text:
    A16A0018.
    JAMES v. GEORGIA DEPARTMENT OF PUBLIC SAFETY.
    (789 SE2d 236)
   McFADDEN, Judge.

Latricka Sloan died from injuries sustained when the car she was driving crashed as she fled from Georgia State Patrol officers in a high-speed chase. Sloan’s adult daughter, Breshonda James, on behalf of herself and her minor siblings, brought this wrongful death action against the Georgia Department of Public Safety (“the Department”), the state agency that oversees the day-to-day operations of the Georgia State Patrol. In the action, James alleged that one of the officers negligently failed to comply with the Department’s pursuit policy by continuing the chase and executing a Precision Immobilization Technique (“PIT maneuver”) to stop Sloan’s car. The trial court granted the Department’s motion to dismiss the action for want of subject matter jurisdiction on the ground that the Department had sovereign immunity. James appeals.

James argues that the trial court erred in making pre-trial findings of fact in ruling on the motion to dismiss, but the Georgia Civil Practice Act permitted the trial court to make such findings. James also argues that the trial court should have disregarded certain witnesses’ testimony under the rule governing self-contradictory testimony, but that rule does not apply because those witnesses are not parties to this case. As detailed below, the record contains evidence supporting the trial court’s determination that sovereign immunity applied. In fact, James concedes that factual disputes exist on the issue. Given the evidence — albeit disputed — supporting the trial court’s ruling, our standard of review requires us to affirm.

1. Standard of review, facts, and procedural background.

We review de novo a trial court’s grant of a motion to dismiss on sovereign immunity grounds[.]” Pelham v. Bd. of Regents of the Univ. System of Ga., 321 Ga. App. 791 (743 SE2d 469) (2013). “However, factual findings by the trial court in support of [his] legal decision are sustained if there is evidence authorizing them, and the burden of proof is on the party seeking the waiver of immunity.” Loehle v. Ga. Dept. of Public Safety, 334 Ga. App. 836, 836-837 (780 SE2d 469) (2015) (citations omitted). Accord Diamond v. Dept. of Transp., 326 Ga. App. 189, 190 (1) (756 SE2d 277) (2014); Pak v. Ga. Dept. of Behavioral Health & Developmental Disabilities, 317 Ga. App. 486 (731 SE2d 384) (2012); Sadler v. Dept. of Transp., 311 Ga. App. 601, 603 (716 SE2d 639) (2011).

We are not persuaded by James’s argument that, in reviewing the trial court’s ruling, we must view the factual allegations in her complaint as true to determine whether the complaint showed with certainty that she would not be entitled to relief under any state of facts that could be proven in support of her claim. That standard of review is appropriate for a ruling on a motion to dismiss for failure to state a claim under OCGA § 9-11-12 (b) (6), see Bonner v. Peterson, 301 Ga. App. 443 (687 SE2d 676) (2009), or for a ruling on a motion to dismiss for lack of subject matter jurisdiction under OCGA § 9-11-12 (b) (1) where the trial court has not made factual findings. See McCoy v. Ga. Dept. of Admin. Svcs., 326 Ga. App. 853, n. 1 (755 SE2d 362) (2014); Pelham, 321 Ga. App. at 791, n. 1. In this case, however, the Department moved to dismiss for lack of subject matter jurisdiction and the trial court made factual findings in ruling on that motion. See generally Considine v. Murphy, 297 Ga. 164, 167 (1), n. 2 (773 SE2d 176) (2015) (ruling on motion to dismiss for lack of subject matter jurisdiction is subject to different standard of review than ruling on motion to dismiss for failure to state a claim); Bonner, 301 Ga. App. at 443 (same). Cases cited by James in which the trial court’s ruling was based solely on the allegations in the complaint are therefore in-apposite. See, e.g., Oconee Community Svc. Bd. v. Holsey, 266 Ga. App. 385 (597 SE2d 489) (2004); Ardizonne v. Dept. of Human Resources, 258 Ga. App. 858 (575 SE2d 738) (2002); Ga. Military College v. Santamorena, 237 Ga. App. 58 (514 SE2d 82) (1999).

Accordingly, as stated above, we consider on appeal whether there is evidence to support the trial court’s factual findings. Loehle, 334 Ga. App. at 836-837. Those factual findings are summarized as follows, and our review of the record reveals evidence supporting them.

On January 22, 2011, at about 10:00 p.m., Sloan approached a roadblock in her vehicle, made a U-turn, and accelerated away from the roadblock. Two Georgia State Patrol officers pursued her in vehicles with functioning blue flashing lights and audible sirens, and functioning radios by which the officers maintained car-to-car contact during the pursuit. Soon after the pursuit began, one of the officers (hereinafter the “primary pursuing officer”) passed the other officer (hereinafter the “secondary pursuing officer”) and took the lead in the pursuit. The primary pursuing officer asked the secondary pursuing officer to notify the Department’s communications center of the pursuit. At the time of the pursuit, the officers did not know Sloan’s identity.

The pursuit lasted for 4.8 miles, during which at least one of the officers maintained visual contact with Sloan’s vehicle. The officers observed Sloan violate several traffic laws and drive in an erratic and dangerous manner, including exceeding the speed limit, failing to obey traffic signs and lights, and driving on the wrong side of the road. In the primary pursuing officer’s opinion, these actions could place other motorists at risk of a serious accident. The officers, however, did not encounter any other traffic during the pursuit, and the condition of the road did not make the pursuit too hazardous to continue.

The primary pursuing officer was familiar with the traffic patterns of an approaching road, which he anticipated would have a high volume of traffic. He believed that there was a need to stop Sloan before she reached that road given her erratic and dangerous driving; that continuing the pursuit presented a greater danger than the danger associated with ending the pursuit through a PIT maneuver; and that alternative methods of ending the pursuit were not feasible. Approximately one mile before the intersection with the high-traffic road, the primary pursuing officer performed a PIT maneuver, in which he intentionally struck Sloan’s vehicle. This caused Sloan’s vehicle to leave the roadway and overturn. Sloan was killed.

An investigative division of the Georgia State Patrol investigated the circumstances of the crash and concluded that the officer who had performed the PIT maneuver acted in accordance with the Department’s pursuit policy The Georgia State Patrol’s commanding officer reviewed that investigation and agreed with its conclusion.

After James filed a complaint against the Department alleging that the primary pursuing officer had acted negligently in pursuing Sloan and performing the PIT maneuver, the Department moved to dismiss for lack of subject matter jurisdiction, see OCGA § 9-11-12 (b) (1), arguing that it was entitled to sovereign immunity Both parties submitted evidence in the form of affidavits and deposition testimony on the issue of sovereign immunity After considering this evidence, the trial court determined that the Department was entitled to sovereign immunity and granted the motion to dismiss. James appeals, arguing that the trial court should not have decided the issue before trial given disputes in the evidence, and that the trial court should have disregarded some witness testimony. She also challenges the merits of the trial court’s dismissal of the action.

2. Pre-trial determination of disputed facts.

James challenges the trial court’s act of making pre-trial determination of disputed facts in ruling on the motion to dismiss for lack of subject matter jurisdiction. She argues that, instead of making factual findings, the trial court merely should have viewed her complaint to determine whether she would be entitled to relief under any state of facts that could be proven in support of her claim. She also argues that the trial court should have deferred ruling on the motion until trial, and she argues that a jury, rather than the trial court, should have decided some of the factual disputes pertinent to the issue of sovereign immunity But as detailed below, Georgia’s Civil Practice Act authorized the procedure used by the trial court, and James has shown no abuse of discretion.

A challenge to subject matter jurisdiction is a matter in abatement, Stivali v. Aquiport Aylesbury, 244 Ga. App. 389 (535 SE2d 551) (2000), and the Civil Practice Act permits a defendant to move to dismiss a complaint on that ground. OCGA § 9-11-12 (b) (1). See also Diamond, 326 Ga. App. at 190 (1) (“any suit brought to which an exception [to a waiver of sovereign immunity] applies is subject to dismissal pursuant to OCGA § 9-11-12 (b) (I) for lack of subject matter jurisdiction”) (citation omitted). Such motion “shall be heard and determined before trial on application of any party unless the court orders that the hearing and determination thereof be deferred until the trial.” OCGA § 9-11-12 (d) (emphasis supplied). In considering a motion for lack of subject matter jurisdiction based on sovereign immunity, a trial court is not confined to the allegations of the complaint, as the court would be if considering a motion to dismiss for failure to state a claim under OCGA § 9-11-12 (b) (6). The trial court “may hear the matter on affidavits presented by the respective parties, [and] may direct that the matter be heard wholly or partly on oral testimony or depositions^]” OCGA § 9-11-43 (b), and has broad discretion in conducting the preliminary hearing on the motion. See Sherwood Mem. Park v. Bryan, 142 Ga. App. 664 (236 SE2d 903) (1977). Accordingly, the trial court may receive evidence and make relevant factual findings to decide the threshold issue of whether a defendant’s entitlement to sovereign immunity deprives the court of subject matter jurisdiction. See Rivera v. Washington, 298 Ga. 770, 778 (784 SE2d 775) (2016).

The trial court also has broad discretion in deciding whether to defer its determination on a threshold issue such as subject matter jurisdiction. Ga. Power Co. v. Harrison, 253 Ga. 212, 214-215 (2) (318 SE2d 306) (1984); Dept. of Transp. v. Dupree, 256 Ga. App. 668, 675 (1) (b) (570 SE2d 1) (2002). “Under OCGA § 9-11-12 (d), the trial court may hear and determine a defense in abatement . . . prior to trial without submitting it to a jury, or may defer such hearing and determination until trial.” Parris v. Douthit, 287 Ga. 119 (694 SE2d 655) (2010) (citations omitted). But even if deferred until trial, the determination remains one for the trial court, not the jury See Dupree, 256 Ga. App. at 672 (1) (a) (determination of subject matter jurisdiction must be made by trial court before entry of judgment, and trial court may use jury’s verdict only in advisory capacity); Derbyshire v. United Builders Supplies, 194 Ga. App. 840, 842-843 (1) (392 SE2d 37) (1990) (trial court erred in declining to decide jurisdictional question in favor of jury determination of the issue).

