text:
    A14A2258.
    ROBERTS v. COMMUNITY & SOUTHERN BANK.
    (771 SE2d 68)
   BARNES, Presiding Judge.

The trial court granted summary judgment to Community & Southern Bank (“Community Bank” or the “Bank”) on its claim for breach of a personal guaranty against Oscar Roberts III, and awarded the Bank damages in the principal amount of $667,486.02, plus accrued and “secondary” interest, late charges, contractual attorney fees, and post-judgment interest. On appeal, Roberts contends that the trial court erred in granting summary judgment to the Bank on the issue of his liability under the guaranty because the underlying debt was invalid as a matter of law, or, at a minimum, there were genuine issues of material fact as to its legal validity. Roberts also contends that the trial court erred in granting summary judgment to the Bank on the issue of damages because the Bank relied upon an inadmissible “summary’ of its business records to prove its damages, and because there was no evidence that the Bank was entitled to an award of “secondary’ interest. For the reasons discussed below, we affirm on condition that the damages awarded to Community Bank be reduced to eliminate “secondary” interest and the portion of contractual attorney fees that was predicated on the award of such interest.

Summary judgment is proper 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).

So viewed, the record shows that on June 30, 2009, Roberts executed a promissory note in favor of First National Bank of Georgia (“First National”) in the principal amount of $800,500 (the “Note”). The Note provided that the principal balance would be due on June 30, 2010. The Note also set forth the applicable interest rate and when interest would accrue, the basis for assessing late charges, and the method for calculating attorney fees in the event of collection efforts made after a default.

The Note identified the borrower as the estate of Roberts’s father (the “Estate”). The Note was signed by Roberts as attorney-in-fact for his mother, the executrix of the Estate. Roberts had conducted negotiations with First National over the terms of the loan for the Estate, and he represented to First National that he had authority to execute the Note on behalf of his mother in her capacity as executrix. Roberts believed that he had authority to act on behalf of his mother in her capacity as executrix based on a power of attorney that had been signed by her in which she named him as her attorney-in-fact (the “Power of Attorney”). Roberts showed the Power of Attorney to First National.

Upon execution of the Note, Roberts received the $800,500 loan from First National and used the money to purchase undeveloped real estate on behalf of the Estate. Although she was not present at the closing on the loan, Roberts’s mother knew that he had executed the Note and did not object to him borrowing money to buy property on behalf of the Estate.

On the same day that he executed the Note, Roberts executed a personal guaranty in favor of First National (the “Guaranty”). Roberts “absolutely and unconditionally guarantee^]” the Estate’s payment of the debt owed to First National as evidenced by the Note. Roberts further agreed in the Guaranty that his obligation to repay the debt owed by the Estate would “not be affected by the illegality, invalidity, or unenforceability of any notes or agreements evidencing the debt... or any other circumstances which make the indebtedness unenforceable against the borrower” and to waive “all defenses and claims that the borrower could assert,” except for payment in full.

In January 2010, First National closed, and the Federal Deposit Insurance Corporation (“FDIC”) was appointed as receiver for the failed bank. On January 29, 2010, the FDIC, in its capacity as receiver, transferred substantially all of the assets of First National, including all rights, title, and interest in and to the Note and Guaranty, to Community Bank pursuant to a “Purchase and Assumption Agreement.” Consequently, Community Bank is the current owner and holder of the Note and Guaranty.

The Estate ultimately defaulted on the Note, and Roberts did not make any payments to Community Bank on the Guaranty. Following the default, in December 2012, Community Bank brought the present suit on the Note and Guaranty against the Estate and Roberts, seeking the unpaid principal, accrued interest, “secondary interest,” late charges, contractual attorney fees, and post-judgment interest.

The Estate and Roberts answered, denying liability. Roberts admitted that he had executed the Note and Guaranty and that Community Bank had not been paid the outstanding balance on the Note. However, Roberts denied that Community Bank was entitled to recover for any alleged breach of the Note and Guaranty. According to Roberts, the Note was invalid because he had lacked the power to bind the Estate, and thus there was no enforceable contract obligating the Estate to repay the debt owed to Community Bank. Because there was no underlying enforceable debt obligation that had to be repaid to Community Bank, Roberts alleged that the Guaranty for that debt was likewise invalid.

