text:
    A13A1368.
    RIMMER et al. v. TINCH et al.
    (749 SE2d 236)
   Miller, Judge.

John and Mary Rimmer, adoptive father and biological mother of son M. H. R., born April 9, 2004, appeal from the trial court’s grant of a petition to modify the visitation rights of Shane Tinch, the biological father of M. H. R., and the trial court’s grant of a motion for contempt filed by Tinch and Patricia Frix, the paternal grandmother of M. H. R., alleging interference with their visitation rights. The termination of Shane Tinch’s parental rights, M. H. R.’s adoption by John Rimmer, and Tinch and Frix’s visitation rights were all accomplished by a consent order. On appeal, the Rimmers challenge the consent order as void. They also argue that the trial court erred in modifying Tinch’s visitation and in awarding attorney fees. For the reasons that follow, we affirm in part, vacate in part, and remand with direction.

In an adoption case, the trial judge sits as both judge and jury and is vested with a broad range of legal discretion which will not be controlled by the appellate courts except in cases of plain abuse. Sastre v. McDaniel, 293 Ga. App. 671 (667 SE2d 896) (2008). In addition, “a trial court has broad discretion to determine if a party is in contempt of its order, and the exercise of that discretion will not be reversed on appeal unless grossly abused.” (Citation omitted.) Hunter v. Hunter, 289 Ga. 9, 11 (4) (709 SE2d 263) (2011).

The following is not disputed. On November 19, 2009, Tinch’s petition to legitimate M. H. R. was dismissed. On December 7, 2009, the superior court entered its “Consent Order Entering Decree of Adoption” (hereafter “Consent Order”).

In the Consent Order, the trial court made the following findings of fact and conclusions of law. Tinch was not married to Mary Rimmer when M. H. R. was born and did not file any action to legitimate him until one month after John Rimmer’s petition to adopt was filed. Since his birth, M. H. R. has been in the legal custody of his mother and, since June 2005, John Rimmer has lived with the mother and child. John and Mary married in May 2006.

Since August 2004, Tinch failed to provide for the care and support of the child for over a year and since April 2005, Tinch failed to communicate with or to make a bona fide attempt to communicate with the child for over a year. Thus, the trial court found that sufficient evidence existed to terminate his parental rights pursuant to OCGA § 19-8-10 (b) (1) & (b) (2). Nonetheless, the Rimmers agreed that Tinch “shall have the right to begin supervised visits with [M. H. R.] on those occasions that this child is visiting with his paternal grandmother, Patricia Frix, who shall be responsible for supervising all visits” between Tinch and the child. Further, the Rimmers agreed that, if Tinch could prove that “he has established a familial bond” with the child, one year after entry of the adoption order he could file a petition seeking unsupervised visits to be set by the trial court or agreed by the parties.

The Consent Order further found that, since the child’s birth, the paternal grandmother, Frix, had been allowed regular unsupervised visits with the child. The Rimmers agreed that Frix had established a bond with the child and that it was in the child’s best interest to continue the visits with her. Additionally, John Rimmer agreed that Frix be allowed to intervene in the adoption proceeding in order to seek continuation of her visits with the child.

No appeal was taken from the Consent Order. More than one year after the Consent Order, Tinch filed his motion to modify visitation rights, seeking the right to have unsupervised visitation with the child, as provided in the Consent Order.

Having obtained new counsel, the Rimmers filed an objection to the motion, including a plea for a declaratory judgment finding the Consent Order void, as well as a motion for summary judgment asserting that allowing visitation with Tinch and Frix was illegal. In response, Tinch and Frix asserted that the Rimmers were estopped from challenging the Consent Order. Tinch and Frix also filed a motion for contempt against the Rimmers, based upon denial of their visitation rights beginning in September 2011.

The trial court denied the Rimmers’ motion for summary judgment, concluding that, pursuant to OCGA § 19-7-3 (b), as amended in 1993, Ga. L. 1993, p. 456, § 1, Frix was entitled to seek visitation rights. No specific ruling was made on the Rimmers’ claim that visitation with Tinch was illegal.

Following a hearing, the trial court entered its order on Tinch’s motion to modify visitation and Tinch and Frix’s motion for contempt, finding that Tinch would share visitation rights with Frix and those visitations would be unsupervised. Further, the trial court found the Rimmers in contempt of the Consent Order, ordered corrective actions to make up for the lost visitation, and ordered the Rimmers to pay the attorney fees of Tinch and Frix.

1. In the Rimmers’ first five enumerations of error, they allege illegalities in the underlying Consent Order. We consider these enumerations together and conclude that their challenges to the Consent Order were barred for the following reasons.

(a) First, as stated above, no appeal was taken from the Consent Order. Pursuant to OCGA § 19-8-18 (e), “[a] decree of adoption . . . shall not be subject to any judicial challenge filed more than six months after the date of entry of such decree.” (Emphasis supplied.) See also Oni v. Oni, 323 Ga. App. 467, 470 (1) (746 SE2d 641) (2013) (challenge to adoption order time barred when made ten months after entry) (physical precedent only). Here, the adoption decree contained in the Consent Order was entered on December 7, 2009 and the Rimmers sought to challenge that order over a year later on December 14, 2010. Thus, to the extent that they challenged the adoption decree portion of the Consent Order, their challenge is barred.

(b) Second, counsel for the Rimmers prepared the Consent Order, and an order entered with the consent of counsel is binding on the client in the absence of fraud, accident, mistake, or collusion of counsel and, in the absence of such a showing, a party cannot complain of a consent order. Rieffel v. Rieffel, 281 Ga. 891, 894 (3) (644 SE2d 140) (2007). The Rimmers “cannot now complain of a result [they] aided in causing, because induced error is not an appropriate basis for claiming prejudice.” (Citations and punctuation omitted.) Camp Cherokee v. Marina Lane, LLC, 316 Ga. App. 366, 371 (2) (729 SE2d 510) (2012).

(c) Finally, as asserted by Tinch and Frix below and here, the Rimmers’ challenges to the Consent Order are also precluded by res judicata and judicial estoppel.

The doctrine of res judicata seeks to bring finality to litigation. By law,

[a] judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.

OCGA § 9-12-40; Austin v. Cohen, 268 Ga. App. 650, 654 (1) (602 SE2d 146) (2004).

In Cain v. Hackley, 124 Ga. App. 429 (184 SE2d 60) (1971), Hackley left her illegitimate child with the Cains in mid-June 1969, with a note indicating she was not abandoning the child, but had tried to find her a nice home. Upon Hackley’s return from Florida in August, she filed a habeas corpus petition to obtain custody of her child. After a hearing, the trial court denied her petition and awarded custody to the Cains. No appeal was taken from that order. Later, the Cains filed a petition to adopt the child, which the trial court denied and then granted custody to the mother. On appeal, this Court found:

The award of custody to the Cains in the habeas corpus proceeding is res judicata until and unless it has been set aside by proper proceedings on appeal, or until it be found by a court having jurisdiction of the matter that there has been a change of conditions which requires or justifies a change in the child’s custody.

Hackley, supra, 124 Ga. App. at 430 (3).

Bates v. Bates, 317 Ga. App. 339 (730 SE2d 482) (2012), involved an adoption petition filed by Tina Bates to adopt the child of her then-partner, Nicole Bates. Nicole consented to the adoption, and it was granted. Following their breakup, Nicole filed a motion to set aside the adoption, arguing that it was void. The trial court denied the motion as untimely under OCGA § 19-8-18 (e). In the meantime, Tina had filed a petition seeking custody of the child, which the trial court denied based on Nicole’s argument that the adoption decree was void because Georgia does not recognize “second parent” adoptions. In reversing this finding, this Court concluded that, as between Nicole and Tina, the adoption decree was binding. Bates, supra, 317 Ga. App. at 341-344.

Moreover, this Court also noted the efficacy of the doctrine of judicial estoppel to this situation, stating that the doctrine

is intended to protect the integrity of the judicial process by prohibiting parties from deliberately changing positions according to the exigencies of the moment, and it forbids [parties], who [have] successfully maintained a certain position in a legal proceeding, to assume a contrary position simply because [their] interests have changed especially if it be to the prejudice of the party who has acquiesced in the position formerly taken by [them].

(Citations and punctuation omitted.) Bates, supra, 317 Ga. App. at 344, n. 5.

Here, the Rimmers, knowing that the parental rights of Tinch were terminated in the Consent Order, nonetheless agreed to let him have visitation with their son supervised by Frix for a year and then to have the opportunity to seek unsupervised visitation. They cannot now complain that he did so.

Therefore,, we find the Rimmers’ attacks on the Consent Order to be barred.

2. In their sixth enumeration, the Rimmers contend that the trial court erred when it modified Frix’s visitation with the child without first considering the best interest of the child. This claim lacks merit.

The order on Tinch’s motion to modify and Tinch and Frix’s motion for contempt, however, does not make a permanent upward adjustment of Frix’s visitation. Instead, it orders that the Rimmers “shall purge themselves [of contempt] by extending extra visitation to ... Tinch and ... Frix” by allowing visitation one extra weekend a month for twelve months, along with half of the fall break vacation and extra days during Christmas vacation, to make up the forty-six days of visitation denied by the Rimmers.

Further, no argument was made below that the trial court failed to consider the best interest of the child in issuing this order, nor did the Rimmers present any evidence at the hearing on this issue. “It is well settled that 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.” (Punctuation and footnote omitted.) Pinnacle Properties V v. Mainline Supply of Atlanta, 319 Ga. App. 94, 100 (2) (735 SE2d 166) (2012).