James argues that the trial court in this case should have deferred his determination on subject matter jurisdiction because of the degree to which that determination was factually intertwined with a determination of the merits of the case. Certainly the trial court could have deferred his ruling, and as we noted in our opinion in Dupree, 256 Ga. App. 668, deferral may be the “best approach” where these determinations are particularly intertwined. Id. at 672 (1) (b). Nevertheless, as our opinion in Dupree acknowledges, a trial court’s exercise of discretion in this regard can encompass a decision not to defer the subject matter jurisdiction decision, even if the jurisdictional ruling effectively decides the issue of liability See id. at 672 (1) (a) & n. 1. James has not shown that the trial court abused his discretion in making a pre-trial determination of subject matter jurisdiction in this case.

In a supplemental brief, James also suggests that the trial court should not have made factual findings without receiving live testimony However, James did not enumerate as error any ruling by the trial court regarding the nature of the evidence upon which the trial court based his jurisdictional determination. Moreover, although James states in her supplemental brief that the trial court “disallowed the parties to test the evidence through live testimony,” she does not point to any place in the record where the trial court made such a ruling. She did not seek to introduce any live testimony at the hearing on the motion to dismiss. And as discussed above, the Civil Practice Act permitted the trial court to make his determination on written submissions. OCGA § 9-11-43 (b).

3. Self-contradictory testimony rule.

We find no merit in James’s argument that the trial court was required to disregard testimony of two of the Department’s witnesses under the self-contradictory testimony rule. That rule

states that: (1) the testimony of a party who testifies on their own behalf at trial is construed against them whenever it is self-contradictory, vague, or equivocal; and (2) whenever the only evidence in support of a claim or a defense is the favorable portion of a party’s self-contradictory testimony, the other party is entitled to a directed verdict as a matter of law.

Thompson v. Ezor, 272 Ga. 849, 851 (1) (536 SE2d 749) (2000) (citations omitted). “This principle [also] applies in the context of a motion to dismiss on jurisdictional grounds,” as well as in the summary judgment context. Classic Commercial Svcs. v. Baldwin , 336 Ga. App. 183, 186 (1) (784 SE2d 44) (2016) (citation omitted). But as our Supreme Court has made clear, the rule applies only to the testimony of a party to the litigation; it does not apply to the testimony of a nonparty witness. Thompson, 272 Ga. at 851-853 (2).

James contends that the self-contradictory testimony rule should apply to the testimony of the primary and secondary pursuing officers, but neither officer is a party to this litigation. In fact, our Tort Claims Act prohibits the officers from being parties to this litigation. See OCGA § 50-21-25 (b) (“A person bringing an action against the state under the provisions of this article must name as a party defendant only the state government entity for which the state officer or employee was acting and shall not name the state officer or employee individually.”); see also Shekhawat v. Jones, 293 Ga. 468, 470-471 (1) (746 SE2d 89) (2013) (“where a state employee commits a tort while acting within the scope of his employment with the [s]tate, the [s]tate through the employing government agency maybe held liable, but the individual state employee may not”) (citation omitted). James offers no argument or authority for the proposition that the self-contradictory testimony rule should apply to the testimony of nonparty witnesses in this case, and we know of none.

4. Sovereign immunity.

Under Article I, Section II, Paragraph IX (e) of the Georgia Constitution of 1983,

sovereign immunity from suit extends to all state departments and agencies unless properly waived through an act passed by the General Assembly . . . Sovereign immunity is waived by a legislative act only if the statutory language specifically provides that sovereign immunity is waived and the extent of such waiver.

Pelham, 321 Ga. App. at 793 (1) (citations and punctuation omitted). The conditions and limitations of the statute that waives immunity must be strictly followed. Ga. Dept. of Labor v. RTT Assoc., 299 Ga. 78, 83 (2) (786 SE2d 840) (2016).

The Georgia Tort Claims Act, OCGA § 50-21-20 et seq.,

provides for a waiver of the state’s sovereign immunity for torts committedby state officers and employees acting within the scope of their official duties or employment, “provided, however, that the state’s sovereign immunity is waived subject to all exceptions and limitations set forth in this article.” OCGA § 50-21-23 (a). ... If a tort claim falls within the scope of any of the[ ] exceptions [set forth in OCGA § 50-21-24], it is barred by sovereign immunity.

Pelham, 321 Ga. App. at 794-795 (2) (citation omitted); see Diamond, 326 Ga. App. at 190 (1). As a department of the state, the Department of Public Safety is subject to the waiver and the exceptions set forth in the Tort Claims Act. See Bruton v. Dept. of Human Resources, 235 Ga. App. 291, 293 (509 SE2d 363) (1998).

The trial court concluded that James’s claims against the Department fell within the law enforcement exception to the Tort Claims Act’s waiver of sovereign immunity. See OCGA § 50-21-24 (6). Alternatively, the trial court concluded that the claims also fell within the assault and battery exception to the waiver. See OCGA § 50-21-24 (7). Because the evidence authorized the trial court’s conclusion that the law enforcement exception applied, and thus his conclusion that the case must be dismissed because the Department was entitled to sovereign immunity, we need not consider the trial court’s alternative conclusion regarding the assault and battery exception.

(a) Law enforcement exception.

OCGA § 50-21-24 (6) provides: “The state shall have no liability for losses resulting from . . . the method of providing[ ] law enforcement, police, or fire protection[.]”

[O]ur construction of OCGA § 50-21-24 (6) should accomplish a balance between the inherently unfair and inequitable results from the strict application of sovereign immunity and the need to limit the [s]tate’s exposure to tort liability that the General Assembly expressed as its goal in OCGA § 50-21-21.

Ga. Dept. of Public Safety v. Davis, 285 Ga. 203, 204 (676 SE2d 1) (2009) (citation and punctuation omitted).

In Loehle, 334 Ga. App. 836, another case involving a vehicle accident during a pursuit, we discussed the scope of this exception to the Tort Claims Act’s waiver of sovereign immunity:

[O]ur Supreme Court has construe(d) the exception to the waiver of sovereign immunity found in OCGA § 50-21-24 (6) as authorizing the application of sovereign immunity to the making of policy decisions by state employees and officers ... and to the acts and omissions of state employees and officers executing and implementing those policies. Our Supreme Court highlighted the distinction between the formulation of a policy and an officer’s adherence to the policy by noting that if the negligence causing an injury lies in the formulating of policy — i.e., the determining of the method of police protection to provide — the government remains immune from liability. If, however, an officer or employee acts negligently in carrying out that policy, government liability may exist under the Tort Claims Act.

Id. at 837-838 (1) (citing Davis, 285 Ga. at 205-206, and Ga. Forestry Comm. v. Canady, 280 Ga. 825, 830 (632 SE2d 105) (2006)). Like the plaintiff in Loehle, in this case James

does not challenge [the Department’s] policies concerning pursuits. Rather, [she] contends that [the law enforcement officer who executed the PIT maneuver] failed to properly follow those policies. Accordingly, the sole issue is whether the [officer was] negligent in carrying out certain [Department] policies.

Loehle, 334 Ga. App. at 838 (1) (citations and footnote omitted).

The Department policy at issue in this case explicitly gives officers discretion in conducting pursuits. This discretion extends to “determining the appropriateness, speed and extent of a pursuit” (requiring the officer to consider factors including “[t]he nature of the offense committed by the suspect, the potential danger to the public if the suspect is not immediately apprehended and the probability of the suspect’s arrest at a later date”); to “discontinuing] a pursuit if, in the [officer’s] opinion, the risk of continuing outweighs the danger of permitting the suspect to escape”; and to performing a PIT maneuver “[i]f the [officer] in pursuit determine[s] that the fleeing vehicle must be stopped immediately to safeguard life and preserve public safety” and if “the danger from the continued pursuit is greater than the danger associated with . . . using the maneuver to end the pursuit^]” The policy prohibits pursuits when “[e]mergency equipment or the radio is not functioning properly,” or when “inmate(s) or person(s) in custody occupy [the pursuit] vehicle.”

The evidence recited above authorized the trial court’s finding that the officer’s actions during the pursuit “were objectively reasonable and in compliance with [the Department’s] pursuit policy” and that his “execution of the PIT maneuver to terminate the pursuit of Sloan was in compliance with the policy[.]” There was evidence in the record showing that the officer considered the factors set forth in the pursuit policy in deciding to continue the pursuit, and that none of the circumstances that would have prohibited a pursuit under the policy existed in this case. There also was evidence showing that an internal reviewing body found that the officer had complied with the pursuit policy.

It is true that James contests this evidence. She points to inconsistencies in the witness testimony She questions whether the primary pursuing officer was right to delegate to another officer the task of notifying the communications center. She points to expert opinion testimony that the primary pursuing officer’s actions did not comply with the pursuit policy She asks us to view the facts of this case similarly to Davis, where the evidence showed that an officer “clearly was not acting pursuant to policy” when he “followed too closely and did not pay attention” while driving. 285 Ga. at 206-207 (citations and punctuation omitted).

But there is a crucial distinction between this case and Davis. In Davis, there was no evidence that the policy permitted the officer’s actions. Id. Here, in contrast, there was evidence that the policy permitted the officer, in the exercise of his discretion, to continue the pursuit of Sloan and then execute a PIT maneuver to end the pursuit. In that regard, the facts of this case more closely resemble those in Loehle, where there was evidence that an officer had considered the factors set forth in the pursuit policy and determined that it was appropriate to continue the pursuit, and there was evidence that an internal review concluded that the officer’s actions were reasonable. 334 Ga. App. at 840-842 (1). We held in Loehle that this evidence was distinguishable from that in Davis, and we held that the evidence supported the trial court’s conclusion that the officer did not negligently implement that policy. Id.

Simply put, and as James herself concedes, the evidence as to whether the officer was negligent in executing the pursuit policy was in dispute. That disputed evidence included evidence that permitted the trial court to make the factual findings he made. We are not authorized to substitute our ruling on the disputed facts for that of the trial court. “Based on [the trial court’s] factual findings, which are supported by evidence from the record, we conclude that the trial court correctly found that [the Department] did not waive sovereign immunity” Loehle, 334 Ga. App. at 841 (1) (footnote omitted). Accordingly, the trial court did not err in dismissing the action for lack of subject matter jurisdiction. Id. at 837 (1).

Decided July 12, 2016.

