author: McMillian, Judge.

text:
    A14A0415.
    915 INDIAN TRAIL, LLC v. STATE BANK AND TRUST COMPANY.
    (759 SE2d 654)
   McMillian, Judge.

915 Indian Trail, LLC (the “LLC”) appeals the trial court’s order denying its motion for summary judgment and granting summary judgment to State Bank and Trust Company (the “Bank”) in the Bank’s suit to establish a priority lien under the doctrine of equitable subrogation on property located at 915 Indian Trail in Lilburn, Georgia (the “Property”). We affirm for the reasons set forth below.

“Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. We review the grant of summary judgment de novo, construing the evidence in favor of the nonmovant.” (Citation and punctuation omitted.) Secured Realty Investment v. Bank of North Ga., 314 Ga. App. 628, 628 (725 SE2d 336) (2012).

Viewed in that light, the evidence shows that Aziz Dhanani is a principal in three of the corporations involved in the series of transactions in this case: the LLC, Premier Petroleum, Inc. (“Premier”), and Al-Madinah Petroleum, Inc. (“Al-Madinah”). Al-Madinah first purchased the Property, which contains a convenience store and gas station, in 1993 and sold it to Hasan S. Ahmed and Mohammad B. Hussain (collectively, the “Borrowers”) on August 30,2001, for around $750,000. On the same day, the Borrowers executed a deed to secure debt (the “BB&T lien”) as security for a $694,500 loan from Branch Banking & Trust Company (the “BB&T loan”).

Approximately six years later, on May 3, 2007, the Borrowers executed a second deed to secure debt in favor of Al-Madinah to secure payment of a $150,000 loan (the “Al-Madinah lien”). That deed, which was recorded on May 4, 2007, expressly provided that it was subordinate to the BB&T lien.

A few months later, the Borrowers sought to refinance the BB&T loan through Buckhead Community Bank (“BCB”). As a condition for the refinancing, BCB required cancellation of the Al-Madinah lien, and on December 3, 2007, Dhanani executed a “Satisfaction of Deed to Secure Debt”on behalf of Al-Madinah (the “Satisfaction”), which stated that Al-Madinah’s $150,000 loan to the Borrowers had been “paid in full.” However, the same day, unbeknownst to BCB, the Borrowers executedboth a Promissory Note in the amount of $125,000 (the “Premier loan”) and a security deed entitled “Second Deed to Secure Debt, Security Agreement and Assignment of Rents” in favor of Premier, another of Dhanani’s corporations (the “Premier lien”). That deed also recited that it was subject to the terms of the BB&T lien. The Bank concedes that no evidence exists that Dhanani knew as of December 3, 2007, about the Borrowers’ plans to refinance the BB&T loan through BCB.

The Premier lien was recorded the day of its execution, December 3, 2007, but it is undisputed that it was not indexed in the computerized statewide database of real property records until 10:00 p.m. on December 7, 2007. BCB’s title examiner testified that the entry for the Premier lien may not have been available for review even at that time, because “many times” the noted times are incorrect and “there is a delay.” Thus, “in all likelihood,” the Premier lien would not have been discoverable in a title examination until after December 7.

Meanwhile, on December 6, 2007, the Borrowers closed (the “Closing”) on their refinancing with BCB (the “BCB loan”), and that loan was secured by a “Deed to Secure Debt and Security Agreement” signed by the Borrowers 3in favor of BCB referencing a loan in the amount of $840,000 (the “BCB lien”). Of that amount, $621,746.03 was used to satisfy the BB&T loan. As a part of the Closing, the Borrowers executed an affidavit of ownership affirming that there were “no security deeds, mortgages or liens of any kind .. . affecting title to the Property” except as disclosed on an attached exhibit, which made no reference to the Premier lien. The BCB lien and other documents relating to the Closing, including the Satisfaction executed by Dhanani, were not recorded until December 19, 2007. The title insurance policy obtained by BCB, also dated as of December 19, does not reflect the Premier lien, and no evidence exists that an additional title check was performed in the intervening 13 days between the Closing and the filing of the Closing documents. Additionally BB&T executed a satisfaction of the BB&T lien on December 24, 2007, but, inexplicably, that document was not recorded until almost one year later, on December 16, 2008.

Approximately one year after that filing, on December 4, 2009, the Federal Deposit Insurance Corporation was appointed as the receiver for BCB after it was closed by the Georgia Department of Banking and Finance. And on December 15, 2009, unbeknownst to the Bank, the Borrowers and Premier executed a “First Modification and Second Deed to Secure Debt, Security Agreement, and Assignment of Rents” (the “First Modification”) in connection with the Premier lien, which purported to increase the amount of that lien to $935,000, based on a separate supply agreement for petroleum products (the “Supply Agreement”).

In or around October 2010, the BCB loan was assigned to the Bank, by which time the Borrowers were in default. The Bank chose to attempt to collect the debt first rather than immediately pursuing foreclosure. At some point, the Borrowers also defaulted on the Premier loan, and in February 2011, in anticipation of foreclosure, Premier conducted a title review, which gave it notice of the BCB lien. And on February 11, 2011, Premier filed the First Modification, reflecting the increased lien amount, in the county property records.

Premier advertised the pending foreclosure in February, and conducted a nonjudicial foreclosure sale on March 1, 2011, at which Premier made the successful bid of $350,000. On March 18, 2011, Premier executed a quitclaim deed conveying title to the Property to the LLC. Although Dhanani stated that the LLC was to pay Premier $350,000 for the Property, the LLC had made no payment as of the time of Dhanani’s deposition in February 2013, and the quitclaim deed indicates that no transfer tax was paid. The Bank did not learn of the Premier lien or the foreclosure until May or June 2011 when it conducted its own title search in anticipation of foreclosure, while at the same time pursuing a default judgment against the Borrowers.

On January 3, 2012, the Bank sent the LLC a letter stating that the Bank would be asserting a priority lien on the Property, and on August 14, 2012, the Bank filed this lawsuit. Subsequently, the trial court’s summary judgment order granted the Bank a first priority lien to the Property, making it superior to the LLC’s claims. This appeal followed.

1. The LLC asserts that the trial court erred in granting summary judgment to the Bank on its equitable subrogation claim because the Bank was guilty of culpable or inexcusable neglect and the superior or equal equity of the LLC and others will be prejudiced.

“In substance, the principle [of equitable subrogation] provides that in certain circumstances, a lender who pays off the lien of a senior creditor may step into the shoes of the senior creditor as to the priority of the senior creditor’s lien.” Greer v. The Provident Bank, Inc., 282 Ga. App. 566, 568 (639 SE2d 377) (2006). As the Supreme Court of Georgia has often explained,

[w]here one advances money to pay off an encumbrance on realty either at the instance of the owner of the property or the holder of the encumbrance, either upon the express understanding or under circumstances under which an understanding will be implied that the advance made is to be secured by the senior lien on the property, in the event the new security is for any reason not a first lien on the property, the holder of the security, if not chargeable with culpable or inexcusable neglect, will be subrogated to the rights of the prior encumbrancer under the security held by him, unless the superior or equal equity of others would be prejudiced thereby; knowledge of the existence of an intervening encumbrance will not alone prevent the person advancing the money to pay off the senior encumbrance from claiming the right of subrogation where the exercise of such right will not in any substantial way prejudice the rights of the intervening encumbrancer ....

(Citations and footnote omitted.) Davis v. Johnson, 241 Ga. 436, 438 (246 SE2d 297) (1978). “The typical remedy is that equity will set aside a cancellation of the original security and revive it for the benefit of the party who paid it off.” (Citation and punctuation omitted.) Secured Equity Financial, LLC v. Washington Mut. Bank, F.A., 293 Ga. App. 50, 53 (666 SE2d 554) (2008). Additionally, we note that the “basis [of subrogation] is the doing of complete, essential, and perfect justice between all the parties, without regard to form, and its object is the prevention of injustice. The courts incline rather to extend than restrict the principle.” (Citation and punctuation omitted.) Davis, 241 Ga. at 439.

Here, as the Premier lien expressly acknowledged, the BB&T lien held the position of senior lienholder at the time the Premier lien was filed and retained that position until such time as it was satisfied as of record. A portion of the proceeds of the BCB loan was used to pay off the BB&T loan in full. Thus, the Bank, as the assignee of the BCB loan, meets the prima facie requirement for establishing the right to equitable subrogation. Hayes v. EMC Mtg. Corp., 296 Ga. App. 709, 711 (675 SE2d 594) (2009). And

if [the Bank] can show that it was not guilty of culpable or inexcusable neglect, that the superior or equal equity of others would not be prejudiced, and that exercise of the right of subrogation will not in any substantial way prejudice [the LLC’s] rights, then the [BCB] lien may be subrogated to the rights of the [BB&T lien].

Greer, 282 Ga. App. at 569.

(a) Culpable or Inexcusable Neglect. This Court has previously defined inexcusable neglect “[i]n this context ... as the plaintiff’s failure to avail itself of the proper legal remedy when it had the chance.” (Citation and punctuation omitted.) Secured Equity, 293 Ga. App. at 53 (a). The LLC asserts that the Bank was guilty of inexcusable neglect because it was on constructive notice of the Premier lien at the Closing; it failed to conduct a post-Closing title search, which would have disclosed the Premier lien; it failed to conduct a title search in October 2010 when it learned the BCB loan was in default, although it was industry practice to do so; and it was on constructive notice of the foreclosure via publication yet failed to assert its rights at that time.

