finding of probable cause is entitled to substantial deference by a reviewing court.

Id. at 77-78 (citations and punctuation omitted).

With these standards in mind, we turn to the search warrant that Moses challenges on appeal. That warrant authorized the search of the house for items that included weapons, ammunition, gun cases and shell casings, and it was supported by an affidavit pertinently stating:

On September 20, 2007, [a named victim other than Dantavious Walker] was shot multiple times at [a specified location in] Atlanta, Fulton County, Georgia. During course of the hom[i]cide investigation, suspect[ ] Marco Moses was identified as one of several suspects in listed incident. Suspect [ ] Marco Moses was apprehended at listed location [for which the warrant was sought], and in plainview [sic], several gun cases were observed by arresting officers.

Moses argues that this information was too conclusory to demonstrate probable cause that evidence of a crime would be found at the house. We disagree. The magistrate could conclude from the affidavit that a homicide involving a firearm had occurred, that Moses was connected to that crime, that Moses had been found in the house for which the search warrant was sought, and that there might be guns at that house as evidenced by the gun cases seen in the house. Moreover, earlier that day the magistrate had received another affidavit in connection with another warrant that provided more information connecting Moses to the homicide; that affidavit stated that there was an outstanding arrest warrant against Moses for murder, that members of a regional law enforcement task force had obtained information from a confidential informant with a history of reliability that Moses was at his mother’s residence, and that a vehicle matching the description of Moses’s vehicle was parked at the residence. The affidavit given in connection with the earlier warrant contained details, including information about the source and reliability of the information linking Moses to the homicide, that offset the alleged omissions in the affidavit given in connection with the warrant that Moses challenges on appeal. See Palmer, 285 Ga. at 79 (where information presented in affidavit is incomplete, magistrate may still have sufficient information to find that probable cause exists for issuance of warrant if omissions are offset by independent corroboration of criminal activity). Given that “[e]ven doubtful cases should be resolved in favor of upholding a magistrate’s determination that a warrant is proper,” id. (citation and punctuation omitted), the trial court did not err in denying Moses’s motion to suppress on the merits.

(c) Post-conviction suppression arguments.

In his motion for new trial and at the hearing on that motion, Moses argued two additional grounds for the suppression of evidence obtained in the search of tbe house: that the warrant affidavit misrepresented the crime for which the evidence was being sought, and that the gun cases referred to in the warrant affidavit were discovered during an earlier, unlawful search at the time of Moses’s arrest. Because Moses did not raise these specific grounds until the post-conviction stage of the proceedings, he has waived appellate review of these arguments. See Bryant v. State, 288 Ga. 876, 894 (13) (b) (708 SE2d 362) (2011) (defendant waived appellate review of arguments for suppression of evidence that were not raised in motion to suppress); Hodges v. State, 319 Ga. App. 657, 658 (2) (a) (738 SE2d 111) (2013) (objection to evidence on specific ground at trial waived any objection to evidence on other grounds on appeal); Proffitt v. State, 181 Ga. App. 564, 566 (2) (353 SE2d 61) (1987) (“Grounds which may be considered on motion for new trial or on appeal are limited to those which were raised at trial.”) (citations omitted).

3. Improper impeachment.

Over objection, the trial court allowed the state to question a detective about the statement that the victim, Walker, made to the officer shortly after the shooting, and to admit into evidence and publish to the jury a recording of that statement. Moses argues that this was error because the state did not establish the foundation required by former OCGA § 24-9-83 for the introduction of a witness’s prior contradictory statement to impeach the witness. That Code section, which was in effect at the time of Moses’s trial, sets forth the procedure for impeaching a witness with a prior contradictory statement:

A witness may be impeached by contradictory statements previously made by him as to matters relevant to his testimony and to the case. Before contradictory statements may be proved against him,... the time, place, person, and circumstances attending the former statements shall be called to his mind with as much certainty as possible. If the contradictory statements are in writing and in existence, they shall be shown to him or read in his hearing. . . .

“The purpose of laying such a foundation is to give the witness the opportunity to explain or deny the prior contradictory statement.” Meschino v. State, 259 Ga. 611, 614 (2) (b) (385 SE2d 281) (1989) (citation omitted).

The record shows that the state established the required foundation under former OCGA § 24-9-83. At trial, Walker denied seeing Moses at the scene of the shooting. In response to the prosecutor’s questions, however, Walker testified that he recalled making a statement to a certain detective while at the hospital awaiting treatment shortly after the shooting. Through this testimony, Walker demonstrated that the state sufficiently called to his mind the time, place, person, and circumstances of the statement such that he could explain or deny the statement. See Meschino, 259 Ga. at 615 (2) (c) (finding requirements of former OCGA § 24-9-83 were met where witness “acknowledged making some kind of statement”). Compare Daniely v. State, 309 Ga. App. 123, 125-126 (2) (709 SE2d 274) (2011) (finding requirements of former OCGA § 24-9-83 were not met where “prior statement was not mentioned during [witness’s] testimony and she was not asked any questions concerning the time, place, person, or circumstances attending it”). And in fact, Walker did explain the statement. Although he initially testified that he did not recall telling the detective that Moses was the van driver, later he admitted that he did identify Moses to the detective in his statement, but he explained that the identification was based on information he had heard from others and not what he himself had seen. His admission that he made the inconsistent statement to the detective did not render the statement inadmissible. Our Supreme Court has “rejected the assertion that a prior inconsistent statement is admissible only if the witness denies making the prior statement, but not if he simply disputes the truth of the earlier statement. There is no such denial requirement under [former] OCGA § 24-9-83.” Johnson v. State, 289 Ga. 106, 108 (3) (709 SE2d 768) (2011) (citation and punctuation omitted).

Although Moses argues that the recording of his interview also “contained numerous facts that were not the subject of his direct examination, or the impeachment,” he does not identify any specific instances of such facts, and it is not apparent from this court’s review of the recording that any reversible error occurred through its admission and publication.

4. Unobjected-to trial errors.

In several enumerations of error, Moses argues that the trial court committed various errors at trial: permitting the state to make improper comments and allegations during opening statement and closing argument; permitting the state to ask state’s witnesses improper questions eliciting prejudicial testimony; and permitting the state to introduce bolstering hearsay evidence. Moses did not object to any of these alleged errors, however, and at the time of his 2011 trial plain error review did not apply to these claims. See generally Durham v. State, 292 Ga. 239, 240 (2) (734 SE2d 377) (2012) (discussing limited circumstances in which plain error review applied in appeals of criminal cases that were tried before OCGA § 24-1-103 (d) of the new Evidence Code went into effect on January 1, 2013). Consequently, Moses has waived appellate review of these claims of error. Durham, supra.

5. Ineffective assistance of counsel.

Moses argues that his trial counsel rendered ineffective assistance during both the pre-trial proceedings on his motion to suppress and at trial. He has not met his burden of showing that any of the alleged errors of trial counsel amount to ineffective assistance.

To prevail on his ineffective assistance claim, Moses must show both deficient performance by trial counsel and actual prejudice. Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984); Smith v. Francis, 253 Ga. 782, 783 (1) (325 SE2d 362) (1985). If he “fails to meet his burden of proving either prong, then we do not need to examine the other prong.” Works v. State, 301 Ga. App. 108, 114 (7) (686 SE2d 863) (2009) (citation omitted). On appeal, we “accept the trial court’s factual findings and credibility determinations unless they are clearly erroneous, but. . . independently apply the legal principles to the facts.” Johnson v. State, 290 Ga. 382, 383 (2) (721 SE2d 851) (2012) (citation omitted).

