text:
    A10A1787.
    SHIVA MANAGEMENT, LLC et al. v. WALKER et al.
    (708 SE2d 710)
   Dillard, Judge.

Shiva Management, LLC (“Shiva”), and the estate of its sole member and owner, William Gottlieb (collectively “Shiva/Gottlieb”), appeal a grant of summary judgment in favor of Joe Walker and Linda Jackson (collectively “Walker/Jackson”) on their claim against them for slander of title. Shiva/Gottlieb contend that the trial court erred in (1) precluding jury consideration of whether a lien filed against the subject property was slanderous or libelous, (2) precluding jury consideration of whether Shiva/Gottlieb acted with malice, and (3) considering the motion for summary judgment after it was untimely filed. Because we conclude that there are genuine issues of material fact precluding summary adjudication, we reverse and remand this case with direction.

Viewing the facts in the light most favorable to the nonmovants (Shiva/Gottlieb), as we are required to do in a summary-judgment action, the record shows that Gottlieb first met Walker at a makeshift flea market in DeKalb County, which Walker operated on property owned by Jackson. Gottlieb was an occasional customer, and he repeatedly expressed to Walker an interest in purchasing the subject property. Walker initially advised Gottlieb that he was not interested in selling the property (that unbeknownst to Gottlieb he did not own), but eventually “agreed” to enter into a contract for the sale of the property in exchange for a loan of $7,000 through Gottlieb’s real estate investment firm, Shiva. This loan was memorialized in a promissory note and deed to secure debt, both of which were signed by Jackson (who was acting as a pass through for Walker). The deed to secure debt gave Shiva a second position security interest in the property, and the loan was to be repaid with interest on or before June 23, 2004. In connection with the loan transaction, Jackson and Walker both signed a sales contract with Gottlieb, agreeing to sell the property for $170,000 on or before June 23, 2004. In signing the sales contract, Gottlieb made no explicit reference to Shiva.

The sales contract provided that “time is of the essence” and gave Gottlieb the right to specific performance. Additionally, at the same time the sales contract was executed, Gottlieb signed an affidavit of filing and recorded this document along with the sales contract as an attachment. In this affidavit, Gottlieb averred that the “undersigned [Shiva] has vested interests!,] including specific performance of the contract.” Gottlieb claims that he intended to sign the sales contract in his corporate capacity and that his failure to do so was inadvertent, and he further argues that the affidavit of filing effectively assigned any “vested interest” he had in the sales contract to Shiva pursuant to the assignment clause contained in that contract. Thereafter, from February to June 2004, Shiva/ Gottlieb assert that they contacted Walker on numerous occasions in an effort to set a closing date for the subject property, advising that they were fully prepared to pay the entire purchase price in cash. Notwithstanding these efforts, as of June 23, 2004, the loan had not been repaid and the sale of the property had not closed.

The situation became even murkier in August 2004 (a little over a month after the expiration of the sales contract), when Jackson purportedly quitclaimed to Walker a 50 percent interest in the subject property. Then, in September 2004, Shiva recorded an “Affidavit-Notice of Contract/Claim of Beneficial Interest Lien” in the DeKalb County real-estate records, claiming a lien on the subject property by virtue of the unsatisfied sales contract and the specific-performance provision contained therein.

In April 2006, Jackson authorized Walker, through a general power of attorney, to handle certain aspects of her financial affairs (including real-estate transactions). Almost a year later, in March 2007, Walker filed suit against both Shiva/Gottlieb for fraud and slander of title, alleging that Shiva’s lien against the property was (1) false, (2) clouded his title, and (3) prevented him from taking out additional loans on the subject property. Shiva/Gottlieb answered and filed counterclaims for conspiracy, fraud, breach of contract, and specific performance, and sought to add Jackson as a party. In October 2009, Walker/Jackson moved for summary judgment on their slander-of-title claim, which the trial court granted. This appeal follows.

At the outset, we note that when a party moves for summary judgment, this “does not authorize the trial court to sit as both judge and jury, weighing the evidence and deciding issues that are traditionally for the jury.” Instead, “[t]he sole function of the court on a motion for summary judgment is . . . to determine whether there exists a genuine issue of material fact.” And here, having viewed the facts in the light most favorable to Shiva/Gottlieb, we find for the reasons noted infra that genuine issues of material fact precluded the trial court’s grant of summary adjudication.

1. First, there is a genuine issue of material fact as to whether Shiva was a party to the sales contract. As noted supra, at the time the sales contract was executed contemporaneously with the promissory note and deed to secure debt (both of which identified Shiva as the party to those agreements), Gottlieb executed an affidavit of filing claiming specifically that Shiva (not Gottlieb) had a vested interest in the subject property pursuant to the sales contract, and this affidavit was then recorded along with the contract as an attachment. These contemporaneous filings, considered together, create an ambiguity as to whether Gottlieb signed the sales contract in his personal or corporate capacity. Moreover, even if there were no evidence that Shiva was a party to the sales contract, this would merely mean that Gottlieb himself had a vested interest in the contract, as noted infra.

2. Having concluded that a genuine issue of material fact remains as to whether Shiva or Gottlieb was the optionee to the sales contract, we will now consider whether the trial court erred in concluding that Shiva/Gottlieb did not have a vested interest in the property because of a failure to exercise the option contained in the sales contract to purchase the subject property. Specifically, the trial court found that Shiva/Gottlieb failed to exercise this option because they never (1) “obtained or applied for financing to purchase the subject property,” (2) “set up a closing with a closing attorney,” or (3) “contacted Linda Jackson, the owner of the subject property, to close the subject property.” We will address each of these findings in turn.

The relevance of Shiva/Gottlieb failing to obtain or apply for financing is difficult to discern at the summary-judgment stage of these proceedings, given Gottlieb’s claim that he told Walker he was fully prepared to tender the entire purchase price for the subject property in cash at closing. And indeed, Walker admitted that he understood Gottlieb to be a man of significant wealth. Until this disputed fact is resolved, any consideration of Shiva/Gottlieb’s alleged failure to obtain or apply for financing is premature.

Likewise confusing is the trial court’s finding that Shiva/Gottlieb failed to exercise its option to purchase the subject property because they “failed to set up a closing with a closing attorney.” As noted supra, Gottlieb claimed that he attempted to set up a closing date with Walker on several occasions, offered to tender the full purchase price in cash at closing, and was precluded from scheduling a closing because Walker flatly refused to comply with and honor the sales contract. If Shiva/Gottlieb can establish that they failed to schedule a closing on the subject property because Walker refused to sell (or to allow Jackson to sell) the property, then Walker/Jackson cannot rely upon or benefit from such a failure as a means of establishing that Shiva/Gottlieb failed to exercise the option to purchase the property.

Finally, while it is undisputed that Shiva/Gottlieb had no communications with Jackson—the only owner of the subject property during the time period outlined in the sales contract—about exercising the option to purchase the subject property, this fact, in and of itself, cannot serve as a basis for summary adjudication given the current state of the evidentiary record. Indeed, there is a significant amount of evidence that both Walker and Jackson represented to Shiva/Gottlieb—explicitly and/or through their conduct—that Walker was either an owner in the subject property, a person with a vested (but perhaps unperfected) interest in the property, or, at the very least, a person with the apparent authority to act as the equivalent of Jackson’s agent/broker with respect to the property. Moreover, it is undisputed that Jackson’s interest in the subject property was only revealed to Shiva/Gottlieb when Gottlieb’s attorney conducted a title search and informed Gottlieb that Jackson was in the chain of title, and yet both Walker and Jackson signed a contract that explicitly stated that they both held an interest in the property. In any event, for purposes of our review, we need not conclusively decide whether Walker had any actual interest in or authority with respect to the subject property during the sales-contract period. All we conclude today is that there are genuine issues of material fact as to whether Shiva/Gottlieb were justified in their belief that Walker had at least apparent authority to deal on Jackson’s behalf while Shiva/Gottlieb were attempting to exercise the option to purchase the subject property. And the resolution of this disputed fact is necessary prior to considering whether Shiva/Gottlieb are entitled to rely upon the futile-tender rule.

3. Having concluded that there are genuine issues of material fact as to whether Shiva has a vested interest in the sales contract (or, alternatively, that Gottlieb possessed such an interest) and whether Shiva/Gottlieb lawfully exercised the option provided by that contract to purchase the subject property, we need not address the trial court’s remaining findings of fact because the contested issues addressed herein must be resolved prior to any consideration of the plaintiffs’ slander-of-title claim.

In sum, if either Shiva or Gottlieb lawfully exercised the option to purchase the subject property (thereby transforming the contract into one for the sale of land and thus passing equitable title to Shiva/Gottlieb), and Walker/Jackson flatly refused to sell the property as required by the sales contract, then there remains a question as to whether Walker/Jackson even have standing to maintain their slander-of-title action. While we do not hold such at this time, it is difficult to conceptualize a legal basis for a breaching seller of land to maintain a slander-of-title action against a non-breaching buyer for filing a lien of beneficial interest on a piece of property to which he already holds equitable title.

Additionally, even if on remand the trial court concludes that neither Shiva nor Gottlieb held equitable title to the subject property at the time the lien was filed and, thus, that the lien was false, it must still consider whether Shiva/Gottlieb genuinely believed they held such title in considering the merits of Walker/Jackson’s slander-of-title claim. If the trier of fact resolves this question in favor of Shiva/Gottlieb, then Walker/Jackson’s slander-of-title claim fails.

Decided March 29, 2011.

Richard S. Alembik, Willis L. Miller TV, for appellants.

Ayouh & Mansour, John A. B. Ayoub, John G. Mansour, for appellees.

Given the foregoing, we conclude that the genuine issues of material fact noted supra precluded the trial court’s grant of summary judgment in favor of Walker/Jackson. As such, we reverse the trial court’s order and remand the case for further proceedings consistent with this opinion.

Judgment reversed and case remanded with direction.

Barnes, P. J., and Blackwell, J., concur in judgment only.

        See, e.g., Furlong v. Dyal, 246 Ga. App. 122, 123 (1) (539 SE2d 836) (2000).

       Walker signed the sales contract even though he had no ownership interest in the subject property at that time.

       Gottlieb produced a letter—purportedly written to Walker prior to the expiration of the contract—in which he stated, “I am waiting on you to close on the house, which I would like to do in the next ten days. I realize you are having some second thoughts, but we do have a contract. Please give me a call to set up a time with the attorney . . . .”