In October 2013, Community Bank filed a motion for summary judgment against Roberts. The motion was supported by the affidavit of Mark Melnikoff, an officer in the Resolution Management Group for Community Bank (the “Melnikoff Affidavit” or “Affidavit”). In his Affidavit, Melnikoff averred that he had personal knowledge of the Estate’s account with Community Bank and of First National’s business records as now held by Community Bank. Melnikoff also referenced and sought to authenticate the following documents attached to his Affidavit: the Note, the Guaranty, the Power of Attorney, the Purchase and Assumption Agreement, a report of the loan history for the Note (the “Loan History Report”), and a payoff statement for the Estate’s account (the “Payoff Statement”). Melnikoff averred that upon review of those documents, the amount outstanding on the Note was $667,486.02 in principal; $31,538.42 in accrued interest; $84,040.55 in “secondary” interest; $40,197.33 in late charges; and interest accruing thereafter at the rate of 5 percent per year (amounting to $92.70 per day).

After a hearing on Community Bank’s motion, the trial court granted summary judgment in favor of the Bank and entered judgment against Roberts in the amounts specified in the Melnikoff Affidavit. This appeal followed.

1. In challenging the trial court’s grant of summary judgment to Community Bank on the issue of liability, Roberts contends that the court erred in concluding that, as a matter of law, he was obligated to repay the Note based on the Guaranty. According to Roberts, as guarantor of the Note, he is entitled to assert any defenses that are available to the Estate regarding the enforceability of the Note. And, Roberts argues, the Note is unenforceable as a matter of law, or, at a minimum, there is a genuine issue of material fact regarding its enforceability. Specifically, Roberts argues that the underlying debt and Note are invalid and unenforceable because he lacked power to bind the Estate, given that he was never appointed to serve as legal representative of the Estate by the probate court, and given that the Power of Attorney executed by his mother allegedly did not authorize him to act on her behalf in her capacity as executrix of the Estate. Roberts also argues that the Note is null and void because the probate court never authorized the Estate to borrow money.

We are unpersuaded by Roberts’s arguments because under the terms of the Guaranty, he expressly waived any defenses he may have had to the validity and enforceability of the underlying debt and Note. As pointed out by Roberts, the general rule is that, apart from certain personal defenses such as infancy, incapacity, or bankruptcy, a “guarantor may assert all defenses to a contract which would be available to his principal.” Thomasson v. Pineco, Inc., 173 Ga. App. 794, 795 (328 SE2d 410) (1985). But the general rule does not apply where the guarantor has waived his right to assert those defenses. Vickers v. Chrysler Credit Corp., 158 Ga. App. 434, 436-437 (1) (280 SE2d 842) (1981). As we have explained, “[a] guarantor may consent in advance to a course of conduct which would otherwise result in his discharge, and this includes the waiver of defenses otherwise available to a guarantor.” Baby Days, Inc. v. Bank of Adairsville, 218 Ga. App. 752, 755 (3) (463 SE2d 171) (1995). See HWA Properties v. Community & Southern Bank, 322 Ga. App. 877, 887 (2) (b) (746 SE2d 609) (2013). That is what occurred here.

In the Guaranty, Roberts agreed to the following:

OBLIGATIONS INDEPENDENT — I agree that I am obligated to pay according to the terms of this guaranty even if any other person has agreed to pay the borrower’s debt. My obligation to pay according to the terms of this guaranty shall not be affected by the illegality, invalidity, or unenforceability of any notes or agreements evidencing the debt, the violation of any applicable usury laws, forgery, or any other circumstances which make the indebtedness unenforceable against the borrower.

(Emphasis supplied.) Roberts further agreed:

WAIVER — I also waive, to the extent permitted by law, all notices, all defenses and claims that the borrower could assert, any right to require you to pursue any remedy or seek payment from any other person before seeking payment under this agreement, and all other defenses to the debt, except payment in full.

(Emphasis supplied.)

