author: Ray, Judge. DOYLE, Presiding Judge, PHIPPS, Chief Judge,

text:
    A14A2046.
    THE STATE v. KAZMIERCZAK.
    (771 SE2d 473)
   Ray, Judge.

Peter Joseph Kazmierczak was charged by accusation with possession of marijuana with intent to distribute and manufacturing marijuana (OCGA § 16-13-30 (j) (1)). Kazmierczak filed a motion to suppress the evidence, contending that the search of his residence was illegal because it was conducted under a search warrant that was issued solely based upon the strong odor of marijuana that police detected when they visited the home. The trial court granted the motion to suppress in reliance on precedent from this Court which supported the defendant’s position. The State appeals, contending that our previous rulings were incorrect to hold that the detection of odor of drugs alone could not provide a legal basis for the issuance of a search warrant. Because we agree, we reverse and remand this case to the trial court.

Viewing the evidence in the light most favorable to uphold the trial court’s findings and judgment, Henson v. State, 314 Ga. App. 152, 153 (723 SE2d 456) (2012), the record shows that on February 6, 2013, law enforcement officers assigned to the Marietta-Cobb-Smyrna Narcotics Unit went to Kazmierczak’s residence to conduct a “knock and talk” after receiving a complaint that the residence was being used to manufacture marijuana. While three of the officers remained out of sight, two of the officers approached the house and knocked on the front door. An adult female came to the door and told the two officers to go to the garage, and they complied.

When the officers entered the garage, they detected the odor of raw marijuana. The female, later identified as Kazmierczak’s mother, greeted the officers in the garage and asked them to wait there for a second while she secured a large dog. Upon her return, the officers explained to her that they had received a complaint about marijuana manufacturing taking place at the residence, and they asked about the whereabouts of Kazmierczak. She told the officers that her son was not there and asked them if she could help them with anything, stating that she was the owner of the residence. The officers then asked her if they could come inside, and she consented. Immediately upon entering the residence, the officers detected a stronger, “overwhelming” odor of raw marijuana.

Based on this odor and without venturing further into the residence, the officers decided to seek a search warrant. Two officers remained in the entry way of the residence while they waited for the search warrant, and no search of the residence was conducted prior to the issuance of the search warrant.

The affidavit for the search warrant indicated that the probable cause for the warrant was based solely on the narcotics officers’ detection of the strong odor of raw marijuana inside the residence. The affidavit further indicated that the officers detected the odor during the “knock and talk” investigation concerning possible drug activity at the residence. The affidavit also set forth the training and experience of the narcotics officers who were involved in the warrant application. Finding these facts to be sufficient to establish probable cause to believe that marijuana could be found on the premises, a magistrate judge issued a search warrant for Kazmierczak’s residence.

Following a hearing on Kazmierczak’s motion to suppress, the trial court concluded that the odor of marijuana alone could not serve as the basis for the search warrant of the residence. As a result, the trial court found that the search warrant was issued without the requisite showing of probable cause, and it suppressed the evidence seized from the subsequent search. The State appeals from the trial court’s ruling.

In State v. Palmer, 285 Ga. 75 (673 SE2d 237) (2009), our Supreme Court described the standards applicable to the various levels of judicial scrutiny involved in the warrant process. A magistrate determines if probable cause exists to issue a warrant by making

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. . . . Our appellate courts will review the search warrant to determine the existence of probable cause using the totality of the circumstances analysis ... 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.

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

The State asserts that the trial court erred in granting the motion to suppress by ruling that the odor of marijuana alone cannot establish the requisite probable cause for the issuance of a search warrant for a residence. We agree, but acknowledge that the case law cited by the trial court supports its ruling. Obviously, then, over the years we have issued opinions that misapplied the law in this area, or have been misinterpreted, and must now correct our rulings.

In Clare v. State, 135 Ga. App. 281 (217 SE2d 638) (1975), we held that “[t]he odor of marijuana smoke is not, in and of itself, sufficient to afford probable cause for a warrantless search, but it may be considered and may be a part of a totality of circumstances sufficient to validate [a warrantless search].” (Citation omitted.) Id. at 283 (2). We further acknowledged that, while odors alone cannot authorize a warrantless search, such odors may form a proper basis for the issuance of a search warrant. Id. Accord Johnson v. United States, 333 U. S. 10, 13 (I) (68 SCt 367, 92 LE 436) (1948) (while the presence of odors is insufficient to authorize a warrantless search, proper evidence of the presence of odors may be sufficient to justify the issuance of a search warrant).

In State v. Folk, 238 Ga. App. 206 (521 SE2d 194) (1999), we considered the issue of whether the odor of burning marijuana, standing alone, could constitute sufficient probable cause to support a warrantless search of an automobile. Recognizing that “[t]he ‘automobile exception’ to the warrant requirement of the Fourth Amendment applies to the search of a vehicle when probable cause exists to believe it contains contraband[,]” as well as the fact that the presence of an odor may be sufficient to establish probable cause, we held that a trained police officer’s detection of the odor of burning marijuana emanating from the interior of a vehicle constituted sufficient probable cause to support the warrantless search of a vehicle. Id. at 209.

In Patman v. State, 244 Ga. App. 833 (537 SE2d 118) (2000), we then considered the issue of whether the odor of marijuana, by itself, could establish probable cause for a warrantless search of a person. Id. In our analysis of that issue, we acknowledged that our holding in Folk, supra, authorized a warrantless search of a vehicle based solely on the odor of marijuana, but we found that there is “a lesser expectation of privacy in one’s automobile than in other contexts such as one’s [person,] home[,] or office.” (Footnote omitted.) Id. at 835. Accordingly, we held that the fact that the odor of marijuana establishes probable cause for the warrantless search of a vehicle “does not mean that such an odor, standing alone, will justify a [warrantless] search in other contexts[,]” such as a person’s residence. Id. In so holding, we did not intend to imply that the odor of marijuana alone could not establish probable cause for the issuance of a search warrant. Rather, the intent of our holding in Patman was to point out that a search of one’s person, home, or office based solely on the odor of marijuana could not be made without a warrant, absent exigent circumstances which would justify a warrantless search. See Clare, supra at 283-284 (2). Our decision in Patman did not have any bearing on whether such an odor, by itself, would be sufficient to justify the issuance of a search warrant.

The seeds that later grew into our misapplication of the law seem to have been planted in Shivers v. State, 258 Ga. App. 253 (573 SE2d 494) (2002). In this case, we reversed the conviction of a defendant who was encountered by police outside his home smelling of burnt marijuana, such fact which was used to obtain a warrant to search his home. We acknowledged that the odor of marijuana is one factor that may be considered in determining whether, under the circumstances, probable cause exists to authorize the issuance of a search warrant. See State v. Fossett, 253 Ga. App. 791, 793 (1) (560 SE2d 351) (2002), citing Patman, supra; State v. Charles, 264 Ga. App. 874, 876 (2) (592 SE2d 518) (2003), citing Shivers, supra and Patman, supra. However, we found that the smell of burnt marijuana on the defendant outside his residence did not establish that it was smoked in or could be found inside the home. Eventually, this principle, that the presence of odors is merely one factor that should be considered along with other factors in determining whether under the totality of the circumstances probable cause exists to authorize the issuance of a search warrant, evolved into a pronouncement that there must be more than just the smell of the drugs to justify the issuance of a search warrant. State v. Pando, 284 Ga. App. 70, 76-77 (2) (a) (643 SE2d 342) (2007) citing Charles, supra and Patman, supra. Thus, our misapplication of the law was complete.

This faulty premise has had the effect of establishing two different standards for probable cause based on the presence of distinctive odors — one standard for a warrantless search of a vehicle where the presence of such odors alone would be sufficient probable cause, see Folk, supra, and another, more stringent standard for the issuance of a search warrant where the presence of such odors alone would be insufficient to establish probable cause, see Shivers, supra and its progeny. This double standard violates the well established principle that a warrantless search of a vehicle under the automobile exception must be based on the same degree of probable cause that would otherwise be sufficient for the issuance of a search warrant. See California v. Carney, 471 U. S. 386, 394 (III) (105 SCt 2066, 85 LE2d 406) (1985) (The validity of a warrantless search under the automobile exception is determined according to the same standard used by a magistrate in deciding to issue a search warrant, “only the prior approval of the magistrate is waived; the search otherwise must be such as the magistrate could authorize.”) (citation and punctuation omitted); United States v. Ross, 456 U. S. 798, 809 (II) (102 SCt 2157, 72 LE2d 572) (1982) (A warrantless search under the automobile exception based on probable cause “is not unreasonable if based on facts that would justify the issuance of a warrant.”) (footnote omitted). Accord State v. Lejeune, 276 Ga. 179, 183 (2) (576 SE2d 888) (2003). As the law in Georgia is clear that the odor of marijuana alone may constitute sufficient probable cause to justify a warrantless search of a vehicle, Folk, supra, it follows that such an odor alone would likewise be sufficient to justify the issuance of a search warrant.

Notably, there are a number of decisions from federal and other state jurisdictions holding that the odor of marijuana by itself can provide sufficient probable cause for the issuance of a search warrant. See United States v. Friskey, 2014 WL 6698807, *1 (II) (6), *6 (III) (F) (E.D. Ky.), decided November 26, 2014 (strong odor of marijuana inside residence was, by itself, a sufficient basis for issuance of search warrant); United States v. Charles, 29 Fed. Appx. 892, 895-896 (II) (3rd Cir. 2002) (odor of growing marijuana that was noticeable when the defendant opened the door by itself provided probable cause for issuance of search warrant); United States v. Elkins, 300 F3d 638, 659 (VI) (6th Cir. 2002) (odor of marijuana could be sufficient by itself to establish probable cause for a search of a vehicle, and “[t]he same may be true when marijuana is smelled within a home”) (citations omitted); State v. Hughes, 763 SE2d 928 (N.C. App. 2014) (unpublished) (odor of marijuana emanating from residence, standing alone, provided probable cause for the issuance of a search warrant); State v. Ojeda, 147 S3d 53, 65 (Fla. Dist. Ct. App., 2014) (finding the smell of marijuana through an open door was sufficient to establish probable cause for a search warrant); State v. Roman, 103 S3d 922, 925-926 (Fla. Dist. Ct. App., 2012) (same); State v. Pereira, 967 S2d 312, 314 (Fla. Dist. Ct. App., 2007) (anonymous tip coupled with officers’ detection of marijuana odor emanating from residence provided sufficient probable cause to support the issuance of a search warrant); State v. Watts, 801 NW2d 845, 854 (III) (B) (Iowa 2011) (odor of marijuana emanating from apartment provided sufficient probable cause for the issuance of a search warrant); State v. Cole, 906 P2d 925, 941 (2) (128 Wash.2d 262) (1995) (smell of growing marijuana, by itself, sufficient to establish probable cause for search warrant); State v. Olson, 869 P2d 110, 114-115 (I) (A) (73 Wash. Ct. App. 348) (1994) (odor of marijuana emanating from building and mobile home was, by itself, sufficient to constitute probable cause for search warrant). Suffice it to say, we find these authorities persuasive.