W. Paul Fryer; Dodd & Burnham, Roger J. Dodd, for appellant.

Samuel S. Olens, Attorney General, Kathleen S. Turnipseed, A. Ellen Cusimano, Assistant Attorneys General, for appellee.

(b) Assault and battery exception.

In light of our conclusion in Division 2 (a), above, we need not consider James’s challenges to the trial court’s alternative conclusion regarding the applicability of the “assault and battery exception” to the Tort Claims Act’s waiver of sovereign immunity

Judgment affirmed.

Miller, P. J., and McMillian, J., concur.


source: Caselaw Access Project

author: Rickman, Judge.

license: Public Domain

text:
    A16A0020.
    THE STATE v. DESAI.
    (789 SE2d 222)
   Rickman, Judge.

The State appeals the trial court’s ruling granting Kevin Desai a new trial on the ground that the court failed to read the petit jury oath mandated by OCGA § 15-12-139 prior to the jury commencing deliberations. The State argues that because the jurors took the oath before reaching a verdict and there was no evidence of harm, the trial court erred in its ruling. For the reasons set forth herein, we affirm.

The pertinent undisputed facts are as follows. Desai was arrested after being involved in a single-car accident and was charged with, among other things, driving under the influence of alcohol per se in violation of OCGA § 40-6-391 (a) (5). At trial, after the close of the evidence and the retiring of the jurors to deliberate, the trial judge realized that she may have forgotten to administer the petit jury oath. She conducted a brief investigation into the matter, after which she recalled the jurors and administered the oath. The jurors had been deliberating for approximately thirty-eight minutes before they were properly sworn, and they reached a verdict within ten minutes of returning to the jury room. The trial court thereafter concluded that its failure to administer the jury oath prior to the commencement of deliberations rendered the trial a nullity, and the court granted Desai a new trial. This appeal follows.

“[T]he petit jury oath provided in OCGA § 15-12-139 is mandatory; consequently, the failure to administer this oath to the trial jury requires the setting aside of any conviction based upon the decision of such an unsworn body” (Citations and punctuation omitted.) Spencer v. State, 281 Ga. 533, 534 (640 SE2d 267) (2007). Although its mandate that the trial court give the oath is absolute, the statute does not otherwise prescribe a specific time for the oath to be given. See OCGA § 15-12-139. In Adams v. State, 286 Ga. 496, 497-498 (2) (690 SE2d 171) (2010), our Supreme Court addressed the consequences of giving a belated oath. In that case, the oath was given after the close of the evidence, but before the jury began to deliberate. See id. at 496-497 (2). While recognizing that the best practice is to give the oath as soon as the jury is empaneled, the Court nevertheless held that, “in the absence of a showing of actual prejudice, there is no reversible error if a belated oath is given prior to the jury’s deliberations.” (Citation omitted; emphasis supplied.) Adams, 286 Ga. at 498 (2); see id. at 498 (2), n. 5 (“Obviously, the best practice is to give the oath as soon as the jury is empaneled.”).

The Adams Court drew a clear distinction between (1) a jury which is never sworn or not sworn prior to deliberations, and (2) a jury that is belatedly sworn, but the oath is administered before jury deliberations. Adams, 286 Ga. at 498 (2). This distinction is reasonable — and even necessary — for several reasons. First, the statutory oath is “jurisdictional in character,” and is a prerequisite to establishing a “legally constituted” tribunal with lawful authority to pass on the issues being submitted. (Citation and punctuation omitted.) Spencer, 281 Ga. at 534; see also Slaughter v. State, 100 Ga. 323, 326 (28 SE 159) (1897). Second, a sworn jury is an element of an impartial jury:

Decided July 12, 2016.

Barry E. Morgan, Solicitor-General, Tad F. Keller, D. Melissa Tatum, Assistant Solicitors-General, for appellant.

Zeliff & Watson, Evan A. Watson, for appellee.

No one can properly be deemed a juror, or competent to act in that capacity, until he or she has been duly qualified; and one of the express requirements of the law is that, before the juror shall enter upon the discharge of his or her duties, the juror must take a solemn oath to the effect that the juror will perform his or her office uprightly and impartially.

(Citation and punctuation omitted.) Spencer, 281 Ga. at 534; see also Slaughter, 100 Ga. at 326. And finally, under double jeopardy principles, “in either the context of a constitutional claim or that under the extended state statutory protections, jeopardy does not attach in a jury trial until the jury is both impaneled and sworn.” Spencer, 281 Ga. at 534; see also U. S. Const. Amend. V; OCGA § 16-1-8 (a) (2).

Here, it is undisputed that the jury was not administered the petit oath prior to beginning deliberations and, indeed, was not sworn until it had almost rendered a verdict. We conclude that a belated oath of that nature rendered the jury “fatally infirm” and the trial a mere nullity Spencer, 281 Ga. at 534; see Slaughter, 100 Ga. at 330. The trial court, therefore, did not err in granting Desai a new trial.

Judgment affirmed.

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

       OCGA § 15-12-139 provides:
      In all criminal cases, the following oath shall be administered to the trial jury: “You shall well and truly try the issue formed upon this bill of indictment (or accusation) between the State of Georgia and (name of accused), who is charged with (here state the crime or offense), and a true verdict give according to the evidence. So help you God.” The judge or clerk shall administer the oath to the jurors.

       The State’s appeal is authorized by OCGA § 5-7-1 (a) (8) (“An appeal may be taken by and on behalf of the State of Georgia from the . . . state courts . . . [f]rom an order, decision, or judgment of a court granting a motion for new trial or an extraordinary motion for new trial.”).

       Desai was also charged with driving under the influence to the extent he was less safe in violation of OCGA § 40-6-391 (a) (1) and failure to maintain a lane.

       The jury convicted Desai of driving under the influence of alcohol in violation of OCGA § 40-6-391 (a) (5) and of failure to maintain a lane, but acquitted him of driving under the influence of alcohol in violation of OCGA § 40-6-391 (a) (1).

       Concerned about the validity of the trial, the trial court did not enter judgment on the jury’s verdict. Its subsequent grant of a new trial was authorized by OCGA § 5-5-40 (h) (“The court. . . shall be empowered to grant a new trial on its own motion within 30 days from entry of the judgment, except in criminal cases where the defendant was acquitted.”). In a thorough and well-reasoned order, the trial judge alternatively declared a mistrial and/or granted Desai’s motion for new trial after setting forth the errors that she had committed related to the petit jury oath and her investigation into the matter and holding that she could not conclude the errors were harmless.


author: Branch, Judge.

text:
    A16A0047.
    THE STATE v. RUCKER.
    (789 SE2d 281)
   Branch, Judge.

A trial court granted Charles Rucker’s motion to suppress a handgun recovered in a warrantless search of the camper where he lived while on probation. On appeal from that ruling, the State argues that the trial court erred when it granted the motion because Rucker had agreed that his residence could be searched without a warrant as a condition of his probation and because the search was not unreasonable. We conclude that under the circumstances of this search, which include Rucker’s valid waiver of his Fourth Amendment rights, neither the officers’ entry by invitation into the camper’s front room nor their seizure of the handgun they saw in plain view from that room can be said to be unreasonable. We therefore reverse.

When the facts material to a motion to suppress are disputed, it generally is for the trial judge to resolve those disputes and determine the material facts. This principle is a settled one, and this Court has identified three corollaries of the principle, which limit the scope of review in appeals from a grant or denial of a motion to suppress in which the trial court has made express findings of disputed facts. First, an appellate court generally must accept those findings unless they are clearly erroneous. Second, an appellate court must construe the evidentiary record in the light most favorable to the factual findings and judgment of the trial court. And third, an appellate court generally must limit its consideration of the disputed facts to those expressly found by the trial court.

Hughes v. State, 296 Ga. 744, 746 (1) (770 SE2d 636) (2015) (citations, punctuation and footnotes omitted).

Thus viewed in favor of the trial court’s factual findings and judgment, the record shows that on September 26, 2014, a narcotics investigator with the Jackson County Sheriff’s Office received an anonymous tip that Rucker was involved in the sale of illegal narcotics from his residence on Apple Valley Road. The investigator also learned that Rucker was on probation for possession of methamphetamine, a felony, and had signed a waiver of rights as a condition of his probation that provided as follows:

The undersigned does hereby agree and consent to waive his/her [Fjourth [Ajmendment rights, agreeing to wit: that his/her person, property, residence, vehicle(s), and papers may be searched without a warrant. Said consent being an agreed[-]upon condition of his/her probation.

Later on the same day, the three officers went to Rucker’s residence, a camper about 15 feet wide parked on an open lot. When the officers knocked on the back door of the camper, a woman asked who was there. When the officers identified themselves, the woman responded that she had to put on some clothes before she could come to the door. When the clothed woman appeared at the door moments later, the officers told her that they were investigating complaints of “possible narcotic activity in the area” and asked if they could “come inside and speak with her,” to which the woman agreed.

Once inside the living room, the officers confirmed by “glanc[ing] around the house” that Rucker was not present. From the same vantage point in the living room, however, one of the officers saw a black revolver on what appeared to be a nightstand in the adjoining bedroom. An officer estimated that the nightstand was “seven or eight feet” from the front door of the camper. When the woman told the officer that the gun did not belong to her but rather to Rucker, the officer entered the bedroom, took the revolver, and advised the woman that they were going to obtain a search warrant for a search of the entire camper. On hearing this, the woman said, “If you’re going to get a search warrant, we have this in here,” and handed the officers a marijuana grinder containing a small amount of methamphetamine and a marijuana pipe in the jar of the grinder. The woman also told the officers that she and Rucker were “staying together” in the camper, had been in “a relationship for a short amount of time,” and that she was sleeping in the same room as Rucker. After one of the officers obtained a search warrant, which they considered “err [ing] on the side of caution” in light of Rucker’s written waiver, the officers also seized empty butane cans, a propane torch, some hypodermic needles, and a saw. The officers then obtained an arrest warrant for Rucker, who was arrested the next day at a chemical plant nearby.

