text:
    A14A2236.
    MARINO et al. v. CLARY LAKES HOMEOWNERS ASSOCIATION, INC.
    (770 SE2d 289)
   Dillard, Judge.

Clary Lakes Homeowners Association, Inc. (the “Association”) sued homeowners Joseph and Patricia Marino, seeking damages and enforcement of a restrictive covenant that required garages to be used for parking vehicles and not for storage. The Marinos filed an answer and counterclaim, contending that the restrictive covenant was invalid. The trial court granted partial summary judgment to the Association, but in Marino v. Clary Lakes Homeowners Association, Inc. (Marino I), we ruled that the restrictive covenant was unenforceable against the Marinos. Consequently, we reversed the trial court’s grant of summary judgment to the Association on its claims predicated on the breach of the restrictive covenant and remanded the case with direction for the trial court to enter summary judgment in favor of the Marinos as to those claims. In addition, we reversed the trial court’s grant of summary judgment to the Association on its claim for attorney fees under a “prevailing party” provision in the covenants, but we affirmed the denial of summary judgment to the Marinos on this issue because an award of such fees was potentially dependent upon the resolution of the Association’s claim for breach of a settlement agreement, which remained pending.

Following remand, the Marinos filed a motion to dismiss the Association’s breach-of-settlement-agreement claim, which the trial court denied. Nevertheless, the Association ultimately dismissed this claim and then moved to dismiss the Marinos’ attorney fees claim. Finding that neither party prevailed in the litigation, the trial court granted the Association’s motion. On appeal, the Marinos contend that the trial court erred in (1) dismissing their claim for attorney fees under the “prevailing party” provision, (2) denying their motion to dismiss the claim for breach of the settlement agreement, (3) denying their motion for attorney fees pursuant to OCGA § 9-15-14 (b), (4) dismissing their counterclaims, and (5) failing to enter final judgment in their favor. For the reasons set forth infra, we affirm in part, reverse in part, and remand the case for further proceedings consistent with this opinion.

A detailed recitation of the background facts can be found in Marino 1 Nevertheless, by way of summary, the undisputed record shows that in 2003, a majority of the homeowners in the Clary Lakes subdivision and the Association approved an Amended and Restated Declaration of Protective Covenants for Clary Lakes (the “Amended Declaration”) and Amended and Restated Bylaws of Clary Lakes Homeowners Association, Inc. (the “Bylaws”). Importantly, the Amended Declaration included a provision stating that the Association and the Clary Lakes subdivision were submitting to application of the Property Owners’ Association Act (“POA Act”) (OCGA § 44-3-220 et seq.). And under the Amended Declaration, use of garages was governed by Section 11 (i), which provided:

Garage Parking. All vehicles owned or used on a regular basis by Owners or Occupants shall be parked in garages to the extent that garage space is available and vehicles fit in the garage. Garages shall not be used for storage on a regular basis so that they become unavailable for parking cars therein. The Covenant Committee shall have the power to grant a variance to any Owner or Occupant who demonstrates special circumstances why he cannot comply with this requirement. Application for this variance must be made in writing to the Covenant Committee. The variance to the Owner or Occupant must be in writing and specify the term of the required variance.

The Marinos purchased their home in the Clary Lakes subdivision nearly ten years prior to the approval of the Amended Declaration, and they did not vote in favor of the declaration or give their written consent to it. And because their home did not have a basement, the Marinos used their garage for storage and parked their vehicles on their driveway, which had been permitted prior to the 2003 approval of the Amended Declaration. Consequently, in January 2009, the Association informed the Marinos that they were in violation of the Garage Use Covenant. Initially, the Association attempted to resolve the dispute by issuing a temporary variance to allow the Marinos time to comply with the covenant. But when the Marinos requested a permanent variance, the Association refused and, pursuant to the Amended Declaration, began to levy daily fines, which the Marinos refused to pay.

In 2011, the Association sued the Marinos for damages, injunctive relief, and attorney fees, alleging that they were in violation of the Garage Use Covenant, breached a settlement agreement, and owed fines. The Marinos filed an answer and counterclaims, arguing, inter alia, that the Garage Use Covenant was unenforceable against them because they had not consented to it pursuant to OCGA § 44-5-60 (d) (4) and because it had not been approved by at least two-thirds of the votes in the Association as required by the POA Act. The Marinos also sought attorney fees.

After the parties filed cross-motions for summary judgment, the trial court ruled that the Garage Use Covenant was not subject to either the written-consent requirement imposed by OCGA § 44-5-60 (d) (4) or the two-thirds voting requirement imposed by the POA Act. Thus, the trial court denied summary judgment to the Marinos and granted summary judgment to the Association on its claims for damages for the nonpayment of fines, injunctive relief, and attorney fees. However, the court also ruled that genuine issues of material fact precluded a grant of summary judgment in favor of the Association as to its breach-of-settlement-agreement claim.

Thereafter, the Marinos filed an appeal with this Court. And in Marino I, we concluded

that for the restrictive covenant at issue to be enforceable against the Marinos, they had to agree to the covenant in writing pursuant to OCGA § 44-5-60 (d) (4), or the covenant had to be approved by at least two-thirds of the votes in the Association pursuant to OCGA § 44-3-226 (a) of the POA Act. Because the uncontroverted evidence shows that neither condition was met in this case, the restrictive covenant was unenforceable against the Marinos, and the trial court erred in concluding otherwise.

Accordingly, we reversed the grant of summary judgment to the Association, and the denial of summary judgment to the Marinos, on the Association’s claims for damages and injunctive relief based on the violation of the restrictive covenant, and we remanded the case with direction for the trial court to enter summary judgment for the Marinos on those claims. We also reversed the grant of summary judgment to the Association on its claim for attorney fees under the “prevailing party” provision of the Amended Declaration. But we held that an award of attorney fees to either party would be premature because the Association’s claim for the alleged breach of the settlement agreement remained pending, “and the outcome with regard to that claim may affect who is deemed the ‘prevailing party’ in this litigation.”

On remand, the Marinos moved to dismiss the Association’s breach-of-settlement-agreement claim, arguing that it violated public policy. The Marinos also sought to be declared the “prevailing party” and awarded attorney fees. The Association responded and, while the motions were pending, it amended its complaint to request both damages and injunctive relief for the Marinos’ alleged breach of the settlement agreement. In addition, the Association moved to dismiss the Marinos’ counterclaims for attorney fees.

Despite its recent amendment, on April 29,2014, the Association voluntarily dismissed its claim for breach of the settlement agreement. And shortly thereafter, the trial court scheduled a hearing for arguments on the Association’s motion to dismiss the Marinos’ counterclaims for attorney fees, as well as their motion seeking an award of attorney fees as the “prevailing party.” On May 30, 2014, the day of the hearing, the Marinos filed a supplemental motion, seeking attorney fees pursuant to OCGA § 9-15-14 (b). At the conclusion of the hearing, the trial court found that because the Association’s claim for breach of the settlement agreement was not adjudicated on the merits, neither party had prevailed. Consequently, the trial court issued an order ruling that the Marinos were not entitled to attorney fees as the “prevailing part/’ and further ruled that they were not entitled to attorney fees under OCGA § 9-15-14 (b). This appeal follows.

1. The Marinos contend that the trial court erred in ruling that they were not the “prevailing part/’ to the litigation and, therefore, were not entitled to attorney fees under the Amended Declaration. We agree.

At the outset, we note that the declaration of a homeowner’s association is “considered a contract, and we therefore apply the normal rules of contract construction to determine the meaning of the terms therein.” First, the construction of a contract is “a question of law for the court.” That being said, it is well established that the cardinal rule of construction is “to ascertain the intent of the parties[ and w]here the contract terms are clear and unambiguous, the court will look to that alone to find the true intent of the parties.” In determining the parties’ intent, “all the contract terms must be considered together in arriving at the construction of any part, and a construction upholding the contract in whole and every part is preferred.” And when the language employed by the parties in their contract is plain, unambiguous, and capable of only one reasonable interpretation, the language used “must be afforded its literal meaning and plain ordinary words given their usual significance.” With these guiding principles in mind, we turn now to the Marinos’ specific claim of error.

The final sentence of Section 16 (b) of the Amended Declaration provides: “In the event of litigation, the losing party shall pay the litigation expenses, including the reasonable attorney’s fees actually incurred, of the prevailing party.” Construing similar language, the Supreme Court of Georgia has held that “a plaintiff prevails when actual relief on the merits materially alters the legal relationship between the parties by modifying the defendant’s behavior in any way that directly benefits the plaintiff,” and that “unlike plaintiffs who typically must obtain some affirmative relief on their claim to be deemed the ‘prevailing party’... defendants prevail by not having any relief imposed against them.”

