author: BARNES, Presiding Judge.

text:
    A13A0145.
    WICKERSON v. THE STATE.
    (743 SE2d 509)
   BARNES, Presiding Judge.

Based upon allegations that he and two accomplices robbed four victims at gunpoint in the course of one evening in DeKalb County, Cedric Wickerson was indicted, tried, and convicted of multiple counts of armed robbery and aggravated assault. The trial court denied his motion for new trial. On appeal, Wickerson contends that there was insufficient evidence to prove that he was involved in the robbery of the second and third victims or to prove that venue for the crimes was proper in DeKalb County. He further contends that his trial counsel rendered ineffective assistance.

For the reasons discussed below, the evidence was sufficient to support the verdicts, and Wickerson failed to demonstrate that his trial counsel was ineffective. However, the trial court erred in failing to merge one of Wickerson’s aggravated assault convictions into one of his armed robbery convictions for sentencing purposes. Accordingly, we affirm in part, vacate in part, and remand for resentencing.

Following a criminal conviction, we view the evidence in the light most favorable to the jury’s verdict. See Vaughn v. State, 301 Ga. App. 391 (687 SE2d 651) (2009). So viewed, the evidence showed that on the night of December 1, 2008, within the span of approximately twenty minutes, four victims were robbed at gunpoint within a three-mile radius of one another in DeKalb County. All of the robberies occurred in or near apartment complexes.

The first victim was walking into the Colony Apartments when a gold Cavalier with a dent on the side and a cracked taillight stopped near him. Two men jumped out while a woman remained in the car. One of the male robbers pointed a .357 caliber revolver at the victim and told him to “give it up.” As the victim was emptying his pockets, the robber struck the victim in the jaw with the gun, causing him to stumble to the ground and drop his cell phone, his driver’s license, and all of his cash. The second male robber picked up the items that had been dropped. The victim got up from the ground, pushed one of the male robbers, and took off running. He ran to a friend’s house, and his friend’s mother called the police when she saw the victim at the door with blood on him.

That same night, a plumber and his assistant (the second and third victims) were trying to repair a broken water main at the Windchase Apartments. The plumber saw two men slowly approach the back of his parked utility truck. The two men then walked around the truck, and one of them pointed a handgun at the back of the plumber’s head, said that it was a robbery, and made the plumber and his assistant turn around. The handgun held by the robber appeared to be a .357 caliber revolver. While the first robber held the plumber at gunpoint, the second robber approached the plumber’s assistant and began striking him. When the plumber attempted to stop the second robber from hitting his assistant, the first robber struck the plumber twice in the head with the revolver, causing him to bleed heavily and ultimately requiring multiple stitches on the back right and left sides of his head. At the first robber’s command, the plumber got down on the ground, after which the second robber began to kick him in the side. The robbers took the plumber’s wallet and tool bag and his assistant’s Blackberry cell phone. The robbers eventually walked away, and the plumber’s assistant went to a nearby apartment and had the tenant call the police while the plumber lay on the ground.

A few minutes after the robbery of the plumber and his assistant, a fourth victim was walking home to her apartment which was near the Windchase Apartments when she saw a gold Cavalier exit from that complex. She heard a car door close and then was approached by a man who grabbed her, pushed her against a fence, pointed a .357 caliber revolver in her face, and told her to hand over her purse and other belongings. The Cavalier backed up to where she and the robber holding her at gunpoint were located, and the fourth victim saw that there was a woman in the driver’s seat and a man in the front passenger seat. After the robber who was holding her at gunpoint took her purse and camera, he got into the rear seat of the Cavalier, which then drove off. The fourth victim was able to see the license tag number as the Cavalier drove away, and she called 911 on her cell phone, reported what had happened, and provided a tag number to the dispatcher.

The three robberies occurred at approximately 9:30, 9:40, and 9:50 p.m. Shortly after 10:00 p.m., a be-on-the-lookout (“BOLO”) was issued for the gold Cavalier with the specified license tag number and for the suspects seen in the car, identified as two men and a woman. An officer with the City of Pine Lake Police Department was on patrol near where the robberies had occurred. After hearing the BOLO, the officer began looking for the Cavalier and located it within minutes in an apartment complex that was about a quarter of a mile away from the Windchase Apartments. The officer observed the Cavalier backing into a parking space there, and he saw that it was occupied by two men and a woman. The woman was driving, and one man was in the front passenger seat while the other man was in the back seat. The license tag number on the gold Cavalier closely matched the number given by the fourth victim, and the car had a dent on the side and a cracked taillight as described by the first victim.

The officer stopped his patrol car, got out, and approached the Cavalier. The woman stayed in the car, but the two men got out and began walking away. The officer ordered the men to stop, but they fled into a nearby apartment unit, where they turned off the lights, shut the blinds, and locked themselves inside. At that point, the officer radioed for backup and arrested the woman who had stayed in the car.

A search warrant was obtained for the apartment. Upon executing the search warrant, officers located the two males inside the apartment and arrested them. No one else was inside the apartment. During the search, officers recovered from inside the apartment the driver’s license of the first victim, which had been cut into pieces; the tool bag of the second victim (the plumber), which had blood on it; and the camera of the fourth victim. They also recovered a .357 caliber revolver hidden in the toilet tank in the master bathroom, and bloody bullets under a mattress. During the subsequent execution of a search warrant for the gold Cavalier, officers recovered a Blackberry cell phone matching the description of the one stolen from the third victim (the plumber’s assistant).

The woman driver of the Cavalier was identified as Whitney McGlasker, and the two men who had barricaded themselves inside the apartment were identified as Derrick Greene and Cedric Wickerson. The Cavalier was registered in the name of Wickerson’s mother. The registered tenant of the apartment where Greene and Wickerson had barricaded themselves was Greene’s girlfriend.

McGlasker, Greene, and Wickerson were indicted for multiple offenses arising out of the robberies. McGlasker was tried and convicted of three counts of armed robbery and four counts of aggravated assault. See McGlasker v. State, 321 Ga. App. 614 (741 SE2d 303) (2013). Greene pled guilty to multiple offenses relating to the robberies. Wickerson was tried separately on multiple counts of armed robbery and aggravated assault.

At Wickerson’s trial, the State presented testimony and exhibits pertaining to pre-trial photographic lineups that had been shown to the first, second, and fourth victims by a police detective. The first victim had identified Greene and Wickerson in pre-trial photographic lineups as the two men who had robbed him, but he had been unable to identify the woman involved in the robbery. In addition to his testimony about the photographic lineups, the first victim positively identified Wickerson in the courtroom as the robber who had held him at gunpoint and struck him in the face with the revolver.

The second victim, the plumber, had identified Greene in a pre-trial photographic lineup as one of the men who had robbed him but had been unable to identify the other male robber. The plumber testified that he had been focused on Greene, the robber who had held the revolver to his head and struck him with it, and thus was unsure of the identity of the other man involved in the robbery.

The fourth victim had identified McGlasker, Greene, and Wickerson in pre-trial photographic lineups as the individuals who had robbed her. In addition to her testimony about the photographic lineups, the fourth victim positively identified Wickerson in the courtroom as the robber who had jumped out of the Cavalier, held her at gunpoint, and taken her purse and camera.

The State also called several law enforcement officers as witnesses. Specifically, the State presented the testimony of the Pine Lake patrol officer who had located Wickerson and the other suspects after the robberies; the police investigators involved in the search of the apartment where Wickerson had barricaded himself and in the search of the Cavalier; and the police detective who had overseen the investigation of the robberies and had shown the photographic lineups to the victims.

Wickerson chose to testify and denied any involvement in the robberies, although he admitted that he had given inconsistent statements to the police about that night. He also admitted that he hadbeen with Greene around 8:30 p.m. and later at 10:00 p.m. on the night of the robberies, and that he had barricaded himself in the apartment with Greene because the police were outside. Wickerson, however, denied that he had been with Greene between 8:30 p.m. and 10:00 p.m. and called defense witnesses in an effort to show that he had been watching a football game at a friend’s apartment during that time period. But those witnesses conceded that Wickerson had not stayed to watch the entire game and had left around halftime.

After hearing all of the testimony, the jury found Wickerson guilty of four counts of armed robbery and six counts of aggravated assault. Wickerson filed a motion for new trial and raised claims of ineffective assistance of counsel. After conducting an evidentiary hearing, the trial court denied the motion, resulting in this appeal.

1. Wickerson challenges the sufficiency of the evidence to convict him of armed robbery under Counts 2 and 3 of the indictment. Count 2 of the indictment charged him with the armed robbery of the plumber, and Count 3 charged him with the armed robbery of the plumber’s assistant. Wickerson emphasizes that the plumber was unable to identify him as one of the perpetrators and that the plumber’s assistant never testified at trial. Consequently, Wickerson contends that his convictions on Counts 2 and 3 were contrary to the weight of the evidence and must be reversed. We disagree.

When we evaluate the sufficiency of the evidence under the standard of Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979), “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis in original.) In answering this question, “[w]e neither weigh the evidence nor assess the credibility of witnesses.” (Citations omitted.) Vaughn, 301 Ga. App. at 391. Rather, “as long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, we must uphold the jury’s verdict.” (Punctuation and footnote omitted.) Skinner v. State, 318 Ga. App. 217, 221 (3) (733 SE2d 506) (2012).

OCGA § 16-8-41 (a) provides: “A person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon[.]” In determining whether there was sufficient evidence that the armed robberies at issue were committed by Wickerson, we are mindful that

[e]very person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime. One is concerned in the commission of a crime where the person either directly commits, intentionally causes another to commit, intentionally aids or abets the commission of, or intentionally advises or otherwise encourages another to commit the crime. A person’s involvement in the commission of a crime may be inferred from that person’s presence, companionship, and conduct before, during and after the crime.

(Citations and punctuation omitted.) Sims v. State, 306 Ga. App. 68, 70 (1) (701 SE2d 534) (2010). See OCGA § 16-2-20 (a), (b).