        Re/Max Specialists, Inc. v. Kosakai, 202 Ga. App. 871, 872 (415 SE2d 698) (1992) (citation and punctuation omitted).

        Id. at 872 (citation and punctuation omitted).

        See, e.g., Furlong, 246 Ga. App. at 123 (1).

        See OCGA § 24-6-3 (a) (“All contemporaneous writings shall be admissible to explain each other.”); OCGA § 24-6-3 (h) (“Parol evidence shall be admissible to explain all ambiguities, both latent and patent.”); see also Baker v. Jellibeans, Inc., 252 Ga. 458, 459 (1) (314 SE2d 874) (1984) (“Parol evidence shall be admissible to explain all ambiguities, both latent and patent. This is so despite an ‘entire agreement’ clause in the contract.” (citation and punctuation omitted)); Newbern v. Chapman Funeral Chapel, 158 Ga. App. 790, 790 (282 SE2d 379) (1981) (reversing grant of summary judgment, in part, where defendant “denied that his signature was in any capacity other than as a representative of his wife”). Compare Bennett v. Clark, 192 Ga. App. 698, 699 (385 SE2d 780) (1989) (“There being no independent evidence in the record to refute these averments and to support the appellant’s position that [another individual] was acting as his fiduciary in dealing with the sellers, we conclude that the trial court was also correct in entering summary judgment against the appellant with respect to his claim against these appellees.”).

        See A.S. Reeves & Co. v. McMickle, 270 Ga. App. 132, 133 (605 SE2d 857) (2004) (noting that option contracts become contracts upon acceptance); see also Martin v. Schindley, 264 Ga. 142, 143 (442 SE2d 239) (1994); Varn Turpentine & Cattle Co. v. Allen & Newton, 38 Ga. App. 408, 408 (3) (144 SE 47) (1928).

       For a purchaser to have entitlement to seek specific performance of a contract, he “must make an unconditional tender of the purchase money due.” Fox Run Props., LLC v. Murray, 288 Ga. App. 568, 573 (2) (b) (654 SE2d 676) (2007) (citation omitted). However, such tender is “excused or waived where the seller, by conduct or declaration, proclaims that if a tender should be made, acceptance would be refused.” Id. (emphasis supplied) (citation and punctuation omitted). This is because “[t]he law does not require a futile tender or other useless act.” Id. (punctuation omitted).

       The sales contract provided that the buyer was to apply for a loan within fourteen (14) days of the binding agreement date. Gottlieb admitted that the contract contained such a provision, but he asserted that the provision requiring him to acquire funding prior to the closing applied only if that funding was needed.

        Compare Covington v. Countryside Investment Co., 263 Ga. 125, 126 (1) (428 SE2d 562) (1993) (“[Appellants] introduce) ] no evidence that they had ever notified appellee that they wished to waive the financing contingency and that they were ready, willing, and able to pay for the property without financing. Most significantly, there was no evidence that appellants had at any time made an unconditional tender of the purchase price provided in the contract.”).

        Cf. Barkley-Cupit Enters., Inc. v. Equitable Life Assur. Soc. of U.S., 157 Ga. App. 138, 142 (2) (276 SE2d 650) (1981) (holding that issue of fact remained as to whether seller waived necessity of buyer’s timely performance).

       In addition to his testimony, Gottlieb produced a diary of sorts (that purportedly contains notations of his oral communications with Walker), which indicates that Walker first told Gottlieb that he was simply not prepared to close, and that Walker eventually flat out refused to sell the subject property.

        See OCGA § 13-4-23 (“If the nonperformance of a party to a contract is caused by the conduct of the opposite party, such conduct shall excuse the other party from performance.”); see also Simprop Acquisition Co. v. L. Simpson Charitable Remainder Unitrust, 305 Ga. App. 564, 567 (1) (b) (699 SE2d 860) (2010) (noting that OCGA § 13-4-23 applies to option contracts).

       Gottlieb claimed that he never communicated with Jackson about setting up a closing because, in his words, he viewed Jackson as “an ancillary figure.” More precisely, Gottlieb did not contact Jackson because he had exclusively discussed the land-sale deal with Walker and thought Walker had authority to act with respect to the subject property.

       There is evidence in the record that might shed light on Gottlieb’s confusion as to the identity of the property owner. Walker and Jackson actually lived together at the residence located on the subject property for approximately a year, and Jackson testified that she considered her relationship with Walker to be a “common law” marriage. Moreover, Walker and Jackson both testified that, because Walker had a sub-par credit rating, he transferred title to the subject property to Jackson in order to borrow against the property.

       Indeed, Jackson, who was apparently the 100 percent owner of the subject property, signed a sales contract regarding her property that explicitly represented Walker as having some degree of interest in that property. As Shiva/Gottlieb aptly notes on appeal, “Yes, Walker signed an agreement to sell property he did not own at that time.”

       Gottlieb testified that in March 2003, months before the sales contract was signed, he discussed the provisions of the agreement with Walker exclusively and Walker never mentioned Jackson’s ownership of the property. And Walker even admitted that he never told Gottlieb he was not the owner of the property. Gottlieb further testified that despite Jackson’s status as the sole signatory on the promissory note and deed to secure debt, he personally did not realize (until litigation) that Jackson owned a 100 percent interest in the property. While this assertion may, as the trial court implied in its order, strain credulity, Gottlieb’s true knowledge of the extent of Jackson’s ownership in the subject property is of no consequence if he or Shiva had reason to believe that Jackson vested Walker with the authority to act on her behalf.

       The trial court’s order did not address whether Walker had the authority or apparent authority to act on Jackson’s behalf with respect to the subject property. Read literally, the trial court’s order seems to be suggesting that one who holds an option to purchase land must always deal directly with the owner(s) of the property at issue and may not rely upon any representation made by an agent of the seller, or a person with the apparent authority to represent the seller, with respect to that property. This is not the law in Georgia. See Turnipseed v. Jaje, 267 Ga. 320, 323-24 (2) (a) (477 SE2d 101) (1996) (explaining that a person is entitled to reasonably rely on one who has the apparent authority to act on behalf of another); see also Commercial Credit Corp. v. Noles, 85 Ga. App. 392, 396-97 (69 SE2d 309) (1952) (“[T]he principal may not assert that his agent has authority less extensive than that apparent authority which is reasonably deducible from the conduct of the parties.” (citations omitted)). Cf. Dealers’ Discount Corp. v. Trammell, 98 Ga. App. 748, 751 (106 SE2d 850) (1958) (holding that the plaintiff must suffer the loss when he or she clothes another with apparent authority and thereby enables that person to perpetrate a wrongful act).

        See Fox Run Props., 288 Ga. App. at 573 (2) (b) (noting that actual tender is “excused or waived where the seller, by conduct or declaration, proclaims that if a tender should be made, acceptance would be refused.” (citation and punctuation omitted)); Kennedy v. Droughton Trust, 277 Ga. App. 837, 841 (2) (627 SE2d 887) (2006) (same).

        See A.S. Reeves & Co., 270 Ga. App. at 133 (noting that option contracts become contracts upon acceptance); see also Buck v. Duvall, 9 Ga. App. 656, 656 (72 SE 44) (1911) (“The execution and delivery of the bond for title creates a special form of trust estate. The equitable title, charged with the payment of the purchase money, passes to the vendee, and the vendor holds the legal title charged with the use that, while it may be asserted to secure the payment of the purchase money in full, nevertheless, as soon as the purchase money is paid, it (legal title) is to pass to the vendee, his heirs or assigns.” (citation and punctuation omitted)). Cf. Martin, 264 Ga. at 143; Varn Turpentine & Cattle Co., 38 Ga. App. at 408 (3).

        See Horner v. Savannah Val. Enters., Inc., 234 Ga. 371, 375 (216 SE2d 113) (1975) (“[T]he law recognizes that title is held in trust for the purchaser.”); see also Midwest Glass Co. v. Standford Dev. Co., 339 NE2d 274, 278 (Ill. App. 1975) (“[I]f a party has reasonable grounds to believe that he had legal or equitable title or even a claim, then assertion of this claim does not amount to slander of title.” (citation omitted)).

        See Roofing Supply of Atlanta, Inc. v. Forrest Homes, Inc., 279 Ga. App. 504, 508 (3) (632 SE2d 161) (2006) (in a slander-of-title action, statements in a lien must be false and the publishing party must know that the statements are false); Simmons v. Futral, 262 Ga. App. 838, 848 (586 SE2d 732) (2003) (same); see also OCGA § 51-5-7 (3) (“Statements made with a good faith intent on the part of the speaker to protect his or her interest in a matter in which it is concerned [are deemed privileged].”); Sassafras Mountain Estates Prop. Owners Ass’n, Inc. v. Gould, 302 Ga. App. 690, 692 (3) (691 SE2d 600) (2010) (holding that there were issues of fact as to whether a lien at issue in a slander-of-title action was filed in good faith); Harmon v. Cunard, 190 Ga. App. 19, 20 (378 SE2d 351) (1989) (holding that testimony supported appellee’s claim of good faith in filing lien). Compare Lee v. Washington Square Homeowners’ Ass’n, Inc., 273 Ga. App. 392, 396 (2) (615 SE2d 210) (2005) (affirming grant of summary judgment in favor of defendant on plaintiffs slander-of-title claim when plaintiff failed to show the requisite malice) with Compris Techs., Inc. v. Techwerks, Inc., 274 Ga. App. 673, 681 (4) (618 SE2d 664) (2005) (holding that plaintiff presented jury with sufficient evidence from which it could infer malice); Lincoln Log Homes Mktg., Inc. v. Holbrook, 163 Ga. App. 592, 594 (2) (295 SE2d 567) (1982) (holding that jury was authorized to determine from the evidence that publisher of statement knew its claim of lien was false). In this regard, we note that the trial court relied on an improper standard in determining as a matter of law that Shiva/Gottlieb maliciously filed the lien, and on remand, the cases supra provide the appropriate standard.

