text:
    A12A0686.
    HENRY v. THE STATE.
    (729 SE2d 429)
   Adams, Judge.

Timothy Henry was convicted by a jury of two counts of aggravated child molestation, two counts of aggravated sodomy and one count of child molestation. The trial court granted his motion for an out-of-time appeal, and Henry timely filed the present appeal, challenging the effectiveness of his trial counsel. Having considered these contentions, we now affirm.

Although Henry does not challenge the sufficiency of the evidence, we will first briefly summarize the evidence so as to allow his enumerations of error to be considered in context.

Henry, who was a long-haul truck driver, had a relationship with the victim’s mother and lived with her, their biological son, the victim and the victim’s half-brother when he was at home. The mother had begun a relationship with Angie Lamb, who was also the victim’s school bus driver, and it was to Lamb that the victim first disclosed the molestation, telling her that when his “daddy comes home he sticks his dong-dong in [his] butt.” Lamb told the mother, who was not at home when the child made the outcry, and the mother questioned the child. He told her that Henry made him “suck his dong-dong” and repeated the allegation about anal sodomy. The police were notified, and a search warrant was obtained for Henry’s truck; during the search police found a laptop computer which contained both images and links to pornography, some of which were introduced into evidence at trial.

Henry denied the allegations, and his defense at trial was that Lamb and the mother had coached the child and fabricated the charges because he had ended his relationship with the mother, thus denying her a means of support, contentions that the jury chose to reject in convicting Henry of all the charges brought against him.

1. In his first enumeration of error, Henry argues that his trial counsel was ineffective for failing to obj ect or move for a mistrial when the laptop computer found during the search was introduced into evidence at trial and urges further that the trial court erred by admitting this evidence. But the record and transcript show that trial counsel sought to exclude the computer and the images and links through a pre-trial motion to suppress and a motion in limine, both of which the trial court denied, obviating the need for him to object again at trial. Herring v. State, 288 Ga. App. 169, 173 (2) (a) (653 SE2d 494) (2007); Kilgore v. State, 247 Ga. 70 (274 SE2d 332) (1981). Further, it was clarified at the motion for new trial hearing that it was understood by the parties that trial counsel never acquiesced in the trial court’s adverse rulings on the admissibility of the evidence and that he had a continuing objection to the evidence. And, as the trial court noted, the laptop was merely exhibited to the jury and it was not accessed during the trial, and the images and links found on the computer were not displayed to the jury via that computer, but were introduced as separate exhibits at trial. Because the record and transcript belie Henry’s contention that trial counsel failed to object to this evidence, and because, in any event, we discern no error in the admission of the laptop, we find Henry’s first enumeration to be without merit.

2. Henry next contends that his trial counsel was ineffective because he failed to make a hearsay objection to the investigating officer’s testimony concerning statements that Lamb and the mother made to him recounting the allegations of the victim. But the mother and Lamb both testified concerning what the victim told them, and “[t]he failure to object to evidence which is merely cumulative of other admissible evidence does not amount to ineffective assistance of counsel.” (Citations omitted.) Woods v. State, 304 Ga. App. 403, 411 (4) (a) (ii) (696 SE2d 411) (2010). Further, trial counsel testified at the motion for new trial hearing that his trial strategy was to highlight the inconsistencies between what Lamb and the mother said the victim told them and what the victim subsequently told the forensic interviewer, specifically that he did not use the same terms in describing what Henry did to him. According to counsel, this was part of his overall trial strategy, which was to show that the charges were fabricated by the mother and Lamb to get back at Henry because he was leaving the mother because of her relationship with Lamb and cutting off her financial support.

The decision of whether to interpose certain objections is a matter of trial strategy and tactics. Trial tactics and strategy, no matter how mistaken in hindsight, are almost never adequate grounds for finding trial counsel ineffective unless they are so patently unreasonable that no competent attorney would have chosen them.

(Citation and punctuation omitted.) Gray v. State, 291 Ga. App. 573, 579 (2) (662 SE2d 339) (2008).

In light of the circumstances of this case, we do not deem trial counsel’s strategy to be patently unreasonable, and thus we find this enumeration also to be without merit.

3. In his third and fourth enumerations of error, Henry contends that trial counsel should have made a hearsay objection to the mother’s testimony and to Lamb’s testimony recounting the allegations of molestation.

However, as stated in Division 2, trial counsel wanted this testimony admitted as part of his trial strategy to show these witnesses fabricated the charges and coached the victim.

When a defendant’s complaint relates “to tactical judgments made by . . . (trial) counsel ... in the absence of a showing, and there is none in the present case, that the trial counsel’s loyalty, integrity or best use of his ability is questioned, a new trial will not be granted on the ground that the defendant was not afforded competent representation.” Walker v. State, 226 Ga. 292, 295 (12) (174 SE2d 440) (1970).

Sledge v. State, 312 Ga. App. 97, 103-104 (2) (b) (717 SE2d 682) (2011). Thus, these contentions are also unavailing.

4. Henry argues in his fifth enumeration of error that his trial counsel was ineffective because he failed to object and move for a mistrial when certain pornographic images from the laptop computer were introduced into evidence at trial. But, as stated in Division 1, trial counsel filed both a motion to suppress and a motion in limine seeking to exclude this evidence, and although counsel did not renew his objection when the laptop was introduced into evidence, out of an abundance of caution he did renew his objection when the images and links found on the computer were introduced as a separate exhibit later in the trial. Further, as stated in Division 1, at no point in the proceedings did the parties or the trial court labor under the impression that counsel had acquiesced in the admission of the evidence. This enumeration is thus also without merit.

5. Henry next argues that trial counsel should have made a hearsay objection to the forensic interviewer’s testimony concerning her interview of the child; he additionally argues in his seventh enumeration of error that trial counsel was ineffective because he did not object to the admission of the child’s taped statement on hearsay grounds or as violative of his confrontation clause rights. Again, however, trial counsel testified that his trial strategy was to show the discrepancies between what the child was alleged to have said to Lamb and his mother and what he told the interviewer. And he said he wanted the jury to see the videotape of the interview because the words the child used in the video were different than the ones his mother and Lamb said he used. Moreover, although Henry also posits that counsel should have objected to admission of the child’s taped statement because it violated his rights under the confrontation clause, he failed to support his confrontation clause argument with either argument or citation of authority, and it is clear in any event urging a confrontation clause violation would have been inconsistent with counsel’s trial strategy.

[T]he mere existence of a defendant’s right to confront a witness at trial cannot be taken to mean that it is always in his interest to do so. A defendant’s confrontation rights are not violated by his own counsel’s failure to call a child molestation victim to the stand if that victim is available to testify at trial. Williams v. State, 290 Ga. App. 841, 842 (1) (660 SE2d 740) (2008). It is also clear that a decision as to whether a witness should testify is within “the realm of specific decisions regarding trial strategy” to which we afford “wide discretion.” Muller v. State, 284 Ga. 70, 72 (663 SE2d 206) (2008).

Robinson v. State, 308 Ga. App. 45, 47 (2) (b) (706 SE2d 577) (2011).

6. Henry next contends that trial counsel was ineffective for failing to object to the trial court’s determination that the child was present and available to testify without further inquiring into the reliability of the victim’s out-of-court statements. But counsel did not want the statements to be excluded in light of his trial strategy to show that the victim had been coached. Further, we have previously held that OCGA § 24-3-16 does not require a hearing to determine indicia of reliability prior to the introduction of the testimony or evidence. And there is no requirement that the trial court make an explicit finding of sufficient indicia of reliability prior to the admission of the child’s out-of-court statements. Adams v. State, 288 Ga. 695, 702 (707 SE2d 359) (2011); Robinson, 308 Ga. App. at 47 (2) (a); Xulu v. State, 256 Ga. App. 272, 275 (4) (568 SE2d 74) (2002). This enumeration is thus also without merit.

7. Lastly, Henry contends that trial counsel was ineffective for failing to object to similar transaction testimony, specifically a reference that Henry may have molested the victim’s brother, who was also his girlfriend’s child and lived with them. The transcript shows this reference to another molestation was elicited by trial counsel during a portion of his cross-examination of the lead investigator when he asked the investigator to read Lamb’s statement to the jury so he could bring out discrepancies between what Lamb told him and what the victim subsequently told the interviewer, and we have already determined that trial counsel’s trial strategy was not unsound. Although in hindsight it would have been the better practice to have the references to another molestation redacted from the statement before the officer read it, even assuming that counsel rendered deficient performance for failing to do so, we must still consider whether, but for this deficiency, there was a reasonable probability that the outcome of his trial would have been different. Robinson, 308 Ga. App. at 46 (2) (precedential value only as to Division 2 (d)). Here, while we cannot say the evidence was overwhelming, it did include more than j ust the allegations made in the initial outcry. For instance, the child’s added details during the forensic interview such as the fact that lotion was used during the molestation and that “white magic stuff” came out. Additionally, the pornographic images from Henry’s computer contained titles such as “Boy Boys Orgy,” and the computer report showed that there were files and links to sites which included references to acts of oral and anal sodomy involving teens and boys. In light of this strong evidence, and the fact that there was no other mention of the other molestation during the trial, we find that Henry has failed to meet his burden of showing a reasonable probability that the outcome of the trial would have been more favorable to him had this testimony been excluded. Armour v. State, 290 Ga. 553, 556(2) (c) (722 SE2d 751) (2012); see also Reed v. State, 291 Ga. 10, 15 (4) (b) (727 SE2d 112) (2012).

Decided June 7, 2012.

Marnique W. Oliver, for appellant.

S. Hayward Altman, District Attorney, MaryK. McKinnon, Assistant District Attorney, for appellee.

Judgment affirmed.

Barnes, R J., and McFadden, J., concur.

       Both the terms “dong-dong” and “ding-dong” were used by the witnesses in describing what the child said, or in describing what they were told the child said; however, it was the fact that the child used a different term in his interview with the forensic interviewer that formed part of Henry’s defense.


source: Caselaw Access Project

author: Dillard, Judge.

license: Public Domain

text:
    A12A0713.
    BROWN v. THE STATE.
    (728 SE2d 778)
   Dillard, Judge.