Rucker was charged with possession of methamphetamine and possession of a firearm by a convicted felon. At the hearing on Rucker’s motion to suppress, the parties stipulated that the drug possession charge had been dismissed for reasons unrelated to the validity of the search of the camper. After hearing testimony from all three officers, the trial court filed a written order including the following factual findings:

— The police officers “did not articulate any reasonable or good-faith suspicion for the search,” the only basis for which was an “unverified” and “anonymous tip.”
— The officers “could not provide any definitive reason for believing the home belonged to” Rucker and that they “had no information about the [woman] at the residence, including whether she lived there.”
— The “only evidence in the record” that the woman answering the door had authority to give consent was “the testimony that there was some clothing belonging to a [woman] inside the residence and that she may have been staying there.”

On the basis of these findings, the court held that notwithstanding Rucker’s written waiver, there was “no authority” for the search of his residence in his absence, and “no reliance” on that waiver was possible “because [police had] no reasonable good-faith suspicion” for their search. The court also held that even if the officers did have authority to search, their obtaining of the handgun was “so close in time and space to the[ir] illegal entry” that there were “no intervening circumstances” to attenuate the conclusion that the evidence was properly suppressed as fruit of the poisonous tree.

The State argues that the trial court erred as a matter of law when it concluded that the search of the camper was unreasonable and therefore illegal. We agree.

As a preliminary matter, we cannot accept the trial court’s clearly erroneous factual findings that the officers had “no information” about the woman who answered the door of Rucker’s camper or that the “only evidence in the record” supporting a conclusion that she had authority to give consent was testimony that she had clothing there and “may have been staying there.” The woman’s presence alone in the camper was some evidence of her authority to give consent, and the woman told the officers shortly after they entered, but after they had seen the handgun at issue, that she was involved in a relationship with Rucker and had been sharing a bedroom with him in the camper. We are aware that “we generally must presume that the absence of a finding of fact that would tend to undermine the conclusion of the trial court reflects a considered choice to reject the evidence offered to prove that fact[.]” Hughes, 296 Ga. at 747 (1). We may reject a clearly erroneous finding of fact, however, id. at 746 (1), and there is nothing in the record before us to contradict the woman’s account of her relationship with Rucker. Even if the trial court was entitled to disbelieve the officers’ testimony as to what the woman told them on this subject, then, the court was not entitled to mischar-acterize the record as not including such information — an error that weakens our confidence in the trial court’s ultimate legal conclusion. See State v. Porter, 288 Ga. 524, 526 (2) (a) (705 SE2d 636) (2011) (when a trial court “has clearly erred in some of its findings of fact and/or has misapplied the law to some degree, the deference owed the trial court’s ultimate ruling is diminished”).

Next, the law governing a warrantless entry into or search of a probationer’s residence is clear.

If a warrantless search has occurred pursuant to a special condition of probation, a reviewing court [must] analyze the facts and circumstances to determine whether the search in question was based upon reasonable grounds, balancing the government’s need to search against the invasion caused by the warrantless search.

Harrell v. State, 253 Ga. App. 440, 442 (2) (559 SE2d 155) (2002). “A search conducted pursuant to a special condition of probation need not be made as a routine incident of the probation supervision process. The rule is that there must be some conduct reasonably suggestive of criminal activity to trigger the search.” Rocco v. State, 267 Ga. App. 900, 903 (2) (601 SE2d 189) (2004) (punctuation and footnote omitted). Such a search “can be prompted by a good-faith suspicion, arising from routine police investigative work.” Id. Thus,

as a general rule, the police can search a probationer, who is subject to a waiver of Fourth Amendment rights as a special condition of probation, at any time, day or night, and with or without a warrant, provided there exists a reasonable or good-faith suspicion for search, that is, the police must not merely be acting in bad faith or in an arbitrary and capricious manner (such as searching to harass [a]probationer).

Hess v. State, 296 Ga. App. 300, 302 (2) (674 SE2d 362) (2009) (punctuation and footnote omitted; emphasis supplied); see also Brooks v. State, 292 Ga. App. 445, 449 (2) (664 SE2d 827) (2008).

Given that Rucker does not challenge the validity of his written waiver of his Fourth Amendment rights, the only issue before us is whether police acted in bad faith or in an arbitrary or capricious manner when, acting on the basis of an anonymous tip and with the knowledge that Rucker was on probation for a drug offense and had signed a valid waiver of his Fourth Amendment rights, they (a) knocked on the door of the camper, (b) entered the camper by the invitation of the woman who answered the door in Rucker’s absence, and (c) saw and seized the handgun at issue from the bedroom.

(a) Written Waiver, Anonymous Tip, and Approach to the Camper. It is undisputed that these officers received an anonymous tip that Rucker was selling narcotics at his residence and established that Rucker had waived his Fourth Amendment rights as a condition of his probation for selling methamphetamine. The officers acted on this information by going to Rucker’s residence in order to conduct what this Court has called a “permissible knock-and-talk procedure,” which did not in itself amount to a search or seizure. Herring v. State, 279 Ga. App. 162, 164 (630 SE2d 776) (2006) (officers were authorized to knock on a defendant’s house door after receiving an anonymous tip of drug activity at a house); see also Pickens v. State, 225 Ga. App. 792, 793 (484 SE2d 731) (1997) (police officer was authorized to knock on defendant’s door without an articulable suspicion in order to investigate a report of a crime). It is also undisputed that the camper was actually Rucker’s residence, and there is no evidence in the record before us that the officers used trickery to gain entrance to the camper or that their purpose in going there was to harass Rucker. See Herring, 279 Ga. App. at 164 (noting absence of evidence that officers gained access via consent by ruse or trickery).

This Court has repeatedly held, moreover, that a defendant’s status as a probationer for drug offenses and that defendant’s execution of a Fourth Amendment waiver as a special condition of probation are relevant to a determination whether an officer is acting reasonably or in good faith in initiating a search of the probationer’s residence. In Hess, 296 Ga. App. 300, for example, we held that police were authorized to act on an anonymous tip to search the room in his mother’s house where a defendant was living. Id. at 302 (2). Among the totality of circumstances that we held as supporting the trial court’s denial of the defendant’s motion to suppress were his probationary status for drug offenses and the mother’s consent to the search. Id.; see also Brooks, 292 Ga. App. at 449-450 (2) (when probationer had waived his Fourth Amendment rights and complained to police that he was being watched, a warrantless search of probationer pursuant to two anonymous tips was not unreasonable); Rocco, 267 Ga. App. at 903 (2) (affirming denial of a motion to suppress in the absence of any evidence that officers “acted in bad faith or in an arbitrary or capricious manner or solely to harass” a probationer when they went to his house to investigate a tip that he was “still involved in drug activity”); Prince v. State, 299 Ga. App. 164, 170 (3) (b) (682 SE2d 180) (2009) (officers pursuing an anonymous tip “were authorized to investigate whether [a probationer] possessed drugs while on probation pursuant to his valid [Fourth Amendment] waiver” and were therefore lawfully present at the side door of his residence).

In this case, evidence supporting the officers’ decision to investigate the anonymous tip included Rucker’s status as a probationer on drug charges and his execution of a valid waiver of his Fourth Amendment rights; the officers undertook an authorized knock-and-talk procedure that did not amount to a search; and there is no evidence in the record to justify a conclusion that they acted in bad faith or with the intent to harass Rucker when they did so. The trial court therefore erred when it concluded that the officers had no reasonable good faith suspicion. On the contrary, the officers acted properly when they engaged in a knock-and-talk at the door of Rucker’s camper.

(b) Consent. It is well established that when the State

“seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.”

Hall v. State, 239 Ga. 832, 832-833 (1) (238 SE2d 912) (1977) (emphasis supplied), quoting United States v. Matlock, 415 U. S. 164, 171 (94 SCt 988, 39 LE2d 242) (1974). “The State has the burden to establish that the consenting third party has such common authority.” Niles v. State, 325 Ga. App. 621, 623 (754 SE2d 406) (2014), citing Illinois v. Rodriguez, 497 U. S. 177, 181 (110 SCt 2793, 111 LE2d 148) (1990).

Common authority justifying third-party consent for police to enter the premises rests “on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.”

Niles, 325 Ga. App. at 622-623, quoting Matlock, 415 U. S. at 171, n. 7. But “even if the consenting third party did not in fact have authority to give consent to enter, where police reasonably believed that the third party had such authority, this constitutes apparent authority which validates the entry” Niles, 325 Ga. App. at 623, citing Rodriguez, 497 U. S. at 182.

“As with other factual determinations bearing upon search and seizure, determination of consent to enter must be judged against an objective standard: would the facts available to the officer at the moment warrant a man of reasonable caution in the belief that the consenting party had authority over the premises? If not, then warrantless entry without further inquiry is unlawful unless authority actually exists. But if so, the search is valid.”

Niles, 325 Ga. App. at 623, quoting Rodriguez, 497 U. S. at 188-189 (citation and punctuation omitted).

As we have already noted, this trial court mischaracterized the record when it found “no information” in the record concerning the woman’s status as a resident of the camper. As the trial court acknowledged, moreover, the woman’s claim that she was living there with Rucker, which was never disputed or disproved, distinguishes this case from Hunt v. State, 302 Ga. App. 578, 581 (691 SE2d 368) (2010). There, we reversed the denial of a homeowner’s motion to suppress on the ground that an occupant of the house told police that he did not live in the house such that he had no apparent authority to consent to a warrantless search. Id. at 580 (1).

Here, by contrast, and even assuming that the trial court discounted all the testimony tending to establish that the woman had actual common authority to grant access to the living room of the camper, there was no evidence to support a conclusion that these officers acted in an objectively unreasonable way when they concluded that the woman who invited them inside its common area had “common authority over or other sufficient relationship” with the property such that they could enter. Hall, 238 Ga. at 833 (1). The trial court therefore erred when it concluded that these officers made an illegal entry into the camper’s front room. See Ford v. State, 214 Ga. App. 284, 286-287 (3) (447 SE2d 334) (1994) (defendant’s sister had sufficient authority and control to consent to a search of her entire apartment, including the bedroom where the defendant was staying); Niles, 325 Ga. App. at 622, 623 (evidence that a defendant’s brother had “a key and access to the residence and use of a bedroom” was sufficient to establish that the resident had “common authority” over “common areas in the residence,” including the hallway from which police saw the contraband at issue); Luke v. State, 178 Ga. App. 614, 618 (344 SE2d 452) (1986) (affirming denial of motion to suppress when defendant’s wife “obviously possessed” authority to give consent to search residence she shared with husband).