It is undisputed that neither BCB nor the assignee Bank had actual notice of the Premier lien and/or the foreclosure at any time prior to May or June 2011. Thus, these entities had a reasonable basis for believing that the BCB lien held first priority on the Property. Nevertheless, they had constructive notice of the lien based on the December 3, 2007 filing. Similarly, the publication of the foreclosure notices in February 2011 provided constructive notice of the Premier lien. However, constructive notice is not necessarily fatal to a claim of equitable subrogation.

Knowledge of the existence of an intervening encumbrance will not alone prevent the person advancing the money to pay off the senior encumbrance from claiming the right of subrogation where the exercise of such right will not in any substantial way prejudice the rights of the intervening encumbrancer.

(Citation omitted.) Citifinancial Svcs., Inc. v. Varner, 320 Ga. App. 170, 174 (739 SE2d 477) (2013). See also Baxter v. Bayview Loan Servicing, 301 Ga. App. 577, 587 (688 SE2d 363) (2009).

Moreover, although the LLC argues that BCB, and later the Bank, could have discovered the lien at various earlier points in time, it has not cited any law demonstrating that, as a prerequisite to equitable subrogation, BCB had a duty to conduct a post-closing title exam or that either entity had a duty to monitor the deed records after Closing, even at the time of the Borrowers’ default, and we have found none. See Secured Equity, 293 Ga. App. at 54 (a).

Accordingly, we agree with the trial court that the evidence presents no issue of fact as to inexcusable neglect on the part of the Bank.

(b) Prejudice. In arguing that the exercise of equitable subrogation will result in prejudice, the LLC asserts that based upon BCB’s and the Bank’s inaction with regard to the Property, Premier expended substantial expense to initiate foreclosure procedures. The LLC also notes that on April 1, 2011, it entered into a Lease and Management Agreement with third parties to operate the gas station and convenience store,* ** and argues that both the LLC and the third parties would be injured if the Bank foreclosed and evicted the third-party tenant.

But the prejudice required to estop a party from asserting a right to subrogation must be more than merely incurring the expenses of levy or foreclosure, although under equitable principles the party receiving the benefit of subrogation may have to reimburse such expenses. Davis, 241 Ga. at 440. Estoppel may be appropriate, however, where “the intervening lienholder has taken or purchased the lien in reliance upon his apparent status as senior lienor.” Id. But Premier took its lien with full knowledge that it would not be the senior lienholder. The underlying deed was entitled a “Second Deed to Secure Debt,” and Dhanani testified that he understood that Premier was second in priority to the BB&T lien. Under these circumstances, “[w] e cannot say that [the Bank’s] exercise of the right of subrogation would prejudice [Premier’s or the LLC’s] rights where, as here, [the Premier lien] remains second in order of priority, after the amount secured by the [BB&T] loan.” (Citation and punctuation omitted.) Baxter, 301 Ga. App. at 588 (c). “At the time [Premier] recorded its security deed, [the senior BB&T lien] was still of record[, and the Premier lien was made expressly subject to that lien]. Therefore, in no legally cognizable sense will [Premier] be prejudiced by equitable subrogation in favor of [the Bank].” Byers, 285 Ga. at 539 (4). See also Davis, 241 Ga. at 440.

Similarly, although the LLC is the current titleholder to the Property, Dhanani testified that it was created just “to hold real estate title” to the Property, and the LLC paid nothing in the transaction. Dhanani is a principal in both corporations, and thus any knowledge on the part of Premier as to Premier’s lien status must be imputed to the LLC. See generally Clarence L. Martin, P.C. v. Chatham County Tax Commr., 258 Ga. App. 349, 350 (574 SE2d 407) (2002) (“A corporation is bound by knowledge of an officer or agent when the knowledge pertains to matters within the scope of the officer’s or agent’s duties.”) (citation omitted). And although the LLC asserts that under the management agreement, the third-party tenant and it have incurred substantial expense, it points to no evidence in the record to support these assertions. Accordingly, we can only guess as to any actions the parties may or may not have taken under that agreement, and “summary judgment cannot be avoided based on mere speculation or conjecture.” (Citations omitted.) Stevenson v. City of Doraville, 294 Ga. 220, 224 (2) (751 SE2d 845) (2013). Under these circumstances, we cannot say that the record contains evidence sufficient to create an issue of fact as to whether the rights of the LLC or the third parties would be prejudiced by the exercise of equitable subrogation.

Accordingly,
[ujnder the doctrine of equitable subrogation, ... we find that even if [BCB] took its security deed with [constructive] notice of [Premier’s] lien against the Property, [the Bank, as BCB’s assignee] has a first priority security interest in the Property in the amount of [$621,746.03, plus interest accruing at the terms set forth under the BB&T Loan],

as the trial court found. Bayview, 301 Ga. App. at 588 (1).

2. Nevertheless, the LLC asserts that the Bank shouldbe estopped from asserting its claim for equitable subrogation because it is guilty of laches by waiting over 17 months after the foreclosure before bringing suit. In support of this defense, the LLC raises a number of the same arguments discussed in Division 1 above, in connection with its claims of inexcusable neglect and prejudice.

“To establish the affirmative defense of laches, the [LLC was] required to come forward with evidence showing inexcusable delay and prejudice resulting therefrom.” Harvey v. Bank One, N.A., 290 Ga. App. 55, 58 (2) (658 SE2d 824) (2008). And to obtain summary judgment on this ground, the LLC had the burden “to come forward with evidence demonstrating as a matter of law” that the Bank was guilty of laches. (Citation and punctuation omitted.) Cleaveland v. Gannon, 284 Ga. 376, 381 (2) (667 SE2d 366) (2008) (addressing defendant’s burden as to affirmative defense under statute of limitation).

Although the LLC is correct that the complaint was not filed until 17 months after the foreclosure, as discussed in Division 1 above, the Bank was unaware of the Premier lien until several months after the foreclosure, and the record demonstrates that the Bank did not sit on its rights in the interim. Rather, it initiated collection proceedings against the Borrowers, filing suit within two months of being assigned the loan and obtaining a default judgment approximately six months after that. The Bank then explored foreclosure, and, upon learning of the Premier lien, began exerting its right to equitable subrogation approximately six months later and initiated this action eight months after that. We cannot say that this lapse of time constituted an inexcusable delay under the circumstances. In any event, “[t]he mere lapse of time is insufficient to establish the affirmative defense of laches.” Harvey, 290 Ga. App. at 58 (2). The LLC also was required to prove prejudice resulting from the delay. And as we have found that the LLC failed to provide evidence of any resulting prejudice from the Bank’s assertion of its rights to equitable subrogation, we also find that the LLC failed to carry its burden of establishing that the Bank was guilty of laches.

3. The LLC asserts that the trial court erred in failing to order the Bank to produce its Loan Policy and Procedures Manual prior to issuing a ruling on the cross-motions for summary judgment, or, in the alternative, in failing to construe the evidence of this manual against the Bank.

“In matters involving discovery disputes, trial judges have broad discretion in controlling discovery, including the imposition of sanctions, and this Court will not reverse a trial court’s decision on such matters unless there has been a clear abuse of discretion.” (Citation and punctuation omitted.) Mincey v. Ga. Dept. of Community Affairs, 308 Ga. App. 740, 747 (2) (708 SE2d 644) (2011). See also Triple Net Properties, LLC v. Burruss Dev. & Constr., Inc., 293 Ga. App. 323, 326 (1) (667 SE2d 127) (2008) (denial of continuance of summary judgment proceedings within trial court’s discretion and appellate court will not interfere absent clear abuse).

On March 1, 2013, thirty days before the six-month discovery period expired, the LLC served the Bank with interrogatories and a request to produce pursuant to OCGA § 9-11-34, seeking, inter alia, production of all of the Bank’s policy and procedures manuals over a three-year period (the “Manuals”). The Bank provided no response to this discovery, but on April 26, 2013, filed its motion for summary judgment. The LLC filed its own cross-motion for summary judgment on May 1, 2013, and its brief opposing the Bank’s motion on May 29, 2013, with no mention of the outstanding discovery requests.

The summary judgment hearing ultimately was scheduled for July 30, 2013, and on July 25, the Thursday before that hearing, the LLC re-sent a copy of its March 1, 2013 discovery and served a separate Notice to Produce pursuant to OCGA § 24-13-27, by e-mail and overnight delivery. The notice requested that the Bank produce the Manuals the following Monday, the morning before the motion hearing.

Although the Bank apparently produced a number of documents in response to the notice, it did not produce the Manuals, and the LLC’s counsel raised this issue at the hearing. Explaining that he thought the Manuals “may be important” to the LLC, he asked that the trial court reserve ruling on the summary judgment motions until the Manuals were produced and the LLC had the opportunity to file a supplemental brief “if appropriate.” The Bank objected to the LLC’s request, noting first that it was unaware of the March discovery request, that a notice to produce was not the proper vehicle for a summary judgment hearing, and asserting that the request for the Manuals was overly broad. The trial court noted that the only matters on the calendar were the two summary judgment motions and declined to rule on the LLC’s oral motion at that time.

After the hearing, on August 9, 2013, the LLC filed a motion to compel pursuant to OCGA §§ 9-11-37 (a) and 24-13-26, narrowing its focus to the production of the Bank’s “Loan Policy and Procedures Manuals.” Twenty days later, on August 29, 2013, the trial court issued its summary judgment order without addressing the LLC’s motion to compel. We find no abuse of discretion.