In light of these clear and unambiguous provisions of the Guaranty, Roberts waived his right to assert any defense available to the Estate pertaining to the illegality, invalidity, or unenforceability of the underlying debt and Note. Accordingly, the express terms of the Guaranty precluded Roberts from challenging the underlying debt and Note on the ground that he lacked authority to bind the Estate, or from arguing that the Note was invalid because the probate court never authorized the Estate to borrow money. The trial court therefore did not err in granting summary judgment to Community Bank on the issue of Roberts’s liability for the underlying debt and Note under the terms of the Guaranty. See, e.g., Community & Southern Bank v. DCB Investments, 328 Ga. App. 605, 613-614 (2) (760 SE2d 210) (2014) (defendants expressly waived any and all defenses to their liability for certain promissory notes); Heath v. Boston Capital Corporate Tax Credit Fund VIII, 253 Ga. App. 537, 539 (2) (559 SE2d 743) (2002) (defendants expressly waived in their guaranty any right to challenge the validity or enforceability of the underlying transaction giving rise to the guaranty agreement); Vickers, 158 Ga. App. at 438 (1) (waiver provision of guaranty precluded guarantor from raising defense that otherwise would have created “an issue of material fact precluding the grant of summary judgment”).

2. In challenging the grant of summary judgment to Community Bank on the issue of damages, Roberts contends that the Bank relied upon an inadmissible “summary” of its business records to prove its damages. In support of damages, Community Bank submitted the Melnikoff Affidavit. In his Affidavit, Melnikoff relied on, among other documents, an attached Loan History Report as the basis for his calculations and sought to authenticate it as a business record of Community Bank. Roberts argues, however, that the Loan History Report was a “summary’ that was inadmissible and could not be relied upon by Melnikoff because the underlying business records upon which it was based were never made available to him to review for their accuracy. We are unpersuaded because the trial court was entitled to find that the Loan History Report was a business record rather than a summary.

“Admissibility of evidence on motion for summary judgment is governed by the rules relating to form and admissibility of evidence generally.” (Citation and punctuation omitted.) Koules v. SP5 Atlantic Retail Ventures, LLC, 330 Ga. App. 282, 285 (2) (767 SE2d 40) (2014). “Affidavits purporting to establish the amount of a debt without accompanying business records, where appropriate, are insufficient” to sustain summary judgment. (Punctuation and footnote omitted.) Walter R. Thomas Assoc. v. Media Dynamite, 284 Ga. App. 413, 415 (1) (643 SE2d 883) (2007). Creating an exception to the hearsay rule for business records, Georgia’s new Evidence Code provides:

Unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness and subject to the provisions of Chapter 7 of this title, a memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses [is admissible], if (A) made at or near the time of the described acts, events, conditions, opinions, or diagnoses; (B) made by, or from information transmitted by, a person with personal knowledge and a business duty to report; (C) kept in the course of a regularly conducted business activity; and (D) it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness or by certification that complies with paragraph (11) or (12) of Code Section 24-9-902 or by any other statute permitting certification. . . .

OCGA § 24-8-803 (6). “It is within the trial court’s discretion to determine whether a proper foundation was laid for application of the business records exception to a particular document and whether the circumstances of the document’s preparation indicate trustworthiness.” United States v. Franco, 874 F2d 1136, 1139 (7th Cir. 1989). See OCGA § 24-1-104 (a).

Georgia’s new Evidence Code also allows for the admission of summaries of voluminous business records under certain circumstances. OCGA § 24-10-1006 provides in relevant part:

The contents of otherwise admissible voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at a reasonable time and place. . . .

As made clear by the plain language of the statute, one of the requirements for the admission of a summary is that the underlying records upon which the summary is based must be made accessible to the other parties for examination or copying. See Hanna v. First Citizen Bank & Trust Co., 323 Ga. App. 321, 328-329 (4) (744 SE2d 894) (2013). See also United States v. Bray, 139 F3d 1104, 1109-1110 (6th Cir. 1998) (discussing requirements for admission of a summary of records). “The purpose of this requirement is to provide the opposing party who desires to attack the authenticity or accuracy of [the] . . . summary . . . with an opportunity to prepare for cross-examination” or to offer other evidence in rebuttal. Id. at 1109.