Applying these principles, we conclude that the evidence previously discussed was sufficient to authorize a rational jury to find beyond a reasonable doubt that Wickerson, either directly or as a party to the crime, participated in the armed robberies of the plumber and his assistant. Jackson, 443 U. S. at 319 (III) (B). Although there was no direct testimony from the plumber identifying Wickerson as one of the two men involved in those crimes, “[circumstantial evidence of identity may be sufficient to enable a rational trier of fact to find a defendant guilty beyond a reasonable doubt.” Onumah v. State, 313 Ga. App. 269, 272 (3) (721 SE2d 115) (2011). See Mays v. State, 198 Ga. App. 402, 403-404 (3) (401 SE2d 597) (1991). Furthermore, even though the plumber’s assistant did not testify at trial, the testimony of a victim is not required to sustain a conviction where there is other evidence that the defendant committed the acts which establish the elements of the offense. See Anthony v. State, 276 Ga. App. 107, 108 (1) (622 SE2d 450) (2005); Mullins v. State, 267 Ga. App. 393, 395 (1) (a) (599 SE2d 340) (2004).

Here, there was sufficient “other evidence” circumstantially connecting Wickerson to the robberies of the plumber and his assistant to sustain his convictions. The plumber identified Greene as one of the two robbers, and the first victim identified Wickerson as having committed an armed robbery with Greene ten minutes before the robbery of the plumber and his assistant, and the fourth victim identified Wickerson as having committed an armed robbery with Greene ten minutes after the robbery of the plumber and his assistant. Additionally, the Pine Lake patrol officer saw Wickerson and Greene together shortly after the robberies when they exited from the gold Cavalier, which was registered in the name of Wickerson’s mother and from which a Blackberry cell phone matching the description of the one stolen from the plumber’s assistant was later recovered. The patrol officer further observed Wickerson and Greene flee into an apartment unit where the tool bag of the plumber with his apparent blood on it was later recovered, along with a .357 caliber revolver matching the handgun described by the plumber as being used in the robbery.

This combined circumstantial evidence was sufficient to permit a jury to infer that Wickerson was one of the two men involved in the armed robberies of the plumber and his assistant. While Wickerson denied any involvement in those offenses and attempted to present an alibi defense, the jury “was entitled to disbelieve [his] version of the facts.” (Citation and punctuation omitted.) Herrera v. State, 306 Ga. App. 432, 433 (1) (702 SE2d 731) (2010). Accordingly, we conclude that there was sufficient evidence to support the verdicts for armed robbery.

2. Wickerson also argues that the State failed to prove beyond a reasonable doubt through competent evidence that venue for the crimes committed against the first, second, and third victims was proper in DeKalb County. Again, we disagree.

Our Georgia Constitution requires that venue in all criminal cases must be laid in the county in which the crime was allegedly committed. Venue is a jurisdictional fact, and is an essential element in proving that one is guilty of the crime charged. Like every other material allegation in the indictment, venue must be proved by the prosecution beyond a reasonable doubt. The State may establish venue by whatever means of proof are available to it, and it may use both direct and circumstantial evidence.

(Citation and punctuation omitted.) McGlasker, 321 Ga. App. at 616 (1).

The first victim testified as to the location where he was robbed, and the second victim (the plumber) testified as to the location where he and the third victim (his assistant) were robbed, but they did not specify the county where the crimes occurred. The lead police detective, however, pointed out on a map the locations of the crimes as had been identified by the victims and testified that the map was of an area of DeKalb County. “This was sufficient evidence concerning the location of the acts to establish that the crimes occurred in DeKalb County.” McGlasker, 321 Ga. App. at 616 (1) (venue established through police detective who “testified that the three robberies took place at apartments located within a three-mile area which he referenced from a map showing the area,” and “further testified that the area was within DeKalb County”). See Armstrong v. State, 286 Ga. 420, 421 (2) (688 SE2d 629) (2010) (“Proof of venue is sufficient where the State has submitted a map of the crime scene area into evidence and presented testimony that the crime occurred on a street located in the county in which the defendant is being prosecuted”).

In reaching this conclusion, we reject Wickerson’s assertion that the detective’s testimony about the locations of the robberies on the map posed a hearsay problem because his information about where the robberies occurred came from his interviews of the victims. The victims testified at trial as to the locations of the robberies, and the detective then took the stand and pointed out from his personal knowledge of the layout of the county where those locations were on a map of DeKalb County. There simply was no hearsay problem with the detective’s testimony.

3. Wickerson was convicted and sentenced for the armed robbery of the plumber (Count 2) and for the aggravated assault of the plumber for striking him in the head with a handgun (Count 8). We are constrained to hold that the trial court erred in failing to merge Count 8 into Count 2 for sentencing purposes for the same reasons explained in our recent opinion in McGlasker, 321 Ga. App. at 617 (2). In that case, this Court held that McGlasker, the woman accomplice who was separately tried and convicted as a party to the armed robbery and aggravated assault of the plumber, should not have been sentenced for both the robbery and the assault. See id. This Court reasoned that the aggravated assault was a lesser included offense of the armed robbery and that the assault conviction therefore should have been merged into the robbery conviction for sentencing purposes. See id.

Based on the reasoning of McGlasker, we must conclude that the aggravated assault of the plumber was a lesser included offense of the armed robbery of the plumber and that the trial court erred by not merging the assault into the robbery. Wickerson’s conviction and sentence for aggravated assault under Count 8 therefore must be vacated, and the case must be remanded to the trial court for resentencing. See generally Sears v. State, 292 Ga. 64, 73-74 (6) (734 SE2d 345) (2012). This disposition is required, even though Wicker-son did not enumerate the merger issue as error on appeal. See Washington v. State, 310 Ga. App. 775, 781-782 (7), n. 32 (714 SE2d 364) (2011).

4. Wickerson further argues that his trial counsel was ineffective in several respects. We are unpersuaded.

To succeed on a claim of ineffective assistance of counsel under the test set forth in Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984), “[Wickerson] must prove both that his trial counsel’s performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance.” Johnson v. State, 281 Ga. 770, 771 (2) (642 SE2d 827) (2007). If Wickerson fails to establish one of the prongs of the Strickland test, he cannot succeed on his claim of ineffective assistance, and we need not examine the other prong. Id. at 771-772 (2). With this framework in mind, we turn to the specific allegations of ineffective assistance raised by Wickerson.

(a) Wickerson first contends that his trial counsel was ineffective for failing to subpoena for trial the police officer who took the fourth victim’s statement after she was robbed. According to Wickerson, the fourth victim’s testimony at trial was inconsistent with her statement to the police officer because she testified at trial that the robber who held her at gunpoint pushed her against a fence, but she allegedly told the officer that the robber pulled her to the ground. Based upon this inconsistency, Wickerson maintains that if the officer had testified about the fourth victim’s prior statement, it would have given “rise to doubt about the ability of the [victim] to recollect exactly what happened during the incident in question.”

Pretermitting whether his trial counsel was deficient for failing to subpoena the police officer, we conclude that Wickerson cannot succeed on his ineffectiveness claim because he cannot show prejudice. Wickerson did not call the police officer who took the fourth victim’s statement to testify at the motion for new trial hearing, and “[w]hen a defendant bases his ineffective assistance of counsel claim on counsel’s decision not to call a particular witness, he must introduce either testimony from the uncalled witness or a legally recognized substitute for his testimony.” (Citation and punctuation omitted.) Cartwright v. State, 291 Ga. 498, 500 (2) (b) (731 SE2d 353) (2012). Moreover, the inconsistency alleged by Wickerson — the fourth victim being pushed against a fence versus being pulled to the ground by the robber — was simply not a material one to the case. Under these circumstances, Wickerson cannot show that there is a reasonable probability that if the police officer had testified about the fourth victim’s prior statement, the outcome of the trial would have been different. See Taylor v. State, 282 Ga. 693, 696-697 (2) (c) (653 SE2d 477) (2007) (defendant could not show prejudice arising from failure to impeach witness with prior inconsistent statement, where there was no reasonable probability that the difference between witness’s prior statement and her in-court testimony would have affected the result of the trial).

(b) Wickerson next contends that his trial counsel was ineffective for failing to seek a curative instruction after the trial court struck the testimony of McGlasker, the woman involved in the robberies, who testified that Wickerson was her boyfriend and that his mother had a gold Cavalier, but then refused to testify any further. Wickerson’s claim is without merit. The record reflects that the trial court sua sponte gave a curative instruction after striking McGlasker’s testimony. Hence, Wickerson clearly cannot establish that his trial counsel’s failure to seek a curative instruction prejudiced him in any manner.

(c) Wickerson also contends that his trial counsel was ineffective for failing to object when the first victim testified that he had been scared to come to court and testify because he had been held at gunpoint during the robbery, “didn’t want to get involved,” and “didn’t want to put [him] self in danger” because “you never know what’s going to happen when you come to court.” But “there is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” (Punctuation and footnote omitted.) Tyner v. State, 313 Ga. App. 557, 565 (6) (c) (722 SE2d 177) (2012). Moreover, “[t]he decision of whether to interpose certain objections is a matter of trial strategy and tactics.” (Citation, punctuation and footnote omitted.) Abernathy v. State, 299 Ga. App. 897, 903 (3) (a) (685 SE2d 734) (2009). And “[tjrial tactics and strategy, no matter how mistaken in hindsight, are almost never adequate grounds for finding trial counsel ineffective unless they are so patently unreasonable that no competent attorney would have chosen them.” (Citation and punctuation omitted.) Flemister v. State, 317 Ga. App. 749, 757 (4) (b) (732 SE2d 810) (2012).

Significantly, Wickerson failed to question his trial counsel at the motion for new trial hearing as to why he did not object to the first victim’s testimony.

Under these circumstances, any decision not to object must be presumed to be a strategic one[, and] the only remaining question under the first prong of Strickland is whether that decision was so patently unreasonable that no competent attorney would have decided to forego making the objection.

(Citations and punctuation omitted.) Flemister, 317 Ga. App. at 757 (4) (b).

