author: Branch, Judge.

text:
    A16A0827.
    BRYANT v. OPTIMA INTERNATIONAL, INC. et al.
    (792 SE2d 489)
   Branch, Judge.

Jeffrey Bryant appeals from two separate orders of the DeKalb County Superior Court, both of which arose out of a single lawsuit and both of which were entered on the same day The first of these orders granted summary judgment against Bryant and in favor of Optima International, Inc. (“Optima”), on a 2001 promissory note Bryant executed in conjunction with a loan he received from Optima. The second order granted summary judgment against Bryant and in favor of Innovative Consultants Group, Inc. (“Innovative”), on a 2004 promissory note Bryant gave in exchange for a loan from Innovative. Bryant argues that the trial court erred in granting summary judgment in favor of Optima because that company failed to file suit on the 2001 promissory note within the applicable limitation period. Bryant further contends that the trial court erred in granting summary judgment in favor of both Optima and Innovative because the two entities function as Gobind Madan’s corporate alter egos; because a security interest in the same piece of real property was given to secure both loans; and because after Optima foreclosed on that property, it failed to seek a confirmation of the foreclosure sale. For reasons set forth more fully below, we find that one or more questions of fact exist as to whether Optima’s failure to confirm the foreclosure sale bars the claims asserted by Optima and Innovative in this case. Accordingly, we reverse the orders of judgment entered in favor of Optima and Innovative, and remand the case for further proceedings consistent with this opinion.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). “In reviewing a grant or denial of summary judgment, we owe no deference to the trial court’s ruling and we review de novo both the evidence and the trial court’s legal conclusions.” GAPIII, Inc. v. Seal Indus., 338 Ga. App. 101, 102 (789 SE2d 321) (2016) (citation omitted). Moreover, we construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. SKC, Inc. v. eMAG Solutions, 326 Ga. App. 798 (755 SE2d 298) (2014).

Here, the facts are largely undisputed, and the record shows that Bryant owned and operated a business known as Club Mirage, which was situated on a piece of real property owned by Bryant and located at 3843 Glenwood Road or Avenue in Decatur (the “Glenwood Property”). Bryant’s residence was located next door to Club Mirage, at 3837 Glenwood. At all relevant times, Gobind Madan was serving as the accountant for Bryant and his business. Bryant contends that Madan is the sole or primary shareholder of both Optima and Innovative. It is undisputed that Madan controls both entities, as he serves as the registered agent, CEO, CFO, and secretary of both corporations. On November 7, 2001, Optima loaned Bryant $200,000 for the purpose of financing Bryant’s business. In exchange, Bryant executed a promissory note with a maturity date of November 7, 2006. Under the terms of the note, Bryant agreed to pay interest at the rate of 24 percent per annum; to make monthly interest payments in the amount of $4,000; to pay back the principal in an amount of not less than $20,000 on or before each anniversary date of the note; and to pay off any balance remaining under the note by November 7,2006. The note further provided that “should the indebtedness evidenced hereby or any part hereof be collected by law or through an attorney at law, borrower agrees to pay all costs of collection, including fifteen percent (15%) of the aggregate amount of principal and interest then owing here under as attorneys’ fees.” Additionally, the 2001 promissory note stated:

The indebtedness evidenced hereby is secured by that certain Security Deed and [Security] Agreement from Borrower to Lender of even date herewith conveying to Lender certain real property and other collateral of Borrower located in DeKalb and Fulton Counties, Georgia (said Security Deed and Agreement, together with this Note, and any other instrument evidencing, securing, or relating to the indebtedness evidenced hereby, whether now or hereafter existing, including without limitation, all being hereinafter collectively referred to as the “Loan Documents”); some of which Loan Documents are to be filed for record on or about the date hereof in the public records of DeKalb and Fulton Counties, Georgia.

The record does not contain a copy of the security deed referenced in the 2001 promissory note, but other evidence in the record shows that on November 7, 2001, Bryant gave Optima a security deed on his real property located at 3843 Glenwood Road and that this deed is recorded in DeKalb County Deed Book 12715, page 417.

On March 5, 2004, Innovative loaned Bryant $345,000 for the purpose of financing Bryant’s business, and in exchange, Bryant executed a promissory note in favor of Innovative. Under the terms of that note, Bryant agreed to pay $131,100 in interest in 23 equal monthly installments of $5,700; to repay the principal at the rate of $75,000 per year for the calendar years 2004 and 2005; and to pay the remaining principal balance on March 5, 2006. Additionally, the 2004 promissory note provided that “[s]hould the indebtedness evidenced hereby or any part thereof be collected by law or through an attorney at law, [borrower] agrees to pay all costs of collection, including an amount equal to fifteen (15%) percent of [the] indebtedness, as attorney’s fees.” The note further stated that it was “secured by a security interest in certain real property owned by [Bryant] which is more particularly described in a Deed to Secure Debt of even date herewith, executed and delivered by the undersigned in favor of Holder[] known as 3837 and 3843 Glenwood Road, Decatur, Georgia.” A copy of the Deed to Secure Debt referenced in the 2004 promissory note does not appear in the record.

On January 1,2007, Optima loaned Bryant an additional $498,900 for the purpose of financing Bryant’s business. In exchange, Bryant executed another promissory note in favor of Optima. Under the terms of this note, Bryant agreed to pay an interest rate of 12 percent per annum, to pay interest on a monthly basis, and to pay the principal no later than December 31, 2008. The note further stated that it was “secured by a Deed to Secure Debt dated March 5, 2004[,] granting the Holder [] a security interest in the real property known as 3843 Glenwood Road, DeKalb County, Georgia.” The record does not contain a copy of the deed to secure debt referenced in the 2007 promissory note.

On November 6, 2007, Optima, as attorney-in-fact for Bryant, executed a Deed Under Power, in which Madan averred that Bryant had executed and delivered to Optima

a certain Deed to Secure Debt and Security Agreement dated March 5, 2004 and recorded in Deed Book 16608, page 52, DeKalb County, Georgia records as modified by First Modification Agreement dated January 1, 2007 and recorded in Deed Book 19674, page 728, aforesaid records, conveying the after-described property to secure the payment of a Promissory Note dated January 1,2007 in the principal amount of Four Hundred Ninety Eight Thousand Nine Hundred and no/100 ($498,900.00) Dollars and a Promissory Note dated January 1, 2007 in the principal amount of Five Hundred Sixty Nine Thousand Six Hundred Eighty Seven and 81/100 ($569,687.81) Dollars[] (the “Notes”)[.]

The Deed Under Power also described the property foreclosed upon; stated that the property had been sold at a foreclosure sale held on the first Tuesday of November 2007 for $1,417,993.35; recited that this property was “commonly known as 3843 Glenwood Avenue (Road), Decatur, Georgia”; and asserted that “[t]he above[-]described property is conveyed subject to a certain Deed to Secure Debt from Jeffrey D. Bryant to Optima International, Inc., dated November 7, 2001, and recorded in Deed Book 12715, page 417, DeKalb County records.” (Emphasis supplied.)

On April 23, 2008, Optima transferred the Glenwood Property to Madan. Several months later, on November 24, 2008, Bryant filed the current lawsuit against Madan, Optima, and Innovative, in which he asserted claims for fraud, fraud in the inducement, breach of the duties of good faith and fair dealing, RICO, predatory lending, and conversion. Bryant also sought to set aside the foreclosure of the Glenwood Property under the security deeds he gave to secure the December 2001, March 2004, and January 2007 loans. In conjunction with this lawsuit, Bryant also filed a notice of lis pendens as to the real property Optima had foreclosed on a year earlier. On January 8, 2009, an answer, defenses, and counterclaims were filed apparently on behalf of all three defendants, in which they sought cancellation of the notice of lis pendens. The defendants thereafter filed a brief in support of their motion to cancel the notice of lis pendens, and on February 10, 2009, the trial court entered an order granting that motion. Bryant then appealed the cancellation of the lis pendens, and this Court affirmed the order in an unpublished opinion. Bryant v. Madan (A10A0163) (May 12, 2010).

While Bryant’s appeal of the lis pendens issue was pending, Madan filed a plea in abatement, seeking to have Bryant’s claims against him dismissed. During this same time period, Optima filed an amended counterclaim against Bryant seeking amounts allegedly due under the 2001 promissory note, and Innovative amended its counterclaim to seek recovery of amounts allegedly due under the 2004 promissory note. Following our decision in Bryant’s first appeal and remittitur of the case to the trial court, the three named defendants filed a joint motion for summary judgment on all of the claims Bryant had asserted against them. The trial court thereafter stayed the case pending the outcome of the state court action between Madan and Bryant. Following the entry of the stay, and while the motion for summary judgment was still pending, Optima filed a second amended counterclaim, in which it sought an order requiring Bryant to file an assignment of a security interest he held in the property located at 3837 Glenwood. Optima asserted that Bryant had assigned it this security interest in 2007.