Citing to Capital City Developers, LLC v. Bank of North Ga., 316 Ga. App. 624, 625-628 (1) (730 SE2d 99) (2012), Roberts contends that the Loan History Report was a summary rather than a business record. In Capital City Developers, the plaintiff bank moved for summary judgment against the defendant debtors and submitted the affidavit of the custodian of its business records in an effort to prove the amounts owed on the loan in question. Id. at 626 (1). Attached to the affidavit were “computer printouts listing the current balance, daily interest charges, late charges, and other fees” owed on the loan, which the custodian averred were business records of the bank. Id. We concluded, however, that the printouts were “summaries” of business records reflecting current amounts owed on the loan and were inadmissible because “crucial underlying business records related to fees and interest were not made available to” the court or the defendant debtors. Id. at 627 (1). Accordingly, we concluded that the trial court erred in considering the “summaries” in its determination of the amount owed on the loan and reversed the grant of summary judgment to the bank on the issue of damages. Id. at 628 (1).

Capital City Developers stands for the proposition that a document that simply lists the current balance, accrued interest, and fees owed on a bank loan at the time of the litigation is not a business record but rather a “summary.” See Hanna, 323 Ga. App. at 328 (4) (citing Capital City Developers and concluding that “a printout of a screen-capture listing the current balance, accrued interest, late charges, loan fees, and last payment” was a “summary” of current amounts owed rather than an original business record). In contrast, we have treated reports that provide a detailed transaction history of a loan as business records, not as summaries. See Dawson Pointe, LLC v. SunTrust Bank, 312 Ga. App. 338, 339 (718 SE2d 570) (2011) (trial court acted within its discretion in admitting “document setting forth the history of the loan” as a business record); Kensington Partners, LLC v. Beal Bank Nevada, 311 Ga. App. 196, 199 (3) (715 SE2d 491) (2011) (business records attached to affidavit of bank portfolio manager, including “payment history” for the loan, supported trial court’s grant of summary judgment to bank); Ishak v. First Flag Bank, 283 Ga. App. 517, 519 (642 SE2d 143) (2007) (trial court acted within its discretion in admitting “loan history report [that] itself included the effective date and the entered date for each of the transactions listed” as a business record) (punctuation omitted). Although these cases were decided under Georgia’s former Evidence Code, we discern no basis for departing from their logic here. Moreover, our treatment of loan or payment history reports as business records in those cases is consistent with the fact that the business records exception specifically allows for the admission of a “data compilation, in any form,” OCGA § 24-8-803 (6), and a trial court is entitled to exercise its discretion and find that such reports fall within the “data compilation” category of business records. See generally Rosenberg v. Collins, 624 F2d 659, 665 (5th Cir. 1980) (holding that “computer data compilations may be business records themselves, and should be treated as any other record of regularly conducted activity”); WGNX, Inc. v. Gorham, 185 Ga. App. 489, 490 (2) (a) (364 SE2d 621) (1988) (holding that “computer printout of a list of the dates on which the commercials [at issue] aired and the cost of each airing” was properly admitted as business record).

In contrast to the document at issue in Capital City Developers, the Loan History Report at issue here provided a description of each transaction relating to the Estate’s loan from its inception, along with a corresponding “posting date” for each transaction, the transaction amount, and any change to the principal balance resulting from the transaction. Thus, the Loan History Report, like the loan or payment history reports discussed in previous cases, was admissible as a business record. See Dawson Pointe, 312 Ga. App. at 339; Kensington Partners, 311 Ga. App. at 199 (3); Ishak, 283 Ga. App. at 519.

In reaching this conclusion, we reject Roberts’s additional argument that the Loan History Report must be treated as a summary, rather than as a business record, because some of the transactions listed on the report occurred when Community Bank’s predecessor, First National, owned the loan. According to Roberts, the fact that some of the transactions occurred when First National owned the loan means that the Loan History Report “is by definition a summary of some other party’s records of the transactions taking place during that time frame” and thus was inadmissible as a business record. But, as previously noted, the business record exception applies to “data compilations” such as loan or payment history reports prepared by a bank. And a successor bank can rely upon and integrate into its own business records its predecessor’s business records so long as a proper foundation is laid under OCGA § 24-8-803 (6). See Ware v. Multibank 2009-1 RES-ADC Venture, LLC, 327 Ga. App. 245, 249 (2) (758 SE2d 145) (2014). Roberts’s argument thus is misplaced, and the trial court properly admitted the Loan History Report as a business record of Community Bank rather than as a summary.