       To prevail on a claim of slander of title, a plaintiff must show (1) the publication of slanderous words; (2) that the words were false; (3) that the words were malicious; (4) that the publication resulted in special damages; and (5) that the words regarded property in which the plaintiff has an ownership interest. See Latson v. Boaz, 278 Ga. 113, 114 (598 SE2d 485) (2004); Shoen v. Md. Cas. Co., 147 Ga. 151, 153 (93 SE 82) (1917); Roofing Supply of Atlanta, Inc., 279 Ga. App. at 508 (3); Simmons, 262 Ga. App. at 848; Daniels v. Johnson, 191 Ga. App. 70, 73 (2) (381 SE2d 87) (1989); Harmon, 190 Ga. App. at 19; see also OCGA § 51-9-11.


source: Caselaw Access Project

author: PHIPPS, Presiding Judge.

license: Public Domain

text:
    A10A1835.
    WATERS v. CHASE MANHATTAN BANK.
    (709 SE2d 37)
   PHIPPS, Presiding Judge.

Alphonso Waters appeals from the grant of a writ of possession to Chase Manhattan Bank in the latter’s action to foreclose upon its security interest in a motor vehicle. Waters contends that the court erred in (1) ordering a writ of possession to be executed immediately upon the entry of judgment against him, and then subsequently (2) ordering him to make a payment into the court registry. For the reasons that follow, we affirm the order granting the writ of possession. However, we have no jurisdiction to consider Waters’s appeal from the payment order.

Chase Manhattan filed a petition to foreclose upon its security interest in June 2009. In the petition, Chase Manhattan sought a writ of possession for the vehicle described in the security agreement. Waters filed an answer denying the indebtedness and asserting various other defenses and counterclaims. On August 4, 2009, after hearing evidence, the trial court issued an order granting the foreclosure petition, dismissing Waters’s counterclaims for want of prosecution, ordering Waters to pay a specified sum to Chase Manhattan by “[September 14, 2009] and retain [possession of the property,” and ordering Chase Manhattan to complete and file a writ of possession and “[t]urnover [o]rder.” On August 4, 2009, the same date the order was entered on the foreclosure petition, the court issued a turnover order (in which it directed Waters to turn over the vehicle to law enforcement officers), and a writ of possession (wherein it directed law enforcement officers to levy and surrender the vehicle to Chase Manhattan). On August 21, 2009, Waters filed a notice of appeal from the August 4, 2009 order granting the writ of possession.

1. Waters contends that the court’s August 4, 2009 order issuing the writ of possession is void because it allowed for the immediate execution of the writ of possession, when OCGA § 9-11-62 prohibits execution on a judgment until ten days after judgment is entered.

OCGA § 9-11-62 (a) provides, in pertinent part, that “[n]o execution shall issue upon a judgment nor shall proceedings be taken for its enforcement until the expiration of ten days after its entry[.]” Here, the court entered judgment granting the petition to foreclose and issued a writ of possession on the same date. At the same time, however, the order granting the foreclosure petition provided that Waters would “retain [possession of the property.”

It is well settled that the burden is on the appellant to establish both error and harm. Error which is harmless will not be cause for reversal. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantive rights of the parties.

Even if the trial court erred in issuing a writ of possession on the same day it entered judgment, in this case there has been no showing of harm. The purpose of OCGA § 9-11-62 (a) is to provide the party against whom a judgment has been entered the right to be free from execution and enforcement of the judgment for ten days in order to determine his future course of action, be it a post-trial motion or an appeal. Waters has not shown, or even claimed, that the writ of possession was executed before the ten-day period expired and before he had the opportunity to determine his future course of action. Inasmuch as Waters has not shown that his substantive rights were affected by the premature issuance of the writ, he has presented no basis for reversal.

Decided March 29, 2011.

Valerie G. Adams, Grady A. Roberts III, for appellant.

Lefkoff, Rubin & Gleason, Philip L. Rubin, for appellee.

2. Waters contends that the trial court erred when it entered an order in April 2010 requiring him to pay money into the court registry. The order complained of, however, was entered subsequent to the August 2009 filing of the notice of appeal from the order granting the writ of possession. Accordingly, Waters’s challenge to the April 2010 order is not properly before this court and we lack jurisdiction to consider it.

Judgment affirmed.

Miller, P. J., and McFadden, J., concur.

       See Miller Grading Contractors v. Georgia Fed. Sav. & Loan Assn., 247 Ga. 730, 734 (3) (279 SE2d 442) (1981).

       Id.

       OCGA § 9-11-61; Miller Grading Contractors, supra.

        Landau v. Davis Law Group, 269 Ga. App. 904, 908 (4) (605 SE2d 461) (2004); see Bank South, N.A. v. Roswell Jeep Eagle, 200 Ga. App. 489, 490 (3) (408 SE2d 503) (1991).

       See generally Miller Grading Contractors, supra (court must disregard error or defect in proceeding which does not affect the substantial rights of the parties).

       See Landau, supra at 908-909 (4); Robenolt v. Chrysler Financial Svcs., 201 Ga. App. 168, 170 (4) (a) (410 SE2d 365) (1991).

       See Lowe v. Watson, 228 Ga. 393 (1) (185 SE2d 774) (1971); Cates v. Cates, 225 Ga. 612, 613 (2) (170 SE2d 416) (1969); Hester v. Human, 211 Ga. App. 351, 352-353 (1) (439 SE2d 50) (1993); Costanzo v. Jones, 200 Ga. App. 806, 811 (3) (409 SE2d 686) (1991) (determining that appeals court lacked jurisdiction to consider ruling entered subsequent to filing of notice of appeal).


author: BARNES, Presiding Judge.

text:
    A10A2021.
    HOLOWIAK v. THE STATE.
    (709 SE2d 39)
   BARNES, Presiding Judge.

Following a jury trial, Nicholas J. Holowiak was found guilty of DUI (per se), OCGA § 40-6-391 (a) (5), and after the denial of his motion for new trial, he appeals. He enumerates numerous errors on appeal, and following our review, and for the reasons that follow, we affirm.

We note initially that Court of Appeals Rule 25 (c) (2) (i) provides that “[e]ach enumerated error shall be supported in the brief by specific reference to the record or transcript. In the absence of such reference, the Court will not search for or consider such enumeration.” It is not the function of this court to cull the record on behalf of a party in search of instances of error. Lewis v. State, 245 Ga. App. 234, 235 (2) (537 SE2d 111) (2000). It is particularly burdensome when the Court must cull through a 24-volume record to consider overlapping enumerations of error. Further, the argument portion of Holowiak’s brief contains no citations to the record at all. Given the shortcomings of Holowiak’s brief, we would be authorized to dismiss it. See Court of Appeals Rule 7. Nevertheless, because the State has provided sufficient citations to the record, we will address the merits of Holowiak’s appeal to the best of our ability.

This is the second appearance of this case before this Court. In Holowiak v. State, 295 Ga. App. 474 (672 SE2d 454) (2009), the trial court denied Holowiak’s discovery motion related to the Intoxilyzer 5000 software “source code.” We granted his motion for an interlocutory appeal of the order and affirmed the trial court, finding among other things that if Holowiak had enumerated as error the trial court’s finding that the State did not possess or control the source code, Holowiak “failed to meet his prima facie burden of showing the State had possession, custody or control of the source code.” Id. at 475 (1). See Hills v. State, 291 Ga. App. 873, 873-874 (663 SE2d 265) (2008). We also affirmed the trial court’s denial of Holowiak’s motion to suppress in which he challenged the roadblock. Holowiak v. State, 295 Ga. App. at 475 (2).

The case proceeded to trial in September 2009, and the jury found Holowiak not guilty of DUI (less safe), but could not reach a verdict on the DUI (per se) so the trial court declared a mistrial. When the case was re-tried on January 15, 2010, the jury found Holowiak guilty of DUI (per se), and it is from the denial of his motion for new trial on this conviction that he now appeals.

Viewed in the light most favorable to the verdict, Davis v. State, 275 Ga. App. 714, 715 (1) (621 SE2d 818) (2005), the evidence shows that during an early morning roadblock Holowiak was stopped by a deputy with the Cherokee County Sheriffs office. The officer smelled a strong odor of alcohol on Holowiak’s breath, and observed that his eyes were watery and glassy, and his face was flushed. Holowiak admitted that he had “a couple” of drinks at a college football game earlier in the evening. Holowiak consented to a preliminary breath test, which was positive for alcohol, after which he performed field sobriety evaluations, including the horizontal gaze nystagmus (HGN), the walk-and-turn, and the one-leg stand, all of which indicated to the officer that Holowiak was under the influence of alcohol. The officer arrested Holowiak for DUI, and then read him the implied consent notice. Holowiak consented to take the Intoxi-lyzer 5000 breath test, and the test was conducted in a mobile command unit located at the roadblock. Holowiak’s blood-alcohol content registered 0.125 on the testing device.

1. In two enumerations of error, Holowiak contends that the trial court erred by admitting evidence of his being a less safe driver, his alcohol impairment, and of the field sobriety tests. Holowiak essentially argues that the evidence was irrelevant and unrelated to the DUI (per se) charge, and unduly prejudiced his defense. We do not agree.

The admission of evidence is within the sound discretion of the trial court, and we will not disturb the trial court’s evidentiary decisions on appeal absent an abuse of discretion. See Smith v. State, 265 Ga. App. 236, 238 (4) (593 SE2d 695) (2004). “Unless the potential for prejudice substantially outweighs probative value, Georgia law favors the admission of relevant evidence, no matter how slight its probative value.” (Punctuation and footnote omitted.) State v. Adams, 270 Ga. App. 878, 881 (2) (609 SE2d 378) (2004). Evidence is relevant if it tends to prove or to disprove a material fact at issue, and every act or circumstance which serves to explain or throw light upon a material issue is relevant. See Sailor v. State, 265 Ga. App. 645, 648 (2) (595 SE2d 335) (2004). “[Questions of relevance are within the domain of the trial court, and, absent a manifest abuse of discretion, a court’s refusal to admit evidence on grounds of lack of relevance will not be disturbed on appeal.” (Citations and punctuation omitted.) Chapman v. State, 215 Ga. App. 340, 340-341 (449 SE2d 903) (1994).

“Field sobriety tests are not designed to detect the mere presence of alcohol in a person’s system, but to produce information” about the quantity of alcohol in the system. Kirkland v. State, 253 Ga. App. 414, 416 (559 SE2d 161) (2002) (officer’s testimony that HGN test correlated with Intoxilyzer results was relevant and admissible). Moreover, we have held that police officers may give opinion testimony regarding the state of a DUI suspect’s sobriety. Wrigley v. State, 248 Ga. App. 387, 392 (4) (546 SE2d 794) (2001) (officer’s testimony of his specific conclusions following each field test admissible to show defendant was less safe driver).