3. Although the Rimmers’ seventh enumeration is that the trial court erred in considering hearsay when granting unsupervised visitation to Tinch, the argument in the brief deals with the legality of attorney fees in a contempt proceeding. Therefore, this enumeration is deemed abandoned. Court of Appeals Rule 25 (c) (2).

4. In enumerations eight and nine, the Rimmers contend that the trial court erred when it granted an award of attorney fees because the visitation portions of the Consent Order were void and the trial court did not conduct a proper evidentiary hearing. They are considered together.

(a) The enforceability of the Consent Order between the Rimmers and Tinch and Frix has been addressed in Division 1.

(b) The motion for contempt asked for attorney fees, citing OCGA §§ 19-6-2 (a) (1) and 9-11-54 (d). The order awarding $957 in attorney fees and filing costs, however, is silent as to the basis upon which the award was made.

Further, the evidence was insufficient to support an attorney fee award under any statute. It is well settled that “[a]n award of attorney fees is unauthorized if [a party] failed to prove the actual costs of the attorney and the reasonableness of those costs.” (Punctuation and footnote omitted.) Gray v. King, 270 Ga. App. 855, 858 (2) (b) (608 SE2d 320) (2004). Here, counsel merely stated what he charged Tinch and Frix, but did not indicate the total number of hours spent on the case or that the fees incurred were reasonable.

Decided September 27, 2013.

Maddox & Harding, William J. Maddox, for appellants.

David W. Brookshire, for appellees.

Therefore, “the award of attorney fees must be vacated and the case remanded for reconsideration of [the issue below].” (Citation omitted.) Webb v. Watkins, 283 Ga. App. 385, 386 (2) (641 SE2d 611) (2007). On remand, it will be Tinch and Frix’s burden to show their attorney fees and the reasonableness thereof by introducing evidence of hours, rates, or some other indication of the value of the professional fees actually incurred. Id.

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

Barnes, P. J., concurs. Ray, J., concurs in judgment only.

       Providing that a grandparent shall have the right to seek visitation where “there has been an adoption in which the adopted child has been adopted by the child’s blood relative or by a stepparent[.]” (Emphasis supplied.) See Hudgins v. Harding, 313 Ga. App. 613, 614-615 (722 SE2d 355) (2012).

       Tinch and Frix acknowledge in their brief that they were not entitled to recover filing fees of $207 because none were paid.


source: Caselaw Access Project

author: McFadden, Judge.

license: Public Domain

text:
    A12A2570.
    HOLIDAY HOSPITALITY FRANCHISING, INC. v. NOONS.
    (749 SE2d 380)
   McFadden, Judge.

Appellant Holiday Hospitality Franchising, Inc. (Holiday) is a judgment creditor of Appellee Thomas F. Noons. See Noons v. Holiday Hospitality Franchising, Inc., 307 Ga. App. 351 (705 SE2d 166) (2010). Holiday now contends that Noons has been “using sham corporations” to hide his assets. Holiday seeks the equitable remedy known as outsider reverse piercing of the corporate veil.

As Holiday acknowledges, however, our Supreme Court has “reject[ed] reverse piercing, at least to the extent that it would allow an ‘outsider,’ such as a third-party creditor, to pierce the veil in order to reach a corporation’s assets to satisfy claims against an individual corporate insider.” Acree v. McMahan, 276 Ga. 880, 881 (585 SE2d 873) (2003). Citing Acree, the trial court denied Holiday’s post-judgment motion seeking that remedy; and Holiday appealed to this court.

We transferred the case to our Supreme Court on the basis that reverse piercing is an equitable doctrine. See id., citing Estate of Daily v. Title Guaranty Escrow Svc., 178 B.R. 837, 845 (III) (D. Haw. 1995). The Supreme Court returned it to us holding, “Whether and to what extent Aeree applies in this case is a legal question that the Court of Appeals has jurisdiction to consider.”

Decided September 30, 2013

Fried & Bonder, Scott L. Bonder, for appellant.

Steven W. Hardy, for appellee.

Holiday’s arguments on appeal are that Georgia public policy requires a fraud exception to Aeree and that Georgia should create a narrow exception to Aeree to allow outsider reverse piercing of the corporate veil in single shareholder corporations that are alter egos or frauds.

We hold that Aeree applies in this case, and we hold that the extent of its application is that it mandates that the judgment of the trial court be affirmed. Beyond that, our jurisdiction is confined to recognition that, as Aeree is a Supreme Court decision, we are without authority to alter or amend it. Bickford v. Nolen, 142 Ga. App. 256, 262 (1) (235 SE2d 743) (1977).

Judgment affirmed.

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


author: McFADDEN, Judge.

text:
    A13A1123.
    KAUFMAN DEVELOPMENT PARTNERS, L.P. v. EICHENBLATT.
    (749 SE2d 374)
   McFADDEN, Judge.

This appeal follows a trial in a business dispute in which the jury awarded David Eichenblatt compensatory damages on his claim against Kaufman Development Partners, L.P. (“Kaufman Development”) for breach of the operating agreement for Piedmont/Maple, LLC (“Piedmont/Maple”), a limited liability company “formed to acquire, own, operate, redevelop, lease, and sell or otherwise dispose of certain” real estate. Kaufman Development enumerates as error the trial court’s summary judgment ruling that Eichenblatt had standing to bring the contract action against it and the trial court’s post-trial ruling refusing to amend its judgment to extinguish Eichenblatt’s interest in Piedmont/Maple. As detailed below, we find that Eichenblatt, as a party to the operating agreement, had standing to bring an action for the breach of that contract. We also find that the trial court properly declined to amend or clarify its judgment, which was consistent with the jury’s verdict. Finally, we construe Kaufman Development’s challenge to the trial court’s denial of its motion for judgment notwithstanding the verdict as a prayer for relief rather than an additional argument. Accordingly, we affirm.

1. Facts and proceedings below.

On October 23, 1995, Eichenblatt and Kaufman Development entered into an operating agreement for Piedmont/Maple. Craig Kaufman (“Kaufman”) signed that agreement on Kaufman Development’s behalf. The operating agreement identified Eichenblatt and Kaufman Development as the “Members” of Piedmont/Maple and set forth the operating agreement’s purpose: “to document how the business and affairs of [Piedmont/Maple] shall be conducted.” Therein, Eichenblatt and Kaufman Development agreed to terms governing, among other things, Piedmont/Maple’s membership and management; the withdrawal, removal or transfer of a member’s interest in Piedmont/Maple; the allocation of profits and losses; the distribution of cash flow; the dissolution of Piedmont/Maple; the distribution of proceeds upon dissolution; and accounting and recordkeeping. The operating agreement entitled Eichenblatt to up to 40 percent of Piedmont/Maple’s quarterly cash flow distributions, depending on the circumstances.

Subsequently, Eichenblatt entered into a “Separation Agreement” with Kaufman and three other corporations in which the two men were 50 percent shareholders. That agreement, which was effective January 1, 2000, stated that the two men had “mutually agreed to cease doing business together, except for their continued joint ownership in certain entities defined herein.” Regarding Piedmont/ Maple, the separation agreement stated that Eichenblatt and Kaufman would modify the operating agreement to remove Eichenblatt as a member of Piedmont/Maple effective December 31, 1999, in accordance with a specific section of the operating agreement under which Eichenblatt would “continue to have the right to receive such share of allocations and distributions to which he would otherwise be entitled, but shall have no other powers, rights or privileges of a Member of Piedmont [/] Maple.”

Accordingly, on January 1, 2000, Eichenblatt and Kaufman Development amended the operating agreement to address Eichenblatt’s removal as a member of Piedmont/Maple. Pertinently, the amendment provided:

The parties hereto hereby agree that such removal of Eichenblatt as a Member shall be effective as of the Effective Date [January 1, 2000]. Pursuant to Section 3.1 of the Operating Agreement, Eichenblatt shall have the right to receive such share of allocations and distributions to which he would otherwise be entitled, but shall have no other powers, rights or privileges of a Member of [Piedmont/Maple]. The parties hereto agree that from and after the Effective Date, Eichenblatt shall have no authority to bind [Piedmont/Maple] as a Member and shall have no vote in any matter requiring the approval of the Members either pursuant to the Operating Agreement or in the [Georgia Limited Liability Company] Act except as otherwise provided herein. Notwithstanding the foregoing, Eichenblatt’s consent shall be required to approve any amendment of the Operating Agreement which would reduce the amount that would be paid or distributed to Eichenblatt.

The amendment addressed Eichenblatt’s access to Piedmont/Maple’s records and his entitlement to continue to receive certain fees. It added a new paragraph to the section of the operating agreement governing the management of Piedmont/Maple that specifically addressed transactions between Piedmont/Maple, its members, and entities affiliated with its members. The amendment provided that it “shall be binding upon and inure to the benefit of the parties hereto [.]” And it provided that, “[e]xcept as expressly modified hereby, the Operating Agreement shall remain in full force and effect.”

Subsequently, Eichenblatt brought the instant action against Kaufman, Kaufman Development, and several entities related to Kaufman. He alleged, among other things, that Kaufman Development had breached the operating agreement by failing to comply with certain of its provisions governing the management and dissolution of Piedmont/Maple, which he claimed led to him receiving diminished allocations and distributions under the operating agreement. The trial court denied the parties’ cross-motions for summary judgment. The case went to trial, and the jury returned a verdict awarding Eichenblatt $625,000 in compensatory damages against Kaufman Development for breach of the operating agreement. (The jury also found that Craig Kaufman breached the separation agreement but awarded Eichenblatt no damages for this breach, and it found in the defendants’ favor on all of the other claims in Eichenblatt’s complaint.) After the trial court entered judgment on the jury verdict, Kaufman Development moved for the trial court to amend or clarify its judgment to include a finding that Eichenblatt’s interest in Piedmont/Maple had been extinguished. Alternatively, Kaufman Development moved for a judgment notwithstanding the jury verdict. The trial court denied both motions.