(a) Counsel’s effectiveness in moving to suppress evidence.

Moses argues that he received ineffective assistance of counsel with regard to his motion to suppress the evidence obtained in the search of the house in which he was arrested. He contends that the attorney who represented him at the motion to suppress stage of the proceedings should have raised two additional arguments in support of the motion, and that the attorney who represented him at trial should have sought to reopen the motion to suppress to raise the additional arguments. He also argues that his trial counsel failed to present additional evidence relevant to the standing issue. Because we have found that the evidence that was presented established Moses’s standing to contest the search, see Division 2 (a), supra, we need not address this argument.

(i) The Franks v. Delaware argument.

Moses contends that trial counsel should have argued that the first search warrant (which authorized the search of the house for Moses himself) was invalid under Franks v. Delaware, 438 U. S. 154 (98 SCt 2674, 57 LE2d 667) (1978), because its supporting affidavit contained an inaccuracy. The Franks decision provides a means for a defendant to challenge the veracity of a warrant affidavit, and to set aside false material therein, upon a showing that the false statement was made knowingly and intentionally, or with reckless disregard for the truth. Id. at 155-156. See generally Watts v. State, 274 Ga. 373, 374-375 (1) (552 SE2d 823) (2001) (discussing application oí Franks in Georgia). Moses asserts that the affidavit falsely stated that he “had a valid warrant for murder out of the City of Atlanta, Warrant Number MC092707B.” But Moses has not pointed to evidence substantiating any basis for arguing that the police officer who submitted the affidavit that contained this allegedly false statement deliberately or recklessly disregarded the truth. In fact, our review of the record has unearthed no testimony whatsoever from that officer on that issue. Consequently, Moses has not met his burden of showing that his trial counsel’s performance was deficient for failing to assert this argument in support of the motion to suppress. See Coleman v. State, 271 Ga. 800, 803 (5) (a) (523 SE2d 852) (1999).

(ii) The fruit of the poisonous tree argument.

Moses contends that his trial counsel should have argued that the evidence found pursuant to the warrant authorizing the search of the house for guns and other items was the fruit of the poisonous tree, because that warrant rested on the police having seen gun cases during an unlawful search of the house earlier in the day while they were arresting Moses. Again, Moses has failed to point to evidence substantiating his argument that the earlier search was unlawful. He argues in his appellate brief that it was unnecessary for the arresting officers to enter the house where they saw the gun cases because his arrest occurred outside the house. As the state argues, however, some circumstances can justify police officers to make a protective sweep of a residence after arresting a person there pursuant to a warrant. See Inglett v. State, 239 Ga. App. 524, 525 (1) (521 SE2d 241) (1999). The record contains no evidence as to whether such circumstances existed in this case. The arresting officers did not testify on the issue. Consequently, Moses has not met his burden of showing that his trial counsel’s performance was deficient for failing to assert this argument in support of the motion to suppress. See Coleman, 271 Ga. at 803 (5) (a).

(b) Counsel’s effectiveness at trial.

Moses argues that his trial counsel was ineffective at trial by failing to object to “threat” evidence, to “veiled allegations that the [defense] lawyers were engaged in a cover-up” during the state’s opening statement, and to a number of allegedly improper actions taken by the state during its closing arguments. Moses devotes very little space to these ineffectiveness arguments in his appellate brief, and in each case he has failed to meet his burden of showing that he received ineffective assistance of counsel.

(i) “Threat” evidence.

Moses argues that his trial counsel should have objected to questions that the state posed to some of its witnesses during direct examination that concerned whether the witnesses had felt threatened about cooperating with law enforcement or testifying. He also argues that his trial counsel should have objected to a police detective’s testimony that law enforcement “had received information that there were multiple individuals that could be in danger due to some things that were going on that were connected to this investigation.” The state elicited this evidence to explain “the witness [es’] evasive and extremely reluctant conduct on the witness stand.” Coleman v. State, 278 Ga. 486, 488 (3) (604 SE2d 151) (2004). As such, it was within the trial court’s discretion to allow the alleged “threat” evidence, id., and trial counsel did not perform deficiently in failing to object to it. See Hall v. State, 292 Ga. 701, 704 (4) (d) (743 SE2d 6) (2013). Assuming without deciding that trial counsel should have made a hearsay objection to the detective’s testimony, the testimony that “multiple individuals could be in danger” in connection with the investigation was extremely vague. Moses has not shown a reasonable likelihood that the outcome of the trial would have been different but for counsel’s failure to object to the testimony. See Strickland, 466 U. S. at 694 (III) (B).

Decided July 15, 2014 —

Reconsideration denied July 30, 2014 —

Garland, Samuel & Loeb, Donald F. Samuel, for appellant.

(ii) Cover-up allegations.

Moses argues that his trial counsel should have objected when, during the state’s opening statement, a prosecutor stated that Moses and his co-defendant “did their best to cover up [their crime] in more than one way. One way was very sophisticated. And they hired lawyers, which they’re entitled to do under our Constitution[.]” While we agree with Moses that these disparaging comments against counsel were not appropriate, see generally Geoffrion v. State, 224 Ga. App. 775, 780 (8) (c) (482 SE2d 450) (1997), overruled in part on other grounds by Mullins v. State, 270 Ga. 450, 451 (2) (511 SE2d 165) (1999), we are not persuaded with his argument that the prosecutor’s opening statement so impugned his counsel’s role in the judicial process that his counsel’s failure to object to it constituted ineffective assistance of counsel. The authorities Moses cites in support of this claim do not hold otherwise. See Scott v. State, 305 Ga. App. 710 (700 SE2d 694) (2010); Miller v. State, 228 Ga. App. 754 (492 SE2d 734) (1997); Geoffrion, supra.

(iii) Closing argument.

After pointing to at least seven points in the state’s closing argument that he contends were improper, Moses makes the cursory argument that “[d]efense counsel failed to object to any of these improper arguments, thus providing ineffective assistance of counsel in violation of the Sixth Amendment.” He offers no specific argument for why his trial counsel was deficient for failing to object at these various points in the closing argument, and he does not address the prejudice prong at all in his appellate brief. Consequently, Moses has not met his burden of showing that he received ineffective assistance of counsel in connection with his trial counsel’s decision not to object during the state’s closing argument. See Crumity v. State, 321 Ga. App. 768, 772 (2) (743 SE2d 455) (2013) (trial court did not err in finding that defendant failed to carry burden of proving he received ineffective assistance of counsel where defendant made no effort beyond cursory speculation to show how he was prejudiced).

Judgment affirmed.

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

Paul L. Howard, Jr., District Attorney, Joshua D. Morrison, Assistant District Attorney, for appellee.

       Georgia’s new Evidence Code addresses the introduction of a witness’s prior inconsistent statement at OCGA § 24-6-613 (b).


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A14A0206.
    VININGS BANK v. BRASFIELD & GORRIE, LLC.
    (759 SE2d 886)
   Miller, Judge.