Here, Holowiak attacked the accuracy and reliability of the Intoxilyzer 5000. The officer testified that, based on his years of training and experience, he concluded that Holowiak’s performance on the field sobriety tests was consistent with a test result of 0.125 from the Intoxilyzer. Thus, the evidence of his field sobriety test was relevant to counter Holowiak’s attacks on the accuracy of the breath test. Likewise, the evidence of Holowiak’s impairment was relevant to establish the facts that were the basis for the DUI arrest.

2. In several related enumerations, Holowiak contends that the trial court erred in denying discovery of certain allegedly exculpatory evidence, including the Intoxilyzer 5000 source code through an out-of state witness, the breath machine that was used, and the mobile command unit in which the test was performed. He contends these rulings violated his constitutional right to confront witnesses.

In Stetz v. State, 301 Ga. App. 458, 461 (687 SE2d 839) (2009), this Court defined the scope of “full information” to which a DUI defendant is entitled under OCGA § 40-6-392 (a) (4) when the test of a person’s blood-alcohol concentration is determined by an Intoxi-lyzer machine. We held:

Unlike the gas chromatography test, which produces data that has to be interpreted by a chemist to determine blood alcohol level, an intoxilyzer does not produce raw data but rather prints out the actual test result showing the person’s blood alcohol level. In other words, the machine computes the test result. Therefore the only discoverable information from an intoxilyzer test under OCGA § 40-6-392 (a) (4) is the computer printout of the test result.

Id. Thus, the trial court did not abuse its discretion in denying Holowiak’s discovery request seeking the production of the mobile command unit in which the Intoxilyzer test was performed or the Intoxilyzer machine itself.

Holowiak contends that the trial court erred in denying his request for a subpoena to secure an out-of-state witness who could provide the Intoxilyzer 5000 source code, under the Uniform Act to Secure the Attendance of Witnesses from Without the State, OCGA § 24-10-90 et seq. “[F]or a witness from another state to be summoned to testify in this state he must be a necessary and material witness.” Chesser v. State, 168 Ga. App. 195, 196 (308 SE2d 589) (1983); OCGA § 24-10-92 (b). Moreover,

[a] party requesting the presence of an out-of-state witness does not have an absolute right to obtain the witness; the Act requires presentation of sufficient facts to enable both the court in the demanding state and the court in the state to which the requisition is directed to determine whether the witness should be compelled to travel to a trial in a foreign jurisdiction. The party seeking the witness has the burden of showing that the witness sought is a necessary and material witness to the case. And under the Act, the decision whether to grant the process is within the trial judge’s sound discretion.

(Citations and punctuation omitted.) Davenport v. State, 303 Ga. App. 401, 402 (693 SE2d 510) (2010).

Holowiak sought an out-of state subpoena duces tecum for a representative of CMI, Inc., the supplier of the Intoxylizer 5000 to law enforcement agencies in Georgia, to produce the software “source code” of the Intoxilyzer 5000 for inspection. The information would be used, among other things, to “determine the accuracy, reliability and admissibility of the results” of Holowiak’s breath test. Although Holowiak noted that there were pending allegations in other states of “problems with the Intoxilyzer 5000 breath test results based upon breathing patterns,” and that the information would be used “as applied to [his] particular health and physical issues,” he did not allege that he actually had a physical or health issue that might affect the results of the breath test, much less present any evidence about it.

A trial court does not abuse its discretion in refusing to compel attendance of an out-of-state witness where the materiality of the anticipated testimony is speculative. Eliopulos v. State, 203 Ga. App. 262, 266-267 (2) (416 SE2d 745) (1992). Thus, as Holowiak did not carry his burden of showing that the subpoena was material and necessary to the case, the trial court did not abuse its discretion in denying Holowiak’s motion.

3. Holowiak also contends that the trial court erred in admitting testimony that he had declined an independent test, thus violating his right against self-incrimination. We do not agree.

As noted earlier, Georgia law favors the admission of relevant evidence, the determination of which is within the discretion of the trial court, and absent an abuse of discretion, will not be disturbed upon our review. Smith v. State, 265 Ga. App. at 238 (4). Here, Holowiak’s defense was largely based on the unreliability of the test results from the Intoxilyzer 5000; thus, such evidence would be relevant to show Holowiak’s failure to adduce rebuttal evidence. See Dupont v. State, 204 Ga. App. 262, 264 (4) (418 SE2d 803) (1992).

4. Holowiak asserts as error the trial court’s refusal to give four of his requested jury instructions. He first argues that the trial court erred in refusing to give his requested Charges 4 and 18, both of which concerned the reliability and possible malfunctioning of breath testing machines. Our review of the trial court’s general charge on the state-administered test reveal that the trial court adequately instructed the jury on the fallibility of these machines. “Where the charge given substantially covers the applicable principles, failure to give requested instructions in the exact language requested is not error.” (Citation and punctuation omitted.) Birge v. State, 143 Ga. App. 632, 639 (11) (239 SE2d 395) (1977).

Holowiak also argues that the trial court erred in refusing to charge the jury on his request to charge No. 22, that the presence of alcohol in the body does not support an inference that the defendant was impaired, and No. 24, that the jury “must” evaluate evidence of how a preexisting condition could affect physical appearance or performance on roadside sobriety evaluations.

Decided March 29, 2011

Head, Thomas, Webb & Willis, William C. Head, for appellant.

David L. Cannon, Jr., Solicitor-General, for appellee.

Here, the trial court instructed the jury that DUI per se required no proof of impairment, which substantially covered the same principle contained in Charge No. 22, and the court adequately covered the evidentiary principles underlying Charge No. 24 in its general charges regarding the definition of evidence, how to evaluate conflicting evidence, and impeachment. Considering the charge as a whole, the court’s charges did not mislead or confuse the jury, nor did the court commit error by declining to give Holowiak’s requested charges.

Judgment affirmed.

Blackwell and Dillard, JJ., concur.

       The “source code” is a human-readable program language, including English words and common mathematical notations, which are created by the programmer.


author: Andrews, Judge.

text:
    A11A0597.
    VELASQUEZ v. THE STATE.
    (709 SE2d 591)
   Andrews, Judge.

David Velasquez appeals after a jury found him guilty of robbery by force, robbery by sudden snatching, giving a false name, and second degree forgery. Velasquez contends that the evidence was insufficient to support the verdicts, that he received ineffective assistance of counsel, and that the trial court erred in admitting his prior convictions without making findings as to whether the probative value substantially outweighed the prejudicial effect. After reviewing the record, we conclude there was no error and affirm.

The evidence at trial, taken in the light most favorable to the verdict, was that Maria Perez Diaz was working at her taxi cab company office when Velasquez walked in and told her that he wanted a ride to his home. After they got into the cab and started driving, Velasquez did not give Diaz an address, but instead kept directing her from one place to another. Finally, Velasquez reached up and pushed the gear shift into “park.” Velasquez then grabbed Diaz’s purse and cell phone, and Diaz bit him. Velasquez and Diaz struggled over her purse, but Velasquez was able to take it from her, as well as her cell phone and mobile radio. Diaz positively identified Velasquez at trial as the man who robbed her. When officers arrested Velasquez, they found what appeared to be bite marks on his shoulder.

After officers arrested Velasquez, they found a permanent resident card and social security card with the name Daniel Lopez on them, and when Velasquez signed the Miranda form, he signed it as Daniel Lopez. A criminal investigator from the Bureau of Immigration and Customs Violations testified that both the social security card and the permanent resident alien card found on Velasquez were false.

Velasquez testified in his own defense. He denied robbing Diaz and said that the marks on his shoulder were from a soccer injury. Velasquez admitted that he was not Daniel Lopez, and when asked where he got the cards, stated that “some other people made them for me.” After Velasquez testified, the State introduced impeachment evidence of a prior conviction for robbery and giving a false name.

1. Viewed in the light most favorable to the verdict, the evidence presented at trial and summarized above was sufficient for a rational jury to find Velasquez guilty beyond a reasonable doubt of the crimes charged. See Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979). “It was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.” (Punctuation omitted.) Fox v. State, 289 Ga. 34, 36 (1) (a) (709 SE2d 202) (2011). The testimony at trial was sufficient to support the verdicts on the two robbery counts, and Velasquez admitted to giving a false name to police and to possessing forged documents.

2. In his second enumeration of error, Velasquez claims that he received ineffective assistance of counsel. “To establish ineffective assistance of counsel, [a defendant] must show that his counsel’s performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984).” Gross v. State, 262 Ga. 232, 233 (1) (416 SE2d 284) (1992). The test is whether there is a reasonable probability the jury would have reached a different verdict, absent the error of counsel. Gross, supra. Further, defendant must overcome the strong presumption that defense counsel’s conduct falls within the broad range of reasonable professional conduct. Snyder v. State, 201 Ga. App. 66, 69 (8) (410 SE2d 173) (1991). A trial court’s finding that a defendant has not been denied effective assistance of counsel will be affirmed unless clearly erroneous. Warren v. State, 197 Ga. App. 23, 24 (1) (397 SE2d 484) (1990).

Decided March 29, 2011.

Jerry W. Moncus, for appellant.

Velasquez states in his brief that “[a] lawyer is duty-bound to investigate so that he can properly advise his client.” Velasquez does not make any further argument. Accordingly, we are unable to address this enumeration.

Velasquez claims that trial counsel was ineffective when he allowed the State to impeach Velasquez with a prior conviction without the required finding that the probative value outweighed the conviction’s prejudicial effect. The general rule is that:

For the purpose of attacking the credibility of a witness, or of the defendant, if the defendant testifies: ... (2) Evidence that the defendant has been convicted of a crime shall be admitted if the crime was punishable by death or imprisonment of one year or more under the law under which the defendant was convicted if the court determines that the probative value of admitting the evidence substantially outweighs its prejudicial effect to the defendant; and (3) Evidence that any witness or the defendant has been convicted of a crime shall be admitted if it involved dishonesty or making a false statement, regardless of the punishment that could be imposed for such offense.

OCGA § 24-9-84.1.

Here, it appears that Velasquez is contending that the trial court omitted the word “substantially” when it found that the probative value outweighed the prejudicial effect. But upon further reading, the transcript shows that the trial court realized the omission and made a further finding that the probative value “substantially outweighs” the prejudicial impact.

