text:
    A16A1942.
    DURON v. THE STATE.
    (796 SE2d 310)
   Andrews, Judge.

Following Carlos Duron’s convictions for trafficking in cocaine (OCGA § 16-13-31 (a) (1)) and conspiracy (trafficking in cocaine) (OCGA § 16-13-33), the Superior Court of Gwinnett County sentenced Duron to two concurrent terms of life in prison. See OCGA § 16-13-30 (d). Duron appeals, arguing that the trial court imposed a void sentence because the maximum sentence permitted for Duron’s convictions was 30 years in confinement. See OCGA § 16-13-31 (h). For the reasons that follow, we affirm.

In July 2010, following a jury trial, the Superior Court of Gwin-nett County entered a judgment of conviction against Duron for trafficking in cocaine (“2010 trafficking conviction”) which Duron appealed to this Court. See Duron v. State, 325 Ga. App. 41 (752 SE2d 112) (2013) (“Duron I”). In December 2011, while Duron’s motion for new trial remained pending in Duron I, a second Gwinnett County jury found Duron guilty of trafficking in cocaine (“2011 trafficking conviction”) and conspiracy (trafficking in cocaine). During sentencing for the 2011 convictions, the State argued that Duron’s 2010 trafficking conviction authorized a life sentence for Duron on the 2011 trafficking conviction. See OCGA § 16-13-30 (d). The trial court sentenced Duron to life in prison on both the trafficking and the conspiracy convictions to be served concurrently with the sentence imposed in Duron I.

In September 2015, Duron filed a motion to correct a void sentence arguing that his 2010 trafficking conviction was not yet final at the time he was sentenced for the 2011 trafficking conviction and that, as a result, the 2010 trafficking conviction could not be used to enhance his sentence on the 2011 trafficking conviction. The trial court granted Duron’s motion, vacated Duron’s sentence, and scheduled a resentencing hearing. Following Duron’s resentencing hearing, the trial court again sentenced Duron to two concurrent terms of life in prison. This appeal followed.

OCGA § 16-13-30 (b) makes it unlawful for any person “to manufacture, deliver, distribute, dispense, administer, sell, or possess with intent to distribute any controlled substance.” See also OCGA § 16-13-31 (a) (1) (trafficking in cocaine). OCGA § 16-13-31 (h) provides that “[a]ny person who violates any provision of [OCGA § 16-13-31] shall be punished as provided for in the applicable mandatory minimum punishment and for not more than 30 years of imprisonment. . . However, “[u]pon conviction of a second or subsequent offense, [the defendant] shall be imprisoned for not less than ten years nor more than 40 years or life imprisonment.” OCGA § 16-13-30 (d). Duron contends that his 2010 trafficking conviction pursuant to OCGA § 16-13-31 does not qualify as “an actual conviction under [OCGA §] 16-13-30 (b) to trigger the recidivist provisions of [OCGA §] 16-13-30 (d)” and enhance his sentence for the 2011 trafficking conviction.

We resolved this question adversely to Duron in Gilbert v. State, 208 Ga. App. 258, 262 (1) (430 SE2d 391) (1993). Relying upon OCGA § 16-13-30 (d), we affirmed a defendant’s life sentence for possession of cocaine with intent to distribute following his prior conviction for trafficking in cocaine. Id. at 262 (1). We noted that

OCGA § 16-13-30 (b) prohibits the manufacture, delivery, distribution, dispensing, administering, selling, or possession with intent to distribute any amount of a controlled substance and provides a greater penalty than (a). OCGA § 16-13-31 aims at a yet more serious offense and calls it “trafficking.” The penalties are still greater. There are a number of ways the legislature might have defined trafficking. The definition might have been given in terms of dealing in a large number of drug transactions. Perhaps the amount of money involved could have been the test. Instead, the amount of controlled substance was chosen as the basis for distinguishing the crime of trafficking from the somewhat less serious crimes.

(Emphasis omitted.) Id. at 260-261 (1) (quoting Bassett v. Lemacks, 258 Ga. 367, 370 (370 SE2d 146) (1988)). Moreover, we observed:

[S]tatutes must be construed so as to make sense. Here, it is nonsensical to conclude that a prior conviction for selling a smaller quantity of cocaine would constitute a prior offense under OCGA § 16-13-30 (d), but that the sale of a greater amount of the drug would not trigger the provisions of that statute. Certainly, the legislature did not intend such an illogical result and we will not so interpret the statute.

(Emphasis omitted.) Id. at 261 (1). Accordingly, we found that

[t]o conclude that Gilbert’s prior conviction under OCGA § 16-13-31 does not trigger the recidivist provisions of OCGA § 16-13-30 (d) would lead to an illogical result since Gilbert’s first conviction was for a more serious version of the offenses outlined in OCGA § 16-13-30 (b).

Id. at 260 (1).

Contrary to Duron’s apparent argument, Gilbert is indistinguishable. Like Gilbert, Duron was first convicted of trafficking in cocaine and received a 30-year sentence pursuant to OCGA § 16-13-31 (h). Thereafter, while Gilbert was convicted of the lesser offense of possession of cocaine with intent to distribute, Duron received a second conviction for the same “greater” offense of trafficking in cocaine. Therefore,

[t]o accept [Duron’s] contention that his more serious conviction under OCGA § 16-13-31, for a crime which is different only in that it is more serious than those listed in OCGA § 16-13-30 (b), does not constitute a prior conviction so as to trigger the life sentence provisions of OCGA § 16-13-30 (d) is to ignore the intent of the legislature. Clearly, the legislature did not intend that violators of OCGA § 16-13-31 be exempt from the severe punishment of OCGA § 16-13-30 (d).

Id. at 262 (1). See also Covington v. State, 231 Ga. App. 851, 852 (1) (501 SE2d 37) (1998) (“Fruitless is the argument that the sentence of life imprisonment for trafficking was unauthorized because it is an offense under OCGA § 16-13-31 rather than OCGA § 16-13-30 (b).”). Finally, on many occasions since Gilbert, we have affirmed sentences of life imprisonment in which a defendant’s second conviction involved a trafficking offense, further confirming the applicability of OCGA § 16-13-30 (d) to trafficking convictions. See Howard v. State, 234 Ga. App. 260, 261 (2) (506 SE2d 648) (1998); Covington, 231 Ga. App. at 852 (1); Brundage v. State, 231 Ga. App. 478, 480 (4) (499 SE2d 408) (1998). See also Smiley v. State, 241 Ga. App. 712 (527 SE2d 585) (2000). Accordingly, we conclude that a first conviction for trafficking under OCGA § 16-13-31 may be used to enhance a second conviction for trafficking pursuant to OCGA § 16-13-30 (d). See Gilbert, 208 Ga. App. at 262 (1). As a result, “[g]iven our conclusion that [Duron’s] prior conviction constituted a violation of OCGA § 16-13-30 (b), we find that the life sentence was properly imposed.” Id.

Judgment affirmed.

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

Decided January 19, 2017

Michael S. Marr, for appellant.

Daniel J. Porter, District Attorney, Dan W. Mayfield, Assistant District Attorney, for appellee.

       “Any person who sells, manufactures, delivers, or brings into this state or who is in possession of 28 grams or more of cocaine or of any mixture with a purity of 10 percent or more of cocaine, as described in Schedule II, in violation of this article commits the felony offense of trafficking in cocaine. . . .”

       On March 19, 2015, we affirmed Duron’s 2011 trafficking conviction and the conspiracy conviction. See Duron v. State, 332 Ga. App. 133 (771 SE2d 28) (2015).

       This Court affirmed Duron’s 2010 trafficking conviction on November 10, 2013. See Duron I, 325 Ga. App. at 50.

       The State agreed with Duron’s motion and conceded that the original sentence for Duron’s 2011 trafficking conviction was void.

       See Covington v. State, 231 Ga. App. 851, 852 (1) (501 SE2d 37) (1998).

       Duron does not argue that the life sentences imposed at resentencing were improper because his 2010 trafficking conviction was not final at the time he was originally sentenced on the 2011 trafficking conviction. See Covington, 231 Ga. App. at 852 (1) (“The trial court was authorized by OCGA § 16-13-30 (d) to resentence Covington to life imprisonment for possession and trafficking, as the two earlier cocaine sales convictions were final at the time of resentencing.”).

       Similarly, Duron’s argument concerning the rule of lenity is without merit. See Gilbert, 208 Ga. App. at 261 (1).

       Likewise, Duron’s sentence of life in prison for conspiracy (trafficking in cocaine) was authorized. See OCGA §§ 16-13-30 (d), 16-13-33 (“Any person who attempts or conspires to commit any offense defined in this article shall be, upon conviction thereof, punished by imprisonment not exceeding the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy.”).


source: Caselaw Access Project

author: MERCIER, Judge.

license: Public Domain

text:
    A16A2160.
    THOMAS v. TENET HEALTHSYSTEM GB, INC.
    (796 SE2d 307)
   MERCIER, Judge.

Lorrine Thomas appeals the trial court’s partial grant of summary judgment to Atlanta Medical Center (“AMC”). She argues that the trial court erred when it found that two physicians were independent contractors and when it concluded that AMC was not a joint venturer with its co-defendants. We affirm in part and vacate in part, and remand.

In May 2012, Thomas was involved in a car accident. At the scene of the accident, Thomas was placed on a backboard by paramedics and taken by ambulance to AMC. Dr. Robin Lowman was Thomas’s physician when she arrived at AMC’s emergency room, and she ordered that a cervical CT scan and other tests be performed on Thomas. When completed, the CT scan was sent to Dr. Clifford Grossman, who read it at his home. After reviewing the CT scan, Dr. Grossman concluded that there were no fractures in Thomas’s cervical spine and communicated this to Dr. Lowman. Dr. Lowman instructed a nurse at AMC to remove a cervical spine collar that had been placed on Thomas and to discharge her from the hospital. The nurse then removed the collar from Thomas’s neck.

Thomas, who was heavily medicated at the time, was placed in a wheelchair and taken to the curb to await her ride, but when her brother arrived to pick her up, Thomas was slumped over and unresponsive in the wheelchair. Thomas was readmitted to the hospital, and upon re-examination, it was discovered that Thomas did in fact have a fracture in her cervical spine. When the cervical spine collar was removed, the fracture in Thomas’s spine was displaced, which caused a compression of Thomas’s spinal cord and neurological damage. As a result of the neurological damage, Thomas was rendered a quadriplegic.

In May 2014, Thomas filed a complaint alleging professional negligence against Dr. Lowman and Dr. Grossman, as well as against AMC for imputed liability. Thomas alleged, inter alia, that both Dr. Lowman and Dr. Grossman were employees or agents of AMC and that both doctors and their practice groups were joint venturers with AMC.