Although no order lifting the stay of the case appears in the record, the trial court heard the defendants’ summary judgment motion on November 13, 2012, and it subsequently entered an order granting summary judgment to Optima and Innovative on all of Bryant’s claims against the two corporate entities. In a separate order entered on the same day, the trial court granted Madan’s plea in abatement and dismissed Bryant’s claims against him. Approximately two months later, in January 2013, Optima and Innovative filed separate summary judgment motions as to their counterclaims. Specifically, Optima sought summary judgment on its claim for amounts allegedly due under the 2001 note and on its request for the filing of record of Bryant’s 2007 assignment to Optima of his security interest in 3837 Glenwood. Innovative sought summary judgment on its claim for amounts allegedly due under the 2004 promissory note. The trial court granted each of these motions and entered judgment in favor of Optima and against Bryant for $786,600, plus costs and post-judgment interest. The order also granted Optima the right to file a copy of the 2007 assignment as though it were an original. The summary judgment order as to Innovative granted judgment in its favor and against Bryant in the amount of $849,045, plus costs and post-judgment interest. Bryant now appeals from each of the summary judgment orders.

1. Bryant argues that Optima’s claim on the 2001 note is time-barred because Optima failed to sue on the note within the six-year statute of limitation that applies to written contracts. See OCGA § 9-3-24 (“[a]ll actions upon simple contracts in writing shall be brought within six years after the same become due and payable”). We disagree.

Under OCGA § 9-3-23, “[ajctions upon bonds or other instruments under seal shall be brought within 20 years after the right of action has accrued. No instrument shall be considered under seal unless so recited in the body of the instrument.” (Emphasis supplied.) In applying this statute, we have found that where a promissory note states that it is given under seal and the notation “seal” appears after the debtor’s signature, the note is a contract under seal. Thomas v. Summers, 329 Ga. App. 250, 253 (1) (764 SE2d 578) (2014). See also Hixon v. Woodall, 246 Ga. 758 (272 SE2d 727) (1980). Here, the 2001 promissory note provides that Bryant “has caused this Note to be duly executed under seal,” and the word “SEAL” appears in parentheses next to Bryant’s name. Accordingly, the note was given under seal, and the 20-year statute of limitation found in OCGA § 9-3-23 applies. See Thomas, 329 Ga. App. at 250 (a promissory note was given under seal where it recited that it was given “under the hand and seal of” the debtors, and the notation “(seal)” appeared after the debtors’ signatures); Telfair Finance Co. v. Williams, 172 Ga. App. 489 (323 SE2d 689) (1984). Optima’s claim on the 2001 promissory note, therefore, was brought within the applicable limitation period.

2. Bryant further asserts that the claims of both Optima and Innovative are barred by Optima’s failure to confirm the foreclosure sale of the Glenwood Property We find that one or more questions of fact exist as to whether Optima’s failure to confirm the foreclosure sale precludes Optima and/or Innovative from seeking to recover under the promissory notes at issue.

Under OCGA § 44-14-161 (a):

When any real estate is sold on foreclosure, without legal process, and under powers contained in security deeds, mortgages, or other lien contracts and at the sale the real estate does not bring the amount of the debt secured by the deed, mortgage, or contract, no action maybe taken to obtain a deficiency judgment unless the person instituting the foreclosure proceedings shall, within 30 days after the sale, report the sale to the judge of the superior court of the county in which the land is located for confirmation and approval and shall obtain an order of confirmation and approval thereon.

This Court has previously held that where there exist “inextricably intertwined” debts, owed to the same creditor and secured by the same property, “the creditor cannot recover a second [or subsequent] debt after foreclosing on the first debt unless the foreclosure is confirmed.” Hildebrand v. Bank of America, 332 Ga. App. 175, 177 (1) (772 SE2d 790) (2015). This rule results from the fact that where multiple debts are inextricably intertwined, the foreclosure of the property securing one of those debts affects all of the intertwined debts. First Citizens Bank & Trust v. Ruddell, 330 Ga. App. 82, 85 (766 SE2d 538) (2014). Thus, the application of the confirmation statute in these situations prevents “creditors from circumventing the statute’s mandates by making successive loans against the security of the same property” Iwan Renovations v. North Atlanta Nat. Bank, 296 Ga. App. 125, 128 (1) (673 SE2d 632) (2009) (citations omitted). See also Bank of North Ga. v. Windermere Dev., 316 Ga. App. 33, 38 (1) (728 SE2d 714) (2012).

Here, Optima contends it foreclosed on the Glenwood Property under a deed that secured the 2007 loan it made to Bryant. Thus, if the 2001 and 2004 debts are inextricably intertwined with the 2007 debt, then Optima’s failure to confirm the foreclosure sale would bar the claims at issue. We therefore turn to the question of whether either the 2001 loan from Optima or the 2004 loan from Innovative is inextricably intertwined with the 2007 loan from Optima.

(a) The November 2001 promissory note to Optima.

Under Georgia law, debts are “inextricably intertwined” where those debts were “incurred for the same purpose, secured by the same property, held by the same creditor, and owed by the same debtor.” Iwan Renovations, 296 Ga. App. at 128 (1) (citations omitted). The record shows that the debts incurred under both the 2001 and the 2007 promissory notes are owed by a single debtor (Bryant) to a single creditor (Optima). Additionally, each of these promissory notes was secured by the Glenwood Property Moreover, Bryant provided both deposition testimony and an affidavit that each of these loans was made to help finance his business. Optima concedes in its appellate brief that the 2001 loan was made for this purpose, and it has not disputed Bryant’s assertion that the 2007 loan was made for the same purpose. Thus, the evidence is sufficient to create a question of fact as to whether the 2001 and 2007 loans were made for the same purpose. If both loans were made for the purpose of financing Bryant’s business, then they would be “inextricably intertwined” as a matter of law. See Bank of North Ga., 316 Ga. App. at 38 (1) (although the three separate obligations at issue were incurred at different, times over a three-year period, they were inextricably intertwined as a matter of law where all of the individual debts were incurred by the same debtor, were obtained for the same purpose, were owed to a single lender, and were secured by the same property); Iwan Renovations, 296 Ga. App. at 129 (1). And if the loans are so intertwined, Optima’s failure to confirm its foreclosure sale of that property pursuant to the security deed it received in conjunction with the 2007 loan would preclude it from suing to recover the amounts allegedly owed under the 2001 note. See Bank of North Ga., 316 Ga. App. at 38-39 (1) (holding that a lender’s suit to recover debts evidenced by letters of credit given by the debtors and that were secured by the same property securing earlier promissory notes to the lender from the same debtors was barred by the lender’s failure to obtain judicial confirmation of its foreclosure under the notes); Iwan Renovations, 296 Ga. App. at 128-129 (1).

Optima seeks to avoid this conclusion by arguing that the foreclosure took place only under the Deed to Secure Debt Bryant executed in conjunction with the January 2007 loan Optima made to Bryant. Thus, Optima argues that because the foreclosure did not take place under the deed given to secure the 2001 promissory note, its failure to confirm the 2007 foreclosure sale of the Glenwood Property does not preclude Optima from suing on the 2001 promissory note. This Court, however, has previously considered and rejected this reasoning. In Iwan Renovations, the lender argued that foreclosure pursuant to the security deed as to one of the intertwined debts held by the creditor simply rendered the remaining debt an unsecured obligation and that the creditor remained free to sue the debtors on the unsecured debt. Iwan Renovations, 296 Ga. App. at 128 (1). We rejected that argument, finding that because the debts were intertwined, the creditor’s failure to confirm the foreclosure sale of the property securing both debts barred it from suing to recover the remaining debt. Accordingly, we reversed the trial court’s grant of summary judgment in favor of the creditor. Id. at 128-129 (1).

We apply the reasoning of Iwan Renovations here and find that the trial court erred in granting summary judgment to Optima. Specifically, we find that given the current record, a question of fact exists as to whether the 2001 and the 2007 loans were given for the same purpose, and therefore a factual question exists as to whether those two loans are inextricably intertwined.

(b) The March 2004 promissory note to Innovative.

Like the promissory notes executed in favor of Optima, the debtor under the March 2004 promissory note is Bryant. Additionally, that loan was also secured, at least in part, by the Glenwood Property. Moreover, in the parties’ joint brief, Innovative acknowledged that the 2004 loan was also made for the purpose of financing Bryant’s business. The only questions remaining as to whether the 2004 loan is inextricably intertwined with the 2001 and 2007 loans, therefore, are whether the 2007 loan was made for the same purpose as the other loans and whether the 2004 loan was made by the same lender as the 2001 and 2007 loans.

Although the 2004 loan was made by Optima and the 2001 and 2007 loans were made by Innovative, there is evidence that both of these entities were functioning as the corporate alter egos of Madan. If, in fact, Madan was using Optima and Innovative as his alter egos, then a factfinder could conclude that all three loans were made by Madan and therefore that all three debts are owed to the same creditor.

Georgia law recognizes the alter ego doctrine, which allows the application of equitable principles “to disregard the separate and distinct legal existence possessed by a corporation where it is established that the corporation served as a mere alter ego or business conduit of another.” Kissun v. Humana, Inc., 267 Ga. 419-420 (479 SE2d 751) (1997) (citations omitted). Under this doctrine, a corporation will be viewed as synonymous with its individual shareholders where the evidence shows

that the stockholders’ disregard of the corporate entity made it a mere instrumentality for the transaction of [the shareholders’] own affairs; that there is such a unity of interest and ownership that the separate personalities of the corporation and the owners no longer exist; and to adhere to the doctrine of corporate entity would promote injustice or protect fraud.