Velasquez does not argue that the evidence should not have been admitted, but rather only contends that the trial court did not use the term “substantially” in making its determination to admit evidence of the prior conviction. Because the trial court did make the required finding, there is no merit to this argument. It follows that trial counsel was not required to object to the trial court’s finding and therefore Velasquez cannot show any ineffectiveness.

Judgment affirmed.

Phipps, P. J., and McFadden, J., concur.

Kermit N. McManus, District Attorney, Susan A. Beck, Assistant District Attorney, for appellee.

       A person commits the offense of forgery in the second degree when with the intent to defraud he knowingly makes, alters, or possesses any writing in a fictitious name or in such manner that the writing as made or altered purports to have been made by another person, at another time, with different provisions, or by authority of one who did not give such authority.
      OCGA § 16-9-2 (a).


author: Phipps, Presiding Judge.

text:
    A10A1651.
    SOLID EQUITIES, INC. v. CITY OF ATLANTA.
    (710 SE2d 165)
   Phipps, Presiding Judge.

Solid Equities, Inc. filed this action for damages against the City of Atlanta in connection with water service charges Solid Equities paid to the City to settle a bill incurred by Solid Equities’s former tenant. Therein, Solid Equities contended that (1) the City unlawfully refused to supply water service to Solid Equities’s property until the former tenant’s water service charges were paid, and (2) the City’s actions constituted an unconstitutional taking of Solid Equities’s property by inverse condemnation. Solid Equities appeals from the grant of summary judgment to the City on both claims and the denial of its motion for summary judgment on the claim that the City’s refusal to supply water service was unlawful. For the reasons that follow, we affirm.

Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Thus, to prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact, so that the party is entitled to judgment as a matter of law. When reviewing the grant or denial of a motion for summary judgment, this court conducts a de novo review of the law and the evidence.

Viewed in the light most favorable to Solid Equities as non-movant on summary judgment, and drawing all reasonable inferences from the record in its favor, the record shows the following. Solid Equities owned commercial property that it rented in November 2003 to Piedmont Restaurant Group, Inc., d/b/a City Cafe Diner. Under the lease agreement, Piedmont Restaurant Group was responsible for opening an account, and maintaining and paying for water service from the City. In September 2006, Piedmont Restaurant Group abandoned the premises, leaving an outstanding water bill of $46,796.

Shortly thereafter, Solid Equities leased the property to a new commercial tenant. The new tenant applied to the City to open an account for water service in its name, but the City refused to provide water service to the property until the past due amount was paid in full or an agreement was entered into for payment of the arrearage. The new tenant refused to pay Solid Equities any rent until water service was obtained. Although the City did not request payment from Solid Equities, Solid Equities paid the arrearage then sued the City to recover the payment and other damages allegedly related thereto.

1. Solid Equities contends that the court erred in granting summary judgment to the City and denying its motion for summary judgment when the City’s right to refuse water service was conditioned upon its ability to impose a lien for unpaid water service. Solid Equities posits that because OCGA § 36-60-17 (c) and (d) did not permit the City to place a lien on the property, the City could not lawfully refuse to provide water and sewer service to the property. The court correctly found that the City was authorized to refuse water service to the property.

OCGA § 36-60-17 provides, in pertinent part:

(a) No public or private water supplier shall refuse to supply water to any single or multifamily residential property to which water has been furnished through the use of a separate water meter for each residential unit on application of the owner or new resident tenant of the premises because of the indebtedness of a prior owner, prior occupant, or prior lessee to the water supplier for water previously furnished to such premises.
(c) A public or private water supplier shall not impose a lien against real property to secure unpaid charges for water furnished unless the owner of such real property is the person who incurred the charges.
(d) A public or private supplier of . . . sewerage service . . . shall not impose a lien against real property to secure unpaid charges for . . . sewerage service . . . unless the owner of such real property is the person who incurred the charges.

As Solid Equities contends and the City concedes, the statute bars the City from imposing a lien on Solid Equities’s property for water service charges incurred by a former tenant. Nonetheless, Solid Equities’s argument that the City lacked any authority to refuse to supply water service until the charges were paid is without merit.

OCGA § 36-60-17 (a), which specifically governs a water supplier’s refusal to supply water service, prohibits refusal of water service only to certain single or multifamily residential property based on the indebtedness of a prior owner, occupant or lessee. It provides no such limitation for nonresidential property. If the legislature intended to prohibit a supplier from refusing to supply water service to «orcresidential property based on the indebtedness of a prior owner, occupant or lessee, it could have provided for such in the statute. Further, if the legislature had intended to condition a water supplier’s ability to refuse water service to a property upon the supplier’s ability to impose a lien against the property, it could have so provided. It did not.

Moreover, the City was authorized by the 1995 Code of Ordinances of the City of Atlanta, Georgia, Sec. 154-120 to require payment of past due and certain other charges before service was restored, subject to OCGA § 36-60-17. The trial court did not err in granting the City’s motion for summary judgment and denying Solid Equities’s motion for summary judgment based on the City’s authority to refuse to supply water service to the premises.

2. Solid Equities contends that the City’s action in refusing to provide water service constituted an inverse condemnation of the property, and that the trial court erred in holding otherwise. We disagree.

“An inverse condemnation claim arises when the governmental entity creates a condition on private property . . . that amounts to a taking without compensation.” Solid Equities claims that it has a viable claim for inverse condemnation because the City: (a) failed to apply its own ordinance requiring that it terminate water service to a property when an account is more than 30 days past due and that it not restore water service while the account is still in arrears; and (b) unlawfully refused to provide water service to the property until the arrearage was paid.

(a) Solid Equities contends that the City’s failure to comply with its own ordinance as to the prior tenant (specifically, failing to terminate the tenant’s water service when the account was more than 30 days past due and then restoring water service while the account remained in arrears) constituted an inverse condemnation. But Solid Equities cites no case with similar facts to support its position that such a failure constitutes an inverse condemnation of property. Solid Equities cites Palazzolo v. Rhode Island, which notes that the purpose of the Fifth Amendment’s “Takings Clause” is to prevent the government from “forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” In requiring that the water service charges be paid before water service was restored to the property, the City did not force Solid Equities to bear a public burden which should have been borne by the public as a whole.

(b) Solid Equities contends that the City inversely condemned the property by unlawfully refusing to supply water service to the property. However, as discussed in Division 1, the City was authorized to refuse to provide water service to Solid Equities’s nonresidential property based on the arrearage of a prior tenant. Solid Equities failed to state a claim for inverse condemnation, and the trial court did not err in granting summary judgment to the City on the claim.

Decided March 30, 2011.

Zachary & Segraves, Rick S. Sexton, for appellant.

Tamara N. Baines, Laura Sauriol, for appellee.

Judgment affirmed.

Miller, P. J., and McFadden, J., concur.

        Cowart v. Widener, 287 Ga. 622, 623 (1) (a) (697 SE2d 779) (2010) (citation and punctuation omitted).

       Id.

        Christian v. Eagles Landing Christian Academy, 303 Ga. App. 113 (1) (692 SE2d 745) (2010).

        Cowart, supra at 624 (1) (b).

       Although Solid Equities mentions sewer service in its appellate brief and summary judgment pleadings, the complaint concerned only water service.

       See Fed. Home Loan Mtg. Corp. v. City of Atlanta, 285 Ga. 189, 193 (2) (674 SE2d 905) (2009).

       See City of Atlanta v. Miller, 256 Ga. App. 819, 820 (1) (569 SE2d 907) (2002) (when language of legislative act is plain and does not lead to absurd results, court should simply construe it according to its terms).

       See generally Wilson v. Miles, 218 Ga. App. 806, 806-807 (463 SE2d 381) (1995).

       Supra at (3), (5), (8).

        Hanson v. City of Roswell, 262 Ga. App. 671 (586 SE2d 341) (2003) (punctuation and footnote omitted).

       Solid Equities cites the 1995 Code of Ordinances of the City of Atlanta, Georgia, Sec. 154-120, subparagraphs (1), (3), (5) and (8), which pertinently provide: (1) upon failure of any person to pay any water bill assessment, the person will be notified that their service will be terminated, and the commissioner is authorized to discontinue water service to the person or premises until the bill is paid, but in no event will termination be later than 30 days from the due date of the bill; (3) past due charges must be paid in full before services are restored; (5) the charge must be paid before water is turned on again unless waived by the department commissioner; and (8) all past due amounts must be paid in order to continue water service.

       Solid Equities cites, e.g., Mann v. State, 278 Ga. 442, 443-444 (2) (603 SE2d 283) (2004) (regulation that denies some or all economically beneficial or productive use of land requires compensation, but statute prohibiting registered sex offenders from residing within certain distances of designated locations did not amount to a taking under the facts of that case); Duffield v. DeKalb County, 242 Ga. 432, 433-434 (2) (249 SE2d 235) (1978) (property owners had stated a claim for inverse condemnation in alleging that noise and odors from the county’s sewage plant interfered with their right to use and enjoy their property; physical invasion of the property was not required); City of Commerce v. Duncan & Godfrey, Inc., 157 Ga. App. 337, 339-340 (1) (277 SE2d 266) (1981) (affirming jury verdict for customer in action against city to recover overpayments made for electric service based on billing at certain rate; city had duty to disclose to the customer the existence of more favorable rate); City of Douglas v. Johnson, 157 Ga. App. 618-619 (1) (278 SE2d 160) (1981) (affirming judgment to property owner in suit against city and city manager for damages based on breach of contract for failure to perform ministerial duty regarding issuance of building permit); City of Albany v. Burt, 88 Ga. App. 144, 164 (3) (76 SE2d 413) (1953) (in personal injury action arising from gas explosion, city was subject to civil liability for failing to comply with its ordinance requiring installation of safety pilots on gas appliances).

       533 U. S. 606 (121 SC 2448, 150 LE2d 592) (2001).

       “The Takings Clause of the Fifth Amendment, applicable to the States through the Fourteenth Amendment, prohibits the government from taking private property for public use without just compensation.” Id. at 617 (II) (citation omitted).

       Id. at 618 (II) (citation and punctuation omitted).


author: Adams, Judge.

text:
    A10A1654.
    BRENNTAG MID SOUTH, INC. v. SMART et al.
    (710 SE2d 569)
   Adams, Judge.

Brenntag Mid South, Inc. appeals the trial court’s order certifying an “inconvenience/evacuation class” in an action filed by Louise Smart, Emma Lou Stokes and Turista Elmore (the “Plaintiffs”).