Here, the Marinos (as defendants in this action) prevailed as to the Association’s claims for damages and injunctive relief predicated on the breach of the Garage Use Covenant when this Court ordered the trial court to enter summary judgment in their favor as to those claims. At that point in time, the Association’s claim for breach of the settlement agreement was still pending, and thus, we held that deeming either the Marinos or the Association as the “prevailing party5’ under Section 16 (b) of the Amended Declaration was premature. But once the Association voluntarily dismissed its only remaining claim, the Marinos prevailed, regardless of their counterclaims, “by not having any relief imposed against them.”

In its order denying the Marinos’ claim for attorney fees, the trial court characterized our holding in Marino I as having “found that Plaintiff had a separate, viable claim against Defendants and that the outcome of such claim would determine the ‘prevailing party’ in this case.” And based on this reading, it concluded that because there was no adjudication on the merits of the breach-of-settlement-agreement claim, neither party prevailed. However, this conclusion is belied by the actual language of our opinion in Marino I, which indicated that the outcome with regard to the breach-of-settlement-agreement claim “may affect who is deemed the ‘prevailing party’ in this litigation.” The rather simple conclusion that follows from this language is that even though the Marinos succeeded in arguing that the covenant was not enforceable against them, the Association might nevertheless be deemed as prevailing if it succeeded on its alternative claim that the Marinos agreed to a compromise of the dispute and then breached that agreement. But when the Association’s remaining claim was dismissed, the Marinos were then in the position of having prevailed on the only claims that were adjudicated on the merits. Given these circumstances, we reverse the trial court’s ruling that the Marinos were not the “prevailing party” to this litigation and were not entitled to attorney fees, and remand the case for further proceedings to determine the exact amount of attorney fees to be awarded.

2. The Marinos also contend that the trial court erred in denying their motion to dismiss the Association’s claim for breach of the settlement agreement. However, the Association dismissed this claim, and in Division 1, supra, we held that the Marinos are the “prevailing part/’ despite the fact that the claim was not adjudicated on the merits. Thus, this enumeration is moot, and we need not address it.

3. The Marinos also contend that the trial court erred in denying their motion for attorney fees pursuant to OCGA § 9-15-14 (b). We disagree.

Under OCGA § 9-15-14 (b), the trial court may award fees if

it finds that an attorney or party brought or defended an action, or any part thereof, that lacked substantial justification or that the action, or any part thereof, was interposed for delay or harassment, or if it finds that an attorney or party unnecessarily expanded the proceeding by other improper conduct. . . .

And this statute defines “lacked substantial justification” as meaning “substantially frivolous, substantially groundless, or substantially vexatious.” Importantly, we will affirm a trial court’s grant or denial of a motion for attorney fees under OCGA § 9-15-14 (b) “unless the court has abused its discretion.”

Here, the Marinos claim that, in light of our opinion in Marino I, the Association’s decision, following remand, to continue litigating its claim for breach of the settlement agreement lacked substantial justification. They further argue that the Association’s amendment to the claim to seek monetary damages, in addition to injunctive relief, was done for purposes of delay and harassment. But in Marino I, we expressed no opinion on the merits of the Association’s claim for breach of the settlement agreement. Furthermore, we are unpersuaded that the aforementioned opinion can be read as implicitly holding that the settlement agreement was void as a violation of public policy. Indeed, under our contract law, “a person may waive or renounce what the law has established in his favor when he does not thereby injure others or affect the public interest.” And there is nothing in the appellate record which would possibly lead us to conclude that the settlement agreement here injured others or affected the public interest.

Moreover, when a trial court denies summary judgment because genuine issues of material fact remain, as the trial court did in this matter with regard to the Association’s breach-of-settlement-agreement claim, an award of attorney fees under OCGA § 9-15-14 (b) is not warranted except in unusual cases. And we do not find that our decision in Marino I or the Association’s decision to amend its claim to include a request for damages constitutes an unusual circumstance entitling the Marinos to attorney fees under this particular statute. Accordingly, the trial court did not abuse its discretion when it declined to award the Marinos fees under OCGA § 9-15-14 (b).

4. Finally, the Marinos contend that the trial court erred in granting the Association’s motion to dismiss their counterclaim for attorney fees. Specifically, they argue that the trial court erred to the extent that it granted the Association’s motion on the ground that they failed to comply with Section 16 (b) of the Amended Declaration, which requires that homeowners attempt to resolve disputes by filing a grievance with the Board and attending a hearing regarding the dispute prior to filing a lawsuit. However, we held in Division 1, supra, that the Marinos are the “prevailing party’ because they successfully defended against the Association’s action, and thus, they are entitled to attorney fees regardless of whether they succeeded on their counterclaims. Accordingly, we need not address this enumeration of error.

Decided March 16, 2015.

Julie A. Liberman, for appellants.

Lueder, Larkin & Hunter, John T. Lueder, Cynthia C. Hodge, for appellee.

In summary, for all of the foregoing reasons, we reverse the trial court’s ruling that the Marinos were not the “prevailing party” to the litigation and were not entitled to attorney fees. And we remand the case for further proceedings to determine the exact amount of attorney fees to be awarded and for final judgment to be entered in favor of the Marinos.

Judgment affirmed in part and reversed in part, and case remanded.

Doyle, P. J., and Miller, J., concur.

       322 Ga. App. 839, 840 (747 SE2d 31) (2013).

        Id. at 844-48 (2).

        Id. at 850 (5).

        See id. at 840-43.

        Id. at 841.

        Id.

        Id. at 841-42.

        Id. at 842.

        Id.

         Id.

        Id.

         Id.

        Id.

        See OCGA § 44-5-60 (d) (4) (“Notwithstanding any other provision of this Code section or of any covenants with respect to the land, no change in the covenants which imposes a greater restriction on the use or development of the land will be enforced unless agreed to in writing by the owner of the affected property at the time such change is made.”).

        Marino I, 322 Ga. App. at 842; see also OCGA § 44-2-226 (a).

        Id. at 843.

        Id.

       Id.

        Id. at 850 (5).

        Id. at 840.

        Id. at 844-48 (2).

        Id. at 850 (5).

        Id.

        Crabapple Lake Parc Cmty. Ass’n, Inc. v. Circeo, 325 Ga. App. 101, 104-105 (1) (a) (751 SE2d 866) (2013); accord Hall v. Town Creek Neighborhood Ass’n, 320 Ga. App. 897, 899 (740 SE2d 816) (2013); Southland Dev. Corp. v. Battle, 272 Ga. App. 211, 213-214 (612 SE2d 12) (2005).

        Bd. of Comm’rs of Crisp County v. City Comm’rs of the City of Cordele, 315 Ga. App. 696, 699 (727 SE2d 524) (2012); accord Holcim (US), Inc. v. AMDG, Inc., 265 Ga. App. 818, 820 (596 SE2d 197) (2004).

        Crabapple Lake Parc, 325 Ga. App. at 105 (1) (a) (punctuation omitted); accord Municipal Elec. Auth. of Ga. v. Gold-Arrow Farms, Inc., 276 Ga. App. 862, 866 (1) (625 SE2d 57) (2005).

        Crabapple Lake Parc, 325 Ga. App. at 105 (1) (a) (punctuation omitted); accord Municipal Elec. Auth. of Ga., 276 Ga. App. at 866 (1).

        Crabapple Lake Parc, 325 Ga. App. at 105 (1) (a) (punctuation omitted); accord Municipal Elec. Auth. of Ga., 276 Ga. App. at 866 (1).

        Magnetic Resonance Plus, Inc. v. Imaging Sys. Int’l, 273 Ga. 525, 529 (3) (543 SE2d 32) (2001); accord Farrar v. Hobby, 506 U. S. 103, 111-112 (II) (113 SCt 566, 121 LE2d 494) (1992); Hutchinson v. Composite State Bd. of Med. Examiners, 263 Ga. 186, 186 (429 SE2d 661) (1993).

        Benchmark Builders, Inc. v. Schultz, 294 Ga. 12, 14 (751 SE2d 45) (2013) (punctuation omitted; emphasis in original).

        Id. (emphasis in original).

       Emphasis supplied.

        Marino I, 322 Ga. App. at 850 (5) (emphasis supplied).