This case arises from a defaulted $1.4 million business loan that Vinings Bank (“the Bank”) made to Wagener Enterprises, Inc. (“WEI”). As partial collateral for the $1.4 million loan, WEI granted the Bank a security interest in all of its accounts and accounts receivable, including WEI’s contract to provide dry wall services work for general contractor Brasfield & Gorrie (“B&G”) on multiple construction projects. After WEI defaulted on the loan, the Bank filed suit against B&G, seeking to collect on WEI’s accounts receivable and alleging conversion. B&G filed a counterclaim for conversion, and the parties subsequently filed cross-motions for summary judgment. The Bank appeals, contending that the trial court erred in (1) denying its motion for summary judgment in its action to recover money from B&G, and in granting partial summary judgment to B&G; (2) denying its motion for summary judgment on its conversion claim; and (3) denying its motion for summary judgment on B&G’s counterclaim for conversion. Discerning no error, we affirm.

It is well established that on appeal of a grant of summary judgment, the appellate court must determine whether the trial court erred in concluding that no genuine issue of material fact remains and that the party was entitled to judgment as a matter of law. This requires a de novo review of the evidence. 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, 250-251 (510 SE2d 541) (1998).

So viewed, the evidence shows that the Bank made the loan to WEI in August 2009. As collateral, WEI granted the Bank a security interest in “all of [WEI’s] accounts, accounts receivable, instruments, and other receivables of any kind or nature, whether or not evidenced by any instrument or chattel paper, and whether earned or unearned.” The security interest also obligated WEI to deliver accounts that were “free and clear of any lien.” That same month, the Bank filed a UCC-1 Financing Statement to perfect its security interest in WEI’s accounts.

In 2010 and 2011, WEI entered into a dozen subcontracts (“the subcontracts”) with B&G, each related to a different construction project. The record shows that WEI performed pursuant to these contracts, submitted invoices on the projects throughout 2010 and 2011, and was regularly paid by B&G for its work. Before WEI went out of business, some of the construction projects were completed, and WEI’s final bills had been submitted to B&G and paid. Other projects were not yet complete. In September 2011, B&G learned that WEI was going out of business and abandoning its work on unfinished construction projects.

After WEI defaulted on the loan in August 2011, the Bank froze WEI’s deposit accounts and applied the funds in those accounts toward the principal due on the loan. According to the Bank, B&G owed WEI approximately $700,000 for work that had been completed and invoiced prior to the end of September 2011. In October 2011, the Bank sent notice to B&G that it had an interest in WEI’s accounts and accounts receivables. B&G responded that some of the funds in WEI’s accounts were funds paid by B&G, which may be due to some of WEI’s suppliers and subcontractors, and B&G could not determine any amount due and payable to WEI until after B&G arranged for completion of the abandoned projects and after WEI’s subcontractors and suppliers were paid.

Thereafter, acting pursuant to the express terms of the subcontracts, B&G made no further payments to WEI until it could determine the costs to complete WEI’s work and pay WEI’s laborers, subcontractors, and suppliers. B&G also stopped payment on its outstanding checks to WEI.

In September 2012, the Bank filed suit against B&G, alleging that B&G owed money to WEI and thus, under the security deed, owed money to the Bank. B&G filed a counterclaim for conversion of funds in WEI’s frozen accounts, which were due to WEI’s subcontractors and suppliers.

In granting partial summary judgment to B&G, the trial court found, as a matter of law, that WEI, and therefore the Bank, was not entitled to payment under the subcontracts until WEI’s subcontractors and suppliers were paid and until the completion costs of finishing the work abandoned by WEI were applied to the value of the completed work. The trial court denied the Bank’s motion for summary judgment, finding an issue of fact regarding whether WEI had any right to further payments (i.e., whether any accounts receivables existed) from B&G.

1. The Bank contends that the trial court erred in denying its motion for summary judgment and in granting partial summary judgment to B&G on the issue of the Bank’s security interest. We disagree.

Under Georgia’s Uniform Commercial Code, a security interest is enforceable against a debtor and third parties with respect to collateral, only if “the debtor has rights in the collateral.” OCGA § 11-9-203 (b) (2). “A security interest can attach only to the extent of the debtor’s interest.” (Citations omitted.) Southwest Ga. Production Credit Assn. v. James, 180 Ga. App. 795, 796 (350 SE2d 786) (1986). An assignee’s right to payment, therefore, is no greater than the assignor’s right to payment, and an assignee’s rights are subject to any defenses against the assignor. OCGA § 11-9-404 (a); Lamb v. First Union Brokerage Svcs., 263 Ga. App. 733, 736 (1) (589 SE2d 300) (2003). To determine the assignor’s right to payment, we must look to the contracts between B&G and WEI.

In Georgia,
where the terms of a written contract are clear and unambiguous, the court must look to the contract to find the intention of the parties — not to matters outside the contract. It is also well established that a contract should be construed by examining the entire agreement, not by speculating about isolated words, clauses or provisions thereof. Further, the construction of a contract, unambiguous on its face, is a matter of law for the court, even though a party to the contract contends it should be construed differently.

(Citations omitted.) Techwerks, Inc. v. Retail Technologies Corp., 235 Ga. App. 144, 145 (509 SE2d 84) (1998). Contract disputes are particularly well suited for summary adjudication because the construction of contracts is ordinarily a matter of law for the court. See, e.g., Burns v. Reves, 217 Ga. App. 316, 318 (1) (457 SE2d 178) (1995).

The portions of the subcontracts relevant here are identical. The subcontracts all required B&G to pay WEI “for the satisfactory performance and completion of the Work under this [s]ubcontract the sum set forth above as the [pjrice, subject to additions and deductions as herein provided.” Regular progress payments were to be made as B&G received progress payments from the projects’ owners and final payment was to be made upon completion of the projects. The subcontracts entitled B&G to withhold or deduct from any progress or final payment all amounts necessary to protect B&G if WEI failed to complete the work or failed to pay its subcontractors and suppliers. The subcontracts expressly provided that “the payments made by [B&G] will be held, in trust by [WEI] to be applied first to the payment of laborers, suppliers, subcontractors and others responsible for the [work].” Final payment was only due under the subcontracts upon completion of the work, and evidence that there were no outstanding debts, claims, obligations, or liens for labor, services, or materials.

Under the clear language of the subcontracts, WEI was not entitled to final payment until all the work had been performed and until payment was made to laborers and suppliers. As an assignee of WEI, the Bank has no greater right to payment than WEI and took the assignment subject to any defenses or claims that could be asserted against WEI. OCGA § 11-9-404 (a); Lamb, supra, 263 Ga. App. at 736 (1). Moreover, under Georgia law, contractors, including subcontractors like WEI and master contractors like B&G, are required to pay their subcontractors and suppliers, who are otherwise entitled to a lien on the real estate or property on which they work. OCGA § 44-14-361 (a) (2).

Furthermore, to the extent that WEI’s subcontractors or suppliers had filed or had the right to file valid liens, Georgia law may impose a constructive trust on the funds in the subcontractor’s accounts. See In re American Bldg. Consultants, 138 BR 1015, 1017 (N.D. Ga. 1992). Here, the security interest itself provides that the WEI’s accounts must be “free and clear of any lien.” Therefore, WEI was not due any money until all liens or possible liens had been satisfied.

Although the Bank contends that under Continental American Life Ins. Co. v. Griffin, 251 Ga. 412 (306 SE2d 285) (1983), its security interest in WEI’s accounts receivable takes priority over B&G’s contractual right of “set-off,” the trial court properly found that the payments to suppliers and subcontractors were distinguishable from the payments deemed to be set-offs in Continental American. A secured creditor has priority over any unsecured creditors, including any creditors’ right of set-off. Id. at 414 (2).