“It is entirely reasonable for an attorney to make the strategic decision not to object at every opportunity.” Flemister, 317 Ga. App. at 758 (4) (b). A competent attorney could have made the strategic decision to forego objecting to the first victim’s brief, generalized testimony about being scared to testify so as not to draw unnecessary attention to it. See, e.g., Bogan v. State, 255 Ga. App. 413, 415-416 (3) (b) (565 SE2d 588) (2002) (tactical decision not to object did not constitute deficient performance where counsel “made a tactical decision not to object or ask for a curative instruction . . . because he did not want to draw unnecessary attention to the issue”). Consequently, Wickerson cannot succeed on his ineffective assistance claim.

(d) Lastly, Wickerson contends that his trial counsel was ineffective for failing to object when the prosecutor allegedly argued during closing that the third victim, the plumber’s assistant, did not come to trial because he was scared. But the record shows that closing arguments were not transcribed. “Because closing arguments were not transcribed, we cannot review this enumeration.” Jackson v. State, 256 Ga. App. 829, 831-832 (5) (570 SE2d 40) (2002). See Carswell v. State, 251 Ga. App. 733, 736 (3) (555 SE2d 124) (2001).

Decided May 22, 2013.

Jonathan R. Melnick, for appellant.

Robert D. James, Jr., District Attorney, Daniel J. Quinn, Assistant District Attorney, for appellee.

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

Miller and Ray, JJ., concur.

       The State’s motion to dismiss the appeal is hereby denied.

       The fourth victim identified the tag number on the Cavalier as “AEW7333,” and the tag number on the Cavalier seen by the patrol officer was “AEM7333.”

       The State requested and obtained entry of a nolle prosequi on a separate count in the indictment for possession of a firearm by a convicted felon.

       The third victim, the plumber’s assistant, did not testify at trial.

       The trial court granted Wickerson’s motion for a directed verdict on one of the counts of aggravated assault.

       Wickerson asserts that there was insufficient evidence to convict him of aggravated assault under Counts 7 and 9 of the indictment, but his assertion is moot because the trial court merged those counts into other counts for purposes of sentencing. See Nelson v. State, 277 Ga. App. 92, 96 (1) (b) (625 SE2d 465) (2005). Additionally, Wickerson asserts that there was insufficient evidence to convict him of aggravated assault under Count 8 of the indictment, but that assertion also is moot because we conclude infra in Division 3 that his aggravated assault conviction under Count 8 should have been merged into his armed robbery conviction under Count 2. See Long v. State, 287 Ga. 886, 887-888 (1) (700 SE2d 399) (2010).

       The fourth victim testified that the crimes committed against her occurred in DeKalb County, and Wickerson does not challenge the State’s proof of venue as to those specific crimes.


source: Caselaw Access Project

license: Public Domain

text:
    A13A0175.
    BOBICK v. COMMUNITY & SOUTHERN BANK.
    (743 SE2d 518)
   BARNES, Presiding Judge.

This appeal arises out of a dispute over a promissory note executed by appellant Sally Bobick in favor of First National Bank of Georgia (“First National”). Contending that Bobick had defaulted on her loan obligations, First National filed the present action against her for breach of the note, and she answered and asserted several counterclaims against the bank and its CEO. First National failed while the litigation was pending, and the Federal Deposit Insurance Corporation (“FDIC”) was appointed as receiver for the bank. The FDIC assigned and transferred certain assets of First National to appellee Community & Southern Bank (“CSB”). The trial court subsequently granted summary judgment to CSB on the claims for breach of the note, dismissed Bobick’s counterclaims, and entered final judgment in favor of CSB.

On appeal, Bobick contends that the trial court erred in granting CSB’s motions to dismiss and for summary judgment because CSB was never properly substituted as the plaintiff and thus was never made a proper party to the suit. Bobick further contends that the trial court erred in granting CSB’s motion for summary judgment on the claim for breach of the promissory note because CSB was not a party to or an assignee of the note. Lastly, Bobick contends that the trial court erred in dismissing her counterclaims pursuant to the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (“FIRREA”), Pub. L. No. 101-73, 103 Stat. 183 (codified as amended in scattered sections of 12 USC). For the reasons discussed below, we affirm the trial court’s rulings.

Summary judgment is appropriate if the pleadings and evidence “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” OCGA § 9-11-56 (c). On appeal from a trial court’s grant of summary judgment, we “conduct a de novo review, construing all reasonable inferences in the light most favorable to the nonmoving party.” Bank of North Ga. v. Windermere Dev., 316 Ga. App. 33, 34 (728 SE2d 714) (2012).

We also review de novo a trial court’s grant of a motion to dismiss. Ga. Dept. of Community Health v. Datalnquiry, 313 Ga. App. 683 (722 SE2d 403) (2012). We construe the pleadings in the light most favorable to the nonmoving party with any doubts resolved in that party’s favor. Id.

The record reflects that on January 15, 2008, First National made a loan to Bobick in the principal amount of $2,200,250. Bobick signed a promissory note for the principal sum of the loan plus interest with a maturity date of January 15, 2009. The note was secured by property that “include [d], but [was] not limited to,” 185,394 shares of stock that Bobick owned in WGNB Corporation, as reflected in a security agreement included with the note.

Bobick failed to fully pay the amount owed on the promissory note by the maturity date. On July 22, 2009, First National filed the present suit against Bobick for breach of the note in the State Court of Carroll County. First National sought to recover unpaid principal, interest, late fees, and attorney fees.

In January 2010, First National failed and was closed by the Office of the Comptroller of the Currency, and the FDIC was appointed as receiver for the failed bank. On January 29, 2010, the FDIC in its capacity as receiver transferred certain categories of assets of First National, including “Loans” owed to or held by the bank, to CSB pursuant to a “Purchase and Assumption Agreement.” The FDIC as receiver later executed an “Assignment of Security Instruments and other Loan Documents” (the “Assignment Agreement”) under which it assigned and transferred to CSB all

rights, title, and interests in and to all those certain Mortgages, Security Deeds, Deeds to Secure Debt, Deeds of Trust, Assignments of Rents and Leases, UCC-1 financing statements, judgment liens, and all such other instruments and security agreements securing loans ownedby First National... and held of record by First National... as of January 29, 2010 ... and all modifications, extensions, amendments and renewals thereto (collectively, the “Security Instruments”) [,] TOGETHER with all of the underlying debts described in such Security Instruments.

The FDIC further assigned and transferred to CSB all

rights, title and interests in and to the promissory notes, loan documents and all other indebtedness secured by the Security Instruments, as evidenced by related promissory notes, any and all loan agreements, pledges, security agreements and UCC financing statements and all modifications, extensions, amendments and renewals to said documents and instruments together with any and all other loan documents, title policies and casualty insurance policies evidencing, securing or relating to any of the foregoing all of which have been delivered to . . . [CSB].

Based on these agreements that it had entered into with the FDIC, CSB came into possession of the promissory note and security agreement that had been executed by Bobick in favor of First National.

On March 8, 2010, Bobick answered the complaint filed by First National, raised several affirmative defenses, and asserted counterclaims for declaratory judgment, breach of contract, breach of fiduciary duty, fraud, attorney fees, and punitive damages. Bobick also successfully moved to add as a counterclaim defendant H. B. “Rocky” Lipham III, who had served as a director of First National and its CEO and president.

Bobick alleged in her counterclaims that First National’s failure was a direct and proximate result of mismanagement by Lipham and other bank officials, and that, as a result of the failure of the bank, her stock in WGNB Corporation, which she alleged was the “holding company” of First National, had been rendered worthless. Bobick further alleged that Lipham and other bank officials had represented to her that the promissory note would continue to be renewed in one-year increments until she was able to repay her loan to First National, and that her stock in WGNB Corporation would be sufficient collateral and would be adequate by itself to secure the loan’s repayment. Bobick alleged that despite these representations, when the note matured on January 15, 2009, First National requested additional collateral for the loan and refused to renew the note without additional collateral.

According to CSB, after Bobick filed her answer and counterclaims, First National filed a motion to substitute CSB as the plaintiff on March 25, 2011, but the state court did not rule on the motion. On November 10,2011, the case was transferred to the Superior Court of Carroll County with the case style of the transfer order still listing First National as the plaintiff.

On May 25, 2012, CSB moved for summary judgment on the claim for breach of the promissory note. CSB argued that it had established its prima facie right to recover and that the burden then had shifted to Bobick to establish any affirmative defenses. CSB further argued that Bobick had failed to come forward with any evidence in support of her affirmative defenses or to raise a question of fact challenging the bank’s right to recover unpaid principal, interest, late fees, and attorney fees under the promissory note.

On May 30,2012, CSB filed a motion to dismiss Bobick’s counterclaims for lack of subject matter jurisdiction on the ground that Bobick had failed to exhaust her administrative remedies before the FDIC as required by FIRREA. CSB also argued that Bobick’s counterclaim seeking a declaratory judgment should be dismissed on the additional ground that it would improperly restrain the exercise of the powers of the FDIC as receiver under FIRREA. Furthermore, CSB argued that Bobick’s counterclaim for breach of fiduciary duty should be dismissed on the additional ground that it was a shareholder derivative claim that could only be asserted by the FDIC as receiver for First National under FIRREA.

After Bobick filed her responses opposing the two motions, the superior court heard oral argument. Following the hearing, the trial court entered its Final Judgment and Order granting summary judgment to “Plaintiff Community & Southern Bank” and entered judgment in favor of the bank for the unpaid principal due on the promissory note, interest, late fees, and contractual attorney fees. The superior court dismissed Bobick’s counterclaims in the same order. This appeal followed.

1. Bobick first contends that the superior court erred in granting CSB’s motions to dismiss and for summary judgment because CSB was never substituted as the plaintiff and thus was never made a proper party to the case. We disagree.

