text:
    A16A0885.
    R. C. ACRES, INC. v. MOMMIES PROPERTIES, LLC et al.
    (790 SE2d 824)
   BARNES, Presiding Judge.

This is the second appearance of this case involving a dispute as to the location of Appellant R. C. Acres, Inc.’s, easement of ingress and egress over real property owned by Appellees Mommies Properties, LLC, and Vinay Bose (collectively, the “M. P. defendants”). At issue in the present appeal is whether the trial court amended the judgment to specify the ultimate location of the easement in a manner that conformed to the jury’s verdict and the evidence presented at trial, as this Court in the prior appeal instructed the trial court to do on remand. See R. C. Acres v. Cambridge Faire Properties, 331 Ga. App. 762, 769-770 (3) (771 SE2d 444) (2015) (“R. C. Acres I”). Because the trial court amended the judgment on remand in a manner that did not conform to the reasonable intendment of the jury’s verdict and the trial evidence, we must reverse the amended judgment and remand for further action consistent with this opinion.

We summarized the relevant trial evidence in R. C. Acres I:

At trial, R. C. presented testimony that it owns a parcel of property on the Chattahoochee River in Forsyth County. The parcel is landlocked, and was originally part of a larger tract of land with access to a nearby highway, owned by the Rives Corporation (“Rives”) at the time R. C. acquired its parcel from Rives, but later divided into two tracts and conveyed to others. One tract was [ultimately] transferred to [Cambridge Faire Properties LLC, and White Repair & Contracting Co. (collectively, the “Cambridge defendants”)]; the other was developed as an equestrian property by an intermediate owner, Silver Creek Development, and eventually transferred to M. P. defendants Mommies Properties and Bose.
At the time of the sale to R. C. in 1985, Rives granted “a sixty foot wide easement which runs parallel to the south boundary line” of the property. The deed did not describe the easement location in more detail; instead, it explicitly provided: “a relocated easement of ingress and egress will be obtained between the parties hereto, their respective heirs and assigns subsequent to the date of this conveyance.” A Rives officer testified that this agreement was made so that the parties involved could later agree upon a mutually convenient location.
A major issue at trial was whether the easement was relocated by agreement between the parties or their predecessors in title. While the M. P defendants contend the evidence showed that the easement was never relocated with respect to their property, citing portions of the record, R. C. points to evidence in the record, including surveys, deeds, and testimony, showing that the easement was relocated by agreement to an existing roadway on the property, known as “Woods Road” or “Old Woods Road.” Testimony was presented that this route was used from R. C.’s acquisition of the property in 1985 until 2005, by R. C. and others, including a lessee of R. C. which operated a model airplane club on the land, and the Army Corps of Engineers, which used the roadway to access a dam release warning horn on the river. R. C. presented surveys referenced in the various deeds which identified this roadway as its easement. Some evidence was also presented to show that after the equestrian complex was developed in 1998 by Silver Creek, a predecessor in title to the M. P defendants, a barn blocked a portion of this existing roadway, and a gravel drive was installed around it.
The location of the easement became an issue after Mommies Properties purchased the stable property in 2005 and blocked access to R. C.’s property, informing R. C. by e-mail that it could no longer use the roadway R. C. presented evidence that after matters reached this impasse, it began negotiations with both the M. P. defendants and the Cambridge defendants to move the easement to a location agreeable to all the parties. Testimony was presented that a location was agreed upon, and that R. C. constructed a roadway at its expense, referred to by the parties as the “New Road.” This roadway, however, was also blocked by defendants, and this action followed.

(Footnote omitted.) R. C. Acres I, 331 Ga. App. at 764-765 (1).

R. C. filed a complaint seeking to quiet title to its easement and for damages for interference with its use and enjoyment of the easement, and the case ultimately proceeded to trial against multiple defendants, including the Cambridge defendants and the M. P. defendants. The jury trial that ensued was bifurcated. The first phase of the trial addressed the original and final locations of the easement over the defendants’ properties, and the second phase addressed whether and to what extent the defendants interfered with R. C.’s easement rights.

As part of the preparation of the special verdict form for the first phase of the trial, the trial court decided that the jury would be provided a redacted plat of the defendants’ properties and would be asked to draw the original and final locations of the easement on the plat using colored markers. When the trial court provided the parties with its proposed redacted plat, R. C. objected to the plat and to the procedure proposed by the trial court for identifying the original and final locations of the easement. R. C. took issue with the fact that the redacted plat prepared by the trial court showed the outline of “Old Woods Road” and the southern boundary line of the defendants’ properties, but not the outline of the “New Road,” which was another possible location of the easement that could be found by the jury. R. C. argued:

Should the jury select some place other than what might clearly be Old Woods Road or might clearly be the southern boundary of the property when they locate the easement on the property, we are all going to be left to guess. They obviously won’t be able to make a survey with a colored marker, and we will be left to guess where on the ground that the jury indicated to locate the easement.

R. C. proposed that the jury instead be given a clear choice between a limited number of alternative locations for the easement based on the evidence and argument presented by the parties at trial.

The M. R defendants responded that the redacted plat and the procedure proposed by the trial court would result in the identification of the original and final locations of the easement with sufficient certainty because “[t]he Court has authority to interpret the verdict in connection with future proceedings.” The M. P. defendants noted that “if, for example, the jury were to . . . come up with a path that follows even roughly where the location of [the] new road is,” the court could refer to other surveys in the record to identify the easement intended by the jury.

The trial court overruled R. C.’s objections to the redacted plat and to the procedure for having the jury identify the original and final locations of the easement. The trial court concluded that “wherever ... [the jurors] mark the location of the easement, the Court will be able to interpret that location” to scale.

In its subsequent charge to the jury in the first phase of the trial, the trial court discussed the special verdict form with the jurors. The trial court instructed the jurors to answer the questions on the form about the location of the original deeded easement, whether the easement had been relocated, and, if so, when the relocation had occurred. In discussing the redacted plat attached as an exhibit to the special verdict form, the trial court instructed the jurors to draw the original deeded easement and the relocated easement on the plat, which had a graphics scale attached to it showing how many feet equaled one inch, and the court provided the jury a survey scale, a calculator, colored markers, and extra copies of the redacted plat. The trial court clarified that “[i]n deciding the issue of whether the deeded easement was relocated, and if so, to what location, [the jurors were] not to consider the issue of the width of any such relocated easement,” which was an issue for the court to determine. The trial court also later clarified, in response to a question from jurors, that the reference to the “relocated” easement in the special verdict form meant the final location of the easement.

Following its deliberations, the jury returned a special verdict form finding that the original location of the easement was “parallel to the southern boundary” of the property, that the easement had been relocated, and that the relocation had occurred in “Fall 2008.” On the redacted plat attached to the special verdict form, the jury drew two lines with the colored markers, labeling one “Deeded Easement” and the other “New-Relocated Road.”

The jury’s special verdict form and redacted plat were incorporated into the trial court’s judgment after the second phase of the bifurcated trial. The judgment did not reduce to scale or include a metes and bounds description of the original and final locations of the easement. Although the trial court had previously determined as a matter of law that the width of the easement was 60 feet, that determination also was not incorporated into the judgment.

R. C. appealed from the judgment entered by the trial court, contending, among other things, that the judgment did not adequately identify or describe the final location of the easement, thereby preventing R. C. from obtaining marketable title. See R. C. Acres I, 331 Ga. App. at 769 (3). In R. C. Acres I, we agreed with R. C. that the description of the easement in the judgment was not sufficiently certain. 331 Ga. App. at 769-770 (3). Accordingly, we vacated the portion of the judgment regarding the final location of the easement, and we remanded with the direction “that the trial court amend the judgment to conform to the jury’s verdict and the evidence, to make the description of the easement sufficiently certain.” Id. at 770 (3).

On remand, R. C. filed a motion requesting that the trial court appoint a land surveyor to prepare a survey and legal description of the final location of the easement on the M. P. defendants’ property that would be plotted along the route of the “New-Relocated Road” as built in Fall 2008. R. C. subsequently retained a surveyor, who identified the actual gravel road that had been built near the southern boundary line of the M. P. defendants’ property and then prepared a survey of the easement based on the route of that road.

The trial court, however, did not incorporate R. C.’s commissioned survey that was based on the location of the existing gravel road into the amended judgment. Instead, the trial court directed the surveyor to reduce to scale and provide a legal description of the final location of the easement on the M. P defendants’ property by precisely following the line as drawn with a marker by the jury on the redacted plat. Specifically, over R. C.’s objection, the trial court directed the surveyor to mark the jury’s hand-drawn line as the centerline of the easement, plot the centerline with a metes and bounds description, and then identify and plot 30 feet on either side of the centerline with a metes and bounds description. The trial court acknowledged that the evidence showed that “an actual gravel road” existed on M. P.’s property that might fall within the boundaries of the easement as plotted by the surveyor based on the jury’s hand-drawn line, and the court directed that the surveyor also depict the “as-built gravel road” on the survey so that it could be compared to the location of the plotted easement.

As directed by the trial court, the surveyor completed the survey reflecting the final location of the 60-foot easement based strictly on the hand-drawn line made by the jury on the redacted plat. The surveyor also depicted the location of the existing gravel road near the southern boundary of M. P.’s property for comparison purposes. Most of the gravel road fell within the 60-foot easement that the surveyor plotted based on the line drawn by the jury. On one small portion of the survey, however, the gravel road fell outside the boundaries of the easement as drawn by the surveyor.

During a hearing conducted to address the survey that had been prepared at the direction of the trial court, R. C. again argued that the plotting of the final location of the easement by the surveyor should be based on the actual location of the gravel road rather than on the jury’s hand-drawn line on the redacted plat. According to R. C., the jury’s findings in the special verdict form and labeling of the easements on the redacted plat clearly showed that the jury intended for the existing gravel road near the southern boundary line, i.e., the “New-Relocated Road” built in Fall 2008, to be the final location of the easement, and the jury’s free-hand drawing of the line on the plat with the colored marker was simply the jury’s best effort to approximate the location of that road.