Following trial, a jury convicted Sheneka Brown on one count of cruelty to children in the first degree based on her failure to seek medical treatment for her 22-month-old son after her boyfriend beat the child. Brown appeals, arguing that the trial court erred in denying her motions in limine to redact portions of a recording of her interview by police and to exclude evidence that she continued her relationship with her boyfriend after the incident. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the jury’s guilty verdict, the evidence shows that on July 31, 2009, Brown and her 22-month-old son, L. B., were staying with Brown’s boyfriend, Quinton Smith, at a home that Smith shared with his mother. At some point that afternoon, Smith came into the bedroom where Brown had been sleeping and where L. B. was currently playing on the floor and told Brown that he had a headache and wanted to sleep. Subsequently, Smith told L. B. to be quiet, but when L. B. continued to play, Smith grabbed the child by his right arm, carried him over his shoulder into the kitchen, and began striking L. B. with a belt. Although she could hear Smith yelling at L. B. and striking him as the child cried, Brown did not intervene but instead asked Smith’s mother to do so. A moment or so later, Brown could hear that L. B. had stopped crying. Assuming that L. B. was okay, Brown went back to sleep without checking on him.

A few hours later, Brown woke up, walked into the kitchen, and found that L. B. was there by himself, standing in a corner. Brown then took L. B. back into the bedroom where they both went back to sleep. But an hour or so later, Brown woke up to the sound of L. B. crying as if he was hurt. After Brown asked L. B. what was wrong, L. B. indicated that his arm hurt, and Brown noticed that he had welts on his body. However, instead of seeking medical attention for L. B., Brown gave him a bath and called a friend who often babysat L. B. to see if L. B. could stay at the friend’s house for a little while. When the friend agreed, Brown dropped L. B. off at the friend’s home and then returned to Smith’s residence.

A day and a half later, on August 2, 2009, Brown’s friend called Brown and told her that L. B.’s arm was hurt and that he needed to go to the hospital. As a result, Brown took L. B. to a local hospital where he was examined by an emergency-room physician, who discovered that the child had significant bruises all over his back and legs. The physician also noticed that L. B. had a limited range of motion in his right shoulder and would cry in pain when that shoulder was touched. Although x-rays did not indicate that he had any broken bones, the physician believed that L. B. may have suffered soft tissue damage to his right shoulder. And based on the fact that L. B.’s injuries were consistent with him having suffered physical abuse, the physician contacted the police and the local Department of Family and Children Services (“DFCS”).

Following a police interview, Brown was arrested and indicted on one count of cruelty to children in the first degree. Prior to trial, Brown filed a motion in limine to redact portions of her recorded interview by police and a motion to exclude evidence that she had continued her relationship with her boyfriend. But after a hearing on the issues and the trial court’s review of the interview recording, the court denied both motions.

During Brown’s trial, the police officer who was called to the hospital testified regarding his investigation of the matter and regarding his interview of Brown, in which she admitted to being aware that Smith had beaten L. B. with a belt. The unredacted, digitally recorded video of that interview was entered into evidence and played for the jury. The State also called the DFCS caseworker as a witness, and the caseworker testified that she had established a safety plan for Brown and L. B., which required that Brown have no further contact with Smith, but that Brown had refused to comply with that aspect of the plan. The emergency-room physician also testified at trial regarding L. B.’s injuries and that those injuries were consistent with him having suffered physical abuse. In addition, Smith’s mother testified concerning Brown’s reactions to Smith’s abuse of L. B., and Brown’s friend and her sister testified as to Brown’s eventual decision to seek medical treatment for L. B. Finally, Brown testified in her own defense that although she heard Smith “whooping” L. B., she did not initially seek medical treatment for the child because she did not think that he was seriously injured. Nevertheless, at the conclusion of her trial, the jury found Brown guilty. This appeal follows.

1. Brown contends that the trial court erred in denying her motion in limine to redact portions of the digital video recording of her interview by police. Specifically, she argues that the coarse and inflammatory language directed toward her by the interrogating officer during the latter portion of the interview should have been redacted because it was irrelevant and prejudicial. We disagree.

At the outset, we note that “[i]n reviewing the denial of a motion in limine, this Court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment, and we cannot reverse a trial court’s ruling absent an abuse of discretion.” In this matter, during the latter part of the recording of Brown’s interview by the investigating police officer, the officer, who was obviously unsatisfied with Brown’s responses, began raising his voice and using profanity. Specifically, the officer questioned Brown’s abilities as a mother and, at one point, stated that he would likely find L. B.’s body in a dumpster one day if the child was ever reunited with Brown.

On appeal, Brown argues that the officer’s inflammatory remarks constituted irrelevant opinions and were prejudicial. Once again, we disagree.

Our Supreme Court has acknowledged that police officers’ comments during interrogations do not constitute sworn witness testimony. Indeed, law-enforcement interrogations are, “by their very nature, attempts to determine the ultimate issue and the credibility of witnesses.” And comments made during the course of such an interview “and designed to elicit a response from a suspect do not amount to opinion testimony, even when a recording of the comments is admitted at trial.” Furthermore, such comments should only be excluded “if the probative value of the comments is outweighed by their tendency to unduly arouse the jury’s emotions of prejudice, hostility or sympathy.”

And here, the inflammatory language about which Brown complains had probative value. Indeed, after the officer began employing this caustic method of interrogation, Brown admitted that she had, in fact, heard Smith striking L. B. with a belt and also heard the child crying but did not intervene. As we have previously emphasized, “[a]ny evidence is relevant which logically tends to prove or disprove any material fact which is at issue in the case, and every act or circumstance serving to elucidate or throw light upon a material issue or issues is relevant.” Moreover, the prejudicial effect of admitting these remarks seems minimal. At the conclusion of the interview, the investigating officer arrested Brown. Thus, it would hardly have been surprising to the jury that the officer believed Brown committed an act of cruelty to her child. Accordingly, the trial court did not abuse its discretion in admitting the unredacted recording of Brown’s interview.

2. Brown also maintains that the trial court erred in denying her motion in limine to exclude evidence that she continued her relationship with Smith even after Smith’s abuse of L. B., arguing that such evidence impermissibly placed her character into evidence. We find this argument unavailing.

It is well established that “Georgia law favors the admission of any relevant evidence, no matter how slight its probative value, and even evidence of questionable or doubtful relevancy or competency should be admitted and its weight left to the jurors.” Furthermore, evidence which is relevant to an issue in a case “is not rendered inadmissible by the fact that it incidentally puts the defendant’s character in issue.” And here, the DFCS caseworker who investigated this matter testified that Brown chose to continue living with Smith — the very person who had abused her child — even though doing so defied the safety plan that the caseworker established and, therefore, hurt Brown’s chances of being reunited with L. B. Although Brown argues that this evidence was improperly admitted, the caseworker’s testimony was relevant to show the State’s theory as to Brown’s state of mind close in time to the incident of abuse — that is, that Brown valued her relationship with Smith more than she valued the safety and well-being of her own child. Accordingly, the trial court did not abuse its discretion in denying Brown’s motion in limine to exclude such evidence.

Decided June 7, 2012.

Lisamarie N. Bristol, for appellant.

Layla H. Zon, District Attorney, Peter H. Boehm, Assistant District Attorney, for appellee.

Judgment affirmed.

Ellington, C. J., and Phipps, P. J., concur.

        See, e.g., Goolsby v. State, 299 Ga. App. 330, 330-31 (682 SE2d 671) (2009); see also Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

        See OCGA§ 16-5-70 (b) (“Any person commits the offense of cruelty to children in the first degree when such person maliciously causes a child under the age of 18 cruel or excessive physical or mental pain.”).

        Hood v. State, 291 Ga. App. 881, 882 (663 SE2d 297) (2008).

        See Homes v. State, 278 Ga. 182, 184 (3) (598 SE2d 459) (2004).

        Collum v. State, 281 Ga. 719, 723 (3) (642 SE2d 640) (2007); see Homes, 278 Ga. at 184 (3).

        Roberts v. State, 313 Ga. App. 849, 851 (2) (723 SE2d 73) (2012).

        Id. (punctuation omitted).

        Ward v. State, 274 Ga. App. 511, 513 (3) (618 SE2d 154) (2005) (punctuation omitted).

        See Roberts, 313 Ga. App. at 851-52 (2) (holding that police officer’s confrontational interview style, which included stating that he believed defendant raped the victim, was nevertheless more probative than prejudicial, and thus, trial court did not abuse its discretion in admitting unredacted interview of defendant).

        Ward, 274 Ga. App. at 513-14 (3).

        Butler v. State, 266 Ga. 537, 538 (1) (468 SE2d 369) (1996) (punctuation omitted).

        See id. (holding that statements by witness that defendant had been considering robbery were relevant to show defendant’s state of mind close in time to charged crimes and were therefore admissible despite putting defendant’s character in issue).


author: Phipps, Presiding Judge.

text:
    A12A0749.
    SLAICK v. ARNOLD.
    (728 SE2d 782)
   Phipps, Presiding Judge.

Emmett J. Arnold, as administrator of the estate of Katie Day, filed a complaint for declaratory judgment against Nancy Slaick, to, among other things, establish the estate’s title to real property or have declared void a deed Day had executed conveying the property to Slaick. Following a bench trial, the trial court issued an order declaring the deed from Day to Slaick “void as it lacks valid and valuable consideration.”

This is the second appearance of this case before this court.* In the prior appeal, we reversed the trial court’s judgment that the deed was void because it lacked consideration. We remanded the case for the trial court to make findings with regard to the issues of fraud and after-acquired title, which Arnold had raised in his complaint but upon which the trial court had not ruled.

On remand, the trial court ruled that legal title to the property at issue did not pass solely to Slaick (as opposed to Slaick and other individuals) because the deed had been procured by inceptive fraud. The court ordered the deed cancelled. The trial court again did not rule on the issue of after-acquired title. Slaick appeals. For the reasons that follow, we reverse.

“The [trial] court is the trier of fact in a bench trial, and its findings will be upheld on appeal if there is any evidence to support them. The plain legal error standard of review applies where the appellate court determines that the issue was of law, not fact.”