        See Benchmark Builders, Inc., 294 Ga. at 14 (noting that “defendants prevail by not having any relief imposed against them”); Eagle Jets, LLC v. Atlanta Jet, Inc., 321 Ga.App. 386, 402-03 (740 SE2d 439) (2013) (holding that defendant that won judgment on plaintiff’s claims was entitled to attorney fees pursuant to contract, which stated that such fees would be awarded to prevailing party in litigation).

       We acknowledge that the Marinos argue that the claim for breach of the settlement agreement should have been dismissed as void against public policy, especially in light of our holding in Marino I that the covenant was unenforceable as a violation of the POA Act and OCGA § 44-5-60 (d) (4). Again, given our holding in Division 1, supra, we need not address this issue. Nevertheless, as more fully discussed in Division 3, infra, we do not agree that our holding in Marino I can be read as even implicitly finding that the settlement agreement was void as a matter of public policy.

        See OCGA § 9-15-14 (b).

        See id.

        Rescigno v. Vesali, 306 Ga. App. 610, 616 (4) (703 SE2d 65) (2010).

        Bryan v. MBC Partners, L.P., 246 Ga. App. 549, 552 (3) (541 SE2d 124) (2000).

        See id. (holding that homeowner validly contracted to abide by restrictive covenants mutually applicable to all lot owners, including a valid proscription on all signs whatsoever, and thus enforcement of restrictive covenants did not violate public policy regarding restraints on free speech).

        See O’Leary v. Whitehall Constr., 288 Ga. 790, 792-93 (3) (a) (708 SE2d 353) (2011) (holding that an award of attorney fees under OCGA § 9-15-14 (b) to a party “whose motion for summary judgment was denied must be vacated except in unusual cases where the trial judge could not, at the summary judgment stage, foresee facts authorizing the grant of attorney fees.” (punctuation omitted)).

        See id.


source: Caselaw Access Project

author: BARNES, Presiding Judge.

license: Public Domain

text:
    A14A1741.
    CARTER v. THE STATE.
    (770 SE2d 295)
   BARNES, Presiding Judge.

In November 2003, a Fulton County jury convicted Chenard Carter of possession of a firearm during the commission of a crime and multiple counts of voluntary manslaughter and aggravated assault. The trial court sentenced him to serve a total of 25 years. After a lengthy delay, this appeal followed, in which Carter argues that the trial court erred in sentencing him for voluntary manslaughter on a repugnant verdict because the jury returned both not guilty and guilty verdicts on voluntary manslaughter. He also contends that his trial counsel was ineffective for failing to object to the repugnant verdict and improper sentence. Because the verdict is not legally repugnant and Carter’s trial counsel was not ineffective, we affirm the judgment of conviction and sentence.

1. After the jury rendered its verdict in November 2003, newly-appointed counsel filed a timely motion for new trial. He amended it in October 2004, and the trial court denied the motion in December 2004. In September 2007, the State moved the trial court to appoint an appellate attorney for Carter, which the court did in February 2011. After the trial court granted Carter’s motion for an out-of-time appeal in October 2013, Carter filed another amended motion for new trial, which the court denied in February 2014, and he subsequently filed this appeal.

The delay of more than 11 years between the verdict and this court’s review

put[s] at risk the rights of defendants and crime victims and the validity of convictions obtained after a full trial. We therefore reiterate that it is the duty of all those involved in the criminal justice system, including trial courts and prosecutors as well as defense counsel and defendants, to ensure that the appropriate post-conviction motions are filed, litigated, and decided without unnecessary delay.

Shank v. State, 290 Ga. 844, 849 (5) (c) (725 SE2d 246) (2012). The failure to discharge that duty in this case does not affect the outcome of this appeal, however, because Carter has enumerated no error associated with this delay. Morgan v. State, 290 Ga. 788,789, n. 2 (725 SE2d 255) (2012).

2. Viewed in the light most favorable to the verdict, Francis v. State, 296 Ga. 190, 191 (766 SE2d 52) (2014), the evidence at trial revealed that the victim was lying down in her bedroom when a bullet from a “very high velocity military[-]type weapon, [an] assault rifle” such as an AK-47, pierced the outer wall of her apartment, continued through her bedroom wall, and penetrated her abdomen. She died 30 days later as a result of the gunshot wound. In a complicated fourteen-count indictment, the State charged Carter and two other men with malice murder, felony murder, aggravated assault, and firearms offenses, contending that the men were shooting at each other outside of the victim’s apartment when a bullet from one of their weapons struck the victim and caused her death.

Carter was charged with one count of malice murder for shooting the victim and three counts of felony murder for causing the death of the victim while committing the underlying felony of aggravated assault on the victim, aggravated assault on his co-defendant Smith, and aggravated assault on his co-defendant Nesmith. He was similarly charged with three counts of aggravated assault against the victim, against Smith, and against Nesmith, and with possession of a firearm during the commission of a crime.

After both parties rested, the trial court and the parties held an unreported charge conference. The record contains a copy of Carter’s requests to charge, which includes charges on voluntary manslaughter and provocation. During their closing arguments, neither Carter nor the State discussed the issue of voluntary manslaughter as a lesser included offense of either malice or felony murder, although the State separately addressed each of the murder counts. After closing arguments, the trial court asked the parties outside of the jury’s presence if they had any objection to a charge on voluntary manslaughter, because the court thought it could be a lesser included offense of any of the murder counts. The State responded that it thought the court should instruct the jury that if it convicted Carter of voluntary manslaughter as a lesser included offense of malice murder, then it should not continue with its deliberations as to the felony murder counts, alluding to Edge v. State, 261 Ga. 865 (2) (414 SE2d 463) (1992).

After further colloquy, the court decided to charge the jury that before it was authorized to return a verdict of guilty to malice murder or felony murder, it must first determine if mitigating evidence would cause either offense to be reduced to voluntary manslaughter. After charging the jury on the elements of malice murder, the court gave the following charge on voluntary manslaughter:

Ladies and gentlemen, a lesser offense of murder is voluntary manslaughter. And you would be authorized to consider this count along with the other counts in the indictment. Voluntary manslaughter reads as follows: after consideration of all of the evidence [,] before you would be authorized to return a verdict of guilty of malice or felony murder, you must first determine whether mitigating evidence, if any, would cause the offense to be reduced to voluntary manslaughter.
A person commits voluntary manslaughter when that person causes the death of another human being under circumstances which would otherwise be murder if that person acts solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person. And in that connection I charge you the burden of proof is upon the State to prove beyond a reasonable doubt that the offense is not so mitigated.
Provocation by words alone will in no case justify such excitement of passion sufficient to free the accused from the crime of murder or to reduce the offense to manslaughter when the killing is done solely in resentment of such provoking words. Words accompanied by menaces, though the menaces do not amount to an actual assault, may in some instances be sufficient provocation to excite a sudden, violent, and irresistible passion in a reasonable person. And if a person acts from such passion and not from malice or any spirit of revenge, then such would constitute voluntary manslaughter. In all cases the motive is for determination by the jury.

The court did not repeat the voluntary manslaughter charge after it charged the jury on the elements of felony murder, but when explaining how to complete the verdict form after the jury had considered the evidence and the law, the court said:

The verdict form as to Count One is [“] We, the jury, find the defendant [‘]blank[’] of murder. [”] And in that spot you would be authorized to return a verdict of guilty or not guilty based upon your determination. If you find that he is not guilty of murder, you would concurrently be able to and authorized based upon the evidence coupled with the law to find the defendant guilty or not guilty of voluntary manslaughter. And the same holds true for the felony murder counts. And each one has an additional option as to the voluntary manslaughter.

Carter reserved his objections to the charge, which was permissible in 2003 when this case was tried. See OCGA § 17-8-58 (b) (failure to object to charge in trials after July 1, 2007, precludes appellate review other than for plain error).

After deliberating for a time, the jury returned with several questions, and after further deliberation, the foreperson announced that the jury was deadlocked on the malice and felony murder charges. The trial court gave an Allen charge, and the jury returned 50 minutes later with the following verdict:

Count 1, malice murder, not guilty; voluntary manslaughter, not guilty.
Count 2, felony murder, not guilty; voluntary manslaughter, guilty.
Count 3, felony murder, not guilty; voluntary manslaughter, guilty.
Count 5, felonymurder, not guilty; voluntary manslaughter, guilty.
Counts 6, 7, and 8, aggravated assault, guilty.
Count 14, possession of a firearm during the commission of a crime, guilty.

The trial court merged the three voluntary manslaughter convictions and the conviction for aggravated assault of the victim and sentenced Carter to serve a total of twenty-five years.