Sheppard v. Tribble Heating & Air Conditioning, 163 Ga. App. 732, 733 (1) (294 SE2d 572) (1982), quoting Farmers Warehouse of Pelham v. Collins, 220 Ga. 141, 150 (2) (d) (137 SE2d 619) (1964). See also Baillie Lumber Co. v. Thompson, 279 Ga. 288, 290 (1) (612 SE2d 296) (2005). Evidence that an individual shareholder has used a corporation as an alter ego for the conduct of the shareholder’s own affairs would include evidence showing that the shareholder “disregarded the separateness of legal entities by commingling on an interchangeable or joint basis or confusing the otherwise separate properties, records[,] or control” of the legal entities with the shareholder’s personal business. Cobra 4 Enterprises v. Powell-Newman, 336 Ga. App. 609, 613 (2) (785 SE2d 556) (2016) (citations and punctuation omitted).

Here, Madan is the registered agent, CEO, CFO, and secretary of both Optima and Innovative, and Madan and the corporations share a business address. Additionally, the pleadings in this case suggest that Optima and Innovative view themselves, together with Madan, as one and the same. A single attorney has represented all three entities throughout this litigation and, as noted above, the answer filed by Innovative was also treated as the answer of Optima and Madan. Moreover, the motion for cancellation of the lis pendens filed by Optima sought relief on behalf of all three defendants, and all three defendants were granted relief under that motion. And it appears from the record that Innovative agreed to the modification of its 2004 deed to secure debt to facilitate Optima’s 2007 loan to Bryant. The record further suggests that Innovative may have assigned the 2004 deed to secure debt to Optima to facilitate Optima’s foreclosure of the Glenwood Property In this regard, we note that the deed under power of sale executed by Optima expressly states that Optima was exercising the foreclosure power granted it by the deed given to secure the 2004 promissory note from Bryant to Innovative, as modified at the time of the January 2007 loan from Optima to Bryant. The deed under power further stated that the Glenwood Property was “conveyed subject to” the deed to secure debt given by Bryant to secure the 2001 loan from Optima. Finally, following foreclosure, Optima transferred the Glenwood property to Madan.

Given this evidence, we find that a question of fact exists as to whether all of the debts at issue, including the 2004 loan from Innovative to Bryant, are owed to a single creditor, namely Madan. This question, like the question of whether the 2004 loan from Innovative and the 2007 loan from Optima were given for the same purpose, must be resolved by a trier of fact. See Renee Unlimited, Inc. v. City of Atlanta, 301 Ga. App. 254, 260 (2) (b) (687 SE2d 233) (2009) (where there was some evidence that would support a finding that the shareholders used the corporate entities as their alter egos, it was for the jury to decide whether the alter ego doctrine should apply and allow the entities and the shareholders to be treated as one); Soerries v. Dancause, 248 Ga. App. 374, 375 (546 SE2d 356) (2001) (when litigated, the question of whether the alter ego doctrine applies “is for the jury, unless there is no evidence sufficient to justify disregarding the corporate form”) (citations and punctuation omitted). Accordingly, we find that the trial court erred in granting summary judgment in favor of Innovative.

Decided November 15, 2016

Reconsideration denied November 30, 2016.

The Hornsby Law Firm, Louise T. Hornsby, for appellant.

Robert W. Raleigh, for appellees.

For the reasons set forth above, we reverse the orders of judgment entered in favor of Optima and Innovative. The case is remanded for proceedings consistent with this opinion.

Judgment reversed and case remanded.

Miller, P. J., and McMil-lian, J., concur.

       It appears that all of the relevant documents pertaining to the loans at issue referred to this property as being located on Glenwood Road in Decatur. The deed under power evidencing the sale of the property, however, states that the property is “commonly known as 3843 Glenwood Avenue (Road), Decatur, Ga.”

       The record does contain a copy of the security agreement referenced in the 2001 promissory note, and that agreement granted Optima, as the secured party, a security interest in
      all inventory, equipment, appliances and furnishings now or hereafter placed upon the premises located at 3837/3843 Glenwood Road, Decatur, Georgia 30032 (the “Premises”) or used in connection therewith and in which Debtor now has or hereafter acquires any right and the proceeds therefrom. As additional collateral, Debtor assigns to Secured Party, a security interest in all of its right, title, and interest to any trademarks, trade names, contract rights, and the leasehold interests in which Debtor now has or hereafter acquires. The Security Interest shall secure the payment and performance of Bryant’s promissory note of the even date herewith in the principal amount of Tw[o] Hundred Thousand and No/100 ($200,000) Dollars and the payment and performance of all other liabilities and obligations of Bryant to Secured Party of every kind and description, direct or indirect, absolute or contingent, due or to become due now existing or hereafter arising.

       The note defined “Holder” as Innovative ‘together with any assignee [of Innovative] or holder [of the note].”

       As noted supra, Bryant’s residence was located at 3837 Glenwood, and Club Mirage was located at 3843 Glenwood.

       The note defined “Holder” as Optima “together with any assignee of [Optima].” Thus, it may be that Innovative assigned its rights under the March 5, 2004 security deed to Optima. That question cannot be resolved based on the current evidence, however, as the record does not indicate how Optima came to have its 2007 loan to Bryant secured by the same deed to secure debt that Bryant gave to Innovative to secure the 2004 loan.

       The record does not contain any evidence of a promissory note in the amount of $569,687.81 executed by Bryant in favor of Optima or any other party, nor does it contain a copy of the First Modification Agreement referenced in the Deed Under Power.

       The notice of lis pendens also covered the property at 3837 Glenwood, on which Bryant’s residence was located.

       The pleading stated it was filed only on behalf of Innovative, but no answer from the other two named defendants appears in the record. This document, however, purports to seek relief on behalf of all defendants, as opposed to merely Innovative, and it makes certain admissions as to both Madan and Optima. Additionally, it appears from the record that all of the parties and the trial court treated this pleading as having been filed on behalf of all the defendants.

       Just as the answer asserted it was filed on behalf of Innovative (as opposed to either of the other two named defendants), the brief in support of the motion for cancellation of the lis pendens asserted that it was filed only on behalf of Optima. Again, however, the parties and the trial court treated this pleading as though it had been filed on behalf of all three defendants, and the trial court’s order granting the motion indicated that it was granting relief as to all defendants.

       In support of this plea, Madan pointed to the record evidence showing that before Bryant brought the current lawsuit, Madan had filed suit against Bryant in DeKalb County State Court, and Bryant had asserted counterclaims against Madan that were identical to the claims Bryant asserted in the superior court case.

       The security interest was granted to Bryant by SJI Enterprises, Inc., on February 21, 2005. According to Bryant, SJI is another entity owned and/or controlled by Madan. Bryant testified that he sold his home, located at 3837 Glenwood, to SJI.

       This amount represented $200,000 in principal, $484,000 in interest, and $102,600 in attorney fees. The amount of attorney fees was calculated pursuant to the terms of the note and OCGA § 13-1-11, which provides, in relevant part, that if such a “note or other evidence of indebtedness provides for attorney’s fees in some specific percent of the principal and interest owing thereon, such provision and obligation shall be valid and enforceable up to but not in excess of 15 percent of the principal and interest owing on said note or other evidence of indebtedness.” OCGA § 13-1-11 (a) (1). The statute further provides:
      .. . [T]he party requesting the attorney’s fees shall submit an affidavit to the court with evidence of attorney’s fees, and the party required to pay such fees may respond to such affidavit. . . . The court may hold a hearing to decide the matter of attorney’s fees or may award attorney’s fees based on the written evidence submitted to the court. The amount of attorney’s fees awarded shall be an amount found by the court to be reasonable and necessary for asserting the rights of the party requesting attorney’s fees.
      OCGA § 13-1-11 (b) (2), (3). We note that in this case, the trial court made no express finding as to the reasonableness or necessity of the attorney fees it awarded to Optima.

       This amount represented $345,000 in principal, $393,300 in interest, and $110,745 in attorney fees. Again, attorney fees were calculated pursuant to the terms of the note and OCGA § 13-1-11, but the trial court made no express finding as to the reasonableness or necessity of the attorney fees it awarded to Innovative.

       This note was also secured by the property located at 3837 Glen wood. The current record shows, however, that Bryant subsequently sold that piece of property to SJI Enterprises. Neither the parties nor the trial court considered whether the fact that the 2004 loan was secured by additional real property (in addition to the Glenwood Property) might affect the question of whether the 2004 and the 2007 loans were inextricably intertwined. Thus, we decline to consider that question at this time.

       We are puzzled by the fact that none of the parties filed any of the deeds to secure debt and/or any modifications thereof, given by Bryant to secure the loans at issue. The trial court might find these documents helpful on remand, and it therefore might want to consider requiring the parties to file with the court copies of all relevant deeds, including any recorded modifications thereof.


source: Caselaw Access Project

author: McFADDEN, Judge.

license: Public Domain

text:
    A16A0882.
    WOODRUFF v. THE STATE.
    (792 SE2d 471)
   McFADDEN, Judge.

A jury convicted Donald Lee Woodruff of possession of marijuana with intent to distribute, possession of morphine, and possession of oxycodone. On appeal, Woodruff argues that the trial court erred by failing to require the state to disclose the identity of a confidential informant, but the confidential informant was a mere tipster, so the trial court did not err. Woodruff also argues that he is entitled to a new trial because during deliberations, a juror researched slang terms that Woodruff had used to refer to narcotics. But the state presented evidence sufficient to overcome the prejudice caused by any juror misconduct. We therefore affirm.