The facts in this case, as set forth in our prior opinion, are as follows:

[T]he record shows that the real property at issue in this case was previously owned by Cora Belle Dorsey, who died on September 4,1989. In her will, Dorsey devised the property at issue to Day and Slaick “share and share alike.” Slaick, as the executor of Dorsey’s will, filed an assent to the devise on August 2,1991 “so that full fee-simple title thereto is vested in [Day and Slaick] as provided in [Dorsey’s] will.”
On April 20, 1990, before Slaick’s devise from Dorsey’s estate to Day and Slaick, Day and Slaick went to an attorney’s office for the purpose of executing reciprocal deeds for the property at issue that reserved a life estate for each grantor. According to Slaick, “Aunt Belle wanted her to fix this here so that if I died first it went to mother, but if she died first it went to me. And reserve for herself a life estate. She told my mother that____And it had been over six months and I hadn’t even mentioned it to my mother and she mentioned it to me, we need to go and do what Cora Belle wanted us to do. . . .”
The deed from Day to Slaick provides [that Day]: [F]or and in consideration of LOVE AND AFFECTION AND OTHER GOOD AND VALUABLE CONSIDERATION, the receipt of which is hereby acknowledged, has bargained, sold and does by these presents bargain, sell, remise, release, and forever quit-claim to [Slaick], her heirs and assigns, all the right, title, interest, claim or demand which [Day] has or may have had or may acquire in the future in and to [the property at issue].. . . Day “expressly reserves for herself a life estate in and to the aforesaid lands, it is the intent of the grantor to deed a remainder interest only.” It is undisputed that the reciprocal deed from Slaick to Day was never recorded and cannot be located.
InDay’s [1999] will, she devised her half interest “in any real property owned jointly by me and [Slaick]” to her four other children. She then specifically identified the property at issue in this suit. Day died on March 27, 2006.

The trial court, in its order, stated the following facts in support of its determination that the deed from Day to Slaick shall be cancelled and annulled:

In the present case, Ms. Day was the 72-year old mother of [Slaick]. Secondly, [Slaick] was the past administrator of Ms. Dorsey’s estate, before her removal for mishandling the estate. Further, Ms. Slaick hired the attorney who was to draft and record the reciprocal deeds between the parties, and Ms. Day executed her deed after relying on the promise that both her and her daughter were entering reciprocal deeds to the property at issue. Though Ms. Slaick[’s] deed [from Day] was recorded, Ms. Day’s deed [from Slaick] mysteriously disappeared and was never recorded.

1. As an initial matter, we address Slaick’s contention that the trial court erred in allowing Arnold, following remand of the case, to amend his complaint to allege a claim for fraud. We note that in the appellate record there is no order issued by the trial court allowing the complaint to be so amended. Nor did the trial court in its order on Arnold’s complaint mention any consideration of the complaint’s purported amendment, which states essentially the same allegations concerning that claim as the allegations stated in the complaint. Thus, Slaick has not shown error by the record.

2. Slaick correctly asserts that the trial court erred by cancelling the deed due to fraud. When the failure to perform a promised act is coupled with the present intention not to perform, fraud, in the legal sense, is present. “This is known as inceptive fraud, [] and is sufficient to support an action for cancellation of a written instrument.” Notwithstanding, “the mere failure to comply with a promise is insufficient to establish an inceptive fraudulent intent.”

Fraud may not be presumed, but, being in itself subtle, slight circumstances may be sufficient to carry conviction of its existence. Great inadequacy of consideration, joined with great disparity of mental ability in contracting a bargain, may justify equity in setting aside a sale or other contract. Under the latter principle, a deed may be set aside in equity, on proof of the two elements stated, without proof of anything else as to fraud.

“Proof of one without the other is not sufficient.” “With regard to a disparity of mental ability, weakness of mind not amounting to imbecility is not sufficient mental incapacity to justify setting a deed aside.”

The mental competency to make a deed and the great disparity of mental ability in contracting a bargain are related principles. The Supreme Court of Georgia, in Strong v. Holden, determined that a testator did not lack the requisite mental testamentary capacity to execute a will “simply because she was elderly, hospitalized, physically weak, vomiting and taking prescribed medications,” where the direct evidence from the propounder of the will showed that the testator possessed testamentary capacity.

Decided June 7, 2012.

James F. Baker, Robert A. Ruppenthal, for appellant.

Brown & Brown, George T. Brown, Jr., for appellee.

It is undisputed that there was a great inadequacy of consideration in Day’s conveyance to Slaick of the property at issue. The record reflects an absence of the deed Slaick testified she executed to convey to Day a reciprocal interest in the property, as Day had executed and conveyed to her. But the record is devoid of any evidence showing between Day and Slaick a great disparity of mental ability in contracting a bargain. Arnold points out in his appellate brief that “[a]t the time [the deed was executed], the elderly Ms. Day, according to Ms. Slaick, ‘couldn’t even keep a checkbook.’ ” But, in context, Slaick’s comment was referring to Day’s abilities in 1996, when Day had petitioned to have Slaick removed as administrator of Dorsey’s estate; and not 1990, when Day executed the deed at issue.

The only evidence in the record concerning Day’s mental capacity around the time she executed the deed comes from the deposition testimony of Slaick, who stated that “[a]t that time, [Day] was in excellent health.” No witnesses testified concerning Day’s mental capacity to contract around the time the deed was executed. There was no evidence that Day was uneducated or lacked the ability to read or write, and that Slaick, in contrast, was an experienced businesswoman. Regarding herself, Slaick testified that she “wouldn’t know the first phase about how to record something,” and that she assumed the attorneys had recorded the deed she had executed. And although there was some evidence in the record as to Day’s ill physical health, that evidence failed to show any mental disparity between Day and Slaick.

Accordingly, as there was no evidence in the record to support the trial court’s finding of inceptive fraud, the judgment must be reversed.

Judgment reversed.

Ellington, C. J., and Dillard, J., concur.

       See Slaick v. Arnold, 307 Ga. App. 410 (705 SE2d 206) (2010).

       Id. at 412 (1).

       Id. at 413 (3).

       The after-acquired title issue involves Arnold’s allegation that Day’s deed to Slaick was ineffective because Day acquired title to the property after she had executed the deed to Slaick, an allegation which Slaick disputes.

       We note that neither party appeals from the trial court’s failure to rule upon the issue of after-acquired title, so we do not address that aspect of the trial court’s judgment.

        Crowell v. Williams, 273 Ga. App. 676 (1) (615 SE2d 797) (2005) (citation and punctuation omitted).

        Slaick, supra at 410-411.

       See generally OCGA § 9-11-15 (regarding amendment of pleadings).

        Fine v. Fine, 281 Ga. 850, 852 (2) (642 SE2d 698) (2007) (it is the duty of the party asserting error to show it hy the record); Phan v. Andre & Blaustein, LLP, 309 Ga. App. 191, 193-194, n. 8 (709 SE2d 863) (2011).

        Futch v. Lowndes County, 297 Ga. App. 308, 310-311 (1) (676 SE2d 892) (2009); Lanning v. Sockwell, 137 Ga. App. 479, 482-483 (2) (224 SE2d 119) (1976).

        Lanning, supra; Davidson Mineral Properties v. Baird, 260 Ga. 75, 78 (5) (390 SE2d 33) (1990); Nash v. Roberts Ridge Funding, 305 Ga. App. 113, 116 (1) (699 SE2d 100) (2010).

        Lanning, supra at 483 (2) (citations omitted); Nixon v. Brown, 223 Ga. 579, 582 (2) (157 SE2d 20) (1967).

        Sutton v. McMillan, 213 Ga. 90, 95 (4) (97 SE2d 139) (1957) (citations omitted); Nixon, supra.

        Top Quality Homes v. Jackson, 231 Ga. 844, 846 (204 SE2d 600) (1974) (citations and punctuation omitted); Sutton, supra at 95 (6); OCGA §§ 23-2-2, 23-2-57.

        Guillebeau v. Yeargin, 254 Ga. 490, 492 (2) (330 SE2d 585) (1985) (citation omitted); Bailey v. Williams, 215 Ga. 395, 397 (1) (110 SE2d 673) (1959) (both a great inadequacy of consideration and a great disparity of mental ability in contracting a bargain must exist to justify equity in setting aside a sale or other contract).

        Thomas v. Garrett, 265 Ga. 395,398 (3) (456 SE2d 573) (1995) (citation and punctuation omitted); Coile v. Gamble, 270 Ga. 521, 522 (2) (510 SE2d 828) (1999); Lochridge v. Smith, 298 Ga. App. 428 (1) (680 SE2d 501) (2009).

        Top Quality Homes, supra.

       287 Ga. 482 (697 SE2d 189) (2010).

       Id. at 484 (1).

       See Godwin v. Godwin, 265 Ga. 891-892 (1) (463 SE2d 685) (1995); Lockridge, supra (to determine the issue of mental competency at the time a deed was executed, a court can consider evidence as to the grantor’s competency for a reasonable period of time before and after the deed was executed).

       See Top Quality Homes, supra at 846.

       See Titshaw v. Carnes, 224 Ga. 57, 60 (2) (a) (159 SE2d 420) (1968); Strong, supra.

        Godwin, supra; Top Quality Homes, supra; Sutton, supra; Titshaw, supra; Nixon, supra; banning, supra at 482-483 (2).


author: PHIPPS, Presiding Judge.

text:
    A12A0070.
    CONRAD et al. v. THE STATE.
    (730 SE2d 7)
   PHIPPS, Presiding Judge.

George Conrad and Joseph William Presnal were charged with violating the Georgia Controlled Substances Act after drugs were discovered in each of their bedrooms during the execution of a search warrant. Conrad and Presnal moved to suppress the drug evidence. They contended that, given the inner partitioning of the residential structure, the warrant and the search failed to comply with the Fourth Amendment. The trial court conducted a hearing, summarily denied their motion, then proceeded to a stipulated bench trial. Convicted as charged, Conrad and Presnal filed a joint notice of appeal. They challenge the denial of their suppression motion, but have demonstrated no error. We affirm their judgments of conviction.

“In a ruling on a motion to suppress, a trial court’s findings as to disputed facts will be reviewed under a clearly erroneous standard and the trial court’s application of the law to undisputed facts is subject to de novo appellate review.”

Construed to support the judgment, the evidence adduced at the suppression hearing and the bench trial showed the following. After receiving reports that Presnal was selling illegal drugs in a particular area, a special agent of a police department’s narcotics unit launched an investigation, including conducting several “trash pulls” at Presnal’s residence, which had a street address of “53 West James Circle.” Each “trash pull” yielded narcotics and related paraphernalia. Based upon his training and experience, along with the drug reports and the totality of his investigation thereof, the special agent submitted to a magistrate an application, accompanied by his affidavit, for a warrant to search the residence for controlled substances and related paraphernalia. The magistrate issued a warrant to search therefor at “the residence located at 53 West James Circle.”