2. Eichenblatt’s standing to bring the contract action.

Kaufman Development argues that the trial court erred in ruling that Eichenblatt had standing to sue it for breach of the operating agreement. Kaufman Development raised this issue in connection with the cross-motions for summary judgment. In denying summary judgment, the trial court determined that Eichenblatt had standing to bring the action against Kaufman Development because he was a party to the amended operating agreement with rights thereunder that he claimed had been infringed upon by Kaufman Development’s breach. The issue of standing was not presented to the jury.

Generally, a ruling on a motion for summary judgment becomes moot following the verdict and judgment. However, a party may appeal the denial of summary judgment as part of the direct appeal from the final judgment if the legal issues raised and resolved in denying the motion for summary judgment were not considered at trial. Thus, because the issue of [Eichenblatt’s standing to sue for breach of the operating agreement] was not presented to the jury, we will review the trial court’s denial of the motion for summary judgment on this ground.

Smith v. Saulsbury, 286 Ga. App. 322, 323 (1) (a) (649 SE2d 344) (2007) (citations and punctuation omitted).

Ordinarily, the parties to a contract have standing to sue for a breach of that contract. See generally OCGA § 9-2-20 (a) (“[a]s a general rule, an action on a contract... shall be brought in the name of the party in whom the legal interest in the contract is vested”); Level One Contact v. BJL Enterprises, 305 Ga. App. 78, 80 (1) (a) (699 SE2d 89) (2010) (“The doctrine of privity of contract requires that only parties to a contract may bring suit to enforce it.”) (citation omitted). Kaufman Development asserts, without citation to authority, that Eichenblatt “is no longer a party to [the] [o]perating [agreement” because he is no longer a member of Piedmont/Maple. The clear and unambiguous language of the operating agreement and amendment thereto shows otherwise. See City of Baldwin v. Woodard & Curran, Inc., 293 Ga. 19, 30 (3) (293 SE2d 381) (2013) (where contract’s language is clear and unambiguous, court must look to contract alone for its meaning and enforce it according to those clear terms).

Both the operating agreement and the amendment state that the parties are Eichenblatt and Kaufman Development, and Eichenblatt signed both as a party. The amendment provides that the operating agreement would remain in full force and effect except as expressly modified by the amendment. By expressly removing Eichenblatt as a member of Piedmont/Maple, the amendment modifies the operating agreement to exclude Eichenblatt from the term “Member” as that term is used in the operating agreement. But this does not affect Eichenblatt’s identity as a party to the operating agreement. The amendment does not substitute another party for Eichenblatt or otherwise change the identity of the parties to the operating agreement, and Eichenblatt remains a party thereto.

Kaufman Development argues that, because Eichenblatt is no longer a member of Piedmont/Maple, he cannot bring a claim for Kaufman Development’s breach of provisions of the operating agreement other than those governing allocations and distributions. We disagree. Again, the amendment unambiguously provides that the operating agreement remains in full force and effect except as expressly modified by the amendment. Its provision that Eichenblatt no longer would have “powers, rights or privileges of a Member of [Piedmont/Maple],” aside from his rights to allocations and distributions, merely prevents Eichenblatt from claiming other rights reserved for Piedmont/Maple’s members. Neither the operating agreement nor the amendment contains language suggesting that the parties intended that standing to enforce their agreement was a “power, right or privilege” limited only to Piedmont/Maple’s members. Moreover, to construe the operating agreement and amendment in this manner would be inconsistent with at least two of the amendment’s provisions — the provision adding to the operating agreement a new section pertaining to Piedmont/Maple’s management and the provision stating that the amendment “shall be binding upon and inure to the benefit of the parties hereto [Kaufman Development and Eichenblatt].” These provisions make clear that Kaufman Development remains bound by and Eichenblatt continues to benefit from terms other than those specifically related to Eichenblatt’s rights to allocations and distributions.

3. Motion to amend or clarify the judgment.

Kaufman Development argues that the trial court erred in denying its motion to amend or clarify the judgment. The judgment was consistent in every respect with the jury’s responses on the special verdict form — a form to which Kaufman Development did not object. Nevertheless, Kaufman Development argues that the trial court should have added to its judgment a ruling that the jury’s award extinguished Eichenblatt’s ownership interest in Piedmont/Maple. We find no error.

“Judgment and execution shall conform to the verdict,” OCGA § 9-12-9, and “[a] judgment may be amended by order of the court to conform to the verdict upon which it is predicated, even after an execution issues.” OCGA § 9-12-14. The judgment “must conform to the reasonable intendment of the verdict upon which it is based,” as determined by “an inspection of the record, including the verdict and pleadings.” Turley v. Turley, 244 Ga. 808, 809 (262 SE2d 112) (1979) (citations omitted). Consequently, the trial court was required “to examine the record... and determine if it... plainly appeared] upon the face of the record . . . whether the jury intended [to extinguish Eichenblatt’s interest].” Id. (punctuation and footnote omitted).

Kaufman Development argues that the jury’s award represented the liquidated value of Eichenblatt’s interest and, consequently, the extinguishment of that interest was the only logical legal conclusion to be drawn from the verdict. See Norton Realty & Loan Co. v. Bd. of Ed. of Hall County, 129 Ga. App. 668, 673 (3) (200 SE2d 461) (1973) (court has power to amend judgment and execution to conform to legal effect of verdict). But it does not plainly appear from the face of the record in this case that the jury intended to make any decision regarding Eichenblatt’s interest in Piedmont/Maple. Although Eichenblatt’s counsel argued at trial that the jury should “compensate [Eichenblatt] for his interest,” after which Kaufman Development could “have 100 percent interest,” neither the special verdict form nor the trial court’s charge to the jury asked the jury to make any determinations specifically related to Eichenblatt’s interest in Piedmont/ Maple. Notably, the jury awarded Eichenblatt an amount significantly less than what his counsel argued was the value of his interest.

Consequently, while it is plain from the record that the jury intended to award Eichenblatt $625,000 for breach of the Piedmont/ Maple operating agreement, it is not at all plain that the jury intended either for this amount to represent the full value of Eichenblatt’s ownership interest in Piedmont/Maple or for Eichenblatt to have no interest in Piedmont/Maple going forward. See Salvador v. Coppinger, 198 Ga. App. 386, 387-388 (1) (a) (401 SE2d 590) (1991) (the fact that the jury in a personal injury case awarded exactly the amount of medical expenses claimed by the plaintiff did not establish that the jury did not include therein an award for pain and suffering; the jury might have reduced the sum claimed by the plaintiff for special damages, and there was “no way to determine the weighing and analysis engaged in by the jurors”). Compare Blevins v. Brown, 267 Ga. App. 665, 668 (2) (600 SE2d 739) (2004) (where the jury clearly awarded a truck to one party in a divorce action, but the other party had unlawfully converted the truck, the trial court did not err in entering a judgment that instead awarded damages for the unlawful conversion, because the judgment conformed with the reasonable intendment of verdict). Considering the record in this case, the trial court’s judgment was consistent with all the jury’s findings on the special verdict form and did not require amendment or clarification.

Although Kaufman Development contends that it did not ask the trial court to amend the verdict, that is what Kaufman Development is asking — for the trial court to add to the verdict a new determination, extinguishing Eichenblatt’s interest in Piedmont/Maple, and then for the trial court to conform its judgment to that amended verdict. But “once the jury has dispersed, the trial judge has no power either to add to or take from [the jury’s] findings....” Gill Plumbing Co. v. Jimenez, 310 Ga. App. 863, 867 (1) (714 SE2d 342) (2011) (citation and punctuation omitted). See OCGA § 9-12-7 (“after a verdict has been received and recorded and the jury has dispersed, it may not be amended in matter of substance either by what the jurors say they intended to find or otherwise”); see also Blevins, 267 Ga. App. at 667 (1). Accordingly, a trial court may not amend a jury verdict in a matter of substance after the jury has dispersed even when “[i]t is clear that the jury’s verdict did not fully conform to the law,” Force v. McGeachy, 186 Ga. App. 781, 783-784 (1) (368 SE2d 777) (1988), or the trial court otherwise is not satisfied that the verdict was proper. See Parrish Bakeries of Georgia v. Wiseman Baking Co., 104 Ga. App. 573, 575 (122 SE2d 260) (1961).

As detailed above, the jury was not asked to make, and did not make, any findings about Eichenblatt’s interest, and Kaufman Development cannot now, through a post-trial motion after the jury dispersed, “rewrite the jury’s verdict to include [such] finding[s].” Quantum Trading Corp. v. Forum Realty Corp., 278 Ga. App. 485, 489 (1) (629 SE2d 420) (2006) (citing OCGA § 9-12-7). Cf. Thacker Constr. Co. v. A Better way Rent-a-Car, 186 Ga. App. 660, 662-663 (368 SE2d 178) (1998) (where an issue raised by the pleadings was not decided by the trier of fact — in that case, a panel of arbitrators — the trial court erred in entering a judgment that presupposed a finding on that undecided issue); Dismuke v. Gibson, 174 Ga. App. 546, 547 (2) (330 SE2d 771) (1985) (the trial court lacked authority to add interest to a judgment without direction to do so in the verdict). Kaufman Development’s motion to amend the judgment simply was not the proper vehicle to address its arguments that Eichenblatt no longer has an interest in Piedmont/Maple and is estopped from asserting such an interest.