Although Carter specifically does not challenge the sufficiency of the evidence, we find that the evidence as summarized above was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that he was guilty of the crimes of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

3. Carter argues on appeal that the verdict is repugnant and mutually exclusive, because the jury found him both not guilty and guilty of the same offense, voluntary manslaughter, thus raising double jeopardy concerns. He concedes that Georgia abolished the “inconsistent verdict” rule in Milam v. State, 255 Ga. 560, 562 (2) (341 SE2d 216) (1986), in which our Supreme Court affirmed a verdict of guilty but mentally ill of the malice murder of one victim but not guilty by reason of insanity of the malice murder of a second victim that occurred very shortly after the first. In reaching this conclusion, the court in Milam simply said that it adopted the reasoning set forth in United States v. Powell, 469 U. S. 57 (105 SCt 471, 83 LE2d 461) (1984).

In Powell, a jury acquitted the defendant of both conspiring to possess cocaine with the intent to distribute it and of possessing cocaine with the intent to distribute it, but convicted her of three counts of using the telephone to commit and facilitate conspiracy to possess cocaine with the intent to distribute and of using the telephone to commit and facilitate the possession of cocaine with the intent to distribute. 469 U. S. at 60. Powell argued that the verdict was inconsistent because the jury had acquitted her of the predicate felonies that formed the basis of her conspiracy conviction, and the Ninth Circuit agreed, reversing the conspiracy convictions. Id. The Supreme Court reversed the Ninth Circuit and reinstated Powell’s convictions, first citing Dunn v. United States, 284 U. S. 390 (52 SCt 189, 76 LE 356) (1932), in which Justice Holmes stated, “Consistency in the verdict is not necessary. . . . We interpret the acquittal as no more than [the jury’s] assumption of a power which they had no right to exercise, but to which they were disposed through lenity.” (Citations and punctuation omitted.) Id. at 393. See Powell, 469 U. S. at 61.

The Powell Court found no reason to vacate that defendant’s convictions merely because the verdict could not he rationally reconciled, because in addition to the jury’s possible exercise of lenity, the government is unable to invoke review in such situations and the courts are generally reluctant to inquire into the jury’s workings. Powell, 469 U. S. at 68-69. The Court noted, however, that it was not addressing a situation where the defendant is convicted of two crimes and a guilty verdict on one count logically excludes a finding of guilt on the other. Id. at 69, n. 8.

Carter argues that in this case, the verdict is not merely inconsistent but “repugnant,” and cannot be affirmed because the jury both convicted and acquitted him of the same crime. While Milam abolished the “inconsistent verdict” rule, our appellate courts have continued to recognize that a “repugnant” or “mutually exclusive verdict” cannot stand. A repugnant or mutually exclusive verdict is one in which “the jury, in order to find the defendant guilty on both counts, necessarily reached two positive findings of fact that cannot logically mutually exist.” (Citation and punctuation omitted.) Jackson v. State, 276 Ga. 408, 410 (2) (577 SE2d 570) (2003). For example, under the facts in Jackson, to find the defendant guilty of both felony murder predicated on aggravated assault with a deadly weapon and involuntary manslaughter, the jury would have had to find that the defendant acted both with the intent to commit aggravated assault with a deadly weapon, which cannot be committed by criminal negligence, and with reckless conduct, which requires proof of criminal negligence. Id. at 411-412 (2). Such mutually exclusive verdicts are void, and if the evidence is otherwise sufficient, the case must be remanded for a new trial. Flores v. State, 277 Ga. 780, 783-785 (596 SE2d 114) (2004); see also Allaben v. State, 294 Ga. 315, 320 (2) (a) (5) (751 SE2d 802) (2013); Walker v. State, 293 Ga. 709, 716 (2) (e) (749 SE2d 663) (2013); Turner v. State, 283 Ga. 17, 21 (655 SE2d 589) (2008).

As the State points out, the situation in this case is unlike those considered in Jackson, Flores, Allaben, Walker, and Turner, in which multiple guilty verdicts were held to be mutually exclusive and not just inconsistent. The State further argues that the mutually exclusive verdict rule “is not implicated where, as here, verdicts of guilty and not guilty are returned,” citing Shepherd v. State, 280 Ga. 245, 248 (1) (626 SE2d 96) (2006). In Shepherd, the defendant was found not guilty by reason of insanity of malice murder and guilty but mentally ill of two counts of felony murder, aggravated assault, and firearms charges, and the court held that this was an inconsistent verdict, not a mutually exclusive one. Id. at 246, 248-250 (1). The Court noted that the abolition of the inconsistent verdict rule was “in accordance with the principle that it is not generally within the trial court’s power to make inquiries into the jury’s deliberations, or to speculate about the reasons for any inconsistency between guilty and not guilty verdicts.” (Citation and punctuation omitted.) Id. at 249 (1). See also Reese v. State, 308 Ga. App. 528, 528-529 (707 SE2d 913) (2011) (verdict of not guilty of possessing cocaine with intent to distribute but guilty of possessing cocaine with intent to distribute near a housing project was not repugnant); Artis v. State, 299 Ga. App. 287, 292-293 (5) (682 SE2d 375) (2009) (verdict of not guilty of armed robbery but guilty of aggravated assault with a deadly weapon was not repugnant).

We agree that this case is unlike those cases in which verdicts of guilty for multiple offenses cannot be reconciled. But it is also unlike those cases in which verdicts of guilty and not guilty were held to be merely inconsistent rather than repugnant. None of the cases cited by the State involved a verdict like this one, in which a jury found a defendant both not guilty and guilty of the same crime — voluntary manslaughter. Nonetheless, we disagree with Carter that the crime of voluntary manslaughter is identical whether it is a lesser included offense of malice murder or a lesser included offense of felony murder.

“[A]ny type of‘murder,’not just malice murder, maybe mitigated by evidence that would cause the offense to be reduced to voluntary manslaughter.” Wallace v. State, 294 Ga. 257, 260 (754 SE2d 5) (2013) (Melton, J., concurring). The “malice” required to establish the crime of malice murder “comprises two elements: intent to kill and the absence of provocation or justification.” Williams v. Kemp, 255 Ga. 380, 386 (338 SE2d 669) (1986); OCGA § 16-5-1 (b). Malice murder is reduced to voluntary manslaughter if the killer intends to kill and acts upon “a sudden, violent, and irresistible passion” due to provocation sufficient to excite such passion in a reasonable person. OCGA §§ 16-5-1 (b), 16-5-2 (a).

On the other hand, “[t]he presence or absence of malice is irrelevant to commission of felony murder” and the “intent to kill, like malice, is not an element of [that] offense.” (Citation and punctuation omitted.) Brockman v. State, 292 Ga. 707, 730 (16) (739 SE2d 332) (2013). The State need only prove that the defendant caused the death of another “in the commission of a felony.” OCGA § 16-5-1 (c). Finally,

[i]f a person shoots at another under circumstances that if death had ensued the offense would be reduced from murder to voluntary manslaughter, and by accident the shot hits and kills another person standing by, for whom the shot was not intended, the offense would be voluntary manslaughter.

McLendon v. State, 172 Ga. 267 (4) (157 SE 475) (1931); accord Coker v. State, 209 Ga. App. 142, 143 (433 SE2d 637) (1993). While the Supreme Court has questioned the proposition that the provocation necessary for a voluntary manslaughter conviction may come from someone other than the homicide victim, it has so far questioned it only in dicta. See Foster v. State, 288 Ga. 98, 105-106 (4) (701 SE2d 189) (2010); Foster v. State, 264 Ga. 369 (1), n. 2 (444 SE2d 296) (1994).

It follows that the jury did not have to make two irreconcilable factual determinations about Carter’s intent to reach the verdict it did, and that the crimes of voluntary manslaughter under malice murder or felony murder are not the same. The jury could have determined that Carter fired at the co-defendants solely as the result of a sudden, violent, and irresistible passion resulting from the co-defendants’ provocative act of shooting at him, thus mitigating his offense and rendering him guilty of voluntary manslaughter as a lesser included offense of felony murder. Along those lines, the jury could also have logically found that Carter was not guilty of malice murder because he did not intend to kill the victim, and was not guilty of voluntary manslaughter as a lesser included offense of malice murder because the victim did not provoke him to act.

Accordingly, we conclude that the verdict was not legally repugnant and that Carter’s acquittal for voluntary manslaughter as a lesser included offense of malice murder does not bar his conviction for voluntary manslaughter as a lesser included offense of felony murder. It follows that the trial court did not err in sentencing Carter for voluntary manslaughter.

Decided March 17, 2015

Charles H. Frier, for appellant.

Paul L. Howard, Jr., District Attorney, David K. GetachewSmith, Assistant District Attorney, for appellee.