The warrant was executed on July 9, 2010. The dwelling had an outward appearance of a single-family ranch-style house. There was a single mailbox out front, which displayed “53,” without any subunit delineation; a single driveway that led to the house; and a single set of adjacent double doors at the sole front entrance. The property was owned by Presnal’s mother, who lived there, as did Conrad and Presnal.

The inside of the dwelling was divided by a wall, except that a common area across the front of the house allowed access between the two sides without going outside. There were bedrooms on both sides; one side had a kitchen, and the other side had a kitchenette that appeared to be under renovation.

The common area across the front of the house was described by the special agent: “It was an interior area ... it appeared that it had been uncovered at one point. It looked like it was an addition, but it was completely enclosed from the exterior and it connected the two sides of the residence.” The common area had interior doors leading to either side of the house, and it had a set of adjacent exterior doors that opened to the front yard. Nonadjacent exterior doors were at the back of the residential structure.

Presnal also testified about those two interior doors of the common area: “[T] here’s a door on the left side, which if you enter there that’s my mother’s area. And then there’s a door on the right side. If you enter there, that was the area that I was staying in.” When asked how he would access his mother’s área from his area, Presnal answered, “I would either have to go outside the back and enter in her side of the door or I could go through the front door of mine, cross the [common area] and enter the front door over there on her side.”

The residential structure had been Presnal’s childhood home, and he confirmed that the enclosed common area “used to be an open porch”; that the two sides of the house had previously carried an address with subunit designations, “A” and “B”; and that there had once been two water meters for the residential structure. But his mother had since made changes, and the property no longer carried subunit designations; by (at least) the date of the search, the property had only one water meter, one mailbox, and even one common garbage can that was used by all the residents.

During the execution of the search warrant, methamphetamine and clorazepate were discovered in Presnal’s bedroom. Four hydro-codone (“Lortab”) pills were discovered in Conrad’s bedroom, which was located — using Presnal’s terminology — in “[Presnal’s] mother’s area” of the house.

In this appeal, Conrad and Presnal continue to challenge the validity of the search warrant, as well as its execution.

1. Conrad and Presnal maintain that the warrant was insufficient in that it failed to satisfy the particularity requirement of the Fourth Amendment, which requires that the warrant “particularly describ[e] the place to be searched.” Conrad and Presnal characterize the residential structure as a “duplex,” thus comprised of subunits. Because the warrant did not specifically grant permission to search any particular subunit, but instead described the place to be searched as “the residence located at 53 West James Circle,” Conrad and Presnal argue that the warrant was not sufficiently particular.

The test for evaluating the particularity of a warrant’s premises description is “whether the description is sufficient to enable a prudent officer executing the warrant to locate [the place to be searched] definitely and with reasonable certainty.” “Furthermore, the degree of the description’s specificity is flexible and will vary with the circumstances involved.” “While a description of the place to be searched must be particular enough to guide the executing officer as to where the warrant is to be executed, there is in addition the requirement that the description be sufficiently narrow in the sense of not outrunning the probable cause showing.”

Under the particularity requirement of the Fourth Amendment,

the general rule is that a search warrant for an apartment house or hotel or other multiple-occupancy building will usually be held invalid if it fails to describe the particular subunit to be searched with sufficient definiteness to preclude a search of one or more subunits indiscriminately. There are, however, exceptions to this general rule. “The warrant of a multi-unit structure will be valid where (1) there is probable cause to search each unit; (2) the targets of the investigation have access to the entire structure; or (3) the officers reasonably believed that the premises had only a single unit.”

In this case, the first and second exceptions are applicable.

In determining if probable cause exists to issue a search warrant, a magistrate must evaluate all the circumstances set forth in the affidavit before him or her and make a practical, common-sense decision whether there is a fair probability that evidence of a crime will be found in a particular place. On review, this Court is limited to determining if the magistrate had a substantial basis for concluding that probable cause existed to issue the search warrant, and must afford substantial deference to the magistrate’s decision.

“Even doubtful cases should be resolved in favor of upholding a magistrate’s determination that a warrant is proper.”

The affidavit accompanyingthe search warrant application informed the magistrate of the following. In April 2010, the narcotics unit had received an anonymous complaint that “Joseph William Presnal” was selling methamphetamine, prescription pills, and cocaine and that “Billy” lived with his parents at the residence with street address “53 West James Circle.” That same month, a confidential informant reported to two special agents of the narcotics unit that Presnal sold methamphetamine from that address and that he lived there. Afterward, the .investigating special agent consulted various databases and determined that Presnal and others, including Conrad, were current residents at that address.

The affidavit further apprised the magistrate that in May 2010, the special agent found inside a trash can, which he determined had been left for pickup by a professional sanitation company and thus abandoned by its owner(s): “a clear ziploc baggie containing methamphetamine residue; a mango flavored blunt wrapper; an empty clear green ziploc baggie; a torn plastic corner; and a tied plastic sandwich baggie which was torn open.” Later that month, the special agent again found inside the similarly abandoned trash can: “three small baggies containing methamphetamine residue, a ‘FW’ digital scale, a partially smoked marijuana cigarette, marijuana stems, a plastic sandwich baggie with a torn corner, a torn plastic corner, and two small empty ziploc baggies.” In June 2010, the special agent found in the similarly abandoned trash can: “a clear green ziploc baggie containing methamphetamine; a torn plastic corner with white residue; ten small plastic ziploc baggies with methamphetamine residue; five pieces of paper with names and dollar amounts listed (drug ledgers)....” In early July 2010, the special agent found in a similarly abandoned trash can:

thirteen small ziploc-style baggies containing methamphetamine residue; three torn plastic baggie corners containing methamphetamine residue; ... a tied piece of plastic containing marijuana; an open piece of plastic containing a marijuana bud; two empty “Glass Rose” boxes, which are commonly used to smoke methamphetamine; and nu merous empty blunt wrappers, which are commonly used to smoke marijuana.

The affidavit also described the residential structure as “a ranch style home,” with a single mailbox and a single driveway. The affidavit informed the magistrate that, because the county tax assessors’ records had designated the structure upon the property as a “duplex,” the special agent had followed up with additional research. He had spoken to a representative from the county water and sewage authority, who reported that only one water meter was installed at the property. Additionally, the special agent had spoken with a representative from the tax assessors’ office, who reported that the property owner had recently submitted a petition requesting that “the two property lots she owns be combined into one.” The affidavit stated that, in June 2010, the property owner had informed the office that her residence was a single-family residence, and not a duplex as described in the tax assessors’ records. Further, the affidavit stated:

While describing the interior of the residence to the Tax Assessors Office, [the property owner] advised there is a mother-in-law suite inside the residence, but there are no interior separation walls and it is accessible from the main living area. Finally, [the property owner] advised that all areas of the residence are accessible from anywhere else in the residence.

We conclude that the affidavit provided the magistrate with enough information to come to the “practical, common-sense” conclusion that illicit drugs were being used in and/or sold from the residence located at 53 West James Circle; that Presnal was a target of the drug investigation and lived at that location with at least one of his parents; that the residence located at 53 West James Circle contained a mother-in-law suite that was accessible from a common area; that Presnal (and other residents) had access to the entire residential premises; and that there was a fair probability that evidence of drug crimes could be found in either the mother-in-law suite or the main part of the residential structure. “Because the application for the search warrant established probable cause to search [the mother-in-law suite, where Presnal’s bedroom was located] and [Presnal’s mother’s side of the house, where Conrad’s bedroom was located], we conclude the trial court properly denied [the] motion to suppress the evidence.”

2. Conrad and Presnal contend that execution of the warrant was unlawful, citing Jones v. State and Miller v. State for the proposition that probable cause for the issuance of a warrant may disappear if the warrant was issued on information that proves to be materially inaccurate. Conrad and Presnal assert that the affidavit contained “inaccuracies in the structure of the building.” In addition, they claim that the “four lortab borrowed from an acquaintance for back pain by occupant/defendant Conrad do not come close to describing the depth of ‘drug trafficking’ described in the search warrant affidavit.”

Decided June 8, 2012.

Shannon D. Briley, Jennifer Knight, for appellants.

Tommy K. Floyd, District Attorney, Thomas L. Williams, Assistant District Attorney, for appellee.

Conrad and Presnal have misplaced their reliance on Jones and Miller, the supporting affidavit, detailed in pertinent part above, did not contain material inaccuracies, but adequately took into account the inner partitioning of the residential structure. Furthermore, the drugs underlying Conrad’s and Presnal’s charges, suppression motion, and convictions were discovered in places that the warrant authorized to be searched specifically for controlled substances. Because there is no merit in this contention, the trial court correctly determined that it supplied no ground to suppress the drug evidence.

Judgments affirmed.

Ellington, C. J., and Dillard, J., concur.

       OCGA § 16-13-20 et seq.

       OCGA § 5-6-44 (a) (allowing for joint appeals).

        Canty v. State, 286 Ga. 608 (690 SE2d 609) (2010) (citation and punctuation omitted).

       See Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994) (a guiding principle for a court reviewing a suppression ruling is that evidence must be construed most favorably to the upholding of the trial court’s findings and judgment); see also Miller v. State, 288 Ga. 286-289 (1) (702 SE2d 888) (2010) (reaffirming Tate, supra).

       See White v. State, 263 Ga. 94, 98 (5) (428 SE2d 789) (1993) (suppression hearing transcript and trial transcript may he considered on review of suppression ruling); Arnold v. State, 304 Ga. App. 90, n. 2 (695 SE2d 402) (2010) (same).

       The special agent explained that a “trash pull” is retrieving trash after it has been abandoned by the resident(s) — e.g., the trash has been “put... out for a professional sanitation company to pick up” — and then searching through the trash for signs of narcotics or sales of narcotics.

       The record does not disclose the relationship between Conrad and either Presnal or Presnal’s mother.

        Fair v. State, 284 Ga. 165, 170 (3) (a) (664 SE2d 227) (2008) (citation and punctuation omitted); see Anderson v. State, 249 Ga. 132, 135 (5) (287 SE2d 195) (1982) (same).

        Fair, supra (citation and punctuation omitted).

       2 LaFave, Search and Seizure, § 4.5 (a) at p. 578 (4th ed. 2004); see Maryland v. Garrison, 480 U. S. 79, 84 (I) (107 SC 1013, 94 LE2d 72) (1987) (explaining that the Fourth Amendment’s particularity requirement “ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit”); see generally Fair, supra at 171-172 (3) (b) (evaluating whether there was probable cause that evidence of crime would be found upon the premises specified by the search warrant).