Under OCGA § 9-11-56 (a), a plaintiff may move for summary judgment “at any time.” “Thus, it is not unusual for discovery to be ongoing at the time summary judgment motions are filed and/or ruled upon.” Corry v. Robinson, 207 Ga. App. 167, 170 (3) (427 SE2d 507) (1993). But when a party is “faced with a motion for summary judgment and the unavailability of evidence to rebut such motion,” a party must seek relief under OCGA § 9-11-56 (f). NationsBank, N.A. v. SouthTrust Bank of Ga., N.A., 226 Ga. App. 888, 895 (2) (487 SE2d 701) (1997) (physical precedent only). See also Thompson v. Tom Harvey Ford Mercury, 193 Ga. App. 64 (387 SE2d 28) (1989). That statute provides:

Should it appear from the affidavits of a party opposing the motion that he cannot, for reasons stated, present by affidavits facts essential to justify his opposition, the court may refuse the application for judgment, or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had, or may make such other order as is just.

OCGA § 9-11-56 (f). The LLC never filed an OCGA § 9-11-56 (f) motion to allow additional time for discovery.

However, even if we construe the LLC’s oral request at the hearing and his post-hearing motion to compel as a request under OCGA § 9-11-56 (f), we find that the LLC failed to establish a basis to delay the ruling on summary judgment. The statute requires that a party seeking relief set forth in an affidavit that it “cannot, for reasons stated, present by affidavits facts essential to justify [its] opposition” to a motion for summary judgment. Thus, the LLC was required “to set forth the reasons for a continuance and to show that if the motion to compel were successful, then what relevant and material evidence would be produced in opposition to the motion for summary judgment.” NationsBank, 226 Ga. App. at 896 (2). The only affidavit filed in support of the LLC’s motion addressed the time line of the discovery and the LLC’s counsel’s good faith attempt to resolve the discovery issue, but the affidavit fails “[to] demonstrate that a continuance would lead to the discovery of relevant evidence,” as required by the statute. Jarallah v. Schoen, 243 Ga. App. 402, 406 (4) (531 SE2d 778) (2000). Accordingly, the LLC’s affidavit did not adequately support the company’s request to delay the trial court’s ruling on summary judgment, and its argument to the trial court provided no additional support.

In addition, at the summary judgment hearing, the LLC argued only that the Manuals “may be important,” and its post-hearing motion asserts only that whether the Bank, in fact, complied with its own procedures “may shed light” on whether “it was not guilty of culpable or inexcusable neglect” without further explanation. The LLC failed to point to any authority either on appeal or in the trial court establishing how the Bank’s own internal standards are relevant to the issues of equitable subrogation or laches in this case, and we have found none.

Decided July 3, 2014 —

Reconsideration denied July 24, 2014 —

Schulten, Ward & Turner, David L. Turner, Abby G. Von FischerBenzon, for appellant.

Weissman, Nowack, Curry & Wilco, Jeffrey H. Schneider, Mills & Moss, Steven M. Mills, for appellee.

The cases upon which the LLC relies are distinguishable. The LLC is correct that those cases cite “a general rule [that] this Court does not condone the grant of summary judgment while a motion to compel discovery is pending, unless it can be determined that the disallowed discovery would add nothing of substance to the party’s claim.” (Citation and punctuation omitted; emphasis supplied.) Dodson v. Sykes Indus. Holdings, LLC, 324 Ga. App. 871, 875-876 (1) (752 SE2d 45) (2013). In each of the cases cited by the LLC, it appears the parties argued the relevance and materiality of the evidence they sought in discovery before the trial court. See id.; Parks v. Hyundai Motor America, 258 Ga. App. 876, 877-880 (1) (575 SE2d 673) (2002); McCall v. Henry Med. Center, Inc., 250 Ga. App. 679, 685 (551 SE2d 739) (2001) (motion to defer summary judgment under OCGA § 9-11-56 (f) should have been granted because party demonstrated that if she succeeded on her motion to compel, it could result in evidence that could add substance to her case). But where, as here, it appears that the requested discovery would add nothing of substance to the case, we cannot say that the trial court clearly abused its discretion in failing to delay its order on summary judgment until it ruled on the LLC’s motion to compel. See Gilco Investments, Inc. v. Stafford Cordele, LLC, 267 Ga. App. 167, 169 (1) (598 SE2d 889) (2004).

Judgment affirmed.

Phipps, C. J., concurs. Ellington, P. J., concurs in judgment only.

       Although the Bank styled its complaint as a quiet title action, that pleading sought only a declaration that the Bank is the priority lienholder under the doctrine of equitable subrogation and asserted no other basis to support a quiet title claim. Moreover, the trial court’s summary judgment order only addresses equitable subrogation. Accordingly, we conclude that we have jurisdiction to consider this appeal. See Kim v. First Intercontinental Bank, 326 Ga. App. 424, 425, n. 1 (756 SE2d 655) (2014); Hayes v. EMC Mtg. Corp., 296 Ga. App. 709, 709, n. 2 (675 SE2d 594) (2009). Compare Byers v. McGuire Properties, Inc., 285 Ga. 530, 531 (679 SE2d 1) (2009).

       The record indicates, however, that two additional borrowers, Oshima Corporation (“Oshima”) and Golden Convenience, Inc., d/b/a Shell Food Mart (“Golden”), may have been included on the underlying loan, and that these two parties also may have signed deeds to secure debt. Additionally, the record contains a “Deed to Secure Debt and Security Agreement” dated December 6, 2007 from Mairaj, Inc. (“Mairaj”) in favor of BCB, which was intended to secure a guarantee given by Mairaj to BCB with regard to a loan in the amount of $840,000 made to the Borrowers, Oshima, and Golden and which was secured by a separate parcel of land. The parties have not pointed us to a record copy of any promissory note(s) for the BCB loan(s) underlying these deeds to secure debt, and we have found no copies of such notes in the appellate record.

       The issue of whether the First Modification is valid and enforceable is not before us, and we expressly do not address it.

       On November 8, 2006, Dhanani’s corporation, Premier, entered into the Supply Agreement with the Borrowers and Oshima Corporation under which Premier became the exclusive provider of petroleum products to the business located on the Property. The same day, the parties amended that contract to provide for improvements to the business, and that amendment reflected that Premier had made a capital investment in the business of $810,000, although Dhanani explained that that figure reflected not only capital improvements to the Property, hut also the future value of the Supply Agreement. The amended Supply Agreement was also expressly made subordinate to the BB&T lien. Additionally, in connection with the Supply Agreement, the parties filed a restrictive covenant, running with the land, stating that no petroleum products would be sold on the Property that were not purchased from Premier.

       Even though the Bank’s representative testified that it was customary to conduct a title review upon the default of a substantial loan, he did not indicate whether the BCB loan fell within his definition of a “substantial” loan. And he later clarified that industry practice required only that the review be performed before foreclosure. In any event, the LLC failed to cite any law establishing that any such practice would preclude a claim for equitable subrogation.

       The original agreement reflects that Premier entered into the management agreement, although Premier had quitclaimed its interest in the Property to the LLC one month earlier. At some point, the parties signed an undated amendment substituting the LLC for Premier as a party to that management agreement.

      Dhanani testified only that Premier had received no revenue from the agreement.

       The LLC’s motion raised the issues of equitable subrogation, inexcusable neglect, prejudice, and laches.

       The LLC’s filing of a notice to produce under OCGA § 24-13-27 in connection with the summary judgment hearing does not alter our analysis. Pretermitting whether a notice to produce is a proper discovery vehicle at a non-evidentiary hearing, nothing about such a notice compels the granting of the LLC’s request to defer summary judgment in this case. Notices to produce are enforceable under OCGA § 24-13-26, the statute for enforcing subpoenas. OCGA § 24-13-27. And although subsection (b) of that statute states that a trial “court may also in appropriate proceedings grant continuance of the proceeding,” the granting of such a continuance also lies within the trial court’s discretion. See Barker v. Barker, 233 Ga. 170, 170 (2) (210 SE2d 705) (1974).


source: Caselaw Access Project

author: MCMILLIAN, Judge.

license: Public Domain

text:
    A14A0595.
    MOWOE v. THE STATE.
    (759 SE2d 663)
   MCMILLIAN, Judge.

Mackie Omatshola Mowoe appeals following the trial court’s denial of his motion for new trial after a jury convicted him of one count of rape. We reverse for the reasons set forth below.

Viewed in the light most favorable to the verdict, the evidence shows that Mowoe and the victim lived on different floors in the same apartment building. The victim lived on the upper floor with her three-year-old daughter and some friends. Mowoe lived on the floor below with a man named Jersey, who had a daughter the same age as the victim’s daughter and whom the victim dated for a brief time after moving to the apartment complex. The victim met both men within a few weeks after she moved into the complex. And on least one occasion, she stayed outside talking with Mowoe, Jersey, and others in the complex parking lot.

On September 12, 2008, Mowoe knocked on the door of the victim’s apartment and asked her for help charging his phone. She told him to give her his phone and she would charge it for him, but “he was in the apartment before [she] knew it.” Mowoe started grabbing the victim and touching her, but he left when the victim’s daughter began to protest his actions.

Later that day, after the victim’s daughter left with her grandmother for a visit, the victim was alone in the apartment, and she decided to walk to a nearby restaurant. As she left her apartment, she passed Mowoe sitting on the stairs with another woman. After she passed them, the victim heard someone run up behind her. When she turned around, Mowoe grabbed her around the waist and tried to pick her up and pull her back inside the apartment building. The victim kicked Mowoe in the leg, and when he let her go, she ran to her apartment. She opened the apartment door, but before she could close it, Mowoe was standing in front of her, blocking the door. Mowoe forced his way inside, and the victim ran into her bedroom and locked the door. She heard Mowoe lock the door to her apartment and rummage around the kitchen for a knife, which he used to open the bedroom door. He maneuvered the victim down on the floor, held her hands where she could not move, removed her underwear, and had forcible intercourse with her. During these events, she told him she did not want to have sex and kicked him.