3. Lastly, Roberts contends that the trial court erred in granting summary judgment to Community Bank on the issue of damages because the Bank provided insufficient proof that, in addition to accrued interest, $84,040.55 in “secondary’ interest was owed on the underlying debt. Roberts maintains that the Note and other business records of Community Bank make no mention of and provide no basis for an award of “secondary” interest.

Community Bank concedes that the judgment should be reduced to eliminate the “secondary” interest and the portion of attorney fees predicated on the award of such interest. Accordingly, we affirm on condition that the trial court reduce the judgment to reflect the amount concededby Community Bank to be the correct sum. See AKA Mgmt. v. Branch Banking & Trust Co., 275 Ga. App. 615, 621 (3) (621 SE2d 576) (2005); English Restaurant v. A. R. II, Inc., 194 Ga. App. 639, 642 (3) (391 SE2d 462) (1990).

Decided March 19, 2015

Smith Conerly, Charles S. Conerly, David A. Luzum, for appellant.

Thompson, O’Brien, Kemp & Nasuti, Bret T. Thrasher, William J. Shaughnessy, Shadrix Lane, Charles M. Lane, for appellee.

Judgment affirmed on condition.

Boggs and Branch, JJ., concur.

       Community Bank also moved for summary judgment against the Estate. Because Roberts’ mother, the former executrix of the Estate, had died and a new legal representative had not yet been appointed, Community Bank withdrew its motion against the Estate.

       Because Community Bank filed its motion for summary judgment in October 2013, Georgia’s new Evidence Code applies. See Ga. L. 2011, p. 99, § 101 (new Evidence Code “shall become effective on January 1, 2013, and shall apply to any motion made or hearing or trial commenced on or after such date”).

       “Given the similarity between Georgia’s new [Ejvidence [Cjode and the Federal Rules of Evidence it is proper that we give consideration and great weight to constructions placed on the Federal Rules by the federal courts.” (Citation and punctuation omitted.) Williams v. State, 328 Ga. App. 876, 879 (1), n. 14 (763 SE2d 261) (2014).

       Although the admissibility of summaries is now codified in OCGA § 24-10-1006, Georgia applied a similar rule before adoption of the new Evidence Code. See, e.g., Stewart v. State, 246 Ga. 70, 73-74 (3) (268 SE2d 906) (1980); Capital City Developers, LLC v. Bank of North Ga., 316 Ga. App. 624, 627 (1) (730 SE2d 99) (2012); Morris v. Nat. Western Life Ins. Co., 208 Ga. App. 443, 444 (1) (c) (430 SE2d 813) (1993).

       In the trial court and on appeal, Roberts’s argument has been that the Loan History Report is a “summary” on its face; Roberts has never addressed or provided any legal argument regarding the sufficiency of the foundation laid by Melnikoff for the admission of the Loan History Report as a business record of Community Bank. Any potential arguments that could have been raised by Roberts regarding the sufficiency of the foundation for the admission of the Loan History Report as a business record thus have been waived. See Craig v. Bailey Bros. Realty, 304 Ga. App. 794, 798 (2), n. 3 (697 SE2d 888) (2010) (arguments opposing summary judgment not raised in trial court will not be considered on appeal); Rolleston v. Estate of Sims, 253 Ga. App. 182, 188 (8) (558 SE2d 411) (2001) (argument abandoned on appeal if not properly supported by citation to legal authorities or to the record).

       In the same enumeration of error, Roberts argues that the Payoff Statement attached to the Melnikoff Affidavit constituted an inadmissible summary rather than a business record and that the trial court erred in considering it. We need not resolve whether the Payoff Statement was admissible because the same pertinent information contained in it could be gleaned by the trial court from the Loan History Report. Hence, any error by the trial court in considering the Payoff Statement as part of the record on summary judgment was harmless. See Pruette v. Phoebe Putney Memorial Hosp., 295 Ga. App. 335, 339 (1), n. 5 (671 SE2d 844) (2008) (trial court’s consideration of allegedly inadmissible evidence was harmless where it was cumulative of other admissible evidence). Furthermore, even if the Payoff Statement and the portion of the Melnikoff Affidavit that relied upon it were inadmissible, that fact would not invalidate the remaining portions of the Affidavit. See Ware, 327 Ga. App. at 250 (2).


source: Caselaw Access Project

author: Boggs, Judge.

license: Public Domain

text:
    A14A2279, A14A2280.
    CHADWICK et al. v. BRAZELL; and vice versa.
    (771 SE2d 75)
   Boggs, Judge.