In November 2014, AMC filed a motion for summary judgment, and Thomas filed a response in August 2015. The trial court entered an order granting AMC’s motion for summary judgment in part in April 2016. This appeal followed.

1. In her first enumeration of error, Thomas argues that the trial court erred when it granted summary judgment to AMC, based on its finding that Dr. Grossman and Dr. Lowman were independent contractors.

It is well established that on appeal of a grant of summary judgment, the appellate court must determine whether the trial court erred in concluding that no genuine issue of material fact remains and that the party was entitled to judgment as a matter of law. This requires a de novo review of the evidence.

Rubin v. Cello Corp., 235 Ga. App. 250 (510 SE2d 541) (1998) (citations and punctuation omitted). Furthermore, “[sjummary judgment is appropriate when the court, viewing all the facts and evidence and reasonable inferences from those facts in a light most favorable to the non-movant, concludes that the evidence does not create a triable issue as to each essential element of the case.” Zeller v. Home Fed. Sav. & Loan Assn. of Atlanta, 220 Ga. App. 843 (471 SE2d 1) (1996) (citation omitted).

In addition to the traditional analysis conducted by this Court on the appeal of a grant of summary judgment, this case also implicates a specific statutory scheme. OCGA § 51-2-5.1 (f) states:

Whether a health care professional is an actual agent, an employee, or an independent contractor shall be determined by the language of the contract between the health care professional and the hospital. In the absence of such a contract, or if the contract is unclear or ambiguous, a health care professional shall only be considered the hospital’s employee or actual agent if it can be shown by a preponderance of the evidence that the hospital reserves the right to control the time, manner, or method in which the health care professional performs the services for which licensed, as distinguished from the right to merely require certain definite results.

“Health care professional” is pertinently defined by the statute as “a professional licensed as [a] . . . medical doctor.” OCGA § 51-2-5.1 (a) (1). It is not disputed that both Dr. Lowman and Dr. Grossman are medical doctors. Thus, we must first determine whether a contract existed between either Dr. Lowman or Dr. Grossman and AMC.

Dr. Grossman had a contract with his physician group, Diagnostic Imaging Services, Inc. (“DIS”), pursuant to which he provided radiology services at AMC. That contract bound Dr. Grossman by all terms of the contract between DIS and AMC and was in effect during the time Thomas was a patient of AMC. Dr. Lowman had a contract with her physician group, ACS Primary Care Physicians, PC. (“ACS”). Similar to Dr. Grossman, this contract required Dr. Lowman to be bound by terms of the contract between ACS and AMC and was in effect while Thomas was a patient at AMC.

In determining that both doctors were independent contractors, the trial court relied on language in both contracts that stated “Independent Contractors. In performing the services herein specified, Group, and Providers [or Physicians, per the contract between AMC and DIS] are acting as independent contractors, and shall not be considered employees or agents of Hospital.” The trial court found that because this language in the contracts (between the physician groups and AMC) was clear and unambiguous, both doctors were independent contractors, and so AMC could not be held vicariously liable for their actions. While the language of these contracts is assuredly clear and unambiguous, the contracts fail to meet the standard for determining whether an agency relationship existed between the physicians and the hospital, as established by OCGA § 51-2-5.1 (f).

In analyzing the meaning of a statute, we as an appellate court must “presume that the General Assembly meant what it said and said what it meant." In the Interest of L. T., 325 Ga. App. 590, 591 (754 SE2d 380) (2014). See also Deal v. Coleman, 294 Ga. 170, 172 (1) (a) (751 SE2d 337) (2013) (citing Arby’s Restaurant Group v. McRae, 292 Ga. 243, 245 (1) (734 SE2d 55) (2012)). Where the language of a statute is plain and susceptible to only one natural and reasonable construction, appellate courts must construe the statute accordingly Deal, supra at 172-173 (1) (a).

OCGA § 51-2-5.1 (f) states clearly that “[w]hether a health care professional is an actual agent, an employee, or an independent contractor shall be determined by the language of the contract between the health care professional and the hospital.” (Emphasis supplied.) “Health care professional” is defined as a professional who possesses a license from an enumerated list of professions. OCGA § 51-2-5.1 (a) (1). OCGA § 51-2-5.1 (f) makes no mention of physician groups or contracts that exist between physician groups and physicians, but only mentions those that are between health care professionals and hospitals. Accordingly, because Dr. Grossman and Dr. Lowman had contracts with their physician groups who in turn had contracts with AMC, these contractual relationships do not fall under OCGA § 51-2-5.1 (f). Thus, it was error for the trial court to grant summary judgment to AMC based on the contractual language between AMC and both DIS and ACS.

However, this does not mean that AMC is not entitled to summary judgment. OCGA § 51-2-5.1 (g) states: “If the court finds that there is no contract or that the contract is unclear or ambiguous as to the relationship between the hospital and health care professional, the court shall apply the following[.]” OCGA § 51-2-5.1 (g) (1), (2) then list a variety of factors that a court may and shall not consider when determining whether an agency relationship exists. Because the lower court determined there was no agency relationship based on the contractual language quoted above, it did not conduct such an analysis. Therefore, we vacate the trial court’s finding that no agency relationship existed between AMC and Dr. Grossman and/or Dr. Lowman, and remand the case so that the trial court may make a proper analysis pursuant to OCGA § 51-2-5.1 (g).

2. In her second enumeration of error, Thomas contends that the trial court erred when it found that no joint venture existed between AMC and its co-defendants.

A joint venture arises where two or more parties combine their property or labor, or both, in a joint undertaking for profit, with rights of mutual control. There must be not only a joint interest in the objects and purposes of the undertaking, but also a right, express or implied of each member of the joint venture to direct and control the conduct of the other. Thus, it is the right of mutual control, rather than its actual exercise, which must be shown.

Kelleher v. Pain Care of Ga., 246 Ga. App. 619, 620 (540 SE2d 705) (2000) (punctuation and footnotes omitted).

Thomas argues that because the contracts between AMC and both DIS and ACS contained provisions calling for mutual operation, they were joint venturers. Under the contract between AMC and DIS, the DIS physicians were to cooperate with the AMC employee health plan and to perform duties requested by the hospital. DIS and AMC were to agree on the number of physicians in the radiology department and the schedule of those physicians. The contract between AMC and ACS contained similar provisions. However, while these contracts show some interdependency between the parties, these provisions fail to establish that the parties to the contracts had the right of mutual control. Stated succinctly, “[t]here is simply no evidence that [AMC] had a right of mutual control of the manner in which [DIS or ACS] provided [medical] services.” Kitchens v. Brusman, 280 Ga. App. 163, 167 (3) (633 SE2d 585) (2006). Accordingly, it was not error for the trial court to grant summary judgment to AMC on this issue.

Decided January 19, 2017

Garland, Samuel & Loeb, Robin N. Loeb, Anne H. Coolidge-Kaplan, for appellant.

Huff, Powell & Bailey, Brian K. Mathis, for appellee.

Thomas also argues that because AMC did not move for summary judgment regarding its relationship with the individual physicians, it was error for the trial court to find that no joint venture existed.

Although a trial court may, sua sponte, grant summary judgment on an issue not raised by the parties, in so doing the trial court must ensure that the party against whom summary judgment is rendered is given full and fair notice and opportunity to respond prior to entry of summary judgment.

McClendon v. 1152 Spring Street Associates-Georgia, Ltd. III, 225 Ga. App. 333, 334 (484 SE2d 40) (1997) (citation and punctuation omitted). The record does not reflect that any steps were taken by the trial court to give Thomas proper notice and an opportunity to respond to the entry of summary judgment on the issue of whether AMC had a right to control the manner in which Dr. Grossman and Dr. Lowman provided medical services. See id. Accordingly, the trial court’s grant of summary judgment to AMC on this issue is vacated.

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

Ellington, P. J., and Branch, J., concur.


author: Branch, Judge.

text:
    A16A1770.
    A17A0041.
    In re FELDHAUS. In re BAUMERT.
    (796 SE2d 316)
   Branch, Judge.

In July 2015, the person formerly known as Rebecca Elizabeth Feldhaus brought the instant petition seeking a change of name to “Rowan Elijah Feldhaus.” In January 2016, the person formerly known as Delphine Renee Baumert filed a petition seeking a change of name to “Andrew Norman Baumert.” After separate hearings, the Columbia County trial court denied both petitions on grounds including that both name changes would “confuse and mislead” the public and amounted to “a type of fraud.” On these consolidated appeals, Feldhaus and Baumert argue that in the absence of any evidence that they were seeking to change their names for fraudulent or other improper purposes, the trial court abused its discretion when it denied their petitions. We agree and reverse in both cases.

“[W]hether a judge of the superior court shall grant or refuse a proper application for a change in name, upon objection and after a hearing, involves the exercise of a sound legal discretion.” Johnson v. Coggins, 124 Ga. App. 603, 604 (184 SE2d 696) (1971). We thus review a trial court’s decision on a petition for name change only for an abuse of discretion. Id.

The material facts are not in dispute. Both appellants brought their petitions for name change under OCGA § 19-12-1 (a), which provides that any person seeking to change his or her name, or the name of the petitioner’s child, “may present a petition to the superior court of the county of his residence, setting forth fully and particularly the reasons why the change is asked, which petition shall be verified by the petitioner.” Feldhaus’s verified petition requested a change of name to “Rowan Elijah Feldhaus” and included an affidavit that Feldhaus is known as such by family, peers, and co-workers. At the hearing, Feldhaus testified that there was no intent of defrauding creditors by means of the name change. Baumert’s verified petition requested a change of name to “Andrew Norman Baumert,” and evidence at the hearing showed that Baumert is known as “Andrew” or “Andy” by family and peers. As the trial court later noted, there was no evidence before it that Baumert’s petition was filed for the purposes of defrauding anyone.

Although Feldhaus’s petition was unopposed, the trial court found that by “claiming to be a person of the opposite gender” from his or her birth gender, a transgender person “presents problems for the person and the general public” in that his or her assumed name could “confuse and mislead . . . emergency personnel, actuaries, insurance underwriters, and other businesses and relationships where the sex of an individual is relevant.” The court added that “third parties should not have to contend with the quandary, predicament and dilemma of a person who presents as a male, but who has an obviously female name[.]” The court also distinguished between Feldhaus’s proposed first name, “Rowan,” which it found to be “gender neutral,” and “Elijah,” which it found not to be gender neutral. The court then concluded that “[n]ame changes which allow a person to assume the role of a person of the opposite sex are, in effect, a type of fraud on the general public” and that such changes “offend the sensibilities and mores of a substantial portion of the citizens of this state.” It therefore denied Feldhaus’s petition.