Afterward, the victim found her phone and indicated that she was going to call the police. Mowoe then took away her phone, began to choke her, and slammed her head against the headboard twice. The victim’s roommates returned home shortly thereafter, and she fled to the bathroom crying. Mowoe took his phone and left the apartment.

A physical examination of the victim revealed bruises and fresh abrasions on her back and swelling in the area around her vagina, which was consistent with rape. The victim subsequently picked Mowoe out of a photographic lineup as her attacker, and DNA evidence matching Mowoe was found in the victim’s vagina.

At trial, Mowoe admitted that he had sex with the victim on September 12, 2008, but he said that she invited him into her apartment and the sex was consensual. Mowoe further testified that after intercourse, his girlfriend, LaToya Wise, called him on his phone; he answered it and lied to his girlfriend, telling her he was hanging out with his male friends. During the call, he told the victim to be quiet, and he turned away from her. These events appeared to upset the victim, and she ran to the bathroom crying when her roommates returned. Mowoe then left the apartment. However, the victim denied ever seeing Mowoe on his phone, and testified that the phone was still charging in her living room at the time he raped her. Mowoe also testified that the victim had been dancing on top of a car in the complex parking lot the night before when she fell off the car and “hit the ground, literally,” thereby explaining the bruises on the victim’s back.

1. Although Mowoe did not raise the issue, we find that the evidence at trial was sufficient to support his rape conviction beyond a reasonable doubt. See Walters v. State, 244 Ga. App. 657 (538 SE2d 451) (2000); Wells v. State, 208 Ga. App. 298, 299 (1) (430 SE2d 611) (1993); Clark v. State, 197 Ga. App. 318, 320 (1) (398 SE2d 377) (1990); Durden v. State, 187 Ga. App. 433, 433-434 (1) (370 SE2d 528) (1988).

2. Mowoe asserts that he received ineffective assistance of counsel asserting that his trial counsel was deficient because (1) she failed to object to the State’s illegal presentation of misleading evidence during its closing argument; (2) she “did not know how” to impeach the victim with her prior audio statement; and (3) she failed to secure the attendance of his girlfriend as a witness at trial.

In order to prevail on a claim of ineffective assistance of counsel, [Mowoe] must show counsel’s performance was deficient and that the deficient performance prejudiced him to the point that a reasonable probability exists that, but for counsel’s errors, the outcome of the trial would have been different.

(Citation omitted.) Thompson v. State, 294 Ga. 693, 695 (2) (755 SE2d 713) (2014).

(a) Mowoe asserts that his trial counsel was ineffective in failing to object when, during closing argument, the prosecutor asked Mowoe’s girlfriend to stand up and make her presence known even though the girlfriend had not been called to testify at trial. The prosecutor argued:

And this is over a phone call, because he said, [“shhh”]. You don’t go through all this over, [“shhh”]. You go up and tell Ms. LaToya Wise, [“Hey,] Ms. Wise, I banged your boyfriend last night. [”] Ms. Wise is right here in this courtroom. “Ms. Wise, will you stand up, please?”

At that point, an unidentified person stood up in the gallery, and the prosecutor continued, ‘Why not bring her to the stand, if I’m not telling the truth? Go up and knock on her door.” Mowoe argues this procedure was improper and that his counsel’s failure to object “directly and misleadingly undermined [his] credibility, and at the same time wrongly shored up [the victim’s] credibility.”

At the hearing on the motion for new trial, Wise testified that she had met and spoken with the defense attorney some time before the trial to discuss her knowledge of the case. Wise said that the defense had her mother’s address and that was the only way they had to reach her. She said that the defense did not contact her again within the month before trial, but they did not have her phone number. However, if they had reached her, she would have been willing to testify. Wise was not in town on the first day of trial. She said that the State got in touch with her two days before trial, and she spoke with them the day before the last day of trial, which was when they subpoenaed her to be there on the last day.

Wise further testified that on the evening before the alleged rape, she saw the victim in the parking lot of the complex with a large group of people while music was playing from the surrounding cars. She said she often saw the victim hanging outside with others in the complex. That night, however, Wise saw the victim and another woman dancing on top of a car. At one point, she saw the victim fall off the car and hit the ground on her back. A friend helped the victim back up. She recalled that the next day a number of emergency vehicles arrived at the complex in front of the building where the victim lived, approximately ten minutes after she had spoken to Mowoe on the telephone. She said that when she spoke with him, she was wondering what was wrong with him; he seemed mad. At first she heard someone in the background, and she thought something was going on between Mowoe and a girl in the background. Mowoe and Wise continued talking, and Mowoe asked to come to her house.

Mowoe’s trial counsel also testified at the motion hearing and said that she had spoken to Wise several times before trial, and they had discussed her testimony. The last time she recalled talking with Wise was a few weeks before trial. The attorney stated that she was not sure if she served Wise with a subpoena, but she kept trying to contact her by telephone through Wise’s friends and family right up to trial and even while the trial was ongoing. Mowoe’s attorney believed that Wise’s testimony would have helped his case because Wise would have testified that she witnessed the victim falling off the car and hurting her back and also that she was on the phone with Mowoe when he was in the room with the victim.

Mowoe’s attorney further testified that when the prosecutor identified Wise during closing argument and had her stand up, she “was just really surprised she was there after we . . . tried to find her.... Kind of surprised, taken off guard by it and then everything’s that kind of passed, so, no I did not object to it.” The trial attorney conceded that Wise’s appearance during closing argument was harmful. Because she was being presented by the prosecution, it appeared that her testimony would not have been in Mowoe’s favor and that she did not come forward before because she did not want to testify against him.

Mowoe asserts that the prosecutor’s demonstration during his closing argument was improper because it was an assertion of facts not evidence, and it is well settled that “[a] prosecutor may not . . . inject into his final argument matters which have not been proven in evidence.” (Citation and punctuation omitted.) Williams v. State, 254 Ga. 508, 511 (3) (330 SE2d 353) (1985). The State argues, however, that its demonstration did not constitute any additional factual evidence, but merely showed that Wise was present.

The fact that Wise did not testify was of record and was a proper subject for the prosecutor’s argument. And “a prosecuting attorney is able to comment on a criminal defendant’s failure to produce certain witnesses when the defendant testifies to the existence of a witness with knowledge of material and relevant facts, and that person does not testify at trial.” Morgan v. State, 267 Ga. 203, 206 (3) (476 SE2d 747) (1996). But the prosecution is not entitled to back up such commentary with evidence not previously introduced at trial. Having Wise stand up during closing argument demonstrated to the jury that she was readily available to testify and could have been called as a witness in the case, facts that were not presented during the evidentiary portion of the trial. Williams, 254 Ga. at 511 (3). This tactic, after the close of evidence, gave Mowoe no chance to rebut the prosecutor’s demonstration with evidence showing the defense’s efforts to contact Wise before and during trial.

The prosecution could easily have used a similar demonstration at trial during the cross-examination of Mowoe, but if the State had done so, Mowoe could have asked for the opportunity to rebut it by putting Wise on the stand. Alternatively, the State could have made the same point in other ways. In fact, the prosecutor asked Mowoe if he knew where to find a number of people, whom he had identified as having knowledge of the events on or about September 12, 2008. And although earlier in the cross-examination, the prosecutor asked Mowoe to identify Wise, by name, as his girlfriend, he did not ask him if he knew where to find her. Instead, the prosecutor chose to wait until the defense could not counter his presentation of Wise with evidence of its own. Thus, we find that “[t]his demonstration should have taken place during trial or not at all.” Williams, 254 Ga. at 511 (3). See also Sumlin v. State, 283 Ga. 264, 266 (2) (658 SE2d 596) (2008); Mathis v. State, 276 Ga. App. 587, 587, n. 1 (623 SE2d 674) (2005); Rust v. State, 264 Ga. App. 893, 899 (3) (592 SE2d 525) (2003). As our Supreme Court has recognized,

[i]n our criminal justice system, the district attorney represents the people of the state in prosecuting individuals who have been charged with violating our state’s criminal laws. The responsibility of a public prosecutor differs from that of the usual advocate; his duty is to seek justice, not merely to convict.

(Citations and punctution omitted.) State v. Wooten, 273 Ga. 529, 531 (2) (543 SE2d 721) (2001). See also Greater Georgia Amusements, LLC v. State of Ga., 317 Ga. App. 118, 121 (2) (728 SE2d 744) (2012); Thompson v. State, 163 Ga. App. 35, 36 (4) (292 SE2d 470) (1982). We conclude, therefore, that the State’s demonstration during closing argument was improper.

The failure of Mowoe’s trial counsel to object to this violation of Mowoe’s Sixth Amendment right to confrontation prevented the trial court from taking any corrective action and waived the issue for appellate review. Sumlin, 283 Ga. at 266-267 (2); OCGA § 17-8-75. Thus, we find that his trial counsel was deficient in failing to object to the prosecution’s demonstration and in failing to preserve his appellate rights. This failure did not arise out of a planned trial strategy but rather occurred simply because counsel was shocked at Wise’s appearance during closing argument.