This action arose out of the accidental release of a cloud of glacial acetic acid from a chemical storage tank at Brenntag’s facility in East Point, Georgia, on December 15, 2004 and the subsequent evacuation of area residents by governmental authorities. The Plaintiffs allege that a Brenntag employee caused the release by connecting a steam delivery line to the tank containing the acid and then leaving the tank unattended. Plaintiffs estimate that approximately 8,000 residents lived within the evacuation zone.

The Plaintiffs originally filed their action in federal court seeking class certification for the evacuees. On August 24, 2005, the parties entered into a letter agreement in which the Plaintiffs agreed to dismiss the federal action and re-file their action in state court “seeking class certification as to the inconvenience/evacuation class only” (the “Letter Agreement”). The Letter Agreement further provided that the Plaintiffs agreed to abandon their attempts to certify other classes (other than the evacuation/inconvenience class), including claims on behalf of a class for personal injuries, business losses, lost income and property damage. In exchange for the dismissal of the federal action and the abandonment of other sub-classes, Brenntag agreed to stipulate to certification of a “class of individuals who suffered inconvenience damages associated with being evacuated by order of any fire or law enforcement agency resulting from the emission of glacial acetic acid on December 15, 2004 at Brenntag’s chemical storage facility in East Point, Georgia” (the “Evacuation Class”).

On December 12, 2006, the Plaintiffs re-filed their action in the Superior Court of Fulton County, but their complaint sought certification of three separate classes: a Property Damage Class, an Evacuation Class and a Rescission Class (for persons who had settled their claims, but now sought to rescind the settlement on the ground of fraud). Brenntag answered asserting defenses based upon the Letter Agreement, estoppel, accord and satisfaction, and settlement in opposition to certification of the Property Damage Class and the Rescission Class. Two years later, on December 12, 2008, Brenntag moved for partial summary judgment on the Plaintiffs’ property damage, fraudulent claims practices and rescission claims, asserting that they were barred by the Letter Agreement. But one month later, on January 12, 2009, while the motion was still pending, Brenntag wrote a letter purporting to rescind the Letter Agreement on the ground that the Plaintiffs had breached it by seeking property damages and by seeking to certify two additional classes.

On January 23, 2009, the Plaintiffs filed a brief opposing the motion for partial summary judgment and moved for certification of two basic classes, (1) an Evacuation Class, which they defined as a subclass of persons with a possessory interest in real property within the evacuation zone who evacuated due to the chemical release; and (2) the Rescission Class, defined as all those who evacuated but who subsequently released their evacuation claims. Several days later, Brenntag withdrew its motion for partial summary judgment. And on February 20, 2009, Brenntag amended its answer to oppose certification of the Evacuation Class in addition to the other two proposed classes.

Subsequently, the parties presented argument at a class certification hearing before Special Master Cary Ichter. The Plaintiffs clarified at that hearing that they did not intend to pursue certification of the Property Damage Class or to seek property damages. Rather they sought to recover for their inconvenience injuries arising from the evacuation and sought to certify a rescission sub-class for those parties who had previously settled such claims, as well as a separate common issues class. After hearing argument, the special master entered a “Recommendation and Report as to Findings of Fact and Conclusions of Law Regarding Class Certification” (the “Ichter Report”).

Ichter first concluded that the Letter Agreement provided an independent basis for certifying the Evacuation Class. He found that the Plaintiffs’ attempt to certify a Property Damage Class was not a material breach of the agreement especially since the Plaintiffs had stipulated at the hearing that they would not seek such damages. He further found that because the Rescission Class did not exist and was not even contemplated by the parties at the time they entered into the Letter Agreement, the Plaintiffs were not barred from seeking certification of that subclass. Ichter further concluded that the Plaintiffs met the requirements for class certification as to both the Evacuation Class and the Rescission Class.

The trial court subsequently entered an order adopting the Ichter Report and granting the Plaintiffs’ motion for class certification, “in that the Plaintiff has satisfied the requirements of [OCGA §] 9-11-23 (a) and (b) (3) for the proposed evacuation class, and the inconvenience/evacuation class is certified” and making “the Report and Recommendation submitted by the Special Master the Order of this Court.”

On appeal, Brenntag enumerates a number of errors in the special master’s findings as adopted by the trial court relating to the Letter Agreement and class certification.

1. Letter Agreement — Brenntag asserts that the trial court committed error in adopting the Ichter Report’s findings that the Letter Agreement did not bar the Plaintiffs from seeking certification of the Rescission Class and in finding that the agreement provided an independent basis for certification of the Evacuation Class because the Plaintiffs breached the agreement and Brenntag rescinded it. Accordingly, Brenntag is seeking both to enforce the Letter Agreement and simultaneously to rescind it. We need not address the validity of the Letter Agreement, however, because the trial court did not base any ruling upon it.

The trial court’s order did not certify the Rescission Class, and thus no ruling in that regard exists for our review. “Appellate courts exist to review asserted error but where the defendant makes no objection or obtains no ruling of the trial court, the contended problem cannot be made the basis of appellate review as there is no ruling to review.” (Citation omitted.) Sanders v. State, 179 Ga. App. 168, 169 (2) (345 SE2d 677) (1986). Accordingly, we need not address the Ichter Report’s findings as to the Rescission Class. Moreover, the trial court did not certify the Evacuation Class on the basis of the Letter Agreement. Rather, the trial court stated that it was certifying the class because it “satisfied the requirements of [OCGA §] 9-11-23 (a) and (b) (3).” And because we find below that the Evacuation Class satisfies the prerequisites of Rule 23, any consideration of the Letter Agreement would be superfluous.

2. Class Action Analysis — To obtain class action certification, the class representatives must satisfy “all four prerequisites of OCGA § 9-11-23 (a), and at least one of the requirements set forth in OCGA § 9-11-23 (b).” (Punctuation and footnote omitted.) Doctors Hosp. Surgery Center v. Webb, 307 Ga. App. 44, 46 (704 SE2d 185) (2010). The Plaintiffs here sought to certify a class under OCGA § 9-11-23 (b). Accordingly, they must establish the following factors:

(1) numerosity — that the class is so numerous as to make it impracticable to bring all members before the court; (2) commonality — that there are questions of law and fact common to the class members which predominate over any individual questions; (3) typicality — that the claim of the named plaintiff is typical of the claims of the class members; (4) adequacy of representation — that the named plaintiff will adequately represent the interest of the class; and (5) superiority — that a class action is superior to other methods of fairly and efficiently adjudicating the controversy.

(Footnote omitted.) R. S. W. v. Emory Healthcare, 290 Ga. App. 284, 286 (1) (659 SE2d 680) (2008). See also OCGA § 9-11-23 (a) and (b). And in reviewing the certification order, this Court is to respect

the discretion of the trial judge in certifying or refusing to certify a class action . . . where not abused. . . . Moreover, we will affirm the trial court’s factual findings unless they are clearly erroneous. Under the “clearly erroneous” test, factual findings must be affirmed if supported by any evidence.

(Punctuation and footnotes omitted.) R. S. W. v. Emory Healthcare, 290 Ga. App. at 286 (1). “Implicit in this deferential standard of review is a recognition of the fact-intensive basis of the certification inquiry and of the trial court’s inherent power to manage and control pending litigation.” Resource Life Ins. Co. v. Buckner, 304 Ga. App. 719, 729 (2) (698 SE2d 19) (2010).

Here, the trial court adopted and cited the special master’s findings in certifying the Evacuation Class. The Ichter Report defined the Evacuation Class as “consisting of all natural persons, including minors and adults, who, on December 15, 2004, resided within the boundaries of the area of the evacuation zone (as described in Plaintiffs’ motion papers) and who evacuated in response to the incident.” The report analyzed each of the requirements for class certification as they pertained to this proposed class. In reviewing the trial court’s order, we will consider the factual findings as adopted by the trial court and affirm them unless clearly erroneous, and we will review the conclusions of law for an abuse of discretion. And, due to the dearth of Georgia cases addressing a class action such as this involving an alleged mass tort, it is appropriate that we look to federal cases “interpreting Rule 23 of the Federal Rules of Civil Procedure, the rule upon which OCGA § 9-11-23 was based, for guidance.” (Footnotes omitted.) Fuller v. Heartwood 11, 301 Ga. App. 309, 312 (687 SE2d 287) (2009).

(a) Rule 23 (a) Analysis — We first consider the four factors under subsection (a) of Rule 23: numerosity, commonality, typicality and adequacy. On appeal, Brenntag takes issue with each of these factors generally and by reference to its filings in the trial court below.

(i) Numerosity — “In order to satisfy this requirement, [the Plaintiffs] need not allege the exact number and identity of the class members, but must only establish that joinder is impracticable through some evidence or reasonable estimate of the number of purported class members.” (Citation and punctuation omitted.) In re Netbank, 259 FRD 656, 664 (N.D. Ga. 2009). Additionally, “[t]he class simply must meet a ‘minimum standard of definiteness which will allow the trial court to determine membership in the proposed class.’ ” (Citations omitted.) In re Tri-State Crematory Litigation, 215 FRD 660, 690 (IV) (A) (1) (N.D. Ga. 2003).

Here, the Plaintiffs estimated the number of potential class members at 8,000, and their counsel represented at the hearing that over 200 individuals had signed retainer contracts and submitted claim forms in connection with this incident. And the class is defined by a specific geographic boundary and includes only those who resided there and were evacuated as a result of the chemical plume. We find no abuse of discretion in the trial court’s adoption of the finding that the Plaintiffs met the numerosity requirement.

(ii) Commonality — To establish the requisite commonality, the Plaintiffs must show the existence of common questions of law and fact. “[T]he commonality requirement does not require that all questions of law and fact be common to every member of the class. Rather, the rule requires only that resolution of the common questions affect all or a substantial number of the class members.” (Citations and punctuation omitted.) Flournoy v. Honeywell Intl., 239 FRD 696, 699 (S.D. Ga. 2006). Here the class members were all evacuated as the result of the same incident at the Brenntag facility, and thus as the Ichter Report found, the class shares common issues of alleged negligence, liability, causation, damages and punitive damages. See id. (commonality element satisfied for class in suit for nuisance and trespass based upon alleged migration of mercury and PCBs from plant site onto class members’ properties).