Under Georgia law, a set-off is a counter-demand which a defendant holds against a plaintiff, arising out of a transaction extrinsic or independent of the plaintiff’s cause of action. A set-off allows the defendant to set off a debt owed him by the plaintiff against the claim of the plaintiff.

(Footnotes omitted) Automated Print v. Edgar, 288 Ga. App. 326, 330 (2) (654 SE2d 413) (2007).

Here, any amounts B&G withheld or subtracted from WEI’s invoices in order to complete a project and pay WEI’s suppliers and subcontractors, at least to the extent that the money was applied to payment under the same contract, arose from the same transaction and, therefore, are not set-offs. Automated Print, supra, 288 Ga. App. at 330 (2). Accordingly, the trial court did not err in granting partial summary judgment to B&G on the very limited issue of priority of payment, i.e., that the Bank, as an assignee of WEI, was not entitled to payment under the subcontracts until WEI’s subcontractors and suppliers were paid and until the costs for completing WEI’s subcontracts were paid.

However, the reasonableness of any payments and costs due under each contract and what funds, if any, are due to WEI and thus the Bank, are properly a question for the jury. Hence, the trial court did not err in denying the Bank’s motion for summary judgment for this same reason. To the extent that the jury determines that B&G withheld monies payable on one contract to pay the completion costs or pay the suppliers or subcontractors on a different contract, the Bank, as a secured creditor, may have priority over B&G’s right to the funds. Continental American, supra, 251 Ga. at 414.

2. The Bank also argues that the trial court erred in denying its motion for summary judgment as to its claim for conversion. We disagree.

A secured creditor has a right of action for conversion if property subject to its security interest is disposed of without the creditor’s authorization. The elements of such a claim include the showing of a valid security interest in the debtor’s property, disposition of that property, absence of the creditor’s authorization for the disposition, and resulting damage to the creditor.

William Goldberg & Co. v. Cohen, 219 Ga. App. 628, 640 (7) (a) (466 SE2d 872) (1995).

Although the Bank contends that the elements of conversion are undisputed, that is not the case. As discussed above, there remains an issue of fact as to what monies, if any, were owed to WEI from B&G under each contract. Until that is determined, it is not known whether there is any property that was disposed of by B&G that was properly the subject of the Bank’s security interest. William Goldberg, supra, 219 Ga. App. at 640 (7) (a). For this reason, the court did not err in denying the Bank’s motion for summary judgment on its conversion claim.

3. The Bank also contends that the trial court erred in denying the Bank’s motion for summary judgment on B&G’s counterclaim for conversion. We discern no error.

B&G’s counterclaim against the Bank for conversion is based on the Bank’s actions in freezing WEI’s deposit accounts and subsequently applying the funds in those accounts toward the principal due from WEI on the business loan. B&G contended that monies in the frozen accounts were subject to a constructive trust under OCGA § 16-8-15 for payment of WEI’s subcontractors and suppliers. The Bank moved for summary judgment on B&G’s counterclaim, arguing that the frozen accounts were not designated as trust accounts and B&G failed to produce any evidence that it had any ownership interest in the funds held in those accounts. The trial court denied the Bank’s motion for summary judgment without any specific discussion of B&G’s counterclaim.

“[A] constructive trust is a remedy created by a court in equity to prevent unjust enrichment. Such a trust is impressed upon property when it is against equity that the person holding title to the property be allowed to enjoy the beneficial interest in the property.” (Citations omitted.) St. Paul Mercury Ins. Co. v. Meeks, 270 Ga. 136, 138 (2) (508 SE2d 646) (1998). OCGA § 16-8-15 does not, in and of itself, provide authority for the creation of a constructive trust and cannot provide the basis for a civil action for conversion of funds. Doyle Dickerson Co. v. Durden, 218 Ga. App. 426, 427 (461 SE2d 902) (1995). As set forth above in Division 1, to the extent that subcontractors or suppliers had filed or had the right to file valid liens, Georgia law may impose a constructive trust on the funds in the subcontractor’s accounts. See In re American Bldg. Consultants, supra, 138 BR at 1017.

On or about September 28, 2011, the Bank froze all of WEI’s deposit accounts when WEI defaulted on its loan. In the months leading up to and throughout September 2011, WEI was still in operation, submitting invoices to B&G, including invoices for labor and supplies. It is not clear to what extent WEI’s subcontractors and suppliers have been paid or whether any invoices remain unpaid. Consequently, there exists an issue of material fact as to whether, at the time the Bank froze the accounts, WEI’s subcontractors or suppliers had filed liens or still had the right to file valid liens for unpaid work and supplies. For this reason, the court did not err in denying the Bank’s motion for summary judgment on B&G’s conversion counterclaim, and we affirm the judgment.

Judgment affirmed.

Doyle, P. J., and Dillard, J., concur.

Decided July 9, 2014 —

Reconsideration denied July 30, 2014 —

Bailey Davis, C. Lee Davis, Emma L. Burke, for appellant.

Franklin A. Trapp, DLA Piper, Robert L. Crewdson, Weinberg, Wheeler, Hudgins, Gunn & Dial, David J. Larson, for appellee.

       B&G contends that the trial court did not rule on this issue and therefore it is not properly before this Court for review. Ga. Dept. of Natural Resources v. Coweta County, 261 Ga. 484 (405 SE2d 470) (1991). Here, although the trial court did not make any findings of fact or conclusions of law regarding the Bank’s motion for summary judgment on B&G’s counterclaim, it did deny the Bank’s motion in its entirety.


author: BARNES, Presiding Judge.

text:
    A14A0479.
    AGIO CORPORATION et al. v. COOSAWATTEE RIVER RESORT ASSOCIATION, INC. BLANTON et al. v. COOSAWATTEE RIVER RESORT ASSOCIATION, INC.
    A14A0480.
    (760 SE2d 691)
   BARNES, Presiding Judge.

These companion appeals were filed after the grant of the appellants’ applications for interlocutory review of the trial court’s denial of a protective order. In Case No. A14A0479, Agio Corporation, DRST Holdings, Ltd., International Christian Alliance, Inc., Merit Financial Group, LLC, Sunbelt Restructure Group, Inc., and Jerry Sewell (collectively, “Agio”) appeal the denial of their motion for a protective order seeking to prevent an inspection by Coosawattee River Resort Association, Inc., of a shared network computer server. In Case No. A14A0480, C. Terry Blanton and CTB Law Firm, LLC (collectively, “the Blanton Law Firm”), nonparties to the litigation, also appeal the same order denying the motion for the protective order. We have consolidated the appeals for review, and for the reasons that follow, we reverse the trial court’s order permitting the copying of the entire network server.

“Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action____” OCGA § 9-11-26 (b) (1). OCGA § 9-11-26 (c) authorizes the trial court in which an action is pending, “[u]pon motion by a party or by the person from whom discovery is sought and for good cause shown, . . . [to] make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” The grant or denial of a motion for protective order generally lies within the sound discretion of the trial court, Bridges v. 20th Century Travel, 149 Ga. App. 837, 839 (256 SE2d 102) (1979), and the exercise of that discretion is reviewed on appeal only for an abuse of that discretion. Fulton County Bd. of Assessors v. Saks Fifth Avenue, 248 Ga. App. 836, 842 (547 SE2d 620) (2001).