And where, as here, the evidence was not overwhelming but rather required the jury to weigh the credibility of the victim’s testimony against Mowoe’s testimony concerning the events of September 12, we cannot say that the error was harmless. The prosecution’s production of Wise at the trial suggested that she was ready, willing, and able to testify, but that the defense made the conscious choice not to call her as a witness, thus raising an inference that her testimony would have been unfavorable to the defense. But as Wise’s testimony at the hearing on the motion for new trial clearly demonstrated, she could have offered an alternative explanation for the bruises on the victim’s back, and she could have confirmed that she spoke with Mowoe on the phone and heard a woman in the background, thereby corroborating his version of events. Accordingly, the inferences that arose from the prosecution’s demonstration were impermissibly misleading, and the failure of Mowoe’s trial attorney to object allowed the inferences to stand unrebutted during the jury’s deliberations. We find, therefore, that a reasonable probability exists that the demonstration affected the jury’s consideration of the witnesses’ credibility and thus affected the outcome at trial. Because we find that Mowoe has carried his burden of demonstrating ineffective assistance of counsel on this ground, he is entitled to a new trial.

(b) As we have held that Mowoe is entitled to a new trial, we need not reach Mowoe’s remaining enumerations asserting ineffective assistance of counsel.

Decided July 10, 2014 —

Reconsideration denied July 24, 2014 —

Gerard B. Kleinrock, for appellant.

Robert D. James, Jr., District Attorney, Deborah D. Wellborn, Assistant District Attorney, for appellee.

3. Similarly, we need not reach Mowoe’s other remaining enumerations of error as the issues asserted therein are not likely to arise in any subsequent retrial.

Judgment reversed.

Phipps, C. J., and Ellington, P. J., concur.

       Mowoe was also charged with false imprisonment and burglary, but the jury deadlocked on those charges.

       Her roommates were also out.

       No evidence was presented as to how the State located Wise.

       Counsel did not hire an investigator, because neither Mowoe’s family nor she had the funds to do so, nor did she petition the trial court for the funds to do so.

       We note, however, that it is well settled that it is improper for the State to argue that the defense had a duty to present evidence, thereby shifting the burden of proof to the defendant. Jackson v. State, 279 Ga. 449, 454 (4) (614 SE2d 781) (2005). See also Morgan v. State, 255 Ga. App. 58, 61 (3) (a) (564 SE2d 467) (2002).

       Mowoe referred to Wise only as his “girlfriend” or his “girl” during his direct testimony.

       That statute provides:
      Where counsel in the hearing of the jury make statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same. On objection made, the court shall also rebuke the counsel and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds; or, in his discretion, he may order a mistrial if the prosecuting attorney is the offender.
      OCGA § 17-8-75.


author: McMlLLIAN, Judge.

text:
    A14A1057, A14A1059.
    LASTER v. NATIONAL COLLEGIATE STUDENT LOAN TRUST 2005-3 (two cases).
    (762 SE2d 430)
   McMlLLIAN, Judge.

Appellee National Collegiate Student Loan Trust 2005-3 brought a suit on account and agreement in the State Court of Sumter County against Justin and Linda Laster after they allegedly defaulted on their student education loans. The state court granted summary judgment to appellee, and the Lasters, acting pro se, filed an appeal from that order to the Superior Court of Sumter County. The superior court dismissed the case, based on a finding that it had no jurisdiction to review an order granting summary judgment in a civil case such as the one here. The Lasters, again acting pro se, have filed separate appeals to this Court from that order, which we have consolidated for review.

The Georgia Constitution requires that “[a]ny court shall transfer to the appropriate court in the state any civil case in which it determines that jurisdiction or venue lies elsewhere.” Ga. Const, of 1983, Art. VI, Sec. I, Par. VIII. Thus, instead of dismissing the Lasters’ appeal, the superior court should have transferred the case to this Court for review. Blackmon v. Tenet Healthsystem Spalding, Inc., 284 Ga. 369, 371-372 (667 SE2d 348) (2008); Bosma v. Gunter, 258 Ga. 664 (373 SE2d 368) (1988).

[T]he manifest purpose of Article VI, Section I, Paragraph VIII is to prevent parties from being penalized when their attorneys, or the parties themselves acting pro se, make a mistake regarding the complex, highly technical rules that govern jurisdiction and venue and inadvertently file a case in the wrong court. This case fits that description to a tee.

Decided July 24, 2014.

Justin Laster, pro se.

Linda Laster, pro se.

Gerald E. Moore, John M. Duffoo, for appellee.

Blackmon, 284 Ga. at 371. Accordingly, we vacate the order of the superior court dismissing the Lasters’ appeal and remand the case to that court so that their appeal from the state court, including the record transmitted to the superior court as part of that appeal, may be transferred to this Court for appellate review.

Judgments reversed and cases remanded with direction.

Phipps, C. J., and Ellington, P. J., concur.

       The records before us contain only the initial complaint filed in state court, the state court order granting summary judgment, the notice of appeal to the superior court, the superior court’s order dismissing the appeal, and the notices of appeal to this Court.

       The Lasters can view our Rules, including the ones that apply to filing briefs in this Court, on our website, www.gaappeals.us. The website also contains a Citizen’s Guide, directed primarily at pro se parties, which they also may find helpful.


author: Ellington, Presiding Judge.

text:
    A14A1083.
    WOMACK et al. v. JOHNSON.
    (762 SE2d 428)
   Ellington, Presiding Judge.

Michael Womack and Geston Womack brought this action in the Superior Court of Polk County against Wendi Spain Johnson, as administratrix of the estate of Jerry Floyd Spain to collect an alleged debt arising from the Womacks’ and Spain’s joint farming operation. A jury found in favor of Spain’s estate, and the Womacks appeal, contending that the trial court erred in denying their motion for a mistrial, which was based on allegedly improper conduct by Johnson’s counsel during his opening statement. For the following reasons, we affirm.

During his opening statement, Johnson’s counsel showed the jury photographs of Spain and his infant son. Johnson’s counsel blocked the photographs from the view of the Womacks’ counsel, who could hear the argument being made but could not actually see the photographs as they were being displayed. It is undisputed that these photographs were not listed in the pretrial order and that Johnson had not shown them to either the Womacks or the Court before using them during the opening statement.

On the second day of trial, the Womacks moved for a mistrial. The Womacks argued that the photographs were improper because they were not listed in the pretrial order and because they were inherently prejudicial. The record shows the Womacks argued that the photographs caused the jury to think, “oh, that poor baby, he’ll never see his father.” The Womacks argued that, after Johnson’s counsel displayed the photographs, they were now “fighting a baby” rather than litigating the merits of their claim. Johnson responded that using the photographs and discussing the child during his opening statement was proper because the child is a real party in interest, and a jury is entitled to know who has an interest in the matter before them. The trial court denied the Womacks’ motion for a mistrial. The trial court, however, instructed Johnson’s counsel not to use the photographs or refer to the child for the remainder of the trial, including during closing arguments.

1. The Womacks contend the trial court abused its discretion in denying their motion for a mistrial. Johnson argues, however, that the Womacks waived any error by failing to make a contemporaneous objection to the use of the photographs of Spain and his child. We agree with Johnson.

Pursuant to OCGA § 9-10-185, a trial court may order a mistrial based on improper and prejudicial statements made in the presence of the jury. An appellate court will not review the discretion of the trial judge in failing to order a mistrial for an alleged improper argument of counsel when no objection was made by opposing counsel. Wright v. Wright, 222 Ga. 777, 781 (4) (152 SE2d 363) (1966) (holding it necessary for counsel to object to an improper argument to make the same a basis for review); see Counts v. Moorehead, 232 Ga. 220, 221 (2) (206 SE2d 40) (1974) (“[T]he trial court in a civil case may, upon the motion of either party, grant a mistrial for improper remarks of counsel.”). “[I]n order to preserve a point of error for the consideration of an appellate court, counsel must take exception to the alleged error at the earliest possible opportunity in the progress of the case by a proper objection made a part of the record.” (Emphasis supplied.) Sharpe v. Dept. of Transp., 267 Ga. 267 (1) (476 SE2d 722) (1996). Here, the Womacks did not object on the record at the earliest possible moment — during the opening statement when Johnson’s counsel made reference to Spain’s child.

When a party fails to assert a contemporaneous objection to allegedly improper remarks of counsel, the party “waive [s] his right to complain about the remarks on appeal.” Brooks v. State, 284 Ga. App. 762, 763-764 (644 SE2d 891) (2007). Thus, when a party waits until the conclusion of the opposing party’s argument to object or move for a mistrial, any error is not preserved for appellate review. LN West Paces Ferry Assocs. v. McDonald, 306 Ga. App. 641, 649 (2) (b) (703 SE2d 85) (2010) (The defendant waived argument on appeal by waiting until the morning after opening statements concluded to move for a mistrial based on statements made in opposing counsel’s opening statement.); Brooks v. State, 284 Ga. App. at 763-764 (The defendant waived his right to object to remarks made in the prosecution’s opening statement by waiting until the conclusion of the prosecution’s statement to object.); Felts v. State, 256 Ga. App. 733, 734 (1) (569 SE2d 633) (2002) (The defendant could not appeal trial court’s denial of his motion for mistrial made at the conclusion of the prosecution’s opening statement because the objection was untimely and waived.); Booker v. Older Americans Council of Middle Georgia, Inc., 278 Ga. App. 407, 408-409 (1) (629 SE2d 69) (2006) (Bringing the trial court’s attention to an improper argument after the argument was made, in the course of a bench conference, did not suffice to preserve an error for appeal.).

Based on the foregoing authorities, the record shows that, because the Womacks objected and moved for a mistrial the morning following opening statements, and not at the time Johnson’s counsel showed the photographs to the jury, they failed to properly preserve the error for appeal.