Neither the state court nor the superior court entered a separate order that expressly substituted CSB as the plaintiff in this suit. But in its Final Judgment and Order, the superior court identified the plaintiff in the style of the case as “First National Bank of Georgia now known as Community & Southern Bank,” referred to the plaintiff as “Plaintiff Community & Southern Bank” throughout the order, and specifically stated that the court was entering judgment in favor of “Plaintiff Community & Southern Bank.” (Emphasis supplied.)

Superior court orders “are construed according to their substance and function and not merely by nomenclature,” and “[t]he goal is to give full effect to the totality of the [ruling that was] rendered rather than to read words in a vacuum.” (Citations and punctuation omitted.) Hedquist v. Merrill Lynch, Pierce, Fenner & Smith, 284 Ga. App. 387, 391 (1) (643 SE2d 864) (2007). The wording of the Final Judgment and Order make clear that the superior court intended to substitute CSB as the plaintiff in addition to ruling on the motions to dismiss and for summary judgment that had been filed by CSB. Accordingly, Bobick’s contention that CSB was never substituted as the plaintiff in the suit is without merit. Cf. Rocor Intl. v. Guyton, 229 Ga. App. 758, 763 (494 SE2d 571) (1997) (Beasley, J., concurring specially) (noting that administrative law judge had “on his own initiative implicitly substituted” one corporation for another, “as can be done pursuant to OCGA § 9-11-21”).

2. Bobick next contends that the trial court erred in granting summary judgment to CSB on the claim for breach of the promissory note because CSB was not a party to the note and CSB failed to establish that it had been assigned the note by the FDIC as receivér for First National. Again, we disagree.

The doctrine of privity of contract requires that only parties to a contract may bring suit to enforce it. Aparty may assign to another a contractual right to collect payment, including the right to sue to enforce the right [, and the] assignment must be in writing in order for the contractual right to be enforceable by the assignee.

(Citations, punctuation and emphasis omitted.) Arrow Financial Svcs. v. Wright, 311 Ga. App. 319, 321-322 (1) (715 SE2d 725) (2011).

It is undisputed that First National failed and that the FDIC was appointed as receiver for the bank. In connection with its motion for summary judgment, CSB submitted documents reflecting a complete chain of assignment for the promissory note at issue, including the note and security agreement executed by Bobick in favor of First National; the Purchase and Assumption Agreement entered between the FDIC and CSB, which listed the FDIC as receiver for First National and assigned the “Loans” of First National to CSB; and the Assignment Agreement in which the FDIC as receiver for First National assigned the promissory notes and security instruments of First National to CSB.

Furthermore, CSB submitted the affidavit of George Platt, who had been granted a limited power of attorney by the FDIC, as receiver for First National, authorizing him to execute assignment documents that evidenced the sale and transfer of assets of First National, including its loan portfolio, to CSB pursuant to the Purchase and Assumption Agreement. Platt executed the Assignment Agreement on behalf of the FDIC as receiver for First National, and he averred that the promissory note executed by Bobick on January 15,2008 was among the loan documents of First National that had been assigned and transferred to CSB pursuant to the Purchase and Assumption Agreement and the Assignment Agreement.

Finally, CSB submitted the affidavit of Patrick Dowling, vice president and special assets professional for CSB and the custodian of its business records. He averred that CSB had acquired from the FDIC the promissory note entered into by Bobick on January 15,2008 and that the note was currently in the possession of CSB.

This combined evidence was sufficient to establish a valid assignment of Bobick’s promissory note to CSB. See Heritage Constr. Corp. v. State Bank & Trust Co., 316 Ga. App. 25, 27-28 (728 SE2d 703) (2012); Kensington Partners v. Beal Bank Nevada, 311 Ga. App. 196, 196-197 (1) (715 SE2d 491) (2011). The superior court therefore did not err in granting summary judgment to CSB on the claim for breach of the note.

3. Bobick further contends that the trial court erred in dismissing her counterclaims against First National. Bobick maintains that she was not required to exhaust administrative remedies under FIRREA before bringing her counterclaims, and that, as a result, the superior court had subject matter jurisdiction to hear those claims and should not have dismissed them. We do not agree.

Under the doctrine of administrative exhaustion, a party must pursue available statutory administrative remedies before seeking judicial review. See Ga. Dept. of Community Health v. Ga. Society of Ambulatory Surgery Centers, 290 Ga. 628, 629 (724 SE2d 386) (2012). If a party fails to pursue those remedies, a trial court is deprived of subject matter jurisdiction over the action. See We, the Taxpayers v. Bd. of Tax Assessors of Effingham County, 292 Ga. 31, 35 (2) (734 SE2d 373) (2012). “[T]he rationale for requiring exhaustion of administrative remedies is to permit the agency to apply its expertise, preserve the agency’s autonomy, allow for a more efficient resolution, and provide for the uniform application of matters within the agency’s jurisdiction.” Northeast Ga. Cancer Care v. Blue Cross & Blue Shield of Ga., 297 Ga. App. 28, 32 (1) (676 SE2d 428) (2009). Mindful of these principles, we turn to FIRREA and the question of its application in this case.

FIRREA “was enacted to strengthen regulation of the nation’s financial system in the wake of the savings and loan crisis of the 1980s,” and “[i]t grants the FDIC broad powers under 12 USC § 1821 to manage the affairs of insolvent banks as receiver or conservator.” Iberiabank v. Beneva 41-1, LLC, 701 F3d 916, 921 (11th Cir. 2012). FIRREA also created an administrative process for addressing claims against failed banks for which the FDIC has been appointed as receiver. See 12 USC § 1821 (d) (3)-(13); Stamm v. Paul, 121 F3d 635, 639 (11th Cir. 1997); Lazarre v. JPMorgan Chase Bank, N.A., 780 FSupp.2d 1320, 1324 (S.D. Fla. 2011). Pursuant to that process, the FDIC in its capacity as receiver for a failed bank is authorized to determine claims against the bank under procedures established by statute and FDIC regulations. See 12 USC § 1821 (d) (3) (A), (d) (4); Lazarre, 780 FSupp.2d at 1324.

“In enacting FIRREA, Congress anticipated that, as a receiver for failed lending entities, the [FDIC] would face numerous claims from various parties.” Stamm, 121 F3d at 639. Consequently, Congress established limits on judicial review of such claims. See id. In this regard, 12 USC § 1821 (d) (13) (D) provides:

Except as otherwise provided in this subsection, no court shall have jurisdiction over —
(i) any claim or action for payment from, or any action seeking a determination of rights with respect to, the assets of any depository institution for which the [FDIC] has been appointed receiver, including assets which the [FDIC] may acquire from itself as such receiver; or
(ii) any claim relating to any act or omission of such institution or the [FDIC] as receiver.

We agree with the Eleventh Circuit’s construction ofl2USC§ 1821 (d) (13) (D) as broadly covering all

(1) claims for payment from assets of any depository institution for which the [FDIC] has been appointed Receiver;
(2) actions for payment from assets of such depository institutions;
(3) actions seeking a determination of rights with respect to the assets of such depository institutions; and
(4) . . . claim [s] relating to any act or omission of such institution or the [FDIC] as receiver.

American First Fed. v. Lake Forest Park, Inc., 198 F3d 1259, 1263 (11th Cir. 1999), quoting National Union Fire Ins. Co. v. City Savings, 28 F3d 376, 393 (3d Cir. 1994).

Furthermore, the Eleventh Circuit has construed the limitation on judicial review imposed by 12 USC § 1821 (d) (13) (D) as establishing an administrative exhaustion requirement, and we find its reasoning persuasive. See Interface Kanner, LLC v. JPMorgan Chase Bank, N.A., 704 F3d 927, 934 (11th Cir. 2013) (“While FIRREA does not provide an explicit mandate for exhaustion of administrative remedies, its provisions are accepted by the cases and by Congress as having that meaning.”) (citation and punctuation omitted); American First Fed., 198 F3d at 1263-1264 (noting that “[t]here is consensus among the circuits that all claims that fall within these categories are subject to [an] exhaustion requirement”). Furthermore, the Eleventh Circuit has held, and we agree, that all claims falling within 12 USC § 1821 (d) (13) (D) are subject to the exhaustion requirement regardless of “whether they are asserted as initial claims or as counterclaims.” American First Fed., 198 F3d at 1263. Thus, we conclude that if a claim or counterclaim falls within 12 USC § 1821 (d) (13) (D), courts are divested of subject matter jurisdiction if the claimant failed to exhaust her administrative remedies before the FDIC. See American First Fed., 198 F3d at 1263.

Bobick’s counterclaims against First National concern purported actions taken by that bank before it was closed and placed in receivership in January 2010, and, therefore, are “claim [s] relating to [an] act or omission of [an] institution” for which the FDIC was appointed as receiver. American First Fed., 198 F3d at 1263. See 12 USC § 1821 (d) (13) (D) (ii). Moreover, Bobick’s counterclaims seeking damages for the purported conduct of First National in January 2010 are “claims for payment from assets of [a] depository institution for which the [FDIC] has been appointed [Receiver.” American First Fed., 198 F3d at 1263. See 12 USC § 1821 (d) (13) (D) ©.Additionally, Bobick’s counterclaim for a declaratory judgment — which sought a declaration that a “new contract” was in place between First National and Bobick and that the existing promissory note was null and void as the result of a novation — was an “action [ ] seeking a determination of rights with respect to the assets of [a] depository institution[ ]” for which the FDIC was appointed as receiver. American First Fed., 198 F3d at 1263. See 12 USC § 1821 (d) (13) (D) (i); Interface Kanner, LLC, 704 F3d at 934 (plain language of 12 USC § 1821 (d) (13) (D) © includes declaratory judgment actions). It follows that Bobick’s counterclaims brought against First National come within the ambit of 12 USC § 1821 (d) (13) (D) and are subject to the administrative exhaustion requirement imposed by FIRREA. See American First Fed., 198 F3d at 1263.