1. Facts.

When we review a criminal conviction,

the evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

Morris v. State, 322 Ga. App. 682 (1) (746 SE2d 162) (2013) (citation omitted). Viewed in this light, the evidence showed that an agent with the West Metro Regional Drug Enforcement task force met a confidential informant who told the agent that a particular person was selling marijuana from a house in the Villa Rica area. The agent determined that Woodruff resided in the house. He used the confidential informant to conduct three controlled buys of marijuana from Woodruff. The agent obtained a search warrant based on this activity

When law enforcement executed the search warrant, they found morphine pills, oxycodone tablets, and 225.2 grams of marijuana in the house. Woodruff told the officers that everything was his and that he would show the officers where all the evidence was located so that they would not destroy his house.

At trial, a drug identification chemist with the Georgia Bureau of Investigation identified the pills taken from Woodruff’s residence as morphine and oxycodone. An officer who participated in the arrest identified marijuana taken from Woodruff’s house.

2. Identity of confidential informant.

Woodruff argues that the trial court erred by refusing to require the state to reveal the identity of the confidential informant. We disagree. The state was not required to disclose the informant’s identity because

the confidential informant’s sole involvement in the case was providing information to the police officer and making controlled drug buys from [Woodruff]. The police officer then relied upon those controlled drug buys to obtain a search warrant for [Woodruff’s] residence. The [s]tate did not indict [Woodruff] for the multiple sales of [drugs] to the informant. Rather, the [s]tate indicted [Woodruff] for [possession of morphine, possession of oxycodone, and] possession of marijuana with the intent to distribute based on the drugs found during the execution of the search warrant. The confidential informant was not present during the execution of the search warrant and was not a witness to the offenses that form the basis of the instant prosecution. Consequently, the trial court was authorized to conclude that the informant was a mere tipster whose identity was absolutely privileged. Therefore, the trial court correctly denied [Woodruff’s] motion to reveal the confidential informant’s identity.

Reid v. State, 321 Ga. App. 653, 656 (2) (742 SE2d 166) (2013). “Because the confidential informant appears to be a mere tipster who had neither seen nor participated in the events, disclosure was not required.” Villegas v. State, 273 Ga. 824, 825 (3) (546 SE2d 504) (2001) (citation omitted).

3. Juror misconduct.

Woodruff argues that he is entitled to a new trial because of juror misconduct. We find that the trial court did not abuse his discretion in denying the motion for new trial on this ground. See Gaines v. State, 274 Ga. App. 575 (618 SE2d 197) (2005) (“[M]otions for new trial because of improper conduct of jurors are addressed to the sound discretion of the trial judge.”) (citation and punctuation omitted).

At trial, the state played Woodruff’s recorded statement in which he said that everything illegal in the house was his, describing the contraband as pills and weed. When the officer interviewing Wood-ruff asked him how much he sold the pills for, Woodruff answered that it depended on the pill. He explained, “Roxy thirties go for twenty-two, Roxy fifteens go for twelve, Lorcets go for five, the tens go for five, the seven-fifties go for four, the fives go for three, the footballs go for two, number five Xanax go for $1, green [unintelligible] bars go for five, regular white bars go for four.”

After the trial, while defense counsel was packing his bags in the hallway outside the courtroom, he spoke with a juror who told him that some of the slang terms Woodruff had used in his statement were confusing. She said that one of the jurors had used a cell phone to look up the meaning of the slang terms to determine whether they matched the names of the narcotics listed in the indictment, in spite of the trial court’s repeated instructions to the jurors not to research the case. The state does not dispute that misconduct occurred but presented the affidavits of all 12 jurors that the misconduct did not affect the verdict.

In a direct appeal of a criminal conviction, “[t]here is a presumption of prejudice to the defendant when an irregularity in the conduct of a juror is shown and the burden is on the prosecution to prove beyond a reasonable doubt that no harm has occurred.” Simmons v. State, 291 Ga. 705, 707 (4) (733 SE2d 280) (2012) (citation omitted). See also Greer v. Thompson, 281 Ga. 419, 421 (637 SE2d 698) (2006). The state must overcome this presumption beyond a reasonable doubt, and we must determine whether the juror misconduct “is so inherently prejudicial as to require a new trial, or whether it is an immaterial irregularity without opportunity for injury.” Simmons, 291 Ga. at 707 (4) (citation omitted).

Decided November 3, 2016

Reconsideration denied November 30, 2016.

John T. Overocker, for appellant.

Peter J. Skandalakis, District Attorney, Timothy M. Marlow, Kaitlin R. Doyle, Assistant District Attorneys, for appellee.

We find that the state met its burden here. Notably, Woodruff admitted that all contraband found at his house was his. A chemist identified pills taken from the house as morphine and oxycodone, the narcotics Woodruff was convicted of possessing. In his statement, Woodruff used the slang terms to generally describe his drug-selling practices; he did not use the slang terms to identify the drugs seized from his house. Further, the state presented affidavits from every juror, who testified that the misconduct did not affect the verdict. Cf. Chambers v. State, 321 Ga. App. 512, 519-520 (1) (739 SE2d 513) (2013) (physical precedent only) (state did not overcome presumption of prejudice, in part because, although eleven jurors testified by affidavit that they had not relied upon extrajudicial information to reach verdict, nothing in the record allowed for such a finding for twelfth juror).

“[Wjhere the substance of the [juror misconduct] is established without contradiction, the facts themselves may establish the lack of prejudice or harm to the defendant.” Holcomb v. State, 268 Ga. 100, 103 (2) (485 SE2d 192) (1997) (citation and punctuation omitted). Under the circumstances of this case, “we are satisfied that the juror’s actions, while improper, were not so prejudicial as to have contributed to the conviction, and were harmless beyond a reasonable doubt.” Id. (citation omitted).

Judgment affirmed.

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


author: DOYLE, Chief Judge.

text:
    A16A1169.
    LANG v. BRAND-VAUGHAN LUMBER COMPANY, INC.
    (792 SE2d 461)
   DOYLE, Chief Judge.

Brand-Vaughan Lumber Company (“BVL”) sued Donna Lang, the property owner, to foreclose on a materialman’s lien to recover the price of materials sold to Diamond Development Group, Inc., the contractor (“Diamond”), and used to construct Lang’s home. The trial court granted summary judgment to BVL, and Lang appeals, contending that the trial court erred by ruling that (1) OCGA § 9-12-60 (a) (the “Dormancy Statute”) did not bar foreclosure on the lien more than seven years after the lien was perfected, and (2) the lien could be foreclosed upon despite Lang’s alleged lack of notice of the underlying judgment and lien. Because the Dormancy Statute precludes BVL’s suit in this case, we reverse.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

The relevant facts are undisputed. In January 2006, Lang entered into a contract with Diamond to build her home. Diamond purchased building materials from BVL, and in September 2006, payment for the materials became due. Diamond failed to pay fully for the materials, and BVL filed a claim of materialman’s lien on Lang’s property in November 2006. Also in November 2006, BVL sent a copy of the claim of lien to Lang by certified mail. Shortly thereafter, BVL sued Diamond seeking payment for the materials, and in March 2007, BVL received a default judgment against Diamond.

In November 2014, BVL sued Lang seeking a declaration of a special lien in the amount of $14,655.65, which reflected the outstanding principal and interest on Diamond’s account. Lang answered and unsuccessfully moved for judgment on the pleadings. Discovery ensued, and BVL moved for summary judgment, which motion the trial court granted, awarding BVL $14,655.65 against Lang and declaring a special lien for that amount plus $8,305 in accrued interest plus post-judgment interest. Lang now appeals.

1. Lang contends that the trial court erred by allowing BVL to foreclose its lien because the judgment on which its validity depended was rendered unenforceable by the Dormancy Statute. We agree.

OCGA § 44-14-361.1 (a) sets out the provisions for perfecting a [materialman’s] lien. These provisions require a materialman who has substantially complied with the contract for materials to (a) file a claim of lien in the county where the property is located within [90 days] of furnishing the materials; (b) [properly] send a copy of the lien claim to the property owner; (c) commence an action against the contractor to recover the amount of the claim within [365 days from the date of filing the lien]; and (d) file a notice of the action with the superior court clerk of the county where the lien was filed so that the clerk can enter information about the lawsuit in county records.

The purpose of the lien statute is

to give the furnisher of. . . [building] material a claim upon the owner, to compel [the owner] at his peril to withhold final payment [to the contractor] until he has received assurance from the contractor that he has paid all material and labor claims, which are or which may be perfected into liens.

There is no dispute that BVL complied with the lien statute. As of March 2, 2007, when BVL obtained a default judgment against Diamond, it had completed the statutory prerequisites to make good its lien on Lang’s property Nevertheless, BVL took no further action on the default judgment against Diamond, and pursuant to the Dormancy Statute, that judgment became unenforceable at the end of seven years. Thus, the question before this Court is what effect, if any, does the dormancy of the judgment have on the validity of the lien and its subsequent foreclosure pursuant to OCGA § 44-14-530. This question was addressed by the Court in Carter-Moss Lumber Co. v. Short.

In that case, the Carter-Moss Lumber Company sold building materials to Short, who also owned the property at issue, and after Short failed to pay, the lumber company filed a notice of lien in 1921. On October 17, 1922, the lumber company sued Short, seeking the purchase price of the material and to foreclose on its lien. On November 21, 1922, the trial court entered a judgment against Short for the amount claimed and declaring a special lien upon the property owned by Short. The next day, execution was issued on the judgment and placed on the general execution docket of the superior court.