        Fletcher v. State, 284 Ga. 653, 655 (3) (670 SE2d 411) (2008), quoting United States v. Perez, 484 F3d 735, 741 (4) (5th Cir. 2007) (noting also that “[w]hen a building is divided into more than one residential unit, a distinct probable cause determination must be made for each unit”) (punctuation omitted).

        Fletcher, supra at 655-656 (3) (punctuation and footnotes omitted).

        Sullivan v. State, 284 Ga. 358, 361 (2) (667 SE2d 32) (2008) (citation omitted).

       (Emphasis supplied.)

        Fletcher, supra at 656 (3); State v. Capps, 256 Ga. 14, 15-16 (3) (342 SE2d 676) (1986) (warrant was not invalid for failure to specify which of the two residential units in two-story “single family dwelling” was to be searched; although there were separate kitchen facilities upstairs and downstairs, and the elderly aunt who was the downstairs resident paid separate gas, electric and telephone bills, there was no evidence that the use of the dwelling by any family member, the defendants or the aunt, was restricted to only part of the dwelling); Bing v. State, 178 Ga. App. 288, 289-290 (1) (342 SE2d762) (1986) (physical precedent only) (cited in Fletcher, supra).

       126 Ga. App. 841 (192 SE2d 171) (1972).

       126 Ga. App. 847 (191 SE2d 883) (1972).

       See Miller, supra at 849 (2) (“The total of the inaccuracies between the affidavit and the true state of affairs [was] so material as to go to the integrity of the affidavit and warrant, destroying the probable cause for the search.”); Jones, supra at 843 (recognizing that, where search warrant was issued based on information that proved to be materially unreliable and inaccurate, “the probable cause for issuance of the warrant disappeared]”).

       See Division 1, supra.

       See Teal v. State, 282 Ga. 319, 322-323 (2) (647 SE2d 15) (2007) (exclusionary rule prohibits introduction into evidence seized during an unlawful search).


author: McFADDEN, Judge.

text:
    A12A0489.
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. MYERS et al.
    (728 SE2d 787)
   McFADDEN, Judge.

DeAnna Myers’s disabled adult ward, D. M., was the victim of a sexual battery while riding in the back seat of a car. On D. M.’s behalf, Myers brought suit for damages against, among others, the driver of the car. State Farm Mutual Automobile Insurance Company brought a separate action seeking a declaratory judgment that an automobile liability insurance policy it had issued to the driver’s wife did not cover the damages alleged in the underlying suit. Myers and State Farm filed cross-motions for summary judgment in the declaratory judgment action. The trial court granted summary judgment to Myers and denied summary judgment to State Farm, and State Farm appeals. Because the damages alleged in the underlying suit did not arise out of the ownership, maintenance or use of the car, as required for coverage under the policy, State Farm was entitled to summary judgment in the declaratory judgment action. Accordingly, we reverse.

Summary judgment is proper where there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). On appeal from the grant or denial of summary judgment, we conduct a de novo review, construing the evidence and all reasonable conclusions and inferences drawn therefrom in the light most favorable to the nonmovant. Allstate Ins. Co. v. Neal, 304 Ga. App. 267 (696 SE2d 103) (2010).

The relevant facts are not in dispute. State Farm issued an automobile insurance policy to Jesse Johnson. Her husband, Kenneth Johnson, used the car listed in the policy to drive Medicaid patients to and from medical appointments on behalf of LogistiCare, Inc. On February 20, 2008, he drove D. M. to a medical appointment. On the return trip, D. M., Myers, and Kenneth Johnson’s brother, Dondi Johnson, sat in the back seat of the car. When Myers fell asleep, Dondi Johnson repeatedly touched D. M.’s breast and thigh without her consent. He later pled guilty to sexual battery for these acts.

The critical issue in a declaratory judgment action to determine the parties’ obligations with respect to a liability insurance policy is whether the underlying suit alleges a claim that is covered by the policy. O’Dell v. St. Paul Fire &c. Ins. Co., 223 Ga. App. 578, 579 (478 SE2d 418) (1996). The policy in this case provided that State Farm would “pay damages which an insured becomes legally liable to pay because of . . . bodily damages to others . . . caused by accident resulting from the ownership, maintenance or use of [the insured’s] car; and... defend any suit against an insured for such damages with attorneys hired and paid by us.” (Emphasis omitted.) The parties to this appeal dispute whether the damages alleged in the underlying suit “resulted] from . . . the use of [the] car” and thus were covered under the policy. (Myers offers no argument that the alleged damages resulted from the ownership or maintenance of the car, apart from its use.) We agree with State Farm that the alleged damages were not covered because they did not result from use of the car.

For an injury to result from the use of a motor vehicle,

there must be such a causal connection as to render it more likely that the injury “grew out” of the . . . use of the vehicle.... [T]he connection must not be merely fortuitous. There must be more of a connection between the use of the vehicle and the resulting injury than mere presence in the vehicle when the injury was sustained.

(Citations and punctuation omitted.) Davis v. Criterion Ins. Co., 179 Ga. App. 235, 236 (345 SE2d 913) (1986).

That holding follows from Payne v. Twiggs County School Dist., 269 Ga. 361 (496 SE2d 690) (1998). There our Supreme Court held that a policy with similar language to that at issue in this case did not cover an injury sustained when one passenger of a school bus physically attacked another passenger while they were riding in the bus. The Court explained:

[T]he facts alleged [by the plaintiff in the underlying suit] do not show a causal connection between her injuries and the use of [the] school bus. Nor do her allegations show that her injuries were sustained as the result of an accident involving [the] school bus. Rather, she alleges that her injuries were the proximate result of an attack inflicted by a fellow student. The school bus is only tangentially connected to [the plaintiff’s] injuries, and even then only to the extent that it was the situs of the attack.

Id. at 363 (2); see also Davis, 179 Ga. App. at 237 (finding injuries sustained by bus driver who was stabbed by passenger did not arise out of use of bus, and thus were not covered by liability insurance policy, where bus was “merely the unfortunate location where [the assailant and the victim] crossed paths”); Washington v. Hartford Accident &c. Co., 161 Ga. App. 431, 432 (1) (288 SE2d 343) (1982) (finding no causal connection between use of vehicle and injury, which bore no apparent relation to the vehicle’s operation or use to which it was being put, but instead resulted from a deliberate assault which took place in the vehicle simply because that was where the victim happened to be when the assailant came “gunning” for him).

Myers asserts that D. M.’s injuries are covered under the policy because, “[b]ut for the use of the vehicle, it is highly unlikely that Dondi Johnson would have been able to sexually assault [D. M.] in the light of day,” arguing that the use of the moving car enabled the assault by placing D. M. and Dondi Johnson together in a confined space from which D. M. could not escape. In Payne, however, the proximity of the attacker and victim within the confines of a moving vehicle did not create the causal connection required for the injury to be covered under the policy. Payne, 269 Ga. at 363 (2).

Myers attempts to distinguish Payne in two respects. First, she argues the movement of the car in this case was “inextricably linked” to the assault because the smaller size of the vehicle and the presence of seat belts meant that D. M. was not able to avoid her attacker. Second, she argues that Payne did not involve claims against the bus driver arising from the driver’s negligent operation of the bus. But in Payne our Supreme Court cited with approval an earlier decision that forecloses arguments founded on the opportunities afforded an assailant by the structure of the vehicle or the inattention of the driver. See Payne, 269 Ga. at 363 (2), n. 5 (citing Hicks v. Walker County School Dist., 172 Ga. App. 428, 429 (1) (323 SE2d 231) (1984)). In Hicks this court held that the appellant’s injuries were not covered by a policy insuring for injuries arising out of “the use of” a school bus where the appellant “was injured when two fellow passengers ganged up and attacked [her] while they were riding in the school bus, kicking and beating her for the entire length of the forty-minute bus ride.” Hicks, 172 Ga. App. at 429 (1).

Decided June 8, 2012.

Downey & Cleveland, Jonathan C. Jones, for appellant.

Edenfield, Cox, Bruce & Classens, Gerald M. Edenfield, Benjamin J. Colson, for appellees.

As were the school buses in Payne and Hicks, the car in this case was only tangentially connected to D. M.’s injuries as the situs of the attack, and under the rationale employed in those cases we find that the damages to D. M. alleged in the underlying suit did not result from the use of the car. Payne, 269 Ga. at 363 (2); Hicks, 172 Ga. App. at 429 (1). Consequently, Staté Farm was entitled to summary judgment in the declaratory judgment action, and the trial court erred in denying its motion for summary judgment and instead granting Myers’s motion.

Judgment reversed.

Barnes, P. J., and Adams, J., concur.


author: McFadden, Judge.

text:
    A12A0550.
    YEARWOOD v. CLUB MIAMI, INC. et al.
    (728 SE2d 790)
   McFadden, Judge.

Murjani Yearwood sued Club Miami, Inc. and a John Doe defendant for the pain and suffering he sustained when he was shot at the club. After a jury awarded Yearwood $500,000, the trial court granted Club Miami’s motion for directed verdict. Yearwood appeals, arguing that whether the security measures Club Miami implemented were performed in a nonnegligent manner was a question for the jury to decide. But Yearwood presented absolutely no evidence that the security measures were performed negligently. We therefore affirm the judgment in Club Miami’s favor.

Yearwood was a patron of Club Miami, a nightclub, when a fight broke out on the dance floor. An unidentified person fired a gun, and Yearwood was hit in the abdomen. The parties agree that Club Miami had implemented a two-step security procedure, involving four to eight security guards and uniformed law enforcement officers. Before any patron was allowed to enter the club, the patron would be patted down and then “wanded,” or scanned with a metal-detecting wand. There were additional security personnel inside the club.

At the close of the evidence, Club Miami moved for a directed verdict. The trial court reserved ruling on the motion and submitted the case to the jury, which returned a $500,000 verdict in favor of Yearwood, allocating responsibility equally between Club Miami and the John Doe shooter. The trial court then granted Club Miami’s motion for directed verdict, and Yearwood filed this appeal.