Bobick does not allege that she submitted an administrative claim to the FDIC. Rather, Bobick asserts that none of her counterclaims brought against First National fall within the scope of the administrative exhaustion requirement because the FDIC is not a party to this litigation; her counterclaims are “pre-receivership claims” and the FDIC never requested to stay the court proceedings; the FDIC never provided her with proper notice of the administrative claims process relating to First National; and there was no receivership in place at the time that First National filed its suit on the promissory note, the sole point in time at which Bobick alleges that subject matter jurisdiction should have been assessed. Bobick also maintains that her request for a declaratory judgment did not fall within the exhaustion requirement because it was in essence an affirmative defense rather than a counterclaim. We will address these arguments each in turn.

(a) Bobick first asserts that none of her counterclaims fall within the administrative exhaustion requirement because the FDIC is not a party to this litigation. We are unpersuaded.

12 USC § 1821 (d) (13) (D) does not limit its jurisdictional bar to claims or counterclaims brought against the FDIC or the failed bank for which it was appointed as receiver. Rather, by its plain language, 12 USC § 1821 (d) (13) (D) refers to “any” claim or action and “does not make its application contingent upon whom the claim is against.” (Emphasis in original.) Aber-Shukofsky v. JPMorgan Chase & Co., 755 FSupp.2d 441, 447 (E.D. N.Y. 2010). Hence, “an entity [such as CSB] that purchases a failed lending institution’s assets from the FDIC acquires the administrative review protections afforded by section 1821 (d)” and is entitled to seek dismissal of a claim for failure to exhaust administrative remedies. Lazarre, 780 FSupp.2d at 1325. See American First Fed., 198 F3d at 1263, n. 3; Haygood v. Community & Southern Bank, No. 1:12-cv-295-WSD, 2012 U. S. Dist. LEXIS 180826, at *16 (N.D. Ga. Dec. 21, 2012). See also Aber-Shukofsky, 755 FSupp.2d at 446-450 (discussing federal cases holding that FIRREA applies to claims brought against a third party that purchased a failed bank’s assets from the FDIC acting as receiver). The administrative exhaustion requirement imposed by 12 USC § 1821 (d) (13) (D) therefore applies in this case even though the FDIC was not named as a defendant to Bobick’s counterclaims.

(b) Bobick next asserts that none of her counterclaims fall within the administrative exhaustion requirement because her counterclaims are “pre-receivership claims” and the FDIC never intervened in the suit to request a stay of the court proceedings. Again, we are unpersuaded.

The Eleventh Circuit has construed FIRREA to provide two separate schemes for the disposition of pre-receivership and post-receivership claims. See Fed. Deposit Ins. Corp. v. Lacentra Trucking, 157 F3d 1292, 1301 (11th Cir. 1998); Damiano v. Fed. Deposit Ins. Corp., 104 F3d 328, 333-334 (11th Cir. 1997). For claims already pending in court when a bank is placed into receivership, a court retains subject matter jurisdiction to hear the claims but should stay the action if the FDIC timely requests a stay and “inform [s] the [claimant] that it is doing so pending exhaustion of... administrative remedies.”Damiano, 104 F3d at 335. See 12 USC § 1821 (d) (5) (F) (ii), (d) (8) (E), and (d) (12). But “[f]or post-receivership claims, the court has no subject matter jurisdiction unless the claimant has exhausted [her] administrative remedies.” Damiano, 104 F3d at 333. See 12 USC § 1821 (d) (13) (D).

Federal courts are split over whether FIRREA draws a distinction between pre-receivership and post-receivership claims for purposes of administrative exhaustion. See Cassese v. Washington Mutual, 711 FSupp.2d261, 268 (E.D. N.Y. 2010) (discussing cases). Unlike the Eleventh Circuit, some federal courts hold that a court is divested of subject matter jurisdiction over a claim falling within FIRREA irrespective of whether the claim was filed pre-receivership or post-receivership. See id.; Intercontinental Travel Marketing v. Fed. Deposit Ins. Corp., 45 F3d 1278, 1282-1283 (9th Cir. 1994); Bueford v. Resolution Trust Corp., 991 F2d 481, 485 (8th Cir. 1993); Resolution Trust Corp. v. Mustang Partners, 946 F2d 103, 106 (10th Cir. 1991) (per curiam).

We need not decide which position we find more persuasive because all of Bobick’s counterclaims against First National were post-receivership claims and thus fell within the administrative exhaustion requirement under both lines of federal cases. Post-receivership claims include, but are not limited to, “claims related to conduct by the failed financial institution that the aggrieved party neglects to assert until after the [FDIC] assumes control over the lending entity.” Stamm, 121 F3d at 639. Bobick’s counterclaims, all of which related to the purported conduct of First National before its failure, were not filed until after the FDIC assumed control of the failed bank and thus constituted post-receivership claims. See Resolution Trust Corp. v. W. W. Dev. & Mgmt., 73 F3d 1298, 1309-1310 (3d Cir. 1996); Fed. Deposit Ins. Corp. v. Bristol Home Mtg. Lending, No. 08-81535-CIV-MARRA/JOHNSON, 2009 U. S. Dist. LEXIS 37803, at *4-5 (S.D. Fla. May 4, 2009). Consequently, Bobick was required to exhaust her administrative remedies before the FDIC prior to asserting her counterclaims against First National in the present suit. See Damiano, 104 F3d at 333; Bristol Home Mtg. Lending, 2009 U. S. Dist. LEXIS 37803, at *4-5.

(c) Bobick further asserts that none of her counterclaims fall within the administrative exhaustion requirement because the FDIC never provided her with proper notice of the administrative claims process relating to First National. We disagree.

[T]he FDIC’s failure to provide proper notice does not relieve the claimant of the obligation to exhaust administrative remedies, because [FIRREA] does not provide for a waiver or exception under those circumstances. The only exception to the strict requirement of exhaustion of remedies [ ] is where the claimant does not receive notice of the appointment of the receiver in time to file his claim.

(Citations and punctuation omitted.) RTC Mtg. Trust 1994-N2 v. Haith, 133 F3d 574, 579 (8th Cir. 1998). See 12 USC § 1821 (d) (5) (C) (ii); Lubin v. Fed. Deposit Ins. Corp., No. 1:10-CV-00874-RWS, 2011 U. S. Dist. LEXIS 21391, at *10-11 (N.D. Ga. March 2, 2011).

Bobick does not contend that she lacked notice of the FDIC’s appointment as receiver for First National within the time frame for filing an administrative claim, and admitted during her deposition that she was aware “[w]hen that bank was eventually closed by the FDIC” because “[t]his is. a small town.” Accordingly, Bobick’s assertion that she was not required to exhaust her administrative remedies because of lack of proper notice from the FDIC is without merit. See Haith, 133 F3d at 579; Lubin, 2011 U. S. Dist. LEXIS 21391, at *10-11.

(d) Bobick asserts that none of her counterclaims fall within the administrative exhaustion requirement because there was no receivership in place at the time that First National filed its lawsuit, the sole point in time when she alleges that subject matter jurisdiction should be evaluated. We do not agree.

It is true that subject matter jurisdiction is assessed at the time of the filing of a suit and is not lost by the occurrence of subsequent developments. See Ga. Dept. of Community Health, 290 Ga. at 630 (1); Champion v. Rakes, 155 Ga. App. 134, 134-135 (270 SE2d 272) (1980). But the subject matter jurisdiction of state courts can be preempted by federal law under the Supremacy Clause of the United States Constitution. See U. S. Const., Art. 6, cl. 2. See also Norton v. North Ga. Foods, 211 Ga. App. 684, 685-687 (440 SE2d 263) (1994) (state court action properly dismissed for lack of subject matter jurisdiction because of preemption under federal Employee Retirement Income Security Act).

As explained supra in Division 3 (b), FIRREA provides that counterclaims filed post-receivership are subject to the administrative exhaustion requirement imposed by 12 USC § 1821 (d) (13) (D) and must be dismissed for lack of jurisdiction if the claimant failed to first exhaust the administrative claims process before the FDIC. Hence, because Bobick asserted her counterclaims after the appointment of the FDIC as receiver and failed to exhaust her administrative remedies pertaining to those claims, the jurisdiction of the superior court must yield to federal law, and Bobick’s counterclaims were properly dismissed. See Thomas v. Fed. Deposit Ins. Corp., 255 P3d 1073, 1081-1082 (Colo. 2011) (subject matter jurisdiction of state courts limited and preempted by FIRREA).

(e) Lastly, Bobick argues that even if her other counterclaims against First National were subject to dismissal pursuant to the administrative exhaustion requirement imposed by 12 USC § 1821 (d) (13) (D), her request for a declaratory judgment did not fall within that requirement because it essentially was an affirmative defense rather than a counterclaim. We disagree.

Unlike counterclaims, affirmative defenses generally do not fall within the administrative exhaustion requirement. See American First Fed., 198 F3d at 1264. An affirmative defense is “a response to a plaintiff’s claim which attacks the plaintiff’s legal right to bring an action.” (Emphasis in original.) Id., quoting Black’s Law Dictionary (6th ed. 1991). A counterclaim, in contrast, seeks some type of affirmative relief against the plaintiff. T.V. Tempo v. T.V. Venture, 182 Ga. App. 198, 200-201 (1) (355 SE2d 76) (1987).

[A] court must look beyond the nomenclature of a request for relief to ascertain whether it is a true affirmative defense or is, in actuality, a claim requiring exhaustion as a prerequisite to jurisdiction. Whether a request for relief is titled an affirmative defense or a counterclaim is not dispositive to the question of subject matter jurisdiction. The germane question is whether the remedy sought by a party, regardless of its label, is encompassedby Section 1821 (d) (13) (D)[.]

American First Fed., 198 F3d at 1264-1265.

Bobick labeled her request for a declaratory judgment against First National as a counterclaim. In seeking declaratory relief, Bobick alleged that First National had represented to her that the promissory note would continue to be renewed until she was able to repay her loan to First National, and that her stock in WGNB Corporation would be sufficient collateral for her loan and its renewal. Bobick asked the superior court to declare pursuant to the Declaratory Judgments Act, OCGA § 9-4-1 et seq., that First National’s alleged representations regarding the renewal of the note and the sufficiency of the collateral created a “new contract” that “constitute [d] a novation of the prior agreement between the parties” and was binding on First National.