The Womacks argued, however, this Court should grant a limited exception to the contemporaneous objection requirement where a party’s conduct prevents the other side from making a timely objection, as they contend occurred in this case. This argument proves unpersuasive in this case. While the Womacks may not have been able to see the photographs because of how Johnson’s counsel chose to present them to the jury, the Womacks’ counsel could hear the argument accompanying the photographs. More importantly, the Womacks’ main concern, as presented by the record before this Court, was not the specific content of these photographs, but rather the identity of the person depicted, which informed the jury that the sole beneficiary of Spain’s estate was a young child. Thus, the Womacks did not need to see the photographs to contemporaneously object to Johnson’s opening statement remarks concerning the child. Additionally, the Womacks could have objected timely on the ground that photographs not listed in the pretrial order were being shown to the jury. Failing to object contemporaneously, the objections were waived. See Sharpe v. Dept. of Transp., 267 Ga. at 267 (1).

Decided July 24, 2014.

Sidney P. Wright, for appellants.

David E. Betts, Julie J. Oinonen, for appellee.

2. Johnson’s request for sanctions for frivolous appeal pursuant to Court of Appeals Rule 15 is denied.

Judgment affirmed.

Phipps, C. J., and McMillian, J., concur.

       While Spain’s child is not a named party to the case, the parties and the child’s guardian agreed that Johnson, as the administratrix of the decedent’s estate, was fully representing the child’s interests as the estate’s sole beneficiary, and the child would he bound by any resulting judgment in this action.

       Where counsel in the hearing of the jury make statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same. On objection made, the court shall also rebuke counsel and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds. In its discretion, the court may order a mistrial if the plaintiff’s attorney is the offender.
      OCGA § 9-10-185.

       In fact, the trial court transcript shows the Womacks acknowledged they were making a late objection, saying, “I expect that they’re [Johnson’s counsel] going to take the position, well, you know, you failed to object and you waived it.”


author: Dillard, Judge.

text:
    A14A0155.
    REEVES et al. v. MAHATHRE et al.
    (759 SE2d 926)
   Dillard, Judge.

In this wrongful-death action premised on medical malpractice, appellants Michael Reeves, Sharon Reeves, and Marcus Reeves, Jr., individually, and Michael Reeves, as executor of the Estate of Jonelle Reeves (collectively, “Appellants”), sued Dr. Vijay Mahathre and his employer, Ben Hill Emergency Group LLC (collectively, “Dr. Mahathre”), inter alia, alleging that Dr. Mahathre was negligent in the medical care he provided to their mother, Jonelle Reeves (“Reeves”), in the emergency department at Dorminy Medical Center (“DMC”). Dr. Mahathre, an emergency-room physician, filed a motion for summary judgment, asserting that he did not breach the applicable standard of care when he treated Reeves and, further, that Appellants failed to establish a causal connection between his care of Reeves and her subsequent death. The trial court granted Dr. Mahathre’s motion, and Appellants claim that the court erred in doing so. Because we agree that the appellate record fails to establish that a genuine issue of material fact exists as to whether Dr. Mahathre’s treatment proximately caused Reeves’s death, we affirm.

Viewed in the light most favorable to Appellants as the nonmovants, the record shows that at approximately 6:20 p.m. on May 21, 2008, Reeves, a 71-year-old with a history of diabetes and hypertension, presented at the emergency room in DMC, complaining of nausea and severe pain in her abdomen and right flank. Dr. Mahathre was her attending emergency-room physician. After taking a medical history and conducting a physical examination, Dr. Mahathre ordered a series of tests, including a complete blood count, blood-chemistry analysis, urinalysis, and an upright kidney-ureter-bladder x-ray. He further administered Reeves an intramuscular injection of pain medication and an anti-nausea medicine, and also gave her an oral antibiotic.

Although Reeves’s white-blood-cell count was elevated, possibly indicating an infection, both her urinalysis and x-ray were normal. The pain medication provided Reeves some relief and, without offering a formal diagnosis, Dr. Mahathre discharged her in “improved” condition at 8:45 p.m. with an antibiotic prescription and instructions to see her primary-care physician within two days.

The following morning, May 22, 2008, Reeves was seen at her primary-care physician’s office by an advanced-practice registered nurse and, later that afternoon, was admitted as an inpatient at DMC with increased abdominal pain, fever, and an elevated white-blood-cell count. Then, at approximately 9:35 p.m., an abdominal CT scan was performed, which showed that Reeves was suffering from a five millimeter kidney stone blocking her right ureterovesical junction.

After discovering Reeves’s diagnosis and, consequently, the need to consult a urologist, and given that DMC had no urologist on-call and available, the attending physician called Dr. Robert Gregory Anderson, a urologist from Tift Regional Medical Center, approximately 30 miles away. Dr. Anderson was unable to accept transfer of Reeves that evening because Tift Regional did not have an available bed, but a decision was made to transfer her first thing in the morning and admit her directly into the surgery unit where Anderson could then place a stent to relieve the blockage to her kidney.

Reeves was transferred to Tift Regional by ambulance at approximately 8:00 a.m. the following morning (May 23, 2008). Upon her arrival to Tift Regional, however, Reeves was in critical condition and it was determined that she was not stable enough to undergo general anesthesia. Consequently, she was not cleared for surgery and Dr. Anderson was unable to place the stent. Tragically, Reeves was in septic shock and, at 1:15 a.m. on May 24, 2008, she was pronounced dead as a result of “urosepsis,” an overwhelming infection that developed in her urinary tract due to the blockage caused by the kidney stone.

Appellants filed the instant wrongful-death lawsuit, alleging medical malpractice against numerous defendants involved in Reeves’s care, including Dr. Mahathre. In support of their claims, Appellants presented expert testimony that Dr. Mahathre was negligent in failing to order a CT scan and/or diagnose Reeves’s condition prior to discharging her from the emergency room during her initial visit on May 21, 2008. Dr. Mahathre filed a motion for summary judgment denying that he breached a duty of care to Reeves, but asserting that, regardless of his purported negligence, there was no causal connection between his actions and Reeves’s tragic death. The trial court granted his motion, and this appeal follows.

In order to establish liability in a medical-malpractice action, a plaintiff must prove three essential elements: “(1) the duty inherent in the doctor-patient relationship; (2) the breach of that duty by failing to exercise the requisite degree of skill and care; and (3) that this failure be the proximate cause of the injury sustained.” Significantly, negligence alone is “insufficient to sustain recovery for wrongful death in a medical malpractice action.” Rather, it must be proven that “the death of a patient proximately resulted from such want of care or skill.” And such causation must be established “to a reasonable degree of medical certainty,” cannot be based upon “mere chance or speculation,”* and when, as here, it falls outside the ken of the normal juror, requires the support of expert testimony.

Assuming, as we must under the standard of review, that Dr. Mahathre breached the applicable standard of care in failing to order a CT scan on Reeves and/or to diagnose the kidney stone and resulting blockage, the record nonetheless fails to create a jury issue on the question of causation. Indeed, Appellants’ own expert, Dr. Richard Braen, an emergency-room physician, testified that, had Dr. Mahathre ordered a CT scan and properly diagnosed Reeves’s condition, the standard of care required that he then contact a urologist and follow the urologist’s instructions as to her treatment. And had he done so, according to Dr. Braen, Dr. Mahathre would have satisfied his duty of care to Reeves.

In turn, Dr. Mahathre presented the testimony of the urologist who was ultimately consulted to care for Reeves, Dr. Anderson. Dr. Anderson testified that had Dr. Mahathre performed a CT scan and consulted him with the results—i.e., that a five millimeter kidney stone was blocking her right ureterovesical junction—on the night that Reeves presented in the emergency room, he would have advised Mahathre to treat Reeves in the exact fashion that he, in fact, did. Specifically, because Reeves’s urine was clear, she had no fever, and she was responding to the pain medicine, Dr. Anderson would “have done nothing differently,” in that he would have recommended that Reeves be sent home with pain medication in order to see if she could pass the stone independently and advised her to follow up with him or her primary-care physician in two to three days.

Additionally, Dr. Craig V. Comiter—a urology and causation expert for Appellants—testified that Reeves had “no obvious signs or symptoms of [a urinary] infection at her initial ER presentation [to Dr. Mahathre],” and that it was only when she returned to the hospital for admission that “she was displaying signs and symptoms of infection.” And when Dr. Comiter was directly asked whether he had “an opinion [as to] whether or not any act or omission by Dr. Mahathre caused or contributed to the patient’s death,” he simply responded, “No.”

The foregoing testimony goes directly to the issue of causation, and appellants have presented no expert testimony to contradict it. Although one of Appellants’ experts—Dr. Julian L. Seifter, a nephrologist—opined generally that the failure of Dr. Mahathre, among various other medical professionals, to correctly diagnose Reeves and relieve the obstruction “ultimately led to the development of . . . urosepsis and ... caused her death,” this generalized testimony was not sufficient to create a jury question on the issue of causation. Indeed, when causation is involved, “plaintiff has a more complex dilemma where the defendant has given expert testimony that there was no proximate cause, because to merely show a causal link does not refute the defendant’s denial of causation..., requiring the grant of summary judgment.” And because Dr. Mahathre successfully pierced Appellants’ pleadings and demonstrated the absence of evidence supporting the essential element of causation, summary judgment was appropriate in the case sub judice.

Decided July 11, 2014 —

Reconsideration denied July 25, 2014 —

Tracey L. Dellacona, Adams & Adams, Charles R. Adams III, Gautreaux & Adams, Jarome E. Gautreaux, for appellants.

Commander Pound Butler, Theodore E. G. Pound, Kathleen W. Simcoe, McCall Williams, W. Earl McCall, Jones, Cork & Miller, Carr G. Dodson, for appellees.

Judgment affirmed.

Doyle, P. J., concurs. Miller, J., concurs in judgment only.