1. Initially, we observe that the procedure employed by the trial court — ruling on a directed verdict motion after the jury had returned a verdict — is authorized under Georgia law. “OCGA § 9-11-50 (b) allows the trial court to defer ruling on a motion for directed verdict and submit the case to the jury subject to a later determination of the legal questions raised by the motion.” (Citation and punctuation omitted.) Steinberg v. City of Atlanta, 213 Ga. App. 491, 492 (1) (444 SE2d 873) (1994).

2. “A directed verdict is authorized if there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict. OCGA § 9-11-50 (a). Where plaintiff simply fails to prove his case, the direction of a verdict is proper.” (Citation and punctuation omitted.) Steinberg, 213 Ga. App. at 493-494 (2). As the trial court observed in its order, the facts of the case were largely uncontested. Yearwood’s

sole argument as to liability was that because [Club Miami] had voluntarily assumed certain security measures to prevent weapons from being brought into the club, and despite these measures a gun was brought into the club which was used to injure [Yearwood, Club Miami] was negligent and thus liable to [Yearwood] for his pain and suffering.

We adopt in part the trial court’s well-reasoned order, in which it held:

Under Georgia law, a proprietor does not become an insurer of safety by taking some security precautions on behalf of invitees. Matt v. Days Inns of America, 212 Ga. App. 792, 795 (443 SE2d 290) (1994). Moreover, the fact that a proprietor has undertaken some measures to protect its patrons does not heighten the standard of care; and taking some measures does not ordinarily constitute evidence that further measures might be required. Id. See also Lau’s Corp. [v. Haskins, 261 Ga. 491, 494-495 (3) (405 SE2d 474) (1991)]. Conversely, a proprietor is not insulated from liability simply by providing security measures when those measures are proved to be inadequate. Matt, supra, 212 Ga. App. at 795[-796]. As the Supreme Court explained in Lau’s Corp., “[i]f a defendant undertakes to do more for the benefit of another person than the law requires, he or she may be held liable if he or she acts unreasonably or makes the situation worse, by increasing the danger, or by misleading the plaintiff into belief that it has been removed, or by depriving the plaintiff of the possibility of help from other sources, etc.” Lau’s Corp., [261 Ga.] at 495 [(3), n. 2. (Citation omitted.)].
The gravamen of [Yearwood’s] argument is that because a gun made it past [Club Miami’s] security measures and that gun was used to injure [Yearwood], [Club Miami] must have been negligent in conducting weapons screening[s]. Without more, this argument is not persuasive inasmuch as it is rooted more in strict liability than in negligence. Contrary to [Yearwood’s] argument, in a negligence action, it is not enough for [Yearwood] to merely present evidence of his injury as evidence that [Club Miami] performed its security screenings in a negligent manner. Lau’s Corp., [261 Ga.] at 493-[4]94 [(2)].
To succeed on this claim, [Yearwood] had the burden to present evidence at trial of how specifically [Club Miami’s] measures made the security situation worse, or how those measures were inadequate or insufficient such that negligence could be established. Id.

Yet Yearwood presented absolutely no evidence that the security measures in place were performed in a negligent manner or worsened the situation. No witness testified that the security personnel should have done anything differently. Yearwood himself testified that he thought the security was sufficient. Nor did Yearwood present any evidence of any prior criminal activity on the premises that may have put Club Miami on notice that its security measures were inadequate.

Decided June 8, 2012.

Todd K. Maziar, for appellant.

Norman Urrutia, pro se.

Because Yearwood presented no evidence that Club Miami’s security measures were insufficient or that it negligently performed the security measures it implemented, the trial court correctly ruled that Club Miami was entitled to a directed verdict. Compare Matt, 212 Ga. App. at 795-796 (whether defendant’s security measures were adequate or whether they were performed in a negligent manner was a jury question, given evidence that defendant had rejected safety measures that had been recommended in light of past incidents).

Judgment affirmed.

Barnes, P. J., and Adams, J., concur.


author: DOYLE, Presiding Judge.

text:
    A12A0553.
    FELDMAN v. ARCADIS US, INC. et al.
    (728 SE2d 792)
   DOYLE, Presiding Judge.

This appeal arises from an action filed by Myrna Feldman against Arcadis G&M, Inc., Geraghty & Miller, Inc., and Piedmont, Olsen, Hensley, Inc. (collectively “Arcadis”), for negligent planning and design of a section of roadway upon which Feldman was later injured by a drunk driver. The trial court granted summary judgment to Arcadis after determining that the eight-year statute of repose codified in OCGA § 9-3-51 applied to the claims at issue and barred Feldman’s recovery as a matter of law. For the reasons that follow, we affirm.

On appeal, Feldman contends that the trial court erred by finding that the statutory language of OCGA § 9-3-51 applied to the design plan for the stretch of roadway upon which she was injured because the roadway is not “an improvement to real property,” to which the statute of repose applies.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA§ 9-11-56 (c). Ade novo standard of review applies to an appeal from a grant 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.

So viewed, the undisputed facts establish that Piedmont, Olsen, Hensley, Inc., a predecessor to the current-day Arcadis US, Inc. (f/k/a Arcadis G&M, Inc.), provided Gwinnett County, Georgia, with engineering and design work on the Lawrenceville-Suwanee Road Extension (“the Extension”) in or around 1997. Construction of the Extension was completed in 1999, and Feldman was later injured by an out-of-control drunk driver in January 2009. Feldman alleged that the negligence of Arcadis in designing the particular stretch of the Extension resulted in her injuries.

Upon motion for summary judgment filed by Arcadis, the trial court determined that based on the language of the statute, the test set forth in Mullis v. Southern Co. Svcs., and persuasive case law, the Extension constituted “an improvement to real property” such that the eight-year statute of repose in OCGA § 9-3-51 applied to bar Feldman’s recovery from Arcadis.

OCGA§ 9-3-51 (a) states:

No 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; (2) For injury to property, real or personal, arising out of any such deficiency; or (3) For injury to the person or for wrongful death 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.

Although OCGA § 9-3-51 “is in derogation of the common law and must therefore be strictly construed..., we must give the statute its plain meaning, and in doing so, we turn to a commonsense interpretation of the words ‘improvements to real property’ which has been adopted by many courts.” This Court applies the following factors when analyzing what constitutes an “improvement to real property”:

(1) [whether] the improvement [is] permanent in nature; (2) [whether] it add[s] to the value of the realty [ ] for the purposes for which it was intended to be used; [and] (3) [whether] the contracting parties [intended] that the improvement in question be an improvement to real propertyf,] or [whether] they intended] for it to remain personalty.

Here, the trial court correctly determined that OCGA § 9-3-51 applied to Feldman’s negligent design claims. The road is permanent in nature and added value to the property by allowing the public to efficiently traverse the county. Although, as Feldman argues, this Court has held that certain public utility infrastructure does not constitute an improvement to real property to which the statute applies, those utilities are categorically different than the nature of a public thoroughfare. The statute of repose serves to limit the time for the discovery of a design or construction flaw to a reasonable number of years because such flaws would be discovered through the normal use of an improvement if it is indeed an improvement to real property rather than a fixture to the property. A roadway is just such an improvement. Although it is true that no one actually lives on the road in order to “occupy” it as Feldman argues, countless vehicles traverse the road each day, and such daily public “occupation” in this manner would lead to the discovery of any such flaw within the same reasonable time frame as a design flaw in a building.

Decided June 8, 2012.

William S. Stone, Emily J. Brantley, for appellant.

Kilpatrick, Townsend & Stockton, Joseph H. Huff, Russell R Beets, for appellees.

Accordingly, the trial court correctly granted Arcadis’s motion for summary judgment.

Judgment affirmed.

Andrews and Boggs, JJ., concur.

        Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

       It is undisputed that Arcadis did not assist in any construction of the Extension.

       250 Ga. 90 (296 SE2d 579) (1982).

       See Dept. of Transp. v. Smith, 210 Ga. App. 741 (437 SE2d 811) (1993) (without specifically addressing the application of OCGA § 9-3-51, holding that a question of fact existed as to whether suit was brought within eight years of last road maintenance project). See also Kordaresv. Gwinnett County, 220 Ga. App. 848, n. 1 (470 SE2d479) (1996) (stating in dicta that any claim for negligent design or construction would have been barred by the eight-year statute of repose codified in OCGA § 9-3-51).

       (Citations and punctuation omitted.) Mullís, 250 Ga. at 93 (4).

       (Punctuation omitted.) Id. at 94 (4).

       See, e.g., id. (component system within electrical system complex was an improvement to real property). See also Beall v. Inclinator Co. of America, Inc., 182 Ga. App. 664, 664-665 (356 SE2d 899) (Í987) (elevator installed in plaintiff’s home was an improvement to real property to which the statute of repose applied).

       Compare Atlanta Gas Light Co. v. City of Atlanta, 160 Ga. App. 396, 398 (1) (b) (287 SE2d 229) (1981) (underground gas line installed, owned, and maintained by a utility company did not constitute an improvement to real property owned by the plaintiff); Turner v. Marable-Pirkle, Inc., 238 Ga. 517, 518 (233 SE2d 773) (1977) (electric transmission equipment is not an improvement to real property).

       See Rosenberg v. Falling Water, Inc., 289 Ga. 57, 61 (709 SE2d 227) (2011) (“It is the legislature’s intent, in enacting statutes of ultimate repose, to establish a reasonable outside time limit beyond which architects, engineers, and contractors are insulated from suit based upon their work in constructing improvements to real estate. Without such protection, such persons would be exposed to liability for many years after losing control over the improvements and their use and maintenance.”) (citation and punctuation omitted).

       See id. at 60-61 (outdoor deck was an improvement to real property); Hanna v. McWilliams, 213 Ga. App. 648, 652 (3) (446 SE2d 741) (1994) (fireplace).


text:
    A12A0031.
    ADAMS v. THE STATE.
    (728 SE2d 711)
   PHIPPS, Presiding Judge.

While represented by counsel, Allen Adams entered a negotiated guilty plea to possession of cocaine. In February 2007, the trial court entered a judgment of conviction and sentence on the plea. Adams subsequently filed motions to withdraw the guilty plea and to vacate the judgment. Adams, acting pro se, appeals from the orders denying those motions. For the reasons that follow, we affirm.

1. Adams contends that the trial court erred in denying his motion to withdraw the guilty plea because the plea was not voluntarily entered. He asserts that the plea was not voluntary because he has a “mental disorder,” and that he should have received a mental evaluation before he was allowed to enter the plea, despite not having requested such an evaluation. His argument presents no basis for reversal.