The record demonstrates that Coosawattee sued Agio alleging, among other things, that it participated “in the fraudulent transfers of over four-hundred and sixty (460) lots located within the Coosawattee River Resort... to hinder, delay or defraud [Coosawattee] from collecting validly assessed homeowners’ association assessments.” It sought to have the transfers voided, and to obtain a judgment for all assessments, an injunction to prevent future transfers, and punitive damages, attorney fees and costs of litigation. Coosawattee filed a request pursuant to OCGA § 9-11-34 to “inspect the premises as described,” including

[a]ll computer systems, back-up tapes and other sources of electronically stored data identified in [Agio’s] responses to [Coosawattee’s] First Interrogatories to [Agio], including but not limited to the server and work station used by Jerry Sewell (“Electronic Storage”). [Coosawattee] seeks to inspect these items for electronically stored information which is responsive to all of [Coosawattee’s] First and Second Requests for Production of Documents to you, which are incorporated herein by reference. The inspection requested shall be made where the Electronic Storage is located, beginning at 10:00 A.M., on the 31st day following service of this request, and continuing thereafter until completed.

Agio filed a motion for a protective order and objected on the grounds that allowing Coosawattee to inspect the computer server and hard drive would permit access to privileged, confidential, undiscoverable information created by nonparties, including the Blanton Law Firm that shared the office space and common server with its client, appellant Jerry Sewell, and other nonparties. Agio further objected that “in searching for that discrete information [Coosawattee] will also be able to view every piece of electronic data on the server, whether created by [Agio] or a nonparty, whether privileged or nonprivileged, whether related to this litigation or not.” In support of its motion, Agio submitted the affidavit of the administrator of the server, who averred:

All of the tenants at the [office space] utilize the common computer network, and if [Coosawattee] is allowed to inspect the computer network, it will have access not only to the stored electronic data available to [Agio] . . . but also the stored electronic data of the Blanton Law Firm and [other nonparties] on the shared computer network.

Agio proposed that the court appoint a Special Master to

perform the inspection [of the server] under a confidentiality-order, and identify the discrete information sought by [Coosawattee] for review by the Court in camera before production to the parties to insure that privileged communications . . . are not disclosed and that no electronic data of non-parties... are produced before production to the parties.

Although not a party to the lawsuit, the Blanton Law Firm also filed a motion for a protective order under OCGA § 9-11-26 (c), essentially adopting the same objections to the request for inspection of the computer server and hard drive. Mr. Blanton filed an affidavit in support of the motion in which he averred that his law firm shared office space with Mr. Sewell and also did legal work for him, “his companies,” and other clients not located at that office. He further averred that the tenants at the office space have “access to a shared computer network,” and that

[w]hile the electronic data created by my law firm stored on the shared computer network are accessible to me and my employees, I am advised that my electronic data stored on the shared computer network at the [office space] is not available to Mr. Sewell [or others]. . . . Nor do I or my employees have access to the electronic data stored on the shared computer . . . created by Mr. Sewell [or others].

Mr. Blanton maintained that, if permitted, the request would “pierce the attorney client privilege” that protects his clients, including Mr. Sewell, “violate the work product privilege,” and “could and would reveal trade secrets, confidential information, business operational methods, and other legally protected assets. . . .”

The parties attempted to find a compromise to the dispute. Agio proposed that the search be limited to a “propose [d] list of word[s] and that documents including those words ... be identified as potential documents for review and inspection,” and also that the server could be altered and a firewall erected “so that the access of Jerry Sewell and his employees [would be] limited to documents created by [Agio].” The dispute remained unresolved and, in its response to the motions for a protective order, Coosawattee objected to the installation of a firewall because it “would irrevocably alter the server and [might] destroy relevant evidence in the process.” Its computer expert averred:

Forensics imaging ensures that all data that is located on the hard drive at the time of imaging will be available in the future for examination if ordered by the Court or through agreement of the parties. . . . Any changes made to a computer (specifically the operating system and data located on the hard drive) without first creating a forensics image will result in the loss of data and the potential loss of relevant evidence.

He further opined that the erection of a firewall “without first creating a forensics image of the computer hard drive, [would] almost certainly result in the loss of potentially relevant data.” Instead, Coosawattee proposed that the server and hard drive be copied in their unaltered form and then filed under seal with the trial court, after which a firewall could be installed on the original server and hard drive. It also proposed that if “after [Coosawattee] conducts its searches on the Firewalled Files, [Coosawattee] believes it needs to conduct additional searches on the Unaltered Files, [it] will make a motion to the Court explaining the basis for conducting such a search.”

The Blanton Law Firm filed a supplemental motion and brief in support of a protective order in which it maintained that Coosawattee had failed pursuant to OCGA § 9-11-34 (c) (1) to show “good cause” to support its discovery request upon a nonparty, and that it would suffer an “undue burden” if the trial court permitted the search of the entire shared server. The Blanton Law Firm proposed in the alternative that the court appoint a neutral forensic computer specialist to erect a firewall segregating the data on the shared server, after which a special master would conduct an in-camera review of Agio’s fire-walled portion of the server.

Following a hearing, the trial court issued an order denying the motions for a protective order. It held that, notwithstanding the privilege issues:

[T]he Court is perplexed that evidence may be destroyed by the installation of a firewall in the server in question which [Coosawattee] desire[s] to inspect____In the case sub judice, the Court is concerned because [Agio]... informed the Court that they plan to install a firewall that would likely destroy critical evidence to which [Coosawattee] is entitled to discover. The Court takes seriously its responsibility to preserve evidence. Considering this duty, the Court hereby orders the Defendants to make the server(s) and hard drive(s) in question available to be copied within 10 days of the entry of this order. The copy shall be delivered to the Court Reporter who will store the server in the Gilmer County Evidence Room. As such, Defendants’ Motion for Protective Order is hereby DENIED.

In its Certificate of Immediate Review, the trial court noted that its order permitted Coosawattee to take a full image of the hard drive/server shared by the defendants and nonparties “for the preservation of said hard drive and/or server intact, as is, prior to the installation of any firewalls or other electronic manipulation thereof; and to be delivered to and held by the court reporter pending further instructions relating thereto.” The court specifically stated:

The Court is granting this Certificate of Immediate Review as to the specific issue raised by a nonparty (i.e. that the mere copying and preserving of the shared server hard drive) would violate the attorney-client privilege and subject an attorney to either professional and potentially civil liability is in fact correct or not, and if it is in fact correct, then what instruction or direction the appellate court can give to the trial court in this discovery dispute.

1. Agio first contends that the trial court erred in considering discussions about the installation of a firewall because the evidence was an inadmissible admission made with a view toward compromise under OCGA § 24-4-408 (b). Even assuming that the nature of the discussions regarding the firewall could be characterized as an offer to compromise, the exclusion of offers to compromise “shall not require exclusion of evidence offered for another purpose.” OCGA § 24-4-408 (c). Here, the trial court did not consider the evidence as an admission, but as evidence that the installation of the firewall might result in corruption of the shared server. Further, we cannot find, nor does Agio provide, any authority for its proposition that the statute applies to discussions to settle discovery disputes, rather than to settle a stated claim.

However, we need not resolve this question because, contrary to Agio’s contention that discussion of installing the firewall was only contained in correspondence between the parties, the firewall proposal was discussed openly and extensively at the hearing on the protective orders. In fact, much of the discussion at the hearing was centered around whether the firewall would result in the destruction of relevant evidence. This contention is therefore meritless.