       Appellants assert that Ben Hill Emergency Group LLC is vicariously liable solely as Dr. Mahathre’s alleged employer and assert no direct claims against it.

       The other named defendants to the lawsuit included The Hospital Authority of Ben Hill County; Tift County Hospital Authority; Tift County Hospital Authority d/b/a Tift Regional Medical Center; Tift Regional Medical Center; Colony Medical Associates, P.C.; Derrick Taylor, M.D.; Affinity Health Group, LLC; and Christina Rich, M.D.

        See Carr v. Kindred Healthcare Operating, Inc., 293 Ga. App. 80, 80 (666 SE2d 401) (2008) (“A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable,to the nonmovant.”).

       Dr. Mahathre testified during his deposition that he discussed with Reeves, in the presence of Reeves’s daughter, the option of performing a computed-tomography scan (“CT scan”) and that Reeves declined the test. Reeves’s daughter testified that she remembered no such conversation. Because we must construe the evidence and all inferences in the light most favorable to Appellants, we will assume that Reeves was not offered a CT scan.

       The ureterovesical junction refers to the point at which the ureter joins the bladder.

       The alternative option of transferring Reeves to a hospital in Macon, approximately 100 miles away, was mentioned but apparently ruled out due to the difficulty of locating a urologist and effecting the transfer given the late hour.

        Zwiren v. Thompson, 276 Ga. 498, 499 (578 SE2d 862) (2003) (punctuation omitted); see also OCGA § 51-1-27 (“Aperson professing to practice surgery or the administering of medicine for compensation must bring to the exercise of his profession a reasonable degree of care and skill. Any injury resulting from a want of such care and skill shall he a tort for which a recovery may he had”).

        Grantham v. Amin, 221 Ga. App. 458, 458 (471 SE2d 525) (1996) (punctuation omitted); accord Roseberry v. Brooks, 218 Ga. App. 202, 206 (1) (461 SE2d 262) (1995); see Berrell v.

        Hamilton, 260 Ga. App. 892, 896 (581 SE2d 398) (2003) (“A mere showing of negligence without proof of causation is insufficient to withstand summary judgment.”).

        Grantham, 221 Ga. App. at 458 (punctuation omitted); accord Roseberry, 218 Ga. App. at 206 (1); see Berrell, 260 Ga. App. at 896 (“[A] plaintiff must prove that the defendants’ negligence was both the cause in fact and the proximate cause of his injury.”); Cannon v. Jeffries, 250 Ga. App. 371, 373 (1) (551 SE2d 777) (2001) (“[TJhere must be a realistic assessment of the likelihood that the alleged negligence caused the injury or death.” (punctuation omitted)).

        Cannon, 250 Ga. App. at 373 (1); see Anthony v. Chambless, 231 Ga. App. 657, 659 (1) (500 SE2d 402) (1998) (“[TJhere can be no recovery for medical negligence involving an injury to the patient where there is no showing to any reasonable degree of medical certainty that the injury could have been avoided.” (punctuation omitted)).

        Cannon, 250 Ga. App. at 373 (1) (punctuation omitted); see Ladner v. Northside Hosp., Inc., 314 Ga. App. 136, 140 (723 SE2d 450) (2012) (“A mere possibility of. . . causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to grant summary judgment for the defendant.” (punctuation omitted)); Anthony, 231 Ga. App. at 659 (1) (“Although it is not necessary for the plaintiff’s experts to use the magic words ‘reasonable degree of medical certainty” in describing the decedent’s prospect of survival with appropriate treatment, such prospect must be more than a mere chance or speculation.”).

        See Zwiren, 276 Ga. at 500; see also Moore v. Singh, 326 Ga. App. 805, 809 (1) (755 SE2d 319) (2014) (“[When] the question of causation is outside the ken of the normal juror, this showing must be based on expert testimony that is sufficient to support a finding that the deviation from the standard of care to a reasonable degree of medical certainty caused the injury.”).

       Although Dr. Braen opined that the questions evoking Dr. Anderson’s deposition responses failed to account for Reeves’s age and history of diabetes, Anderson filed a subsequent affidavit in which he confirmed that he was, in fact, referring specifically to Reeves and considering those factors when he gave his deposition testimony.

       Appellants identified Dr. Comiter as an expert witness “expected to testify regarding the causal link between the defendants’ provision of medical treatment or failure to provide medical treatment at issue and the injuries and death of Ms. Jonelle Reeves.”

        See Berrell, 260 Ga. App. at 896 (“[W]hen the moving party makes a prima facie showing of entitlement to judgment as a matter of law, the burden then shifts to the respondent to come forward with rebuttal evidence.”); see also OCGA § 9-11-56 (e) (“When a motion for summary judgment is made and supported as provided in this Code section, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this Code section, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.”); Estate of Patterson v. Fulton-DeKalb Hosp. Auth., 233 Ga. App. 706, 709 (2) (505 SE2d 232) (1998) (“[When] . . . the defendant hospital makes a motion for summary judgment and the attending physician gives a medical affidavit that states a medical opinion that the alleged deviation from the standard of care has no causal connection with the injury or aggravated a pre-existing condition, such motion has pierced the plaintiff’s pleadings, refuted causation, and shifted the burden to the plaintiff of coming forward with some evidence to create a material issue of fact, because the defendant hospital has disproved the essential element of causation.”).

       Moreover, Dr. Seifter noted that if patients “are partially obstructed and there’s no infection, they may go home and with pain medication to try and see if they will pass the stone.”

        Roberts v. Nessim, 297 Ga. App. 278, 282 (1) (a) (ii) (676 SE2d 734) (2009) (punctuation omitted) (emphasis omitted); see also Savannah Valley Prod. Credit Ass’n v. Cheek, 248 Ga. 745, 746 (4) (285 SE2d 689) (1982) (“[W]hen the defendant produces an expert’s opinion in his favor on motion for summary judgment and the plaintiff fails to produce a contrary expert opinion in opposition to that motion, then there is no genuine issue to be tried by the jury and it is not error to grant summary judgment to the defendant.” (punctuation omitted)).

       In its order, the trial court invited Appellants to identify any evidence that Dr. Mahathre’s care of Reeves proximately caused her death, noting, “Should the Court have missed seeing any evidence of causation, we would invite a motion to reconsider this ruling and point out evidence we have missed,” and “[w]e neither recall nor find any reference to any such evidence referred to in the record or at oral argument on these motions regarding any medical opinion that any act of defendant Mahathre’s caused any harm to decedent.” As was the case below, Appellants do not direct us to any evidence creating a genuine issue of material fact as to whether Dr. Mahathre’s alleged negligence was a proximate cause of Reeves’s death.

        See Roberts, 297 Ga. App. at 282-83 (1) (a) (ii) (holding plaintiff’s conclusory affidavit failed to overcome defendant’s direct denial of causation sufficient to create a jury issue on causation); Berrell, 260 Ga. App. at 896 (affirming grant of summary judgment because plaintiff produced no direct expert testimony to counter that of defendant’s expert on the issue of causation); Stewart v. Palmyra Park Hosp., 171 Ga. App. 477, 477 (320 SE2d 262) (1984) (same).


author: McFADDEN, Judge.

text:
    A14A0270.
    TAYLOR v. THE STATE.
    (759 SE2d 892)
   McFADDEN, Judge.

After a jury trial, Montrellus Lamar Taylor was convicted of kidnapping and aggravated sodomy. He appeals, arguing that the state failed to prove venue for the aggravated sodomy; that the trial court committed plain error when it instructed the jury on venue; and that the trial court improperly admitted evidence that Taylor previously had broken into the victim’s home. We find that the state adequately proved venue and that the trial court’s instruction on venue was correct. We also find that the trial court did not abuse his discretion in admitting the prior difficulties evidence. We therefore affirm Taylor’s convictions.

Viewed in the light most favorable to the verdict, Morris v. State, 322 Ga. App. 682, 683 (1) (746 SE2d 162) (2013), the evidence shows that the victim dated Taylor, off and on, for a number of years, and they have two children together. Their romantic relationship ended in 2005.

On December 22, 2007, Taylor called the victim and asked her to meet him at a storage unit in Dooly County because he had money for her and bicycles for their children. When the victim arrived at the storage unit, Taylor called her over to his car so she could look at presents in his open trunk. When she walked over, Taylor put a gun to her head and told her to shut up and to get in the trunk. The victim struggled with Taylor, but he choked her until she fell to the ground. He picked her up, threw her into the trunk, and shut the compartment’s lid. The victim called her boyfriend on her cell phone and had time to say that Taylor had a gun and had her in the trunk before Taylor, who had been searching the victim’s car for her cell phone, opened the trunk and took the phone from her. Taylor then drove off with the victim in the trunk. She attempted to escape and was able to open the trunk, but Taylor was driving so quickly that she could not jump out.

When Taylor realized the victim had opened the trunk, he stopped the car and forced her into the back seat. The victim did not know where they were; all she saw were trees. Taylor drove for another five to ten minutes before stopping. The victim still had no idea where they were, but they remained in a wooded area. When he stopped the car, Taylor blindfolded and handcuffed the victim and forced her to perform oral sex on him. Afterwards, Taylor removed the victim’s blindfold and handcuffs, and they drove away. The victim was crying and hyperventilating.

When the victim’s boyfriend received her call, he and his friends, who were also friends of Taylor and the victim, drove to the storage facility. When they arrived, they saw the victim’s car but not the victim. One of the friends called the police. The boyfriend and his friends began driving around, looking for the victim. Eventually, some of the friends encountered Taylor’s car in Dooly County. Taylor stopped, and the friends rescued the victim from Taylor’s car.