4. Motion for judgment notwithstanding the verdict.

Although, at the conclusion of its appellate brief, Kaufman Development states that we “should reverse the rulings of the trial court on [its] Motion to Clarify, or in the alternative, on [its] motion for a JNOV,” it does not specifically enumerate as error the trial court’s denial of the motion for judgment notwithstanding the verdict. See American Mgmt. Svcs. East v. Fort Benning Family Communities, 318 Ga. App. 827, 830 (2) (734 SE2d 833) (2012) (appellant cannot expand its enumerations of error through argument or citation in its brief). We therefore construe Kaufman Development’s reference to its motion for judgment notwithstanding the verdict as a prayer for relief rather than an additional argument.

Decided September 30, 2013.

Parker, Hudson, Rainer & Dobbs, Rebeccah L. Bower, Eric J. Taylor, Adam M. Marlowe, for appellant.

Ross, Alloy, Belinfante & Littlefield, Jason Alloy, Richard L. Robbins, for appellee.

Judgment affirmed.

Doyle, P. J., and Boggs, J., concur.


author: Miller, Judge.

text:
    A13A1063.
    In the Interest of L. P., a child.
    (749 SE2d 389)
   Miller, Judge.

Following a bench trial, a juvenile court found L. P. delinquent for committing the offenses of participation in criminal street gang activity (OCGA § 16-15-4 (a)), possession of a firearm by a person under the age of 18 (OCGA § 16-11-132 (b)), theft by receiving stolen property (OCGA § 16-8-7), and carrying a weapon without a license (OCGA § 16-11-126 (a)). L. P. now appeals, contending that the trial court erred in denying his motion to suppress and in admitting into evidence printouts from a Facebook page. L. P. also asserts that the evidence was insufficient to prove beyond a reasonable doubt that he committed the offense of participation in a criminal street gang. For the reasons that follow, we affirm.

To prove that a juvenile is delinquent for committing acts of a criminal nature, the State must prove the commission of these acts beyond a reasonable doubt, just as it would in a criminal prosecution of an adult for the same acts. So, when a juvenile challenges the sufficiency of the evidence, we apply the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), and we consider whether the evidence adduced at the hearing would permit a rational trier of fact to conclude beyond a reasonable doubt that the juvenile committed the acts with which he is charged. In considering the sufficiency of the evidence, we view the evidence in the light most favorable to the adjudication below, keeping in mind that it is for the trier of fact, not this Court, to weigh this evidence, resolve any conflicts in the evidence, and assess the credibility of witnesses.

(Citations and punctuation omitted.) In the Interest of H. A., 311 Ga. App. 660, 661 (716 SE2d 768) (2011).

So viewed, the evidence shows that around 4:00 a.m. on July 7, 2012, police officers with the Griffin Police Department were dispatched to a shoot-out at a J.R. Cricket’s club. Upon arriving at the scene, police officers learned from an eyewitness that individuals from a gang on the south side of Griffin (“Southside gang”) had opened fire on a gang from the east side and then left the scene in a silver colored Honda Accord. The Accord was subsequently spotted on the south side of Griffin, and officers initiated a traffic stop.

During the stop, Lieutenant Curtis Keys observed another vehicle, a Chevy Malibu, driving down the road. Lieutenant Keys recognized the driver of the Malibu and L. P., who was sitting in the passenger seat, from dealing with them on the streets. There were at least three other passengers in the back seat. Lieutenant Keys got in his patrol car and briefly followed the Malibu before activating his patrol lights. Lieutenant Keys noticed that all of the males in the Malibu, including L. P, were from the east side of Griffin. Lieutenant Keys pulled over the Malibu about a block away from where the alleged shooter in the Accord lived. Other officers came to assist in the stop, and upon the officers’ approach to the Malibu, the driver opened his door because his window would not go down. The officer closest to the driver’s side observed a gun in plain view, asked the driver to get out of the vehicle, and alerted the other officers about the gun. Lieutenant Keys pulled L. P. out of the vehicle, patted him down, and discovered a loaded .38-caliber revolver in his shorts pocket. L. P, who wasl6 years old at the time of the stop, did not have a permit for the revolver. Officers subsequently discovered that the revolver had been reported stolen out of Pike County in 2011.

L. P. was placed into custody and transported to the police department. L. P. was read his Miranda rights, and he signed a waiver of rights form. During the police interview, L. P. admitted that he and his friends associated with a group called Alley Mob Bosses (“AMB”). Lieutenant Mike Richardson, a detective with prior training on gang identification, identified AMB as a gang from the east side of Griffin.

Using L. P.’s known street name, “Alley for Real,” Lieutenant Richardson found a user profile on Facebook that used the identity “Alley for Real,” listed a birth month and day that matched L. P.’s, and included pictures of L. P. The Facebook page also contained comments about freeing the user’s brother, and at the time of the posts, L. P.’s brother was incarcerated. The Facebook page contained profile pictures of L. P. making gang signs and had the phrases “AMB” and “Blood killers” edited onto some pictures.

Following the bench trial, the juvenile court judge found that sufficient evidence supported all the charges against L. P. and adjudicated him delinquent.

1. L. P. argues that the juvenile court erred in denying his motion to suppress because the officer lacked a reasonable, articulable suspicion to stop the vehicle in which he was a passenger. We disagree.

On appeal of the denial of a motion to suppress, we construe the facts in favor of the trial court’s findings, uphold the trial court’s findings unless clearly erroneous, and review de novo the trial court’s application of the law to the facts. Barrett v. State, 289 Ga. 197, 200 (1) (709 SE2d 816) (2011); Sommese v. State, 299 Ga. App. 664, 665 (683 SE2d 642) (2009). Moreover, in reviewing a trial court’s decision on a motion to suppress, we may consider all relevant evidence of record, including evidence introduced at trial. See Pittman v. State, 286 Ga. App. 415, 416 (650 SE2d 302) (2007).

An investigative stop that is made based upon a police officer’s reasonable suspicion that a person is, or is about to be, engaged in criminal activity does not violate the Fourth Amendment. To establish the necessary reasonable suspicion to make an investigative stop, the totality of the circumstances must show that the officer had specific and articulable facts which, taken together with rational inferences from those facts, provided a particularized and objective basis for suspecting the particular person stopped of criminal activity. Police officers are permitted to draw reasonable inferences and deductions based upon their own experience and training when assessing whether the cumulative information available to them authorizes an investigatory stop.

(Citations and punctuation omitted.) Taylor v. State, 296 Ga. App. 481, 482 (675 SE2d 504) (2009).

Here, Lieutenant Keys, the officer who conducted the stop, had received information from an eyewitness that the shoot-out at J.R. Cricket’s involved Eastside and Southside gangs, the shooter left in a silver Accord, and the shooter could be found in the area near Pamela Drive and George Circle. About an hour after the shooting, while officers were conducting a stop of the suspected shooter near Pamela Drive in south Griffin, Lieutenant Keys observed a Malibu driving slowly down the road. Lieutenant Keys shone his light into the car and recognized L. P. and the other occupants of the Malibu as being “Eastside guys” based on prior contacts with them. More importantly, Lieutenant Keys saw the suspected victim of the prior shooting in the Malibu. Lieutenant Keys also testified that in his experience, right after a shooting, individuals would load up in a car and go searching for the person who shot at them. Under the totality of these circumstances, Lieutenant Keys had a particularized and objective basis for suspecting that L. P. and the other occupants of the Malibu were or were about to be involved in criminal activity. Therefore, the trial court did not err in denying L. P.’s motion to suppress.

2. L. P. also contends that the trial court erred in admitting printouts from a Facebook page belonging to “Alley for Real,” because the State failed to provide a proper foundation showing that the Facebook page belonged to L. P. We disagree.

Admissibility of evidence is a matter which rests largely within the discretion of the trial court. Any 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. 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.

(Punctuation and footnotes omitted.) Ward v. State, 274 Ga. App. 511, 513-514 (3) (618 SE2d 154) (2005). Documents from electronic sources, such as the printouts from a website like Facebook, are subject to the same rules of authentication as other documents and may be authenticated through circumstantial evidence. See Burgess v. State, 292 Ga. 821, 823 (4) (742 SE2d 464) (2013); Smoot v. State, 316 Ga. App. 102, 109 (4) (a) (729 SE2d 416) (2012).

As a general rule, a writing will not be admitted into evidence unless the offering party tenders proof of the authenticity or genuineness of the writing. There is no presumption of authenticity, and the burden of proof rests upon the proffering party to establish a prima facie case of genuineness. Printouts of web pages must first be authenticated as accurately reflecting the content of the page and the image of the page on the computer at which the printout was made before they can be introduced into evidence. Then, to be relevant and material to the case at hand, the printouts often will need to be further authenticated as having been posted by a particular source.

(Citations and punctuation omitted.) Smoot, supra, 316 Ga. App. at 109-110 (4) (a).

Here, prior to the entry of the Facebook profile page into evidence, the detective testified that he was familiar with L. P.’s street name, “Alley for Real.” The detective accessed Facebook on his computer, conducted a search for “Alley for Real,” and printed the documents from his printer while observing the Facebook profile page for “Alley Forreal.” The detective testified that the printouts fairly and accurately depicted what he observed on his computer screen. The detective, who had previously interviewed L. P, identified L. P. in pictures posted on the Facebook page, and testified that the biographical information listed on Facebook, such as day and month of birth, matched L. P.’s.