(c) Plain View. It is also undisputed that the officers responded to the woman’s request to enter the camper only to the extent of entering its front room, “an area where a visitor would normally be received.” Wayne R. LaFave, Search and Seizure (5th ed. 2012), § 8.5 (e), vol. 4, p. 312, citing United States v. Turbyfill, 525 F2d 57, 59 (8th Cir. 1975) (no error in trial court’s finding that a house occupant’s acts of opening a door to police and stepping back from it “constituted an implied invitation to enter” the front room of the house, from which officers saw the contraband at issue in plain view). Because police were lawfully in this camper’s entry area pursuant to the woman’s invitation to enter that part of the camper, “they were lawfully in a position to see the contraband in plain view” in the bedroom. Niles, 325 Ga. App. at 624 (citation omitted); see also Prince, 299 Ga. App. at 170 (3) (b) (officers pursuing an anonymous tip were lawfully present at the side door of the residence of a probationer who had executed a valid Fourth Amendment waiver, from which position officers saw the contraband at issue in plain view).

In sum, “[although we owe substantial deference to the way in which the trial court resolved disputed questions of material fact, we owe no deference at all to the trial court with respect to questions of law, and instead, we must apply the law ourselves to the material facts.” Hughes, 296 Ga. at 750 (2) (citation omitted). As we have noted, there is nothing in the record before us to support a determination that officers were acting unreasonably or in an arbitrary, capricious, or harassing way when they followed up on an anonymous tip concerning a known drug offender and felon who had executed a valid waiver of his Fourth Amendment rights by going to the residence named in the tip and accepting an occupant’s invitation to enter the front room of that residence, from which they saw a handgun in the bedroom only seven or eight feet away. Thus the totality of the circumstances here, including the routine investigation of a tip concerning drug activity at a probationer’s house, gave these officers “a sufficiently reasonable or good-faith suspicion for the search so that the officers were not acting in an arbitrary, capricious, or harassing manner” as a matter of law. Hess, 296 Ga. App. at 302 (2). The trial court therefore erred when it granted the motion to suppress the handgun at issue here. See id. (affirming denial of motion to suppress when probationer’s mother gave consent to search his room); Brooks, 292 Ga. App. at 450 (2) (noting absence of evidence to support any finding of harassment by officers conducting a search of probationer’s residence); State v. West, 237 Ga.App. 185, 186-187 (514 SE2d 257) (1999) (reversing grant of motion to suppress when defendant’s mother had the authority to consent to a search of her home, including the bedroom she permitted her son to use for free); Ford, 214 Ga. App. at 286-287 (3) (affirming denial of motion to suppress when police reasonably believed that defendant’s sister had authority to give consent to search apartment bedroom where drugs were found).

Decided July 12, 2016.

J. Bradley Smith, District Attorney, Michael D. DeTardo, Assistant District Attorney, for appellant.

Barry E. King, for appellee.

Judgment reversed.

Ellington, P. J., and Mercier, J., concur in judgment only.

       See OCGA § 16-13-30 (c) (“Except as otherwise provided, any person who violates subsection (a) of this Code section with respect to a controlled substance in Schedule I or a narcotic drag in Schedule II shall be guilty of a felony.”).

       There is no dispute that the officers believed that the camper was Rucker’s residence and that it was in fact his residence.


author: Boggs, Judge.

text:
    A16A0120.
    A16A0121.
    TANNER MEDICAL CENTER, INC. et al. v. VEST NEWNAN, LLC et al.
    GEORGIA DEPARTMENT OF COMMUNITY HEALTH v. VEST NEWNAN, LLC et al.
    (789 SE2d 258)
   Boggs, Judge.

In these consolidated appeals, the Georgia Department of Community Health (“DCH”) denied Vest Newnan, LLC d/b/a Newnan Behavioral Hospital (“Vest”) a Certificate of Need (“CON”) to establish an inpatient psychiatric hospital. The trial court reversed the decision of DCH and ordered it to grant the CON, and this court granted applications for discretionary review filed by DCH and the hospitals that opposed the CON. For the reasons explained below, we reverse the trial court’s judgment and affirm the decision of DCH in both cases.

As our court explained in Palmyra Park Hosp. v. Phoebe Sumter Med. Center, 310 Ga. App. 487 (714 SE2d 71) (2011):

The CON program, OCGA § 31-6-40 et seq., establishes a comprehensive system of planning for the orderly development of adequate health care services throughout the state. OCGA § 31-6-1. DCH is the “lead planning agency for all health issues” in Georgia. OCGA § 31-2-1 (1). OCGA § 31-6-42 (a) specifies that DCH will issue a CON that is “consistent with” a list of general considerations, including the establishment of a need for the services. Under DCH regulations, “need” is based on several factors, including area population and the use of existing services. OCGA § 31-6-42 (a) (2); Ga. Comp. R. & Regs. r. 111-2-2-.24 (3) (b).
The administration of the CON program requires a particularly high level of expertise and specialization. The DCH rules promulgated to administer the program are detailed and lengthy. See, e.g., Ga. Comp. R. & Regs. r. 111-2-2-.07, which describes the review procedures for CON applications. Both the hospital seeking a CON and the hospitals opposing it gather and organize vast amounts of data, expert testimony, and other evidence which are presented to the agency staff, which then interprets and synthesizes the evidence and applies it to the agency rules. See OCGA § 31-6-43. The initial staff decision must be issued within a relatively short period of time, at most 150 days after the CON application is complete. OCGA § 31-6-43 (d), (i).
Further administrative review is also highly specialized. The hearing officer who reviews the initial DCH staff decision is one of five members of the CON Panel, all of whom are appointed by the Governor and are attorneys “who are familiar with the health care industry but who do not have a financial interest in or represent or have any compensation arrangement with any health care facility.” OCGA § 31-6-44 (a), (b). The commissioner of community health then reviews the hearing officer’s decision upon request and issues the final agency decision. OCGA § 31-6-44 (k), (m).

Id. at 488 and 491-492 (1).

OCGA § 31-6-40 (a) (1) provides: “On and after July 1, 2008, any new institutional health service shall be required to obtain a certificate of need pursuant to this chapter. New institutional health services include . . . [t]he construction, development, or other establishment of a new health care facility.” And a “health care facility” includes a hospital, which in turn is defined as

... an institution which is primarily engaged in providing to inpatients, . . . treatment, and care of injured, disabled, or sick persons or rehabilitation services for the rehabilitation of injured, disabled, or sick persons. Such term includes public, private, psychiatric, rehabilitative, geriatric, osteopathic, and other specialty hospitals.

OCGA § 31-6-2 (17) and (21).

The record reveals that in August 2013, Vest filed a CON application to establish a new freestanding 60-bed acute care psychiatric and substance abuse inpatient hospital in Coweta County, Georgia. After review, DCH denied the application. Vest timely appealed DCH’s denial with Coweta County and the City of Newnan intervening in the action on its behalf. Three other healthcare providers, who opposed Vest’s CON application (hereinafter “the opposing hospitals”), intervened in support of DCH.

Following a de novo administrative hearing during which over 20 witnesses testified, the hearing officer affirmed DCH’s denial of the CON in a 28-page decision. The hearing officer concluded that Vest did not show a need for a new psychiatric inpatient program, that it had “not met its burden of establishing that its proposed project’s costs and methods of construction are reasonable and adequate,” and that it had “not met its burden of establishing no adverse impact on similar existing and approved programs in the planning region . . . He concluded further that

the proposed project would constitute an unnecessary duplication of services, would have an unreasonable effect on payors, would not foster improvements or innovations, would not have a positive relationship to the existing health care delivery system, and is not reasonably consistent with the relevant goals and objectives of the State Health Plan. Thus, the proposed project is inconsistent with [Ga. Comp. R. & Regs., r.] 111-2-2-.09 (1) (a), (e), (h), and (m) and OCGA §§ 31-6-42 (a) (1), (5), (8), and (13).

Vest then appealed the hearing officer’s decision to the DCH Commissioner, who affirmed the hearing officer’s decision and adopted it in a final order. See OCGA § 31-6-44 (m) (“decision of the commissioner shall become the department’s final decision by operation of law”).

Following this third denial, Vest, Coweta County, and the City of Newnan petitioned for judicial review. The Coweta County Superior Court reversed DCH’s decision. The court concluded that the service-specific need rule is unconstitutional on its face, and that the “ ‘adverse impact’ and ‘relationship to the delivery system analysis’ rests upon the unconstitutional service-specific need rule.” The court concluded further that the manner in which DCH reviewed Vest’s application was arbitrary and capricious because the DCH reviewer did not take notes during his review or perform any need or adverse impact analysis, and because Vest had no notice “that construction costs were considered an issue.” DCH and the opposing hospitals appeal from this ruling. In Case No. A16A0120, the opposing hospitals appeal, and in Case No. A16A0121, DCH appeals.

We begin our analysis with the proper standard of review. “Neither the superior nor the appellate courts review DCH decisions de novo. Instead, the reviewing court determines whether ‘substantial evidence’ supports the agency’s findings of fact, and whether the conclusions of law drawn from those findings of fact are sound.” (Citations and punctuation omitted.) Palmyra Park Hosp., supra, 310 Ga. App. at 488. OCGA § 31-6-44.1 (a) provides:

... [I] n conducting such review, the court may reverse or modify the final decision only if substantial rights of the appellant have been prejudiced because the procedures followed by the department, the hearing officer, or the commissioner or the administrative findings, inferences, and conclusions contained in the final decision are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the department;
(3) Made upon unlawful procedures;
(4) Affected by other error of law;
(5) Not supported by substantial evidence, which shall mean that the record does not contain such relevant evidence as a reasonable mind might accept as adequate to support such findings, inferences, conclusions, or decisions, which such evidentiary standard shall be in excess of the “any evidence” standard contained in other statutory provisions; or
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

1. The opposing hospitals assert that the trial court erred in denying their motion to transfer venue. They contend that venue was improper in Coweta County and that the petition for judicial review should have been filed in Fulton County “In considering the trial court’s ruling on the motion to transfer venue, we affirm the trial court’s findings on disputed factual questions relating to venue if there is any evidence to support them. But we review de novo the trial court’s application of the law to undisputed facts.” (Citation and punctuation omitted.) Hamner v. Turpen, 319 Ga. App. 619, 620 (737 SE2d 721) (2013).