Bobick’s request for a declaratory judgment is properly characterized as a counterclaim rather than an affirmative defense. Bobick did not merely seek to prevent First National from recovering on the promissory note; rather, she sought affirmative relief declaring that a “new contract” had been formed that would remain binding on the parties until the loan from First National was repaid. As such, the claim sought “a determination of rights with respect to the assets of [a] depository institution[ ]” for which the FDIC had been appointed as receiver and therefore fell within the contours of the administrative exhaustion requirement imposed by 12 USC § 1821 (d) (13) (D) (i). See American First Fed., 198 F3d at 1263. See also Interface Kanner, LLC, 704 F3d at 934 (counterclaim for declaratory judgment was subject to administrative exhaustion requirement).

4. Bobick separately contends that the superior court erred in dismissing her counterclaim for breach of fiduciary duty against First National due to lack of standing. Bobick argues that she was not required to bring her counterclaim as a shareholder derivative claim, and, therefore, that the claim could be asserted by her rather than by the FDIC as receiver.

Under FIRREA, when the FDIC is appointed as the receiver of a failed bank, it succeeds to “all rights, titles, powers, and privileges of the insured depository institution, and of any stockholder ... of such institution with respect to the institution and the assets of the institution.” 12 USC § 1821 (d) (2) (A) (i). We, like several federal courts, construe this provision as granting the FDIC “ownership over all shareholder derivative claims” brought by a shareholder on behalf of the failed bank against its officers and directors. Lubin v. Skow, 382 Fed. Appx. 866, 870 (11th Cir. 2010) (per curiam) (unpublished opinion). See Pareto v. Fed. Deposit Ins. Corp., 139 F3d 696, 700 (9th Cir. 1998) (“Plainly, the section vests all rights and powers of a stockholder of the bank to bring a derivative action in the FDIC.”); Fed. Deposit Ins. Corp. v. American Cas. Co. of Reading, Pa., 998 F2d 404, 406 (7th Cir. 1993) (“By virtue of its status as receiver, the FDIC succeeded to the rights of the [b]ank and its shareholders, one of which is the ability to sue the [b] ank’s directors and officers.”). Hence, the pertinent legal question is whether Bobick’s counterclaim for breach of fiduciary duty against First National could only be brought as a shareholder derivative claim. If the answer is in the affirmative, then her counterclaim was properly dismissed because only the FDIC as receiver had standing to bring it. See Lubin, 382 Fed. Appx. at 870-872.

(a) “Where a shareholder alleges devaluation of shares due to corporate mismanagement,” the action must be brought as a shareholder derivative action. Lubin, 382 Fed. Appx. at 870-872. See Greenwood v. Greenblatt, 173 Ga. 551, 556 (161 SE 135) (1931). Bobick’s counterclaim for breach of fiduciary duty alleged that Lipham and other bank officers had mismanaged First National, which caused the stock of First National’s holding company, WGNB Corporation, to become worthless. The Eleventh Circuit in an unpublished opinion has held, and we agree with its reasoning, that when a claim alleges that a failed bank’s officers breached their fiduciary duty by mismanaging the bank, resulting in the devaluation of the shares of the bank’s holding company, the harm caused to the holding company “is inseparable from the harm done to the [b]ank,” and the claim is a derivative one that belongs to the FDIC as receiver for the bank. See Lubin, 382 Fed. Appx. at 870-872. It follows that Bobick’s counterclaim for breach of fiduciary duty against First National predicated on the alleged mismanagement of the bank was properly dismissed for lack of standing. See id.

(b) Bobick’s counterclaim also alleged that First National breached the fiduciary duty that it owed to Bobick as her lender and owed her damages for “failing to honor the agreement [that it had with her] to renew the loan.” This allegation clearly was not a shareholder derivative claim, and thus did not belong to the FDIC as receiver. Nevertheless, the allegation was a “claim[ ] for payment from assets of [a] depository institution for which the [FDIC had] been appointed [Receiver,” and further constituted “a claim relating to any act or omission of such [an] institution.” American First Fed., 198 F3d at 1263. As such, the counterclaim for breach of fiduciary duty, to the extent that it alleged a breach of fiduciary duty based on the lending relationship between First National and Bobick, was subject to the administrative exhaustion requirement imposed by 12 USC § 1821 (d) (13) (D) and was properly dismissed for Bobick’s failure to abide by that requirement. See supra Division 3. The superior court’s dismissal of the breach of fiduciary duty claim against First National based on its lending relationship with Bobick, therefore, is affirmed on this alternative ground. See C. C. Leasing Corp. v. Bd. of Tax Assessors of Hall County, 143 Ga. App. 520, 521 (239 SE2d 204) (1977) (trial court’s grant of a motion to dismiss will be affirmed if right for any reason).

Decided May 22, 2013

Smith Conerly, Charles S. Conerly, Randall C. Parian, for appellant.

Busch, Slipakoff & Schuh, Bryan E. Busch, Shane P. Stogner, Tawana B. Johnson, for appellee.

5. Bobick also asserted several counterclaims against Lipham that the superior court dismissed in its Final Order and Judgment. She enumerates as error the superior court’s dismissal of these counterclaims, but Bobick made no effort in her appellate brief to differentiate between Lipham and CSB for purposes of her argument on appeal. Hence, any legal arguments that Bobick could have made separately on Lipham’s behalf differentiating the counterclaims brought against him from those brought against the bank are hereby deemed abandoned. See Court of Appeals Rule 25 (c) (2); Rolleston v. Estate of Sims, 253 Ga. App. 182, 188 (8) (558 SE2d 411) (2001) (error deemed abandoned if not properly supported by citation to legal authorities or to the record). Consequently, the superior court’s dismissal of the counterclaims asserted against Lipham are affirmed for the same reasons set forth in Divisions 3 and 4.

Judgment affirmed.

Miller and Ray, JJ., concur.

       First National previously had moved for entry of a default judgment against Bobick, but Bobick had opposed the motion on the ground that she had never been properly served with process. The state court denied First National’s motion and ordered that Bobick be properly served. Bobick then was served with process on February 5, 2010.

       Bobick asserts that a motion to substitute was never filed. At the hearing in the superior court on the motions to dismiss and for summary judgment, counsel for CSB stated in his place that a motion to substitute had been filed in state court before the case had been transferred, and he provided a copy of the motion to the superior court for its review. However, the motion to substitute was not entered as an exhibit at the hearing and does not otherwise appear in the appellate record.

       Apart from the assignment issue, Bobick does not challenge on appeal the other rulings necessarily made by the superior court in granting summary judgment to CSB on the claim for breach of the promissory note, including that Bobick had failed to come forward with any evidence in support of her affirmative defenses or to raise a question of fact regarding the amount she owed in unpaid principal, interest, late fees, and attorney fees under the note.

       Amotion to dismiss for lack of subject matter jurisdiction under OCGA § 9-11-12 (b) (1) “can allege either a facial challenge, in which the court accepts as true the allegations on the face of the complaint [or counterclaim], or a factual challenge, which requires consideration of evidence beyond the face of the complaint [or counterclaim].” (Citation and punctuation omitted.) Pinnacle Banning v. Clark Realty Capital, 314 Ga. App. 609, 618 (2) (a), n. 37 (724 SE2d 894) (2012). CSB’s motion to dismiss was based on the allegations contained on the face of Bobick’s counterclaims.

       The decisions of the United States Court of Appeals for the Eleventh Circuit are not binding on this Court, even on questions of federal law, but they are persuasive authority. See Deen v. Stevens, 287 Ga. 597, 601 (2) (b) (698 SE2d 321) (2010).

       Judicial review in federal court is available after the FDIC makes a determination regarding a party’s claim as part of its administrative claims process. See 12 USC § 1821 (d) (6) (authorizing filing suit in certain federal courts after the FDIC’s initial determination to allow or disallow a claim); 12 USC § 1821 (d) (7) (A) (authorizing judicial review of the FDIC’s final administrative determination).

       We also note that under 12 USC § 1821 (j), “no court may take any action... to restrain or affect the exercise of powers or functions of the [FDIC] as a conservator or a receiver.” “This provision has been interpreted broadly to bar judicial intervention whenever the FDIC is acting in its capacity as a receiver or conservator!.]” Bank of America Nat. Assn. v. Colonial Bank, 604 F3d 1239, 1243 (11th Cir. 2010). Bobick asked the superior court to declare that a new contract existed between the parties and that the promissory note was null and void due to the alleged novation. If granted, the declaratory relief sought by Bobick would serve as a restraint and affect the exercise of the powers of the FDIC, given that Bobick questions the very legal existence of the instrument that the FDIC assigned and transferred to CSB.

       In a shareholder derivative action,
      as a practical matter, the corporation is initially named as a defendant. In this way the stockholder insures the presence of the corporation as an indispensable party. Once joined and present before the court, the corporation is then realigned, if necessary, according to its real interests.

        Kilburn v. Young, 244 Ga. App. 743, 745 (1) (536 SE2d 769) (2000), quoting Liddy v. Urbanek, 707 F2d 1222, 1224 (11th Cir. 1983).

       We express no opinion regarding whether or to what extent First National actually owed a fiduciary duty to Bobick as her lender under the circumstances of this case; rather, our discussion is limited to whether such a claim constituted a shareholder derivative claim and whether it was subject to the administrative exhaustion requirement imposed by FIRREA.


text:
    A13A0198.
    TIPTON v. STATE OF GEORGIA.
    (743 SE2d 532)
   BARNES, Presiding Judge.