When the victim was interviewed by law enforcement officers later that day, she was “visibly shaken,” very upset, crying, “visibly distraught,” and “huddled in on herself.” She still had on her head the mask which Taylor had used to blindfold her.

1. Venue.

Taylor argues that the evidence was insufficient to prove venue of the aggravated sodomy. He acknowledges that under OCGA § 17-2-2 (h), if “it cannot be determined in what county a crime was committed, it shall be considered to have been committed in any county in which the evidence shows beyond a reasonable doubt that it might have been committed.” But, he argues, that statute does not apply here because the state could have determined the county in which the crime was committed by having the victim retrace the route from the point where she was rescued. A jury’s decision on venue must be affirmed if supported by any evidence. Because the jury could have concluded from the evidence that the location of the crime could not be determined, we reject Taylor’s argument.

One purpose of OCGA § 17-2-2 (h) “is to provide for establishment of venue in situations in which there is . . . some doubt as to which county was the scene of the crime[.]” Bundren v. State, 247 Ga. 180 (1) (274 SE2d 455) (1981) (discussing Code Ann. § 26-302 (h), the former version of the statute).

OCGA § 17-2-2 (h) does not violate the mandate of Art. VI, Sec. II, Par. VI, Ga. Const. 1983 [that criminal cases be tried in the county where the crime was committed]. It merely provides a mechanism by which that mandate can be carried out when the place in which the crime is committed cannot be determined with certainty.

Hinton v. State, 280 Ga. 811, 815 (2) (631 SE2d 365) (2006) (punctuation omitted).

In this case, the victim testified that she was abducted in Dooly County. She was in the car’s trunk for part of the time that Taylor drove her to the location of the aggravated sodomy. In response to the state’s question, the victim testified that she had “no idea” where she was at the time of the sodomy. She was eventually rescued from Taylor’s car in Dooly County. This evidence supports the conclusion that the county in which the crime occurred could not be determined with certainty. The state therefore was entitled to rely on OCGA § 17-2-2 (h) to prove venue. Compare Stockard v. State, 327 Ga. App. 184, 187 (2) (761 SE2d 351) (2014) (“[Because the [s]tate made no attempt to elicit evidence as to where the crime occurred [through the questioning of witnesses], we are unable to say that the county in which the crime was committed ‘cannot be determined’ ” so as to allow the state to use OCGA § 17-2-2 (h) to prove venue.) (footnote and emphasis omitted).

This case is distinguishable from the cases Taylor cites. In Rogers v. State, 298 Ga. App. 895, 898-899 (3) (c) (681 SE2d 693) (2009), law enforcement officers knew where the offenses were committed. In Thompson v. Brown, 288 Ga. 855, 856 (708 SE2d 270) (2011), the state readily could have determined venue “because the informant would have known the general locations where the two [drug] sales occurred and because the [law enforcement] agents knew the exact route that the informant and [the defendant] traveled.”

“[V]enue is a question for the jury, and its decision will not be set aside if there is any evidence to support it.” Leftwich v. State, 299 Ga. App. 392, 399 (4) (682 SE2d 614) (2009) (citation and punctuation omitted; emphasis supplied). There was evidence to support the conclusion that the county in which the crime was committed could not be determined — the victim’s testimony that she did not know where Taylor had sodomized her. There was evidence to support the conclusion that the crime might have been committed in Dooly County — evidence that the victim was abducted and rescued there.

Even though the victim was unable to testify with precision in which county the attack took place, she was not required to do so to establish the proper venue. Her testimony established that she was abducted from and returned to [Dooly] County.... [T]his was sufficient to establish [Dooly] County as the proper venue.

Arnold v. State, 284 Ga. App. 598, 600 (1) (645 SE2d 68) (2007).

2. Jury charge.

Taylor argues that it was plain error for the trial court to charge the jury on OCGA § 17-2-2 (h). In order to show plain error in the giving of a jury instruction, a defendant must show “that the . . . charge was erroneous, the error was obvious, the . . . charge likely affected the outcome of the proceedings, and the error seriously affected the fairness, integrity, or public reputation of the judicial proceedings.” Johnson v. State, 295 Ga. 615, 617-618 (2) (759 SE2d 837) (2014) (citation omitted). Given the evidence detailed above, the trial court did not err, much less commit plain error, in charging the jury on this statute.

3. Evidence of prior difficulties.

Taylor argues that the trial court abused his discretion by admitting evidence that he had broken into the victim’s house two years before this incident. He argues that the trial court’s decision not to give a jury instruction on prior difficulties amounted to a finding that the evidence did not meet the proper standard for prior difficulties evidence. The record indicates, however, that the trial court did not give the charge because the state withdrew it, not because the trial court concluded that the evidence should not have been admitted.

Decided July 9, 2014 —

Reconsideration denied July 25, 2014 —

Russell K. Walker, for appellant.

Denise D. Fachini, District Attorney, Deshala Dixon, Assistant District Attorney, for appellee.

Taylor also argues that the evidence was inadmissible, because it did not tend to prove his motive or intent or the state of the relationship between him and the victim, and because there was not a sufficient connection between the break-in and the kidnapping or aggravated sodomy. But evidence of a defendant’s prior acts toward the victim,

be it a prior assault, a quarrel, or a threat, are evidence of the relationship between the victim and the defendant and may show the defendant’s motive, intent, and bent of mind in committing the act against the victim which results in the charges for which the defendant is being prosecuted.

Thompson v. State, 295 Ga. 96, 102 (3) (b) (757 SE2d 846) (2014) (citation and punctuation omitted). Moreover, prior difficulties

do not implicate independent acts or occurrences, but are connected acts or occurrences arising from the relationship between the same people[.] . . . Thus, the admissibility of evidence of prior difficulties does not depend upon a showing of similarity to the crime for which the accused is being tried.

Dixon v. State, 275 Ga. 232, 232-233 (2) (564 SE2d 198) (2002) (citation and punctuation omitted). Taylor has not shown that the trial court abused his discretion in admitting this evidence.

Judgment affirmed.

Andrews, P. J., and Ray, J., concur.

       This case, like Thompson, was tried under Georgia’s old Evidence Code. Under the new Evidence Code, which applies to trials beginning on or after January 1, 2013, the admissibility of this sort of “[e]vidence of other crimes, wrongs, or acts” is governed by OCGA § 24-4-404 (b).


text:
    A14A0791.
    HOLCOMB v. THE STATE.
    (762 SE2d 431)
   McFADDEN, Judge.

Michael Holcomb appeals from his convictions for child molestation and aggravated sexual battery, contending that the evidence is insufficient to support the guilty verdict. We disagree and affirm.

When a criminal defendant challenges his conviction on the ground of insufficient 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 could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (b) (99 SCt 2781, 61 LE2d 560) (1979) (citation omitted; emphasis in original).

So viewed, the evidence showed that, beginning in 2006, A. H. and her brother lived with their grandmother and Holcomb, their uncle. Holcomb’s bedroom was right next to A. H.’s bedroom. A. H. testified that in February 2008, when she was 12 years old, Holcomb began coming into her room at night and touching her inappropriately. Over the course of about a month, he progressed from fondling A. H.’s breasts and genitals to digitally penetrating her, as well as exposing himself to her and forcing her to touch his genitals.

This evidence authorized the jury to find that Holcomb committed the offense of child molestation, which occurs when a person “[d] oes any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person[.]” OCGA § 16-6-4 (a) (1). This evidence also authorized the jury to find that Holcomb committed the offense of aggravated sexual battery, which occurs when a person “intentionally penetrates with a foreign object the sexual organ ... of another person without the consent of that person.” OCGA § 16-6-22.2 (b). A. H.’s testimony alone was sufficient to establish the elements of these offenses. See Hammontree v. State, 283 Ga. App. 736, 737 (1) (642 SE2d 412) (2007).

Nevertheless, Holcomb argues the evidence is insufficient to support his convictions, because other evidence challenged A. H.’s credibility. He points to testimony that A. H. had a reputation for untruthfulness, evidence that A. H. delayed her outcry in this case, and A. H.’s own admission that she lied in her testimony for another molestation case in which she was the victim. He also points to the fact that A. H.’s family members did not corroborate her story. But see Mauldin v. State, 313 Ga. App. 228, 231 (1) (721 SE2d 182) (2011) (a victim’s testimony is sufficient, regardless of whether there are corroborating witnesses). Citing former OCGA § 24-9-85 (a), Holcomb argues that he successfully impeached A. H.’s testimony, and consequently the jury should not have believed her. (A similar witness impeachment statute may be found in Georgia’s new Evidence Code at OCGA § 24-6-608.)

Decided July 25, 2014.

Sharon L. Hopkins, for appellant.

Shannon G. Wallace, District Attorney, Wallace R. Rogers, Jr., Cliff Head, Assistant District Attorneys, for appellee.

Whether A. H. gave a credible account of Holcomb’s actions, however, was for the jury to decide. It is well established that

[i]t is the function of the jury, not this [cjourt, to judge the credibility of witnesses, resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from the evidence. In so doing, a jury is authorized to believe or disbelieve all or any part of the testimony of witnesses. Ultimately, as long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the state’s case, the jury’s verdict will be upheld.

Mauldin, 313 Ga. App. at 231 (1) (citations omitted). Additionally, “[t]his court does not reweigh evidence or resolve conflicts in testimony; instead, evidence is reviewed in a light most favorable to the verdict, with deference to the jury’s assessment of the weight and credibility of the evidence.” Cook v. State, 276 Ga. App. 803, 804 (1) (625 SE2d 83) (2005) (citation and punctuation omitted).

Judgment affirmed.

Andrews, P. J., and Ray, J., concur.