Although Baumert’s petition was also unopposed, the trial court entered an order finding that a transgender person who “claim[s] to be a person of the opposite gender” from his or her birth gender “presents problems for the person and the general public.” The court noted that “third parties should not have to contend with the quandary, predicament and dilemma of a person who presents as a male, but who has an obviously female name, and vice versa,” and that Baumert had rejected the court’s offer of a “gender neutral” name. The court then repeated that “[njame changes which allow a person to assume the role of a person of the opposite sex are, in effect, a type of fraud on the general public” and that such changes “offend the sensibilities and mores of a substantial portion of the citizens of this state.” The court therefore denied Baumert’s petition.

1. Feldhaus and Baumert argue that the trial court abused its discretion in denying their petitions in the absence of any evidence that they had any fraudulent purpose in seeking a name change. We agree.

OCGA § 19-12-1 et seq. establishes the procedure by which a person may change his or her name, including the filing of a petition and notice by publication. OCGA § 19-12-4 further provides: “Nothing contained in this chapter shall authorize any person to change his name with a view to deprive another fraudulently of any right under the law.” The Supreme Court of Georgia has long held, moreover, that “in the absence of a statute or judicial adjudication to the contrary, there is nothing in the law prohibiting a person from taking or assuming another name, so long as he does not assume a name for the purpose of defrauding other persons through a mistake of identity.” Fulghum v. Paul, 229 Ga. 463, 463 (192 SE2d 376) (1972) (citation and punctuation omitted). In the case of In re Mullinix, 152 Ga. App. 215 (262 SE2d 540) (1979), for example, a married woman petitioned the trial court to restore her maiden name, and the trial judge denied the petition on the basis of his ‘Telief ” that the result of a mother and her children “bearing different, surnames” would be that the child would be “necessarily confused and embarrassed.” Id. Our opinion noted, however, that there was “no evidence that the change [was] intended to defraud anyone.” Id. We then held, consistent with the statutory scheme, that a trial court’s conclusions about any person’s “confusion” or “embarrassment” was “not a valid basis for denying” a petition for a name change. Id. We noted further that “[n]o objections were made at the hearing to the proposed change.” Id. Accordingly, the proper result was to remand the case “with direction to enter an order granting appellant’s petition.” Id. We have affirmed the denial of a petition for a name change only when some evidence at the hearing on the petition showed that the petitioner was acting under an “improper motive,” such as intentionally assuming another person’s name for the purpose of embarrassing that person or avoiding the petitioner’s own criminal past. See, e.g., In re Serpentfoot, 285 Ga. App. 325, 327 (1) (646 SE2d 267) (2007) (affirming denial of petition to change name when some evidence showed that petitioner had an “improper motive” in seeking to change her name to that of a local newspaper publisher whose newspaper had published unflattering news stories about the petitioner); In re Redding, 218 Ga. App. 376, 377 (461 SE2d 558) (1995) (affirming denial of petition to change name when some evidence showed that petitioner’s purpose in seeking the change was “to conceal his true identity and to disassociate himself [from] his criminal past”) (citation omitted).

Decided January 20, 2017.

Here, Feldhaus and Baumert followed the procedure for name change laid out in OCGA § 19-12-1. There was no evidence before the trial court to authorize a conclusion that either of them was acting with any improper motive against any specific person. OCGA § 19-12-4; Fulghum, 229 Ga. at 463. Further, no objections were raised at the hearings on the petitions. Mullinix, 152 Ga. App. at 215. It follows that the trial court abused its discretion when it denied these petitions. The trial court’s orders are therefore reversed, and the court is directed on remand to enter an order changing petitioners’ names to “Rowan Elijah Feldhaus” and “Andrew Norman Baumert,” respectively

2. In light of our decision in Division 1, we need not address petitioners’ assertions as to the unconstitutionality of the trial court’s orders.

Judgments reversed and cases remanded with direction.

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

Lambda Legal Defense & Education Fund, Elizabeth L. Littrell; The Hun ter Firm, Robert W. Hun ter III; King & Spalding, Merritt E. McAlister, Sedric D. Bailey, for appellants.

Carlton Fields Jorden Burt, Gail E. Podolsky; Kitchens New Cleghorn, Jeffery M. Cleghorn, amici curiae.


author: REESE, Judge.

text:
    A16A1823.
    STANFORD v. POGUE.
    (796 SE2d 313)
   REESE, Judge.

A mother appeals an order finding her in contempt of the Superior Court of Rockdale County and modifying the visitation rights of appellee father with respect to the parties’ daughter. For the following reasons, we affirm.

The record indicates that, in April 2009, the trial court established paternity, awarded the parties joint legal custody, and granted the father visitation rights. In September 2015, the parties entered a consent “Order on Motion for Contempt” (the “Consent Order”), which, inter alia, modified the visitation schedule.

The father filed a motion for contempt in February 2016, complaining that the mother had wilfully failed to comply with the Consent Order and had frustrated the father’s attempts to exercise his visitation rights. After a hearing, the trial court found that the mother had failed to comply with and was in wilful contempt of the Consent Order.

The court modified the Consent Order to allow the father to pick up the child from school, rather than from the mother, on visitation days and ordered the mother “incarcerated for a period of twenty (20) days in . . . jail in order to purge herself of her willful contempt[.]”

1. The mother argues that the trial court erred in modifying the parties’ prior visitation order, which had already been modified within the prior year, without making any findings that there had been a material change in condition or that the modification was in the best interest of the child.

Under OCGA § 19-9-3 (b), a court may periodically review and modify the visitation portion of a custody judgment without a showing of a change in any material condition or circumstance. Further, under this Code section, “the trial court is expressly authorized to modify visitation rights, on the motion of any party or on the motion of the judge, during a contempt proceeding.”

“[I]f reasonable evidence exists in the record to support the trial court’s decision to change visitation rights, then the decision of that court will stand . . . absent abuse of discretion.” Further, “[a] motion for contempt is ancillary to a pending case, and no findings of fact or conclusions of law are required.”

In this case, the mother’s notice of appeal designated only a few items to be included in the record on appeal. “Our consideration of the contentions presented by [the mother] — who, as the appellant, has the burden to affirmatively show error by the record — is affected by the meagerness of the record.”

The mother notes in her appellate brief that she “was not represented by counsel at the [contempt] hearing and there is no transcript of the proceedings.” However,

[a] litigant, including a pro se litigant, has the burden to compile a complete record of what happened at the trial level which, at a minimum, includes a transcript of that portion of the proceedings in which the error is alleged to have occurred or alternatively, a stipulation of the case approved by the judge who conducted the proceeding.

The record on appeal does not show that the mother asked the trial court to make specific findings of fact. And, in the absence of a transcript, “we must presume that the evidence supported the trial court’s ruling.” Accordingly, we find no error.

2. On appeal, the mother does not challenge the trial court’s finding of contempt against her but complains only that the trial court erred in imposing unconditional incarceration for her violation of the father’s visitation rights.

(a) As an initial matter, the trial court did not specify whether it found the mother in civil or criminal contempt, so we must look to the purpose of the order.

[T]he conditional or unconditional imposition of a fine or imprisonment indicates the purpose of an order. If the contemnor is imprisoned for a specified unconditional period (not to exceed 20 days under OCGA § 15-6-8 (5)), the purpose is punishment and thus the contempt is criminal. If the contemnor is imprisoned only until he performs a specified act, the purpose is remedial and hence the contempt is civil.

Here, the contempt order unconditionally directed that the mother be incarcerated for 20 days. Although the trial court added that the mother was incarcerated “in order to purge herself of her willful contempt,” the substance of the order indicates that the trial court found the mother in criminal contempt, as it did not give the mother an opportunity to avoid incarceration by complying with its order or by performing another specified act.

“Pursuant to OCGA § 15-6-8 (5), a trial court has the power to punish contempt ... by imprisonment not exceeding 20 days.” Therefore, because the punishment imposed did not exceed that which is authorized by OCGA § 15-6-8 (5), we find no error.

(b) To the extent the mother contends that, under Easley, the trial court was required to impose a conditional sentence for civil contempt, the Supreme Court of Georgia has rejected this argument.

Easley . . . did not hold that a court was precluded from subjecting a party to criminal contempt for failure to abide by the visitation provisions of a decree, but merely held that under the facts in that case, the contempt was purely civil, not criminal, and thus should have been conditioned upon compliance with the court’s order.

Decided January 20, 2017.

The Lindsey Firm, Stephanie R. Lindsey, Cheryl R. Freeman, for appellant.

Betty J. Williams-Kirby, for appellee.

Accordingly, this argument is without merit.

Judgment affirmed.

Dillard, P. J., and Bethel, J., concur.

        Cross v. Ivester, 315 Ga. App. 760, 766 (2) (728 SE2d 299) (2012) (citation omitted). See also Dennis v. Dennis, 302 Ga. App. 791, 793 (1) (b) (692 SE2d 47) (2010).

        Cross, supra (citation and punctuation omitted).

        Hopkins v. Hopkins, 244 Ga. 66, 67-68 (2) (257 SE2d 900) (1979) (citations omitted). See also Weickert v. Weickert, 268 Ga. App. 624, 629 (2) (602 SE2d 337) (2004) (“[F]indings of fact to support custody modification are not required in the absence of a request by a party).]”) (citation omitted).

        Kennedy v. Kennedy, 309 Ga. App. 590 (711 SE2d 103) (2011).

        Alexander v. Mosley, 271 Ga. 2, 2-3 (1) (515 SE2d 145) (1999) (citing OCGA § 5-6-41 (c), (i)) (citation omitted).

        Bonds v. Bonds, 241 Ga. App. 378, 378 (2) (527 SE2d 215) (1999) (citations omitted).

       See Phillips v. Tittle, 261 Ga. 820 (411 SE2d 871) (1992).

        Thedieck v. Thedieck, 220 Ga. App. 764, 766 (1) (470 SE2d 265) (1996) (citation and punctuation omitted).

       Cf. Kaufmann v. Kaufmann, 246 Ga. 266 (1) (271 SE2d 175) (1980) (“If the contemnor, although ordered imprisoned, may purge himself prior to the imprisonment, the case is a civil contempt.”); Hamilton Capital Group v. Equifax Credit Information Svcs., 266 Ga. App. 1, 3 (1) (596 SE2d 656) (2004) (“[T]he better approach is to allow direct appeals from [civil] contempt orders even if the contemnor is given the opportunity to purge the contempt before punishment is imposed.”).