Based on the foregoing cases, it appears to be widely accepted in numerous jurisdictions that a trained police officer’s detection of the odor of raw marijuana can be the sole basis for the issuance of a search warrant, and we see no legitimate reason why Georgia should refrain from following this rationale. A magistrate would still be required to consider “all the circumstances set forth in the affidavit [,]” see Palmer, supra at 77, in determining whether probable cause exists to issue a search warrant based on the presence of such an odor. Specifically, the magistrate could consider whether the affidavit establishes that the officer was qualified to recognize the odor based on his or her training and experience, whether the officer was able to determine the particular location where the odor was originating from, and whether the officer detected the odor from a place where he or she was legally entitled to be. Accordingly, we see no reason to adhere to the premise that an odor of marijuana is insufficient to justify the issuance of a search warrant. Indeed, the presence of odors may be “evidence of [the] most persuasive character[,]” Johnson, supra at 13 (I), and it would be reasonable for a trained police officer to infer from his detection of the distinctive odor of raw marijuana emanating from a particular place that marijuana will be found in that place. See McClain v. State, 267 Ga. 378, 388 (11) (477 SE2d 814) (1996) (“An officer’s inference that items sought will be at the place to be searched requires no more than ‘a fair presumption’ to be reasonable”) (citation omitted).

For the above reasons, we hold that if the affidavit for the search warrant contains sufficient information for a magistrate to determine that the officer who detected the odor of marijuana emanating from a specified location is qualified to recognize the odor, the presence of such an odor may be the sole basis for the issuance of a search warrant. See Johnson, supra at 13 (I); Clare, supra. To the extent that our holdings in Patman, Shivers, Fossett, Charles, Boldin, and Martinez-Vargas, supra, could be interpreted as support for the premise that the odor of raw marijuana emanating from a particular location cannot be the sole basis for the issuance of a search warrant for that location, such interpretations are hereby disapproved. To the extent that, Pando, supra, holds that the presence of odors can never be the sole basis for the issuance of a search warrant, it is overruled.

Judgment reversed and case remanded.

Andrews, P. J., Barnes, P. J., Miller, Dillard, McFadden, Boggs, Branch, and McMillian, JJ., concur. Doyle, P. J., concurs specially and in the judgment. Phipps, C. J., and Ellington, P. J., dissent.

DOYLE, Presiding Judge,

concurring specially.

I concur specially and in the judgment. I agree with the majority that this case should be reversed because the affidavit for the search warrant contained sufficient information for the issuance of a search warrant based upon “a strong[ ], overwhelming odor of raw marijuana” smelled by the officers upon entering the residence. I also agree with the majority that State v. Pando should be overruled. Nevertheless, I write specially because I do not agree that it is necessary to disapprove the other cases cited by the majority.

PHIPPS, Chief Judge,

dissenting.

I believe that the majority has improperly disapproved and/or overruled Georgia case law. I further believe that, when the circumstances underlying this case are viewed under standards recently reiterated by the Supreme Court of Georgia and under Georgia’s long-established and sound rule that the odor of marijuana is a factor to be considered amongst the totality of the circumstances when determining whether probable cause existed, the trial court correctly ruled on the suppression motion. For these, and other reasons set forth below, I dissent.

In State v. Palmer, the Supreme Court of Georgia reiterated the standards applicable to various levels of judicial scrutiny involved in the warrant process:

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”; and the “appellate courts will review the search warrant to determine the existence of probable cause using the totality of the circumstances analysis. . . .”

Contrary to the majority’s stated basis for disapproving or overruling Shivers v. State, State v. Fossett, Patman v. State and State v. Charles, these cases do not hold, nor are they fairly “interpreted as support for the premise that the odor of raw marijuana emanating from a particular location cannot be the sole basis for the issuance of a search warrant for that location.” Rather, in accordance with the standards reiterated in Palmer, these cases were decided under Georgia’s long-established and sound rule that the odor of marijuana may be considered in determining whether, under the totality of the circumstances, probable cause existed to authorize the issuance of a search warrant.

Moreover, each of these cases is distinguishable from the instant case. In Shivers, as the majority acknowledges, we explicitly pointed out that there was no evidence that the odor of marijuana had been emanating from the particular place sought to be searched. Thus, Shivers was correctly decided — as the majority recognizes, a requisite component for a finding of probable cause is a showing of “the odor of marijuana emanating from a specified location.” There is no basis to disapprove or overrule Shivers, as that case is firmly planted in binding precedent from this state’s High Court.

Nor is there any basis to disapprove or overrule Charles, Fossett, or Patman. Each case was correctly decided given its underlying facts, and each case is distinguishable from the instant one.

Contrary to the majority’s stated basis for disapproving or overruling Mart inez-Vargas v. Síaíe and Boldin v. State, these cases do not hold, nor are they fairly “interpreted as support for the premise that the odor of raw marijuana emanating from a particular location cannot be the sole basis for the issuance of a search warrant for that location.” Moreover, these cases are distinguishable. Unlike the instantcase, both Martinez-Vargas and Boldin presented for a probable-cause determination the presence of an odor, together with other evidence; and both cases correctly applied the law to their underlying facts.

Contrary to the majority’s stated basis for disapproving or overruling State v. Pando that case contains no such broad, per se holding that “the presence of odors can never be the sole basis for the issuance of a search warrant.” That case made no attempt to predict any and all possible future sets of circumstances. Instead, it expressly invoked the rule that the odor of marijuana is to be considered amongst the totality of the circumstances. Pando, like all the other cases, was correctly decided using the totality of the circumstances analysis.

Because Shivers, Charles, Patman, Fossett, Boldin, Martinez-Vargas, and Pando did not make the holdings ascribed to them by the majority, because they correctly invoked the applicable standards and principles, because they analyzed their respective underlying circumstances to reach a correct result, and/or because they are readily distinguishable from the instant case and thus not implicated here, there is no proper basis for disapproving or overruling them. “[T]he rule of stare decisis is a wholesome one.” While “stare decisis should not be applied to the extent that an error in the law is perpetuated,” the majority has pointed to nothing constituting an erroneous statement of the law of Georgia. I cannot go along with disapproving and/or overruling Georgia’s case law in such manner.

Furthermore, I believe that the holding articulated today by the majority —• “[I]f the affidavit for the search warrant contains sufficient information for a magistrate to determine that the officer who detected the odor of marijuana emanating from a specified location is qualified to recognize the odor, the presence of such an odor may he the sole basis for the issuance of a search warrant.” — goes astray from well-established standards applicable to various levels of judicial scrutiny involved in the warrant process. Moreover, it can only convolute the longstanding and sound rule of law that the odor of marijuana be considered amongst the totality of the circumstances when undergoing a probable-cause analysis.

The circumstances presented by this case — when considered under the standards reiterated in Palmer and under Georgia’s long-established rule concerning the odor of marijuana — show that the trial court did not err in concluding that the averment that officers had detected the odor of raw marijuana emanating from the residence did not establish probable cause for the issuance of a warrant to search the residence. As the majority concedes, “[t]he trial court granted the motion to suppress in reliance on precedent from this Court which supported the defendant’s position."

Neither the federal cases cited nor the state cases cited by the majority control this issue in Georgia.

Decided March 30, 2015

D. Victor Reynolds, District Attorney, Daniel J. Quinn, Assistant District Attorney, for appellant.

Dupree & Kimbrough, Hylton B. Dupree, Jr., Blake R. Carl, for appellee.

For these reasons, I dissent.

I am authorized to state that Presiding Judge Ellington joins in this dissent.

       Although three other officers conducted a protective sweep of the residence while they were waiting for the search warrant to be issued, those officers were not involved in the warrant application process nor did they supply any information that was used in the affidavit for the search warrant.

       When the officers executed the search warrant, they found several hundred grams of raw marijuana in bags or containers inside the residence, as well as two marijuana plants in the garage. In one room of the house, officers also found a ventilation hole cut in the ceiling and various pieces of equipment that could be used to facilitate a marijuana growing operation.

       In support of this finding, we cited Clare, supra, which held that odor of marijuana, by itself, does not justify a warrantless search of a residence. Patman, supra at 835, n. 16.

       We found important that there was no averment that the odor of burnt marijuana was emanating from anywhere other than the defendant’s person, that he had recently exited the house, or that the marijuana was there or had recently been burned at the house.

        See Boldin v. State, 282 Ga. App. 492, 495 (2) (639 SE2d 522) (2006), citing Charles, supra, Shivers, supra, and Fossett, supra; Martinez-Vargas v. State, 317 Ga. App. 232, 237 (1) (730 SE2d 633) (2012), citing State v. Pando, 284 Ga. App. 70 (643 SE2d 342) (2007), Boldin, supra, and Fossett, supra.

       284 Ga. App. 70, 76-77 (2) (a) (643 SE2d 342) (2007).

       285 Ga. 75 (673 SE2d 237) (2009).

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

       Id. at 78 (citations omitted).

       258 Ga. App. 253 (573 SE2d 494) (2002).

       253 Ga. App. 791 (560 SE2d 351) (2002).

       244 Ga. App. 833 (537 SE2d 118) (2000).

       264 Ga. App. 874 (592 SE2d 518) (2003).

       Id. at 876 (2) (“[T]he odor of marijuana is one factor that may be considered in determining whether, under the totality of the circumstances, probable cause exists to authorize the issuance of a search warrant.”) (citations and punctuation omitted); Shivers, supra at 257 (“The odor of marijuana is one factor that may be considered in determining whether, under the totality of the circumstances, probable cause exists to authorize the issuance of a search warrant.”) (footnote omitted); Patman, supra at 835 (“The odor of marijuana is one factor that may be considered in determining whether, under the totality of the circumstances, an officer had probable cause to institute a search.”) (footnote omitted);
        Fossett, supra at 793 (1) (“The odor of marijuana is one factor that may he considered in determining whether, under the totality of the circumstances, an officer had probable cause to institute a search”) (citation and punctuation omitted).