OCGA § 50-13-19 (b) provides in part:

Proceedings for review are instituted by filing a petition within 30 days after the service of the final decision of the agency or, if a rehearing is requested, within 30 days after the decision thereon. The petition may be filed in the Superior Court of Fulton County or in the superior court of the county of residence of the petitioner; or, if the petitioner is a corporation, the appeal may be brought in the Superior Court of Fulton County or in the superior court of the county where the petitioner maintains its principal place of doing business in this state[.\ . . .

(Emphasis supplied.) In denying the motion to transfer venue, the trial court concluded that Vest’s “principal place of business in this state” is Coweta County because it listed a Coweta County address on its CON application and submitted a letter of intent to purchase the property in Coweta County The court held in the alternative that “the presence of Coweta County and the City of Newnan is sufficient to make proper venue.” The opposing hospitals assert that Vest does not have a principal place of doing business in Georgia so venue lies in the Superior Court of Fulton County They argue that a letter of intent to purchase property is not “doing business,” and that even if venue is proper in Coweta County Superior Court for the City of Newnan and Coweta County, Vest is still required to file its petition for judicial review in Fulton County.

Vest submitted the affidavit of its vice president, who averred that Vest submitted an offer to purchase an old hospital in Coweta County and listed the address for the old hospital as its address on the CON application, that Vest’s principal place of doing business in Georgia is in Coweta County, and that its “only business dealings in Georgia have been in Coweta County”

OCGA § 50-13-19 (b) does not define “principal place of doing business in this state.” But this phrase is distinguishable from “principal place of business” as in OCGA § 14-2-510 (b) (4) or as defined in Black’s Law Dictionary (9th ed. 2009) (“The place of a corporation’s chief executive offices, which is typically viewed as the ‘nerve center’ ”). The legislature has provided that venue for the purposes of a corporation seeking judicial review under the Georgia Administrative Procedure Act may be where it “maintains its principal place of doing business in this state.” (Emphasis supplied.) See OCGA§ 50-13-19 (b).

When we consider the meaning of a statute, we must presume that the General Assembly meant what it said and said what it meant. To that end, we must afford the statutory text its “plain and ordinary meaning,” we must view the statutory text in the context in which it appears, and we must read the statutory text in its most natural and reasonable way, as an ordinary speaker of the English language would.

(Citations and punctuation omitted.) Deal v. Coleman, 294 Ga. 170, 172 (1) (a) (751 SE2d 337) (2013). Black’s Law Dictionary (9th ed. 2009), defines “doing business” as “[t]he act of engaging in business activities.” In this case, Vest began the process of purchasing property and applied for a CON to develop a psychiatric hospital in Coweta County It therefore engaged in business activities such that venue was proper there. The trial court accordingly did not err in its denial of the motion to transfer venue. See, e.g., Bd. of Regents of the Univ. Sys. of Ga. v. Jordan, 335 Ga. App. 703, 703-704 (1) (782 SE2d 809) (2016) (trial court’s denial of motion to transfer venue proper under plain reading of statutory venue provision).

2. The appellants argue that the trial court erred in concluding that DCH reviewed Vest’s application in an arbitrary and capricious manner, and that it substituted its judgment for that of DCH. “If arbitrary and capricious action is alleged the reviewing court must determine whether a rational basis exists for the decision made. This is a question of law.” (Citations and punctuation omitted.) Northeast Ga. Med. Center v. Winder HMA, 303 Ga. App. 50, 58 (2) (b) (693 SE2d 110) (2010). “Arbitrary” has been defined as “fixed or done capriciously or at pleasure; without adequate determining principle; not founded in the nature of things; non-rational; not done or acting according to reason or judgment; depending on the will alone; absolutely in power; capriciously; tyrannical; despotic.” (Citation and punctuation omitted.) Id.

(a) The court concluded that because the DCH reviewer did not take notes during his review of the CON application, and did not perform his own need or adverse impact analysis, DCH’s actions were “inconsistent with a deliberative health planning process, effectively allowing [DCH] to evade objective review of its action.” But we find no requirement in the statutory framework of the CON program or elsewhere in the DCH rules requiring the reviewer to take notes or perform his own need and adverse impact analysis. The reviewer explained that he was not trained to take notes during the review process but was instead trained to use highlighter pens and “sticky tabs” as “[y]ou go through the application.” Under these circumstances, we cannot say as a matter of law that DCH’s review of the CON application was “non-rational” or “not done or acting according to reason or judgment.” See, e.g., Northeast Ga. Med. Center, supra, 303 Ga. App. at 60 (2) (b) (where DCH had rational basis for grant, superior court erred in concluding otherwise).The trial court therefore erred in concluding that the procedure employed by DCH was arbitrary and capricious on this ground.

(b) The court also concluded that DCH reviewed the CON application in an arbitrary and capricious manner because DCH did not provide Vest notice of potential issues regarding architectural or construction costs on the sixty-day meeting agenda. Ga. Comp. R. & Regs., r. 111-2-2-.07 (1) (f) provides:

If during the first two (2) months of the review of the application the Department finds there are factors that create a potential for denial of the application, the Department shall, on or before the sixtieth (60th) day of the review period, provide the applicant an opportunity to meet with the Department. The problems with the application will be described and an opportunity offered to amend or to withdraw the application or to submit additional information. The sixty (60) day meeting with the applicant(s) is restricted to the Department and the applicant(s). Parties opposing an application(s) may not attend or participate in an applicant sixty (60) day meeting. Such addition[al] information must be submitted prior to the seventy-fifth (75th) day of the review period. . . .

Therefore only if the DCH finds problems with the application during the first two months of review is it required to describe those problems and allow the applicant an opportunity to submit additional information. There has been no showing here that DCH failed to comply with this requirement. Neither the trial court nor the parties point to evidence that DCH, within the first 60 days of review, made a finding regarding potential problems with architectural and construction costs and failed to notify Vest. Moreover, even if Vest was not put on notice of this issue until DCH’s initial decision, Vest had the full opportunity to submit evidence on this issue in the de novo hearing before the appeal panel, and the hearing officer addressed the arguments raised by the parties concerning construction costs in its written decision affirming DCH’s initial CON denial. The trial court therefore also erred in concluding that DCH acted arbitrarily and capriciously on this ground.

3. The appellants argue that, notwithstanding the trial court’s conclusion that the service-specific need rule is unconstitutional, there were other independent grounds to deny Vest’s application. The court found that adverse impact “rests upon the unconstitutional service-specific need rule,” and therefore DCH’s adverse impact and relationship-to-the-delivery-system conclusions must also be reversed because they are “inextricably tied to need methodologies.”

OCGA § 31-6-42 (a) (8), the relationship-to-the-delivery-system consideration, provides:

The written findings of fact and decision, with respect to the department’s grant or denial of a certificate of need, shall be based on the applicable considerations specified in this Code section and reasonable rules promulgatedby the department interpretive thereof. The department shall issue a certificate of need to each applicant whose application is consistent with the following considerations and such rules deemed applicable to a project. ... (8) The proposed new institutional health service has a positive relationship to the existing health care delivery system in the service area[.]

Similarly, Ga. Comp. R. & Regs., r. 111-2-2-.09 (1) (h) provides:

The burden of proof for producing information and evidence that an application is consistent with the applicable considerations and review policies, which follow, shall be on the applicant. In conducting review and making findings for Certificates of Need, the Department will consider whether: . . . (h) the proposed new institutional health service has a positive relationship to the existing health care delivery system in the service area.

Ga. Comp. R. & Regs., r. 111-2-2-.26 (3) (d), the “adverse impact” consideration, provides in part: “An applicant for a new or expanded psychiatric and/or substance abuse inpatient program(s) shall document that the establishment or expansion of its program(s) will not have an adverse impact on similar existing and approved programs in its planning region.” These two considerations are independent of the consideration of need. See OCGA § 31-6-42 (a) (2) and Ga. Comp. R. & Regs., rr. 111-2-2-.09 (1) (b), 111-2-2-.26 (3) (a). And OCGA § 31-6-42 (a) lists 15 other considerations in addition to need and relationship to the existing health care delivery system.

The trial court cites only to the hearing officer’s decision to conclude that adverse impact and relationship to the delivery system are “inextricably tied to need methodologies.” Specifically, it cites the statement that Vest’s proposed service area population is too small to generate sufficient incremental growth to support a new 60-bed hospital, “its projected patient volume largely is dependent on the redirection of admissions from existing providers . . . [it] must take 52.5% of its adult admissions . . . and 77.1% of its pediatric admissions . . . from existing providers to attain its projected level of utilization.” But the fact that Vest’s need calculations may have been considered in evaluating whether there would be an adverse impact on other providers does not automatically invalidate the adverse impact consideration. The trial court found that the need rule was unconstitutionally vague because it “does not provide persons of common intelligence a common understanding as to how [DCH] evaluates need.” The court found that the vagueness is derived from the failure of the rule to provide the applicant with the methodology that DCH will use to assess need, not that the analysis of need shown by Vest was itself inadequate. So even if the need rule is unconstitutionally vague for the reason given by the trial court, the facts supporting Vest’s claim of need do not invalidate DCH’s use of those facts in consideration of whether there would be an adverse impact. In other words, simply because one fact can play into more than one of the many considerations under OCGA § 31-6-42 (a), does not mean that those other considerations are conflated or unconstitutional by association.

Moreover, even if the particular conclusion of the hearing officer pointed out by the trial court could somehow be construed as an improper incorporation of a need analysis into the analysis of adverse impact, the hearing officer also made other findings in support of its adverse impact conclusion: Vest’s impact analysis is based on an unrealistic projection that all of its patients will originate solely from the proposed service area, an unrealistic projection that the volume of service area psychiatric and substance abuse cases will nearly double in the next few years alone, and an overinflated market share. The hearing officer found that “[a] s a result, the likely adverse impact on existing providers, including Willowbrooke, is understated. Further [Vestj’s adverse impact analysis failed to account for Tanner’s additional 30 pediatric beds that will be brought online by the end of 2014.” The hearing officer concluded that Vest

has not met its burden of establishing no adverse impact on similar existing and approved programs in its planning region, specifically Willowbrooke’s existing and soon-to-be expanded inpatient services. Thus, the proposed project is inconsistent with DCH Rule 111-2-2-.26 (3) (d). The failure to demonstrate no adverse impact also renders the project inconsistent with DCH Rule 111-2-2-.09 (1) (h) and OCGA § 31-6-42 (a) (8).