Carter-Moss took no further action to collect until August 1940 when the sheriff levied the execution upon the real estate. Short challenged the levy on her property, asserting that the 1922 judgment upon which it was based was dormant. The superior court agreed with Short, and this Court affirmed. This Court’s rationale was based upon the fact that a materialman’s lien, which is in derogation of common law, is inchoate and “must be completed, made good, or perfected in accordance with the provisions of” the lien statute. Failure to comply with this process “vitiates the lien, not only as against third persons, but... as against the owner himself.” In light of the prerequisites, a materialman’s lien is an interest perfected only by compliance with the statutory requirements, including obtaining a judgment against the original debtor. Therefore, the Court in Carter-Moss Lumber Co. held that the 1922 judgment “made good for the first time the lien claimed by the materialman, and, accordingly, was within the statute providing that, under the circumstances of this case, such judgment would become dormant after seven years.” This is in contrast to liens that do not arise out of judgments but arise by virtue of a contract with the party against whom enforcement is sought, such as a mortgage lien.

Here, similar to Carter-Moss Lumber Co., the lien to be foreclosed on was made good or perfected only after BVL complied with OCGA § 44-14-361.1 (a) and obtained a default judgment against Diamond. It was this judgment, and only this judgment, that satisfied BVL’s obligation to “obtain a judgment against the contractor . . . before [initiating a lien foreclosure] proceeding against the property.” It is also undisputed that the judgment against Diamond was rendered dormant and unenforceable by OCGA § 9-12-60 (a). So it follows that under a strict construction of the lien statute, when the default judgment against Diamond became dormant, the lien was no longer valid, and there was nothing to foreclose upon. And the dormancy of the underlying judgment renders the lien unenforceable regardless of whether the materialman is at the foreclosure stage, as now, or at a later levy proceeding, as in Carter-Moss Lumber Co.

Decided October 27, 2016

Reconsideration denied November 30, 2016

Ed Downs & Associates, Edward R. Downs, Jr.; B Bullard Law Firm, Obréziah L. Bullard, for appellant.

Busch, Reed, Jones & Leeper, Chad K. Reed, Cory C. Close, for appellee.

2. In light of our holding in Division 1, Lang’s remaining enumeration of error is moot.

Judgment reversed.

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

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

       We note that while a foreclosure proceeding under OCGA § 44-14-530 is an in rem proceeding only, and BVL’s complaint only sought a special lien plus interest, the trial court awarded money damages for the principal amount against Lang. Lang has not raised this as an issue, however, and in light of our reversal, it is unnecessary to address it.

        Few v. Capitol Materials, 274 Ga. 784, 784-785 (1) (559 SE2d 429) (2002), citing OCGA § 44-14-361.1 (a).

       (Punctuation omitted.) Gignilliat v. West Lumber Co., 80 Ga. App. 652, 653-654 (1) (56 SE2d 841) (1949). See also Browning v. Gaster Lumber Co., 267 Ga. 72, 76 (475 SE2d 576) (1996) (“It is the owner’s responsibility to see to it that the payments which he makes on the construction contract price are properly disbursed by the contractor to those having valid claims for labor and materials, and in establishing his defense to [a lien] foreclosure [action] he has the burden of showing that this was done.”).

       See OCGA § 44-14-361.1 (a) (“To make good the liens specified in paragraphs (1) through (8) of subsection (a) of Code Section 44-14-361, they must be created and declared in accordance with [OCGA § 44-14-361.1 (a) (1) to (4)], and on failure of any of them the lien shall not be effective or enforceable.”). The requirement to file an action against the contractor “has been construed to require not only that the materialman commence a timely action against the contractor but that he also thereafter obtain a judgment against the contractor; this is to be done before proceeding against the property.” Melton v. Pacific Southern Mtg. Trust, 241 Ga. 589, 590 (247 SE2d 76) (1978), citing Baldwin v. Shields, 134 Ga. 221 (67 SE 798) (1910). See also OCGA § 44-14-361.1 (a) (4) (outlining the procedure for an initial action against the property under certain circumstances).

       The Dormancy Statute, OCGA § 9-12-60 (a), provides:
      (a) A judgment shall become dormant and shall not be enforced:
      (1) When seven years shall elapse after the rendition of the judgment before execution is issued thereon and is entered on the general execution docket of the county in which the judgment was rendered;
      (2) Unless entry is made on the execution by an officer authorized to levy and return the same and the entry and the date thereof are entered by the clerk on the general execution docket within seven years after issuance of the execution and its record; or
      (3) Unless a bona fide public effort on the part of the plaintiff in execution to enforce the execution in the courts is made and due written notice of such effort specifying the time of the institution of the action or proceedings, the nature thereof, the names of the parties thereto, and the name of the court in which it is pending is filed by the plaintiff in execution or his attorney at law with the clerk and is entered by the clerk on the general execution docket, all at such times and periods that seven years will not elapse between such entries of such notices or between such an entry and a proper entry made as prescribed in paragraph (2) of this subsection.

       66 Ga. App. 330 (18 SE2d 61) (1941). For purposes of this appeal, the prior versions of the Dormancy Statute and lien statute at issue in Carter-Moss do not materially differ from the current provisions in OCGA §§ 9-12-60 and 44-14-361.1. See Carter-Moss Lumber Co., 66 Ga. App. at 335-336 (dissenting opinion quoting former Code sections 110-1001 and 67-2301).

       See Carter-Moss Lumber Co., 66 Ga. App. at 331.

       See id.

       See id.

       See id.

       See id. at 331-332.

       See id. at 331-332. Carter-Moss argued that its lien was exempt from the Dormancy Statute because the judgment “merely declared and established a lien which was already in existence; that such lien was not first established by the judgment but began to exist when the material was furnished to the owner of the property.” Id. at 333.

       See id. at 332-334.

       Id. at 333-334. See OCGA § 44-14-361.1 (a).

        Carter-Moss Lumber Co., 66 Ga. App. at 334.

       (Emphasis supplied.) Id.

       See id. See generally Collier v. Bank of Tupelo, 190 Ga. 598, 600 (2) (10 SE2d 62) (1940) (“[A] judgment in rem, entered for the purpose of enforcing a pre-existing lien, is held not to become dormant under the dormancy statutes, which relate only to liens created by the judgment. Manifestly a lien which the [prior] judgmen t does not create the dormancy judgment statutes should not take away.”) (emphasis supplied).

        Melton, 241 Ga. at 590.

       “It is well settled that laws giving to a creditor a lien upon the property of his debtor, being in derogation of common law, are to be strictly construed against the creditor and liberally in favor of the debtor.” Green v. Farrar Lumber Co., 119 Ga. 30, 32-33 (46 SE 62) (1903). And “[t] he General Assembly is presumed to enact all statutes with full knowledge of the existing condition of the law and with reference to it. The meaning and effect of a statute are to be determined in connection, not only with the common law . . . but also with reference to other statutes and decisions of the courts.” Summerlin v. Ga. Pines Community Svc. Bd., 286 Ga. 593, 594 (2) (690 SE2d 401) (2010) (citation and punctuation omitted).

       We note that the dissent in Carter-Moss Lumber Co. took issue with the fact that the materials were provided directly to the property owner, not a contractor, and thus would have held that the lien arose — not from the judgment — but from the contract between the parties and was therefore absolute upon delivery of the material to the owner and survived the dormancy of the judgment. See id. at 343-344. The dissent, however, noted that when materials are delivered to the contractor with whom the owner has a contract, the requirement of a judgment against the contractor is necessary to perfect a lien. It also discussed the holding in Tupelo, supra, that dormancy judgment statutes have application only to liens created by a judgment. See id. at 342-344.


author: ANDREWS, Presiding Judge.

text:
    A16A1430.
    WASHINGTON v. THE STATE.
    (792 SE2d 479)
   ANDREWS, Presiding Judge.

This is the second appearance of this case in this Court. In Washington v. State, 333 Ga. App. 236 (775 SE2d 719) (2015) (“Washington I”), we concluded that the state of the appellate record prevented us from reviewing Devin Washington’s claim that “the trial court erred by declaring a mistrial as to the charge of felony murder and, accordingly, that double jeopardy bars a second prosecution such that the trial court should have granted his plea in bar.” Id. Following a hearing on remand, the Superior Court of Richmond County again denied Washington’s plea in bar, and he appeals. We conclude that the original trial judge erred in failing to properly review the verdict form prior to publishing the verdict and discharging the jury As a consequence, the judge failed to identify an ambiguous verdict and take appropriate action to clarify the ambiguity. The result is that Washington’s plea in bar as to felony murder, based upon double jeopardy, should have been granted. Accordingly, we reverse the trial court’s denial of Washington’s plea in bar and remand for a new trial on voluntary manslaughter.

1. We adopt our findings concerning the evidence in Washington I, in which we noted that the evidence, when viewed in a light most favorable to the jury’s verdicts, revealed that

in the early morning hours on the day in question, Devin Washington and the victim, Preshawn Williams, arrived at an Augusta nightclub in a Jeep driven by Williams. At the same time, Marcus Washington (no relation to Devin) arrived at the club in a Monte Carlo driven by an acquaintance and accompanied by Williams’s cousin. When Marcus prepared to enter the club, he was suddenly attacked from behind by Devin, and the two continued to scuffle in the parking lot until the club’s owner demanded that they leave the premises.
Marcus returned to the Monte Carlo and Devin returned to the Jeep, which was parked beside the Monte Carlo. Marcus demanded that the driver unlock the Monte Carlo so that he could get inside the vehicle, but she hesitated to do so and passed the keys to Williams’s cousin. The cousin eventually unlocked the Monte Carlo and Marcus immediately retrieved a firearm from beneath the front-passenger seat. At that point, a gun battle erupted between Marcus and Devin (who, according to witnesses and Marcus, had been threatening to shoot if Marcus got into the Monte Carlo). At some point, Williams, who had reentered the Jeep, was shot in the leg and head by two of Marcus’s bullets, and he subsequently died as a result of the head injury.