       Supra at n. 4.

        Shivers, supra at 256-257 (citing testimony that police officers “stopped by” the defendant’s house when “[the defendant] was out at his house and [police officers] pulled up talking to him”; explaining that “[t]he odor of burnt marijuana on [the defendant’s] person... failed to establish probable cause that marijuana had been smoked or burned or would be found within Shivers’s house or its curtilage. There was no averment that the odor of burnt marijuana was emanating from anywhere other than [the defendant’s] person, that [the defendant] had recently exited his house, or that marijuana was then or had recently been burned anywhere at his residence.”) (footnote and emphasis omitted).

       See Palmer, supra at 77.

       Supra at 823 (emphasis supplied).

       See Palmer, supra (requiring “a fair probability that contraband or evidence of a crime will be found in a particular place”) (citations omitted; emphasis supplied); Shivers, supra at 254 (same).

        Charles, supra at 876-877 (2) (concerning police officers’ detection of the odor of marijuana smoke; reiterating that “the smell of marijuana smoke merely suggests that marijuana was present in the past”; and noting that the evidence did not indicate that the odor was strong or that the odor suggested to the officers that marijuana was being consumed when they arrived; noting that there was no evidence that the officers detected marijuana smoke on either defendant; or that either defendant appeared to be under the influence of marijuana); Fossett, supra (holding that the totality of the circumstances - the officer’s detection of the strong odor of burning marijuana when he entered the defendant’s residence and the fact that the officer was familiar with the residents and knew from his own personal experience that they had recently possessed marijuana and drug trade implements — supported the magistrate’s finding of probable cause for issuance of a warrant to search the residence); Patman, supra (explaining that the “[police officer] smelled marijuana on [defendant], which gave rise to reasonable suspicion that he had recently smoked marijuana. [Police officer] then patted [defendant] and felt what he believed to be packages of marijuana in [defendant’s] pocket. When he asked [defendant] what was in the pocket, [defendant’s] request to ‘let [him] slide’ suggested that he had something incriminating in his pocket. Taken together, the circumstances established probable cause to search [defendant].”).

       317 Ga. App. 232 (730 SE2d 633) (2012).

       282 Ga. App. 492 (639 SE2d 522) (2006).

        Martinez-Vargas, supra at 238 (1) (explaining that the fact that the officer was standing in close proximity to the residence when he smelled the raw marijuana, coupled with the drug evidence found in the trash two days earlier, was sufficient to establish probable cause to search the residence); Boldin, supra at 493-495 (2) (concluding that the trial court correctly ruled that officer had probable cause to suspect that contraband was inside the defendant’s residence, whereupon officer’s exit of his car approximately 20 feet from the threshold of the defendant’s open garage door, the officer immediately smelled the odor of burning marijuana, which smell became stronger as the officer walked toward the garage door; where the defendant then “ ‘scooped up a trash bag off the floor in his arm and took off running into the house and slammed the door’ and where some items then fell out of the garbage bag onto the floor, including a gallon zip-lock bag that appeared to contain marijuana residue).

        Martinez-Vargas, supra at 237 (1) (“While the odor of marijuana alone might be insufficient to provide probable cause for the search of a residence, it can serve as one of the factors, under the totality of the circumstances, that will support a finding of probable cause.”) (citations omitted); Boldin, supra at 495 (2) (“Although the odor of marijuana may not suffice by itself to provide probable cause for the search of a residence, the odor of burning marijuana is one of the factors which, under the totality of the circumstances, will support a finding of probable cause.”) (footnotes omitted).

       284 Ga. App. 70 (643 SE2d 342) (2007).

       Supra at 823 (emphasis supplied).

        Pando, supra at 76-77 (2) (a) (“[T]he odor of marijuana may be considered as part of the totality of circumstances in determining whether there is sufficient probable cause to support a search warrant.”) (citation omitted).

        Palmer, supra.

        Harper v. State, 286 Ga. 216, 218 (1) (686 SE2d 786) (2009) (citations and punctuation omitted).

        Smith v. Baptiste, 287 Ga. 23, 25 (1) (694 SE2d 83) (2010); see Harper, supra.

       Supra at 823.

       See, e.g., Palmer, supra at 77 (“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.”) (citations and punctuation omitted).

       Supra.

        See Pando, supra at 77 (2) (“[L]one statement that the officers smelled [fresh] marijuana when the defendants opened the door was insufficient to establish probable cause for a search warrant for [defendant’s] residence.”) (citation omitted); see generally Davis v. State, 262 Ga. 578, 584 (4) (422 SE2d 546) (1992) (neither criticizing the police, nor praising the appellant; rather, “acknowledging] the right of privacy in one’s home”).

       Supra at 817 (emphasis supplied).


source: Caselaw Access Project

author: DOYLE, Presiding Judge.

license: Public Domain

text:
    A14A2057.
    THOMAS v. FULTON COUNTY BOARD OF EDUCATION et al.
    (771 SE2d 482)
   DOYLE, Presiding Judge.

Merita Thomas filed an application for discretionary appeal from a superior court order affirming the State Board of Workers’ Compensation (“the Board”), which had overruled an Administrative Law Judge’s (“ALJ”) award to Thomas. Thomas argues that the superior court erred by affirming the Board’s order because (1) the Board incorrectly applied OCGA § 34-9-260 when calculating her average weekly wage; and (2) the Board incorrectly found that her second summer job was not concurrent employment for purposes of average weekly wage calculation. For the reasons that follow, we reverse and remand for further proceedings.

When reviewing awards in workers’ compensation cases, both the appellate court and the superior court must construe the evidence in the light most favorable to the party prevailing before the appellate division of the State Board of Workers’ Compensation. It is axiomatic that the findings of the State Board of Workers’ Compensation, when supported by any evidence, are conclusive and binding.

Viewed in this light, the evidence shows that since 2008, Thomas has worked as a school bus driver for the Fulton County Board of Education (“Fulton County”). Thomas only drove the bus nine months of the year, but her salary was spread over twelve months. During the nine month school year, her hourly wage was $18.63, her hourly contract was for twenty-five hours per week, although she testified she spent forty-four hours per week working during the school year. She received $1,463 per month for summer months.

Over June and July of 2010 and 2011, Thomas worked for a second employer, Quality Drive Away (“QDA”), driving new school buses from Atlanta to other parts of the country. Thomas was paid per job based on mileage and other factors, and over June and July 2011, she worked eleven jobs, totaling income of $8,596.51 according to her tax form from QDA; the last three jobs occurred in the thirteen-week period of July 20,2011, to October 11,2011, and the ALJ found she was paid $549.80, $601.30, and $576.43 for a total of $1,658.43 (the actual total wages for those jobs is disputed between the testimony provided by Thomas and the almost indecipherable pay slips). Thomas’s last job for QDA ended on July 30, 2011, and she returned to her regular school-year job at Fulton County on an unspecified date thereafter.

The parties stipulated that Thomas suffered a compensable injury on October 19, 2011, and the 13-week period prior to her injury was July 20, 2011, to October 19, 2011, of which she worked approximately 11.5 weeks (beginning some time after July 30, 2011, which was a Saturday and her last day working for QDA). Although Fulton County accepted her claim, the parties disputed the correct calculation of Thomas’s average weekly wage.

Thomas contended that her average weekly wage should be calculated pursuant to the method listed in OCGA § 34-9-260 (1), which is 1/13th of the total sum of the claimant’s wages earned at both Fulton County and QDA during the 13-week period immediately preceding the injury — Thomas claimed this amount was $593.32. On the other hand, Fulton County argued to the ALJ that because Thomas had not worked during “substantially the whole” of the 13-week period, Thomas’s average weekly wage should be calculated pursuant to the method in OCGA § 34-9-260 (3), which is based on the “full-time weekly wage” of the claimant, and that her wages from QDA should not be included in that calculation because it was not concurrent employment.

At the hearing, Fulton County’s workers’ compensation specialist testified before the ALJ that she calculated Thomas’s “full-time weekly wage” by applying her hourly pay rate of $18.63 per hour to her contract requirement of 25 hours per week, which resulted in an average weekly wage of $465.75.

The ALJ first concluded that Thomas’s work for QDA was concurrent work for which her average weekly wage had to be calculated, and there was no requirement that the jobs for QDA be performed contemporaneous to the work for Fulton County in order to qualify as concurrent work. The ALJ found that OCGA § 34-9-260 (1) applied in this instance, so the formula for determining Thomas’s average weekly wage was l/13th of the total earnings for the immediately preceding 13-week period. The ALJ found that the weekly wage for Thomas for the Fulton County job was $465.75, totaling $6,054.75 for the 13-week period preceding the injury, and added to that total $1,658.43 for Thomas’s work for QDA that occurred during the period; l/13thofthe $7,713.18total resulted in anaverage weekly wage of $593.32.

Fulton County appealed, and the Board calculated an average weekly wage of $337.62 under OCGA § 34-9-260 (1). First, the Board determined that the ALJ correctly found that Thomas’s work with QDA was similar to her work with Fulton County, but the jobs were not performed simultaneously when her injury occurred, and therefore, the ALJ had erred by finding the employment concurrent. Next, the Board determined that the ALJ’s finding as to Thomas’s weekly wage for her employment for the preceding 13 weeks was incorrect, and it instead calculated an average weekly wage of $337.62 by multiplying by 12 her summer monthly pay from Fulton County of $1,463 and then dividing that number by 52.

One Board member dissented from this opinion, and she stated that OCGA § 34-9-260 (3) was the appropriate method for calculating Thomas’s average weekly wage because Thomas had not “worked” for Fulton County for the preceding 13 weeks. She also concluded that the Board majority had conflated the notion that Fulton County paid wages to Thomas for 13 weeks with the plain language of the statute, which required a showing that the claimant “worked” during the 13 weeks.

Thomas appealed the Board’s opinion to the superior court, arguing that her average weekly wage should be calculated to include concurrent employment or that her average weekly wage should be calculated based on her full-time weekly wage underOCGA § 34-9-260 (3). The superior court affirmed the Board’s decision without explanation.

Thomas first argues that the superior court erred by affirming the Board. Based on the plain language of OCGA § 34-9-260, we agree.