The trial court disagreed with R. C. and entered an amended judgment incorporating the survey and legal description of the final location of the easement that was based strictly on the hand-drawn line made by the jury on the redacted plat. Consequently, a portion of the existing gravel road fell outside the boundaries of the easement under the amendment judgment entered by the trial court. R. C. now appeals from the amended judgment.

In this appeal, R. C. contends that the trial court erred on remand by failing to conform the amended judgment to the reasonable intendment of the verdict and the evidence presented at trial. According to R. C., the jury clearly intended for the final location of the easement to be the “New-Relocated Road” as built on the M. P. defendants’ property in Fall 2008, which was the existing gravel road shown on the plat drawn by the surveyor as directed by the trial court. Given the jury’s intent in reaching its verdict and the evidence presented at trial, R. C. argues that the trial court erred by entering an amended judgment that incorporated a survey based strictly on the line drawn by the jury on the redacted plat, which caused a portion of the gravel road to fall outside the boundaries of the plotted easement. We agree.

Judgment and execution shall conform to the verdict, 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. 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. Consequently, the trial court was required to examine the record and determine if the jury’s intent plainly appeared upon the face of the record.

(Citation and punctuation omitted.) R. C. Acres I, 331 Ga. App. at 769 (3). See OCGA §§ 9-12-4; 9-12-9; Turley v. Turley, 244 Ga. 808, 809 (262 SE2d 112) (1979); Kaufman Dev. Partners v. Eichenblatt, 324 Ga. App. 71, 75-76 (3) (749 SE2d 374) (2013). Mindful of these principles, we turn to the record in this case.

During the first phase of the bifurcated jury trial, Benjamin Friedman, R. C.’s representative, testified that in 2008, he reached an agreement with the M. P. defendants to build a new road near the southern boundary of their property that would provide a new means of access to R. C.’s property Mr. Bose, the manager of Mommies Properties, likewise testified that the M. P defendants had reached an agreement with Mr. Friedman regarding the location and construction of the new road, and the owner of the stables operated on the M. P defendants’ property similarly confirmed that Mr. Bose had reached an agreement regarding the new road with Mr. Friedman.

According to Mr. Friedman, once the parties reached an agreement regarding the new road, he had a twenty-foot-wide road that cost $60,000 constructed near the southern boundary of the M. P defendants’ property over a three-week period in Fall 2008, and he identified the dirt-and-gravel road in several photographs that were introduced into evidence. Mr. Friedman also testified that before building the new road, he had commissioned the services of a surveyor to document the proposed location, and the surveyor’s plat showing the proposed location of the new road was introduced into evidence as Plaintiff’s Exhibit 213. While testifying about the new road, Mr. Friedman drew a red line on Plaintiff’s Exhibit 213 showing the route of the road that had been built.

At the end of the first phase of the trial, when the jury returned its special verdict identifying the final location of the easement, the jury found, as previously noted, that the easement had been relocated in “Fall 2008” and labeled its hand-drawn line of the final location of the easement on the redacted plat as the “New-Relocated Road.” The jury’s hand-drawn line of the easement on the redacted plat closely approximated the route of the new road as drawn by Mr. Friedman on Plaintiff’s Exhibit 213.

Based on this trial evidence, the special verdict form, and the redacted plat, it is clear that the jury intended for the final location of the easement to be the new road built by Mr. Friedman along the southern boundary of the M. P defendants’ property in Fall 2008. Thus, for the amended judgment to properly conform to the reasonable intendment of the jury’s verdict, the new road built by Mr. Friedman in Fall 2008 had to fall within the boundaries of the plotted easement incorporated into the judgment.

Here, however, the survey ordered by the trial court on remand and incorporated into the judgment includes a small area where the road labeled “existing gravel drive” near the southern boundary of the M. P defendants’ property falls outside the boundaries of the plotted easement. And the route of the “existing gravel drive” shown on the survey is consistent with the route of the new road built by Mr. Friedman in Fall 2008 as reflected in the trial evidence, including Plaintiff’s Exhibit 213, the plat of the proposed new road that Mr. Friedman marked during his testimony, and Defense Exhibit 5-B, another survey of the property showing the aforesaid “gravel drive.” Thus, the survey shows that a portion of the new road built by Mr. Friedman in Fall 2008 falls outside the boundaries of the plotted easement incorporated into the amended judgment by the trial court. Accordingly, because the jury clearly intended for the easement to encompass the new road built by Mr. Friedman in Fall 2008, we conclude that the trial court erred by amending the judgment on remand in a manner that failed to conform to the reasonable intendment of the verdict and the evidence presented at trial regarding the location of the new road. See OCGA §§ 9-12-4; 9-12-9; Turley, 244 Ga. at 809; R. C. Acres I, 331 Ga. App. at 769 (3); Kaufman Dev. Partners, 324 Ga. App. at 75-76 (3).

In reaching this conclusion, we reject the defense argument, accepted by the trial court, that the jury’s intent in reaching its verdict was conclusively demonstrated by the actual line drawn by jurors on the redacted plat, and that the survey incorporated into the judgment had to be based strictly on the hand-drawn line. “Verdicts ... shall receive a reasonable construction,” OCGA § 9-12-4, and here the only reasonable construction of the verdict is that the jury meant for the easement to be placed along the new road built by Mr. Friedman in Fall 2008, rather than some slightly different, alternative course that would require R. C. to relocate a portion of the road for no apparent purpose and at additional expense. This is particularly true when the jury’s freehand drawing is viewed in conjunction with the finding in the special verdict form that the easement was relocated in “Fall 2008” and with the labeling of the hand-drawn line as the “New-Relocated Road.” Furthermore, the redacted plat provided to the jury did not include an outline of the new road, and lay jurors of course are not professional land surveyors, and thus it is not surprising that the freehand line drawn by the jurors did not perfectly match the location of the new road on the ground. Consequently, the slight deviation between the jury’s hand-drawn line and the actual roadway does not alter our conclusion that the jury intended for the new road as built in Fall 2008 to be the final location of the easement.

The M. P. defendants also contend that the freehand line drawn by the jury on the redacted plat for the final location of the easement precisely matches the route of the road as hand-drawn by Mr. Friedman on Plaintiff’s Exhibit 213. Consequently, the M. P defendants maintain that there was an evidentiary basis for where the jury specifically drew the line on the plat, that the jury in fact gave R. C. the easement that it requested, and that the trial court properly based the survey of the final location of the easement on the exact line drawn by the jury.

However, we have compared the jury’s redacted plat to Plaintiff’s Exhibit 213, and the line drawn by the jury for the route of the new road does not entirely match the line drawn by Mr. Friedman. Furthermore, the redacted plat used by the jury is somewhat larger in size than the plat shown on Plaintiff’s Exhibit 213, and the graphic scales on the two plats are slightly different,. Thus, while the jury’s freehand line drawn on the redacted plat may be a close approximation of the line drawn by Mr. Friedman on Plaintiff’s Exhibit 213, the two lines are not the same.

Furthermore, the M. P defendants’ argument about the matching lines is predicated on the incorrect assumption that the line drawn freehand by Mr. Friedman on Plaintiff’s Exhibit 213 at trial was intended to be an exact rendering of the route of the new road. Mr. Friedman was not a trained surveyor, and after depicting the route of the new road on the exhibit, he was asked on cross-examination, “That’s all you want the jury to give you is this new road we built?,” and he replied, “That’s what we had agreed upon, yes, sir.” When asked again later in his testimony about the final location of the easement, Mr. Friedman reiterated, “I would love to use the road that I built. I want to use the road that I built.”

It is clear from Mr. Friedman’s testimony that he was requesting that the jury place the final location of the easement along the new road as built in Fall 2008, and that his freehand rendering of the route of the new road on Plaintiff’s Exhibit 213, when viewed in context, was intended to be his best approximation of that route, rather than the precise rendering of an expert land surveyor. Thus, to the extent that the jury relied upon Mr. Friedman’s line in attempting to depict the final location of the easement on the redacted plat, the jury was doing nothing more than signaling that the final easement should be placed along the new road as built in Fall 2008, as Mr. Friedman had requested and made clear in his testimony.

Additionally, the M. P. defendants argue that the jury did not and could not have intended to place the final location of the easement precisely along the new road built by Mr. Friedman because if the road had been used as the centerline of the easement, a few feet of the 60-foot-wide easement would have encroached onto a neighboring property in one location. But the M. P. defendants’ argument is based on the erroneous assumption that the jury was drawing a line that was intended to represent the precise centerline of the easement, with the easement’s boundary to be placed exactly 30 feet on each side of their line. That is not what the jury was instructed to do. The jury was simply instructed to draw a single line representing the final route of the easement, without any reference in the instructions to the centerline or how the precise 60-foot-wide boundary of the easement would be determined. Indeed, the trial court instructed the jury “not to consider the issue of the width of. . . [the] relocated easement” as part of its deliberations. Hence, whether or to what extent the centerline of the new road as built in Fall 2008 was less than 30 feet from the boundary line of the M. P. defendants’ property on one side simply had no bearing on the jury’s verdict reached in this case.

Lastly, the M. P. defendants allege that R. C. altered the route of the new road post-verdict and judgment, such that R. C. is now seeking entry of an amended judgment awarding a final easement location different from what it sought at trial. The M. P. defendants’ argument is without merit and has no support in the record. To support their allegation that the new road had been altered, the M. P. defendants rely solely on argument of counsel and unsworn statements made at a trial court hearing conducted on remand, neither of which constitute competent evidence. See Watson v. Ga. Dept. of Transp., 288 Ga. App. 40, 42, n. 2 (653 SE2d 763) (2007) (counsel’s statements at hearing are not evidence); Parker v. Silviano, 284 Ga. App. 278, 279 (1) (643 SE2d 819) (2007) (“unsworn allegations are not evidence”) (citation omitted). Hence, there is no competent evidence of record that any work was performed on the new road after the trial or that the new road has been moved from where it was built in Fall 2008.