A jury awarded Lisa M. Brazell $125,000 on her medical malpractice claim against Brian S. Chadwick, M.D., and Haven Gynecology, P.C., d/b/a Haven Medical Spa & Cosmetic Surgery (hereinafter “Chadwick”). In Case No. A14A2279, Chadwick appeals, asserting that the trial court erred in failing to grant his motion in limine to exclude mention of Brazell’s punitive damages claim and by failing to grant his motion for attorney fees pursuant to OCGA § 9-11-68. In Case No. A14A2280, Brazell appeals, asserting that the trial court erred in allowing Chadwick to testify as an expert witness, and in refusing to award her attorney fees pursuant to OCGA §9-15-14. She also asserts that the court erred in failing to order a new trial in light of what she alleges was Chadwick’s impermissible expert testimony and because the jury’s verdict was against the weight of the evidence. For the following reasons, we affirm in both cases.

In her complaint, Brazell alleged that Chadwick negligently: performed her breast implant surgery and did not have the proper education, training and skills to do so; failed to obtain consultation and referral for performance of the procedure and for management of post-operative complications; failed to disclose to her the material risks of the surgery and failed to obtain her informed consent for the procedure; failed to recognize and properly treat her non-healing surgical wound when the implant began to protrude through her skin; re-sutured the non-healing skin instead of promptly removing the implant and placing a drain; prematurely reinserted the implant a month later and attempted to improperly use the implant as a tissue expander; and failed to allow eight weeks to three months for healing before placement of a tissue expander or another implant. After suffering further complications, Brazell sought the help of another physician who removed the implant. Brazell alleged that she “suffered loss of tissue and asymmetry and would require at least two reconstructive procedures, including placement of a breast implant into the left breast at a future time.”

Brazell sued Chadwick for medical malpractice and sought compensatory and punitive damages. Following a five-day trial, a jury awarded Brazell $125,000 in “total damages.” The trial court entered a judgment on the verdict, and the parties now appeal.

Case No. A14A2279

1. Chadwick argues that the trial court erred in failing to grant his motion in limine to preclude Brazell from making any mention of her request for punitive damages. However the record contains only an excerpt of a motion hearing during the trial that reveals Brazell withdrew her claim for punitive damages following the close of all evidence. Chadwick can show neither error nor harm in the absence of a transcript of the trial showing that punitive damages were mentioned during the trial. See Gaddis v. Skelton, 226 Ga. App. 325, 326 (486 SE2d 630) (1997). It was Chadwick’s obligation as the appellant to show error in the record, and he has failed to do so here. See id.

2. Chadwick contends that the trial court erred in denying his motion for attorney fees pursuant to OCGA § 9-11-68. OCGA § 9-11-68 (b) (1) provides:

If a defendant makes an offer of settlement which is rejected by the plaintiff, the defendant shall be entitled to recover reasonable attorney’s fees and expenses of litigation incurred by the defendant or on the defendant’s behalf from the date of the rejection of the offer of settlement through the entry of judgment if the final judgment is one of no liability or the final judgment obtained by the plaintiff is less than 75 percent of such offer of settlement.

The offer must:

(1) Be in writing and state that it is being made pursuant to this Code section;
(2) Identify the party or parties making the proposal and the party or parties to whom the proposal is being made;
(3) Identify generally the claim or claims the proposal is attempting to resolve;
(4) State with particularity any relevant conditions;
(5) State the total amount of the proposal;
(6) State with particularity the amount proposed to settle a claim for punitive damages, if any;
(7) State whether the proposal includes attorney’s fees or other expenses and whether attorney’s fees or other expenses are part of the legal claim; and
(8) Include a certificate of service and be served by certified mail or statutory overnight delivery in the form required by Code Section 9-11-5.

OCGA § 9-11-68 (a). (Emphasis supplied.) “We owe no deference to a trial court’s ruling on questions of law and review such issues de novo under the ‘plain legal error’ standard of review.” (Citation and punctuation omitted.) L. P. Gas Indus. Equip. Co. v. Burch, 306 Ga. App. 156, 157, n. 3 (701 SE2d 602) (2010), overruled on other grounds, Crane Composites, Inc. v. Wayne Farms, LLC, 296 Ga. 271 (765 SE2d 921) (2014).