4. Carter also contends his trial counsel was ineffective for failing to object to the verdict and sentence. We held in Division 3, however, that the verdict was not repugnant, and therefore any objection would have been futile. “The failure to pursue a futile objection does not amount to ineffective assistance.” Ventura v. State, 284 Ga. 215, 218 (4) (663 SE2d 149) (2008). Accordingly, the trial court did not err in denying Carter’s claim of ineffective assistance.

Judgment affirmed.

Boggs and Branch, JJ., concur.

       Carter’s co-defendant Deante Nesmith pled guilty to voluntary manslaughter in January 2004. Carter was convicted of voluntary manslaughter and a firearms offense in May 2004, and we affirmed those convictions almost eight years ago. Smith v. State, 284 Ga. App. 845 (644 SE2d 913) (2007).

       In Edge, our Supreme Court found error in a charge instructing the jury to consider voluntary manslaughter only if it found the defendant not guilty of either malice murder and felony murder, because if the jury found the defendant guilty of felony murder, “it would not then go on to consider evidence of provocation or passion which might authorize a verdict for voluntary manslaughter.” Id. at 867 (2). “[T]he intent of Edge was to preclude a sequential charge which could allow juries to find defendants guilty of felony murder without consideration of evidence of provocation or passion which might authorize a verdict of voluntary manslaughter.” (Citation omitted.) Miner v. State, 268 Ga. 67, 68 (4) (485 SE2d 456) (1997).

       On December 12, 2014, the Supreme Court of Georgia granted a writ of certiorari in Springer v. State, 328 Ga. App. 654(762 SE2d 433) (2014), to consider whether, “[w]ith respect to their application of the mutually exclusive verdicts rule to crimes involving different states of mind, whether Jackson v. State, 276 Ga. 408 ... and its progeny ought to be overruled. See Allaben[, 294 Ga. at 322-325). (Nahmias, J., concurring).”


author: DOYLE, Presiding Judge.

text:
    A14A1974.
    THE STATE v. THOMAS.
    (770 SE2d 301)
   DOYLE, Presiding Judge.

Shannon D. Thomas was indicted for one count of felony theft by taking. Thomas filed a demurrer/motion to quash the indictment on the ground that it was defective. The trial court granted the motion, and the State now appeals. For the reasons that follow, we affirm.

The record shows that Thomas was indicted for felony theft by taking in violation of OCGA § 16-8-2 in a count allegingthat “between [November 17, 2012,] and [December 15, 2012, Thomas] did unlawfully take United States funds, the property of Robert Lee, with a value greater than $5,000.00, with intent to deprive said owner of said property . . . .” Thomas filed a demurrer/motion to quash the indictment, arguing that the single count failed to provide sufficient notice regarding the manner of commission or identify the date of the crime with sufficient particularity. She contended that pursuant to State v. Layman, the State was required to narrow the date of the alleged occurrence of the crime if it reasonably could do so.

At the hearing on the motion to quash, the State alleged that prior to the time frame in the indictment, Thomas worked as a caretaker through a nursing business for Lee and his wife. After Ms. Lee passed away, Thomas’s employment with Lee ceased, and thereafter, a new employee of Lee’s discovered that someone had been using a credit card issued to Lee, which card he had never used and which he had not authorized any other individual to use. This discovery was made after the employee found that a $2,500 deduction from Lee’s bank account was made to cover the charges on the credit card. While investigating the purchases made with the credit card, surveillance video identified Thomas and her estranged husband as individuals who were making purchases with the credit card. Lee had not authorized Thomas to do so.

Thomas argued, however, that the State failed to allege sufficiently the manner in which the theft occurred, that the State failed to inform Thomas of all the charges against which she would need to defend at trial and would not protect her from future prosecutions. Thomas explained that instead of alleging the specific instances of theft from use of the credit card, the State instead alleged one instance of theft of $2,500.

In an oral ruling, the trial court granted the motion to quash after a hearing, and the State filed a motion for reconsideration of that ruling, which was denied by the trial court in a written order, finding that because the thefts were made using a financial card, it would be relatively simple for the State to allege with specific dates the various instances of theft.

“Because we are reviewing the indictment on interlocutory appeal, before any trial, we must apply the rule that a defendant who has timely filed a special demurrer is entitled to an indictment perfect in form and substance.”

The State contends that the trial court erred by granting the special demurrer because it was sufficient to allege the date range of all the financial card transactions, and specific dates were not necessary. We disagree.

First, the indictment fails to mention the manner of commission of the alleged thefts, that is, whether the thefts were separate instances of use of the credit card or whether the theft was the $2,500 taken from Lee’s account to cover that balance. Conceivably, Thomas could later be charged with some other violation for the individual unauthorized uses of the card separately from the theft of the $2,500, or perhaps Thomas was not the individual using the card in all those instances. Moreover, the State could easily ascertain the dates the alleged crimes occurred and could have stated the manner in which the theft occurred, and it was, therefore, appropriate for the trial court to grant the motion to quash.

Decided March 17, 2015

Lee Darragh, District Attorney, William C. Akins, Assistant District Attorney, for appellant.

Brett M. Willis, for appellee.

The State cites to Stack-Thorpe v. State, Christian v. State, and Patterson v. State, for the proposition that the State may allege many small instances of theft over time in one count as a felony rather than a misdemeanor; those cases, however, are inapposite because they were post-conviction appeals addressing sufficiency of the evidence in which the indictment was not alleged to be infirm or in which this Court declined to review the alleged imperfect indictment after conviction.

Accordingly, the State’s enumeration of error is without merit. Based on our conclusion as to this issue, it is unnecessary for us to reach the issue raised in the State’s second enumeration of error.

Judgment affirmed.

Miller and Dillard, JJ., concur.

       OCGA § 16-8-2 (“A person commits the offense of theft by taking when [s]he unlawfully takes or, being in lawful possession thereof, unlawfully appropriates any property of another with the intention of depriving him of the property, regardless of the manner in which the property is taken or appropriated.”).

       279 Ga. 340, 340-341 (613 SE2d 639) (2005).

        Blackmon v. State, 272 Ga. App. 854, 855 (614 SE2d 118) (2005).

       See State v. Bair, 303 Ga. App. 183, 183-184 (692 SE2d 806) (2010).

       See id. at 187.

       See Blackmon, 272 Ga. App. at 854-855 (“Generally, an indictment which fails to allege a specific date on which the crime was committed is not perfect in form and is subject to a timely special demurrer. This Court has recognized an exception to this rule where the evidence does not permit the [Sjtate to identify a single date on which the offense occurred. However, this exception is not applicable in this case because the [Sjtate never presented any evidence before the trial court showing that it cannot more specifically identify the dates of the offenses.”) (footnotes omitted).

       270 Ga. App. 796, 798-799 (1) (608 SE2d 289) (2004) (addressing sufficiency of the evidence and holding that a series of thefts may be charged in one cumulative felony count).

       288 Ga. App. 546, 548-549 (2) (654 SE2d 452) (2007).

       289 Ga. App. 663, 663-668 (1) (658 SE2d 210) (2008) (addressing sufficiency of the evidence to prove theft charges), abrogated on other grounds by Stephens v. State, 289 Ga. 758, 759, n. 2 (716 SE2d 154) (2011).

        Patterson, 289 Ga. App. at 663-668 (1); Christian, 288 Ga. App. at 548-549 (2) (“[i]f a defendant wants greater specificity with regard to the time or circumstances of the alleged crime, or feels that the indictment is defective as multiplicitous, her appropriate remedy is a pre-trial special demurrer that challenges the form of the indictment”); Stack-Thorpe, 270 Ga. App. at 789-799 (1).


text:
    A14A2008.
    LESTER v. BUTLER.
    (770 SE2d 303)
   DOYLE, Presiding Judge.

Shirley D. Lester appeals from an order of the Superior Court of Athens-Clarke County affirming a decision by the Department of Labor’s Board of Review (“Board”), which denied her application for unemployment benefits after her employer fired her when she refused to work on Saturdays because of her religious beliefs adopted after beginning employment. Lester argues that the denial of her claim for unemployment benefits violated the Free Exercise Clause of the First Amendment. We agree, reverse, and remand this case for further proceedings consistent with this opinion.

On appellate review of unemployment appeals, this Court does not sit as a fact-finding body, but rather one for the correction of errors of law. . .. When this Court reviews a superior court’s order in an administrative proceeding, our duty is not to review whether the record supports the superior court’s decision but whether the record supports the final decision of the administrative agency.