OCGA § 34-9-260 provides that[ ] the average weekly wages of the injured employee at the time of the injury shall be taken as the basis upon which to compute compensation and shall be determined... as follows: (1) If the injured employee shall have worked in the employment in which [s]he was working at the time of the injury, whether for the same or another employer, during substantially the whole of 13 weeks immediately preceding the injury, h[er] average weekly wage shall be one-thirteenth of the total amount of wages earned in such employment during the 13 weeks; (2) If the injured employee shall not have worked in such employment during substantially the whole of 13 weeks immediately preceding the injury, the wages of a similar employee in the same employment who has worked substantially the whole of such 13 weeks shall be used in making the determination under the preceding paragraph; (3) If either of the foregoing methods cannot reasonably and fairly be applied, the full-time weekly wage of the injured employee shall be used.

“Employment... means the type or kind of employment, such as that of janitor, baker, truck driver, etc. It refers to the particular calling or kind of employment in which claimant was engaged at the time of his injury.” When Thomas was injured, she was working as a bus driver for Fulton County. She was working as a bus driver for substantially the whole of the 13 weeks immediately preceding her injury on October 19, 2011, because she worked as a bus driver for both QDA and Fulton County during that time. OCGA § 34-9-260 (1) explicitly contemplates work “for the same or another employer” and thus, because Thomas worked those 13 weeks for the same or another employer in the same type of employment during which she was injured, her average weekly wage should have been computed based on her “total amount of wages earned” for her work during the 13 weeks immediately preceding her injury — approximately 11.5 weeks with Fulton County and 1.5 weeks with QDA.

While this is slightly different than the “concurrent similar employment doctrine” enunciated in St. Paul-Mercury Indem. Co. v. Idov, in that the claimant is not rotating back and forth between employers during the 13-week period, there is nothing in our case law that so narrowly defines “concurrent” as the Board did in this case, which construction is not “in keeping with the liberal construction awarded uniformly to the” Workers’ Compensation Act. When she was injured, Thomas had worked for Fulton County for many years and for the previous two summers for QDA, and there is nothing in the record to support a finding that she would not have done so the next summer. Thus, Thomas’s employment with the two entities was concurrent with respect to the calendar year.

Where an employee is working for several different employers and is injured, in order that he may be reasonably compensated for the loss of his earning powers, his total wages must be taken into consideration. Any other construction of the statute would result in great injustice and lead to absurdities.

Thus, the superior court erred by affirming the Board’s erroneous application of OCGA § 34-9-260 (1).

That being said, while the ALJ purportedly applied OCGA § 34-9-260 (1), in reality it appears that her calculations were based on earnings that Thomas did not have during the 13-week period — the ALJ calculated this total using Thomas’s “full-time weekly wage” from Fulton County for the full 13 weeks rather than the “total amount of wages earned” for the weeks Thomas worked with Fulton County. Thus, the ALJ’s calculation was erroneous.

Accordingly, we reverse the judgment of the superior court and remand the case for further proceedings in accordance with this opinion.

Judgment reversed and case remanded.

Miller and Dillard, JJ., concur.

Decided March 30, 2015

Smith, Wallis & Scott, Joseph W. Brown II, for appellant.

Swift, Currie, McGhee & Hiers, Todd A. Brooks, for appellees.

       This Court granted the application in an order dated May 22, 2014. Thomas timely appealed therefrom.

       (Punctuation omitted.) Chambers v. Monroe County Board of Commrs., 328 Ga. App. 403, 404 (762 SE2d 133) (2014).

       The specialist also testified that no bus driver working for Fulton County worked the entire 13-week period preceding October 19, 2011.

       For ease of assessment of the statute at issue, we have combined Thomas’s enumerations of error. To the extent that Fulton County argues that Thomas waived the issue of concurrent employment, we hold that Thomas did not waive the issue and made the statements at issue in relation to a different subpart of the statute.

       (Punctuation omitted.) Rheem Mfg. Co. v. Jackson, 254 Ga. App. 454, 455-456 (562 SE2d 524) (2002).

        Black v. American & Foreign Ins. Co., 123 Ga. App. 133, 135 (2) (179 SE2d 679) (1970).

         88 Ga. App. 697, 700 (77 SE2d 327) (1953).

       Merriam-Webster defines concurrent as “1: operating or occurring at the same time];] 2 a: running parallel];] 2 b: convergent];] specifically, meeting or intersecting in a point];] 3: acting in conjunction]; and] 4: exercised over the same matter or area by two different authorities.” See http://www.merriam-webster.com/dictionary/concurrent (emphasis in original).

        Idov, 88 Ga. App. at 700.

       Id.


author: McFadden, Judge. ANDREWS, Presiding Judge,

text:
    A14A2065.
    GREGG v. THE STATE.
    (771 SE2d 486)
   McFadden, Judge.

We granted Sharon Diane Gregg’s application for interlocutory appeal challenging an order entered by the Superior Court of Walker County denying her pretrial motion to compel concerning a subpoena duces tecum. Because the subpoena sought evidence relevant to Gregg’s sole defense, the trial court erred in denying the motion and we therefore reverse.

A Walker County prosecuting attorney entered an accusation against Gregg for one count of theft by taking (OCGA § 16-8-2). The state alleged that Gregg, a pharmacy employee, repeatedly removed currency from the pharmacy’s cash register for her personal benefit. Gregg contends that the owner of the pharmacy instructed her to remove funds from the cash register in order to pay visiting pharmacists and to conduct other business of the pharmacy, including the purchase of employee lunches. As part of her defense, Gregg issued a subpoenas duces tecum that sought

any and all federal and state tax records for [the pharmacy] indicating employees; FICA; copies of W-2’s for all employees; 1099 forms for pharmacists and clerks; any and all papers for reconciliation of cash register accounting; lists of employees by salary, hourly and accounting of all cash disbursements for the payment of pharmacists and employees; [and] accounting for all cash not deposited or accounted for with federal and state tax authorities.

The state moved to quash this subpoena, and the trial court held a hearing at which the production of Internal Revenue Form 1099 records was discussed. The trial court took the issue of the production of 1099 forms under advisement.

Subsequently, Gregg issued another subpoena duces tecum that sought

[documents listing any and all employees, both “on books” and “off books,” at [the pharmacy] for the years 2009 and 2010; any and all full names and addresses of any individual paid as a taxed employee and any and all full names and addresses of any individual paid in cash.

Following a partial response to this subpoena, Gregg filed a motion to compel compliance with it. The trial court denied Gregg’s motion.

In her sole enumeration of error, Gregg argues that the trial court erred in denying her motion to compel compliance with the subpoena duces tecum “for limited and specific federal tax records.” In particular, Gregg seeks Internal Revenue Form 1099 records from 2009 and 2010 for current and former employees of the pharmacy: (1) to demonstrate “the volume of the amounts that were needed to pay the several cash-paid employees, in order to support the volume of cash from the register” used to conduct the pharmacy’s business; and (2) “to thoroughly cross examine the [pharmacy owner] to support the critical point of her only defense” — that she was instructed to take funds from the register for the operation of the pharmacy.

“As a general rule, we review the denial of a motion to compel discovery only for an abuse of discretion.” Lovell v. Ga. Trust Bank, 318 Ga. App. 860, 862 (1) (734 SE2d 847) (2012). We find such an abuse here.

There is no generalized right of discovery in criminal cases. See State v. Lucious, 271 Ga. 361, 364 (4) (518 SE2d 677) (1999). Through OCGA § 17-16-1 et seq., Georgia codified procedures that “provide[ ] a comprehensive scheme of reciprocal discovery in criminal felony cases,” id. at 362 (1) (emphasis supplied) — in other words, procedures addressing discovery between the defendant and the state. The dissent would have those procedures also define the scope of discovery sought through a subpoena duces tecum to a third party. “It does not follow, however, that a defendant who elects to have [the reciprocal discovery procedures] apply thereby waives the right to use means of discovery that are otherwise available to any party, such as the subpoena power.” Walker v. State, 323 Ga. App. 558, 568 (2) (747 SE2d 51) (2013), rev’d on other grounds, State v. Walker, 295 Ga. 888 (764 SE2d 804) (2014). In such instance, the state “may move to quash the subpoena, as it did in this case.” Id. The motion to quash serves to prevent a criminal defendant from using a subpoena duces tecum as an instrument of general discovery against a third party; it is the tool to stop the defendant using a subpoena to “search through the [third party’s] records in hopes of obtaining information which might possibly impeach [a witness’s] credibility.” Plante v. State, 203 Ga. App. 33, 34 (1) (416 SE2d 316) (1992).

“When a motion to quash [a subpoena] is filed, the party serving the subpoena has the initial burden of showing the documents sought are relevant.” Bazemore v. State, 244 Ga. App. 460 (1) (535 SE2d 830) (2000). Where the evidence sought in a subpoena duces tecum is demonstrably relevant and material to the defense, it is error for a trial court to quash the subpoena. See Henderson v. State, 255 Ga. 687, 689-690 (2) (341 SE2d 439) (1986); Buford v. State, 158 Ga. App. 763, 767 (1) (282 SE2d 134) (1981). See generally Dean v. State, 267 Ga. 306, 307 (477 SE2d 573) (1996) (“The constitutional right to compulsory process includes the right to present all material evidence to establish a defense.”) (citation omitted).

Gregg met her burden of showing the relevance of the evidence sought in the subpoena. She demonstrated that she sought the documents not just for use in cross-examining the pharmacy owner, but also to prove the volume of cash that the pharmacy used to pay its cash-based employees. The fact that the pharmacy needed a certain amount of cash to pay its cash-paid employees directly pertains to Gregg’s sole defense — her claim that she took cash out of the register at her employer’s direction to pay those employees and other expenses. Evidence of the volume of cash used to pay those employees is relevant to that defense. See Henderson, 255 Ga. at 689 (1); see also OCGA § 24-4-401 (“ ‘relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence”). The trial court therefore erred in denying Gregg’s motion to compel a response to her subpoena seeking this relevant evidence. Henderson, 255 Ga. at 689-690 (2).

Judgment reversed.

Barnes, P. J., and Doyle, P. J., concur. Ray, J., concurs in judgment only. Andrews, P. J., Boggs and Branch, JJ., dissent.

ANDREWS, Presiding Judge,

dissenting.

We are required to review the denial of Sharon Diane Gregg’s pretrial motion to compel compliance with a subpoena duces tecum “only for an abuse of discretion.” Lovell v. Ga. Trust Bank, 318 Ga. App. 860, 862 (1) (734 SE2d 847) (2012). Because I conclude that the trial court did not abuse its discretion in denying Gregg’s pretrial motion to compel, I respectfully dissent.