Based on this evidence, the trial court was authorized to conclude that the State sufficiently authenticated the printouts as accurately reflecting the content of the Facebook page, and that the material was posted by L. P. See Burgess, supra, 292 Ga. at 823-824 (4) (screenshot from MySpace website was sufficiently authenticated where profile page belonged to a person who went by defendant’s nickname, listed biographical information matching that of defendant, and contained images that were of the defendant); Smoot, supra, 316 Ga. App. at 105, 110 (4) (a) (printouts from website accurately and fairly represented website actually viewed, and circumstantial evidence linked the website to the defendant where defendant’s business card listed the website’s address, the website had images of the defendant using the name “Gold,” and the website had the statement “Created by Gold”). Whether the subject Facebook page actually belonged to L. P. was an issue affecting the weight of the evidence, not its admissibility, and was ultimately an issue for the jury to decide. See Brown v. State, 291 Ga. 892, 897 (3) (734 SE2d 23) (2012); Clark v. State, 283 Ga. App. 884, 887 (2) (642 SE2d 900) (2007). Consequently, the juvenile court did not abuse its discretion when it admitted the printout of the Facebook profile page into evidence. See id.

3. L. P. lastly contends that the evidence was insufficient to support the juvenile court’s finding that he committed the crime of participation in criminal street gang activity under OCGA § 16-15-4 (a). We disagree.

OCGA § 16-15-4 (a) makes it “unlawful for any person employed by or associated with a criminal street gang to conduct or participate in criminal gang activity through the commission of any offense enumerated in paragraph (1) of Code Section 16-15-3.” (Emphasis supplied.) OCGA § 16-15-3 (1) defines “criminal gang activity” as “the commission, attempted commission, conspiracy to commit, or solicitation, coercion, or intimidation of another person to commit any of [certain enumerated] offenses [.]” Those enumerated offenses include any crime “that involves violence, possession of a weapon, or use of a weapon . . . .” OCGA § 16-15-3 (1) (J). Additionally, under OCGA § 16-15-3 (2), a “criminal street gang” is defined as

any organization, association, or group of three or more persons associated in fact, whether formal or informal, which engages in criminal gang activity as defined in paragraph (1) of this Code section. The existence of such organization, association, or group of individuals associated in fact may be established by evidence of a common name or common identifying signs, symbols, tattoos, graffiti, or attire or other distinguishing characteristics [.]

For purposes of defining “criminal street gang,” our Supreme Court has directed that “the actor is the group acting through its members.” Rodriguez v. State, 284 Ga. 803, 806 (1) (671 SE2d 497) (2009). Since the statute clearly contemplates that common names and symbolic identifiers may be used to establish the existence of a gang and that its members are “associated in fact,” we have held that evidence of symbols, tattoos, graffiti, attire, or other distinguishing characteristics may establish the existence of a “criminal street gang.” See In the Interest of X. W., 301 Ga. App. 625, 628 (2) (688 SE2d 646) (2009). Additionally, “participation with others in that criminal street gang activity necessarily implies knowledge of the gang’s criminal activities and a specific intent to further its criminal purposes.” (Citations and punctuation omitted.) Rodriguez, supra, 284 Ga. at 807 (1). As a result, “a conviction under OCGA § 16-15-4 (a) requires that there be some nexus between the enumerated act and an intent to further street gang activity.” (Citation and punctuation omitted.) In the Interest of C. P., 296 Ga. App. 572, 575 (675 SE2d 287) (2009).

Here, Lieutenant Richardson testified that he had served on a Gang Task Force for the Griffin Police Department, had received gang identification training, and, with the assistance of other officers, had tracked the gang affiliation for individuals that the police department had previously arrested. Lieutenant Richardson testified that AMB was a gang from the east side of Griffin, its members distinguish themselves by wearing the color blue, and the gang has established itself as part of the Crips. Lieutenant Richardson further testified that several AMB members had been arrested for firearms and drug offenses. The evidence also showed that on the Facebook page linked to L. P., he referred to the Crips, he was identified in pictures wearing a blue bandana that Lieutenant Richardson described as the “universal flag for Crips,” and there were photographs containing the phrases “AMB” and “Blood killer.” L. P. also admitted that he frequently associated with AMB. Consequently, the evidence was sufficient to support a finding that L. P. was a member of a criminal street gang, which was involved in criminal gang activity.

Decided October 2, 2013.

Kimberly A. Gross, for appellant.

Scott L. Ballard, District Attorney, Robert W. Smith, Jr., Assistant District Attorney, Christy R. Jindra, for appellee.

Moreover, there is also evidence that L. P. participated in criminal gang activity. Specifically, it is undisputed that L. P. committed an enumerated offense of possession of a firearm referenced by OCGA § 16-15-3 (1) (J). As described above, officers received information that an individual from a Southside gang had shot at males from an Eastside gang. Lieutenant Richardson testified that the target of the shooting was known to associate with AMB, and about an hour after the shooting, L. P. was in a vehicle with the intended victim, along with other males from the east side. L. P. and other Eastside males were stopped about a block from where the suspected shooter resided, and L. P. possessed a loaded firearm. Lieutenant Richardson also testified at one point that in his experience, gang members generally seek to retaliate against another gang for prior acts of violence. Based on this evidence, the juvenile court was authorized to conclude that L. P. committed an act which, if he had been an adult, would have resulted in a conviction of participation in criminal gang activity. See In the Interest of C. P., supra, 296 Ga. App. at 575-576 (evidence supported juvenile’s participation in criminal gang activity for carrying concealed weapon and committing theft by shoplifting where juvenile was arrested at store after shoplifting, he was carrying knives at time of arrest, and he carried symbols and codes showing association with a gang). Accordingly, we affirm the juvenile court’s adjudication of delinquency.

Judgment affirmed.

Barnes, P. J., and Ray, J., concur.

       This case was tried before January 1, 2013, which was the effective date of Georgia’s new Evidence Code, including OCGA § 24-9-901 (“Requirement of authentication or identification”).


text:
    A13A1157.
    BENFIELD v. WELLS et al.
    (749 SE2d 384)
   Miller, Judge.

Sharon Benfield, a shareholder in SunTrust Banks, Inc., appeals from the trial court’s dismissal, pursuant to OCGA § 14-2-744 (a), of her shareholder’s derivative suit alleging breaches of fiduciary duty, unjust enrichment, abuse of control, gross mismanagement, and waste of corporate assets by current and former members of Sun-Trust’s Board of Directors (“the Board”) and executive officers. Benfield contends that the trial court erred in failing to find that material questions of fact remain regarding the independence of the Demand Review Committee (“DRC”) that was authorized to investigate Benfield’s claims and to determine whether it was in SunTrust’s best interest to maintain an action on its behalf. For the reasons that follow, we affirm.

A motion to dismiss a shareholder’s derivative action pursuant to OCGA § 14-2-744 (a) is essentially a hybrid summary judgment motion for dismissal. See Thompson v. Scientific Atlanta, 275 Ga. App. 680, 683 (621 SE2d 796) (2005); Millsap v. American Family Corp., 208 Ga. App. 230, 233-234 (5) (430 SE2d 385) (1993). Accordingly, we may look beyond the pleadings to the evidence in the record to resolve the appeal. We review a trial court’s order dismissing a shareholder’s derivative action, however, only for an abuse of discretion. See Stephens v. McGarrity, 290 Ga. App. 755, 761 (2) (a) (660 SE2d 770) (2008); Goldstein v. Wells, 295 Ga. App. 870 (673 SE2d 325) (2009).

So viewed, the record shows that in February 2011, Benfield, a SunTrust common stockholder, sent SunTrust a shareholder demand letter pursuant to OCGA § 14-2-742, requesting that the Board “take action to remedy breaches of fiduciary duty, abuse of control, gross mismanagement and unjust enrichment by current and former officers and directors from late 2004 to the present.” SunTrust responded to Benfield’s demand requesting clarification of her position and contending that the underlying issues in her demand letter were the subject of a detailed and lengthy independent investigation by the DRC in 2008.

Rather than responding to SunTrust’s request for clarification, Benfield filed this action in September 2011. In October 2011, the Board authorized the 2008 DRC to investigate, review and analyze the facts and circumstances surrounding Benfield’s claims and to determine whether it was in SunTrust’s best interest to maintain an action on its behalf.

The 2008 DRC subsequently concluded that the allegations in Benfield’s complaint, while similar to those previously reviewed, were sufficiently different, especially in terms of the seven-year time period covered by the complaint. The 2008 DRC reported to the Board at a February 2012 meeting that reconstituting the DRC with new members who had not served on the Board during most of the time period covered in Benfield’s complaint and were not named as defendants therein would best ensure that there would not be any appearance that the DRC was not appropriately independent.

Accordingly, on February 14, 2012, the independent Board members appointed SunTrust directors Kyle P. Legg, William A. Linnenbringer and David M. Ratcliffe as the new DRC members (hereinafter collectively the “2012 DRC”). The 2012 DRC members had joined the SunTrust Board in 2010 or 2011, and none of the members had previously served as an officer or employee of SunTrust or any of its affiliates. The independent Board members designated the 2012 DRC to investigate the allegations in Benfield’s complaint.