Decided September 7, 2016

In sum, the jury’s findings in the special verdict form and the jury’s drawing and labeling of the easement on the redacted plat, when viewed in conjunction with the evidence presented at trial, demonstrate that the jury intended for the final location of the easement to be along the new road as built by Mr. Friedman on the M. P. defendants’ property in Fall 2008. Because the trial court amended the judgment on remand to incorporate a survey that excluded a portion of the new road from the easement, the amended judgment does not conform to the reasonable intendment of the verdict and the evidence presented at trial. We therefore must reverse the amended judgment and remand for the trial court to conform the judgment to the jury’s verdict and the evidence in a manner consistent with this opinion. See Taylor v. Taylor, 212 Ga. 637, 638 (1) (94 SE2d 744) (1956) (judgment did not conform to verdict, where judgment included award of property to wife different from what was intended by the jury in light of the pleadings and evidence presented at trial); Pinkerton & Laws v. Macro Constr., 226 Ga. App. 169, 172 (4) (b) (485 SE2d 797) (1997) (trial court ordered to amend judgment to reflect true meaning and intent of jury to enter award in favor of general contractor on its claim for breach of subcontract). Compare Norton Realty & Loan Co. v. Bd. of Ed. of Hall County, 129 Ga. App. 668, 673-674 (3) (200 SE2d 461) (1973) (trial court properly amended judgment to incorporate a plat and thereby conform the description of certain condemned lands to the evidence and verdict, where it was clear that “the amendment had the effect merely of carrying out the intendment of the original verdict”) (citations and punctuation omitted).

Judgment reversed and case remanded with direction.

Boggs and Rickman, JJ., concur.

Swift, Currie, McGhee & Hiers, M. Diane Owens, Anandhi S. Rajan, Bradley S. Wolff, for appellant.

Hall Booth Smith, Anthony A. Rowell, Jennifer D. Herzog; Teague & Chambless, J. Stuart Teague, Jr., Keisha M. Chambless; Lober & Dobson, Michael J. Lober; Balch & Bingham, Michael J. Bowers; Larry C. Oldham; Saveli & Williams, Jenn ifer H. Chapin, for appel-lees.

       Appellee F. H. Partners, LLC is a lender with a security interest in the property owned by Mommies Properties that intervened in the lawsuit following the remand after the first appeal.

       In the second phase of the bifurcated trial, the jury awarded damages to R. C. against the Cambridge defendants for interference with its easement, but found in favor of the M. R defendants on R. C.’s interference claim. The second phase of the bifurcated trial is not at issue in the present appeal.

       R. C. had filed a motion to amend the judgment, but the trial court did not have the opportunity to rule on the motion before R. C. filed its notice of appeal.

       In R. C. Acres I, we also held that the trial court erred by limiting the jury’s consideration of the easement to its original and final locations and by improperly restricting R. C.’s cross-examination of a defense witness. 331 Ga. App. at 763-769 (1), (2). We reversed and remanded for a retrial of the second phase of the bifurcated trial, id. at 767 (1), but the second phase was never retried because the parties reached a settlement on the claims related to that phase of the proceedings.

       R. C. reached a settlement with the Cambridge defendants regarding the final location of the easement over their property.

       We also note that there was no requirement, based on the verdict and evidence presented at trial, that the new road be used as the centerline of the 60-foot easement for purposes of reducing the final location of the easement to a metes-and-bounds description as part of the amended judgment. Rather, to be consistent with the reasonable intendment of the verdict and the trial evidence, the new road simply had to come within the 60-foot boundary of the easement as plotted.


source: Caselaw Access Project

author: DOYLE, Chief Judge.

license: Public Domain

text:
    A16A1156.
    THE STATE v. DAVIS.
    (790 SE2d 821)
   DOYLE, Chief Judge.

Two months after Chad Alan Davis pled guilty to 25 counts of sexual exploitation of children, he was charged in a second indictment with one count of sexual exploitation of children and two counts of child molestation. Davis filed a plea in bar, asserting that his prior guilty plea precluded prosecution for these additional counts, and the trial court granted the motion. The State appeals, contending that the trial court erred by granting the plea in bar because the charges alleged in the second indictment were not part of the same conduct as that alleged in the initial indictment. We agree and reverse.

“On appeal from the grant or denial of a double jeopardy plea in bar, we review the trial court’s oral and written rulings as a whole to determine whether the trial court’s findings support its conclusion.” We review the trial court’s application of the law to undisputed facts de novo.

So viewed, the record shows that on March 4, 2013, police executed a search warrant on Davis’s house and seized, among other items, computers, thumb drives, video game consoles, and an iPhone. The iPhone required a password, which Davis would not give to the police. On October 27, 2014, the police executed a search warrant to open the iPhone. On November 5, 2014, Davis was indicted for 25 counts of sexual exploitation of children based upon 25 of the hundreds of photographs recovered from his computer seized during the search.

On March 23, 2015, police sent the iPhone to Apple to discover its contents, and approximately two weeks later, Apple returned the iPhone with a report of its contents. According to Apple, the iPhone contained evidence that Davis sent S. W., a 13-year-old girl, a video of a female performing fellatio on a male, and that S. W. sent Davis a sexually explicit picture of herself. Based upon this information, police contacted S. W., and she informed them that Davis had once fondled her buttocks. On April 14, 2015, police took out three additional arrest warrants for Davis.

On June 12, 2015, Davis entered a negotiated plea to the 25 counts of sexual exploitation of children alleged in the initial indictment, and he was sentenced to 30 years to serve 15. On August 5, 2015, the State filed a second indictment charging him with sexual exploitation of children and two counts of child molestation, which charges were based upon the contents of the iPhone and S. W.’s statements. On November 30, 2015, Davis filed a double jeopardy plea in bar pursuant to OCGA §§ 16-1-7 (b) and 16-1-8 (b) seeking to dismiss all counts of the second indictment. Following a hearing, the trial court granted his motion, and this appeal followed.

The State argues in a single enumeration of error that the trial court erred by granting Davis’s double jeopardy plea in bar because the crimes charged in the second indictment did not arise from the same conduct alleged in the first indictment. We agree.

Under OCGA § 16-1-7 (b), if several crimes [1] arising from the same conduct are [2] known to the proper prosecuting officer at the time of commencing the prosecution and are [3] within the jurisdiction of a single court, they must be prosecuted in a single prosecution. A second prosecution is barred under OCGA § 16-1-8 (b) (1) if it is for crimes which should have been brought in the first prosecution under OCGA § 16-1-7 (b). In order for this procedural aspect of double jeopardy to prohibit a prosecution, all three prongs must be satisfied.

“Crimes arise from the same conduct... if they emerge from the same transaction or continuing course of conduct, occur at the same scene, occur on the same date, and occur without a break in the action.”

Here, the initial 2014 indictment charged Davis with 25 counts of sexual exploitation of children in violation of OCGA § 16-12-100 (b). The State clarifies, however, that each of those 25 counts was for possession of child pornography, which crimes are prohibited under paragraph (8) of OCGA § 16-12-100 (b), which provides: “It is unlawful for any person knowingly to possess or control any material which depicts a minor or a portion of a minor’s body engaged in any sexually explicit conduct.” In Counts 2 and 3 of the second 2015 indictment, the State charged Davis with child molestation in violation of OCGA § 16-6-4 (a). Count 2 charged him with transmitting by cell phone images of a person engaging in an immoral act (a video of a woman performing oral sex on a man) to a child under the age of 16; Count 3 charged him with actually fondling the child’s buttocks.

Possession of material depicting a minor engaged in sexual conduct is vastly different conduct from actually transmitting pornography to a child or fondling a child’s buttocks. In this case, although the evidence supporting the charges in both indictments was seized on the same date, the charges are entirely separate and do not involve a continuing course of conduct nor did they occur without a break in the action. Further, “the State can establish each set of offenses without proving the other.”

Accordingly, the charges in the first and second indictments did not arise from the same conduct, and the trial court erred by granting Davis’s plea in bar.

Judgment reversed.

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

Decided September 7, 2016

Peter J. Skandalakis, District Attorney, Antoinette N. Wood, Assistant District Attorney, for appellant.

Hogue & Hogue, Franklin J. Hogue, Susan D. Raymond, for appellee.

       Because the State conceded to the plea in bar for the one count of sexual exploitation of children, it appeals only the grant of the plea in bar for the two counts of child molestation.

       (Citation and punctuation omitted.) Davis v. State, 287 Ga. App. 535, 535 (652 SE2d 177) (2007).

       See id.

       Prior to the execution of the plea, the prosecutors discussed a new plea offer with Davis that would encompass new charges, then unindicted, related to the evidence recently discovered on the iPhone. However, for various procedural reasons, both sides agreed to proceed with the original plea deal to only those charges alleged in the first indictment.

       (Footnote omitted.) Johns v. State, 319 Ga. App. 718, 718-719 (738 SE2d 304) (2013).

       (Punctuation omitted.) Jackson v. State, 336 Ga. App. 140, 144 (2) (784 SE2d 7) (2016), quoting Johns, 319 Ga. App. at 719.

       OCGA § 16-12-100 (a) (4) includes nine examples of “sexually explicit conduct.”

       OCGA § 16-6-4 (a) provides:
      A person commits the offense of child molestation when such person: (1) [d]oes any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person; or (2) [b]y means of an electronic device, transmits images of a person engaging in, inducing, or otherwise participating in any immoral or indecent act to a child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.

        See Jackson, 336 Ga. App. at 144-145 (2); Johns, 319 Ga. App. at 720 (single prosecution not required because offenses at issue “were separate transactions, one of which had been completed prior to the other”); Boyette v. State, 172 Ga. App. 683, 684 (1) (324 SE2d 540) (1984) (traffic offenses and disorderly conduct involving defendant’s actions after traffic stop did not arise out of same transaction because “[t]he traffic offenses were completed at a different time and at different locations”).

        Jackson, 336 Ga. App. at 145 (2).


author: Branch, Judge.

text:
    A16A0829.
    FREY v. THE STATE.
    (790 SE2d 835)
   Branch, Judge.

Cory Ray Frey appeals from his conviction of arson, criminal damage to a residence and a Jeep, and assault, as well as from the denial of his motion for new trial. Frey contends that the trial court improperly commented on the evidence, that the State failed to prove criminal damage to the Jeep, and that the court erred by sentencing him as a recidivist. For the reasons that follow, we reverse Frey’s conviction of criminal damage to the Jeep but affirm Frey’s remaining convictions.