1. First, the nature of the information Gregg seeks from the pharmacy is to challenge a witness’ credibility; it is not relevant to Gregg’s guilt or innocence. See Tuttle v. State, 232 Ga. App. 530, 532-533 (2) (d) (502 SE2d 355) (1998). Gregg failed, therefore, to satisfy her initial burden to demonstrate relevance. See Bazemore v. State, 244 Ga. App. 460, 460 (1) (535 SE2d 830) (2000) (“When a motion to quash [a subpoena] is filed, the party serving the subpoena has the initial burden of showing the documents sought are relevant.”).

Gregg issued two subpoenas duces tecum to the pharmacy where she was formerly employed, the second of which sought

[documents listing any and all employees, both “on books” and “off books,” at Longley’s Pharmacy for the years 2009 and 2010; any and all full names and addresses of any individual paid as a taxed employee and any and all full names and addresses of any individual paid in cash.

As correctly noted by the majority, Gregg sought Internal Revenue Form 1099 records from 2009 and 2010 for current and former employees of the pharmacy: (1) to demonstrate “the volume of the amounts that were needed to pay the several cash-paid employees, in order to support the volume of cash from the register” used to conduct the pharmacy’s business; and (2) “to thoroughly cross examine the [pharmacy owner] to support the critical point of her only defense” in that she was instructed to take funds from the register for the operation of the pharmacy. What is apparent from Gregg’s argument, however, is that Gregg’s primary purpose in seeking tax records from the pharmacy is for the cross-examination of the owner of the pharmacy during trial. In that regard,

[t]he right to confrontation is a “trial right,” guaranteeing a defendant the ability to confront and question adverse witnesses at trial. As a trial right, it does not include the power to require the pretrial disclosure of any and all information that might be useful in contradicting unfavorable testimony, and does not guarantee cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.

(Citations and punctuation omitted). State v. Lucious, 271 Ga. 361, 364 (2) (b) (518 SE2d 677) (1999). See also OCGA § 24-6-611; Bazemore, 244 Ga. App. at 463. It follows that Gregg’s argument that quashing the subpoena impermissibly curtails her right of cross-examination is unavailing. See Tuttle, 232 Ga. App. at 532-533 (2) (d); Standridge v. State, 196 Ga. App. 697, 697-698 (2) (396 SE2d 804) (1990). As a result, there is no abuse of discretion.

2. Second, the majority correctly observes that there is no generalized right of discovery in criminal cases. See Lucious, 271 Ga. at 364 (4); Castell v. State, 250 Ga. 776, 782 (2) (b) (301 SE2d 234) (1983); Plante v. State, 203 Ga. App. 33, 34 (1) (416 SE2d 316) (1992). See also Bazemore, 244 Ga. App. at 463 (1); Tuttle, 232 Ga. App. at 532-533 (2) (d). And yet, the majority inches toward such a right in this case.

While a defendant may take advantage of the reciprocal discovery procedures codified at OCGA § 17-16-1 et seq., the limited nature of discovery in criminal cases is confirmed by the statute, which permits discovery only of the defendant’s recorded statements, criminal history, scientific testing, and those tangible items which are “within the possession, custody, or control of the state or prosecution and are intended for use by the prosecuting attorney as evidence in the prosecution’s case-in-chief.” OCGA § 17-16-4 (a) (3) (A). And although OCGA § 17-16-1 et seq. does not foreclose a defendant’s right to “use means of discovery that are otherwise available to any party, such as the subpoena power,” see Walker v. State, 323 Ga. App. 558, 568 (2) (747 SE2d 51) (2013), rev’d on other grounds, State v. Walker, 295 Ga. 888 (764 SE2d 804) (2014), neither do the reciprocal discovery procedures trump the principle that “there is no generalized right of discovery in criminal cases.” See Lucious, 271 Ga. at 364 (4).

In this instance, as noted above, the information Gregg seeks is not relevant to whether she took certain money with the intention of depriving the pharmacy of the money. Moreover, the information is not included within the scope of OCGA § 17-16-1 et seq. Compare Henderson v. State, 255 Ga. 687, 690 (3) (341 SE2d 439) (1986) (trial court erred in quashing defendant’s subpoena duces tecum to obtain bank records of alleged perpetrator, to demonstrate alleged perpetrator’s stream of income as a drug trafficker, where defendant claimed alleged perpetrator committed murder at issue); Buford v. State, 158 Ga. App. 763 (282 SE2d 134) (1981) (trial court erred in quashing defendant’s subpoena to federal agency for telephone records to substantiate claim he was an informant in lawful possession of drugs). Finally, Gregg could subpoena employees of the pharmacy as part of her defense at trial. What remains is Gregg’s attempt to subpoena tax records from the pharmacy which are neither relevant nor permitted by OCGA § 17-16-1 et seq. No such general discovery right exists under Georgia criminal procedure, see Lucious, 271 Ga. at 364 (4), and the trial court did not abuse its discretion by denying Gregg’s attempt to secure the tax information from the pharmacy.

Decided March 30, 2015

McCracken Poston, for appellant.

Herbert E. Franklin, Jr., District Attorney, Kay Baker, Assistant District Attorney, for appellee.

In sum, because it has not been shown that the information Gregg seeks is relevant or included within the discovery permitted by OCGA § 17-16-4, the trial court did not abuse its discretion in denying Gregg’s motion to compel and effectively quashing Gregg’s subpoena duces tecum. See Lucious, 271 Ga. at 364 (2) (b); Bazemore, 244 Ga. App. at 463; Tuttle, 232 Ga. App. at 532-533; Plante, 203 Ga. App. at 34 (1); Jones v. State, 135 Ga. App. 893, 895 (1) (219 SE2d 585) (1975). Therefore, I respectfully dissent.

I am authorized to state that Judge Boggs and Judge Branch join in this dissent.

       In this case, Gregg opted into the OCGA § 17-16-1 et seq. reciprocal discovery procedures.

       Because OCGA § 17-16-4 (a) (4) contemplates discovery of scientific testing and the like, cases upon which Gregg relies holding that a defendant may subpoena documents related to scientific testing are inapposite. See, e.g., OCGA § 40-6-392 (a) (4); Price v. State, 269 Ga. 222, 224 (2) (498 SE2d 262) (1998); Eason v. State, 260 Ga. 445, 446 (396 SE2d 492) (1990). Dean v. State, 267 Ga. 306, 307 (477 SE2d 573) (1996), cited by the majority, is likewise inapplicable (defendant permitted to subpoena results of urine test in prosecution for driving under the influence).

       In addition, see Hodges v. State, 229 Ga. App. 475, 476 (494 SE2d 223) (1997) (in both Henderson and Walker, supra, where trial courts erred in quashing subpoenas, “there was direct evidence of [another] person’s involvement in the crime”). Consistent with Hodges, those circumstances are not present in this case.


author: Phipps, Chief Judge.

text:
    A14A2084, A14A2085.
    RASER TECHNOLOGIES, INC. et al. v. MORGAN STANLEY & COMPANY, LLC et al.; and vice versa.
    (771 SE2d 517)
   Phipps, Chief Judge.

In these cases, the following circumstances exist and are dispositive of the appeals:

(1) The evidence supports the judgments;
(2) The judgments of the court below adequately explain the decisions; and
(3) The issues are controlled adversely to the appellants for the reasons and authority given in the appellees’ briefs.

Decided March 30, 2015.

Chamberlain Hrdlicka White Williams & Aughtry, Jimmy L. Paul, Drew V. Greene, David N. Dreyer, Scott M. Ratchick, for appellants.

Rodgers & Hardin, Richard H. Sinkfield, Dan F. Laney, for appellees.

The judgments of the court below therefore are affirmed in accordance with Court of Appeals Rule 36.

Judgments affirmed.

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


author: Branch, Judge.

text:
    A14A2089.
    WRIGHT v. BURCH.
    (771 SE2d 490)
   Branch, Judge.

A trial court enforced a purported settlement of a child support dispute between Monica Wright and her ex-husband Thomas Burch and awarded Burch attorney fees under OCGA § 9-15-14 (b). On appeal, Wright argues that the trial court erred when it enforced the settlement as to child support. Wright also argues that the fee award was erroneous because the evidence did not support such an award, because it was not accompanied by findings of fact, and because Wright had been asserting a novel legal theory in good faith below. We conclude that although the trial court was authorized to conclude that the parties had agreed to submit the settlement agreement to the court, it was not authorized to enforce the terms of the agreement as to past-due arrearages, or to modify future child support payments without ensuring that such a modification was in the best interest of the child. We therefore reverse or vacate those portions of the trial court’s order modifying child support and awarding fees, and we remand for further proceedings.

The relevant facts are not in dispute. The record shows that the parents were married in 1996, and the child at issue was born in September 1999. Wright and Burch’s divorce was finalized in Tennessee on December 16, 2003. The marital dissolution agreement incorporated into the decree provided that Burch would pay Wright child support in the amount of $600 per month, except when the child was living with Burch, until the termination of the agreement. The agreement specified:

No action by the parties will be effective to reduce the child support set forth herein after the due date of each payment and that each party understands that court approval must be obtained before the child support can be reduced unless such payments are automatically reduced or terminated under the terms of this [agreement].

(Emphasis supplied.) The agreement also provided that it “shall not be modified or annulled by the parties except by written agreement signed by both parties[.]” After the divorce, Wright, who resided in Georgia, had primary custody of the child. In July 2013, however, the child elected to live with Burch in Maryland, and moved there the following month.

Meanwhile, in May 2013, Burch filed the instant petition to domesticate the Tennessee divorce decree and for money had and received. The petition alleged that pursuant to the marital dissolution agreement, the parties had agreed to reduce Burch’s child support obligations between September 2004 and December 2007 to $400 a month. Burch also alleged that the Georgia Department of Human Resources (DHR) had erroneously garnished his paychecks in excess of his child support obligations, transferred approximately $2,100 to Wright, and misstated his arrearage by more than $39,000. Burch sought to make any future child support payments directly to Wright rather than by means of garnishment and transferral. That same month, Wright wrote to Burch’s counsel that although she “[d]id not agree” with Burch’s calculation of his arrearage, DHR had made “a severe error” in reaching its estimate of the arrearage. Wright also wrote to DHR asking that there “not be any garnishment of arrears” from Burch. Wright did not file any answer to Burch’s petition.

The parties immediately began negotiations as to the arrearage, the child’s upcoming change of residence, and a reduction in child support. On July 8, 2013, Burch amended his petition to include a claim for modification such that the parties would have joint custody, with child support also modified “in accordance with any change in custody[.]” On October 13, the parties reached an apparent agreement as to a draft consent order purporting to modify both custody and child support. The draft consent order specifically provided that “all arrearage issues are resolved by this order and no back child support is owed by [Burch] to [Wright]” and that Wright would pay Burch $385 per month in child support (with additional provisions for other eventualities). The parties also agreed not to require an income deduction order; instead, Wright would pay child support “directly” to Burch.