Once a defendant challenges the validity of a guilty plea, the state bears the burden of showing that the plea was entered voluntarily, knowingly, and intelligently; that is, that the defendant was cognizant of all of the rights he was waiving and the possible consequences of his plea. ... In ruling on a motion to withdraw a guilty plea, the trial court is the final arbiter of all factual issues raised by the evidence, and after sentence is pronounced a guilty plea may be withdrawn only to correct a manifest injustice. Moreover, a ruling on a motion to withdraw a guilty plea after sentencing is within the sound discretion of the trial court, and that discretion will not be disturbed on appeal unless it has been manifestly abused.

First, the issue of whether Adams’s guilty plea was voluntary has already been decided against him. Adams previously filed an appeal from the denial of his motion to modify the sentence. In that appeal, Adams asserted errors regarding the propriety of a revocation order, the court’s failure to apply the rule of lenity, and other provisions of his sentence. We rejected Adams’s contentions, holding inter alia that he waived his right to challenge the conditions of his sentence because he had agreed to the sentence as part of a negotiated plea and the plea hearing transcript showed that his guilty plea was “freely and voluntarily entered into with a full and complete understanding and waiver of his rights.” Adams is precluded from relitigating the issue of whether his plea was freely and voluntarily entered.

Second, even if the prior ruling did not preclude consideration of the voluntariness issue raised in this appeal, because Adams did not raise in the trial court the issue of his mental competence to enter a plea, he is precluded from raising it in this appeal.

Finally, we note that in a case in which a defendant seeks to plead guilty, “[a]s in any criminal case, a competency determination is necessary only when a court has reason to doubt the defendant’s competence.” The focus of a competency inquiry is the defendant’s mental capacity; the question is whether he has the ability to understand the proceedings. Atrial court “bears the constitutional duty to inquire into a defendant’s [mental] competency where it appears to be in question at the time of trial.” There is no indication in the record that the court had any reason to doubt Adams’s mental competency and to thus order a mental evaluation. The trial court did not abuse its discretion in denying Adams’s motion to withdraw the guilty plea.

2. Adams contends that the trial court erred in denying his motion to vacate the judgment. Although his argument is difficult to comprehend, Adams seems to assert that the judgment should have been vacated because he was denied credit for time served and because a condition of his probation was illegal (apparently the condition banishing him from Putnam County).

Adams’s argument that he did not receive credit for time served is not properly before us. The duty to award credit for time served prior to trial is upon the Department of Corrections rather than the trial court. Adams’s claim regarding the calculation of credit is cognizable only in a mandamus or injunction action against the Commissioner of the Department of Corrections or in a petition for habeas corpus. “The only time we consider such arguments in a direct appeal from the original conviction is where the trial court in its written sentencing order gives gratuitous misdirection to the correctional custodians.” In such a case, we remand the case for the trial court to strike the offending language from the order. But inasmuch as the sentencing order in this case gives no such direction, remand is not required.

Decided May 21, 2012

Reconsideration denied June 12, 2012

Allen A. Adams, pro se.

Fredric D. Bright, District Attorney, Stephen A. Bradley, Assistant District Attorney, for appellee.

This court rejected Adams’s challenge to the banishment condition of his probation in the earlier appeal because, inter alia, he had agreed to the sentence as part of a negotiated plea agreement. Our ruling in the prior appeal is binding.

Judgment affirmed.

Ellington, C. J., and Dillard, J., concur.

        Shaw v. State, 302 Ga. App. 363, 364 (1) (691 SE2d 267) (2010) (punctuation and footnotes omitted).

        Adams v. State, 298 Ga. App. 518 (680 SE2d 429) (2009).

       Id.

       Id. at 518 (2).

       See OCGA§ 9-11-60 (h) (pertinently providing that “any ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court and in the Supreme Court or the Court of Appeals as the case may be”); Howard v. State, 289 Ga. 207 (1) (710 SE2d 761) (2011) (claims appellant had advanced in prior dismissed appeals were not considered in subsequent appeal, as appellant could not relitigate the same issues that the Court had dismissed in his prior appeals); Ross v. State, 310 Ga. App. 326, 327 (713 SE2d 438) (2011) (“any issue that was raised and resolved in an earlier appeal is the law of the case and is binding on this Court”) (punctuation omitted).

       See Cooper v. State, 287 Ga. App. 901, 903 (2) (652 SE2d 909) (2007) (“Issues presented for the first time on appeal furnish nothing for us to review, for this is a court for correction of errors of law committed by the trial court where proper exception is taken, because one may not abandon an issue in the trial court and on appeal raise questions or issues neither raised nor ruled on by the trial court.”); Anderson v. State, 251 Ga. App. 785, 786 (554 SE2d 811) (2001). Compare, e.g., Shaw, supra (wherein appellant had raised in the trial court the issue of his mental competence to enter the guilty plea).

        Godinez v. Moran, 509 U. S. 389, 402 (II) (B), n. 13 (113 SC 2680, 125 LE2d 321) (1993) (citations omitted). See generally Ake v. Oklahoma, 470 U. S. 68, 82-83 (III) (A) (105 SC 1087, 84 LE2d 53) (1985) (noting that a “defendant’s mental condition is not necessarily at issue in every criminal proceeding,” and that when the defendant is able to make a threshold showing to the trial court that his sanity is likely to he a significant factor in his defense, the need for the assistance of a psychiatrist is readily apparent; holding that when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the state must assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation and presentation of the defense).

        Godinez, supra at 401 (II) (B), n. 12.

        Lamar v. State, 278 Ga. 150, 151 (1) (a) (598 SE2d 488) (2004) (citations and punctuation omitted).

       See Perry v. State, 269 Ga. App. 178, 181-182 (2) (603 SE2d 526) (2004) (trial court did not err in not conducting sua sponte a competency hearing or having appellant evaluated before accepting guilty plea where trial court had no information which should have raised a doubt about appellant’s competency and alerted court to the possibility that the appellant could not understand the proceedings, appreciate their significance, or rationally aid his attorney in his defense); see also Shaw, supra at 364-366 (1).

       See Brown v. State, 259 Ga. App. 576, 579 (578 SE2d 188) (2003).

        Cutter v. State, 275 Ga. App. 888, 890 (2) (622 SE2d 96) (2005).

       See id.

       See Maldonado v. State, 260 Ga. App. 580, 581 (580 SE2d 330) (2003).

        Cutter, supra at 890-891 (2) (citation and footnote omitted).

       Id. at 891 (2).

       See id.

        Adams, supra at 518-519 (2); see Darby v. State, 230 Ga. App. 32, 33 (4) (495 SE2d 146) (1997) (where defendant knowingly and voluntarily entered into a negotiated plea agreement and accepted the conditions of his probation in open court, he waived the right to challenge on appeal the conditions of his probation).

       See Ross, supra.


author: Adams, Judge.

text:
    A12A0712.
    LINGO v. SMITH.
    (729 SE2d 18)
   Adams, Judge.

James L. Lingo, Jr., pro se, appeals the trial court’s order granting Roger D. Smith’s petition for possession of real property. For the reasons that follow, we affirm.

The record shows that on July 25, 2011, Smith filed a disposses-sory affidavit in which he alleged that he had foreclosed on the subject property and that Lingo was, consequently, a tenant at sufferance; Smith demanded possession. See OCGA§ 44-7-50. Lingo was served with the dispossessory affidavit and summons on July 27. On August 2, Lingo answered, counterclaimed, and moved for a temporary restraining order. On September 9, Lingo filed a notice of his “Motion for Petition for Removal” of the case to federal court; the notice is stamped as having been received in the clerk’s office of the United States District Court of the Middle District of Georgia on September 9. The notice includes a copy of Lingo’s federal court motion in which Lingo asserts that the District Court has jurisdiction because he is asserting a violation of his civil rights under several federal laws.

The next document in the record is the trial court’s final order. In that order, the court notes that on August 10, 2011, Lingo signed a return receipt of certified mail indicating that he had received notice that day of a hearing scheduled for September 12, 2011 on Smith’s demand for possession. The court noted that on September 6, Lingo requested a continuance from Smith but that Smith declined. The court stated that on the date of the hearing, Lingo did not appear, but the court received a fax transmission of the above described petition to remove the case to federal court. The court’s order also indicates that at the hearing, it heard evidence from Smith regarding the real estate, the security deed, certain assignments, the foreclosure process, the foreclosure sale, and Smith’s attempt to notify Lingo that he needed to vacate the property. At the hearing, Smith moved to dismiss Lingo’s notice of removal on the ground that it did not meet the statutory requirements.

The court held that Lingo’s notice of removal had not been filed within 30 days of receipt of the initial pleading setting forth the claim of relief upon which his action was based as required by 28 USC § 1446, and that Lingo’s notice of removal did not contain a “short and plain statement of the grounds for removal” as is also required. Combined with the fact that Lingo failed to appear at the hearing, the court concluded that Lingo had not “carried his burden of establishing federal jurisdiction.” The court concluded that it still had jurisdiction of the dispossessory proceeding, and it granted Smith possession of the property and ordered that Lingo be dispossessed. The court denied Lingo’s subsequent motion for reconsideration, and, on September 20, Lingo filed his notice of appeal.

Based on a thorough reading of Lingo’s brief we find the following assertions of error: (1) that the trial court erred by taking action despite Lingo’s notice of removal to federal court; (2) that the trial court erred because Smith’s ownership of the property was improper and he instituted an unlawful foreclosure sale; (3) that the trial court’s findings of fact are erroneous because the facts show that Smith was engaged in intentional unlawful acts; and (4) that the trial court erred in its findings of fact related to allegations that Smith was improperly engaged in the mortgage business.

1. First, Lingo may not assert errors related to the foreclosure sale because “challenges to a foreclosure sale cannot be asserted as a defense in a subsequent dispossessory proceeding.” Vines v. LaSalle Bank Nat. Assn., 302 Ga. App. 353 (691 SE2d 242) (2010). See also Davis v. CitiMortgage, Inc., 309 Ga. App. 385, 386 (2) (710 SE2d 577) (2011) (claimed defects in landlord’s title cannot be raised in defense to dispossessory proceeding). Second, without a transcript of the hearing, this Court must assume that the trial court’s factual findings are supported by the evidence. Davis, 309 Ga. App. at 387 (3). Thus, the only remaining assertion of error is that the trial court erred by taking action on the dispossessory after receiving Lingo’s notice of removal to federal court.