(Footnotes omitted.) 333 Ga. App. at 236. As a result, “Marcus and Devin were jointly indicted on charges of malice murder, felony murder, and possession of a firearm during the commission of a felony[,]” and “the jury found both defendants not guilty of malice murder but guilty of possessing firearms during the commission of a felony.” (Footnote omitted.) Id. at 236-237. “As to felony murder, the jury acquitted Marcus, but the trial court declared a mistrial as to Devin.” Id. at 237.

2. In his fir st enumeration of error, Washington contends that the trial court erred in crossing out the phrase “not guilty” on Count 2 (felony murder) of the verdict form and declaring a mistrial on that count. Due to the state of the appellate record, we were unable to address this argument in Washington I. Our concern was grounded primarily upon the record’s silence on the following questions: (1) “at what point the trial judge saw the verdict form[,]” which precluded us from determining “whether the trial judge saw the form before or after deciding to declare a mistrial[,]” (Footnote omitted.) Washington I, 333 Ga. App. at 247 (1); (2) “whether, if the judge saw the form after the verdict was read into the record, it was before or after the jury had dispersed[,]” (Emphasis omitted.) id. at 248 (1); and (3) whether “it was the trial judge who marked through the words [felony murder not guilty] written by the jury foreperson on the verdict form as to [felony murder]. . . Id. As a result, we remanded Washington’s case to the trial court for a hearing before a different judge to further address these issues and, ultimately, to permit meaningful appellate review of Washington’s claim. Id.

(a) Publication of the Verdict. Although we previously reviewed the record for the history of the publication of the verdict and the trial court’s decision to declare a mistrial as to Count 2, see Washington I, 333 Ga. App. at 239-242, our review of this case will be assisted by recounting it here:

[T]he record reflects that both Marcus and Devin requested that the jury be instructed on voluntary manslaughter as a lesser-included offense of malice murder and felony murder, and the jurors were so charged. Then, after retiring to deliberate and requesting and receiving reinstruction as to the various offenses at issue, the jurors inquired as to whether they could “apply voluntary manslaughter instead of felony murder.” In response, the court reinstructed the jurors that should they find a defendant not guilty of malice murder or felony murder, they would be authorized to determine whether he was guilty of the lesser-included offense of voluntary manslaughter.
A while later, the jurors sent out a second note indicating that they “[could] not reach a unanimous decision on Count 2 for both defendants.” Because the trial court and the attorneys were unclear as to what this note meant (i.e., whether the jurors believed that they must reach the same verdict as to both defendants or whether they had reached a verdict as to one defendant but not the other), the court requested in writing that the jurors clarify their question. The jurors then asked, “[i]f we are unable to come to a unanimous decision on Count 2 for both defendants what are our options?” The court, still unclear as to the jury’s exact issue, responded in writing as follows: “You have to make a decision as to each count 1 for (sic) each defendant independently. Have you reached a decision as to one defendant or are you undecided as to both?” The jurors responded that they were “not all in agreement on Count 2 for Devin Washington.”
The trial court then struggled with this response by the jury, pondering
. . . [a]re they not in agreement as to the charge or as to the verdict? They are not in agreement. So are half [of] them going to voluntary [manslaughter] or other (sic) half going to felony murder or are they — I mean I don’t know how to get them to answer that. I guess what we should say — but I mean we’ve got — I mean are they — if they are not in agreement as to the charge that’s different than if they are not in agreement as to guilt or innocence.
Ultimately, the trial court decided to issue an Allen charge to the jury. The court also decided to write back to the jurors, advising that they would “need to continue [their] deliberations.”
Although the transcript gives no indication as to the timing, either concurrent with the aforementioned communication or after it, the trial court requested in writing that the jurors, “[w]ithout specifying which way [they] [were] leaning, . . . provide a count (number) as to each defendant and each count and what the split is.” This handwritten sheet submitted to the jury by the trial court referred to the various charges only by count number, not by the name of the charged offense; and in response, the jurors indicated that they were unanimous as to every count for the defendants except “Count 2” for Devin Washington, on which they were split eleven to one.
After receiving the Allen charge and again retiring to deliberate, the jurors sent another communication to inform the trial court that they had “exhausted all attempts to come to a unanimous decision on Count 2 for Devin Washington.” At that point, the following colloquy took place on the record:
THE COURT: All right. Thank you we are back in session and everybody can be seated. I’ll ask the foreperson while we’re waiting on the verdict form. It is my understanding, based on the communication that you have made to the Court, that a unanimous verdict [h]as been reached on all counts with the exception of count 2 as to Devin Washington; is that correct?
FOREPERSON: That’s correct.
THE COURT: And that — to the — who is the foreperson? And based on your communication you have written that y’all are hopelessly deadlocked to that count as to Devin Washington. Is that correct?
FOREPERSON: Yes.
THE COURT: You do not believe that any further deliberations would result in resolution of that count?
FOREPERSON: We — nobody’s budging.
THE COURT: All right. And so what I would need you to do — we are going to take the verdict on all other counts. As to the count on Devin Washington that will be handled separately as to count 2. But I need for you to sign the verdict, make sure that’s the verdict that y’all have agreed to for the other counts.
FOREPERSON: Yes. Do you need to know what exactly —
THE COURT: I’m going to ask for the verdict in just a second, but it has to be filled in and signed and dated by you as foreperson. And if y’all need to go — if y’all need to go back out and complete some paperwork, that’s fine.
I need to ask you some questions. Madame foreperson, can you stand where you are. Have you reached a verdict?
FOREPERSON: We have.
THE COURT: Was it unanimous as to all of the counts other than the ones that you have told me —
FOREPERSON: We have.
THE COURT: — were deadlocked? Has the verdict form been filled in, signed, and dated by you.
FOREPERSON: It has.
THE COURT: Would you pass it to the bailiff, please.
THE CLERK: In the Superior Court of Richmond County in the case of the State of Georgia versus Marcus Washington and Devin Washington, indictment number 2012-RCCR-1600 for count 1, malice murder, we, the jury, find the defendant Marcus Washington not guilty. For count 1 malice murder, we, the jury, find the defendant Devin Washington, not guilty. For count 2, felony murder, we, the jury, find the defendant Marcus Washington not guilty For count 3, possession of a firearm during the commission of a crime, we, the jury, find the defendant Marcus Antwan Washington guilty For count 4, possession of a firearm during the commission of a crime, we, the jury, find the defendant Devin Washington guilty so found this 3rd day of May 2013, [(name of foreperson)], foreperson.
THE COURT: All right. Members of the jury I want to thank you for your service. This case has been tried exhaustively and you have heard and made a decision with regard to the evidence so your service is now concluded. I do need to ask do y’all wish to poll the jury as to counts 3 and 4?
Trial counsel for both Devin and Marcus declined to poll the jury on the verdict of guilt as to the possession-of-a-firearm counts.
Thereafter, the trial court gave the jurors final instructions as to their ability to now speak about the case and then discharged them from service. After all jurors had exited the courtroom, the trial court entered a mistrial as follows:
THE COURT: And for purposes of the record, based on the jury’s inability to reach a verdict, I will declare a mistrial as to count 2 of the indictment as to Devin Washington.
There was no objection. . . .

(Footnote omitted.) Id. In addition to the foregoing, we note that the text of Count 2 of the verdict form read: “For Count 2, felony murder, we the jury find the defendant Devin Washington [blank].” Handwritten in the blank immediately following Washington’s name were the words “not guilty.” Underneath the blank, “the jury foreperson also wrote ‘voluntary manslaughter?’ A line is drawn through these handwritten words and, beside them, ‘mistrial declared’is written in what appears to be different, handwriting, along with the initials SBJ.” Washington I, 333 Ga. App. at 242. Although the jury was charged on the lesser included offense of voluntary manslaughter, the verdict form did not contain a pre-printed option for voluntary manslaughter, in large part because Washington’s counsel argued against such a form.

(b) Evidentiary Hearing on Remand. On remand, the trial court conducted a hearing that included testimony by the original trial judge, court reporter, deputy clerk of court, prosecuting attorney, co-defendant’s counsel, the jury foreperson, four trial jurors, and one alternate juror. Of particular relevance to the three areas of concern we stated in Washington I, the trial court found that the original trial judge did not review the verdict form prior to declaring a mistrial on Count 2 or before the verdict was published in open court; that the original trial judge struck through the “not guilty” language on the verdict form; and that she did so only after the verdict had been published and the jury discharged. Furthermore, the trial court found that testimony by the jurors was “inconsistent” and that their testimony “did not sustain or impeach the verdict in a collective sense.” The trial court ultimately concluded that “a mistrial was declared due to a manifest necessity” and “was made without timely objection from [Washington]. . . .’’Accordingly, the trial court denied Washington’s plea in bar and held that Washington could be retried for felony murder.