        Johnson v. State, 258 Ga. App. 33, 36 (2) (c) (572 SE2d 669) (2002) (punctuation omitted).

        See Fields v. Fields, 240 Ga. 173, 175-176 (2) (240 SE2d 58) (1977) (trial court did not err in ordering appellant to be imprisoned unconditionally for 24 hours as punishment for her wilful contempt of its visitation order). Cf. Easley v. Easley, 238 Ga. 180, 181 (3) (231 SE2d 763) (1977) (remanding for trial court to make a mother’s confinement in jail conditional where “ [t] he order finding the wife in contempt show[ed] by its caption, content and purpose that it [was] a civil contempt order”); Rhone v. Bolden, 270 Ga. App. 712, 714-715 (2) (608 SE2d 22) (2004) (rejecting nomenclature of “criminal” contempt assigned by trial court where court had not punished appellants for their past deeds, but only held them in contempt until they performed certain remedial acts).

       Supra.

        Fields, supra at 175 (2).


author: DILLARD, Presiding Judge.

text:
    A16A1865.
    McKIBBEN v. THE STATE.
    (796 SE2d 478)
   DILLARD, Presiding Judge.

Following a stipulated bench trial, Kirby McKibben was convicted of driving under the influence (per se), driving under the influence (less safe), driving without headlights, and failure to maintain lane. McKibben appeals from his convictions by challenging the trial court’s denial of his motion to suppress evidence obtained in a warrantless blood test. Specifically, McKibben argues that he did not freely and voluntarily consent to the blood test under the standard set forth recently by our Supreme Court in Williams v. State. But because the trial court properly considered the totality of the circumstances in finding that McKibben consented to the blood test, we affirm.

On appeal from a ruling on a motion to suppress, we construe the evidence “most favorably to affirming the trial court’s factual findings and judgment.” Indeed, “the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous.” And here, the parties appear to agree on all the relevant facts and evidence. Consequently, we review the trial court’s application of the law to the facts de novo, “examining the entire record and making an independent determination of the ultimate issue of vol-untariness.”

So viewed, the evidence presented at the hearing on McKibben’s motion to suppress establishes that Holly Springs police dispatch received a call about a possibly intoxicated driver in a maroon Scion and information indicating the vehicle’s direction of travel. These particulars were then broadcast over the police radio and, shortly thereafter, a Holly Springs sergeant observed a vehicle matching the description “swerving from left to right . . . [and] crossing one time over the center divider[.]” After initiating a traffic stop, the sergeant approached the driver, McKibben, and immediately smelled a strong odor of an alcoholic beverage coming from inside the vehicle. The sergeant also noticed that McKibben’s eyes were glazed and his speech was “thick-tongued.” According to the sergeant, McKibben’s body reeked of an alcoholic beverage, and he appeared off balance when exiting the vehicle. Nevertheless, McKibben adamantly denied consuming alcohol and declined to take any field-sobriety evaluations.

McKibben’s denials notwithstanding, the sergeant placed him under arrest on suspicion of driving under the influence. McKibben was also read the implied-consent notice for suspects 21 or over from a prepared card, which stated as follows:

Georgia law requires you to submit to state administered chemical test[s] of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs. If you refuse this testing[,] your Georgia driver’s license or privilege to drive on the highways of this state will be suspended for a minimum period of one year. Your refusal to submit to that required testing may be offered into evidence against you at trial. If you submit to testing and the results indicated an alcohol concentration of 0.08 grams or more, your Georgia driver’s license or privilege to drive on the highways of this state may be suspended for a minimum period of one year. After first submitting to the required state test[,] you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances at your own expense and from qualified personnel of your own choosing. Will you submit to the state administered chemical test of your blood under the implied consent law?

McKibben replied “yes,” but did not ask any questions about the implied-consent notice or his rights, did not request an attorney, and never indicated an unwillingness to have the blood sample taken. The sergeant testified that (1) neither he nor McKibben ever raised their voices during this encounter, (2) their conversation was polite, and (3) he did not threaten McKibben or make him any promises in exchange for giving consent.

Thereafter, the sergeant transported McKibben to a fire station less than one mile away Once they arrived at the station, McKibben’s handcuffs were removed, and he submitted to a blood draw by a qualified firefighter. According to the sergeant, McKibben understood what was going on, appeared intelligent and well-spoken, and “was very cooperative throughout the entire encounter.” The blood test ultimately showed that McKibben’s blood-alcohol level was above the legal limit.

McKibben later moved to suppress the results of his blood test, arguing that his acquiescence to the request for a blood draw, following a reading of the implied-consent notice, did not constitute actual consent. The trial court disagreed. Specifically, the court concluded that, in light of Williams v. State, and based on “a totality of the circumstances,” McKibben voluntarily consented to having his blood drawn. In doing so, the court noted that McKibben agreed to take the test after having been read his implied-consent notification; his blood was taken within one hour of the arrest and therefore was not the result of a prolonged detention; the sergeant did not threaten or intimidate McKibben, nor did he promise McKibben anything; the sergeant did not withhold food or drink or refuse McKibben use of the restroom; the sergeant removed McKibben’s handcuffs to allow the firefighter to withdraw the blood; and McKibben willingly interacted with the firefighter collecting his blood sample and never indicated that the blood draw was not freely and voluntarily given.

On appeal, McKibben challenges the trial court’s denial of his motion to suppress. Although McKibben acknowledges that he was read the implied-consent notice, acquiesced to the blood draw, and submitted to the test without resistance, he nevertheless contends that, under Williams, this is insufficient to show actual consent and render the search constitutionally valid. McKibben further argues that the implied-consent notice fails to inform defendants that they may refuse to comply and that the test results could be used against them in a criminal prosecution, thus negating any voluntary consent. We disagree as to each of these contentions.

Historically, we considered a defendant’s affirmative response to the reading of the implied-consent notice as “sufficient to allow a search of his or her bodily fluids without further inquiry into the validity of the defendant’s consent.” However, in Williams, our Supreme Court “rejected this per se rule automatically equating an affirmative response to the implied consent notice with actual consent to a search within the meaning of the Fourth Amendment.” Now, we are charged instead with conducting “a case-by-case analysis, considering the totality of the circumstances.”

Thus, McKibben is correct that, under Williams, the results of a warrantless blood test are subject to suppression unless the State establishes that the suspect freely and voluntarily consented to the test. And a suspect’s mere acquiescence under the implied-consent notice is not enough to render the search constitutionally valid. That said, we have previously cautioned that Williams should not be read as imposing “a per se rule that the State must always show more than consent under the implied consent statute.” Rather, we take our Supreme Court at its word when it instructed trial courts to “review the totality of the circumstances in determining consent.” Accordingly, an affirmative response to the question posed by the implied-consent language “may be sufficient for a trial court to find actual consent, absent reason to believe the response was involuntary.” To put it plainly, in determining the demarcation line between actual consent and coercion, context is crucial. Thus, in order to ascertain whether a suspect freely and voluntarily consented to the test, the trial court must consider the totality of the circumstances surrounding his consent, including (but not limited to) whether there was any threat or coercion by the officer; whether the suspect was unable to give valid consent due to (for example) his youth or lack of education; and whether a reasonable person would have felt free to decline the officer’s request.

In this case, as in Kendrick, the evidence simply does not show that “the officers used fear, intimidation, threat of physical punishment, or lengthy detention to obtain the consent.” Nor does McKib-ben argue that youth, lack of education, or low intelligence somehow negated the voluntariness of his consent. Rather, McKibben argues that he did not freely and voluntarily consent to the blood test because (1) the language of the implied-consent notice made him feel as though he had no choice but to acquiesce, and (2) he was not informed that his blood-test result could be used against him in a criminal prosecution. But we have already rejected these arguments in other cases. Indeed, as we have previously explained, while knowledge of the right to refuse consent is one factor to be taken into account, “the government need not establish such knowledge as the sine qua non of an effective consent.”

Decided January 23, 2017.

Caryn S. Fennell, PC., Caryn S. Fennell, Lee W. Fitzpatrick, for appellant.

Jessica K. Moss, Solicitor-General, Jeffrey G. Huong, C. Todd Hayes, Assistant Solicitors-General, for appellee.

Here, the record shows that McKibben gave an affirmative answer to the question posed by the implied-consent language, and he never attempted to change that answer during the time that elapsed prior to testing. McKibben also did not appear to be impaired to the extent that he did not understand what was being asked, he did not express any objection to the test, and the officer did not force him to take the test. Thus, upon this particular record, “and considering all of the facts before us, and affording appropriate deference to the trial court that heard the testimony first-hand,” we affirm the trial court’s denial of McKibben’s motion to suppress.

Judgment affirmed.

Reese and Bethel, JJ., concur.

       McKibben’s convictions for DUI less safe and failure to maintain lane were merged for purposes of sentencing with his conviction for DUI per se.

       296 Ga. 817 (771 SE2d 373) (2015).

        Brooks v. State, 285 Ga. App. 624, 626 (647 SE2d 328) (2007).

        McAllister v. State, 325 Ga. App. 583, 583 (754 SE2d 376)(2014)(citation and punctuation omitted).

        State v. Fulghum, 261 Ga. App. 594, 594 (1) (583 SE2d 278) (2003) (punctuation omitted).

       The specific language of this notice appears identical in all relevant aspects to the text contained in OCGA § 40-5-67.1 (b) (2).

        See OCGA § 40-6-391 (a) (5) (“A person shall not drive or be in actual physical control of any moving vehicle while) ] [t]he person’s alcohol concentration is 0.08 grams or more at any time within three hours after such driving or being in actual physical control from alcohol consumed before such driving or being in actual physical control ended).]”).

       296 Ga. 817 (771 SE2d 373) (2015).

        See id. at 821 (“Whether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances.” (punctuation omitted)).