2. Agio next contends that the trial court erred in denying its motion without requiring Coosawattee to show “good cause” as to why they needed to inspect the server pursuant to OCGA § 9-11-34 (c) (1). It further contends that granting unlimited access to the server was an abuse of discretion.

OCGA § 9-11-34 (c) (1) provides in pertinent part that if, after a nonparty or any party objects to a production request, and “the party desiring such discovery moves for an order... to compel discovery, he or she shall make a showing of good cause to support his or her motion.” But, the discovery dispute at issue in this case was not the result of a motion to compel, and thus Coosawattee was not required to show good cause under OCGA § 9-11-34 (c) (1).

3. Agio and the Blanton Law Firm both contend that the trial court abused its discretion in denying its motion for a protective order and authorizing the copying of the entire network server and hard drive. They argue that authorizing the copying of the entire server exceeds the scope of inspection authorized by OCGA § 9-11-34 (a). We agree.

The trial court ordered “the Defendants to make the server(s) and hard drive(s) in question available to be copied within 10 days of the entry of this order.” Pursuant to OCGA § 9-11-26 (b) (1), parties to a lawsuit “may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.” OCGA § 9-11-34 (a) (1) permits any party to

serve on any other party a request... [to] produce and permit the party making the request, or someone acting on his behalf, to inspect and copy any designated documents (including writings, drawings, graphs, charts, photographs, phonorecords, and other data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form), or to inspect and copy, test, or sample any tangible things which constitute or contain matters within the scope of subsection (b) of Code Section 9-11-26 and which are in the possession, custody, or control of the party upon whom the request is served.

Further, OCGA § 9-11-34 (c) (1) establishes that the discovery of nonprivileged documents also applies to nonparties. However, OCGA § 9-11-34 (a) does not allow a requesting party unrestricted and direct access to a responding party’s untranslated data. See Norfolk Southern R. Co. v. Hartry, 316 Ga. App. 532, 533 (729 SE2d 656) (2012). Rather, the statute provides that any untranslated data is to be extracted by the responding party and then translated by the responding party “through detection devices into reasonably usable form” before the data is given to the requesting party. Id.

In this case, Coosawattee’s requests encompassed “[a] 11 computer systems, back-up tapes and other sources of electronically stored data ... including but not limited to the server.” Coosawattee did not provide any information regarding what it sought to discover from the server. In In re Ford Motor Co., 345 F3d 1315 (11th Cir. 2003), the Eleventh Circuit Court of Appeals construed Federal Rule of Civil Procedure 34 (a) (1), which is identical to OCGA § 9-11-34 (a) (1), to hold that this rule

does not grant unrestricted, direct access to a respondent’s database compilations. Instead, Rule 34 (a) allows a requesting party to inspect and to copy the product — whether it be a document, disk, or other device — resulting from the respondent’s translation of the [raw] data into a reasonably usable form.

Id. at 1316-1317.

Likewise, OCGA § 9-ll-34(a) “does not give the requesting party the right to conduct the actual search,” In re Ford Motor Co., 345 F3d at 1317, and it is the responding party’s duty to search his records to produce any required, relevant data. Allowing a requesting party direct access to the responding party’s entire database may be warranted in certain limited situations, such as a showing of noncompliance with discovery rules, but the burden is on the requesting party to make such a showing. Id.

Decided July 15, 2014 —

Reconsideration denied July 30, 2014.

Edward Hine, Jr., for appellants (case no. A14A0479).

Robinson & Blazer, John E. Robinson, Gregory H. Blazer, Mark A. C. Robinson, for appellants (case no. A14A0480).

Weissman, Nowack, Curry & Wilco, SethM. Friedman, for appellee.

Here, the trial court’s order, as clarified by the court’s certificate of immediate review, improperly allowed Coosawattee or its agents to directly access and make a copy of the shared “server[ ] and hard drive(s)” when, under OCGA § 9-11-34 (a), Coosawattee had only the more limited right “to copy the product — whether it be a document, disk, or other device-—resulting from [Agio’s] translation of the [raw] data into a reasonably usable form.” In re Ford Motor Co., 345 F3d at 1316-1317. In other words, under our discovery rules, Agio had the right in the first instance to access its hard drive and the shared server, copy the relevant raw data, and translate that data into a reasonably usable form that could then be copied by Coosawattee. After reviewing the translated data, if Coosawattee believed that it had not received the discovery it requested and that the discovery rules had been violated in some respect, it could then go to the trial court and attempt to make a specific showing that it needed direct access to the hard drive/server for copying and inspection. But that is not what occurred here, where the trial court short-circuited that process and prematurely gave Coosawattee direct access to the entire hard drive/server for copying. By entering such a sweeping order at this stage of the litigation, the trial court abused its discretion.

4. We need not address the Blanton Law Firm’s remaining error regarding access to the law firm’s privileged information.

Judgments reversed.

Boggs and Branch, JJ., concur.

       In its Certificate of Immediate Review, the court specifically stated: “The Court is granting this Certificate of Immediate Review as to the specific issue raised by [the Blanton Law Firm].”

       “Evidence of conduct or statements made in compromise negotiations or mediation shall not be admissible.” OCGA § 24-4-408 (b).

       While the order was directed to the “defendants” rather than the Blanton Law Firm, in its certificate granting immediate review, the trial court specifically directed that its order pertained to the server shared with the “Non-Parties,” including the Blanton Law Firm.

       Georgia courts have long considered federal court opinions construing identical Federal Rules of Civil Procedure persuasive authority for construing identical Georgia Civil Practice Act provisions. See Ambler v. Archer, 230 Ga. 281, 287 (1) (196 SE2d 858) (1973).


text:
    A14A0546.
    WILSON v. MOUNTAIN VALLEY COMMUNITY BANK.
    (759 SE2d 921)
   MCFADDEN, Judge.

Daniel Wilson filed a complaint against Mountain Valley Community Bank, setting forth counts for tortious interference with business relations, intentional infliction of emotional distress, wrongful foreclosure, civil conspiracy to impair property rights, punitive damages and attorney fees. The trial court granted summary judgment to the bank on all counts. Wilson appeals, conceding that the trial court correctly granted summary judgment on the tortious interference and emotional distress counts, but claiming that the court erred in granting summary judgment on the other counts, that there was spoliation of evidence and that there should have been further discovery. Because there exist no genuine issues of material fact, Wilson has not shown prejudice from the purported spoliation, and he has not shown an abuse of discretion by the trial court in refusing further discovery, we affirm.

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

Campbell v. The Landings Assn., 289 Ga. 617, 618 (713 SE2d 860) (2011) (citations omitted).

So viewed, the evidence shows that on March 2, 2007, Wilson borrowed $303,689 from the bank, executing a note in that principal amount in favor of the bank and a deed to secure debt, which pledged certain real property in Jefferson, Georgia as security. The note was renewed multiple times, with the last renewal set to mature on April 28, 2009. Wilson defaulted on the note, and in July 2009, the bank commenced foreclosure proceedings against the property. Thereafter, the bank agreed to halt the foreclosure proceedings in exchange for a $25,000 payment. The parties entered into a debt modification agreement, which provided that the note had to be paid in full by October 30, 2009, or the bank would commence foreclosure proceedings.