So viewed, the record shows that in April 2011, Lester was hired by Goodwill of North Georgia, Inc., as a floor associate. In July 2011, she became a Seventh-Day Adventist and requested that she not be scheduled to work on Saturdays due to her religious beliefs. Goodwill responded that it could not guarantee Saturdays off, would not accommodate her request, and suggested that she find another employee to cover her Saturday shifts, provided that the substitute employee would not require overtime pay. In July and August 2011, Lester missed work on at least four Saturdays, and she was unable to find another employee to take those shifts.

Goodwill has a policy of terminating employees who accumulate 12 disciplinary “points” in a 12-month period. Each unexcused absence merits two points. Prior to becoming a Seventh-Day Adventist, Lester accumulated four points for absences resulting from her son’s illness and her husband’s court appearance. Her Saturday absences each resulted in two points. By August 20, 2011, Lester had accumulated 12 points, and Goodwill terminated her employment.

Lester filed a claim for unemployment benefits, which claim was denied by the claims examiner. Lester appealed that decision, and the Board hearing officer affirmed, determining that she was disqualified because her reasons for being absent “were personal in nature and within her control.” The Board affirmed the ruling, and the superior court affirmed the Board’s order. This appeal followed.

Lester argues that, pursuant to the First Amendment, she cannot be disqualified from unemployment benefits for exercising a genuine religious belief prohibiting her from working on Saturdays, relying upon several United States Supreme Court decisions, including Hobbie v. Unemployment Appeals Comm. of Fla In that case, Hobbie became a Seventh-Day Adventist after she began working for the employer. When Hobbie subsequently refused to work her scheduled Saturday shifts based upon her religious beliefs, she was fired. After her claim for unemployment benefits was denied, Hobbie’s case reached the United States Supreme Court, and the Court ruled in her favor, holding that the “disqualification of [Hobbie] from receipt of benefits violates the Free Exercise Clause of the First Amendment, applicable to the States through the Fourteenth Amendment.” The Court reiterated that

[w]here the [S]tate conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify [her] behavior and to violate [her] beliefs, a burden upon religion exists. While the compulsion may be indirect, the infringement upon free exercise is nonetheless substantial.

The facts of this case parallel those of Hobbie. Like Hobbie, Lester became a Seventh-Day Adventist after she began working for her employer, and her refusal to violate her religious beliefs by working on Saturdays led to her termination. Although the superior court observed that some of Lester’s accumulated 12 points resulted from reasons unrelated to her religion, it is clear that she would not have been fired if she had not missed work on those Saturdays. In addition, although the superior court emphasized Lester’s failure to find coverage for her scheduled shifts, the primary factfinder — the hearing officer — based its decision upon the fact that Lester changed her work availability after she took the job. Because this change was made based solely upon Lester’s religious beliefs, her disqualification for unemployment benefits was prohibited by the First Amendment and controlling United States Supreme Court precedent.

Decided March 17, 2015.

M. Katherine Durant, for appellant.

Samuel S. Olens, Attorney General, Kimberly B. Lewis, Senior Assistant Attorney General, for appellee.

Thus, the superior court erred by affirming the denial of unemployment benefits to Lester. Accordingly, we reverse and remand this case for further proceedings consistent with this opinion.

Judgment reversed and case remanded.

Miller and Dillard, JJ., concur.

       We granted Lester’s application for discretionary review. See OCGA § 5-6-35 (a) (1).

       We note that Lester’s employer did not file a brief on appeal.

       (Citations and punctuation omitted.) Scott v. Butler, 327 Ga. App. 457, 457-458 (759 SE2d 545) (2014).

       480 U. S. 136 (107 SCt 1046, 94 LE2d 190) (1987).

       See id. at 138 (I).

       See id.

       Id. at 139-140 (II).

       (Punctuation omitted; emphasis in original.) Id. at 141 (II), quoting Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707, 717-718 (III) (A) (101 SCt 1425, 67 LE2d 624) (1981).

       See Hobbie, 480 U. S. at 139 (II); Thomas, 450 U. S. at 717-718 (III) (A); Sherbert v. Verner, 374 U. S. 398, 409-410 (IV) (83 SCt 1790, 10 LE2d 965) (1963).


text:
    A14A1498.
    SYMS v. THE STATE.
    (770 SE2d 305)
   DOYLE, Presiding Judge.

Louis Syms appeals the trial court’s denial of his motion to enforce his plea agreement. For the reasons that follow, we reverse.

Syms was charged with possession of oxycodone with intent to distribute, which carries a punishment of ten to forty years or life; 1 two counts of using a communication device during a felony, which is punishable by one to four years; and selling alprazolam, which carries a punishment of one to ten years. The indictment further alleged that Syms had five prior convictions, one for selling a controlled substance, one for possessing a controlled substance, and three for habitual violator traffic violations. The State also petitioned to revoke Syms’s probation for the commission of the four new crimes.

Justin Maines, the former assistant district attorney (“ADA”) who was first assigned to Syms’s case, testified that he and Syms’s attorney reached an agreement in which (1) Syms would plead guilty to the charged crimes in exchange for the State not seeking recidivist punishment and recommending a ten-year total sentence, and (2) Syms would not challenge the revocation of his probation, and the State would make no recommendation to the trial court about the appropriate punishment upon revocation — a so-called “open-ended” revocation. Syms’s attorney confirmed that this was the deal the parties agreed upon. According to defense counsel, the point of the State waiving recidivist punishment was to ensure that Syms would be eligible for parole.

At a November 13, 2012 calendar call, both defense counsel and the State affirmed that they had reached a plea agreement, noting that with regard to the probation revocation, the plea would be open-ended. The case was continued thereafter on two separate occasions at Syms’s request, with no objection by the State. Syms sought one continuance so that he could acquire evidence of his drug addiction and rehabilitation efforts to present in his defense at the open-ended revocation hearing. He sought a second continuance because he had information concerning an unrelated armed robbery that he hoped to exchange for a more favorable sentence in his own case. Maines was not interested in Syms’s potential information, and Maines considered the parties’ original agreement to be binding.

In January 2013, a new district attorney (“DA”) was sworn in, Maines resigned, and a new ADA was assigned to Syms’s case. The new DA instituted a policy that the office would no longer waive recidivist sentencing. Accordingly, the new ADA notified Syms’s attorney that the State would not honor the plea deal because it was “both stale (8 months old) and unreasonable based on our new prosecution standards.”

Syms filed a motion to enforce the plea agreement. Following a hearing, the trial court denied the motion on the ground that no clear, definite, and enforceable agreement existed. The trial court certified its order for immediate review at Syms’s request, and Syms filed an interlocutory application, which this Court granted. This appeal followed.

“Whether a settlement is an enforceable agreement is a question of contract law for the trial court, but an appellate court owes no deference to its conclusions.” “ ‘Public policy and the great ends of justice’ ” generally require the enforcement of plea agreements between prosecutors and defendants. As the Supreme Court of Georgia has held, “ [t] he integrity of the office of the district attorney demands that promises made by the district attorney are binding on his successor to the extent that they are valid and enforceable.”

A plea agreement is, in essence, a contract between a defendant and the State. Given the unique nature of the agreement, we avoid “slavish adherence” to civil contract principles. Nonetheless, rules of contract often provide the appropriate framework for addressing disputes involving plea agreements.

Here, the trial court acknowledged that the parties had reached an agreement, but deemed it unenforceable because the record did “not demonstrate how . . . [Syms] would have pleadfed] or how he would have been sentenced as to each of these counts.” According to the principles of contract law, a contract is enforceable as long as the parties have reached agreement on the essential terms, “and the absence of agreement on nonessential terms does not render the agreement unenforceable.” Here, the essential term was the sentence to be served — ten years to serve, with the probation revocation open-ended. That the agreement was silent as to the specific sentences for each of the charges, in the absence of any agreement that any of the charges would be dropped or reduced, does not render the agreement unenforceable.

Decided March 18, 2015.

Amy L. Ihrig, for appellant.

Meg E. Heap, District Attorney, Noah J. Abrams, Assistant District Attorney, for appellee.

“This is simply a case where an agreement as to terms was clearly made[,] and then [the State] changed [its] mind and no longer wanted to [honor the plea agreement].” Thus, the trial court erred by denying Syms’s motion to enforce the agreement.

Judgment reversed.

Miller and Dillard, JJ., concur.

       See OCGA §§ 16-13-30 (b), (d); 16-13-26 (1) (A) (xiv) (listing oxycodone as a Schedule II controlled substance).

       See OCGA § 16-13-32.3 (a), (b).