Burch’s counsel e-mailed Wright’s counsel that once she had received Wright’s signature on the draft consent order, Burch’s counsel would forward them to the trial court. Wright’s counsel immediately e-mailed Wright’s assent to these arrangements. On October 17, Burch’s counsel notified the court of the agreement, submitted the draft consent order (without signatures), and asked that the parties be excused from a scheduled status conference. The status conference was duly canceled.

On October 29, 2013, Burch’s counsel, who had not received the executed draft consent order, e-mailed Wright’s counsel that she needed them “by the end of the week or I will be filing a [mjotion to [ejnforce.” Burch’s counsel added that Burch’s pay was “still being garnished” and that “this is an intolerable situation.” On November 8, Wright’s counsel responded that Wright had indicated that the documents were in the mail and that he would forward them to Burch and the court as soon as he received them. On November 12, however, Wright’s counsel moved to withdraw from the matter. Two days later, on November 14, 2013, Burch moved to enforce the purported settlement and for attorney fees. The motion noted that Burch would not have requested that the status conference be cancelled unless the parties had reached an agreement concerning the continued and incorrect garnishment “for an arrearage which the parties agreed did not exist and for payment of child support for a child who was residing in his custody.” Between September and November 2013, Wright returned more than $1,400 in improperly garnished funds to Burch.

On December 10,2013, the trial court granted Wright’s counsel’s motion to withdraw. On December 30, Wright’s new counsel filed a counterclaim for contempt arguing that no settlement had been reached, that any change to child support payments required court approval, and that Burch had failed to deliver the child to the mother for Christmas visitation.

A hearing on Burch’s motion to enforce the settlement was held on February 21, 2014. At the outset of the hearing, Wright’s counsel conceded that the parties had reached an agreement, but asserted that any such agreement was “illegal” because under both Tennessee and Georgia law, parents were not authorized to modify child support arrangements retroactively or informally. Burch responded that these parties were free to enter into an agreement as to arrearages already owed, that Wright had not paid any child support to Burch, and that Wright continued to receive more than $100 a week as a result of the continued garnishment of Burch’s salary. Burch also submitted an affidavit detailing the fees expended in pursuing the settlement and submitting that the nearly $6,000 in fees requested was a reasonable amount. Wright then cross-examined Burch’s counsel as to fees. The trial court held that the settlement was enforceable, entered the consent order as part of its judgment, and awarded Burch $2,500 in fees against Wright and her counsel under OCGA § 9-15-14 (b) as “warranted and appropriate given the circumstances.”

Wright applied for discretionary review of the fee award on March 27,2014. In an amended order entered four days later, the trial court found it “reasonable to infer that [Wright’s] motivation” in refusing to sign the consent order and filing the contempt counterclaim was

to delay as long as possible the entry of the [o]rder which suspends the ongoing garnishment of [Burch’s] paychecks and which requires [Wright’s] payment of child support on behalf of the minor child, who had been in [Burch’s] custody for several months at the time the agreement was reached.

On April 21, we granted Wright’s application for discretionary review of the trial court’s earlier orders. This appeal followed.

1. Wright first argues that the trial court erred when it enforced the settlement agreement as to child support because the parties were not authorized to reach any private agreement on that subject without court approval. We agree in part.

(a) The Post-Application Order. As a preliminary matter, we note that the March 21 order finding Wright guilty of delay was entered four days after Wright applied to this Court for discretionary review of the trial court’s earlier orders, and thus after the trial court had lost jurisdiction in the case. See OCGA § 5-6-35 (h) (“The filing of an application for appeal shall act as a supersedeas to the extent that a notice of appeal acts as supersedeas.”). The March 21 order was therefore void. Rainey v. Lange, 261 Ga. App. 491, 492-493 (2) (583 SE2d 163) (2003) (“any attempts by [a] trial court to alter its ruling” on a motion for new trial in the wake of a second application for discretionary review would have “no effect because, at that time, the trial court had, in fact, been divested of its jurisdiction”).

(b) The Parties’ October 2013 Agreement. The 2003 marital dissolution agreement provided that “this agreement should not be modified or annulled by the parties except by written agreement signed by both parties.” As Wright concedes on appeal, the parties had reached an agreement in writing by October 2013, before the withdrawal of Wright’s former counsel. See Tidwell v. White, 220 Ga. App. 415, 417-418 (2) (469 SE2d 258) (1996) (affirming enforcement of a settlement when letters and documents between counsel memorialized the agreement; a party’s denial by means of new counsel that an agreement had been reached was “immaterial”) (citation and punctuation omitted).

As our Supreme Court has held, however, a modification action “is the sole means by which a child support award included in a divorce decree maybe modified.”Robertson v. Robertson, 266 Ga. 516, 518 (1) (467 SE2d 556) (1996). “While the parties are free to enter into an agreement purporting to modify [a] child support obligation, that agreement becomes enforceable only when incorporated in an order of the court.” Id. (citation omitted). This trial court was authorized to conclude that the parties had agreed to submit the settlement agreement to the court.

(c) Arrearages as to Past Child Support Payments. The parties, however, were not empowered to reach a compromise as to any arrearage in child support payments already due, and the trial court was not authorized to modify the divorce decree as to such payments.

“[A]n order modifying child support may operate only prospectively.” Robertson, 266 Ga. at 518 (1) (citation omitted). Specifically, “a reduction in child support arrearage constitutes an improper, retroactive modification of support obligations.” Ga. Dept. of Human Resources v. Prater, 278 Ga. App. 900, 902 (2) (630 SE2d 145) (2006) (footnote omitted). Consistent with these holdings, the parties’ 2003 marital dissolution agreement provided that “no action by the parties will be effective to reduce the child support set forth herein after the due date of each payment.”

“[A] trial court can modify child support obligations and enter orders regarding repayment of past-due amounts pursuant to OCGA § 19-11-12 (e). But it cannot simply forgive or reduce the past-due amount owed under a valid child support order.” Prater, 278 Ga. App. at 903 (2). The trial court was authorized to determine the true amount of the arrearage at issue here and to enter orders as to its repayment. Id. The court erred, however, when it enforced the settlement to the extent that it reduced Burch’s arrearage as to child support payments past due as of October 2013. Id.; Robertson, 266 Ga. at 518 (1) (trial court erred in considering evidence of parties’ intent to compromise child support obligations in its calculation of a party’s arrearage; “because a reduction in the amount of the arrearage, based on the alleged agreement of the parties would constitute a retroactive modification of the final judgment and decree,” such reduction was “unsupportable”).

(d) Future Child Support Payments. The trial court was empowered to consider the parties’ private agreement as to future child support payments, and to modify the divorce decree accordingly, as long as the court followed the procedures laid out in OCGA § 19-6-15 (k) and concluded after doing so that the proposed modification was in the child’s best interest.

A modification of a child support award requires “a substantial change in either parent’s income and financial status or the needs of the child.” OCGA § 19-6-15 (k) (1). The statute also provides that a trial court

. . . may modify and revise the previous judgment, in accordance with the changed circumstances, income and financial status of either parent, or in the needs of the child, if such change or changes are satisfactorily proven so as to warrant the modification and revision and such modification and revisions are in the child’s best interest. . . .

OCGA § 19-6-15 (k) (4).

The 2003 marital dissolution agreement authorized the parties to modify the award established in the divorce decree only if the modification was “made in writing and executed with the same formality as” the original agreement, and noted that “court approval must be obtained before [future] child support can be reduced.” Burch properly amended his petition in July 2013 to include a claim for modification as to both custody and child support, a claim which would not have been necessary had the parties been empowered to settle disputes as to future child support payments by private agreement, as they attempted to in October 2013.

This trial court was thus required to consider whether the changes in future child support agreed to by the parties was in the child’s best interest, and it erred when it failed to do so. OCGA § 19-6-15 (k) (4); see also OCGA § 19-6-15 (k) (1); Pearson v. Pearson, 265 Ga. 100, 101 (454 SE2d 124) (1995) (before private agreement as to child support could be incorporated into court order, trial court had obligation to consider whether agreed-upon support is sufficient based on child’s needs and parents’ ability to pay); Arrington v. Arrington, 261 Ga. 547, 548 (407 SE2d 758) (1991) (trial court is not bound by agreement between parties regarding child support, but should consider on remand whether such support is sufficient based on the children’s needs and the parent’s ability to pay); Amos v. Amos, 212 Ga. 670, 671 (2) (95 SE2d 5) (1956) (court is empowered to reject parties’ proposed modification of child support). Any other result “would destroy the power of our courts to reject inadequate, overreaching, unconscionable or otherwise invalid” settlement agreements of child custody disputes. Davis v. Davis, 251 Ga. 391, 392 (1) (306 SE2d 247) (1983).

For all these reasons, we affirm the trial court’s order to the extent that it found that the parties had entered into a settlement agreement in October 2013, but we reverse the enforcement of that agreement as to arrearage, and we vacate the remainder of the trial court’s order enforcing the settlement and awarding attorney fees to Burch. On remand, the trial court should hold a hearing as soon as practicable to consider (1) the proper amount of any child support arrearage as of the date of the hearing, but disregarding the parties’ purported settlement of October 2013 as to such arrearage; (2) whether future child support payments should be modified as in the child’s best interest under the guidelines set out in OCGA § 19-6-15 (k); and (3) whether either party is entitled to reasonable attorney fees under OCGA § 19-6-15 (k) (5) or OCGA § 9-15-14. We also note that Wright’s counterclaim for contempt remains pending below.

2. Our vacatur of the trial court’s award of fees to Burch under OCGA § 9-15-14 moots Wright’s contentions as to that award.

Decided March 30, 2015.

Shaw Law Firm, Scott W. Shaw, for appellant.

Warner, Bates, McGough, McGinnis & Portnoy, KynnaD. Garner, Nancy I. Jordan, for appellee.

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

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

       The argument portion of Wright’s brief does not follow the order of the four enumerated errors and lacks any numbering as to those errors. As such, the brief violates Court of Appeals Rule 25 (c) (1). The brief also fails to cite any specific page or pages in the appellate record. As a result, we could deem any or all of Wright’s arguments abandoned. Court of Appeals Rule 25 (c) (2).