       Although McKibben challenges the implied-consent statute as being coercive, he has never directly challenged the constitutionality of the statute, and the trial court therefore did not address any constitutional concerns. Thus, we can neither transfer the matter nor rule on the constitutionality of the statute. See Kendrick v. State, 335 Ga. App. 766, 770 n.3 (782 SE2d 842) (2016). And we take this opportunity to, once again, observe that our Supreme Court has previously upheld the implied-consent statute against a constitutional challenge much like the one posited by McKibben. See Klink v. State, 272 Ga. 605, 606 (1) (533 SE2d 92) (2000); see also Kendrick, 335 Ga. App. at 770 n.3 (making the same observation). Additionally, as we recently recognized in Kendrick, 335 Ga. App. at 770 n.3, although subsequent development of the law may have substantially eiodedKlink’s analytical foundation, compare Klink, 272 Ga. at 606 (1) (holding based in part on observation that “[t]he right to refuse to submit to state administered testing is not a constitutional right, but one created by the legislature”), with. Williams, 296 Ga. at 819-20 (holding that Fourth Amendment requires actual consent in absence of warrant or other exceptions to warrant requirement), and Birchfield v. North Dakota,_U. S._,_ (V) (C) (3), (VI) (136 SCt 2160, 195 LE2d 560) (2016) (holding that breath tests, but not blood tests, may be administered as a search incident to arrest for drunk driving, but acknowledging that searches are reasonable when consent is obtained, although “motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense”), it nevertheless remains binding authority over this Court unless and until it is overturned by our Supreme Court. See Ga. Const., art. VI, § VI, ¶ VI (1983) (“The decisions of the Supreme Court [of Georgia] shall bind all other courts as precedents.”); Whorton v. State, 321 Ga. App. 335, 339 (1) (741 SE2d 653) (2013) (holding that “vertical stare decisis dictates that we faithfully adhere to the precedents established by the Supreme Court of Georgia”); Bryan A. Garner et al., The Law of Judicial Precedent 155 (“When dealing with binding vertical precedent, a court has no room to decide how much weight or value to give each case.”).

        Kendrick, 335 Ga. App. at 769; see, e.g., Meiklejohn v. State, 281 Ga. App. 712, 714 (637 SE2d 117) (2006); State v. Lewis, 233 Ga. App. 390, 392 (1) (504 SE2d 242) (1998).

        Kendrick, 335 Ga. App. at 769; see also Williams, 296 Ga. at 821-22.

        Kendrick, 335 Ga. App. at 769; see also Williams, 296 Ga. at 821-22.

       296 Ga. at 821-22.

         See id. at 822 (“[W]hat the cases seem to indicate is that mere compliance with statutory implied consent requirements does not, per se, equate to actual, and therefore voluntary, consent on the part of the suspect so as to be an exception to the constitutional mandate of a warrant.”); Kendrick, 335 Ga. App. at 769 (“Mere acquiescence to the authority asserted by a police officer cannot substitute for free consent.” (punctuation omitted)).

        Kendrick, 335 Ga. App. at 771.

        Id.

        Id. at 771-72.

        See id. at 769, citing Schneckloth v. Bustamonte, 412 U. S. 218, 228 (II) (B) (93 SCt 2041, 36 LE2d 854) (1973); State v. Austin, 310 Ga. App. 814, 817-18 (1) (714 SE2d 671) (2011); Cuaresma v. State, 292 Ga. App. 43, 47 (2) (663 SE2d 396) (2008); State v. Durrence, 295 Ga. App. 216, 218 (671 SE2d 261) (2008).

        Kendrick, 335 Ga. App. 769 (punctuation omitted).

        See id.

        See id. at 769-71 (holding that the implied-consent notice is not coercive in failing to inform suspect of her right to refuse); State v. Oyeniyi, 335 Ga. App. 575, 578 (782 SE2d 476) (2016) (holding that the implied-consent notice is not misleading or an overstatement of the length of suspension authorized by law).

        Kendrick, 335 Ga. App. at 769 (punctuation omitted) (quoting Schneckloth, 412 U. S. at 227 (II) (B)).

        Id. at 772.


text:
    A15A1033.
    GEORGIA DEPARTMENT OF COMMUNITY HEALTH v. NEAL.
    (796 SE2d 482)
   Branch, Judge.

In Ga. Dept. of Community Health v. Neal, 334 Ga. App. 851 (780 SE2d 475) (2015), this Court reversed the denial of the Georgia Department of Community Health’s motion to dismiss plaintiff Trecia Neal’s complaint on the ground that the Department had not waived its sovereign immunity by means of either documents issued as part of the State Health Benefits Plan or any relevant regulation. Id. at 859 (2). As we noted at the outset of our opinion, the Department had taken a direct appeal from the denial of the Department’s motion to dismiss, with the parties agreeing that the direct appeal had been properly taken under the collateral order doctrine because “the trial court [had] conclusively determined that sovereign immunity did not apply. See Bd. of Regents of the Univ. System of Ga. v. Canas, 295 Ga. App. 505, 507 (1) (672 SE2d 471) (2009).” Id. at 852, n. 1.

On March 25, 2016, having previously granted Neal’s petition for certiorari, the Supreme Court of Georgia vacated this Court’s judgment and remanded the case to this Court for “reconsideration” of our conclusion that we had jurisdiction over the Department’s direct appeal in light of the Supreme Court’s intervening decision in Rivera v. Washington, 298 Ga. 770 (784 SE2d 775) (2016). After noting the “small class of cases for which the collateral order doctrine [is] appropriate,” the Rivera Court held that “an interlocutory order rejecting a claim of qualified immunity is not directly appealable under the collateral order doctrine,” but must rather “be pursued under the interlocutory procedures of OCGA § 5-6-34 (b).” 298 Ga. at 774, 776, citing Turner v. Giles, 264 Ga. 812, 813-814 (1) (450 SE2d 421) (1994). Rivera went on to overrule Canas and its progeny, including Neal — one of the many cases depending on Canas “as authority to apply the collateral order doctrine in cases claiming sovereign, official, qualified, or other immunity.” Rivera, 298 Ga. at 778, n. 7.

In a supplemental brief filed on remand to this Court, the Department concedes that we lack jurisdiction but asks that we direct the trial court either to reconsider the Department’s motion to dismiss or to issue a certificate of immediate review. We cannot take such actions, however. In Butler v. Gray, 177 Ga. App. 498 (339 SE2d 769) (1986), for example, we granted a motion to dismiss a direct appeal for a failure to follow the interlocutory appeal procedures but also denied appellee’s requests for a frivolous appeal penalty and direction to the trial court on remand, noting that the appellant’s failure to follow the appeal procedures “does not invoke the jurisdiction of this court and consequently deprives this court of the power to act upon [appellee’s] requests for any action beyond the motion to dismiss.” Id. at 499. Similarly, we do not have jurisdiction to take any actions in this case other than to dismiss the Department’s appeal.

When a plaintiff has failed to seek a certificate of immediate review under OCGA § 5-6-34 (b), and “unless the trial court’s order falls under some other exception to the final judgment rule, [the] appeal must be dismissed.” First Christ Holiness Church v. Owens Temple First Christ Holiness Church, 282 Ga. 883, 884 (655 SE2d 605) (2008) (footnote omitted). Having noted the Supreme Court’s decision overruling Canas and its progeny in Rivera, we also observe that the Department has not asserted any exception to the final judgment rule authorizing a direct appeal in this case. We therefore dismiss the Department’s direct appeal on the ground that it was not in compliance with the procedures laid out in OCGA § 5-6-34 (b). See Rivera, 298 Ga. at 778 (affirming the Court of Appeals’ dismissal of the two direct appeals at issue as not in compliance with OCGA § 5-6-34 (b))-

Decided January 24, 2017.

Samuel S. Olens, Attorney General, Britt C. Grant, Solicitor-General, W. Wright Banks, Jr., Deputy Attorney General, Julie A. Jacobs, Robin J. Leigh, Senior Assistant Attorneys General, Stephanie K. Burnham, Assistant Attorney General, for appellant.

Parks, Chesin & Walbert, A. Lee Parks, Jr., M. Travis Foust; Hall & Lampros, P. Andrew Lampros; Jeffrey L. Berhold, for appellee.

Appeal dismissed.

Miller, P. J., and Andrews, J., concur.


author: Rickman, Judge.

text:
    A16A1801.
    LASTER v. THE STATE.
    (796 SE2d 484)
   Rickman, Judge.

Following a jury trial in 2014, Richard Earl Laster was convicted of child molestation and sexual battery against a child under the age of 16. He filed a motion for new trial, which the trial court denied. Laster contends on appeal that the trial court erroneously: (1) overruled his objection to the hearsay testimony of several witnesses who took the witness stand before the child victim and who relayed statements made to them by the child victim; and (2) instructed the jury that, as to the offense of sexual battery, a child under the age of 16 lacks the legal capacity to consent to sexual conduct. For the following reasons, we reverse Laster’s conviction of sexual battery We affirm in all other respects.

On appeal from a criminal conviction, we view the evidence in the light most favorable to support the jury’s verdict, and the defendant no longer enjoys a presumption of innocence. We do not weigh the evidence or judge the credibility of the witnesses, but determine only whether the evidence authorized the jury to find the defendant guilty of the crimes beyond a reasonable doubt in accordance with the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC[t] 2781, 61 LE2d 560) (1979).

Bledson v. State, 337 Ga. App. 444 (787 SE2d 809) (2016).

So construed, the evidence adduced at trial showed that Laster and his wife were close friends of the victim’s family and that the victim and her little sister used to disembark their school bus at Laster’s home and remain there until their mother returned from work. In November 2012, the victim’s stepfather discovered sexually explicit text messages that Laster, then 29 years old, had sent to the victim, then 13 years old. The text messages included a reference to Laster’s need “to control [himself] around [the victim] ... so [her mother] don’t think anything” and his assertion that he was “the only one who [could] touch the [victim’s] Hello Kitty spot and make [her] . . . collapse.”

The stepfather showed the text messages to the victim’s aunt, who questioned the victim about them. The victim admitted to her aunt that Laster had kissed her and had touched her vagina and stated that Laster was her boyfriend and that they loved each other. The victim later told her mother that she “had feelings” for Laster.

The victim’s family alerted law enforcement officials, and the victim told the investigating detective that she and Laster “were close,” and that he had kissed her and touched her vagina on at least one occasion. The victim was subsequently taken to a children’s advocacy center for a forensic interview. There, she revealed to the forensic interviewer that she was 12 years old when Laster began touching her intimately She later elaborated that the touching began after Laster told her that her stepfather had asked him “to test” her. Over the course of the next several months, Laster repeatedly molested the victim, touching her chest, buttocks, and vagina, the latter of which he referred to as her “Hello Kitty” Although the victim initially considered their relationship to be one of “a father-daughter-type,” she grew to believe that Laster loved her intimately, and the two discussed a future marriage. Laster provided the victim with a “secret” cell phone through which they communicated daily, and at some point, representing himself as “an uncle or like an uncle,” Laster began regularly visiting the victim at school without her parents’ knowledge, pulling her out of class for up to an hour-and-a-half at a time.