On criminal appeal, appellant is no longer presumed innocent and all of the evidence is to be viewed in the light most favorable to the jury verdict. This Court does not reconsider evidence or attempt to confirm the accuracy of testimony. Assessing a witness’s credibility is the responsibility of the factfinder, not this Court.

Batten v. State, 295 Ga. 442, 443 (1) (761 SE2d 70) (2014) (citations omitted). Instead, we review the case “to determine if the evidence, when viewed in the light most favorable to the prosecution, supports the verdict.” Willis v. State, 263 Ga. 597, 598 (1) (436 SE2d 204) (1993), citing Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979). Upon review of the sufficiency of the evidence, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Russu v. State, 321 Ga. App. 695, 696 (1) (742 SE2d 511) (2013) (punctuation and footnote omitted; emphasis in original).

Construed in favor of the verdict, the evidence shows that Frey intentionally started a fire on the porch of a residence located at 228 West Spring Street, Toccoa, in Stephens County, which was owned by Denise Jackson and occupied by her son at the time of the fire. The residence was insured by Southern General Insurance Company. Later, Frey attacked a Jeep Cherokee parked nearby with a stick, causing damage including broken windows, apparently because he thought that the Jeep owners had reported the arson to the police. Frey also threatened to strike Michael Harrison, who saw Frey attack the Jeep, with a large stick.

Frey was charged on three counts of arson (for different ways of committing the same arson), three counts of criminal damage to property (one count for the house and two for the Jeep), and simple assault. He was convicted on all counts, and the trial court merged two of the counts of arson and one count of criminal damage to property into the first count of arson. The court sentenced Frey to 20 years for arson (Count 1), as well as five years for damaging the Jeep and 12 months for assault, with these sentences to be served concurrently with Count 1. In a detailed order, the trial court denied Frey’s motion for new trial.

1. Frey first contends the trial court improperly commented on the evidence. We disagree.

At the time of Frey’s trial, OCGA § 17-8-57 provided:

It is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused. Should any judge violate this Code section, the violation shall be held ... to be error and the decision in the case reversed, and a new trial granted in the court below. . . .

See Ga. L. 2015, p. 1050, § 1 (effective July 1, 2015). “To constitute an improper comment under OCGA § 17-8-57, the trial court’s statement must express an opinion about whether the evidence had proven a material issue in the case, whether a witness was credible, or whether the defendant was guilty.” Anthony v. State, 282 Ga. App. 457, 458 (1) (638 SE2d 877) (2006) (citation and punctuation omitted). “On appeal, the issue is simply whether there was such a violation.” State v. Gardner, 286 Ga. 633, 634 (690 SE2d 164) (2010).

OCGA § 16-7-60 (a) (3) provides that one way a person can commit arson is by burning a dwelling house “when such is insured against loss or damage by fire or explosive and such loss or damage is accomplished without the consent of both the insurer and the insured.” In attempting to prove that Southern General did not consent to the burning of the subject property, the State questioned an investigator for Southern General. Frey contends that during this questioning, the court improperly suggested that the insurance company had not consented to the fire:

Q: And are you aware of the fire damage that was caused to that dwelling back on June 24th of 2008?
A: I am. Yes.
Q: Did Southern General consent or agree to that fire damage that occurred?
A: They did.
Q: Your insurance company agreed to the fire loss?
A: Yes.
Q: Let me restate my question.
THE COURT: I think we had a failure to communicate.
PROSECUTOR: My fault.
Q: Did Southern General give permission to anybody to burn that dwelling?
A: No, they did not.
Q: But you agree there was a fire loss to that dwelling?
A: Yes. We did understand that.
Q: Did your company, Southern General, give permission to Cory Frey to burn that dwelling?
A: No, we did not.

We find no violation. The court merely commented on the obvious confusion between the prosecutor and the witness regarding the insurer’s decision to cover the loss as opposed to whether the insurer consented to the fire. The court therefore did not give an opinion as to what had or had not been proved. See Gardner, 286 Ga. at 635 (court did not violate OCGA § 17-8-57 by asking State whether it had proven venue); Owens v. State, 271 Ga. App. 365, 371 (5) (c) (i) (609 SE2d 670) (2005) (“A court’s admonition to correct a misleading question by counsel does not rise to the level of an expression or intimation of opinion by the judge as to matters proved or guilt of the accused.”) (citation, punctuation and footnote omitted).

2. Frey contends the evidence of criminal damage to property in the second degree was insufficient because the State failed to prove that damage to the Jeep exceeded $500. See OCGA § 16-7-23 (a) (1) (“A person commits the offense of criminal damage to property in the second degree when he: (1) Intentionally damages any property of another person without his consent and the damage thereto exceeds $500.00[.]”).

Although the indictment alleged that Frey had damaged a Jeep Cherokee, the victim testified that Frey also damaged her GMC pickup truck. After the court prohibited the State from introducing evidence regarding damage to the GMC, the prosecutor asked about damages as follows:

Q: And is the damage he caused more than $500?
A: Yes. It was $300 to get the windshields put in and the side glass in the Jeep and we couldn’t afford to get the camper part of the truck fixed.
Q: Was there also damage done to the body of the vehicle?
A: Yes, sir. The mirrors were knocked out and there was (inaudible).

In response to the first question, whether she agreed the damage exceeded $500, the victim clearly testified about both the Jeep and the truck. While discussing the $300 amount of damages, she did so in reference to more than one windshield, which suggests she was talking about the front glass in both vehicles. Her later reference to the Jeep’s “side glass” confirms this conclusion. Thus the State failed to show that the $300 was spent only on the Jeep. And even construing the second question as pertaining only to the Jeep, the victim failed to place a monetary value on the cost of replacing the mirrors. Thus, the State failed to prove that Frey caused at least $500 of damage to the Jeep as charged in the indictment and therefore failed to prove that Frey committed criminal damage to personal property in the second degree with regard to the Jeep. See OCGA § 16-7-23 (a) (1). Thus, his conviction for this crime must be reversed.

3. Frey also contends that the trial court erred by sentencing him as a recidivist. Whether a defendant was properly sentenced as a recidivist under OCGA § 17-10-7 is subject to de novo review. Mathis v. State, 336 Ga. App. 257 (784 SE2d 98) (2016).

Prior to trial, the State gave notice of intent to seek sentencing as a recidivist and to use Frey’s prior convictions in aggravation of his punishment. The State listed eight prior convictions from outside of Georgia and one from inside of Georgia in the notice, and it provided certified copies of these prior convictions to Frey At the sentencing hearing, the State reiterated its intent to seek recidivist punishment and to use the prior convictions in aggravation. The State tendered the certified copies of seven prior convictions, six from either Nebraska or Ohio, and one from North Carolina. Frey objected to the conviction from North Carolina, and the court refused to allow the State to introduce that document. The State then requested recidivist sentencing, and Frey responded by arguing that the documents tendered from Nebraska and Ohio did not provide “a basis” to sentence Frey as a recidivist. Without commenting on the objection, the court then sentenced Frey.

Decided September 8, 2016.

Howard W. Anderson III, for appellant.

On appeal, Frey argues that the court erred by sentencing him as a recidivist because the State failed to show that he was previously “sentenced to confinement in a penal institution” as a result of a Georgia felony or conduct in another state that would have been a felony had it occurred in Georgia. OCGA § 17-10-7 (a). He also contends that the jury was required to determine whether he had been so sentenced in the past. But Frey did not raise these arguments at sentencing. “To be reviewable on appeal, an objection must clearly direct the attention of the trial court to the claimed error and must be stated with sufficient particularity to leave no doubt as to the specific ground upon which the charge is challenged[.]” Thrash v. Rahn, 249 Ga. App. 351, 353 (4) (547 SE2d 694) (2001) (citation and footnote omitted). And an objection regarding the existence or validity of prior convictions as a basis for recidivist punishment can be waived in the trial court, von Thomas v. State, 293 Ga. 569, 573 (2) (748 SE2d 446) (2013). Because Frey did not object below on the grounds he now attempts to raise on appeal, he has waived appellate review of these issues. See, e.g., Thomas v. State, 305 Ga. App. 801, 803 (2) (701 SE2d 202) (2010) (failure to challenge at sentencing a particular conviction offered as a basis for sentencing under the recidivist statute, waives that issue on appeal); Zachery v. State, 241 Ga. App. 722, 723 (2) (527 SE2d 601) (2000) (appellant waived argument that “trial court erred in deciding the recidivism count itself rather than sending it to the jury” by failing to object on that ground at sentencing).

Judgment affirmed in part and reversed in part.

Ellington, R J., and Mercier, J., concur.

George R. Christian, District Attorney, Richard K. Bridgeman, Assistant District Attorney, for appellee.

       One of the two counts involving the Jeep was duplicative and later nolle prossed.

       OCGA § 17-10-7 (a) provides:
      Except as otherwise provided in subsection (b) or (b.l) of this Code section, any person who, after having been convicted of a felony offense in this state or having been convicted under the laws of any other state or of the United States of a crime which if committed within this state would be a felony and sentenced to confinement in a penal institution, commits a felony punishable by confinement in a penal institution shall be sentenced to undergo the longest period of time prescribed for the punishment of the subsequent offense of which he or she stands convicted, provided that, unless otherwise provided by law, the trial judge may, in his or her discretion, probate or suspend the maximum sentence prescribed for the offense.


author: Ray, Judge.

text:
    A16A1000.
    NEWBY v. THE STATE.
    (791 SE2d 92)
   Ray, Judge.

A jury convicted Matt Jonathan Newby of aggravated assault (OCGA § 16-5-21 (b) (2)) and theft by taking (OCGA § 16-8-2). He appeals from the denial of his motion for new trial, contending that the evidence was insufficient to sustain his convictions, that the trial court erred in failing to exercise its discretion to overturn the verdict on the general grounds, and that he received ineffective assistance of counsel. For the reasons that follow, we affirm.

The evidence adduced at trial shows that on the morning of October 27, 2014, the victim, Marcus Moss, moved his motorcycle from storage in his girlfriend’s barn and parked it in the carport in front of her house. Moss then went back inside the house. When Moss later exited the house, he found that his motorcycle was missing.