       OCGA § 19-11-12 (e) provides:
      When the trier of fact, the administrative law judge for administrative orders, or a judge of the superior court for court orders, as the case may be, determines that there is a significant inconsistency between the existing child support order and the amount of child support which would result from the application of Code Section 19-6-15, the trier of fact may use this inconsistency as the basis to increase or decrease the amount of support ordered. The trier of fact may also address the repayment of any arrears accumulated under the existing order.

      (Emphasis supplied.)

       See also Dan E. McConaughey, Georgia Divorce, Alimony, and Child Custody (2013-2014 ed.), § 16.2, p. 888 (“[A]fter a divorce decree becomes final, the parties may not voluntarily or by subsequent agreement modify its terms, even though the agreement is later made the order of the court by consent [;] [r] ather, the agreement must have been incorporated into the original judgment, and thereafter either party may make application to the court for modification pursuant to the terms of the decree”).

       See OCGA § 19-6-15 (k) (4) (a trial court modifying child support “shall enter a written order specifying the basis for the modification, if any, and shall include all of the information set forth in paragraph (2) of subsection (c) of this Code section [concerning the use of a child support worksheet]”).

       See OCGA § 19-6-15 (k) (5) (“In proceedings for the modification of a child support award pursuant to the provisions of this Code section, the court may award attorney’s fees, costs, and expenses of litigation to the prevailing party as the interests of justice may require.”).


author: Boggs, Judge.

text:
    A14A2148.
    TUOHY v. CITY OF ATLANTA et al.
    (771 SE2d 501)
   Boggs, Judge.

Edward Tuohy filed a complaint against the City of Atlanta, Mayor Kasim Reed, and the Atlanta City Council (collectively “the City”), alleging that he was terminated in retaliation in violation of the Georgia Whistleblower Act, OCGA § 45-1-4. The trial court granted summary judgment in favor of the City, and Tuohy now appeals. For the following reasons, we affirm.

On appeal from the grant of summary judgment, this court applies a de novo standard of review. Higginbotham v. Knight, 312 Ga. App. 525, 526 (719 SE2d 1) (2011). Summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). We must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant. Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

So viewed, the evidence showed that Tuohy was hired in March 2011 as treasurer for the City working for the chief financial officer. In July 2011, Mazyck Advisors submitted to the City invoices totaling $51,882.28 for advisory services. On August 8, 2011, the chief financial officer for the City, Joya DeFoor, sent Tuohy an e-mail instructing him to pay the entire invoice “from the remaining cost of issuance funds. Your staff should be able to determine how much in COI is remaining from the bank statement without contacting Watershed.” When Tuohy determined that there were no Watershed funds to pay the invoice, he e-mailed DeFoor and asked her to advise him which source he should pay them from. Tuohy stated that he “felt the fact that the wire was not in its entirety a Watershed wire, I knew that the invoices, from looking at the invoices, supporting documentation of the wire that it was for more than just Watershed.” Tuohy stated further that he knew that three other City departments benefitted from the contractor’s work and that the proper procedure would be to only charge that portion to Watershed that benefitted Watershed.

On August 25,2011, Tuohy wired $51,882.28 to Mazyck Advisors but did not charge the amount to the Department of Watershed. He asserted that in September 2011, he “received a second e-mail from Ms. DeFoor instructing him to charge the entire invoice to the Department of Watershed and to not report this to the Financial Officer of that Department.” Tuohy discussed his concerns with John Gaffney, the city controller, who testified that Tuohy believed that how he was instructed to charge the invoice “may be illegal.” Gaffney considered the request to charge an invoice to a department without that department’s knowledge to be unethical, but expressed no opinion regarding whether it was illegal, and advised Tuohy to take this concern to the ethics board or consult with the law department.

In October 2011, Tuohy still had not charged the invoices to the Department of Watershed and contacted his direct supervisor, Stefan Jaskulak, deputy CFO for the City, to inform him that he objected to DeFoor’s instructions and would not charge the wire to Watershed as directed. A week later, on October 12, 2011, the City terminated Tuohy’s employment. The next day, Tuohy met with City officials and was told that he had been fired for “performance issues.”

In March 2012, Tuohy filed a complaint under the Georgia Whistleblower Act asserting that he was terminated in retaliation “because he objected to performing an improper illegal financial transaction.” He maintained that he believed DeFoor’s instructions to charge the entire invoice to the Department of Watershed, particularly without notifying that department’s CFO, was improper and “probably illegal,” and that he confirmed that it was in violation of City policies and procedures. In April 2012, the City’s Department of Human Resources issued a report of its own investigation of the matter, and concluded that there was insufficient evidence to show that Tuohy spoke with Jaskulak or DeFoor regarding what he believed to be an illegal or unethical directive, and insufficient evidence that his termination was based on his alleged whistleblowing activity.

The City moved for summary judgment on the ground that Tuohy failed to establish a prima facie case for retaliation. Specifically, it asserted that Tuohy did not question the propriety of DeFoor’s instructions concerning the invoice, and that the manner of payment of the invoices was not in violation of the City Code, nor in violation of Governmental Accounting Standards Board Standards or Generally Accepted Accounting Principles. The City also contended that Tuohy was terminated for poor work performance, noting that he erroneously approved duplicate payments of “approximately four or five million dollars,” and that he used a City telephone to make threatening phone calls to the husband of a woman with whom he had previously been in a relationship.

In granting summary judgment in favor of the City, the trial court applied the framework set forth in McDonnell Douglas Corp. v. Green, 411 U. S. 792, 804 (93 SCt 1817, 36 LE2d 668) (1973), and determined that Tuohy failed to establish a prima facie case of retaliation, and in any case, did not show that the reasons given for his termination were pretextual. We agree with the latter conclusion and affirm the grant of summary judgment. See Georgia-Pacific v. Fields, 293 Ga. 499, 504 (2) (748 SE2d 407) (2013) (appellate court may affirm the grant of summary judgment when it is right for any reason).

1. Under Georgia’s whistleblower statute, a public employer may not retaliate against a public employee for disclosing “a violation of or noncompliance with a law, rule, or regulation to either a supervisor or a government agency,” or “for objecting to, or refusing to participate in, any activity, policy, or practice of the public employer that the public employee has reasonable cause to believe is in violation of or noncompliance with a law, rule, or regulation.” OCGA § 45-1-4 (d) (2) and (3). “Retaliate” or “retaliation” is defined as

the discharge, suspension, or demotion by a public employer of a public employee or any other adverse employment action taken by a public employer against a public employee in the terms or conditions of employment for disclosing a violation of or noncompliance with a law, rule, or regulation to either a supervisor or government agency.

OCGA § 45-1-4 (a) (5).

We held in Forrester v. Ga. Dept. of Human Svcs., 308 Ga. App. 716, 721 (1) (708 SE2d 660) (2011) (physical precedent only), that “the McDonnell Douglas burden-shifting analysis used in Title VII retaliation cases is appropriately utilized in the context of evaluating whether a state [whistleblower] claim is subject to summary adjudication.” (Emphasis in original.) While Forrester is physical precedent only, we agree that the McDonnell Douglas analysis should be employed for whistleblower claims in Georgia brought pursuant to OCGA § 45-1-4 (d). See Freeman v. Smith, 324 Ga. App. 426, 428-429 (1) (750 SE2d 739) (2013) (noting that McDonnell Douglas framework was approved in the physical precedent of Forrester, but court not required to decide whether the framework should be adopted because under any standard no evidence of adverse employment action); Caldon v. Bd. of Regents of the Univ. System of Ga., 311 Ga. App. 155, 159, n. 6 (715 SE2d 487) (2011) (acknowledging that no Georgia court has explicitly set forth the standard for analyzing when summary judgment appropriate on whistleblower claims but not expressly adopting McDonnell Douglas framework); but see Albers v. Ga. Bd. of Regents of the Univ. System of Ga., 330 Ga. App. 58 (766 SE2d 520) (2014) (analyzing only prima facie elements of whistleblower claim as ruled upon by trial court with no discussion of McDonnell Douglas burden-shifting analysis).

Under the McDonnell Douglas framework, the plaintiff must first make a prima facie case of retaliation. If the plaintiff makes a prima facie case, the burden of production shifts to the employer to articulate some legitimate, nondiscriminatory reason for the employment decision. If the employer successfully meets this burden of production, then the burden shifts back to the plaintiff to show that each proffered reason was pretext.

(Citations omitted.) Adams v. City of Montgomery, 569 Fed. Appx. 769, 772 (11th Cir. 2014); see Forrester, supra, 308 Ga. App. at 722 (1)-

2. Prima Facie Case of Retaliation. Because we hold below that Tuohy has failed to satisfy his burden of establishing that the proffered reason for his termination was pretextual, we need not address whether he established a prima facie case of retaliation.

3. Bur den-shifting Analysis. Assuming that Tuohy had established a prima facie case, the burden of production shifts to the City to articulate some legitimate, nondiscriminatory reason for the employment decision. Adams, supra, 569 Fed. Appx. at 772.

(a) The City asserted that Tuohy was terminated from employment because of “performance issues.” Jaskulak asserted in his deposition that the decision to terminate Tuohy was communicated to him in July 2011 by DeFoor, and that Tuohy was “not getting up to speed quick enough” and “was slow in providing deliverables.” Jaskulak explained further that Tuohy was not terminated in July, however, because he told “the CFO that [he] wanted a chance to work with Tuohy, talk to him, and hopefully bring him up to speed.” He explained further that when Tuohy was ultimately terminated in October 2011, it was because Tuohy was “slow on deliverables” and that he in September 2011 erroneously approved “two sets of duplicate wires,” which the City asserted in its brief on motion for summary judgment totaled between four and five million dollars.

Jaskulak, in deposition and in his statement to the City, asserted that in early October 2011, he received a call from the husband of Tuohy’s former girlfriend who alleged that Tuohy had called and threatened him from a City phone number. The husband told Jaskulak that he contacted the police about Tuohy’s threats, and Jaskulak obtained a copy of the police report. The man also provided a statement to the City during its investigation in which he asserted that he had called Tuohy on October 5, 2011, to request that Tuohy stop calling his wife. Tuohy returned the phone call on the same day, and during the course of the conversation told the husband, “I will kill you,” “I will send you back to your country in pieces,” and “I know a lot of people in high places because of my job in government.” Jaskulak testified that this incident may have been “the straw that broke the camel’s back” resulting in Tuohy’s termination.