       See OCGA §§ 16-13-30 (b); 16-13-28 (a) (1) (listing alprazolam as a Schedule IVcontrolled substance).

       The record contains a copy of a January 3, 2013 e-mail from defense counsel to Maines asking whether Maines would be willing to “help [Syms] out with a better” offer than that they had agreed upon in exchange for information related to a “multiparty armed robbery of a restaurant.”

       Maines testified that he “believed that [defense counsel] wanted to see if both sides would want to enter into a new agreement if. .. Syms had new information.”

        Capitol Materials v. Kellogg & Kimsey, Inc., 242 Ga. App. 584, 586 (3) (530 SE2d 488) (2000).

        Glover v. State, 258 Ga. App. 527, 529 (574 SE2d 565) (2002).

        State v. Hanson, 249 Ga. 739, 747 (4) (295 SE2d 297) (1982).

       (Footnotes omitted.) Brown v. State, 261 Ga. App. 115, 116-117 (582 SE2d 13) (2003), citing Glover, 258 Ga. App. at 529; Gibson v. State, 257 Ga. App. 134, 135 (1) (570 SE2d 437) (2002); Sparks v. State, 232 Ga. App. 179, 182 (3) (b) (501 SE2d 562) (1998).

        Rushin v. Ussery, 298 Ga. App. 830, 834 (2) (681 SE2d 263) (2009).

       The State argues that defense counsel’s conversations with the former ADA regarding the possibility of negotiating a new reduced sentence in exchange for information about another crime constituted a counteroffer. We disagree. The State made an offer, and Syms accepted it in or around November 2013. Defense counsel’s subsequent inquiry regarding the possibility of renegotiating the plea agreement, in the absence of any revocation by either party, does not constitute a counteroffer that invalidates the parties’ prior agreement.

       (Punctuation omitted.) Johnson v. DeKalb County, 314 Ga. App. 790, 794-795 (1) (726 SE2d 102) (2012).


author: Miller, Judge.

text:
    A14A1510.
    ORR v. RIVER EDGE COMMUNITY SERVICE BOARD et al.
    (770 SE2d 308)
   Miller, Judge.

Georgia Orr filed a wrongful death suit under the Georgia Tort Claims Act against River Edge Community Service Board (“River Edge”) and the Department of Behavioral Health and Developmental Disabilities (collectively, the “Defendants”) more than four years after her husband was struck and killed by a van driven by a River Edge employee. The Defendants filed a motion to dismiss on the grounds that Orr’s ante litem notice was not timely and her complaint was barred by the two-year statute of limitation. The Defendants also moved to dismiss and sought summary judgment based on the prior pending action rule (OCGA § 9-2-44 (a)). The trial court granted the Defendants’ motions and dismissed Orr’s lawsuit, finding that it was time-barred and subject to abatement. Orr appeals, contending that (1) the statute of limitation was tolled by the pending criminal prosecution of the van’s driver and (2) her lawsuit was not abated under the prior pending action rule. For the reasons that follow, we affirm the trial court’s ruling.

Whether a cause of action is barred by the statute of limitation is a mixed question of fact and, where the facts are not in dispute, the question is one of law for the court. See McGhee v. Jones, 287 Ga. App. 345, 347 (2) (652 SE2d 163) (2007).

On February 5, 2007, Francena Chisholm-Moss, driving a van in the course of her employment with River Edge, struck pedestrian Elijah Orr, causing injuries that resulted in his death. Chisholm-Moss was issued a traffic citation, but the warrant against her was ultimately dismissed. Orr did not give ante litem notice to River Edge until February 17,2010, she did not give ante litem notice to the Department of Behavioral Health and Developmental Disabilities until March 8, 2010, and she did not file the instant suit against the Defendants until October 26, 2011. Orr did not file suit against Chisholm-Moss, the driver of the van.

The Defendants, River Edge and the Department of Behavioral Health and Developmental Disabilities, filed a motion to dismiss on the basis that Orr’s ante litem notice was not timely and her complaint was barred by the statute of limitation, which expired in February 2009, two years after the accident occurred, or, at the latest, in September 2009, two years after the prosecutor decided not to press charges against Chisholm-Moss. The trial court dismissed Orr’s lawsuit, finding that it was time-barred because the prosecution against Chisholm-Moss terminated in September 2007 and, thus, the statute of limitation expired in September 2009. This appeal ensued.

1. Orr contends that her case against the Defendants was not time-barred because the pending criminal prosecution of Chisholm-Moss did not terminate until February 2011, when the criminal statute of limitation expired, and the trial court erred in determining that the criminal prosecution ended in September 2007. We disagree.

For tort claims brought against the State, the statute of limitation is two years. OCGA § 50-21-27 (c). However, OCGA § 9-3-99 provides:

The running of the period of limitations with respect to any cause of action in tort that may be brought by the victim of an alleged crime which arises out of the facts and circumstances relating to the commission of such alleged crime committed in this [S]tate shall be tolled from the date of the commission of the alleged crime or the act giving rise to such action in tort until the prosecution of such crime or act has become final or otherwise terminated, provided that such time does not exceed six years.

The plaintiff bears the burden of establishing that a statute of limitation has been tolled. See Smith v. Chemtura Corp., 297 Ga. App. 287, 293 (5) (676 SE2d 756) (2009).

Pretermitting whether the trial court erred in determining that the prosecution of Chisholm-Moss became final in September 2007 for purposes of OCGA § 9-3-99, we will affirm the trial court’s dismissal of a complaint if it is right for any reason. See Johnson v. Equicredit Corp., 238 Ga. App. 380, 381 (1) (517 SE2d 353) (1999); see also Bailey v. Hall, 267 Ga. App. 222, 223, n. 1 (599 SE2d 226) (2004) (“Although, as a matter of judicial economy, we will affirm an order under the ‘right for any reason rule,’ we will generally only do so when the judgment may be sustained upon a legal basis apparent from the record which was fairly presented in the court below.”) (citation omitted).

Here, the Defendants argued that OCGA § 9-3-99 did not apply because the Defendants had not been charged with a crime. This Court has previously held that OCGA § 9-3-99 “tolls the statute of limitation for any cause of action in tort brought by the victim of an alleged crime while the prosecution of the defendant is pending, for a period not to exceed six years.” Mays v. Target Corp., 322 Ga. App. 44, 46 (743 SE2d 603) (2013); Valades v. Uslu, 301 Ga. App. 885, 888-889 (1) (689 SE2d 338) (2009). Thus, tolling is only available in suits against criminal defendants. See Mays, supra, 322 Ga. App. at 46 (suit against criminal defendant’s employer for intentional infliction of emotional distress and negligent hiring could not be tolled pursuant to OCGA § 9-3-99 where employer had not been charged with a crime). In the instant case, Orr filed suit against the Defendants, River Edge and the Department of Behavioral Health and Developmental Disabilities, not against Chisholm-Moss, the driver of the vehicle.

Neither River Edge nor the Department of Behavioral Health and Developmental Disabilities was ever charged with any crime. While it is uncontested that Chisholm-Moss was acting in the course and scope of her employment with River Edge when the accident occurred, there is no allegation that the Defendants were criminally liable for Elijah Orr’s death. “Although the [Defendants and Chisholm-Moss] may be joint tortfeasors for purposes of the instant lawsuit, they were not criminal co-defendants who shared joint criminal responsibility for acts that resulted in a criminal prosecution.” Columbia County v. Branton, 304 Ga. App. 149, 152 (1) (695 SE2d 674) (2010); see also Valades, supra, 301 Ga. App. at 888-889 (1). Accordingly, OCGA § 9-3-99 did not toll the two-year statute of limitation for filing suit against the Defendants, and Orr’s suit is time-barred as a matter of law. Branton, supra, 304 Ga. App. at 153 (1).

Decided March 18, 2015

The Boston Law Firm, Russell M. Boston, Wendy S. Boston, for appellant.

Samuel S. Olens, Attorney General, Kirsten S. Daughdril, Senior Assistant Attorney General, for appellees.

2. Since we conclude that Orr’s lawsuit against River Edge and the Department of Behavioral Health and Developmental Disabilities was time-barred, we need not address her remaining contentions.

Judgment affirmed.

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

       Orr filed her first wrongful death suit against River Edge and the Department of Human Resources in February 2009. The trial court granted the Defendants’ motion to dismiss based on Orr’s failure to provide adequate ante litem notice. Orr appealed, and this Court affirmed the trial court’s dismissal of Orr’s previous lawsuit under Court of Appeals Rule 36. Orr v. River Edge Community Svc. Bd., 316 Ga. App. XXV (July 9, 2012) (affirmed without opinion).