Seeing Moss searching around, a neighbor, Erwin Stephens, called out to him and relayed that he had seen a white male push the motorcycle down the street just minutes earlier. Moss got into Stephens’s car, and Stephens drove down the street in the direction that he had seen the unidentified male push the motorcycle. Moss spotted his motorcycle with Newby sitting atop it outside of a house ownedby Newby’s mother. When Moss confronted him, Newby started the motorcycle and sped toward Moss, forcing him to move out of the way to avoid being hit as Newby took off and disappeared. Stephens then drove Moss back to his house, and Moss called the police.

Later that day, after the police made a report and left to investigate, Newby’s brother, Justin Newby, knocked on Moss’s door and took Moss to a vacant house where Justin returned Moss’s motorcycle to him. The motorcycle had been “hotwired,” causing about $1,200 worth of damage. A jury later convicted Matt Newby of aggravated assault and theft by taking.

Newby challenges his conviction under both sufficiency of the evidence and the general grounds pursuant to OCGA §§ 5-5-20 and 5-5-21. These are separate issues requiring separate analyses.

1. We turn first to an analysis of the sufficiency of the evidence. On appeal, we view the evidence in the light most favorable to the prosecution to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979). Furthermore, “[t]o warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” OCGA § 24-14-6.

[W]here the defendant offers an explanation of circumstantial facts or an alternative hypothesis of events, the reasonableness of that explanation is for the factfinder. Because the factfinder has heard the witnesses and observed them testify, it is considered more capable of determining the reasonableness of the hypothesis produced by the evidence or lack thereof than is an appellate court.

(Footnote omitted.) McClain v. State, 301 Ga. App. 844, 847 (1) (689 SE2d 126) (2010).

(a) To establish theft by taking, the prosecution was required to show that the defendant “unlawfully [took] or, being in lawful possession thereof, unlawfully appropriate [d] any property of another with the intention of depriving him of the property, regardless of the manner in which the property [was] taken or appropriated.” OCGA § 16-8-2. In Jefferson v. State, 273 Ga. App. 61, 63 (1) (614 SE2d 182) (2005), this Court stated that “[e]vidence of recent unexplained possession of stolen property will authorize but not require the trior of fact to infer guilt and an appellate court may find it sufficient in itself to support a conviction for the crime of theft by taking.” (Citations and footnotes omitted; emphasis in original.) The nearer the time of the theft to the possession of the item stolen, the stronger the presumption of guilt. Williamson v. State, 248 Ga. 47, 48 (1) (a) (281 SE2d 512) (1981). See also Jefferson, supra at 63-64 (1) (denying insufficient evidence claim where defendant possessed and pawned stolen property within hours of the theft).

Here, the prosecution showed that Moss and Stephens saw Newby sitting on the motorcycle minutes after the theft and witnessed Newby’s flight on the motorcycle when Moss confronted him. Moss and Stephens also identified Newby in court as the person on the motorcycle when they approached. The reliability of Moss and Stephens’s identification of Newby can hardly be doubted, as testimony shows that Newby was not wearing a helmet during the confrontation. The fact that Newby was found in possession of the motorcycle by the victim within minutes of the theft makes his guilt even more convincing than that of the defendant in Jefferson, supra. The prosecution’s case is further strengthened by Newby’s flight atop the motorcycle after the confrontation with Moss. See generally Bryson v. State, 316 Ga. App. 512, 513-515 (1) (729 SE2d 631) (2012) (finding circumstantial evidence of guilt where defendants fled from, inter alia, crime scene and victims in rest area after committing armed robbery); Durham v. State, 309 Ga. App. 444, 445-446 (1) (710 SE2d 644) (2011) (a defendant’s efforts to avoid capture may offer circumstantial evidence of guilt).

These facts are sufficient to sustain Newby’s conviction for theft by taking. The jury rejected the defense’s proffered explanation that Justin Newby stole the motorcycle and, having heard the testimony of all the witnesses, was in a better position than this Court to evaluate the facts. See McClain, supra at 847 (1); London v. State, 235 Ga. App. 30, 32 (1) (c) (508 SE2d 247) (1998) (“Whether or not a defendant’s explanation is satisfactory or reasonable is a question for the jury”).

(b) The relevant portion of Georgia’s aggravated assault statute requires the prosecution to show that a defendant committed assault “[wjith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury[.]” OCGA § 16-5-21 (b) (2). The crime of assault in Georgia requires that the defendant “[a]ttempt[ed] to commit a violent injury to the person of another; or . . . [cjommit-[ted] an act which place[d] another in reasonable apprehension of immediately receiving a violent injury.” OCGA § 16-5-20 (a). The prosecution need only show “that a defendant intended to commit the act which in fact places another in reasonable apprehension of injury or actually results in injury, not a specific intent to cause such apprehension or injury” (Citation and punctuation omitted.) Attaway v. State, 332 Ga. App. 375, 378 (1) (b) (772 SE2d 821) (2015). The element of reasonable apprehension does not require that the victim testify to having felt fear. See Lunsford v. State, 260 Ga. App. 818, 821 (2) (581 SE2d 638) (2003).

Here, the evidence presented by the State established the elements of aggravated assault beyond a reasonable doubt. The prosecution need not show that Newby intended to scare Moss, only that he intentionally committed the act which put Moss in reasonable apprehension of receiving a violent injury. See Attaway, supra. Stephens testified that Moss demanded the return of his motorcycle, and while Moss’s hands were on the motorcycle, Newby jumped up and down on the motorcycle in an attempt to make it start during the confrontation. When the motorcycle started, Moss moved to avoid being hit when Newby “spinned off into his yard and left. . . burning rubber.” Therefore, the prosecution showed that Newby acted intentionally The State also showed that Moss was in reasonable apprehension of receiving a violent injury. See Lunsford, supra. Moss testified that he jumped aside and put out his hands to avoid being hit by the motorcycle when Newby took off on it. Both he and Stephens testified that Moss would have been run over had he not moved out of its path. Moss also testified as to the weight of the motorcycle, 200 or 300 pounds, and the high speed at which Newby was traveling when he took off on it. Therefore, the prosecution proved that Moss was “in reasonable apprehension of immediately receiving a violent injury” OCGA § 16-5-20 (a) (2). The prosecution’s charge, which referred to the motorcycle as “an object which when used offensively against another is likely to cause serious bodily injury,” was also correct. See generally Turner v. State, 281 Ga. 487, 489 (1) (b) (640 SE2d 25) (2007) (finding that although an automobile is not necessarily a deadly or offensive weapon, it may become one depending on how it is used). Therefore, the prosecution proved the material elements of aggravated assault beyond a reasonable doubt.

Newby countered that he was not at his mother’s house on the day of the crimes and, therefore, could not have been the person riding the motorcycle that nearly struck the victim. Justin testified that Newby was not around the house that day. However, Moss and Stephens gave the opposite testimony, identifying Newby as the person on the motorcycle during the confrontation. Moss testified that Newby was not wearing a helmet during the confrontation, which lends further credence to his testimony, and Moss identified Newby prior to trial when a police officer showed him Newby’s driver’s license. As stated above, a jury is better equipped than this Court to evaluate the credibility of witnesses. See McClain, supra at 847 (1). As in Woodall v. State, 159 Ga. App. 832, 832 (285 SE2d 582) (1981), where this Court affirmed a conviction for aggravated assault which was based on contradictory witness testimony, the jury here heard the testimony of the State’s witnesses and found Newby guilty despite testimony in his favor.

This Court is bound to uphold the jury’s determination by the standard provided in Jackson, supra. The evidence was sufficient to prove aggravated assault and theft by taking beyond a reasonable doubt.

2. Newby also raised the general grounds in his motion for new trial. OCGA §§ 5-5-20 and 5-5-21 empower the trial court to “sit as a thirteenth juror” when considering a motion for new trial on these grounds. (Citation omitted.) Conley v. State, 329 Ga. App. 96, 100 (2) (763 SE2d 881) (2014). In so doing, the trial court shall exercise its discretion in weighing the evidence to decide whether to grant a new trial. Id. Even when, as above, evidence is sufficient to sustain a jury conviction, the trial court may grant a new trial “[i]n any case when the verdict of a jury is found contrary to evidence and the principles of justice and equity . . .OCGA § 5-5-20, or “where the verdict may be decidedly and strongly against the weight of the evidence even though there may appear to be some slight evidence in favor of the finding.” OCGA § 5-5-21.

Here, the testimony of Moss and Stephens was more than adequate to support the verdict. Accordingly, the trial court did not abuse its discretion in denying Newby’s motion for new trial based on the general grounds. See Rowland v. State, 228 Ga. App. 66, 68 (2) (491 SE2d 119) (1997). Therefore, we affirm the trial court’s ruling denying Newby’s motion for new trial as to the general grounds.

3. Newby also argues that he received ineffective assistance of counsel. He bases this claim on trial counsel’s failure to present certain alibi witnesses, failure to conduct a pretrial investigation, and failure to present an expert witness in cross-racial identification. We find no error.

An ineffective assistance of counsel argument requires satisfaction of a two-pronged test: “First, the defendant must show that counsel’s performance was deficient. . . . Second, the defendant must show that the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984). For counsel’s performance to reach the required level of deficiency, the defendant must prove that “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. In analyzing defendant’s showing, “a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance!)]” Id. at 689 (III) (A). Tactical decisions receive even greater deference, only forming the basis of an ineffective assistance claim if a decision is “so patently unreasonable that no competent attorney would have chosen it.” (Citation and punctuation omitted.) Romer v. State, 293 Ga. 339, 344 (3) (745 SE2d 637) (2013). However, counsel does not automatically receive protection from complaints pertaining to strategy or tactics if the decision was “an unreasonable one no competent attorney would have made under the same circumstances.” (Citation and punctuation omitted.) Benham v. State, 277 Ga. 516, 518 (591 SE2d 824) (2004).

The prejudice prong of the Strickland test requires the defendant to show “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Areasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, supra at 694 (III) (B). Finally, in reviewing claims of ineffective assistance, “we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” Hill v. State, 291 Ga. 160, 164 (4) (728 SE2d 225) (2012) (punctuation omitted).