“The employer need not persuade the court that its proffered reasons are legitimate, as its burden is merely one of production, not proof. This intermediate burden is exceedingly light.” (Citations and punctuation omitted; emphasis supplied.) Burgos-Stefanelli v. United States Dept. of Homel and Security, 410 Fed. Appx. 243, 247 (III) (11th Cir. 2011). We therefore hold that the evidence presented by the City here satisfies its burden to articulate some legitimate, nondiscriminatory reason for Tuohy’s termination. See id.

(b) Because the City has met its burden regarding its proffer of a nondiscriminatory reason for Tuohy’s termination, the burden shifts for Tuohy to show that each proffered reason was a pretext. Adams, supra, 569 Fed. Appx. at 772.

In discussing this issue, [the Georgia] Supreme Court has held that pretext is established by a direct showing that a discriminatory reason more likely motivated the [defendant] or by an indirect showing that the [defendant’s] explanation is not credible. To avoid summary judgment, a plaintiff must present significantly probative evidence on the issue of pretext because the plaintiff has the burden of establishing pretext.

(Citations and punctuation omitted.) Bailey v. Stonecrest Condo Assn., 304 Ga. App. 484, 491 (1) (b) (696 SE2d 462) (2010). And the Eleventh Circuit has articulated the burden of establishing pretext as follows:

A reason is not pretextual unless it is shown both that the reason was false, and that discrimination or retaliation was the real reason. If the proffered reason is one that might motivate a reasonable employer, an employee must meet that reason head on and rebut it, and the employee cannot succeed by simply quarreling with the wisdom of that reason, or showing that the decision was based on erroneous facts.

(Citation and punctuation omitted.) Tarmas v. Secretary of the Navy, 433 Fed. Appx. 754, 761 (III) (B) (11th Cir. 2011); see Bennett v. Chatham County Sheriff Dept., 315 Fed. Appx. 152, 159 (II) (11th Cir. 2008).

Under either directive, Tuohy has failed to show that the reason for his termination was pretextual. Tuohy argues that the termination was pretextual because the City offered him no reason for its decision on the day he was terminated, provided no documentary evidence from his personnel file to support its assertion that it terminated him for performance issues, and did not assert until April 2012 that another proffered reason for his termination was the telephone complaint. Even if these assertions are true, they do not “present a basis for the disbelief of the [City’s] overall justification.” (Citation and punctuation omitted; emphasis in original.) Blockum v. Fieldale Farms Corp., 275 Ga. 798, 802 (4) (573 SE2d 36) (2002). The City informed Tuohy the day after his termination that he was terminated for performance reasons, and even without the telephone complaint, the improper approval of duplicate wires occurred only weeks prior to his termination. Tuohy’s assertions are not a direct showing that a discriminatory reason more likely motivated the City. See Benjamin v. SNF Holding Co., No. 14-13218, 2015 U.S. App. LEXIS 3764, at *10-11 (III) (11th Cir., March 11, 2015) (summary judgment proper where employee failed to present evidence that employer was motivated by discriminatory intent).

Moreover, Tuohy has failed to make an indirect showing that the City’s explanation is not credible, or, as stated by the Eleventh Circuit, failed to rebut the reasons given by the City for his termination. See Tarmas, supra, 433 Fed. Appx. at 761 (III) (B). To the contrary, he conceded that he was responsible for a duplicate wire transfer. He also admitted calling the husband of a former girlfriend, although he could not recall whether he called from a City phone number, and that he told the husband “that he could be deported for” leaving him threatening voicemails. Tuohy admitted that he was angry during the conversation, but denied threatening the husband. This evidence, taken in its totality, fails to rebut the reasons given by the City for his termination. See Benjamin, supra (where employee was discharged for deficient work performance, employee did not meet the reason head on and cannot succeed by merely “quarreling with the wisdom” of the employer’s reasons).

Decided March 30, 2015.

Gary R. Kessler, for appellant.

Robert N. Godfrey, Kristi D. A. Matthews, Y. Soo Jo, for appellees.

Tuohy’s assertions here are insufficient to raise a genuine issue of material fact regarding whether the City’s reasons for his termination were a pretext for retaliation. See Crawford v. City of Fairburn, 482 F3d 1305, 1309 (III) (11th Cir. 2007) (summary judgment proper for employer where employee failed to rebut reasons given for termination); see also Tiggs-Vaughn v. Tuscaloosa Housing Auth., 385 Fed. Appx. 919, 923 (11th Cir. 2010) (assertion of pretext insufficient where employee failed to present any evidence to counter employer’s claim that she was disruptive employee). For this reason, the trial court did not err in granting the City’s motion for summary judgment on Tuohy’s whistleblower claim. See Crawford, supra, 482 F3d at 1309 (III).

Judgment affirmed.

Barnes, P. J., and Branch, J., concur.

       While Tuohy’s verified complaint averred that he received this e-mail, he testified in his deposition that he did not have a copy of this communication because it was “on my desk, at the City of Atlanta.”

       Jaskulak testified that Tuohy merely inquired how to process the invoice and did not express concern about the instructions he received from DeFoor.

       We note that Georgia courts have adopted this framework to analyze state discrimination cases. See Bailey v. Stonecrest Condo Assn., 304 Ga. App. 484, 488 (1) (696 SE2d 462) (2010).

       As noted in Freeman, supra, not all states have adopted the McDonnell Douglas framework. See id. at 429 (1). But our research has discovered at least 34 states that have adopted it for cases involving violations of state law and allegations of discrimination or retaliation, including whistleblower claims. See Road v. Alaska State Comm. for Human Rights, 86 P3d 899, 904 (III) (B) (Alaska 2004); Johnson v. Windstream Communications, 2012 Ark. App. 590 (2012); Yanowitz v. L’Oreal USA, 116 P3d 1123, 1130 (II) (Cal. 2005); Mele v. City of Hartford, 855 A2d 196, 206 (I) (Conn. 2004); Gary v. R.C. Fabricators, No. 11C-12-208, at *67-68, 2014 Del. Super. LEXIS 420 (Del. Super. Ct., July 30, 2014); Bryant v. District of Columbia, 102 A3d 264, 267-268 (II) (D.C. 2011); St. Louis v. Florida Intl. Univ., 60 S3d 455, 458-459 (Fla. Dist. Ct. App. 2011); Stucky v. Brown, No. 26463, 2007 Haw. LEXIS 157, at *37 (XIV) (Haw., May 31, 2007); Frogley v. Meridian Joint School District No. 2, 314 P3d 613, 619 (V) (A) (Idaho 2013); Unger v. Sirena Div. of Consolidated Foods Corp., 377 NE2d 266, 272 (Ill. App. Ct. 1978); Fuller v. Allison Gas Turbine Div., 670 NE2d 64, 68 (II) (Ind. 1996); White v. Tomasic, 69 P3d 208, 211 (Kan. Ct. App. 2003); Kentucky Dept. of Corrections v. McCullough, 123 SW3d 130, 133-134 (II) (A) (Ky. 2003); Burnett v. East Baton Rouge Parish School Bd., 99 S3d 54, 59 (La. Ct. App. 2012); DiCentes v. Michaud, 719 A2d 509, 514 (IV) (Md. 1998) (whistleblower act case); Dept. of Nat. Resources v. Heller, 892 A2d 497, 510-511 (Md. 2006) (whistleblower act case); Jackson v. Suffolk County Sheriff’s Dept., No. 08-P-470, 2009 Mass. App. Unpub. LEXIS 363, at *1 (Mass. App. Ct., April 9, 2009) (whistleblower act case); Debano-Griffin v. Lake County, 828 NW2d 634, 638 (III) (Mich. 2013); Grundtner v. Univ. of Minn., 730 NW2d 323, 329 (I) (Minn. Ct.App. 2007) (whistleblower act case); Helvering v. Union Pacific R. Co., 703 NW2d 134, 146-154 (Neb. Ct.App. 2005); Appeal of Seacoast Fire Equip. Co., 777 A2d 869, 872 (I) (N.H. 2001) (whistleblower act case); Winters v. North Hudson Regional Fire & Rescue, 50 A3d 649, 662 (V) (N.J. 2012) (whistleblower act case); Juneau v. Intel Corp., 127 P3d 548, 551 (N.M. 2005); Nofal v. Jumeirah Essex House, No. 5627/2011, 2013 N.Y. Misc. LEXIS 2289, at *13 (B) (N.Y. App. Div., May 14,2013); Manickavasagar v. N. C. Dept. of Public Safety, 767 SE2d 652, 659 (III) (B) (N.C. Ct.App. 2014) (whistleblower act case); Heng v. Rotech Medical Corp., 720 NW2d 54, 60 (III) (N.D. 2006) (whistleblower act case); Kudla v. Olympic Steel, No. 101104, at *66-67 (III) (B), 2014 Ohio App. LEXIS 5003 (Ohio Ct.App., November 20, 2014); Uber v. Slippery Rock Univ. of Penn., 887 A2d 362, 367 (Pa. Commw. Ct. 2005); Shoucair

        v. Brown Univ., 917 A2d 418, 426-427 (II) (B) (R.1.2007); Lord v. Hy-Vee Food Stores, 720 NW2d 443, 449-450 (B) (S.D. 2006); Brown v. CB&I, Inc., No. 09-12-00521-CV, at *17 (IV) (B) (2), 2014 Tex. App. LEXIS 505 (Tex. Ct. App., January 16, 2014); Viktron/Lika Utah v. Labor Comm., 38 P3d 993, 995 (Utah Ct. App. 2001); Griffis v. Cedar Hill Health Care Corp., 967 A2d 1141, 1145-1146 (I) (Vt. 2008); Davis v. The Washington State Patrol, No. 71736-7-1, at *26, 2014 Wash. App. LEXIS 2438 (Wash. Ct. App., October 13, 2014).
      The McDonnell Douglas framework is also used for federal court actions brought pursuant to the Whistleblower Protection Act, 5 USCS § 2302. See Ivey v. Paulson, 222 Fed. Appx. 815 (11th Cir. 2007).

       We acknowledge the concerns raised in Freeman, supra, regarding the potential difficulties in applying this framework. 324 Ga. App. at 429 (1). We therefore take this opportunity to encourage trial courts to be mindful not to weigh evidence or assess the credibility of witnesses in applying the framework on whistleblower claims at the summary judgment stage.

       We find the Eleventh Circuit cases using the McDonnell Douglas framework to analyze federal discrimination and retaliation cases persuasive. See McKeen v. Fed. Deposit Ins. Corp., 274 Ga. 46, 48, n. 1 (549 SE2d 104) (2001) (“While this Court is not bound by decisions of the Eleventh Circuit construing federal law, they are persuasive.”).