Laster was subsequently arrested and charged, and the victim testified at trial to events consistent with those set forth above. The victim’s mother also testified and identified three letters written by Laster: the first, written to the victim, was sexually explicit and implored the victim to “please, please, please, keep [the cell phone he intended to provide] out of sight”; the second, also written to the victim, included Laster’s declarations of love for her, discussed how she was “growing sexier ... by the hour,” and mentioned his excitement about D J’ing at her impending thirteenth birthday party; and the third, written to the victim’s parents after his text messages had been discovered, contained Laster’s apology that the “Hello Kitty” text message “didn’t look right” and explained that contrary to all appearances, he was simply referring to the victim’s Hello Kitty headphones.

Laster testified in his own defense and denied any inappropriate contact with the child. He claimed that the text messages were an innocent misunderstanding, denied that he was the author of the love letters to the victim, and maintained that his visits to the victim’s school were merely lunch visits.

The jury convicted Laster of the crimes charged. This appeal follows.

1. Laster argues that the trial court erred in overruling his objection to the testimony of the victim’s aunt, the victim’s mother, and the investigating detective, all of whom took the witness stand before the victim and relayed statements the victim made to them regarding Laster’s abuse. Laster contends that the collective testimony bolstered the victim’s testimony before her credibility had been challenged.

Generally speaking, “[u]nless a witness’s veracity has affirmatively been placed in issue, the witness’s prior consistent statement is pure hearsay evidence, which cannot be admitted merely to corroborate the witness, or to bolster the witness’s credibility in the eyes of the jury” (Footnotes omitted.) Woodard v. State, 269 Ga. 317, 320 (2) (496 SE2d 896) (1998), overruled on other grounds by Bunn v. State, 291 Ga. 183-184 (728 SE2d 569) (2012). The Child Hearsay Statute, however, is a legislatively-created exception to the general rule prohibiting such hearsay evidence and provides that, so long as certain conditions are met, a statement made by a child describing any act of sexual contact is admissible in evidence by the person to whom the statement was made. See OCGA § 24-3-16 (2012). As such, “the Child Hearsay Statute actually contemplates testimony from both the child and those witnessing the child’s later reaction, even if the hearsay may be ‘bolstering.’ ” (Citation and punctuation omitted.) Ledford v. State, 313 Ga. App. 389, 391-392 (2) (721 SE2d 585) (2011) (“Any ‘bolstering’ can be explored by defendant in cross-examination.” (citation and punctuation omitted)); see also Weathersby v. State, 262 Ga. 126, 128 (4) (a) (414 SE2d 200) (1992).

Here, Laster does not assert that the statutory requirements were not met, and we have previously held that, under OCGA § 24-3-16 (2012), the order of witnesses is irrelevant to the question of the admissibility of child hearsay evidence. See OCGA § 24-3-16 (2012); Hilliard v. State, 298 Ga. App. 473, 477 (4) (a) (680 SE2d 541) (2009) (holding that the trial court did not err in allowing a witness to testify regarding the child victim’s hearsay statements prior to the child testifying “because OCGA § 24-3-16 allows testimony about a child’s out-of-court statements even in cases when the child does not appear as a witness, as long as the child is available at the trial to testify”). Accordingly, the trial court did not err in allowing the child hearsay testimony See OCGA § 24-3-16 (2012); Hilliard, 298 Ga. App. at 477 (4) (a).

2. Laster further argues that the trial court erred by instructing the jury, in regard to the offense of sexual battery, that a child under the age of 16 lacks the legal capacity to consent to sexual conduct. We are constrained to agree.

After instructing the jury that “[a] person commits sexual battery when that person intentionally makes physical contact with the primary genital area and/or the buttocks of another person without consent ofthe other person,” see OCGA § 16-6-22.1 (b), the trial court further charged that “[u]nder Georgia law, a person under the age of 16 lacks legal capacity to consent to sexual conduct.”

Decided January 24, 2017.

Leo J. Right, Jr., for appellant.

Jacquelyn L. Johnson, District Attorney, Andrew J. Ekonomou, Assistant District Attorney, for appellee.

Although the charge was a correct statement of the law at the time it was given, following the trial, the Supreme Court of Georgia held that the crime of sexual battery “require[s] actual proof of the victim’s lack of consent, regardless of the victim’s age.” Watson v. State, 297 Ga. 718, 720 (2) (777 SE2d 677) (2015). Thus, the Watson Court determined that it is erroneous for a trial court to instruct a jury that an underage victim is not capable of consenting to contact constituting sexual battery. Id. at 720-721 (2). The instant case was in the appellate “pipeline” at the time Watson was decided and, consequently, the Watson holding governs our analysis. See Harris v. State, 273 Ga. 608, 610 (2) (543 SE2d 716) (2001). We therefore must determine whether the charge was harmless, i.e., whether it is highly probable that the erroneous charge did not contribute to the jury’s verdict. See Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976); see also Franks v. State, 278 Ga. 246, 266 (6) (599 SE2d 134) (2004) (applying the highly probable test to determine whether a jury instruction rendered erroneous by a new rule adopted while the case was in the appellate pipeline constituted reversible error).

Following Watson, the trial court’s charge “effectively relieved the State of its burden to prove [lack of consent,] an essential element of the crime of sexual battery.” Watson, 297 Ga. at 721 (2). As such, we cannot say, under the particular facts of this case, that it is highly probable the erroneous instruction did not contribute to the jury’s verdict. See generally Johnson, 238 Ga. at 61. It follows that we must reverse Laster’s sexual battery conviction. See generally Warren v. State, 283 Ga. 42, 43-44 (4) (656 SE2d 803) (2008); Cochran v. State, 276 Ga. 283, 285 (2) (576 SE2d 867) (2003).

Judgment affirmed in part and reversed in part.

Barnes, P. J., and Self, J., concur.

       Laster was found guilty of a second count of sexual battery against a child under the age of 16; however, that count merged into Laster’s child molestation conviction for sentencing purposes.

       There have been several iterations of the Child Hearsay Statute. This case is governed by OCGA § 24-3-16 (2012), which was in effect at the time Laster committed the offenses. See Ga. L. 2013, pp. 222, 243, § 21 (expressly providing that “[a]ny offense occurring before July 1, 2013, shall be governed by the [Child Hearsay Statute] in effect at the time of such offense”). OCGA § 24-3-16 (2012) provided:
      A statement made by a child under the age of 14 years describing any act of sexual contact . . . performed with or on the child by another ... is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.
      With the adoption of the new Evidence Code, effective January 1, 2013, OCGA § 24-3-16 was repealed and replaced with OCGA § 24-8-820, a nearly identical version of that statute. See Ga. L. 2011, pp. 99, 100, § 2. Six months later, OCGA § 24-8-820 was substantially revised. See Ga. L. 2013, pp. 222, 237, § 13 (effective July 1, 2013).


author: BARNES, Presiding Judge.

text:
    A16A2008.
    JONES v. THE STATE.
    (796 SE2d 487)
   BARNES, Presiding Judge.

Pursuant to a plea of guilty, Earl Ezzard Jones was convicted of aggravated battery, aggravated assault and criminal damage to property, and sentenced in April 2009 to concurrent ten-year and five-year prison terms; with one year to serve. The remainder of Jones’ sentence was probated. On December 10, 2010, the State filed a petition to revoke Jones’ probation for failure to comply with certain terms of his probation, including committing an aggravated assault in October 2010, and failing to pay his monthly probation fee. Following a hearing, the trial court entered an order on May 19, 2011, revoking Jones’ probation.

Subsequently, on June 17, 2011, Jones attempted to file a notice of appeal from the revocation order. However, the notice of appeal was incomplete and could not be processed at that time. The appeals clerk of the Eastern Judicial Circuit informed Jones at that time and again on November 8, 2012, that he would need to file an amended notice of appeal including certain omitted information before the court would proceed with his appeal. On March 28, 2013, Jones filed a motion to modify the sentence entered upon the probation revocation, in which he argued that his sentence was void because he had been acquitted of all criminal charges upon which his probation was revoked, and that he had not been afforded the opportunity at the revocation hearing to explain why he was unable to pay his probation fees. On April 8, 2013, the trial court entered an order denying the motion.

On May 17, 2013, Jones filed a notice of appeal from the order denying his motion to modify his sentence. On July 5, 2013, the appeals clerk notified Jones that his May 17 notice of appeal was also insufficient and needed to be amended to include certain information, and also informed Jones that his 2011 notice of appeal from the probation revocation order had not been amended to include the requested information. On July 22, 2013, Jones filed a second notice of appeal from the order denying his motion to modify sentence and an amended notice of appeal from the order revoking his probation. The appeals were subsequently docketed in this court.

On November 22,2013, this court dismissedboth appeals for lack of jurisdiction because the underlying subject matter of both appeals was the revocation of Jones’ probation and thus required that he file an application for discretionary appeal. Thereafter, on October 14, 2015, Jones filed a motion to correct a void sentence in which he again asserted, among other things, that the sentence imposed after his probation revocation was void by law because he was acquitted of the charges upon which his probation was revoked and also that, per OCGA § 42-8-34.1, the trial court could not revoke more than two years of the remaining probationary period and impose confinement. The trial court denied Jones’ motion and, citing Lewis v. Sims, 277 Ga. 240, 241 (587 SE2d 646) (2003), held that “the later dismissal of charges was of ‘no moment’ where the revoking court previously found by a preponderance of the evidence that defendant committed the alleged felonies and was subject to the revocation under the applicable statute.” Upon our review, we lack jurisdiction in this appeal.

Decided January 24, 2017.

Earl E. Jones, pro se.

Meg E. Heap, District Attorney, for appellee.

Appeals from orders revoking probation are subject to discretionary review. OCGA § 5-6-35 (a) (5); White v. State, 233 Ga. App. 873 (505 SE2d 228) (1998). As a matter involving the revocation of probation, the trial court’s denial of Jones’ motion to correct a void sentence after revocation is not subject to direct appeal. See Jones v. State, 322 Ga. App. 269, 271-272 (1) (745 SE2d 1) (2013); Todd v. State, 236 Ga. App. 757, 758 (513 SE2d 287) (1999).

Accordingly, because the court lacks jurisdiction to consider this appeal, it is hereby dismissed.

Appeal dismissed.

Rickman and Self, JJ., concur.

       The aggravated battery and aggravated assault convictions merged for sentencing.

       The record also includes a document entitled “Application for Discretionary Appeal” that was also filed on May 17, 2013. It is unclear from the record whether Jones actually filed an application in this court; however, the record reflects that there was no grant or denial of an application related to any of Jones’ appeals.

       This court noted that dismissal was also warranted because both notices of appeal were filed more than 30 days after entry of the orders Jones sought to appeal.