Therefore, the following timeline is suggested by the hearing on remand and our review of the record: (1) during several hours of deliberation, the jury expressed its confusion over Count 2 through a series of notes to the original trial judge, culminating in an Allen charge; (2) the jury then reported that it reached a verdict on every count against both defendants except Count 2 of Washington’s indictment; (3) in open court, the jury reported that it was hopelessly deadlocked on Count 2 ; (4) the original trial judge did not see the verdict form prior to publishing the verdict; (5) the original trial judge instructed the deputy clerk of court to publish the verdict with the exception of Count 2; (6) the verdict, absent Count 2, was published; (7) the original trial judge discharged the jury; (8) without having seen the verdict form, the original trial judge declared a mistrial as to Count 2; and (9) at some point, after the verdict had been published and the jury discharged, the original trial judge struck through the jury’s handwritten statements “not guilty” and “voluntary manslaughter?” We therefore follow this timeline to facilitate our analysis.

(c) Review of Mistrial as to Count 2. While this case suffers from several errors, one primary error — the original trial judge’s failure to review the verdict form prior to publishing the verdict — so affected Washington’s trial that a retrial is mandated.

(i) Mistrial. “[Wjhether to declare a mistrial is in the discretion of the trial court and will not be disturbed on appeal unless ‘it is apparent that a mistrial is essential to the preservation of the right to a fair trial.’ ” (Citation omitted.) Hogan v. State, 330 Ga. App. 596, 602 (4) (768 SE2d 779) (2015). However, “[a] motionfor mistrial, by its very nature, seeks to end the trial proceedings before a verdict is rendered in order to ensure that the defendant may receive a fair trial.” (Emphasis supplied.) State v. Sumlin, 281 Ga. 183, 184 (1) (637 SE2d 36) (2006). As a result, “[ojnce the jury returns its verdict, the trial has ended and the time for granting a mistrial has passed.” Id. (citing State v. Archie, 230 Ga. App. 253, n. 1 (495 SE2d 581) (1998) (“Clearly, a trial court cannot grant a mistrial after a verdict has been returned.”); State v. Jorgensen, 181 Ga. App. 502, 503 (353 SE2d 9) (1987) (“Atrial court [cannot] grant a mistrial after verdict.”) (punctuation omitted)). Accordingly, if it is to be declared at all, a mistrial must be declared prior to the return of a verdict.

Retrial of a criminal defendant after a mistrial caused by the inability of the jury to reach a verdict does not constitute double jeopardy where there is manifest necessity for declaring the mistrial. Where the jury is hopelessly deadlocked, this constitutes manifest necessity for declaring a mistrial.

(Emphasis supplied.) Leonard v. State, 275 Ga. App. 667, 668 (621 SE2d 599) (2005). “The determination as to whether the jury is in fact hopelessly deadlocked is a matter somewhat in the discretion of the trial court.” Id. at 668-669. See also Honester v. State, 336 Ga. App. 166 (784 SE2d 30) (2016); Thornton v. State, 145 Ga. App. 793, 794 (245 SE2d 22) (1978).

That discretion, however, is not unbridled, and it must be exercised carefully, particularly where the trial court is declaring a mistrial. . . sua sponte. . . . The careful exercise of its discretion, in turn, requires the trial court to take certain steps before concluding that the jury is hopelessly deadlocked and that a mistrial is necessary Given the severe consequences of ordering a mistrial without the accused’s consent, it is highly important that the trial court undertake a consideration of alternative remedies before declaring a mistrial based on a jury’s alleged inability to reach a verdict. . . . Accordingly, a trial court may not allow itself to be bound by a jury’s pronouncement that it is hopelessly deadlocked.

(Citations and punctuation omitted; emphasis supplied.) Honester, 336 Ga. App. at 170 (citing Sears v. State, 270 Ga. 834, 838 (1) (514 SE2d 426) (1999)).

At the outset, we note that the trial transcript is devoid of any discussion concerning a mistrial prior to publication of the verdict. However, the original trial judge was well aware that the jury struggled with reaching a verdict on Count 2. For example, following questions by the jury, the original trial judge recharged the jury on malice murder, felony murder, voluntary manslaughter, aggravated assault, and mutual combat. Thereafter, the jury asked if it could “apply voluntary manslaughter instead of felony murder [.] ” In response, the original trial judge charged the jury that if it found the defendants not guilty of felony murder, the jury “would be authorized to determine whether [each defendant is] guilty of the lesser included offense of voluntary manslaughter.” Two more notes revealed that the jury could not reach an agreement as to Count 2 for either defendant. The jury’s next note stated that “[w]e are not all in agreement on Count 2 for Devin Washington.” Thereafter, the jury’s penultimate note to the original trial judge outlined the number of jurors that agreed on each count against both defendants; the note revealed an eleven-to-one split on Count 2 against Washington, but not in which direction the eleven were leaning or which charges were at issue. Finally, the jury notified the original trial judge that “[w]e have exhausted all attempts to come to a unanimous decision on Count 2 for Devin Washington.”

When the jury returned to the courtroom some ten hours after deliberations began, the jury foreperson confirmed that “a unanimous verdict [had] been reached on all counts with the exception of count 2 as to Devin Washington”; that the jury was “hopelessly deadlocked as to that count as to Devin Washington”; and that they did not believe “that any further deliberations would result in resolution of that count [.] ”8 As a result, the original trial judge stated that she would “take the verdict on all of the other counts[;] [a] to the count on Devin Washington that will be handled separately as to count 2 .” The verdict as to Counts 1 and 3 was published, and the jury discharged prior to the original trial judge’s decision to declare a mistrial as to Count 2.

(ii) Review of the Verdict Form. “ ‘[I] t is the duty of the trial court not only to tell the jury what the law is, but to insist that they apply it and either render a verdict on some issue submitted or else make a mistrial.’ ” Brooks v. State, 311 Ga. App. 857, 860 (2) (717 SE2d 490) (2011) (quoting State v. Freeman, 264 Ga. 276, 277 (444 SE2d 80) (1994)). See also Washington I, 333 Ga. App. at 247 (1). To that end, the proper procedure in handling a verdict form

is for the trial court and counsel to review the verdict prior to its publication in open court, and if the verdict is not proper in that it finds the defendant guilty of an offense with regard to which the trial court did not instruct the jury, the trial court should return the jury for further deliberation with direction to return a verdict within the range of the instructions originally given to it.

Freeman, 264 Ga. at 278. Here, the trial court received multiple signals from the jury that it was deadlocked on Count 2 of the indictment. One of the jury’s notes asked whether it could “apply voluntary manslaughter instead of felony murder [,] ” Five different, notes from the jury indicated that it could not reach a verdict on Count 2. When the jury indicated in open court that it had reached a verdict on every count except Count 2 against Washington, the foreperson passed the verdict to a bailiff, who then presented it to the original trial judge. However, the original trial judge only viewed the verdict form from a few feet away to verify that it had been dated and signed. Of particular concern, the original trial judge testified that she “saw there was something written [on the verdict form], but I could not have told you what it was.”

The original trial judge’s failure to review the verdict form was error. “Since verdicts acquire their legality from return and publication, there was no verdict in this case until it was received and published in open court.” (Citations and punctuation omitted.) Green v. State, 208 Ga. App. 1, 2 (1) (429 SE2d 694) (1993). As a result, the jury’s notes that it had deadlocked were not controlling once it returned its verdict. See State v. Lane, 218 Ga. App. 126, 127-128 (460 SE2d 550) (1995) (jury’s notes that it acquitted defendant of murder, prior to returning verdict of guilty, were insufficient to impeach verdict). See also Honester, 336 Ga. App. at 170. Had the original trial judge viewed the verdict form more carefully, the fact that the jury returned a verdict of not guilty as to felony murder, when it previously reported that it was deadlocked on Count 2 (felony murder), would have become evident. It is also likely that the judge would have noticed the handwritten words, “voluntary manslaughter?” Such a verdict would have triggered a number of options for the original trial court, including: (1) questioning the foreperson more directly concerning the verdict to eliminate any confusion; (2) polling the jurors to learn the truth of their verdict before deciding whether to declare a mistrial; or (3) requiring the jury to continue their deliberations and present a more clear verdict. See Honester, 336 Ga. App. at 171; Leonard, 275 Ga. App. at 669; Thornton, 145 Ga. App. at 795. None of these measures were taken.

Moreover, upon the trial court’s ultimate review of the jury verdict after the jury had been discharged, none of the remedial options to clarify the verdict could have been exercised. “[W]hen an ambiguous verdict is returned by a jury, the trial court may refuse to accept the verdict and require the jury to continue its deliberations.” (Citations and punctuation omitted.) Ingram v. State, 290 Ga. 500, 503 (2) (722 SE2d 714) (2012) (trial court refused to accept verdict of guilty on both felony murder and voluntary manslaughter). See also Kimmel v. State, 261 Ga. 332, 334 (2) (404 SE2d 436) (1991) (trial court authorized to require further deliberations when jury returned verdict of “undecided”); Robinson v. State, 282 Ga. App. 214, 215 (638 SE2d 370) (2006) (trial court authorized to require further deliberations when jury initially returned verdict of “guilty with reasonable doubt”). However, “after [a verdict] has been received, recorded, and the jury dispersed, it may not be amended in matter of substance, either by what the jurors say they intended to find or otherwise.” OCGA § 17-9-40. In such a circumstance, “a defendant is entitled to the benefit of the doubt in the construction of an ambiguous verdict [.] ” Washington I, 333 Ga. App. at 246 (1) (quoting Lindsey v. State, 262 Ga. 665, 666 (1) (424 SE2d 616) (1993)).