In this civil in rem forfeiture action, Anna D. Tipton appeals the trial court’s order of disposition finding that her vehicle was subject to forfeiture to the State because it had been used to facilitate the purchase of $30 worth of cocaine. Tipton contends that the trial court erred in denying her motion to dismiss the State’s complaint for forfeiture. She further contends that the trial court erred in finding that the forfeiture was not an excessive fine under the Eighth Amendment and in failing to perform the proper constitutional analysis on the record. As discussed below, Tipton failed to invoke a ruling on her motion to dismiss, precluding appellate review of that enumeration of error. However, the record does not reveal whether the trial court performed the detailed analysis required by Howell v. State of Ga., 283 Ga. 24, 26 (1) (656 SE2d 511) (2008) in determining whether the forfeiture constituted an excessive fine. We therefore vacate the trial court’s order of disposition and remand the case with direction that the court conduct the proper constitutional analysis and make appropriate findings of fact and conclusions of law on the record.

The parties stipulated to the following facts at the forfeiture hearing. Tipton owned a 1998 Jeep Grand Cherokee Laredo that was worth between $1,600 and $2,500. There were no existing liens on the Jeep at the time in question. The Jeep was “really the only thing in the world [that Tipton] own[ed], other than her clothes.”

On May 28, 2011, Tipton contacted her brother, who agreed to drive Tipton around in her Jeep for the purpose of purchasing prescription drugs. Both Tipton and her brother were addicted to prescription pills, with “Adderall or amphetamine being their prescription drug of choice.”

Tipton and her brother picked up another individual named Trade Bell, who was to help them facilitate the drug purchase. After picking up Bell, they drove in the Jeep to different locations around Toombs County where Bell attempted to purchase prescription pills. Ultimately, however, Bell purchased $30 worth of cocaine in a parking lot while Tipton and her brother waited in the Jeep. Patrol officers with the Vidalia Police Department who were in the area observed the cocaine purchase, and they arrested Bell, Tipton, and her brother. The officers also seized the Jeep.

The State subsequently filed a civil in rem complaint seeking forfeiture of the Jeep on the grounds that, among other things, it had been used to facilitate the purchase of the cocaine. Tipton filed an answer, asserting an ownership interest in the Jeep and requesting that the Jeep be released to her. Following the forfeiture hearing in which the parties stipulated to the facts, the trial court entered an order of disposition granting the forfeiture of the Jeep to the State. This appeal followed.

1. Tipton argues that the trial court erred in denying her motion to dismiss the State’s complaint for forfeiture. But at the forfeiture hearing, after Tipton and the State presented argument on the motion to dismiss, the trial court responded, “All right,” and then asked the parties to proceed forward with their recitation of the stipulated facts. Tipton made no objection and did not otherwise take any steps to invoke a ruling from the trial court on her motion to dismiss. On appeal, Tipton has not directed us to an order in the record disposing of her motion to dismiss or to any other indication that the motion was ever addressed by the trial court.

Under Georgia law, it is the duty of the litigant to obtain a ruling on her motions or objections. Smith v. Stacey, 281 Ga. 601, 602 (1) (642 SE2d 28) (2007). Because Tipton failed to obtain a ruling on her motion to dismiss from the trial court, her enumeration of error presents nothing for our review. See Madison Retail Suwanee v. Orion Enterprises Sales & Svc., 309 Ga. App. 712, 717 (4) (711 SE2d 71) (2011); Allen v. Santana, 303 Ga. App. 844, 847-848 (3) (695 SE2d 314) (2010).

2. Tipton further argues that the trial court erred in finding that the forfeiture was not an excessive fine in violation of the Eighth Amendment to the United States Constitution and in failing to perform the proper constitutional analysis on the record. We agree that the record fails to show that the trial court performed the proper constitutional analysis for determining whether the forfeiture constituted an excessive fine.

The Eighth Amendment to the United States Constitution, which applies to the states through the Fourteenth Amendment, provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The Excessive Fines Clause of the Eighth Amendment applies to civil in rem forfeitures, see Thorp v. State of Ga., 264 Ga. 712, 713 (1) (450 SE2d 416) (1994), and the United States Supreme Court in United States v. Bajakajian, 524 U. S. 321, 334 (III) (A) (118 SCt 2028, 141 LE2d 314) (1998) held that a forfeiture constitutes an excessive fine “if it is grossly disproportional to the gravity of a defendant’s offense.” Subsequently, the federal appellate courts more fully developed the standard outlined by the United States Supreme Court in Bajakajian. See, e.g., von Hofe v. United States, 492 F3d 175, 186 (III) (2nd Cir. 2007).

In Howell, 283 Ga. at 26 (1), the Supreme Court of Georgia adopted the more fully developed standard applied by the United States Court of Appeals for the Second Circuit in the von Hofe case, concluding that trial courts inquiring into whether a forfeiture constitutes an excessive fine should take into account

the following considerations: (1) the harshness, or gross disproportionality, of the forfeiture in comparison to the gravity of the offense, giving due regard to (a) the offense committed and its relation to other criminal activity, (b) whether the claimant falls within the class of persons for whom the statute was designed, (c) the punishments available, and (d) the harm caused by the claimant’s conduct; (2) the nexus between the property and the criminal offenses, including the deliberate nature of the use and the temporal and spatial extent of the use; and (3) the culpability of each claimant.

Decided May 22, 2013.

John E. Morrison, for appellant.

S. Hayward Altman, District Attorney, Tony A. May, Assistant District Attorney, for appellee.

(Citation omitted.)

In conducting the analysis adopted by the Supreme Court of Georgia in Howell for determining whether a forfeiture is constitutionally excessive, trial courts must make findings of fact and conclusions of law on the record. Buchanan v. State of Ga., 319 Ga. App. 525, 528-529 (737 SE2d 321) (2013). On-the-record findings are necessary “to provide an opportunity for meaningful appellate review of [the trial court’s] decision.” Id.

Here, Tipton argued before the trial court that the forfeiture of the Jeep based on the purchase of $30 worth of cocaine was an excessive fine under the Eighth Amendment. In response to Tipton’s motion, the trial court, in its order of disposition, merely stated, “The forfeiture of the vehicle [is] constitutional and the excessive fine assertion is denied.” Nothing in the order of disposition suggests that the trial court considered Howell or made any findings pursuant to the detailed analysis required by that decision, as the State concedes.

Accordingly, we vacate the trial court’s [order of disposition] and remand this case for further proceedings in the trial court consistent with Howell. Because a hearing was conducted, no further evidentiary hearing is necessary, unless the trial court concludes otherwise. But regardless of whether another evidentiary hearing is held, the trial court is directed to enter a new order including findings of fact and conclusions of law pursuant to the analysis required by Howell, and either party shall be entitled to appeal the trial court’s new order within 30 days of its entry.

Buchanan, 319 Ga. App. at 529. See Salmon v. State of Ga., 249 Ga. App. 591, 592 (2) (549 SE2d 421) (2001); Mitchell v. State of Ga., 236 Ga. App. 335, 336 (1) (511 SE2d 880) (1999).

Judgment vacated and case remanded with direction.

Miller and Ray, JJ., concur.


author: Doyle, Presiding Judge.

text:
    A13A0325.
    CALCATERRA v. THE STATE.
    (743 SE2d 534)
   Doyle, Presiding Judge.

After a jury trial, Nakenya L. Calcaterra was convicted of possession of cocaine with intent to traffic and possession of marijuana with intent to distribute. She appeals, arguing that the trial court erred by denying her motion to suppress the evidence because her consent to search was the product of an unreasonably prolonged detention. For the reasons that follow, we affirm.

On appeal from a ruling on a motion to suppress, we must construe the evidence most favorably to affirming the trial court’s factual findings and judgment. We accept the trial court’s factual and credibility determinations unless they are clearly erroneous, and the factual findings will be upheld if they are supported by any evidence. The trial court’s application of the law to undisputed facts, however, is subject to a de novo standard of review.

At the motion to suppress hearing, Officer Kevin Turner testified that he was patrolling parts of Gordon County and traveling northbound on 1-75 at approximately 9:40 p.m. on March 27, 2012. Turner observed a vehicle with a Virginia license plate move from the center lane of travel to the far left lane. Thereafter, Turner observed the driver, Calcaterra, cross the far left “fog” line three times. The officer moved into the lane behind Calcaterra, who then moved back to the center lane of travel, at which point, Turner moved behind her and activated his blue lights to effectuate a stop for failure to maintain lane.

After Calcaterra pulled to the side of the expressway, the officer called dispatch about the stop, and he approached the vehicle from the passenger side. Calcaterra presented Turner her Illinois driver’s license, and Turner asked if she owned the vehicle. Calcaterra stated that her brother-in-law owned the vehicle, but when Turner asked for a copy of the registration, Calcaterra backtracked, stating that the vehicle was a rental, presenting a rental agreement originating in Ohio, which she stated was taken out by her brother-in-law. At that point, Turner asked Calcaterra to step to the back of the vehicle so that he could further investigate whether she had been drinking or was impaired based on her manner of driving. “In order to calm her down,” he asked what “brought her to the [S]tate of Georgia,” and while she first said she was visiting her brother-in-law, she later said she was visiting her stepbrother.

Turner explained to Calcaterra that he had stopped her because she had crossed over the fog line three times, but he was going to write her a warning instead of a ticket. At this point, Turner realized that the rental agreement showed that the vehicle had been due back in the first week of March (the stop occurred on March 27), so he asked Calcaterra who “Gary Owens,” the name listed on the rental agreement, was and who her passenger was. Calcaterra explained that Owens was her brother-in-law, and he often rented vehicles and allowed her to use them. She stated that her passenger was a friend who had been staying in Georgia but wanted a ride back to Ohio when he heard she was headed that way.

During the stop, another cruiser with two other officers arrived on the scene and parked behind Turner’s car. Turner asked the passenger for his identification, but the man could not produce any. He stated his name was Mark Calcaterra, and in response to Turner’s question about how he knew Nakenya Calcaterra, he stated that they had been married since 2005. Calcaterra and Mark also gave different accounts of the date upon which they had traveled to Georgia. Based on all the conflicting information, and the unclear status of the vehicle, Turner suspected that the individuals might have contraband in the vehicle, and he asked both Calcaterra and Mark for consent to search the vehicle, which they both provided.