       OCGA § 42-8-34.1 addresses probation revocation, and authorizes the revocation of up to two years of probation for the violation of any general condition, the revocation of no more than the lesser of the balance of probation or the maximum time of the sentence authorized to be imposed for the felony offense when the defendant commits a felony offense, and the revocation of the balance of probation if the defendant violated a special condition.


text:
    A16A2157.
    ESTATE OF ROBERT HUNTER NIXON et al. v. BARBER et al.
    (796 SE2d 489)
   DILLARD, Presiding Judge.

The Estate of Robert Hunter Nixon, Kathy Nixon, and R. Bruce Nixon (“the Nixons”) appeal from the trial court’s grant of W. Keith Barber and W. Keith Barber, P.C.’s (“Barber”) motion to dismiss the Nixons’ action for legal malpractice. The Nixons argue on appeal that the trial court erred in dismissing their complaint based upon a failure to state a claim upon which relief could be granted because (1) they had an attorney-client relationship with Barber, and (2) their claims are not barred by causation issues (as maintained by Barber). For the reasons set forth infra, we affirm.

The record reflects that beginning in April 2013, Barber represented Robert Hunter Nixon (“Hunter”), son of Kathy and R. Bruce Nixon (“Kathy” and “Bruce”), on charges of selling and distributing marijuana. On September 3, 2014, Hunter terminated Barber’s representation and retained new counsel. But before a resolution was reached in his criminal prosecution, Hunter was killed in an automobile accident on November 7, 2014.

On March 1, 2015, the Nixons filed suit against Barber and asserted a single claim for legal malpractice. Specifically, the Nixons argued that Barber failed to properly represent Hunter in the criminal proceeding, which caused (1) unnecessary delay; (2) substantial stress; (3) extreme mental anguish; and (4) their son being unable to complete his college education when he subsequently died in a car accident. Among the allegations in the complaint were that Barber (1) negligently misrepresented the sentence Hunter faced; (2) was unprepared at a sentencing hearing; (3) made “numerous false and unsubstantiated statements to the Nixon Family”; (4) lied about being in contact with the prosecutor and working toward a better plea offer for Hunter; (5) had a conflict of interest between his duty as a defense attorney and his role as a municipal court judge; (6) pushed Hunter to work undercover with police and “asked for multiple unnecessary continuances”; and (7) botched his defense of Hunter, and that “had [the] criminal prosecution been handled correctly,” Hunter would have been attending Georgia State University rather than returning to Atlanta after working in Savannah (when he was tragically killed in the car accident).

Barber answered and moved to dismiss the complaint on the grounds that it failed to state a claim upon which relief could be granted when (1) the Nixons could not establish that any of the negligence alleged in his representation was the proximate cause of their damages, and (2) Kathy and Bruce, Hunter’s parents, lacked standing to sue for malpractice because they did not have an attorney-client relationship with Barber. The Nixons later amended their complaint to assert additional facts in support of finding that they had an attorney-client relationship with Barber. But in a summary order (on May 9, 2016), the trial court granted Barber’s motion to dismiss for failure to state a claim upon which relief could be granted. This appeal by the Nixons follows.

It is well established that a motion to dismiss for failure to state a claim upon which relief may be granted should not be sustained unless

(1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought.

And when a motion to dismiss is considered, “all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party’s favor.”

Moreover, a plaintiff is not required to “plead in the complaint facts sufficient to set out each element of a cause of action so long as it puts the opposing party on reasonable notice of the issues that must be defended against.” And if, within the framework of the complaint, “evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient.” At the appellate level, we review the trial court’s ruling on a motion to dismiss de novo. With these guiding principles in mind, we turn now to the Nixons’ specific claims of error.

1. The Nixons first argue that the trial court erred in granting the motion to dismiss on the basis that they lacked standing to maintain an action against Barber in the absence of an attorney-client relationship with him. Unfortunately, the court’s summary order lacked any analysis to support the dismissal. Nevertheless, we may affirm a dismissal if it is right for any reason. And here, as to Kathy and Bruce, the motion to dismiss was properly granted because they failed to state a claim upon which relief can be granted when they did not have an attorney-client relationship with Barber. For this same reason, Kathy and Bruce also lacked standing to bring a legal malpractice action against Barber.

In a legal-malpractice case, a plaintiff has the burden of proving the three elements of such an action: (1) employment of the defendant attorney (i.e., the plaintiff had an attorney-client relationship with the attorney); (2) failure of the attorney to exercise ordinary care, skill, and diligence; and (3) that the attorney’s negligence was the proximate cause of the plaintiff’s damages.

As to the first requirement, generally, an attorney-client relationship “must be demonstrated before a plaintiff may recover in a legal malpractice suit” because such a relationship is “essential in establishing the element of duty that is necessary to every lawsuit based upon a theory of negligence.” Although attorney-client relationships are typically matters of express contract, such a relationship can also be implied from the parties’ conduct. And the employment of an attorney is sufficiently established when it is shown that “the advice or assistance of the attorney is sought and received in matters pertinent to his profession.” Additionally, while the payment of a fee is relevant to the inquiry and may in some circumstances be controlling,

an attorney-client relationship may be found to exist [when] no fee is paid, and the payment of a fee does not necessarily demonstrate the existence of the relationship. All that is necessary isa “reasonable belief” on the part of the would-be client that he or she was being represented by the attorney. A reasonable belief is one which is reasonably induced by representations or conduct on the part of the attorney.

In support of their allegations that an attorney-client relationship was formed with Barber, Kathy and Bruce assert in their amended complaint that

[although Defendants were counsel of record only to Hunter, they provided legal representation, assistance and advice directly to Mr. and Mrs. Nixon. Defendants were paid by the Nixons, took direction from the Nixons, communicated with and reported to the Nixons, engaged in strategy discussions with the Nixons and were ultimately fired by the Nixons. The Nixons employed Defendants, had an attorney-client relationship with Defendants and reasonably believed that Defendants were acting on their behalf as well as on behalf of Hunter.

But again, an attorney-client relationship cannot “be created unilaterally in the mind of a would-be client; a reasonable belief is required.” And here, the allegations of the complaint evince that all communications between Kathy, Bruce, and Barber were made for the purpose of and related to Barber’s representation of Hunter in defense against his criminal prosecution.

At the very outset of the complaint, in describing the nature of the action, the Nixons explain that it is “an action for professional malpractice arising from Defendants’ improper handling of Robert Hunter Nixon’s criminal defense” because Barber “failed to properly evaluate and defend Robert Hunter Nixon . . . The Nixons then continue to describe the nature of the action by alleging that Barber (1) made misrepresentations about the sentences faced by Hunter; (2) was unprepared at Hunter’s sentencing hearing; (3) misinformed the family about his communications with the prosecution and efforts to obtain a better plea offer for Hunter “[throughout his representation of Hunter”; and (4) failed “to properly represent Hunter Nixon” such that it “caused unnecessary delay[,] ... substantial stress[,] and extreme mental anguish.” Later in the complaint, in setting forth the factual basis for the claim of legal malpractice, the Nixons alleged that

• “Hunter retained [Barber] to represent him in his criminal defense.”
• Barber discussed his representation of Hunter with the family.
• Barber recommended that the family obtain letters of Hunter’s good character in advance of the sentencing hearing.
• Barber communicated with the family regarding the prosecution’s plea offer, his efforts to obtain a better offer, and his recommendation that Hunter work with law enforcement in hopes of receiving a better offer.
• Barber communicated with the family about lining up speakers on Hunter’s behalf at another sentencing hearing.
• Barber further informed the family and Hunter about a new plea offer, which “the Nixons declined,” before Hunter agreed to continue working with law enforcement “against his parents’ wishes” after Barber warned that Hunter would “serve time” by declining the offer.
• Barber inquired with the Nixons as to why Hunter stopped assisting law enforcement and warned Hunter and his family that Hunter could face prison if he did not continue to cooperate with the police.
• Barber was fired “as Hunter’s counsel,” and new counsel was hired for “Hunter’s case.”

The Nixons further alleged that Barber was negligent in (1) failing to notify the prosecution of Hunter’s cooperation with law enforcement; (2) failing to present the trial court with letters of Hunter’s good character; (3) making false statements and misrepresentations to the Nixons; (4) failing to “diligently defend and properly evaluate the case” and “properly analyze the likely sentence in the event Hunter was convicted”; (5) “overestimating] the prosecutor’s case and failing] to effectively negotiate a plea bargain”; (6) being unprepared for Hunter’s May 13, 2014 sentencing hearing; and (7) having a conflict of interest between his role as a defense attorney and as a municipal court judge. Finally, even the expert affidavit in support of the Nixons’ complaint alleges that Barber failed “to competently represent Robert Hunter Nixon in his criminal proceedings” and “negligently or intentionally mishandled Robert Hunter Nixon’s criminal case.”

The record, then, is clear. Aside from Barber’s representation of Hunter and the efforts made on his behalf in the criminal proceeding (the success of which would have incidentally benefitted the Nixon family), Kathy and Bruce have not pleaded that Barber undertook any duty or made any promise specific to them. Indeed, in reviewing the allegations of the complaint, and notwithstanding the additional allegations in the amended complaint and their payment of Barber’s fees, Kathy and Bruce could not have reasonably believed that Barber represented them when all communications and representations were made in the course of (and regarded) Barber’s representation of their son in defense against his criminal charges. Thus, while it is certainly understandable that parents would be involved in and concerned with their child’s defense against criminal prosecution, the person with the ultimate decision-making authority in such a proceeding —and the person whose liberty is actually at stake—is the one whose interests are represented by counsel. Suffice it to say, an attorney-client relationship is personal, not vicarious. Accordingly, Kathy and Bruce failed to state a claim upon which relief could be granted and, likewise, lacked standing to bring a legal-malpractice action against Barber in their individual capacities. Therefore, the trial court properly dismissed the action as to Kathy and Bruce.

Decided January 26, 2017.

Ney, Hoffecker, Peacock & Hayle, William B. Ney, for appellants.

Ellis, Painter, Ratterree & Adams, Kimberly C. Harris, for appel-lees.

2. Finally, as to the Estate, the Nixons assert that the trial court erred in granting the motion to dismiss based upon Barber’s argument below that they “must demonstrate as a factual prerequisite to proving their case[ ] that Hunter was factually innocent of the crimes which he was charged with.” But we need not reach the propriety of Barber’s contention and the trial court’s apparent grant of the motion to dismiss on this ground because the Nixons abandoned this enumeration of error by failing to provide citation to authority in support of same.

For all of the foregoing reasons, we affirm the trial court’s grant of the motion to dismiss.