       On February 6, 2007, Chisholm-Moss was issued a traffic citation for leaving the scene of an accident (OCGA § 40-6-270) and ordered to appear in probate court. The case was subsequently transferred from probate court to superior court. In September 2007, the local prosecutor informed the investigating officer that he had decided not to prosecute Chisholm-Moss because there was insufficient evidence to obtain a conviction after the investigation revealed that Elijah Orr was crawling across the road in the dark when he was struck. Approximately two years later, in October 2009, the warrant against Chisholm-Moss was dismissed.

       The Defendants are both state government entities. See Youngblood v. Gwinnett Rockdale Newton Community Svc. Bd., 273 Ga. 715, 716 (1) (545 SE2d 875) (2001) (community service boards are state agencies).


author: ANDREWS, Presiding Judge.

text:
    A14A1602.
    ASHTON ATLANTA RESIDENTIAL, LLC v. AJIBOLA et al.
    (770 SE2d 311)
   ANDREWS, Presiding Judge.

Olakunle Ajibola and 31 other plaintiffs, homeowners in the Chattahoochee Bluffs townhouse community, filed a civil action against developer Ashton Atlanta Residential, LLC for damages resulting from broken and damaged water lines at the community. Ashton filed a motion for summary judgment, and following briefing and a hearing, the Superior Court of Gwinnett County granted Ashton’s motion in part and denied it in part. The trial court granted Ashton a certificate for immediate review, and we granted Ashton’s application for interlocutory appeal. For the reasons that follow, we conclude that the trial court erred in denying Ashton’s motion for summary judgment on the Plaintiffs’ claim of negligent construction, and therefore reverse.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. Further, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the non-moving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.

La Quinta Inns v. Leech, 289 Ga. App. 812 (658 SE2d 637) (2008). We apply a de novo standard of review to an appeal from a grant or denial of summary judgment, “and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.” (Punctuation omitted.) Layer v. Clipper Petroleum, 319 Ga. App. 410, 411 (735 SE2d 65) (2012).

The facts of record in this appeal are sparse. Viewed in a light most favorable to the Plaintiffs, the evidence revealed that Ashton served as the developer of the Chattahoochee Bluffs townhouse community in Cobb County. Chattahoochee Bluffs included 224 townhouses, which Ashton built and sold between 2003 and 2004. Of the 32 named plaintiffs, the most recent sale by Ashton closed on December 8, 2004. As of the date of closing on each townhouse sold, including the December 8, 2004 closing, each townhouse was substantially completed, “in that construction was sufficiently completed so that the purchaser could occupy the property for its intended use.” In addition, Ashton created a homeowners’ association, which it transferred to the residents in 2005.

1. Ashton contends that, because the Plaintiffs filed their complaint on February 5,2013, the Plaintiffs’ action is barred by Georgia’s statute of repose. See OCGA § 9-3-51. We agree.

Under Georgia law,

[n]o action to recover damages:
(1) For any deficiency in the survey or plat, planning, design, specifications, supervision or observation of construction, or construction of an improvement to real property; [or]
(2) For injury to property, real or personal, arising out of any such deficiency; . . .
shall be brought against any person performing or furnishing the survey or plat, design, planning, supervision or observation of construction, or construction of such an improvement more than eight years after substantial completion of such an improvement.

OCGA § 9-3-51 (a). See also Wilhelm v. Houston County, 310 Ga. App. 506, 508 (1) (713 SE2d 660) (2011). Here, Ashton presented testimony that the sale of the last townhouse sold to any of the Plaintiffs closed on December 8, 2004. Furthermore, evidence revealed that on the date of closing, construction of the townhouses was substantially complete. See OCGA § 9-3-50 (2). As a result, the evidence of record demonstrated that the statute of repose would bar any action filed after December 8,2012. See OCGA § 9-3-51; Wilhelm, 310 Ga. App. at 508 (1). Because the Plaintiffs’ action was filed February 5, 2013, two months after the date prescribed by the statute of repose, Ashton discharged its burden to point out, “by reference to the affidavits ... and other documents in the record that there is an absence of evidence to support [the Plaintiffs’] case.” La Quinta Inns, 289 Ga. App. at 813.

Once Ashton met its initial burden, it became incumbent upon the Plaintiffs to “point to specific evidence giving rise to a triable issue.” La Quinta Inns, 289 Ga. App. at 813. The Plaintiffs shirked this responsibility. Rather, the Plaintiffs relied upon unsupported statements in their brief in response to Ashton’s motion for summary judgment and failed to submit any evidence for the trial court’s consideration. Neither the Plaintiffs’ complaint nor their brief in opposition to Ashton’s motion for summary judgment are proper evidence to oppose Ashton’s motion. See OCGA § 9-11-56 (e); Wellstar Health System v. Painter, 288 Ga. App. 659, 663 (655 SE2d 251) (2007); Parker v. Silviano, 284 Ga. App. 278, 281 (2) (643 SE2d 819) (2007); Lynch v. Ga. Power Co., 180 Ga. App. 178, 179 (348 SE2d 719) (1986). As a result, due to the Plaintiffs’ failure to come forward with evidence, summary judgment in favor of Ashton was appropriate. See, e.g., OCGA §§ 9-3-51, 9-11-56 (e). Accordingly, the trial court erred in denying Ashton’s motion for summary judgment on the Plaintiffs’ claim for negligent construction.

The Plaintiffs’ reliance upon Sewell Sales & Svc. v. Travelers Indem. of America, 255 Ga. App. 531 (566 SE2d 346) (2002) and Atlanta Gas Light Co. v. City of Atlanta, 160 Ga. App. 396 (287 SE2d 229) (1981), is misplaced. As a threshold matter, the Plaintiffs presented no evidence concerning the location and ownership of the allegedly defective water lines in response to Ashton’s motion for summary judgment. See OCGA § 9-11-56 (e); Wellstar, 288 Ga. App. at 663; Parker, 284 Ga. App. at 281 (2); Lynch, 180 Ga. App. at 179. Next, irrespective of whether the homeowners’ association was the owner of the water lines, it remains true that the Plaintiffs’ claim is bottomed upon their cause of action for negligent construction (as opposed to damage to realty), which is precluded by OCGA § 9-3-51. See Rosenberg v. Falling Water, Inc., 289 Ga. 57, 59 (709 SE2d 227) (2011) ; Feldman v. Arcadis US, 316 Ga. App. 158, 160 (728 SE2d 792) (2012) ; Wilhelm, 310 Ga. App. at 508-509 (1). In the same vein, Sewell addressed a cause of action for damage to realty and the concomitant statute of limitation codified at OCGA § 9-3-30 rather than the OCGA § 9-3-51 statute of repose. 255 Ga. App. at 533 (for purposes of OCGA § 9-3-30 statute of limitation, “for claims made by an owner of real estate for damages arising out of the negligent installation, design, or construction of someone else’s real property, an action for damage to realty accrues at the time of the injury”). Finally, no allegation has been made that the allegedly defective water lines were installed as a public utility, rather than an improvement to real property owned by the Plaintiffs, which could place the Plaintiffs’ cause of action under the ambit of Atlanta Gas Light. As a result, the trial court erred in denying in part Ashton’s motion for summary judgment.

2. In view of our holding in Division 1, supra, we need not consider Ashton’s remaining enumerations of error. See La Quinta Inns, 289 Ga. App. at 812-813 (“If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim, that claim tumbles like a house of cards [;] [a] 11 of the other disputes of fact are rendered immaterial.”).

Decided March 18, 2015.

FordHarrison, F. Carlton King, Jr., for appellant.

Bobby B. Terry, Ayoub & Mansour, John G. Mansour, Carolina D. Bryant, Swift Currie McGhee & Hiers, Ashley W. Broach, Charles B. Marsh, for appellees.

Judgment reversed and case remanded with direction.

McFadden and Ray, JJ., concur.

       The Plaintiffs’ causes of action included negligent construction and breach of contract.

       The trial court granted Ashton’s motion on the Plaintiffs’ claim for breach of contract. Accordingly, the ruling properly before this Court is the trial court’s order concerning the Plaintiffs’ cause of action for negligent construction.

       Indeed, even the Plaintiffs’ brief to this Court merely recites, and relies upon, unsupported statements from its trial court brief.

         It is for this reason that the trial court’s findings of fact concerning the Plaintiffs’ claims of ownership of the water pipes, and specifically its finding that Ashton “transferred the common area to the home owners’ association on or about March 1, 2005” are unsupported by the record before us.