(a) The tactical decision of whether to present an alibi defense “after thorough investigation and client consultation[ ] is virtually unchallengeable!)]” (Citation omitted.) Walker v. State, 280 Ga. App. 457, 462 (6) (a) (634 SE2d 93) (2006). Newby claims that trial counsel’s failure to call Diana Daniels to testify as an alibi witness prejudiced the defense. The trial court considered Daniels’s testimony at its hearing on Newby’s motion for new trial. During the hearing on Newby’s motion, Daniels first stated that she was at her home with Newby starting the night before the events leading up to these crimes until late afternoon on the day of the crimes. However, when questioned specifically about the date, she responded, “Oh, no. I think it was — what was that day? I don’t know. I don’t know what day it was.” Trial counsel also testified at the hearing that she did interview Daniels and that Daniels told her that she dropped Newby off in the morning before the crime took place and could not verify his location after that point. Trial counsel testified that she decided not to call Daniels as a witness because she did not believe her testimony would be helpful.

Clearly, trial counsel made a reasonable strategic decision not to call Daniels as an alibi witness. The trial court did not err. See Jones v. State, 315 Ga. App. 427, 433 (3) (727 SE2d 216) (2012) (denying claim of ineffective counsel where counsel did not present alibi witnesses after none of the witnesses he interviewed could give him information on defendant’s whereabouts at the time of the crime).

(b) Newby also contends that trial counsel’s failure to call someone named Tracy Poore as an alibi witness prejudiced the defense. However, Newby made no proffer as to Poore’s testimony at the motion for new trial hearing.

To prove the prejudice prong of Strickland on a claim that trial counsel failed to call a witness, a defendant must show the witness’s expected testimony by presenting either live testimony of the witness, an affidavit from the witness, or a legally recognized substitute for the uncalled witness’s testimony .... [Newby] failed to produce an affidavit or any other legally recognized substitute for [their] testimony Accordingly, [Newby] failed to establish his claim of ineffective assistance of counsel on this ground.

(Citations omitted.) Janasik v. State, 323 Ga. App. 545, 554 (4) (b) (746 SE2d 208) (2013).

Decided September 12, 2016.

Darrell B. Reynolds, Sr., for appellant.

Tracy Graham Lawson, District Attorney, Elizabeth A. Baker, Assistant District Attorney, for appellee.

(c) Newby also argues that he was denied effective assistance of counsel because of trial counsel’s failure to conduct a pretrial investigation, which led to her subsequent failure to adequately cross-examine witnesses. This part of the enumeration appears to reference both potential alibi witnesses as well as other unnamed witnesses. However, Newby presents no proffer as to how these witnesses would have testified; he does not even identify them. Nor does he proffer any specifics as to what a more thorough investigation would have revealed. Newby has failed to meet his burden of showing either prejudice or deficient performance. Shank v. State, 290 Ga. 844, 848 (5) (a) (725 SE2d 246) (2012) (finding no ineffective assistance where defendant failed to show what a more thorough investigation would have shown); Janasik, supra.

(d) Newby also claims that he was denied effective assistance of counsel because trial counsel failed to call an expert witness in cross-racial eyewitness identification. Newby did not raise this issue in his motions for new trial, nor did the trial court address it. Thus, we do not consider it on appeal. See Garrett v. State, 285 Ga. App. 282, 287 (5) (e) (645 SE2d 718) (2007).

For the foregoing reasons, we affirm the trial court’s denial of Newby’s motion for new trial on the basis of ineffective assistance of counsel.

Judgment affirmed.

Doyle, C. J., and Andrews, P. J., concur.


author: Boggs, Judge.

text:
    A16A0826.
    LEND A HAND CHARITY, INC. et al. v. THE FORD PLANTATION CLUB, INC.
    (791 SE2d 180)
   Boggs, Judge.

Lend A Hand Charity, Inc. appeals from the trial court’s order finding it liable to The Ford Plantation Association, Inc. (“the Association”) for assessments, charges, and interest. Lend A Hand and Kethesparan Srikanthan (collectively “appellants”) appeal from the trial court’s conclusion in the same order that they are liable to The Ford Plantation Club, Inc. (“the Club”) for past due assessments, charges, and interest. Appellants contend that the trial court erred by (1) failing to permit them “to present evidence on questions of fact”; (2) failing to void the “Club’s Declaration as a collateral or personal covenant which did not run with the land, and thus an adhesive contract voidable by Appellants”; and (3) awarding interest to the Club at a rate of 18%. For the reasons explained below, we affirm in part and vacate in part.

1. In their first enumeration of error, appellants assert that the trial court erred by failing to permit them to present evidence on questions of fact, but they point to no place in the record where the trial court took any such action. “This is a court for the correction of errors of law made by the trial courts, and an error of law has as its basis a specific ruling made by the trial court. In the absence of such a specific ruling, there is nothing for us to review.” (Citations and punctuation omitted.) Howell v. Beauly, Inc., 337 Ga. App. 898, 901 (2) (789 SE2d 214) (2016).

2. Appellants also assert that the trial court erred by “failing to void Appellee Club’s Declaration as a collateral or personal covenant which did not run with the land, and thus an adhesive contract voidable by Appellants.”

(a) To the extent appellants claim the trial court erred by failing to affirmatively void the Club Declaration, we cannot review it because the record before us does not include such a request. Howell, supra, 337 Ga. App. at 901 (2).

(b) To the extent appellants are asserting that the trial court erred by implicitly concluding that the Club covenant ran with the land, we disagree.

The record shows that on January 4, 2011, Lend A Hand Charity, Inc., received Lot 275 in the Ford Plantation subdivision by gift deed. In 1998, the developer/owner of the Ford Plantation subdivision filed a “Declaration of Covenants, Conditions, and Restrictions” for the subdivision. The preamble of the Declaration states: “Declarant hereby declares that all of the property . . . shall be held, sold, used and conveyed subject to the following easements, restrictions, covenants, and conditions, which shall run with the title to the real property subjected to this Declaration.” Article 3 of the Declaration, titled “Membership and Voting Rights,” provides:

Every Owner shall be a Member of the [F ord Plantation] Association .... The membership rights of an Owner which is not a natural person may be exercised by any officer, director, manager, partner or trustee of such Owner, or by any individual designated from time to time by the Owner in a written instrument provided to the secretary of the Association.

The Declaration further provided that the Association was responsible for “management, maintenance, operation and control” of common areas of the subdivision and that the cost of maintenance and repair of the common areas would be a common expense allocated among all units in the subdivision. In the “Assessments” section, the declaration authorized the Association to collect assessments. Additionally:

Each Owner, by accepting a deed or entering into a contract of sale for any portion of the Properties, is deemed to covenant and agree to pay these assessments.
No Owner may exempt himself or herself from liability for assessments by non-use of Common Area . . . , abandonment of his or her Unit, or any other means. The obligation to pay assessments is a separate and independent covenant on the part of each Owner.

Following other articles governing matters such as architectural standards, use restrictions, easements, and mortgagee provisions, the Declaration contains an article governing the Club. This article states:

Neither membership in the Association nor ownership or occupancy of a Unit shall confer any ownership interest in or right to use the Club. Rights to use the Club will be granted only to such persons, and on such terms and conditions, as may be determined from time to time by the Club, subject to the terms of the Club membership agreements.

Approximately two months after filing the general “Declaration of Covenants, Conditions, and Restrictions,” the same owner/developer filed a Club Declaration for the subdivision. Its purpose, as stated in the preamble, follows:

Declarant is the current owner and developer of that certain gated community . . . known as The Ford Plantation. . . . Declarant is also the owner of certain real property and improvements located within the Plantation which will be conveyed to The Ford Plantation Club, Inc. . . . and operated as a private, equity ownership, social and recreational club. . . .
In establishing the Plantation, Declarant intends to create an exclusive residential community with social and recreational facilities. It is the goal of the Declarant that the Club Facilities be utilized predominantly by homeowners in the Plantation and their families to maintain the concepts of exclusivity and community.
In order to ensure that membership remains predominantly with the homeowners in the Plantation, the Declarant is requiring that all purchasers of residences and/or residential lots in the Plantation apply for membership in the Club, and if approved, become members of the Club.... This Club Declaration shall run with title to and shall be binding on all Persons having any right, title, or interest in all or any portion of such real property... and shall inure to the benefit of each and every owner of all or any portion thereof.

According to the Club’s bylaws, it operates “a private fishing, golf, equestrian, tennis, swimming and socially oriented club of uniformly high quality” The Club Declaration requires all owners to apply for membership and authorizes the Club to levy assessments against lot owners. Additionally:

No Owner or Member may waive or otherwise exempt himself or herself from liability for Assessments. By way of illustration and not limitation, there shall be no waiver or exemption of Assessments due to non-use of the Club Facilities, failure to submit a Membership Application, or abandonment of the Lot. The obligation to pay the Assessments is a separate and independent covenant on the part of each Owner.

Pursuant to a Fifth Amendment to the Club Declaration filed on April 23, 2003, no assessments could be levied against any owner whose membership application was not approved by the Club.

Based on the above, the trial court did not err by implicitly concluding that the Club Declaration ran with the land and was binding against subsequent lot owners.

Covenants relating to land, or its mode of use or enjoyment, are enforceable against subsequent grantees with notice, whether named in the instrument or not, and though there is no privity of estate. It is immaterial in such cases whether the covenant runs with the land or not, the general rule being that it will be enforced according to the intention of the parties. It is only necessary that the covenant concern the land or its use, and that the subsequent grantee has notice of it. Covenants are so enforced on the principle of preventing a party having knowledge of the just rights of another from defeating such rights.

Timberstone Homeowner’s Assn. v. Summerlin, 266 Ga. 322, 323 (467 SE2d 330) (1996) (citation and punctuation omitted). The Supreme Court of Georgia has previously recognized that a deed provision regarding a recreational club, similar to the declaration filed here, concerned the land or its use and created a covenant running with the land binding on a subsequent grantee upon acceptance of the deed. Lowry v. Norris Lake Shores Dev. Corp., 231 Ga. 549 (203 SE2d 171) (1974). We see no reason to reach a contrary result here.