Any corrective measures were lost in this case when the original trial judge did not see the verdict until after the verdict was published and the jury discharged. What remained, then, was a verdict form, completed by the jury, in which the jury apparently found Washington not guilty of felony murder after repeatedly communicating that it was unable to reach a verdict on Count 2. Clouding the verdict further is the “voluntary manslaughter?” language inserted on the verdict form suggesting the jury’s inability to reach a verdict on that charge. The jury’s prior communications do not supplant their verdict and, in this instance, the jury’s notes were sufficient to reinforce the original trial judge’s duty to review the verdict form prior to publication. Instead, the original trial judge never reviewed the jury’s verdict until it was too late to seek clarification from the jury Similarly, the trial court was not authorized to strike through “not guilty” on the verdict form after the jury had been dispersed. See OCGA § 17-9-40; Newsome v. State, 323 Ga. App. 15, 17 (2) (747 SE2d 99) (2013). Accordingly, “ ‘[b]ecause the trial court in this case did not so intervene before the dismissal of the jury, a new trial is authorized.’ ’’Newsome, 323 Ga. App. at 17 (2) (quoting Brooks, 311 Ga. App. at 860 (2)).

In sum, we conclude that the original trial court did not abuse its discretion by declaring a mistrial as to the lesser included offense of voluntary manslaughter. The jury’s notes, coupled with the verdict form it actually returned, indicate that it was unable to reach a unanimous verdict on that offense. See Leonard, 275 Ga. App. at 668. However, as to felony murder, we conclude that the trial court abused its discretion by declaring a mistrial as to felony murder because it failed to review the jury’s verdict. See Honester, 336 Ga. App. at 171; Newsome, 323 Ga. App. at 17 (2). Although the jury’s notes reflected confusion and an inability to reach a verdict, the verdict form clearly stated that Washington was “not guilty” of felony murder. See Lane, 218 Ga. App. at 127-128; Green, 208 Ga. App. at 2 (1). Stated differently, there was no manifest necessity for a mistrial as to felony murder in view of the jury’s verdict. Furthermore, once the verdict was returned, it follows that the original trial judge was without authority to modify or attempt to construe the jury’s verdict in a certain light. See OCGA § 17-9-40. At worst, the verdict was ambiguous, requiring that Washington be given the benefit of the doubt. See Washington I, 333 Ga. App. at 246 (1); Lindsey, 262 Ga. at 666 (1). In either instance, the original trial court erred by striking the words “not guilty” on Washington’s verdict for felony murder, and the trial court on remand abused its discretion by denying Washington’s plea in bar as to felony murder. See, e.g., Jorgensen, 181 Ga. App. at 503 (trial court had “no authority to grant a mistrial as to proceedings that have previously terminated in a jury verdict of acquittal as to that offense”). Accordingly, we reverse and remand the case to the trial court for a new trial as to voluntary manslaughter and with direction to enter a judgment of acquittal as to felony murder.

3. In a related enumeration, Washington contends that a retrial as to felony murder would violate his constitutional protection against double jeopardy. In view of our discussion in Division 2, supra, we agree. As a result, Washington may not be retried for the offense of felony murder. See, e.g., Jorgensen, 181 Ga.App. at 503. However, the State may retry Washington on the lesser included offense of voluntary manslaughter if it so elects. S ee Archie, 230 Ga.App. at 255 (“the acquittal on the indicted offense of [felony] murder would not bar retrial on the lesser included unindicted offense of voluntary manslaughter”) .

4. Washington next argues that the trial court erred in admitting evidence of prior bad acts between Washington and co-defendant Marcus Washington. We need not consider this enumeration because, as in Washington I, Washington

has failed to identify precisely which evidence he now challenges or show how he was prejudiced by any such evidence. “It is not this [cjourt’s job to cull the record on behalf of the [appellant] to find alleged errors.” Maxwell v. State, 290 Ga. 574, 575 (2) (722 SE2d 763) (2012) (citation omitted). Moreover, we will not disturb a trial court’s determination that such evidence is admissible absent an abuse of discretion. Joiner v. State, 265 Ga. App. 395, 397 (2) (593 SE2d 936) (2004).

333 Ga. App. at 256 (3) (McFadden, J., dissenting). Accordingly, Washington has again failed to demonstrate reversible error. See, e.g., Gordon v. State, 327 Ga. App. 774, 781 (5) (a) (761 SE2d 169) (2014).

5. Washington also asserts that the trial court erroneously failed to sever his trial from his co-defendant’s trial because their defenses were antagonistic. Because Washington’s co-defendant was acquitted of malice murder and felony murder and cannot be retried, and because Washington may only be retried on the lesser included offense of voluntary manslaughter, this matter is unlikely to recur in Washington’s retrial. As a result, we need not consider Washington’s argument. See, e.g., Sales v. State, 296 Ga. 538, 541 (2) (b) (769 SE2d 374) (2015).

6. Finally, Washington argues that the trial court erred when it prevented Washington from calling two jurors as witnesses, admitting their affidavits into evidence, or otherwise making an offer of proof during his double jeopardy hearing prior to our decision in Washington I and the ensuing remand. As a threshold matter, Washington did not raise this enumeration of error in his original appeal to this Court. However, regardless of whether the original trial court’s ruling was error or whether the ground is now properly before us, it has been rendered moot because the trial court cured any alleged error on remand by admitting both affidavit and oral testimony of the jurors during the remand hearing. See generally Mincey v. State, 251 Ga. 255, 258 (2) (304 SE2d 882) (1983) (trial court’s refusal to conduct evidentiary hearing “could be cured by a remand for an evidentiary hearing”); Dryden v. State, 316 Ga. App. 70, 74 (3) (b) (728 SE2d 245) (2012) (error concerning mutually exclusive verdict cured on remand).

Decided November 15, 2016

Reconsideration denied December 1, 2016.

The Hawk Firm, Jacque D. Hawk, for appellant.

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

Judgment reversed and case remanded with direction.

Doyle, C. J., concurs. Ray, J., concurs in judgment only.

       We noted that the original trial judge’s initials were “SBJ.” 333 Ga. App. at 242, n. 15.

       However, the deputy clerk of court who published the verdict in open court testified that she asked the original trial judge “what [she] was supposed to say for [Count 2]” in view of the jury’s apparent disagreement. The original trial judge instructed her to “skip [Count 2] and that she would declare it a mistrial on the record.” As noted infra, the mistrial was not entered on the record until after the verdict had been published and the jury discharged.

       Specifically, the foreperson testified that “the jury was unanimous that [Washington] was not guilty of Felony Murder but they were not unanimous on the offense of voluntary manslaughter. . . .” Another juror corroborated the foreperson’s testimony, stating that “there was a unanimous verdict that [Washington] was not guilty of Felony Murder.” A third juror “first testified that there was no agreement as to Count Two and then testified that the jury agreed [Washington] was not guilty on Felony Murder but were hung on voluntary manslaughter.” However, two additional jurors testified that “there was an agreement as to Count Two but [the juror] had no idea what the agreement was” and that the jury “was hung on Felony Murder.” As a result, the trial court concluded that “the testimony was not consistent and does not clearly indicate that the jury intended to return a unanimous verdict of not guilty as to Felony Murder.”

        See Allen v. United States, 164 U. S. 492 (17 SCt 154, 41 LE 528) (1896); Humphreys v. State, 287 Ga. 63, 79-82 (9) (694 SE2d 316) (2010).

       At no time did the jury indicate the actual charges upon which it was deadlocked.

       Although the original trial judge testified that, after receiving a note from the foreperson that the jury was hopelessly deadlocked, she “verbally pronounced that there would be a mistrial declaredj,]” the trial transcript contains no record of such a pronouncement. A similar statement by the original trial judge that “we had declared a mistrial as to count two” is again unsupported by the trial transcript. Finally, the original trial judge stated that she consulted with counsel concerning the decision to declare a mistrial as to Count 2, but no such conversations appear in the trial transcript. Nor does the trial transcript contain any notation that an unreported bench conference occurred during the discussion of the verdict. In fact, the original trial judge testified that there were no conversations with counsel or with court personnel that were not included in the record and that court personnel did not voice any concern concerning reading the verdict as presented. However, both the prosecuting attorney and the co-defendant’s counsel recalled that the original trial judge stated she would declare a mistrial as to Count 2 on Washington.

       This instruction had also been given as part of the original trial judge’s jury charge.

       At that juncture, based upon the information then in its possession, the original trial judge would likely have been authorized to declare a mistrial as to Count 2. See Leonard, 275 Ga. App. at 669.

       Immediately prior to the publication of the verdict, the jury confirmed that it had reached a verdict, that the verdict was unanimous “as to all of the counts other than the ones that . . . were deadlocked!,]” and that the verdict form had been completed by the foreperson.

       See fn. 5, supra.

       Nor did the prosecuting attorney or Washington’s defense counsel see the verdict form prior to publication. The original trial judge testified that she did not permit counsel to review the verdict form as a matter of practice.

       By receiving a proper jury instruction, the jury would have been authorized to return a verdict on voluntary manslaughter. See Prater v. State, 273 Ga. 477, 482 (5) (545 SE2d 864) (2001) (unless a jury is charged on a particular crime, no verdict may be rendered on that crime).

       Indeed, we noted in Washington I that Washington did not “contend that the trial court erred by disallowing the testimony or affidavits of jurors. . . .” 333 Ga. App. at 244 (1). Accordingly, the enumeration of error appears to be merely an attempt to generate an argument based upon our prior opinion.