(iii) Typicality — “Traditionally, commonality refers to the group characteristics of the class as a whole, while typicality refers to the individual characteristics of the named plaintiff in relation to the class.” (Citation omitted.) Piazza v. Ebsco Indus., 273 F3d 1341, 1346 (11th Cir. 2001). “The typicality requirement under OCGA § 9-11-23 (a) is satisfied upon a showing that the defendant committed the same unlawful acts in the same method against an entire class.” (Citation and punctuation omitted.) Liberty Lending Svcs. v. Canada, 293 Ga. App. 731, 738 (1) (b) (668 SE2d 3) (2008). Thus, “typicality measures whether a sufficient nexus exists between the claims of the named representatives and those of the class at large.” (Citation and punctuation omitted.) Vega v. T-Mobile USA, 564 F3d 1256, 1275 (11th Cir. 2009). “A sufficient nexus is established if the claims or defenses of the class and the class representative [s] arise from the same event or pattern or practice and are based on the same legal theory.” Kornberg v. Carnival Cruise Lines, 741 F2d 1332, 1337 (11th Cir. 1984).

The trial court adopted the Ichter Report’s finding that the “Plaintiffs and all class members share the same set of circumstances resulting in the evacuation and same theories of recovery.” And the record demonstrates that the three class representatives — Smart, Stokes and Elmore — each resides within the evacuation zone, and each was forced to leave her home under the mandatory evacuation order. Smart and Elmore share a residence approximately one to two miles from the Brenntag facility. Elmore owns the property. They both evacuated their home in the early morning hours of December 15-16, 2004 in response to a police announcement over a bullhorn of a “mandatory evacuation.” Stokes was renting a house within the evacuation zone at the time of the incident. Stokes also evacuated her home in the middle of the night in response to the police announcement. Thus the claims of the proposed representatives arise from the same event and would be based on the same legal theory as the remainder of the class.

But Stokes has one factor distinguishing her from the other two class representatives. She settled her claims against Brenntag for $200, although she states that she felt tricked into doing so. In connection with that settlement, Stokes signed a “Release and Indemnity Agreement” in favor of Brenntag as to any claims arising out of the December 15, 2004 incident. Thus, her claims cannot be considered typical of the Evacuation Class. She would only be able to pursue any such claims if she successfully won the right to rescind the settlement. Thus, we conclude that it was an abuse of discretion for the trial court to adopt the Ichter Report to the extent that it found that Stokes met the requirement of a typical class representative for the Evacuation Class. See Williams v. Cox Enterprises, 159 Ga. App. 333, 335 (5) (283 SE2d 367) (1981) (execution of pre-race waiver precluded plaintiff from representing putative class of race participants claiming organizers’ negligence resulted in injury).

Nevertheless the trial court properly adopted the finding that Smart and Elmore satisfied the typicality requirement.

(iv) Adequacy — “The important aspects of adequate representation are whether the plaintiffs’ counsel is experienced and competent and whether plaintiffs’ interests are antagonistic to those of the class.” (Citation and punctuation omitted.) Liberty Lending Svcs. v. Canada, 293 Ga. App. at 739 (1) (c). The record in this case supports the finding, as adopted by the trial court that the adequacy requirement is met. Brenntag does not challenge the competence or experience of counsel on appeal nor does it allege that Smart and Elmore have antagonistic interests. And nothing in the record suggests any such antagonistic interests or that Smart and Elmore would not vigorously pursue the claims on behalf of the class. Accordingly, as both elements of the requirement are met, the trial court did not abuse its discretion in adopting the finding of adequacy. Thus, the trial court properly found that the Plaintiffs had met the requirements under Rule 23 (a).

(b) Rule 23 (b) (3) Analysis — Under Rule 23 (b) (3) a class may be certified if the questions of law or fact predominate over individual issues and “a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” OCGA § 9-11-23 (b) (3). Factors to be considered include:

(A) [t]he interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) [t]he extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) [t]he desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) [t]he difficulties likely to be encountered in the management of a class action.

OCGA § 9-11-23 (b) (3).

(i) Predominance — “The Rule 23 (b) (3) predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation. A plaintiff may satisfy this requirement by showing that issues subject to class-wide proof predominate over issues requiring proof that is unique to the individual class members.” (Citations and punctuation omitted.) In re Tri-State Crematory Litigation, 215 FRD at 691 (B) (1). Therefore, “class certification is not appropriate if resolution of individual questions plays a significant, integral part of the determination of liability. But as long as the common questions predominate, a class may be certified even if some individual questions of law or fact exist.” (Punctuation and footnotes omitted.) Village Auto Ins. Co. v. Rush, 286 Ga. App. 688, 690-691 (1) (649 SE2d 862) (2007). Thus, “Common issues may predominate when liability can be determined on a class-wide basis, even when there are some individualized damage issues.” (Citations and punctuation omitted.) In re Tri-State Crematory Litigation, 215 FRD at 694 (B) (1) (c) (2) (c). See also Sterling v. Velsicol Chemical Corp., 855 F2d 1188, 1197 (6th Cir. 1988) (“where the defendant’s liability can be determined on a class-wide basis because the cause of the disaster is a single course of conduct which is identical for each of the plaintiffs, a class action may be the best suited vehicle to resolve such a controversy”).

The Ichter Report, as adopted by the trial court, found, that the class in this case shared common issues which predominated over individual issues, noting that “all class members evacuated and claimed to have suffered damages resulting from the chemical release at the same time in the same geographical area as a result of the same event.” Moreover, the report found that “[n]ot only do the class members share the same cause of injuries, they share the same type of injuries — having to leave their homes and lose use and enjoyment of their property.” We cannot say that these findings are clearly erroneous, and thus the trial court did not abuse its discretion in adopting the special master’s determination that common issues predominate over individual issues for the Evacuation Class.

(ii) Superiority — The Plaintiffs must also demonstrate that a class action will be a superior method of handling this litigation. “The rule asks us to balance, in terms of fairness and efficiency, the merits of a class action against those of ‘alternative available methods’ of adjudication.” Georgine v. Amchem Products, 83 F3d 610, 632 (3d Cir. 1996), aff'd, 521 U. S. 591 (117 SC 2231, 138 LE2d 689) (1997). Thus, “[t]he issue is not whether a class action will be difficult to manage. Instead, the trial court is to consider the relative advantages of a class action suit over other forms of litigation which might be available.” (Footnote omitted.) EarthLink v. Eaves, 293 Ga. App. 75, 77 (1) (666 SE2d 420) (2008).

Decided March 30, 2011.

The claims here arose from one single occurrence, and class adjudication provides the most efficient method for resolving factual and legal issues surrounding the events leading to the release of the plume and the resulting evacuation, without the necessity for re-litigating these issues in multiple actions. Moreover, as the Ichter Report found, the damages involved for each class member are likely to be relatively small making it unlikely that other class members would have a strong interest in controlling the litigation for themselves. And it is unlikely that counsel could be found to pursue such relatively minor claims on an individualized basis so that “[e]co-nomic reality dictates that petitioner’s suit proceed as a class action or not at all.” Eisen v. Carlisle & Jacquelin, 417 U. S. 156, 161 (94 SC 2140, 40 LE2d 732) (1974). See also Sterling v. Velsicol Chemical Corp., 855 F2d at 1197 (class action “best suited” for this kind of litigation). “[TJhere is simply no need to burden either the court system or the individual class members by requiring each member of the class to pursue his or her own action to recover a relatively small amount of damages.” (Footnote omitted.) EarthLink v. Eaves, 293 Ga. App. at 77 (1). See also Trend Star Continental v. Branham, 220 Ga. App. 781, 782 (1) (469 SE2d 750) (1996). Under the circumstances, we find that the trial court did not abuse its discretion in adopting the finding that a class action would be the superior method for litigating this claim.

Accordingly, the trial court did not abuse its discretion in confirming the Evacuation Class as defined in the Ichter Report except to the extent the court approved Stokes as a typical and/or adequate representative for that class. Therefore, we affirm the trial court’s order certifying the Evacuation Class with Smart and Elmore as class representatives and reverse only to the extent that the trial court’s order can be interpreted as approving Stokes as a class representative for the Evacuation Class.

Judgment affirmed in part and reversed in part.

Smith, P. J., and Mikell, J., concur.

Glaser, Currie & Bullirían, David S. Currie, for appellant.

Roger W Orlando, for appellees.

       Similarly, the trial court issued no ruling in connection with the Ichter Report’s findings as to a litigation plan, and thus we do not reach Brenntag’s enumeration of error asserting that the plan is insufficient.

       The Plaintiffs’ motion papers defined the evacuation zone as a geographical boundary based upon the streets identified by the evacuation orders as well as expert consultation as to “the actual geographical extent of the chemical plume as it spread.”

       See also Barnum v. Coastal Health Svcs., 288 Ga. App. 209, 215 (2) (b) (653 SE2d 816) (2007) (similarity between Georgia Civil Practice Act and Federal Rules of Civil Procedure makes it proper for Georgia courts to consider constructions placed on federal rules by federal courts); Sta-Power Indus, v. Avant, 134 Ga. App. 952, 953 (1) (216 SE2d 897) (1975) (“Since there are only a few definitive holdings in Georgia [concerning the requirements for class certification under] the Civil Practice Act, we also look to federal cases to aid us.”) (citation omitted).

       As discussed in Division 2 (b) (i) below, we conclude that these common issues predominate over any individual issues.


author: MILLER, Presiding Judge.

text:
    A10A1665.
    LESTER v. THE STATE.
    (710 SE2d 161)
   MILLER, Presiding Judge.

Following a joint trial with his co-defendant, Shawn Gordon, a jury convicted Damien Lester of kidnapping (OCGA § 16-5-40 (a)), hijacking a motor vehicle (OCGA § 16-5-44.1 (b)), armed robbery (OCGA § 16-8-41 (a)), possession of a firearm during the commission of a felony (OCGA § 16-11-106 (b) (1)), carrying a concealed weapon (OCGA § 16-11-126 (b)), and possession of a weapon on school property (OCGA § 16-11-127.1 (b) (1)). Lester appeals, contending that (i) the evidence was insufficient to support his convictions and (ii) the trial court failed to exercise its discretion in sentencing him as a recidivist. Discerning no error, we affirm.