Judgment affirmed.

Reese and Bethel, JJ., concur.

       Although the pleadings and appellate briefs allege that Barber was terminated on September 3, 2015, this must be a scrivener’s error, as relevant incidents that allegedly occurred after Barber’s termination took place in 2014, and suit was only filed in March 2015.

        Cleveland v. MidFirst Bank, 335 Ga. App. 465, 465 (781 SE2d 577) (2016) (punctuation omitted).

        Id. (punctuation omitted).

        Id. (punctuation omitted).

        Id. (punctuation omitted).

        Id. at 465-66.

        See, e.g., Bobick v. Cmty. & S. Bank, 321 Ga. App. 855, 869-70 (4) (b) (743 SE2d 518) (2013) (affirming dismissal under the right-for-any-reason doctrine).

        See Ga. Insurers Insolvency Pool v. Hulsey Envir. Servs., Inc., 293 Ga. 504, 505-06 (748 SE2d 380) (2013) (affirming grant of motion to dismiss when party lacked standing to bring suit); cf. Dept. of Revenue v. Sawnee Electrical Membership Corp., 265 Ga. App. 320, 320-21 (593 SE2d 756) (2004) (holding that trial court erred in denying motion to dismiss when party lacked standing to bring suit). Standing, of course, is a prerequisite to the existence of subject-matter jurisdiction. Blackmon v. Tenet Healthsystem Spalding, Inc., 284 Ga. 369, 371 (667 SE2d 348) (2008) (“The constitutional and procedural concept of ‘standing’ falls under the broad rubric of ‘jurisdiction’ in the general sense, and in any event, a plaintiff with standing is a prerequisite for the existence of subject matter jurisdiction.”). And as we have previously explained, “[t]he court’s lack of subject-matter jurisdiction cannot be waived and may be raised at any time either in the trial court, in a collateral attack on a judgment, or in an appeal.” Ga. Dept. of Transp. v. Wyche, 332 Ga. App. 596, 598 (1) n.7 (774 SE2d 169) (2015) (punctuation omitted); accord Abushmais v. Erby, 282 Ga. 619, 622 (3) (652 SE2d 549) (2007). Finally, the burden of proving “the interest necessary to demonstrate a particular party’s standing is ordinarily placed on that party.” Dept. of Human Res. v. Allison, 276 Ga. 175, 178 (575 SE2d 876) (2003); see In the Interest of M. H., 247 Ga. App. 84, 85 (543 SE2d 390) (2000) (“The burden is on the defendant to show that he has standing to contest the alleged violation, i.e., that he has a legitimate expectation of privacy in the premises searched.”).

        See Carmichael v. Barham, Bennett, Miller & Stone, 187 Ga. App. 494, 495 (370 SE2d 639) (1988) (listing the three elements and holding that the first element was not satisfied when there was no attorney-client relationship between the plaintiffs and defendant, notwithstanding that the plaintiffs paid the attorney fees); see also Oswell v. Nixon, 275 Ga. App. 205, 207 (1) (620 SE2d 419) (2005) (“[T]he law is clear that to make out a case of legal malpractice, a lawyer-client relationship must exist between the plaintiff and the defendant attorney.” (punctuation omitted)).

        Cleveland Campers, Inc. v. R. Thad McCormack, P.C., 280 Ga. App. 900, 903 (2) (635 SE2d 274) (2006) (punctuation omitted); accord McKenna Long & Aldridge, LLP v. Keller, 267 Ga. App. 171, 173 (1) (598 SE2d 892) (2004).

        Cleveland Campers, Inc., 280 Ga. App. at 903 (2) (punctuation omitted); accord Keller, 267 Ga. App. at 173 (1).

        Cleveland Campers, Inc., 280 Ga. App. at 903 (2); Guillebeau v. Jenkins, 182 Ga. App. 225, 229 (1) (355 SE2d 453) (1987).

        Cleveland Campers, Inc., 280 Ga. App. at 903 (2) (punctuation omitted); accord Guillebeau, 182 Ga. App. at 229 (1).

        Cleveland Campers, Inc., 280 Ga. App. at 903 (2) (punctuation omitted); accord Calhoun v. Tapley, 196 Ga. App. 318, 319 (395 SE2d 848) (1990).

       (Emphasis supplied.)

        Cleveland Campers, Inc., 280 Ga. App. at 904 (2) (punctuation omitted) (emphasis supplied); accord Newberry v. Cotton States Mut. Ins. Co., 242 Ga. App. 784, 785 (1) (531 SE2d 362) (2000); Guillebeau, 182 Ga. App. at 231 (1).

       See OCGA § 9-11-9.1 (a) (requiring that any complaint alleging professional malpractice must be accompanied by an expert affidavit setting forth “at least one negligent act or omission claimed to exist and the factual basis for each such claim”).

        See Fox v. White, 215 SW3d 257, 262 (Mo. Ct. App. 2007) (“Certainly, had [the stepson] been acquitted or had [the attorney] in some other way succeeded in preserving his parental rights, other family members would have benefitted from that result. Merely acknowledging this fact, however, does not confer upon [the attorney] a duty to those family members. Such a duty could only be found in some sort of specific undertaking on behalf of those family members. Without pleading such an undertaking or promise, [the stepfather] has not pled that [the attorney] owed any such duty to [the stepfather]. No such undertaking or promise appears in the petition filed in this case.”); see also Crane v. Albertelli, 264 Ga. App. 910, 910-11 (1) (592 SE2d 684) (2003) (holding that trial court properly dismissed legal-malpractice claim when no attorney-client relationship existed between defendant attorney and clients’ husband/father because such a relationship does not exist “simply by virtue of [the husband/father’s] personal relationship with [the attorney’s] clients and [the husband/father’s] personal concern about the outcome of their appeals”).

        See Seals v. DeBose-Parent, 99 So3d 72, 74 (La. Ct. App. 2012) (holding that, notwithstanding brother’s payment of attorney fees, brother “was entirely aware that he was retaining the appellee as counsel for his sister” for representation in her criminal prosecution and, thus, no attorney-client relationship existed between attorney and client’s brother); Fox, 215 SW3d at 261-62 (holding that there was no attorney-client relationship between attorney and criminal defendant’s stepfather who paid fees and engaged attorney to represent stepson because “[a]ll of the benefits that [the stepfather] alleges he expected to receive from the contract are benefits indirectly derived from [the stepson’s] ultimate exoneration”).

        Cf. Spencer v. State, 287 Ga. 434, 439 (4) (696 SE2d 617) (2010) (noting that the ultimate decision as to whether or not to testify rests with criminal defendant and not his counsel); White v. State, 287 Ga. 713, 721 (4) (a) (699 SE2d 291) (2010) (“It is without question that it is the defendant, not his attorney, who, after being provided informed legal advice, makes the ultimate decision about whether or not to plead guilty.”); Hendrix v. State, 284 Ga. 420, 422 (2) (667 SE2d 597) (2008) (“Whether to waive a jury trial is a strategic decision to be made by an accused after consultation with counsel.” (punctuation omitted)).

        Crane, 264 Ga. App. at 910 (1); see Zielinski v. Clorox Co., 270 Ga. 38, 40-42 (2) (504 SE2d 683) (1998) (holding that plaintiff who approached attorney in representative capacity on behalf of a corporation failed to establish the existence of a personal attorney-client relationship with the attorney).

        See Fortson v. Hotard, 299 Ga. App. 800, 802 (2) (a) (684 SE2d 18) (2009) (holding that complaint was properly dismissed when plaintiffs failed to establish first element of legal malpractice—employment of the attorney); Oswell, 275 Ga. App. at 207 (1) (holding that complaint was properly dismissed when plaintiff failed to allege an attorney-client relationship with the defendant); Crane, 264 Ga. App. at 910-11 (1) (holding that trial court properly dismissed legal-malpractice claim when no attorney-client relationship existed between defendant attorney and clients’ husband/father); cf. Rhone v. Bolden, 270 Ga. App. 712, 716 (4) (a) (608 SE2d 22) (2004) (holding that trial court erred in denying attorneys’ motion for summary judgment as to legal-malpractice claim when evidence demanded a finding that no attorney-client relationship existed between plaintiff and defendants).

        See, e.g., Bobick, 321 Ga. App. at 869-70 (4) (b) (affirming dismissal under right-for-any-reason doctrine).

        See Blanton v. State, 324 Ga. App. 610, 615 (2) (a) n.10 (751 SE2d 431) (2013) (finding that appellant abandoned a claim by failingto cite any authority to support it); Clarke v. State, 317 Ga. App. 471, 475 (1) (d) (731 SE2d 100) (2012) (holding that argument was waived by appellant’s failure to cite legal authority in support thereof); Court of Appeals Rule 25 (c) (2) (“Any enumeration of error which is not supported in the brief by citation of authority or argument may be deemed abandoned.”). We note that, had this enumeration not been abandoned, this would have been an issue of first impression in Georgia, and it is a question that has resulted in a split of authority across the country. See generally Meredith J. Duncan, Criminal Malpractice: A Lawyer’s Holiday, 37 Ga. L. Rev. 1251, 1266-68 (III) (a) (2003) (noting that when a legal-malpractice plaintiff is a “former criminal defendant suing his former criminal defense attorney for negligence, many jurisdictions add additional elements to those traditionally required,” and that in those jurisdictions, “the plaintiff is required to prove that he has been exonerated or has otherwise obtained postconviction relief from the charged offense,” and further noting that in several jurisdictions, “the claimant must further prove that he was actually innocent of the charges for which he has obtained that relief” (emphasis supplied)); Kevin Bennardo, Note, A Defense Bar: The “Proof of Innocence” Requirement in Criminal Malpractice Claims, 5 Ohio St. J. Crim. L. 341, 342-43 (II) (2007) (“The majority of jurisdictions require that criminal malpractice plaintiffs prove attainment of post-conviction relief, their actual innocence, or both to successfully bring a criminal malpractice lawsuit. A minority of jurisdictions require no showing of innocence in litigating such a malpractice claim[.]” (footnotes omitted)); Cort Thomas, Note, Criminal Malpractice: Avoiding the Chutes and Using the Ladders, 37 Am. J. Crim. L. 331, 343-44 (III) (A) (1) (2010) (discussing the majority and minority views across the country, and noting that the majority of jurisdictions “require that a criminal malpractice plaintiff prove either legal innocence, factual innocence, or both before she may even bring a criminal malpractice claim in the first place” while the minority of jurisdictions “choos[e] not to enforce an innocence requirement at all” and “generally reject the litany of policy considerations offered for each requirement”).