After Wilson again defaulted on the note, the bank notified him of the default and of its commencement of foreclosure proceedings. The foreclosure sale was held on December 1, 2009, and the bank purchased the property for the note balance of $258,846. After the foreclosure sale, the bank received similar offers to purchase the property from real estate developer Mark Linkesh, and from Chris Worley, a friend of Wilson. The bank ultimately accepted Linkesh’s offer and sold the property to him for $270,000, plus payment of unpaid property taxes, for a total sales price of $275,085.

(a) Wrongful foreclosure.
[A] security deed which includes a power of sale is a contract and its provisions are controlling as to the rights of the parties thereto and their privies. In exercising a power of sale, the foreclosing party is required only to advertise and sell the property in accordance with the terms of the instrument and to conduct the sale in good faith.

Rapps v. Cooke, 246 Ga. App. 251, 253 (1) (540 SE2d 241) (2000) (citations and punctuation omitted).

Here, Wilson suggests that the bank did not conduct the sale in good faith because it prevented Linkesh from bidding on the property, causing a reduced sale price below the fair market value of the property. However, the suggestion is baseless as Wilson has pointed to no evidence showing that the bank somehow prevented Linkesh from bidding at the foreclosure sale. Rather, the sale was a matter of public record that Linkesh, like any other member of the public, could have attended.

Moreover, “inadequacy of the price paid upon the sale of property under power of sale contained in a deed to secure debt will not of itself and standing alone be sufficient reason for setting aside the sale.” Gordon v. South Central Farm Credit, 213 Ga. App. 816, 818 (446 SE2d 514) (1994) (citation and punctuation omitted).

[T]he duty to sell the property according to the terms of the deed and to conduct the sale in good faith does not include a requirement that a specific amount such as the fair market value of the property be obtained. . .. The foreclosing party is not an insurer of the results of his exercise of the power of sale; his only obligation is to sell according to the terms of the deed and in good faith and to obtain the amount produced by such a sale. If the manner in which the sale was conducted is otherwise unobjectionable, the mere fact that, in the debtor’s opinion, it brought an inadequate price does not demonstrate that the power was exercised other than in good faith.

Id. (citation and punctuation omitted). Here, the bank sold the property according to the terms of the deed. Thus, the mere fact that in Wilson’s opinion the sale brought an inadequate price does not demonstrate an absence of good faith. As Wilson has failed to show the existence of a genuine issue of material fact, the trial court correctly granted summary judgment.

(b) Civil conspiracy.
A conspiracy is a combination of two or more persons to accomplish an unlawful end or to accomplish a lawful end by unlawful means. To recover damages for a civil conspiracy claim, a plaintiff must show that two or more persons, acting in concert, engaged in conduct that constitutes a tort. Absent the underlying tort, there can be no liability for civil conspiracy.

Jenkins v. Wachovia Bank, Nat. Assn., 309 Ga. App. 562, 567 (3) (711 SE2d 80) (2011) (citation omitted).

Wilson acknowledges that his civil conspiracy claim was premised on the underlying torts alleged in the wrongful foreclosure and tortious interference with business relations counts of the complaint. As discussed above, the trial court did not err in granting summary judgment on the wrongful foreclosure claim, and Wilson has conceded that the trial court correctly granted summary judgment on the tortious interference count. Accordingly, there is no underlying tort to support his civil conspiracy claim, and the trial court thus correctly granted summary judgment on that claim.

(c) Punitive damages and attorney fees.

Wilson concedes that his claims for punitive damages and attorney fees are derivative of his substantive tort claims. Accordingly, because the trial court did not err in granting summary judgment on those substantive claims, the derivative claims cannot survive.

2. Spoliation.

Wilson contends that there was spoliation of e-mails from a bank employee to Linkesh, and that such spoliation created a rebuttable presumption in his favor that precluded summary judgment. While Wilson is correct that spoliation creates a rebuttable presumption, the purported spoliation did not preclude summary judgment in this case.

“Spoliation refers to the destruction or failure to preserve evidence that is necessary to contemplated or pending litigation.” WalMart Stores v. Lee, 290 Ga. App. 541, 544 (1) (659 SE2d 905) (2008) (citation omitted). Spoliation creates a rebuttable presumption that the claim against the spoliator is well founded. OCGA § 24-14-22. However, “even if evidence was wrongfully destroyed, the injured party still must show prejudice, and the grant of summary judgment is appropriate if the injured party cannot establish any causal link between the failure of his underlying claims and the alleged misconduct by the defendant.” Craig v. Bailey Bros. Realty, 304 Ga. App. 794, 797 (1) (697 SE2d 888) (2010) (citations and punctuation omitted).

Decided July 10, 2014 —

Reconsideration denied July 30, 2014 —

David C. Jones, Jr., for appellant.

Thomas E. Austin, Jr., Melissa W. Jurgens, for appellee.

Here, the trial court noted that in his spoliation motion, Wilson claimed that the purportedly missing e-mails would show that the bank employee “told Linkesh that Plaintiff’s loan was in trouble, and it would most likely be foreclosed upon.” The trial court presumed, for purposes of summary judgment, that this claim was true and that the employee had “told Linkesh that the loan was in trouble and would most likely be foreclosed upon.” But even with such a presumption, the trial court correctly found that Wilson had failed to show any prejudice since that presumption did not create a genuine issue of material fact as to the wrongful foreclosure claim. As explained above in Division 1, the foreclosing bank’s only obligation was to sell the property according to the terms of the deed in good faith. Gordon, supra. The presumed fact that Linkesh may have been informed about the likelihood of foreclosure not only has no bearing on whether the bank sold the property according to the terms of the deed, but actually contradicts Wilson’s unfounded claim that the bank somehow prevented Linkesh from bidding on the property at the foreclosure. “As [Wilson] cannot establish any causal link between the failure of his underlying claims and the alleged [spoliation] by defendant, the grant of summary judgment in favor of defendant was not error.” Sharpnack v. Hoffinger Indus., 231 Ga. App. 829, 831 (499 SE2d 363) (1998).

3. Further discovery.

Wilson has shown no abuse of discretion by the trial court in denying his motion for additional discovery. “A trial court has wide discretion to shorten, extend, or reopen the time for discovery, and its decision will not be reversed unless a clear abuse of that discretion is shown. [Cits.]” Woelper v. Piedmont Cotton Mills, 266 Ga. 472, 473 (1) (467 SE2d 517) (1996).

Judgment affirmed.

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


author: Ray, Judge.

text:
    A14A0598.
    SPRINGER v. THE STATE.
    (762 SE2d 433)
   Ray, Judge.

Roderick Lanier Springer was indicted for felony murder (OCGA § 16-5-1 (c)), aggravated assault (OCGA § 16-5-21), and possession of a gun during the commission of a felony (OCGA § 16-11-106). A Carroll County jury found him guilty of involuntary manslaughter as a lesser included offense of felony murder, as well as aggravated assault and possession of a gun during the commission of a felony. He appeals from the denial of his motion for new trial, arguing that his convictions must be set aside because the jury returned mutually exclusive verdicts. He also contends that the trial court erred in determining which jury instructions to issue. For the reasons that follow, we reverse Springer’s convictions and remand the case to the trial court for a new trial.