The DRC, with the assistance of its counsel, investigated the allegations in Benfield’s complaint. The DRC’s counsel reviewed SunTrust’s SEC filings, documents submitted to bank regulators, and the minutes from the Board, and its Risk, Audit and Compensation Committees from 2004 through 2011. The DRC and its counsel also interviewed current and former SunTrust officers and directors, and other individuals with knowledge relevant to the investigation. The DRC reviewed the 2008 report, but conducted its own investigation and did not rely upon that report.

The 2012 DRC issued a detailed and documented 178-page report, which described the review process conducted by the independent members of the Board and its counsel, including an investigation of Ratcliffe, Linnenbringer and Legg’s backgrounds and qualifications to ensure that they were independent. The Board’s counsel considered applicable Georgia statutory and caselaw requirements, had each 2012 DRC member complete a prepared questionnaire concerning factors that might impair his independence, and determined that there were no factors suggesting that the 2012 DRC members were not independent within the meaning of that term under applicable law. Additionally, all three 2012 DRC members submitted affidavits in this case confirming their independence.

The 2012 DRC’s report concluded that the defendants named in the complaint acted in good faith and in accordance with the duties of due care and loyalty to which they are subject; there was no credible evidence of any breach of fiduciary duty, corporate waste, mismanagement, or other violations of the law alleged in the complaint; the defendants acted in accordance with the applicable business judgment rule standards; and no corrective measures were required. The 2012 DRC further concluded that maintaining the suit was not in the best interest of SunTrust and its shareholders because the claims raised would ultimately prove unfounded. Accordingly, the 2012 DRC instructed SunTrust to seek dismissal of Benfield’s suit.

In response to SunTrust’s motion to dismiss, Benfield claimed that the 2012 DRC lacked independence due to Ratcliffe’s connections with certain defendants. Following a hearing, the trial court dismissed Benfield’s complaint, finding that Ratcliffe’s connections with the defendants were insufficient to create a material issue of fact regarding his independence, and the defendants carried their initial burden pursuant to OCGA § 14-2-744 of showing the independence and good faith of the 2012 DRC and the reasonableness of their investigation.

In her sole enumeration of error, Benfield contends that the trial court erred in failing to find that material questions of fact exist as to the 2012 DRC’s independence under OCGA § 14-2-744 (a). We disagree.

OCGA § 14-2-744 provides in pertinent part:

(a) The court may dismiss a derivative proceeding if, on motion by the corporation, the court finds that one of the groups specified in subsection (b) of this Code section has made a determination in good faith after conducting a reasonable investigation upon which its conclusions are based that the maintenance of the derivative suit is not in the best interests of the corporation. The corporation shall have the burden of proving the independence and good faith of the group making the determination and the reasonableness of the investigation.
(b) The determination in subsection (a) of this Code section shall be made by:
(2) A majority vote of a committee consisting of two or more independent directors appointed by a majority vote of independent directors present at a meeting of the board of directors, whether or not such independent directors constitute a quorum;
(c) None of the following shall by itself cause a director to be considered not independent for purposes of subsection (b) of this Code section:
(1) The nomination or election of the director by directors who are not independent;
(2) The naming of the director as a defendant in the derivative proceeding; or
(3) The fact that the director approved the action being challenged in the derivative proceeding so long as the director did not receive a personal benefit as a result of the action.

Pursuant to OCGA § 14-2-744 (a), the defendants had the burden of proving that the 2012 DRC’s members were independent. See Millsap, supra, 208 Ga. App. at 232 (2).

The decisions that have examined the qualifications of members of special litigation committees [such as the 2012 DRC in this case] have required that they be both “disinterested” in the sense of not having a personal interest in the transaction being challenged as opposed to a benefit which devolves upon the corporation or all shareholders generally, and “independent” in the sense of not being influenced in favor of the defendants by reason of personal or other relationships.

(Citation omitted.) OCGA § 14-2-744, Code Revision Commission Comments.

Here, the defendants satisfied their burden of proving the independence of the three members of the 2012 DRC, Ratcliffe, Linnenbringer and Legg, by supporting their motion to dismiss with a detailed and documented report, including an investigation of the members’ backgrounds and qualifications, and a determination by the Board’s counsel that there were no factors suggesting that any of the 2012 DRC members were not independent. The defendants also supported their motion to dismiss with affidavits from all three 2012 DRC members confirming their independence. Although SunTrust’s motion to dismiss

does not technically fit into a category of OCGA § 9-11-12 (b) (6) nor does it reach the actual merits of [her] claims as would be at issue in the usual summary judgment motion pursuant to OCGA § 9-11-56, it should be apparent that, upon the [defendants’] coming forward with a motion to dismiss, supported by [a documented] and detailed report [and affidavits confirming the 2012 DRC’s independence], it was incumbent upon [Benfield] to come forward with evidence to support [her] claim of lack of independence of the [2012 DRC] members.

(Citation and punctuation omitted.) Thompson, supra, 275 Ga. App. at 683. This Benfield did not do.

Benfield contends that the 2012 DRC lacked independence due to Ratcliffe’s connections with certain defendants. Specifically, Ben-field contends that defendant Alston D. Correll approved Ratcliffe’s executive compensation at Georgia Power and the Southern Company. Benfield further contends that Ratcliffe served on Georgia Power’s Executive Committee with defendant E. Jenner Wood, and Ratcliffe was connected to several other defendants through shared memberships in certain organizations in the Atlanta area. Benfield does not, however, contend that Ratcliffe had a personal interest in a transaction or challenged action. See OCGA § 14-2-744, Code Revision Commission Comments.

In dismissing this action, the trial court issued a 15-page order addressing Benfield’s contentions regarding Ratcliffe’s lack of independence in detail. With regard to Ratcliffe’s connection to Correll, the trial court specifically considered Ratcliffe’s nearly 40-year career with the Southern Company, and found that Correll’s path dovetailed with Ratcliffe’s for only a brief portion of the overall timeline. The trial court concluded under the totality of the circumstances that Ratcliffe’s business-only connection with Correll was insufficient to render Ratcliffe unable to “base his decision on the merits of the issue rather than being governed by extraneous considerations or influences.” The trial court also found that Benfield failed to show how Ratcliffe’s connections with the other defendants through various charitable organizations impaired his ability to make an independent decision.

Decided October 2, 2013.

Joshua A. Millican, for appellant.

Chilivis, Cochran, Larkins&Bever, JohnK. Larkins, Jr., Thomas D. Bever, Todd P. Swanson, Troutman Sanders, Thomas B. Bosch, Jeremy P. Burnette, James T. Mast, for appellees.

Since Benfield failed to provide evidence to refute the defendants’ evidence that the 2012 DRC members were independent, the record supports the trial court’s detailed findings that Ratcliffe’s limited connections with Correll and the other named defendants did not impair his ability to make an independent decision. Accordingly, Benfield has failed to demonstrate that the trial court abused its discretion in dismissing her suit.

Judgment affirmed.

Barnes, P. J., and Ray, J., concur.

       Defendants also moved to dismiss for failure to state a claim and on the ground that some of Benfield’s claims were barred by the four-year statute of limitation set forth in OCGA § 14-2-831 (b).

       The 2008 DRC consisted of three independent directors —Alston D. Correll, David H. Hughes and G. Gilmer Minor III. The DRC was established to investigate, review and analyze allegations made by other shareholders. The 2008 DRC concluded that no evidence substantiated the allegations and submitted a written report in August 2008. See Mannato v. SunTrust Banks, 308 Ga. App. 691 (708 SE2d 611) (2011).

       The DRC’s review was conducted by both its 2008 members and those appointed in 2012.

       The DRC’s counsel included its contracted counsel and other lawyers employed for their expertise in bank regulatory law, federal securities law and internal corporate investigations, including state and federal prosecutors.

       Although both the 2008 DRC and the 2012 DRC reviewed and investigated the allegations in Benfield’s complaint, the DRC’s report was prepared and issued by the three members of the 2012 DRC, Ratcliffe, Linnenbringer and Legg.

       Benfield did not challenge Legg or Linnenbringer’s independence.

       Here, Benfield does not contend that the 2012 DRC members had a personal interest in the transaction. She contends only that one member, Ratcliffe, was not independent due to his personal relationships.


text:
    A13A1347.
    ENDOVER PALISADES, LLC v. STUART.
    (749 SE2d 381)
   Miller, Judge.

This case arises from entry of a judgment in favor of Endover Palisades, LLC a/k/a The Palisades at West Paces, Inc. (hereinafter “Palisades”) in its suit against William H. Stuart for recovery of past due rent under the parties’ commercial lease. Stuart filed a motion to set aside the judgment pursuant to OCGA § 9-11-60 based on lack of personal jurisdiction and fraud. The trial court granted Stuart’s motion to set aside, finding that the trial court never acquired personal jurisdiction over Stuart because he was not personally served and his purported counsel was not authorized to accept service on his behalf.

We granted Palisades’s application for interlocutory review to consider whether Stuart waived his defense of lack of personal jurisdiction. On appeal, Palisades contends that in setting aside the judgment the trial court erred in (1) failing to consider whether purported counsel in fact represented Stuart; (2) failing to consider whether Stuart ratified his purported attorney’s acts; and (3) concluding that Stuart’s delay in filing his motion to set aside was reasonable. For the reasons that follow, we reverse and remand the trial court’s ruling.

This Court will not reverse a trial court’s ruling on a motion to set aside unless the trial court abused its discretion. See Barner v. Binkley, 304 Ga. App. 73, 74 (1) (695 SE2d 398) (2010).