The record reveals that Chadwick made an offer of settlement in the amount of $200,000, and that Brazell rejected the offer. The jury returned a verdict in favor of Brazell in the amount of $125,000, which was less than 75 percent of Chadwick’s offer. The trial court, in denying Chadwick’s motion for attorney fees and expenses pursuant to OCGA § 9-11-68, found that Chadwick failed to “satisfy each of the eight requirements in order to trigger its application.” Specifically, the trial court found that Chadwick failed to “state with particularity the amount proposed to settle a claim for punitive damages.”

Chadwick argues, on the same grounds asserted in his first enumeration, that there was no punitive damages claim pending at the time he made his offer. But the record shows that punitive damages was listed as an issue to be tried in the pretrial order and in the complaint.

Chadwick argues further that even if a punitive damages claim was technically pending, requiring him to state that he was “allocating] zero dollars” to settle such a claim would be a “meaningless statement” and “nonsensical.” He asserts that the phrase “if any” in OCGA § 9-11-68 (a) (6) modifies “amount,” and he is therefore “free to choose not to allocate an amount to settle the punitive damages claim.”

It is, of course, fundamental that the cardinal rule to guide the construction of laws is, first, to ascertain the legislative intent and purpose in enacting the law, and then to give it that construction which will effectuate the legislative intent and purpose. Although the legislative intent prevails over the literal import of words [,] where a constitutional provision or statute is plain and susceptible of but one natural and reasonable construction, the court has no authority to place a different construction upon it, but must construe it according to its terms. In other words the language being plain, and not leading to absurd or wholly impracticable consequences, it is the sole evidence of the ultimate legislative intent.

(Citations and punctuation omitted.) Van Dyck v. Van Dyck, 262 Ga. 720, 721 (425 SE2d 853) (1993). In order to dismiss a tort claim pursuant to an offer of settlement, the offer must contain certain elements. See Thompson v. Watson, 186 Ga. 396, 405-406 (197 SE 774) (1938) (“it has always been a rule of construction of statutes that those in derogation of the common law, that is those which give rights not had under the common law, and those penal in nature must be limited strictly to the meaning of the language employed”); cf. Great West Cas. Co. v. Bloomfield, 303 Ga. App. 26, 27-28 (1) (693 SE2d 99) (2010); Driscoll v. Board of Regents of the Univ. System of Ga., 326 Ga. App. 315, 316-318 (757 SE2d 138) (2014) (ante litem notice of claim must contain enumerated statutory elements). Because the legislature chose to include in the list of requirements for a valid written offer a specific reference to punitive damages, the phrase “if any” could reasonably be interpreted only as modifying “a claim for punitive damages,” which is the antecedent for the modifier. If there is no claim for punitive damages, a party can ignore the requirement of subsection (a) (6). But if there is a claim for punitive damages, the written offer must include the amount proposed to settle that claim with particularity. Because Brazell asserted a claim for punitive damages, and such claim was pending at the time the offer was made, Chadwick was required to state with particularity the amount proposed to settle that claim, which he failed to do. His offer therefore did not meet the requirements of OCGA § 9-11-68 (a), and the trial court did not err in ruling that he could not recover attorney fees for an offer of settlement pursuant to that Code section.

Case No. A14A2280

3. Brazell argues that the trial court erred in denying her motion in limine to prevent Chadwick from testifying “as an expert witness and to provide opinion testimony when [he] could not meet the relevant requirements of [the] Georgia Rules of Evidence,” OCGA § 24-7-702 (c). OCGA § 24-7-702 (a) provides in part: “The opinion of a witness qualified as an expert under this Code section may be given on the facts as proved by other witnesses.” Subsection (b) provides in part:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise [.] . . .

Subsection (c) provides:

Notwithstanding the provisions of subsection (b) of this Code section and any other provision of law which might be construed to the contrary, in professional malpractice actions, the opinions of an expert, who is otherwise qualified as to the acceptable standard of conduct of the professional whose conduct is at issue, shall be admissible only if

the expert meets certain qualifications.