“A reviewing court may not substitute its judgment as to the weight of evidence on questions of fact.” Hosp. Auth. of Gwinnett County v. State Health Planning Agency, 211 Ga. App. 407, 410 (4) (438 SE2d 912) (1993). Here the trial court erred in concluding that DCH’s adverse impact analysis was “inextricably tied to need methodologies.” And because the trial court failed to consider whether the CON could be properly denied for Vest’s failure to establish no adverse impact, we must do so here.

“[OJur duty is not to review whether the record supports the superior court’s decision but whether the record supports the final decision of the administrative agency” (Citation and punctuation omitted.) Northeast Ga. Med. Center, supra, 303 Ga. App. at 55 (2). And in doing so, the appropriate standard is whether there was substantial evidence to support the agency decision. Id. at 55 (2) (a). “[W]e neither reweigh the evidence, perform a de novo review, nor substitute our own judgment for that of the hearing officer as to the weight of the evidence.” (Citations and punctuation omitted.) Id. at 55-56 (2) (a).

The record reveals that DCH’s conclusion that Vest did not meet its burden of establishing no adverse impact on similar existing programs is supported by substantial evidence, in particular, expert testimony and exhibits supporting DCH’s conclusions regarding Vest’s unrealistic projections, overinflated market share, and failure to account for Tanner’s additional 30 pediatric beds. In light of the record supporting DCH’s final decision, we must affirm its denial of the CON. See, e.g., State Health Planning Agency v. Cribb Indus., 204 Ga. App. 285, 287-288 (2), 288 (3) (419 SE2d 123) (1992).

Decided July 12, 2016.

Baker & Hostetler, Kathlynn B. Polvino, Robert M. Rozier; Smith Moore Leatherwood, LLP, Lawrence J. Myers; Nelson, Mullins, Riley & Scarborough, AdrienneE. Marling, for appellants (caseno. A16A0120).

Samuel S. Olens, Attorney General, Isaac Byrd, Deputy Attorney General, Daniel S. Walsh, Senior Assistant Attorney General, La Roñica K. Lightfoot, Assistant Attorney General, for appellant (case no. A16A0121).

Arnall Golden Gregory, Jason E. Bring, J. Ryan Hood, Marc L. Peterzell, for appellees.

4. In light of our reversal of the trial court’s judgment and affirmance of DCH’s denial of the CON on other grounds, we make no decision here with regard to the trial court’s ruling that the need rule, Ga. Comp. R. & Regs., r. 111-2-2-.26 (3) (a), is unconstitutional. This and the remaining enumerations in both appeals are rendered moot by our holdings in Divisions 2 and 3.

Judgments reversed.

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

       Tanner Medical Center, Inc., UHS of Anchor, LP, and RiverWoods Behavioral Health, LLC,

       The review process is limited to 120 days unless the time is extended, see Ga. Comp. R. & Regs., r. 111-2-2-.07 (1) (b) and (d).

       The initial decision stated that “it is not clear from the documents provided by the applicant that all the associated costs for each specialized service have been properly accounted for in the renovation of its proposed site.”


text:
    A16A0161.
    LOVELESS v. THE STATE.
    (789 SE2d 244)
   Rickman, Judge.

Following a stipulated bench trial, Gary Matthews Loveless was convicted of trafficking in methamphetamine, driving without a license, giving false information to a law enforcement officer, and obstruction of an officer. On appeal, he contends that the trial court erred by failing to suppress evidence unlawfully seized following a traffic stop based upon a check of State-maintained computerized records. He also contends that the trial court erred in failing to suppress the evidence because the seizure was based on personal information protected by OCGA § 40-5-2 and by the federal Driver’s Privacy Protection Act of 1994, 18 USC § 2721 et seq. (the “DPPA”). We affirm.

On appeal from a denial of a motion to suppress, this Court must construe the evidence most favorably to uphold the ruling of the trial court. Furthermore, the trial court’s application of law to facts which are undisputed is subject to de novo review. The trial court’s findings should not be disturbed if there is any evidence to support them, and its credibility determinations must be accepted unless clearly erroneous.

(Citations and punctuation omitted.) Spence v. State, 295 Ga. App. 583 (672 SE2d 538) (2009).

The undisputed facts from the motion to suppress hearing show that on January 19, 2015, an officer with the Cobb County Police Department was patrolling the parking lot of a hotel on Powers Ferry Road. He saw Loveless and Beverly Baird (Loveless’s co-defendant) walking from the hotel to two cars parked near where the officer was parked. Loveless walked to a maroon Toyota Scion, and Baird walked to a tan Ford Explorer. The officer ran the tags on both vehicles and learned that Baird was a co-owner of the Scion and that the Explorer was registered to Loveless. The officer also ran a driver’s license check on the owner of the Explorer, thereby obtaining the status of Loveless’s driver’s license and Loveless’s driver’s license photograph. As a result of these checks, the officer learned that Loveless’s driver’s license was suspended and that he was wanted for a parole violation on a methamphetamine trafficking charge.

The officer followed the Toyota Scion driven by Loveless out of the parking lot and onto Powers Ferry Road, where he initiated a traffic stop after observing a cracked taillight on the vehicle. The crack in the taillight was approximately three inches long and there was also a hole in the lens. The officer approached the vehicle and informed Loveless that he had pulled him over because of the crack in the taillight. When the officer asked for his driver’s license, Loveless said that he did not have it with him, and provided a false name (Christopher Bailey) and date of birth. The officer ran a GCIC search on the name and date of birth provided by Loveless, but found no record of any such person ever being licensed in the State of Georgia. When the officer asked Loveless his name a second time, he again provided the same answer, but had trouble spelling the first name.

At this point, the officer asked Loveless to exit the vehicle and informed him that it was a crime to give false information to an officer. The officer then handcuffed Loveless and asked him if he had heard the name Gary Loveless, to which Loveless replied, “That’s my name.” After placing Loveless in handcuffs, the officer searched Loveless and emptied his pockets. In his pockets, Loveless had a wallet containing $2,200 in cash and a glass pipe containing methamphetamine residue. While the officer was unlocking his patrol car, Loveless started running away, but was apprehended and placed into the back of the patrol car. The Scion was ultimately searched for drugs, and a trafficking amount of methamphetamine was found inside the vehicle.

Loveless filed a motion to suppress the evidence seized at the traffic stop, alleging that the stop was illegal and that the searches of his person and of “his motor vehicle” were both unconstitutional. Following a hearing, the trial court denied the motion. At trial, the parties stipulated to the facts set forth in the trial court’s order and the facts that, after a drug dog responded to the scene, Loveless told the officers that the methamphetamine was located “in a little grocery sack under one of my shirts; backseat, back floorboard” of the vehicle, and the drug dog alerted to a grocery bag in that location. The material inside the bag weighed 287.98 grams, and 220.11 grams of that material tested positive for methamphetamine. The trial court sentenced Loveless to a life term, to serve 25 years in confinement, and the remainder on probation. Loveless appeals the denial of his motion to suppress and his conviction.

1. Loveless contends that the trial court erred by denying his motion to suppress evidence that was unlawfully seized, without a warrant, following a traffic stop that was not supported by observable facts and was undertaken only after the officer accessed “computer stored information” about the Explorer’s license plate and Loveless’s driver’s license.

“All that is required to initiate a traffic stop is specific and articulable facts that provide a reasonable suspicion that the individual being stopped is engaged in criminal activity” (Citation and punctuation omitted.) Valentine v. State, 323 Ga. App. 761, 763 (1) (748 SE2d 122) (2013). “Under the U. S. Constitution, a traffic stop is reasonable where the police have probable cause to believe that a traffic violation has occurred.” (Punctuation omitted.) Maxwell v. State, 249 Ga. App. 747, 748 (549 SE2d 534) (2001), citing Whren v. United States, 517 U. S. 806 (116 SCt 1769, 135 LE2d 89) (1996). And the constitutional reasonableness of a traffic stop does not depend on the “actual motivations of the individual officers involved” as “[s]ub-jective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.” Whren, 517 U. S. at 813 (II) (A); see Valentine, 323 Ga. App. at 763-764 (1) (suppression motion arguing that traffic stop was pretextual necessarily fails where officer observes the motorist committing even a minor traffic violation).

Here, the officer testified that when he followed the Scion driven by Loveless, he observed a three-inch crack in the taillight and a hole in the lens. Pursuant to OCGA § 40-8-26 (d), “[a]ll lenses on brake lights and signal devices shall be maintained in good repair and shall meet manufacturers’ specifications.” And it “is a misdemeanor for any person to drive or move ... on any street or highway any vehicle . . . [w]hich does not contain those parts or is not at all times equipped with such lights and other equipment in proper condition and adjustment as required in this chapter. . . OCGA § 40-8-7 (b) (2). The officer’s observation of even this minor traffic violation constituted a valid basis for the stop. See Valentine, 323 Ga. App. at 763-764 (1); Parker v. State, 307 Ga. App. 61, 62 (1) (704 SE2d 438) (2010); Quick v. State, 279 Ga. App. 835, 837 (632 SE2d 742) (2006). And “[i]n light of the officer’s testimony, the trial court was authorized to find that the traffic stop was justified by specific articulable facts giving the officer a reasonable suspicion of a traffic violation. . ." See Parker, 307 Ga. App. at 62 (1).

After he had been stopped, Loveless gave the officer a false name and date of birth, in violation of OCGA § 16-10-25. This violation provided the officer with probable cause to arrest Loveless. See Smith v. State, 294 Ga. App. 761, 763 (669 SE2d 735) (2008) (when car passenger gave false identifying information to officers during traffic stop for tag light violation, he provided them with probable cause for his arrest); State v. Roberson, 165 Ga. App. 727, 730 (2) (302 SE2d 591) (1983) (when officer asked car passenger his name and a response known to the officer to be false was given, officer was authorized to arrest passenger for violating OCGA § 16-10-25). Once Loveless was placed under arrest, the officers “were authorized to search his person for weapons or contraband incident to that arrest.” Polk v. State, 200 Ga. App. 17, 18 (406 SE2d 548) (1991). The officers were also entitled to search the vehicle’s passenger compartment incident to Loveless’s arrest, “and the contraband found in the course of that search was admissible in evidence.” Garcia v. State, 293 Ga. App. 422, 425 (1) (667 SE2d 205) (2008).