So viewed, the record shows that, in June 2004, Palisades and Stuart entered into multiple lease agreements for medical office space in a building located in Atlanta. Although the leases required payment of a combined monthly rent of $52,356, the parties subsequently stipulated that Stuart would pay a reduced monthly rent of $20,000, contingent on Stuart’s purchase of the leased space. The parties further stipulated that Stuart would owe the difference and the payments would revert back to the full rental amount if the sale did not occur.

Stuart surrendered possession of the leased premises in March 2006, and Palisades sued him for unpaid rent. Attorney Edwin M. Ceccarelli filed an acknowledgment of service and answer on Stuart’s behalf. Palisades moved for summary judgment, and Ceccarelli filed an opposition to that motion, including an affidavit purportedly signed by Stuart. The affidavit, which was notarized by Ceccarelli, stated that Stuart had employed Ceccarelli’s law firm to represent him in Palisades’s suit.

In February 2007, the parties entered into a consent order providing that Stuart was indebted to Palisades in the amount of $677,483.65, without setoff or defense. The order required Stuart to pay the indebtedness in 29 monthly installments with interest, and provided for entry of a judgment against Stuart, as well as issuance of a writ of fi. fa. to Palisades in the event of Stuart’s default. Ceccarelli entered into the consent order on Stuart’s behalf.

In June 2011, after Stuart failed to make payments in accordance with the consent order, a judgment was entered against him. On November 23, 2011, Stuart moved to set aside the judgment on the grounds of lack of personal jurisdiction and fraud. The trial court granted Stuart’s motion, finding that it never acquired personal jurisdiction over Stuart because the undisputed evidence showed that he was not personally served and Ceccarelli was not authorized to accept service on his behalf. The trial court further found that Stuart was not guilty of an unreasonable delay after notice of the judgment.

1. Palisades contends that the trial court erred in failing to consider whether Ceccarelli in fact represented Stuart. We agree.

Under OCGA § 9-11-60 (d) (1), a motion to set aside a judgment may be based upon lack of jurisdiction over the person or the subject matter. Under OCGA § 9-11-60 (f), a judgment void because of lack of jurisdiction of the person or subject matter may be attacked at any time. Lack of jurisdiction of the person usually arises from one of two defects: invalidity of service or faulty venue. Invalidity of service and faulty venue are, however, waivable defects. In fact, under OCGA § 9-11-12 (h) (1) (B), a defense of lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process is waived if it is neither made by motion under OCGA § 9-11-12 nor included in a responsive pleading, as originally filed.

(Punctuation and footnotes omitted.) Burch v. Dines, 267 Ga. App. 459, 461 (2) (600 SE2d 374) (2004).

When a defendant executes a waiver of service, either personally or through an authorized [attorney], by signing an acknowledgment like the one signed in this case, he is thereafter precluded from complaining because ofthe absence of service. . . . However, when only the attorney signs the acknowledgment of service, the alleged client is not estopped to contest the authority of the attorney to act in the alleged client’s behalf.

(Citations and punctuation omitted.) Newell v. Brown, 187 Ga. App. 9, 10-11 (369 SE2d 499) (1988).

[A]n acknowledgment of service signed by one as attorney for the defendant is prima facie authorized until the contrary appears. While this presumption is [rebuttable], . . . the burden is upon the party to show the want of authority in the attorney. It is also true that [a] judgment rendered against a party upon a wholly unauthorized appearance of an attorney, if the act of the attorney be not ratified, will be set aside in a direct proceeding for that purpose, in law or equity, if the party is not guilty of unreasonable delay after notice or knowledge of the judgment. While an acknowledgment of service executed by an attorney in behalf of an alleged client can be traversed and impeached by showing want of authority in the attorney, the acknowledgment of service is of itself evidence of a higher order, and can only be set aside upon evidence which is not only clear and convincing, but the strongest of which the nature of the case will admit.

(Citations and punctuation omitted; emphasis in original.) Id. at 11.

Here, in support of his motion to set aside the judgment, Stuart filed a contemporaneous affidavit stating that Ceccarelli represented former business associates. Stuart also stated that he never retained or asked Ceccarelli to represent him in Palisades’s suit; he had no knowledge of and did not sign the affidavit stating that he authorized Ceccarelli to act as his counsel; he never authorized Ceccarelli to accept service of Palisades’s lawsuit on his behalf; and he never authorized Ceccarelli to enter into the consent order. Stuart further averred that he had no knowledge of the lawsuit and resulting consent order until early 2011.

Ceccarelli filed a responsive affidavit disputing Stuart’s disclaimer of authority. Notably, Ceccarelli stated that he discussed the Palisades’s lawsuit with Stuart via telephone in 2006, and during the course of that telephone call Stuart expressly requested his representation in that suit. Ceccarelli further averred that he responded to Palisades’s motion for summary judgment in accordance with Stuart’s instructions, and Stuart directed him to execute the consent order.

As direct evidence in rebuttal to Stuart’s disclaimer of Ceccarelli’s authority, Palisades offered an affidavit that was purportedly signed by Stuart in August 2006. The purported affidavit stated that Stuart had employed Ceccarelli’s law firm to defend him in Palisades’s suit for unpaid rent. Palisades also offered circumstantial rebuttal evidence, including a September 2006 memorandum from Stuart to his former business associate. The memorandum set forth special terms that Stuart had agreed to in settlement of the rent he owed on the leases, and stated that he agreed to those terms in June 2006, a month after Palisades filed the lawsuit. Moreover, the memorandum’s proposed payment terms were nearly identical to the proposed settlement terms Ceccarelli set out in an August 2006 letter to Palisades’s counsel.

Palisades also offered a May 2011 notice of appearance of counsel for Stuart in rebuttal to his disclaimer of Ceccarelli’s authority. A copy of the notice of appearance was served on Ceccarelli and the notice made no mention of any potential defect in the trial court’s jurisdiction or Ceccarelli’s allegedly unauthorized representation.

Based on the foregoing, the record shows that the parties presented conflicting evidence on the issue of whether Ceccarelli was authorized to represent Stuart when Ceccarelli filed an answer on Stuart’s behalf which did not challenge the trial court’s jurisdiction over Stuart. If Ceccarelli was in fact representing Stuart at the time he filed the answer, then Stuart’s insufficient service defense was waived. See Hall v. Nelson, 282 Ga. 441 (1) (651 SE2d 72) (2007) (defense of insufficient service is waived unless raised in answer or by motion filed before or simultaneously with answer); see also Burch, supra, 267 Ga. App. at 461 (2).

In granting Stuart’s motion to set aside the judgment under OCGA § 9-11-60 (d), the trial court stated:

While there are many disputed points of fact, there is one that is uncontested.... [Stuart] specifically denies that Mr. Ceccarelli was ever authorized to accept service on his behalf. Mr. Ceccarelli’s affidavit is silent on this point. Absent evidence that Mr. Ceccarelli was in fact authorized to acknowledge service on [Stuart’s] behalf, there is no contested issue to resolve on the issue of service. Notwithstanding issues of representation and other issues that fall away, it is undisputed that [Stuart] was not served personally and it appears undisputed that Mr. Ceccarelli was not authorized to accept service on [Stuart’s] behalf.

The trial court’s order clearly noted that there were disputed points of fact with regard to whether Ceccarelli’s representation of Stuart was authorized; however, the trial court did not resolve this factual dispute.

Before the trial court could set aside the judgment under OCGA § 9-11-60 (d) for lack of personal jurisdiction based on insufficient service, the trial court had to make a determination of whether that defense was waived when Ceccarelli filed the answer on Stuart’s behalf without raising that defense. See Hall, supra, 282 Ga. at 441 (1). If Ceccarelli was authorized to represent Stuart when the answer was filed, then Stuart’s insufficient-service defense must be deemed waived. See Smith v. Local Union No. 1863, Intl. Longshoremen’s Assn. of Clerks, 260 Ga. App. 683, 687 (4) (580 SE2d 566) (2003) (holding that attorney’s acts within scope of his authority are binding on client). Since a determination of whether Ceccarelli was authorized to represent Stuart was a necessary prerequisite to the trial court’s determination that it lacked personal jurisdiction over Stuart, we reverse the trial court’s judgment and remand this case for the trial court to make this determination.

2. Because we have reversed the judgment of the trial court, we need not address Palisades’s remaining enumerations of error.

Judgment reversed and case remanded.

Barnes, P. J., and Ray, J., concur.

Decided October 2, 2013.

Cohen, Pollock, Merlin & Small, Gus H. Small, Jr., Garrett H. Nye, for appellant.

Parker, Hudson, Rainer & Dobbs, Robert M. Brennan, Rajesh Shah, for appellee.


author: Ellington, Presiding Judge.

text:
    A13A1161.
    In the Interest of D. C., a child.
    (748 SE2d 514)
   Ellington, Presiding Judge.

This appeal arises from a disposition order of the Juvenile Court of Chatham County that ordered the appellant, then 15 years old, to be confined in a youth development center for 36 months, followed by 12 months of intensive supervised probation. The appellant contends that the court abused its discretion in ordering him to such a long period of confinement because it failed to find that he had physically injured the victim of his most recent felony. Because we conclude that the trial court properly considered the evidence presented and the factors required to authorize its restrictive custody order and that it did not abuse its discretion in ordering 36 months of restrictive custody under the circumstances presented, we affirm.

Viewed in favor of the court’s order, the record shows the following facts. In November 2011, the juvenile court adjudicated the appellant delinquent after he stole a car and wrecked it, causing approximately $1,800 in damage. The court placed the appellant, who was 14 years old at the time, on felony probation. After the appellant violated several terms of his probation, the court ordered him to wear an electronic monitoring device on his ankle so that the State could ensure that he did not leave his home or school without permission. In June 2012, after concluding that he had continued to violate the terms of his probation, the court placed the appellant in a short-term treatment program.