3. In their remaining enumeration of error, appellants contend that the trial court erred by awarding the Club interest at a rate of 18 percent. Based upon this court’s recent decision in Northside Bank v. Mountainbrook of Bartow County Homeowners Assn., 338 Ga. App. 126 (789 SE2d 378) (2016), we agree. In Northside Bank, we concluded that the declaration of covenants, conditions, restrictions, and easements for a subdivision governed the homeowners association’s right to collect interest on past due assessments. Id. at 127 (1). In that case and the one presently before us, the declaration provided that interest could be collected at the maximum legal rate. As this is not a definite rate, we concluded in Northside Bank that the seven percent per year rate mandated by OCGA § 7-4-2 (a) (1) (A) governed the rate of interest allowed by the declaration. Id. at 128 (1). In so holding, we expressly rejected the homeowners association’s argument that it was entitled to 18 percent interest pursuant to OCGA § 7-4-16, a statute governing commercial accounts arising out of the sale of goods or services other than a retail installment transaction. Id. Accordingly, we vacate the portion of the judgment awarding interest at a rate greater than the seven percent provided for by OCGA § 7-4-2 and remand this case for recalculation of the interest at the correct rate. Id.

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

Barnes, P. J., and Rickman, J., concur.

Decided September 14, 2016.

Weiner, Shearouse, Weitz, Greenberg & Shawe, GeorgeP Milmine II, for appellants.

Margaret K. Clark, for appellee.

       We note that the record before us does not include a transcript of the motion hearing and that appellants requested that no transcripts be included in the record on appeal.


author: MILLER, Presiding Judge.

text:
    A16A1222.
    MORRIS v. THE STATE.
    (791 SE2d 177)
   MILLER, Presiding Judge.

John Morris appeals the trial court’s denial of his motion for out-of-time appeal, contending that his trial counsel provided ineffective assistance by failing to adequately inform him of his appeal rights and in failing to obtain his consent to forego an appeal. We agree that the trial court abused its discretion in denying Morris’s motion for out-of-time appeal because he did not receive adequate notice of his appeal rights and did not voluntarily choose to waive those rights. We therefore reverse.

The defendant bears the burden of demonstrating through the record that he is entitled to an out-of-time appeal. Simmons v. State, 276 Ga. 525, 526 (579 SE2d 735) (2003). We review a trial court’s denial of a motion for out-of-time appeal for an abuse of discretion. Glass v. State, 248 Ga. App. 91, 92 (1) (545 SE2d 360) (2001). We will affirm the trial court’s findings of fact as to whether a defendant was informed of his appeal rights by counsel and voluntarily waived them, so long as there is any evidence to support those findings. Id. Nevertheless, “where the trial court has clearly erred in some of its findings of fact... the deference owed the trial court’s ultimate ruling is diminished.” (Citation and punctuation omitted.) State v. Porter, 288 Ga. 524, 526 (2) (a) (705 SE2d 636) (2011).

So viewed, the record shows that following a jury trial where he was represented by counsel, Morris was convicted of one count of aggravated child molestation (OCGA § 16-6-4 (d)(1)) and one count of child molestation (OCGA § 16-6-4 (b) (1)). The trial court did not inform Morris of his appellate rights after his conviction or at sentencing. Trial counsel then filed a motion for new trial, rather than a notice of appeal. After the trial court denied the new trial motion, Morris did not file a timely appeal, though he subsequently filed a motion for out-of-time appeal.

Morris approved of his trial counsel; however, Morris’s family actually hired and paid his counsel, and the family was highly involved in Morris’s defense. Trial counsel spoke in greater detail with Morris’s father than he did with Morris about how to proceed with the defense.

Trial counsel admitted that he did not have a single set “spiel” that he used to inform his clients of their appellate rights, although he usually told them “something about where they go from here.” Importantly, most oftrial counsel’s communications aboutthe defense of Morris’s case were with Morris’s father, even though trial counsel acknowledged that he needed to speak to Morris directly. Indeed, after the denial of Morris’s motion for new trial, trial counsel specifically recalled speaking with Morris’s father about Morris’s appellate rights by telling the father that he “would be glad to do it,” but he “didn’t think it was a good investment” because he “didn’t think there was any error that an appellate court would use to reverse the jury’s decision in th[e] case.” Trial counsel further told Morris’s father that he did not recommend utilizing the public defender’s office because, in his opinion, “they [do] a very weak job on appeal.”

Although trial counsel testified at the motion for out-of-time appeal hearing that he met with Morris after the trial and “talked to him [regarding] something about appeal,” he could not definitively remember what he told Morris after denial of the motion for new trial regarding his appeal rights. Trial counsel thought he had a conversation with Morris similar to the one he had with Morris’s father, but he could not be sure. It was trial counsel’s “impression” that the decision not to appeal was made by Morris and his family, and he “thought” that Morris and his family were “consulting together” to decide how to proceed. Nevertheless, trial counsel admitted that he never discussed Morris’s appeal rights with both Morris and his father present at the same time, and he was not sure that Morris ever told him that he consulted with his father and decided not to appeal. Notably, there is no evidence that trial counsel told either Morris or his father that Morris had only 30 days after the denial of the motion for new trial in which to file an appeal.

Morris, on the other hand, testified at the motion for out-of-time appeal hearing that after denial of the motion for new trial, trial counsel never discussed filing an appeal with him, he was unaware of the time deadline or process for filing an appeal, and he assumed trial counsel “was on top of everything.” Morris acknowledged knowing that he “could have counsel for appeal,” but he claimed that he “wasn’t even sure what the appeal was.” Morris claimed that he learned months later that no appeal had been undertaken, at which point he engaged new counsel to pursue one.

The trial court’s order denying Morris’s motion for out-of-time appeal contained a number of factual findings, including its findings that Morris “was advised of his right to appeal in a timely fashion,” Morris knew he had the right to counsel on appeal, trial counsel discussed with Morris the relative costs and benefits of pursuing an appeal, and Morris did not retain trial counsel to file an appeal.

1. In two interrelated enumerations of error, Morris argues that trial counsel was ineffective for failing to adequately advise him of his appeal rights or get his consent to forego an appeal. We agree.

“A criminal defendant who has lost his right to appellate review of his conviction due to error of counsel is entitled to an out-of-time appeal.” (Citation omitted.) Rowland v. State, 264 Ga. 872, 875 (2) (452 SE2d 756) (1995).

The disposition of a motion for out-of-time appeal hinges on a determination of who bore the ultimate responsibility for the failure to file a timely appeal. Our courts have long recognized the right to effective assistance of counsel on appeal from a criminal conviction, and have permitted out-of-time appeals if the appellant was denied his right of appeal through counsel’s negligence or ignorance, or if the appellant was not adequately in formed of his appeal rights.

(Punctuation omitted; emphasis supplied.) Glass, supra, 248 Ga. App. at 92 (1).

A “defendant’s right to effective assistance of counsel includes the right to be informed of the right to appeal and the right to counsel on appeal, including the right to appointed counsel for indigent defendants.” (Citation omitted.) Floyd v. State, 279 Ga. App. 21, 23 (630 SE2d 168) (2006); see also Haynes v. State, 227 Ga. App. 64, 65 (488 SE2d 119) (1997) (reversing denial of motion for out-of-time appeal where record did not reflect that defendant was informed of his rights or the time constraints involved). “The right to appeal is [also] violated when the . . . lawyer deliberately forgoes the direct appeal without first obtaining his client’s consent.” (Emphasis omitted.) Glass, supra, 248 Ga. App. at 92 (1).

Here, Morris contends that he was denied his right to a timely appeal due to trial counsel’s failure to adequately notify him of his appeal rights or obtain his consent to forego an appeal. As set forth above, this Court must defer to the trial court’s factual findings if there is any evidence to support them. Glass, supra, 248 Ga. App. at 92 (1). Nevertheless, we owe less deference to the trial court’s ultimate ruling where the trial court has clearly erred in making its factual findings. Porter, supra, 288 Ga. at 526 (2) (a).

Decided September 14, 2016.

Pate & Johnson, Page A. Pate, Jess B. Johnson, for appellant.

Ashley Wright, District Attorney, Joshua B. Smith, Assistant District Attorney, for appellee.

Here, there is simply no evidence to support the trial court’s finding that trial counsel notified Morris of his appeal rights and that Morris voluntarily waived them. Further, there is no evidence that either Morris or his father was informed that Morris had only 30 days in which to pursue an appeal. Instead, the record clearly shows that trial counsel assumed that Morris’s father would convey trial counsel’s advice to Morris and assumed that Morris’s failure to take steps toward an appeal were the result of deliberation between Morris and his family.

In so holding, we note that trial courts are permitted to rely upon testimony from trial counsel about what he or she invariably tells all clients about appeal rights, including deadlines, even when the attorney lacks specific recollection of the conversation. See, e.g., Butts v. State, 244 Ga. App. 366, 367 (536 SE2d 154) (2000); Jackson v. Hopper, 243 Ga. 41 (252 SE2d 467) (1979). In this case, however, trial counsel was unable to provide even that minimum level of specificity Instead, trial counsel testified that he did not have a set “spiel” that he provided to clients except for the vague statement that he usually would “tell [clients] something about where they go from here.”

On this record, there simply was no evidence on which the trial court could rely to find that Morris was adequately advised of his appeal rights, including the deadline to assert those rights, and there was no evidence showing that he voluntarily chose to waive his appeal rights. Consequently, we find that trial counsel bore the responsibility for the failure to timely appeal and, thus, was constitutionally ineffective. Accordingly, we reverse the trial court’s denial of Morris’s motion for out-of-time appeal.

2. In light of our holding in Division 1, we need not address Morris’s remaining enumeration of error.

Judgment reversed.

McFadden and McMillian, JJ., concur.

       Trial counsel stated that Morris gave him permission to talk with Morris’s father about the case.


author: Rickman, Judge.

text:
    A16A1304.
    ROWELL v. PHOEBE PUTNEY MEMORIAL HOSPITAL, INC. et al.
    (791 SE2d 183)
   Rickman, Judge.