2. Removal is controlled by 28 USC § 1446, which “mandates that in a civil action, when the notice of removal is filed with the clerk of the state court, the notice ‘shall effect removal and the State court shall proceed no further unless and until the case is remanded.’ 28 USC § 1446 (d).” Oduok v. Phillips, 269 Ga. App. 583, 584 (4) (604 SE2d 633) (2004). Consequently, any action taken by the state court after removal is null and void and must be vacated. Cotton v. Fed. Land Bank &c., 246 Ga. 188,189 (269 SE2d 422) (1980); DB50 2007-1 Trust v. Dixon, 314 Ga. App. 194 (1) (723 SE2d 495) (2012).

Nevertheless, if the defendant fails to follow the required procedure for removal, the state court retains jurisdiction over the case and may proceed. See Green v. Sommers, 254 Ga. App. 446, 446-447 (1) (562 SE2d 808) (2002). See generally Allen v. Hatchett, 91 Ga. App. 571, 575 (86 SE2d 662) (1955) (“[T]he rule that such proceedings in a State court following a petition for removal are valid where the suit is not in fact removable is ‘the logical corollary of the proposition that such proceedings are void if the cause was removable.’ ”) (citation and punctuation omitted). In Green, this Court held that because the defendants had failed to file their petition for removal within 30 days after they had been served with a dispossessory proceeding, as is required by 28 USC § 1446 (b), they could not complain of any alleged error in the trial court’s continuing with the case. Id. at 446-447 (1). See also Smith v. Bally’s Holiday, 843 FSupp. 1451, 1456, n. 6 (N.D. Ga. 1994) (noting that “the time limits in the statute, while not jurisdictional in nature, are mandatory, and are to be construed against conferring federal jurisdiction”).

Here, Lingo was served with the dispossessory affidavit and summons on July 27, 2011. He did not file his “Motion for Petition for Removal” in the United States District Court of the Middle District of Georgia until September 9, 2011, more than 30 days later. It is only “upon a compliance with the procedural steps of the statute” that the state court loses jurisdiction to proceed. See generally Sayers v. Rothberg, 222 Ga. 626, 627 (151 SE2d 445) (1966). In conclusion, because Lingo’s petition to remove was untimely, the trial court retained jurisdiction of the dispossessory proceeding.

Decided May 10, 2012

Reconsideration denied June 12, 2012.

James L. Lingo, Jr., pro se.

Collier & Gamble, Edward R. Collier, for appellee.

Judgment affirmed.

Barnes, R J., and McFadden, J., concur.

       28 USC § 1446 (b) (1) provides as follows:
      The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within 30 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.


author: MlKELL, Presiding Judge.

text:
    A12A0522.
    SILVER PIGEON PROPERTIES, LLC v. FICKLING & COMPANY.
    (728 SE2d 801)
   MlKELL, Presiding Judge.

Silver Pigeon Properties, LLC (Silver Pigeon), appeals from the trial court’s grant of summary judgment in favor of Fickling & Company (Fickling) on Fickling’s claim for breach of a Management Agreement and enforcement of liens for real estate brokerage commissions. Finding no error, we affirm.

A trial court properly grants summary judgment when there is no genuine issue of material fact and the movant demonstrates entitlement to judgment as a matter of law. We review a grant of summary judgment de novo, and we view the evidence in a light most favorable to the nonmovant.

So viewed, the evidence was that Ginny Wyatt, an independent agent of Fickling, obtained a lease by the United States Air Force of the property located at 1000 Corporate Pointe, Warner Robins, Georgia, on March 1, 2006, from Corporate Village, Inc., the then-owner of the property. A Supplemental Agreement between the same parties was entered into extending the term of the lease from March 1, 2007 through February 28, 2009.

Silver Pigeon purchased the property in April 2008. According to John Dukes, a real estate broker and member of Silver Pigeon, and Wyatt of Fickling, they negotiated the Management Agreement between the parties. That agreement contains the following clauses which are at issue here. The second introductory clause, labeled “EXCLUSIVE,” states:

The Owner hereby employs the Agent exclusively to rent, lease, operate and manage the property known as 1000 Corporate Pointe,... upon the terms hereinafter set forth for the period of One (1) year beginning on the 16th day of April, 2008, and ending on the 31st day of March, 2009 and thereafter for annual periods.

(Punctuation omitted.)

The section labeled “SAVE HARMLESS” provides in pertinent part:

3. The Owner further agrees:... (d) to pay the Agent: (1) For Management and Leasing: Agent shall be paid the amount of 6% of operating income collected on all existing and new leases entered into for as long as such existing and new tenants occupy space on the property. Said 6% shall be vested and include management of the property.

(Emphasis supplied.)

After expiration of the original extended lease term in March 2009, Silver Pigeon continued to accept Fickling’s management and leasing services and continued to pay commissions to Fickling as provided in the agreement. On August 31, 2009, Fickling received a letter from Silver Pigeon’s John Dukes, advising that, effective September 1,2009, Silver Pigeon was taking over management of the property. Fickling received no commissions after September 1, 2009, although the Air Force continued to lease the space until approximately March 2011.

Fickling sued for breach of contract, foreclosure of several broker’s liens filed on the property, and attorney fees. Silver Pigeon filed its answer and counterclaim, seeking a declaratory judgment that the renewal clause was not valid, that the liens were not properly filed, and that the agreement was “null, void, illegal and unenforceable” for failure to comply with the rules of the Georgia Real Estate Commission “regarding the requirement for a management agreement to provide the terms and conditions for its termination.”

Both parties filed motions for summary judgment and, on September 8, 2011, the trial court entered its order granting Fickling’s motion for summary judgment, concluding that Fickling was “entitled to recover from .. . Silver Pigeon . .., commissions of 6% of monthly rental through the date Tenant vacated the property. The issue of attorney’s fees is reserved.”

1. In its first enumeration, Silver Pigeon argues that the trial court erred in finding that the management agreement was not void as violative of public policy.

(a) Silver Pigeon argues that, because the management agreement did not provide the terms and conditions for termination of the property management agreement by the broker or owner of the property, as required by Rule 520-1-.06 (2) (a) (8) of the Georgia Real Estate Commission, it was void as violative of public policy.

Silver Pigeon acknowledges in its brief, however, that, in order for this court to overturn the trial court’s decision, it would be necessary for us to overturn the whole court decision in Johnson Realty, Inc. v. Hand. We decline to do so, however, for we find the rationale and ruling of that case sound. As stated therein:

Accordingly, the rules and regulations promulgated by the Supreme Court, through its inherent power, and by the Public Service Commission, through its delegated authority from the legislature, supplant the necessity for enactment of statutory provisions with reference to the manner in which the applicable profession is actually to be conducted and, having the same force and effect as the supplanted statutes, those rules and regulations become the controlling legal standards of professional conduct. However, unlike the Supreme Court, the Georgia Real Estate Commission has no inherent power over the real estate profession in this state and, unlike the Public Service Commission, the legislature has not delegated to the Georgia Real Estate Commission plenary quasi-legislative power over the general conduct of the real estate business. The General Assembly has determined that it will retain its legislative power to control the manner in which the real estate business is actually to be conducted, and has granted the Georgia Real Estate Commission only the limited quasi-legislative power to determine who is qualified to practice the real estate business in this state. Pursuant to OCGA § 43-40-1 et seq., the Georgia Real Estate Commission is authorized only to promulgate rules and regulations which are “regulatory in nature. Those rules and regulations are limited to action by the Georgia Real Estate Commission in the exercise of its licensing powers.’’Accordingly, the rules and regulations recognize “certain minimum standards for persons engaged in the real estate business.” ... It follows that the rules and regulations of the Georgia Real Estate Commission have the same force and effect as that of statutes in the area of licensing and, to keep his license, a realtor must therefore comply with them.

Even assuming that the management agreement was in violation of a regulation of the Georgia Real Estate Commission because it failed to include the terms and conditions of its termination, this did not render it in violation of public policy as urged by Silver Pigeon.

(b) The argument made here by Silver Pigeon based on the Rule Against Perpetuities was not made below and will not be considered here for the first time.

2. Silver Pigeon’s final enumeration is that the trial court erred in awarding commissions of 6% through the date when the Air Force vacated the premises.

“The issues of contract construction and enforceability are generally questions of law for a court to resolve and are therefore subject to de novo review on appeal.”

The provision of the management agreement regarding commissions could not be clearer — Silver Pigeon was obligated to pay “the amount of 6% of operating income collected on all existing.. . leases entered into for as long as such existing... tenants occupy space on the property.” (Emphasis supplied.)

Decided June 12, 2012.

Bush, Crowley, Leverett & Leggett, J. Wayne Crowley, for appellant.

Berman, Fink & Van Horn, Charles H. Van Horn, Burr & Forman, Jack G. Kowalski, for appellee.

There was no error in the trial court’s grant of summary judgment to Fickling on this issue.

Judgment affirmed.

Miller and Blackwell, JJ., concur.

        AKA Mgmt. v. Branch Banking &c., 275 Ga. App. 615, 616 (621 SE2d 576) (2005).

       Id.

       It is unclear from the record who actually drafted the agreement.

       Prior to the expiration of the original lease term, Wyatt had negotiated a lease extension with the Air Force.

       No ruling was made regarding the liens.

       189 Ga. App. 706 (377 SE2d 176) (1988).

         (Citations and punctuation omitted; emphasis supplied.) Id. at 709-710 (3).

        Johnson Realty, supra; see also Edwards v. Grapefields, Inc., 267 Ga. App. 399, 401-406 (1) (599 SE2d 489) (2004) (contract allegedly in violation of the Rules of the Department of Revenue deemed not in violation of public policy); cf. RSN Properties v. Engineering Consulting Sues., Ltd., 301 Ga. App. 52 (686 SE2d 853) (2009); Precision Planning v. Richmark Communities, 298 Ga. App. 78-80 (1) (679 SE2d 43) (2009) (contracts limiting professional liability not void as violative of public policy).

       OCGA § 44-6-200 et seq.

       Generally, “[a]n argument not raised in the trial court is waived and cannot be raised for the first time on appeal.” (Footnote omitted.) Locke’s Graphic & Vinyl Signs v. Citicorp Vendor Finance, 285 Ga. App. 826, 828 (2) (a) (648 SE2d 156) (2007).

       (Citation omitted.) Precision Planning, supra at 78.