Viewed in the light most favorable to the jury’s verdict, Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence showed that on October 26, 2007, at approximately noon, the victim, a student at Georgia State University, walked to her car to retrieve her books for her next class. When the victim entered the school’s parking deck, she noticed two men later identified as Lester and his co-defendant, Gordon, ahead of her. She quickly got into her car. Lester and Gordon approached the victim outside her car door. Lester brandished a rifle that he had previously concealed on his person and Gordon had a handgun. They ordered the victim to get in the back of the car. She complied because she feared for her safety. Lester then entered the driver’s seat. He placed his rifle on the center console and pointed it in the victim’s direction. Gordon got in the back seat with the victim and aimed his gun at her pursuant to Lester’s instructions.

After driving the victim’s car out of the parking deck, Lester demanded cash or a debit card from the victim. When the victim told them she did not have her debit card, they told her that she needed to “come up with a way to get them some money.” The victim then stated that she had credit cards in the trunk and she could activate the cards in order to withdraw money. Lester then stopped the car, retrieved the victim’s purse, and gave it to Gordon, who took out the victim’s credit cards. After one of the credit cards was activated, Lester was able to use the card to withdraw $3,030 from various ATMs at gas stations in the area.

Upon obtaining the cash withdrawals, Lester and Gordon drove the victim to a car wash facility, where they wiped the car down in efforts to remove their fingerprints. They ordered the victim to keep her head down and not to look at anyone. After they left the car wash facility, they drove around for an appreciable length of time before stopping at an apartment complex. Lester and Gordon got out of the car, wiped it down for fingerprints, removed their belongings from the car, and took the victim’s cell phone. Then, they departed on foot. The victim testified that she was detained in the car for approximately two hours during the course of the ordeal.

After the victim was released, she immediately reported the crimes to a police officer. She provided the officer with a detailed description of Lester and Gordon and the address of the apartment complex where they left her. Shortly thereafter, Lester and Gordon were apprehended. The victim identified Lester as one of the perpetrators. Following his arrest, Lester was charged and convicted of kidnapping, hijacking a motor vehicle, armed robbery, possession of a firearm during the commission of a felony, possession of a concealed weapon, and carrying a weapon on school property.

During the sentencing phase, the trial court admitted Lester’s four prior convictions and sentenced Lester as a recidivist to life plus ten years of imprisonment.

1. Lester contends that the evidence was insufficient to support his convictions. We disagree.

The victim’s testimony alone established the essential elements of the offenses. OCGA § 24-4-8 (“The testimony of a single witness is generally sufficient to establish a fact.”). Based upon the evidence set forth above, Lester’s convictions were authorized under the standard of Jackson v. Virginia. See OCGA §§ 16-5-40 (a) (kidnapping); 16-5-44.1 (b) (hijacking a motor vehicle); 16-8-41 (a) (armed robbery); 16-11-106 (b) (1) (possession of a firearm during the commission of a felony); 16-11-126 (b) (carrying a concealed weapon); 16-11-127.1 (b) (1) (possession of a weapon on school property).

2. Lester contends that the trial court failed to exercise its discretion when it sentenced him as a recidivist under OCGA § 17-10-7 (c), based on its mistaken belief that it had to impose the maximum sentence for each of his convictions. We are not persuaded.

The general recidivist statute for crimes other than burglary and drug offenses is set forth in OCGA § 17-10-7. OCGA § 17-10-7 (a) and (c) pertinently state:

(a) Except as otherwise provided in subsection (b) of this Code section, [] any person convicted of a felony offense in this state or having been convicted under the laws of any other state or of the United States of a crime which if committed within this state would be a felony and sentenced to confinement in a penal institution, who shall afterwards commit a felony punishable by confinement in a penal institution, shall be sentenced to undergo the longest period of time prescribed for the punishment of the subsequent offense of which he or she stands convicted, provided that, unless otherwise provided by law, the trial judge may, in his or her discretion, probate or suspend the maximum sentence prescribed for the offense.
(c) Except as otherwise provided in subsection (b) of this Code section, any person who, after having been convicted under the laws of this state for three felonies or having been convicted under the laws of any other state or of the United States of three crimes which if committed within this state would be felonies, commits a felony within this state shall, upon conviction for such fourth offense or for subsequent offenses, serve the maximum time provided in the sentence of the judge based upon such conviction and shall not be eligible for parole until the maximum sentence has been served.

(Emphasis supplied.)

Prior to trial, the State filed a notice of intent to seek recidivist punishment and introduce evidence of Lester’s prior convictions in aggravation of sentence, pursuant to OCGA § 17-10-7 (a) and (c). At the sentencing hearing, the State introduced certified copies of Lester’s felony convictions for obstruction of an officer, possession of cocaine with intent to distribute, possession of tools for the commission of a crime, possession of a firearm by a convicted felon, carrying a concealed weapon, aggravated assault, and theft by taking (motor vehicle). The prosecutor recommended that the trial court impose the following sentence: twenty years on the hijacking a motor vehicle count, a life sentence on the armed robbery count, twenty years on the kidnapping count, ten years consecutive on the possession of a firearm during the commission of a felony count, ten years on the possession of a weapon on school property count, and twelve months on the carrying a concealed weapon count. Except for the offense of possession of a firearm during the commission of a felony, the prosecutor recommended concurrent sentences on the remaining counts.

When the trial court asked Lester’s counsel if he agreed with the State’s analysis of OCGA § 17-10-7, counsel questioned the prosecutor’s interpretation of the sentencing provision, and asked the trial court to sentence Lester to “the minimum sentence that the statutory construction of [OCGA §] 17-10[-7] might allow.” After reviewing the prior convictions, the trial court sentenced Lester to a total sentence of life plus ten years imprisonment: twenty years to serve for the hijacking a motor vehicle count, life imprisonment for the armed robbery count, twenty years to serve on the kidnapping count, ten years to serve for the possession of weapon on school property count and twelve months to serve for the carrying a concealed weapon count. Each of these sentences ran concurrent with one another. On the possession of a firearm during the commission of a felony count, the trial court imposed a sentence of ten years to serve, consecutive to all other counts. The trial court recognized that a life sentence for the armed robbery count was a mandatory sentence under the recidivist statute.

Lester contends that the maximum sentence for armed robbery was twenty years, and therefore, the trial court failed to exercise its discretion when it sentenced him to life imprisonment. We disagree. It is undisputed that Lester had been convicted of at least three prior felonies. Thus, Lester was required to be sentenced to “the longest period of time prescribed for the punishment of the subsequent [armed robbery] offense” and was required to “serve the maximum time provided in the sentence of the judge based upon [his conviction of armed robbery] and shall not be eligible for parole until the maximum sentence has been served.” OCGA § 17-10-7 (a), (c). The longest period of time prescribed for punishment of armed robbery is life imprisonment. See OCGA § 16-8-41 (b); Singleton v. State, 293 Ga. App. 755, 757 (2) (667 SE2d 711) (2008).

Furthermore, because life imprisonment was an authorized punishment for a conviction of armed robbery, and because Lester was sentenced as a recidivist under OCGA § 17-10-7 (a) and (c), the trial court lacked the discretion to sentence him to a lesser sentence. Nor was the trial court authorized to probate any part of the armed robbery sentence. OCGA § 17-10-7 (a) allows the trial judge to probate or suspend the maximum sentence “unless otherwise provided by law.” Significantly, “[u]nder OCGA § 17-10-1 (a) (1), where the penalty imposed is life in prison, a trial court lacks discretion to probate or suspend any part of the sentence.” (Citations and footnote omitted.) Hall v. State, 292 Ga. App. 544, 550 (5) (664 SE2d 882) (2008). See also State v. Jones, 253 Ga. App. 630, 632 (560 SE2d 112) (2002).

To the extent that Lester argues the trial court erred by failing to exercise its discretion by not imposing probation on the remaining counts, we disagree. It is presumed that the trial court exercised its discretion in sentencing Lester to a period of incarceration, rather than probation, where no evidence to the contrary appears. See Paige v. State, 277 Ga. App. 687, 688-689 (2) (627 SE2d 370) (2006) (“Unless affirmative evidence shows otherwise, the trial court is presumed to have exercised its discretion in imposing sentence.”) (citations and punctuation omitted). Compare Page v. State, 287 Ga. App. 182, 184 (3) (651 SE2d 131) (2007) (trial court’s conclusion that it was required to sentence fifth-time recidivist defendant to maximum sentence of 20 years for burglary and that it had no discretion to probate or suspend the sentence under OCGA § 17-10-7 (c), was erroneous). Here, unlike Page, the trial judge did not expressly disavow his discretion in sentencing Lester on the remaining counts. Since the record does not support Lester’s surmise, his claim fails.

Judgment affirmed.

Ellington, C. J., Smith, P J., Barnes, P. J., Phipps, P. J., Andrews, Mikell, Adams, Doyle, Blackwell, Dillard and McFadden, JJ., concur.

Decided March 30, 2011

Cromwell & Hibbert, Henry A. Hibbert, for appellant.

Paul L. Howard, Jr., District Attorney, Peggy R. Katz, Assistant District Attorney, for appellee.

        Garza v. State, 284 Ga. 696, 702 (1) (670 SE2d 73) (2008) adopted a four-factor test to assess the sufficiency of the evidence as to the asportation element of kidnapping. Following Garza, the legislature amended the kidnapping statute. See Ga. L. 2009, p. 331, § 1. Since the amendment only applies to crimes committed on or after the effective date of the statute, July 1, 2009, it is inapplicable here, and the standard in Garza applies. Lester’s asportation of the victim from the school parking deck to various locations, ultimately ending at an apartment complex where the victim was released two hours later, was sufficient asportation to authorize the kidnapping conviction.

       Lester concedes on appeal that OCGA § 17-10-7 (b) is inapplicable.

       “[Subsections (a) and (c)] must be read together. If both apply [, as here,] the trial court must apply them hoth.” Thompson v. State, 265 Ga. App. 696, 698 (2) (595 SE2d 377) (2004). Thus, to the extent that this Court’s decisions in Colbert v. State, 303 Ga. App. 802, 804 (694 SE2d 694) (2010), Johnson v. State, 285 Ga. App. 590, 591 (3) (646 SE2d 760) (2007), and Blevins v. State, 270 Ga. App. 388, 394 (5) (606 SE2d 624) (2004), or any other cases may be understood for the proposition that under OCGA § 17-10-7 (a) and (c), a trial court retains jurisdiction to sentence a recidivist defendant to anything less than the maximum penalty, they are disapproved.