Esperanza Rowell filed suit against Phoebe Putney Memorial Hospital, Inc. (“the hospital”) and one of its employees, Doug Patten, M.D. Rowell asserted claims against both defendants for tortious interference with her existing contractual relationship, defamation, violation of the hospital bylaws, and violation of a temporary restraining order and/or preliminary injunction, punitive damages, and attorney fees. Rowell now appeals from an order of the trial court granting summary judgment to the hospital and Patten as to Rowell’s claims for tortious interference with her existing contractual relationship, defamation, violation of the hospital bylaws, and violation of a temporary restraining order and/or preliminary injunction. Rowell contends the trial court erred by granting summary judgment in favor of the hospital on her claims for tortious interference with her employment contract and violation of the hospital bylaws. For the following reasons, we affirm.

To prevail at summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that the evidence and all reasonable inferences and conclusions drawn therefrom, viewed in the nonmovant’s favor, warrant judgment as a matter of law. We review de novo the trial court’s ruling on a motion for summary judgment.

(Citation omitted.) Hart v. Sirmans, 336 Ga. App. 212 (784 SE2d 67) (2016).

So viewed, the record shows that Rowell had a verbal agreement to work for SOWEGA Anesthesia, LLC (“SOWEGA”) as an anesthesiologist on nights and weekends. SOWEGA was the exclusive provider of anesthesia services for the hospital, and Rowell held staff privileges there.

Patten was employed by the hospital and served as Chief Medical Officer and Vice President of Medical Affairs. In his role as Vice President of Medical Affairs, Patten had the authority to summarily suspend physicians’ staff privileges at the hospital.

On May 20, 2013, Patten met with one of Rowell’s employers regarding concerns about Rowell’s patient care. Following that conversation, Rowell’s employer called Rowell on the phone and told her that Patten had told him to stop Rowell from coming to work at the hospital, or if she did come to work, her privileges would be suspended and she would be physically removed from the hospital. Either later that day or the following day, Rowell’s employer called her back and told her, “I didn’t fire you”; “you need to fight this.” Rowell was unsure of what to do, but asked her employer to gather up her things at the hospital, and she picked up her last paycheck. On the day after first speaking with her employer, Rowell cancelled her malpractice insurance policy.

1. Rowell contends that the trial court erred in granting summary judgment against her and in favor of the hospital and Patten on her claim for tortious interference with her employment contract. Specifically, Rowell argues that the trial court erred by holding that there was not a genuine issue of material fact regarding whether Patten, as an agent of the hospital, acted with malice when he summarily suspended her staff privileges without speaking to her first.

The elements of tortious interference with a contract consist of: (1) improper action or wrongful conduct by the defendant without privilege; (2) the defendant acted purposely and with malice with the intent to injure; (3) the defendant induced a breach of a contractual obligation or caused a party or third party to discontinue or fail to enter into an anticipated business relationship with the plaintiff; and (4) the defendant’s tortious conduct proximately caused damage to the plaintiff.

(Citation omitted.) Culpepper v. Thompson, 254 Ga. App. 569, 571 (c) (562 SE2d 837) (2002).

Pretermitting whether the trial court erred in holding that the hospital and Patten were nonstrangers to Rowell’s contract with SOWEGA and thus were acting with privilege, Rowell has failed to show any evidence of malice on the part of the hospital or Patten.

“In tortious interference with contract actions, malice, as herein used, is a term to be given a liberal meaning; malicious or maliciously means any unauthorized interference, or any interference without legal justification or excuse.” (Citations and punctuation omitted.) Culpepper, 254 Ga. App. at 572 (c) (3). Rowell argues that because Patten expressed his concerns about Rowell to her employer instead of to Rowell herself a jury question exists regarding whether the hospital and Patten were acting with malice.

“Guesses or speculation which raise merely a conjecture or possibility are not sufficient to create even an inference of fact for consideration on summary judgment.” (Punctuation and footnote omitted.) Sumter Regional Hosp. v. Healthworks, 264 Ga. App. 78, 82 (1) (589 SE2d 666) (2003). Both Patten and Rowell acknowledge that they did not know each other at the time of the events that gave rise to this action. Patten testified that he went to meet with Rowell’s employer to tell him that the hospital, through the medical staff, was going to initiate an investigation regarding Rowell’s patient care. At the time, Rowell’s employer was in a leadership role at the hospital and was the only active physician member of the anesthesiology group supervising Rowell. Furthermore, the trial court noted in its order that,

[ajlthough a federal temporary restraining order was in place at the time of the events in question, nothing in that order prevented or prohibited defendants from utilizing the investigatory and disciplinary procedures set forth in its [bylaws].... The record shows said communications were made in good faith as part of the Medical Director’s duties to uphold [the hospital’s] interest in patient safety

Moreover, while Patten had the authority to summarily suspend Rowell’s privileges, her privileges were never suspended. Patten testified that had Rowell decided to return to work, an investigation would have been initiated and Rowell’s privileges would have been summarily suspended. Instead, after Rowell was told by her employer that she could decide to not return to the hospital or to come to work and have her privileges summarily suspended, she testified that she was unsure of what to do but ultimately chose to have her employer pack up her things and picked up her last paycheck.

Since the [h]ospital [and Patten have] shown that an essential element of [Rowell’s] claim for tortious interference could not be proven under any theory, there remains no genuine issue of material fact to be tried by the jury on this claim, and the [h]ospital [and Patten are] entitled to summary judgment as a matter of law.

Sumter Regional Hosp., 264 Ga. App. at 83 (1). See Meadow Springs v. IH Riverdale, 323 Ga. App. 478, 480 (1) (a) (747 SE2d 47) (2013) (trial court properly granted summary judgment on tortious interference with contractual relations claim where plaintiff failed to point to specific evidence of malice); see also Culpepper, 254 Ga. App. at 572 (c) (3) (Summary judgment proper on tortious interference with contractual relations claim where “[tjhere exists no evidence of malice, and no inference, reasonable or otherwise, permits the drawing of an inference of malice from the facts of this case. Unsupported inferences or conjecture regarding a defendant’s motivation does not suffice to show malice.”) (citation and punctuation omitted); Renden, Inc. v. Liberty Real Estate Ltd. Partnership III, 213 Ga.App. 333, 336 (2) (c) (444 SE2d 814) (1994) (“A grant of summary judgment must be affirmed if it is right for any reason.”) (citations omitted).

2. Rowell contends that the trial court erred by granting summary judgment against her and in favor of the hospital and Patten on her claim for violation of the hospital bylaws. Specifically, Rowell argues that a genuine issue of material fact exists as to whether Patten secured votes from the medical executive committee to suspend Rowell’s privileges prior to meeting with Rowell’s employer.

A hospital has a legal duty to follow its existing bylaws and any alleged breach of that duty can be asserted as a cause of action under OCGA § 51-1-6. St. Mary’s Hosp. of Athens v. Radiology Professional Corp., 205 Ga.App. 121, 127 (3) (c) (421 SE2d 731) (1992). In this case, it is undisputed that Patten had the authority, under the hospital bylaws, to summarily suspend physicians’ staff privileges at the hospital. Pursuant to the bylaws, the suspension would be effective immediately, and within 72 hours the Executive Committee would meet and “[ujnless the Executive Committee terminates the suspension, the practitioner is entitled to hearing rights under these bylaws.”

Rowell asserts that there is a genuine issue of material fact as to whether Patten consulted with members of the Executive Committee prior to meeting with Rowell’s employer and thus violated Rowell’s rights under the bylaws. The trial court thoroughly and correctly addresses this issue in its order:

Although there may be an evidentiary issue as to what exactly [Rowell’s employer] communicated to [Rowell] about his conversation with [Patten], it is clear from the record that a summary suspension of [Rowell’s] staff privileges would have been imposed if she had chosen to return to work; however, it is also clear [Rowell] unilaterally made the decision not to return to work, and, therefore, a summary suspension was never imposed. Within a day or two of her making this decision, [Rowell] cancelled her malpractice coverage which disqualified her from having hospital privileges under the Medical Bylaws.

Decided September 14, 2016.

There is simply no evidence in the record showing [Patten] ever imposed a summary suspension of [Rowell’s] privileges. While it may have been his intent to do so had [Rowell] chosen to continue her services as an anesthesiologist, no issue exists as to the fact that [Rowell] made the choice not to return to work and face the probable summary suspension, the triggering event which would have afforded her a right to notice and a fair hearing per the terms of the Medical Bylaws. As there was no summary suspension of her privileges, [Rowell’s] entitlement to notice and a hearing as prescribed in the Bylaws was never triggered.
[Rowell] further contends that any pre-suspension communications which may have taken place between [Patten] and members of the Medical Executive Committee, without first giving [Rowell] notice and an opportunity to be heard, also amounted to a violation of the Bylaws.. .. [Rowell] may have believed any hearing to which she might have been entitled had she been summarily suspended would have been tainted if [Patten] had in fact had pre-suspension communications with members of the Medical Executive Committee; however, she has no cause of action against [the hospital and Patten] over the alleged tainted nature of such a theoretical hearing when no such hearing was ever held because of her unilateral decision to resign rather than face a summary suspension which would have triggered the right to such a hearing.

We agree. Therefore, the trial court did not err by granting summary judgment in favor of the hospital and Patten. See generally Mulligan v. Brunswick Mem. Hosp. Auth., 264 Ga. App. 39, 40 (4) (589 SE2d 851) (2003) (trial court properly granted summary judgment in favor of the hospital on physician’s claim for breach of the hospital’s bylaws).

Judgment affirmed.

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

Howell Law Firm, Robert D. Howell; Vansant & Corriere, Alfred N. Corriere, for appellant.

Lee Durham, Donald W. Lee, for appellees.

       Notes from the insurance carrier reflect that Rowell indicated that she was retiring. Rowell was 77 years old at the time.

       Rowell also contends that a genuine issue of material fact exists as to whether she was offered any choice to return to work. As discussed supra, there is no issue of material fact as to whether Rowell was offered a choice to return to work.

       OCGA § 51-1-6 provides: “When the law requires a person to perform an act for the benefit of another or to refrain from doing an act which may injure another, although no cause of action is given in express terms, the injured party may recover for the breach of such legal duty if he suffers damage thereby.”