“It is well established that on appeal the evidence must be viewed in a light most favorable to the verdict, and appellant no longer enjoys a presumption of innocencef.]” (Citation and punctuation omitted.) Barber v. State, 273 Ga. App. 129 (1) (614 SE2d 105) (2005). The evidence presented at trial shows that, in the early morning hours of August 2, 2002, there was a large crowd of people in the parking lot of a Krystal restaurant when a fight broke out. Springer’s co-defendant, Travis Barber, arrived with several friends during the melee. Shortly after he arrived, Barber climbed on top of a car, pulled a gun out of his pants, waved it around, and started shooting. There was also evidence that Springer was in the crowd and shooting a gun. When police officers arrived at the scene, they found a man lying between two cars in the parking lot. The victim, Latorrious Mitchell, was an innocent bystander who had been shot in the back and killed.

1. Springer contends that the trial court should have granted his motion for new trial because the jury returned mutually exclusive verdicts of involuntary manslaughter and aggravated assault, resulting in a reasonable probability that it concluded that Springer acted with both criminal intent (with the intent to harm) and criminal negligence (without the intent to harm). We agree.

“Verdicts are mutually exclusive where a guilty verdict on one count logically excludes a finding of guilt on the other.” (Citations and punctuation omitted.) Jackson v. State, 276 Ga. 408, 410 (2) (577 SE2d 570) (2003). 3**Georgia courts have held that “verdicts are mutually exclusive where a jury returns verdicts of guilt as to both criminal intent and criminal negligence offenses in those factual situations involving the same act by the accused as to the same victim at the same instance of time.” (Citations and punctuation omitted.) Allaben v. State, 294 Ga. 315, 316 (2) (751 SE2d 802) (2013). This is because “[s]uch verdicts reflect an illogical finding by the jury that the defendant acted with both criminal intent and criminal negligence toward the victim.” (Citation and punctuation omitted.) Id. Further, if a guilty verdict is returned on a crime that can be committed in two ways,

one of which is, and one of which is not, mutually exclusive of a guilty verdict for a second crime, the guilty verdicts are considered mutually exclusive unless we can conclusively state that the verdict on the first crime rested exclusively on the non-mutually exclusive ground so as to eliminate the reasonable probability that the jury might have returned a mutually exclusive verdict.

(Citation and punctuation omitted.) Id. To determine whether this occurred, the alleged underlying offenses or acts must be carefully scrutinized.

Here, Springer’s involuntary manslaughter and aggravated assault verdicts involve the “same act by the accused as to the same victim at the same instance of time.” (Citation and punctuation omitted.) Walker v. State, 293 Ga. 709, 712 (2) (a) (749 SE2d 663) (2013).

Aggravated assault with a deadly weapon, OCGA § 16-5-21 (a) (2), may be committed either by attempting to commit a violent injury to the person of another, OCGA § 16-5-20 (a) (1), or by committing an act which places another in reasonable apprehension of immediately receiving a violent injury [,] OCGA § 16-5-20 (a) (2). A verdict of guilty as to aggravated assault based on OCGA § 16-5-20 (a) (1) requires a finding of an intentional infliction of injury, which precludes the element of criminal negligence in reckless conduct. A verdict of guilt predicated on OCGA § 16-5-20 (a) (2) does not.

(Citations and punctuation omitted.) State v. Sawyer, 327 Ga. App. 43, 44 (755 SE2d 905) (2014). When determining whether Springer’s convictions for involuntary manslaughter and aggravated assault were mutually exclusive, we look to the indictment, the evidence, the verdict form, and the jury instructions. Id.

In this case, the jury’s verdict form specifically found Springer guilty of involuntary manslaughter based upon reckless conduct as a lesser included offense of felony murder. Our Supreme Court has held that “a guilty verdict for involuntary manslaughter based on reckless conduct required a finding that the defendant acted with criminal negligence, that is, without any intention to do so.” (Citation and punctuation omitted.) Atiaben, supra at 317 (2) (a). Thus, the jury’s involuntary manslaughter conviction would be mutually exclusive of an aggravated assault conviction under OCGA § 16-5-20 (a) (1). Compare Sawyer, supra (where jury instructions only gave jury the choice of finding defendant guilty of aggravated assault based on OCGA § 16-5-20 (a) (2), which does not require a finding of specific criminal intent, there was no risk that jury’s verdicts for aggravated assault and involuntary manslaughter were mutually exclusive).

Springer’s indictment charged him with aggravated assault based on his actions in “engaging in an exchange of gunfire ... which resulted in Latorrious Mitchell being shot and killed[.]” The verdict form returned by the jury did not specify which subsection of OCGA § 16-5-21 (a) served as the basis for Springer’s aggravated assault conviction. The trial court’s jury instructions on aggravated assault charged the jury under both OCGA § 16-5-21 (a) (1) and (a) (2). The trial court instructed that Springer was

charged with the offense of aggravated assault, and I’ll give you that definition again. A person commits the offense of aggravated assault when that person assaults another person with a deadly weapon. An assault is attempt to commit a violent injury to the person of another or an act which places another person in reasonable apprehension of immediately receiving a violent injury.

(Emphasis supplied.)

Decided July 30, 2014 —

Jennifer A. Trieshmann, for appellant.

Peter J. Skandalakis, District Attorney, Anne C. Allen, Assistant District Attorney, for appellee.

Because an examination of the indictment, the evidence, the jury-instructions and the verdict form shows that the jury could have found Springer guilty of aggravated assault under OCGA § 16-5-20 (a) (1) or (a) (2), “then we must conclude that the jury based the verdict on (a) (1) in determining if the verdict was mutually exclusive.” (Citation omitted.) Sawyer, supra at 46. Because we cannot conclusively state that the jury’s aggravated assault verdict “rested exclusively on either criminal negligence or criminal intent so as to eliminate the reasonable probability that the jury might have returned a mutually exclusive verdict by finding [Springer] acted with both criminal intent and criminal negligence at the same time as to the same victim,” we must reverse Springer’s convictions and remand for a new trial. (Punctuation and footnote omitted; emphasis in original.) Holcomb v. State, 310 Ga. App. 853, 855-856 (2) (714 SE2d 407) (2011).

2. Because of our holding in Division 1, we need not address Springer’s remaining enumerations of error.

Judgment reversed and case remanded.

Andrews, P. J., and McFadden, J., concur.

       Springer was also indicted for possession of a firearm by a convicted felon, but that charge was not submitted to the jury for consideration.

       Questions about the correctness of the holding in Jackson, supra, and whether it should be overruled were thoughtfully addressed by Justice Nahmias in a concurring opinion and joined by Justice Blackwell in Allaben v. State, 294 Ga. 315, 322-325 (751 SE2d 802) (2013). While the Supreme Court is vested with discretion to review and overrule its decisions, we, of course, are bound to follow them.

       See also Dumas v. State, 266 Ga. 797, 799-800 (471 SE2d 508) (1996) (verdicts are mutually exclusive where it is “both legally and logically impossible to convict [the accused] of both counts”).

       The State’s brief in this case does not really address this point, and it does not contain any discussion or citations to the record as to the subsection of the aggravated assault statute under which the jury convicted Springer.

       Because we reverse and remand Springer’s convictions for the predicate offenses that support his conviction for possession of a gun during the commission of a felony, his conviction as to that charge must be reversed and remanded as well. See Ward v. State, 304 Ga. App. 517, 524 (2) (696 SE2d 471) (2010); King v. Waters, 278 Ga. 122, 123 (1), (2) (598 SE2d 476) (2004).