The next month, the court formally adjudicated the appellant delinquent after concluding, inter alia, that he had left school without permission after removing his ankle monitor and putting it in his school locker, thereby interfering with government property by circumventing the operation of his ankle monitor, an act that would be a felony if committed by an adult. The appellant failed to appear for an August disposition hearing on that adjudication, so the court issued an arrest warrant. During the rescheduled disposition hearing in September, the court ordered the appellant to be assessed for substance abuse based on evidence that he had frequently used marijuana while on probation, but it decided to postpone, for 60 days, its decision on whether the appellant should remain on probation or be committed to restrictive custody. The court told the appellant that this 60-day period would give him the opportunity to show the court that he was willing and able to stop his bad behavior, to follow directions, and to accept the help he needed. In addition, the court specifically warned him that this would be his “last shot” to prove that he was willing to make these changes and that the next hearing would be the “moment of truth.”

Three weeks later, however, the State learned that the appellant had been found in possession of a stolen car and that he had driven it for a few days, even taking it to school and telling school officials that the car belonged to his aunt. The owner of the car was a woman who was married to a military serviceman, and her husband had placed personal items, including his house key, and over $5,000 worth of government-owned military equipment in the trunk of the car before it was stolen. During the appellant’s possession of the car, he took the items out of the car and discarded them in another part of town; while the military equipment was eventually recovered, the personal items were not. Because the victim’s house key was missing and her husband had been deployed on a mission, she was too afraid to stay in the house alone and had to stay elsewhere for ten days, and she was forced to change the locks on her house. According to the victim, even though her home is in a “great community” where she previously felt safe while walking outside at night by herself, she has considered selling her home and moving because she no longer feels safe staying there alone.

On October 5, the juvenile court conducted an adjudicatory hearing on a charge of theft by receiving a stolen motor vehicle that arose from the September incident and concluded that it constituted a designated felony. During this hearing, the appellant’s mother reported that, in addition to the September theft by receiving incident, the appellant had taken her car three times without her permission in the past month and that he had wrecked it, causing about $4,000 in damage to the car. A month later, the court conducted a disposition hearing on the delinquency adjudications resulting from, inter alia, the theft by receiving charge, the related charge of interference with the government property that was in the trunk of that car, and the charges of interfering with an electronic monitoring device and driving without a license. Following the hearing, the court committed the appellant to the Department of Juvenile Justice for a period of five years as a designated felon, to serve the first thirty-six months in a youth development center, during which he would receive drug treatment, mental health counseling, educational assistance, and other services.

On appeal from that order, the appellant does not dispute that, having been adjudicated delinquent based upon a second act of theft by receiving a motor vehicle, the court properly concluded that he committed a designated felony act, as defined by OCGA § 15-11-63 (a) (2) (E). Instead, he argues that the court abused its discretion in ordering him to serve 36 months in restrictive custody in the absence of a finding that the victim of that theft suffered any actual physical injuries.

Where a child is found to have committed a designated felony act, the order of disposition shall include a finding based on a preponderance of the evidence as to whether the child does or does not require restrictive custody under OCGA§ 15-11-63. OCGA § 15-11-63 (b). To determine whether restrictive custody is warranted, the juvenile court must consider and make written findings about these factors: (1) the needs and best interest of the child; (2) the record and background of the child; (3) the nature and circumstances of the offense, including whether [the victim sustained an injury and, if so, whether the child caused the injury]; (4) the need to protect the community; and (5) the age and physical condition of the victim. OCGA § 15-11-63 (c).

(Citation and punctuation omitted.) In the Interest of K. F., 316 Ga. App. 437, 439 (2) (729 SE2d 575) (2012).

The purpose of the[se] specific findings [of fact] is to specify in writing the essential elements involved in the case of a particular juvenile and thereby assist the lower court in its consideration of all of the mandated statutory elements — both those supporting and those mitigating against a particular case disposition. By complying with statutory procedure, the lower court will have the documented benefit of those elements relevant to its balancing process, and an appellate court will have documented assistance in determining whether a breach of discretion may have occurred in a particular case.

(Emphasis supplied.) In the Interest of C. T., 197 Ga. App. 300, 304 (3) (398 SE2d 286) (1990). “The weight to be accorded each factor, and the ultimate decision about whether restrictive custody is warranted, is committed to the sound discretion of the juvenile court.” (Citation omitted.) In the Interest of K. F., 316 Ga. App. at 439 (2). In other words, OCGA § 15-11-63 (b) and (c) does not require that a juvenile court find that there was evidence on each factor that supports restrictive custody. Instead, it requires the court to consider each factor and to document its findings thereon, to then weigh those findings that favor restrictive custody against those that do not, and, finally, to use its broad discretion in deciding whether to order restrictive custody. Id.

In this case, the juvenile court specifically addressed each of the five factors in OCGA § 15-11-63 (c) during the disposition hearing and then issued an order of disposition that included written findings of fact as to each of those factors, as required by OCGA § 15-11-63 (b). As to the “needs and best interests of the child,” the court found that the appellant “is in desperate need of structure in his life. His behavior is strictly self centered. He must learn to regard the property rights of others. He is in need of drug treatment and mental health counseling. He also needs assistance in taking school seriously.” The court’s order included a comprehensive list of the appellant’s criminal history, including his two thefts by receiving a motor vehicle and his multiple probation violations. As to the “nature and circumstances of the offense,” including whether the child injured the victim, the court found that, although “[n]o physical injury was suffered by the victim of the most recent motor vehicle theft,” she suffered an “emotional injury ... in the form of fear to venture out at night and fear concerning the safety of personal property.” Regarding the “need for protection of the community,” the court found that both of the car thefts

Decided October 3, 2013.

Yolanda Bacharach, Mark J. Nathan, for appellant.

were acts of opportunity. In the last case, the vehicle belonged to a military service member who left his military gear in the trunk of the vehicle. When this child obtained the vehicle, he scattered the contents of the trunk around the neighborhood although it was clearly marked as military equipment.

“The [juvenile] court’s written findings must afford this Court a basis for meaningful appellate review by showing that the determination as to restrictive custody was not arbitrary, and that the court gave due consideration to each of the required statutory findings.” (Citation and punctuation omitted.) In the Interest of K. F., 316 Ga. App. at 439 (2). In this case, the court was authorized to find that the appellant’s criminal history, his repeated violations of his probation while living at home, and his frequent use of marijuana demonstrated that restrictive custody was in his best interests, as well as the community’s, and outweighed the absence of any physical harm to the victim of the September theft by receiving incident. Accordingly, we conclude that the court’s findings in this case complied with OCGA § 15-11-63 (b) and (c) and that it did not abuse its discretion in ordering the appellant to serve 36 months in restrictive custody. Id.

Judgment affirmed.

Phipps, C. J., and Branch, J., concur.

Meg E. Heap, District Attorney, Allison E. Bailey, Assistant District Attorney, for appellee.

       See In the Interest of B. M., 289 Ga. App. 214, 214-215 (656 SE2d 855) (2008) (“In considering a challenge to the sufficiency of the evidence supporting an adjudication of delinquency, we construe the evidence and every inference from the evidence in favor of the juvenile court’s adjudication to determine if a reasonable finder of fact could have found, beyond a reasonable doubt, that the juvenile committed the acts charged. Thus, the standard of review on appeal in a case of adjudication of delinquency of a juvenile is the same as that for any criminal case. In reviewing such cases, we do not weigh the evidence or determine witness credibility.”) (citation and footnote omitted).

       The record shows that, at the time of the disposition order at issue on appeal, the appellant had failed to pay more than a nominal amount toward this restitution obligation.

       See OCGA § 16-7-29 (b) (3) (“It shall be unlawful for any person to knowingly and without authority remove, destroy, or circumvent the operation of an electronic monitoring device which is being used for the purpose of monitoring a person who is . . . [w] earing an electronic monitoring device as a condition of probation[.]”); (d) (“Any person who violates this Code section shall be guilty of the offense of tampering with the operation of an electronic monitoring device and shall be punished by imprisonment for not less than one nor more than five years.”).

       At the time of this car theft, the appellant was 15 years old and did not have a driver’s license.

       Under OCGA § 15-11-63 (a) (2) (E), a “[designated felony act” includes “an act which... [constitutes a second or subsequent violation of Code Sections 16-8-2 through 16-8-9, relating to theft, if the property which was the subject of the theft was a motor vehicle.”

       In addition, as to the final factor, the “age and physical condition of the victim,” the court noted that the victim and her husband were adults in good physical health. Cf. In the Interest of J. W., 306 Ga. App. 339 (702 SE2d 649) (2010) (a delinquency adjudication and an order of restrictive custody for a juvenile involved in an aggravated assault on a 62-year-old victim).

       In In the Interest of K. F., this Court concluded that the following written findings of fact showed that the juvenile court properly considered the factors in OCGA § 15-11-63 (c) in ordering restrictive custody for the appellant:
      that K. F. had three prior separate felony adjudications, and that],] although none of the burglary victims were home when K. F. committed the crimes, “the victims uniformly expressed continuing ill ease in their homes[”; that] K. F. had a pistol during the commission of the crimes, had shown “no regard for anyone but himself” and that the community needed protection from him]; that] K. F. needs a more structured environment and has demonstrated that he cannot control his actions [; and that it is] in his best interest to receive control and assistance to prevent him from entering the adult system.
      (Punctuation omitted.) 316 Ga. App. at 439 (2).