2. Given our holding in Division 1, we need not address Loveless’s additional claims that the evidence should have been suppressed because its seizure was based on information protected by OCGA § 40-5-2 (b) and the DPPA.

Judgment affirmed.

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

Decided July 12, 2016.

Reid G. Kennedy, for appellant.

D. Victor Reynolds, District Attorney, John R. Edwards, Shepard R. Orlow, Assistant District Attorneys, for appellee.

Forrest K. Shealy, amicus curiae.

       Prior to observing Loveless and Baird, the officer had checked the license plates of some of the other vehicles in the parking lot.

       OCGA § 16-10-25 provides: “A person who gives afalse name, address, or date of birth to a law enforcement officer in the lawful discharge of his official duties with the intent of misleading the officer as to his identity or birthdate is guilty of a misdemeanor.”


author: McFADDEN, Judge.

text:
    A16A0327.
    HOWELL et al. v. BEAULY, LLC.
    (789 SE2d 214)
   McFADDEN, Judge.

This appeal arises from an order dismissing an action that had been transferred to the superior court from magistrate court. The dismissal was based on a purported violation, in the magistrate court proceedings, of the Georgia Civil Practice Act. But because the Civil Practice Act does not apply to magistrate court proceedings, we reverse.

On September 11, 2014, Beauly, LLC filed a dispossessory action against Annette Howell and others in the Magistrate Court of DeKalb County On September 22, 2014, Howell and others (hereinafter, collectively “Howell”) filed an answer and counterclaim, seeking to quiet title and requesting damages in excess of $2 million for claims of, among other things, fraud, trespass, and unjust enrichment. The counterclaim also sought punitive damages of more than $6 million. On September 22, Howell also filed a motion seeking to dismiss the dispossessory action and to transfer the case to superior court pursuant to OCGA § 15-10-45 (d), which provides that if the amount of a counterclaim exceeds the jurisdictional limits of magistrate court, the case should be transferred to a court with jurisdiction over the counterclaim amount. The magistrate court notified the parties that the case was set for trial on September 29, 2014.

On September 25, 2014, Beauly’s attorney filed a voluntary dismissal of its dispossessory action. On September 29, 2014, the original trial date, the magistrate court issued another notice of “trial/hearing” for October 8, 2014. That written notice bears what appear to be the signatures of Howell and another defendant, as well as the signature of Beauly’s attorney On October 8, the magistrate court issued an order stating that the hearing had been held and transferring the case to superior court.

On October 29, 2014, the case was docketed in superior court. On January 27, 2015, Howell served discovery requests on Beauly Beauly filed responses and objections to the discovery requests on March 2, 2015. On June 23, 2015, Beauly filed a brief in support of a motion for summary judgment and also moved to reinstate its dis-possessory action. In that brief, Beauly acknowledged that during the magistrate court hearing, Howell had moved to have the counterclaim transferred to the superior court and that the magistrate court had granted that transfer motion. On August 3, 2015, the superior court dismissed Howell’s action, finding that Howell had failed to object to Beauly’s voluntary dismissal of its dispossessory action in magistrate court on September 25, and therefore, Beauly’s voluntary dismissal also resulted in the dismissal of Howell’s counterclaim pursuant to OCGA § 9-11-41. Howell appeals.

1. OCGA § 9-11-41.

Howell asserts that the trial court erred in dismissing the counterclaim based on an alleged violation of the requirements of OCGA § 9-11-41. We agree.

As part of the Georgia Civil Practice Act,

OCGA § 9-11-41 (a) (1) provides that a plaintiff may voluntarily dismiss his case without order or permission of the court by filing (1) a written notice of dismissal at any time before the first witness is sworn or (2) a stipulation of dismissal signed by all parties who have appeared in the action. . . . Furthermore, if a counterclaim has been pleaded by a defendant prior to the service upon him or her of the plaintiff’s motion to dismiss, the action shall not be dismissed against the defendant’s objection unless the counterclaim can remain pending for independent adjudication by the court. Thus, although a plaintiff may voluntarily dismiss his complaint, when a defendant has filed a counterclaim or defensive pleadings seeking affirmative or other relief, dismissal of a plaintiff’s complaint requires more scrutiny. Merely filing a counterclaim is insufficient to prevent the dismissal of the plaintiff’s complaint and the counterclaim. Instead, a defendant must object to the plaintiff’s voluntary dismissal, thereby providing notice to the plaintiff that he intends to pursue his counterclaim. A defendant’s failure to object to the plaintiff’s dismissal will result in the dismissal of both the plaintiff’s complaint and the defendant’s counterclaim.

Reed v. Reed, 295 Ga. 574, 575-576 (1) (761 SE2d 326) (2014) (citations and punctuation omitted). See also Mize v. First Citizens Bank & Trust Co., 297 Ga. App. 6, 7-8 (676 SE2d 402) (2009) (defendant must object to plaintiff’s voluntary dismissal, pursuant to OCGA § 9-11-41, to preserve a counterclaim capable of independent adjudication and to provide plaintiff with notice that it intends to pursue the counterclaim).

Relying on these provisions of OCGA § 9-11-41, the trial court found that Howell had failed to make the required objection to Beauly’s voluntary dismissal of its magistrate court dispossessory action on September 25, 2014, and that such failure resulted in the dismissal of Howell’s counterclaim to that action. However, the Civil Practice Act does not apply to magistrate court proceedings. Target Nat. Bank v. Luffman, 324 Ga. App. 442, 444 (750 SE2d 750) (2013). Except for circumstances not found in this case, “proceedings in the magistrate court shall not be subject to Chapter 11 of Title 9, the ‘Georgia Civil Practice Act.’” OCGA § 15-10-42. Rather, OCGA § 15-10-40 expressly provides: “This article shall govern civil proceedings in the magistrate court.” (Emphasis supplied.) Nevertheless, even though magistrate courts have their own procedural codes and are not required to follow the provisions of the Civil Practice Act, they are permitted to choose to follow that Act “or any other appropriate rules and regulations relating to pleading, practice, and procedure, where to do so would ‘administer justice’ under OCGA § 15-10-44.” Howe v. Roberts, 259 Ga. 617, 619 (1) (385 SE2d 276) (1989).

In the instant case, however, there is nothing in the record to indicate that the magistrate court opted to follow the Civil Practice Act. On the contrary, it appears from the record that the magistrate court proceedings were conducted pursuant to the statutory articles governing magistrate courts. Amongst other things, Howell filed the counterclaim to Beauly’s action as authorized by OCGA § 15-10-45; Beauly filed a voluntary dismissal of its action in accord with OCGA § 15-10-41 (b) (2); Howell moved to transfer the counterclaim to superior court pursuant to OCGA § 15-10-45 (d); and the trial courtgranted that motion, apparently because, as indicated in Howell’s transfer motion, the amount of the counterclaim exceeded the $15,000 jurisdictional limit of the magistrate court. See OCGA §§ 15-10-2 (5); 15-10-45 (d); see also Jones v. Equipment King Intl., 287 Ga. App. 867 (652 SE2d 811) (2007) (case transferred to superior court because counterclaim beyond magistrate court’s jurisdiction). Under these circumstances, “the superior court [was] not authorized to retroactively apply the provisions of the Civil Practice Act to the supposed actions of the magistrate court, when no evidence appears in the record to show that the Act was relied on by the magistrate in any respect.” Target Nat. Bank, supra (citation, footnote and emphasis omitted). Accordingly, the superior court erred in finding that under the Civil Practice Act, in particular OCGA § 9-11-41, the counterclaim stood dismissed.

Moreover, even if the Civil Practice Act could be applied to the proceedings in this case, the trial court’s analysis was flawed. “[A] defendant may sometimes preserve his counterclaim through actions short of a formal objection to a voluntary dismissal of the main claim.” Reed, supra at 576 (citation omitted). Here, the trial court found that Howell had not so preserved the counterclaim because Howell had not taken any action on the counterclaim until four months after the voluntary dismissal, when the first discovery requests were served in January 2015. But that finding is incorrect. The record shows that prior to the voluntary dismissal, Howell had moved to transfer the counterclaim to superior court; that shortly after the dismissal, Howell continued to pursue the motion to transfer the counterclaim; that a magistrate court hearing on that transfer motion was held approximately two weeks after the voluntary dismissal; that the magistrate court granted the transfer motion at that hearing; and that approximately a month after the voluntary dismissal of the main claim, the transferred counterclaim was docketed in the superior court. Therefore, Howell

clearly put [Beauly] on notice that [the defendants] intended to pursue [their] counterclaim and did not consent to or acquiesce in having [the] counterclaim dismissed. Our finding comports with our instruction that the counterclaim limitation on voluntary dismissal should be liberally construed so as to do substantial justice.

Reed, supra (citations and punctuation omitted).

For the foregoing reasons, the trial court erred in dismissing Howell’s superior court action. Accordingly, we reverse.

2. Additional enumeration of error.

In a separate enumeration, Howell contends that the trial court erred in denying her motion to dismiss Beauly’s claim with prejudice. Pretermitting the fact that the case transferred to the superior court was Howell’s counterclaim, not Beauly’s previously dismissed main claim, is the fact that the trial court made no such ruling. The superior court’s final order dismissed Howell’s transferred action, but did not deny any motion by Howell. 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.” Campbell v. Ailion, 338 Ga. App. 382, 385, n. 3 (790 SE2d 68) (2016) (citation and punctuation omitted). In the absence of such a specific ruling, there is nothing for us to review. See Post Realty Assoc. v. DSL Assoc., 228 Ga. App. 678, 681 (2) (492 SE2d 600) (1997) (as a court for correction of errors below, absent a ruling by the trial court, this court has nothing to review).

Decided July 12, 2016.

Annette C. Howell, pro se.

Delvin A. Clanton, pro se.

Tony L. Ware, pro se.

Quirk & Quirk, Joseph P. Farrell, for appellee.

Judgment reversed.

Miller, P. J., and McMillian, J., concur.