After Mark exited the vehicle and was patted down for weapons, Turner searched the vehicle and discovered 1.54 pounds of cocaine and over a pound of marijuana in the trunk.

Calcaterra argues that the trial court erred by denying her motion to suppress. We disagree.

An officer may conduct a brief investigatory stop of a vehicle if such stop is justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct. The specific articulable suspicion must be based on the totality of the circumstances — objective observations, known patterns of certain kinds of lawbreakers, and inferences drawn and deductions made by trained law enforcement personnel.

In this case, Turner witnessed Calcaterra’s vehicle cross the left-hand fog line three times. Such conduct provided Turner with probable cause to stop Calcaterra because the conduct is a violation of OCGA § 40-6-48 (1), which states that “[a] vehicle shall be driven as nearly as practicable entirely within a single lane____” Moreover, this Court has repeatedly held that failure to maintain lane “may give rise to reasonable articulable suspicion on the part of a trained law enforcement officer that the driver is violating the DUI laws.” Although Calcaterra contends that Turner’s account of her failure to maintain lane was not believable because he did not activate his dashboard camera after the first instance when she crossed the fog line, because he did not contact dispatch to investigate the status of the vehicle, and because he admitted on cross-examination that he proactively seeks out illegal activity when stopping individuals as he. patrols the interstate, this argument is unpersuasive. The trial court was authorized to find that Turner observed the violations. Thus, the initial traffic stop of Calcaterra was lawful.

Calcaterra also argues that the stop was unreasonably prolonged when Turner began questioning her on details unrelated to the issue of writing a citation for failure to maintain lane and that the arrival of the other officers and the prolonged investigation resulted in invalid consent given for the search of the vehicle, and therefore, the trial court erred by denying her motion to suppress. We disagree.

The Fourth Amendment is not violated when, during the course of a valid traffic stop, an officer questions the driver or occupants of a vehicle and requests consent to conduct a search. The dispositive factor is not the nature or subject of the officer’s questioning, but whether that questioning takes place during an otherwise lawful detention, such as, in this case, for committing a traffic violation in the officer’s presence. In order to pass constitutional muster, the duration of a traffic stop cannot be unreasonably prolonged beyond the time required to fulfill the purpose of the stop. A reasonable time to conduct a traffic stop includes the time necessary to verify the driver’s license, insurance, and registration, to complete any paperwork connected with the citation or a written warning, and to run a computer check for any outstanding arrest warrants for the driver or the passengers.

Decided May 22, 2013.

White, Choate & Watkins, Samir J. Patel, for appellant.

Thomas J. Campbell, District Attorney, Elizabeth M. York, Rosemary M. Greene, Assistant District Attorneys, for appellee.

In this case, as stated earlier, the initial stop of Calcaterra was supported by the officer’s observation of her traffic violation. Moreover, the officer had a reasonable articulable suspicion that Calcaterra might be violating DUI laws because of her repeated failure to maintain lane. Thereafter, while Turner investigated whether the vehicle, which had Virginia plates, was properly in Calcaterra’s possession even though she had presented him with an Illinois driver’s license, Turner was presented with numerous inconsistencies in her story and the statements of her passenger, which provided support for further investigation. During the reasonable investigation into these inconsistencies, Turner asked for consent to search the car, which consent Calcaterra, as the driver of the vehicle, validly provided to the officer.

Accordingly, the trial court did not err by denying Calcaterra’s motion to suppress.

Judgment affirmed.

McFadden and Boggs, JJ., concur.

       OCGA § 16-13-31 (a).

       OCGA § 16-13-30 (j) (1).

       (Punctuation omitted.) Hall v. State, 306 Ga. App. 484 (702 SE2d 483) (2010).

       (Punctuation omitted.) Ivey v. State, 301 Ga. App. 796, 797 (689 SE2d 100) (2009).

       See Acree v. State, 319 Ga. App. 854, 854-855 (737 SE2d 103) (2013).

       (Punctuation omitted.) Ivey, 301 Ga. App. at 798. See also Davis v. State, 236 Ga. App. 32, 33 (1) (510 SE2d 889) (1999).

       See Hall, 306 Ga. App. at 485-486 (1).

       See Ivey, 301 Ga. App. at 798.

       (Citations and punctuation omitted.) Hall, 306 Ga. App. at 486 (2).

       See Ivey, 301 Ga. App. at 798; Davis, 236 Ga. App. at 33 (1).

       See Rocha v. State, 317 Ga. App. 863, 866-867 (1) (733 SE2d 38) (2012). We note that Turner asked for this consent within ten minutes of initially stopping Calcaterra.

       See Hall, 306 Ga. App. at 487 (3).


author: DOYLE, Presiding Judge.

text:
    A13A0622.
    CARTER v. THE STATE.
    (743 SE2d 538)
   DOYLE, Presiding Judge.

Following a jury trial, Vincent Scott Carter appeals from his conviction of two counts each of aggravated child molestation and child molestation. He contends that the trial court erred by (1) allowing testimony as to the ultimate issue, (2) allowing improper bolstering testimony, and (3) convicting him on insufficient evidence. For the reasons that follow, we affirm.

Construed in favor of the verdict, the record shows that one day in school, five-year-old L. C.’s class was given a presentation by the school counselor about “good and bad touching.” After the presentation, L. C. raised her hand and disclosed that her father, Carter, had touched her inappropriately. The counselor took L. C. into her office to speak further, and L. C. explained that Carter played touching games that made her feel uncomfortable.

The school reported the disclosure to the Department of Family and Children Services (“DFCS”), and a trained DFCS investigator interviewed L. C. about the touching. L. C. stated that Carter “slammed his private into her private,” and she drew pictures showing where Carter touched her and explaining that he put his finger “on her private.”

This interview was recorded, but due to a problem with the recording, a second interview was conducted. L. C.’s demeanor had changed, and she initially recanted her disclosure, stating that her mother had spoken to her about telling the truth, but she ultimately repeated the same allegations made in the earlier interview.

L. C. was also examined by a sexual assault nurse examiner, who observed “questionable” healed tears in L. C.’s anus. The nurse testified at trial that they were consistent with penetration by an object bigger than a finger.

Based on the investigation, Carter was arrested and charged with five counts arising from sexual abuse of L. C. Following a trial, a jury returned a guilty verdict on four of the five counts, and the trial court denied Carter’s motion for new trial, giving rise to this appeal.

1. Carter contends that the trial court erred by allowing testimony by two lay witnesses as to the ultimate issue in the case. He points to testimony from L. C.’s mother that she “couldn’t deny that something was going on with” L. C. and that “there was no question that something had happened”; he also challenges testimony from the DFCS investigator that L. C. was “shutting down” in the second interview but ultimately “started to seem to come around, [and] told us the exact same account ... an accurate account of what had happened before.”

Pretermitting whether this was error, Carter did not object to this testimony at trial.

In order to raise on appeal an impropriety regarding the admissibility of evidence, the specific ground of objection must be made at the time the evidence is offered, and the failure to do so amounts to a waiver of that specific ground— Inasmuch as appellant did not object at trial that the testimony was inadmissible because it was the opinion of a witness on the ultimate issue to be decided by the jury, appellant waived the ability to raise the issue on appeal.

Despite his waiver, Carter contends that the admission of this testimony constituted plain error. But that doctrine

is currently limited to alleged error in three circumstances: the sentencing phase of a trial resulting in the death penalty, a trial judge’s expression of opinion in violation of OCGA § 17-8-57, and a jury charge affecting substantial rights of the parties as provided under OCGA § 17-8-58 (b).

Because Carter failed to object at trial, “and plain error review does not currently apply to allegations regarding the improper admission of evidence, the trial court did not commit reversible error in allowing the testimony.”

2. Carter also contends that the trial court erred by allowing improper bolstering of witnesses’ credibility. Carter points to references to L. C.’s intelligence and a statement by one witness that the nurse who examined L. C. is “very competent at conducting sexual exams.” “This bolstering argument, however, is not properly before the Court because appellant never made an objection [at trial] to the testimony on the basis of improper bolstering.” Nor is this alleged error subject to plain error review. Therefore, this enumeration presents no basis for reversal.

3. Finally, Carter challenges the sufficiency of the evidence with respect to Counts 1, 2, and 3, all of which involve improper touching or penetration of L. C.’s anus. Carter argues that the evidence did not show that he placed his penis or fingers in or around L. C.’s anus.

Decided May 22, 2013

Lon P. Kemeness, for appellant.

C. Paul Bowden, District Attorney, Kevin E. Hutto, Assistant District Attorney, for appellee.

When an appellate court reviews the sufficiency of the evidence,

the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.

At trial, the evidence included disclosure by L. C. that Carter touched her “bathing suit places.” L. C. also drew a picture showing her own markings on her buttocks along with her written words “no, no, no.” The physical examination revealed healed scars on L. C.’s anus, which the examining expert opined was consistent with penetration by a penis. Viewing this evidence under the appellate standard of review, a rational trier of fact could find that Carter was guilty of each count involving penetration or touching of L. C.’s anus. Accordingly, this enumeration is without merit.

Judgment affirmed.

McFadden and Boggs, JJ., concur.

       OCGA § 16-6-4 (c).

       OCGA § 16-6-4 (a) (1).

       See Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).

       (Citations and punctuation omitted.) Sanchez v. State, 285 Ga. 749, 751-752 (3) (684 SE2d 251) (2009).

        Durham v. State, 292 Ga. 239, 240 (2) (734 SE2d 377) (2012).

       Id. We note that “[t]he new Evidence Code will change this rule in cases tried after January 1,2013, allowing a court to consider plain errors ‘affecting substantial rights although such errors were not brought to the attention of the court.’ ” OCGA § 24-1-103 (d) (2012). Carter was tried in 2002.

        Jackson v. State, 292 Ga. 685, 690 (5) (740 SE2d 609) (2013).

       See id., citing Durham, 292 Ga. at 240 (2).

       (Citation omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).