Brazell argues that because Chadwick did not and could not meet the qualifications to testify as an expert, he should not have been allowed to give testimony about whether he met the appropriate standard of care. While we can find no case law addressing whether OCGA § 24-7-702 applies to a defendant physician, we hold that it does not.

The following language of OCGA § 24-7-702 (c) suggests that the legislature intended the qualification requirement to apply to a third-party expert, not a defendant physician: “the opinions of an expert, who is otherwise qualified as to the acceptable standard of conduct of the professional whose conduct is at issue.” (Emphasis supplied.) In other words, the qualified third-party expert is expected to testify to the standard of conduct of the professional defendant. As explained in Parker v. Knight, 245 Ga. 782, 782 (2) (267 SE2d 222) (1980), it is the plaintiff who must produce expert testimony to prevail at trial in a medical malpractice action.

[T]he professional defendant may defend by asserting that in his treatment of the plaintiff, he complied with the specific standard of care in the profession; and if he does so, giving his own expert opinion or any others, then in order to prevail the plaintiff at the minimum must counter that expert opinion with a contrary expert opinion in her behalf, so as to create an issue of fact for a jury.

Loving v. Nash, 182 Ga. App. 253, 255 (1) (355 SE2d 448) (1987).

Brazell argues that Loving and Parker were decided prior to the tort reform revision in OCGA § 24-7-702, and that the statute now requires all experts to qualify according to its provisions. But even prior to the effective date of OCGA § 24-7-702 in 2013, and its predecessor OCGA § 24-9-67.1 in 2005, Georgia law allowed the trial court to determine within its sound discretion whether “a witness has such learning and experience in a particular art, science or profession as to entitle him to be deemed prima facie an expert.” (Citations and punctuation omitted.) Redd v. State, 240 Ga. 753, 755 (2) (243 SE2d 16) (1978). And we find no authority under the law prior to tort reform requiring a defendant physician to meet any qualifications as an expert in order to testify in his own defense.

4. Brazell argues that the trial court erred in denying her motion for new trial in which she asserted that the jury’s verdict was “contrary to the evidence and the principles of justice and/or decidedly against the weight of evidence” pursuant to OCGA §§ 5-5-20 and 5-5-21. She argues that the verdict of $125,000 was “so inadequate or so excessive as to be inconsistent with the preponderance of the evidence,” see OCGA § 51-12-12 (a), and that the trial court should have granted her a new trial pursuant to OCGA § 51-12-12 (b), or increased the jury’s award of damages. She suggested to the court that “a judgment in the range of $400,000 to $600,000 more accurately reflects the true injuries and damages” that she sustained.

An inadequate verdict

is a mistake of fact rather than of law and addresses itself to the discretion of the trial judge who, like the jury, saw the witnesses and heard the testimony. Absent compelling evidence, an appellate court will not disturb the presumption of correctness that is created by the trial court’s approval of the verdict.

(Citations omitted; emphasis in original.) Anderson v. L &R Smith, Inc., 265 Ga. App. 469, 472 (3) (594 SE2d 688) (2004). The trial court, in denying Brazell’s motion for new trial, found that the evidence showed Brazell’s past medical expenses amounted to $6,178, her future medical expenses were in the range of $34,000 to $77,000, and that Brazell “did not provide the jury with a numerical guide in her closing argument and rested on the standard for its measure of damages, that being the enlightened conscience of an impartial jury.”

To support this claim of error, Brazell cites to the deposition testimony of her experts and defense counsel’s closing argument. But we are unable to properly review this claim of error in the absence of the full transcript of the evidence presented at trial from which the jury considered what it deemed to be the appropriate amount of damages.

In the absence of a trial transcript, there is nothing to review, and we cannot determine if the verdict is [inadequate], because the trial record does not provide a complete record of what transpired in the trial of the case .... Where all of the evidence is not before the appellate court in a transcript of the evidence, the judgment is assumed to be correct.

(Citations and punctuation omitted.) Wells Fargo Home Mtg. v. Cook, 267 Ga. App. 368, 369 (1) (599 SE2d 319) (2004) (question of damages cannot be determined absent a trial transcript from which all evidence may be evaluated in light of the verdict).

5. Brazell argues that the trial court erred in denying her motion for attorney fees and costs pursuant to OCGA § 9-15-14. “We review a trial court’s ruling on an OCGA § 9-15-14 (a) motion for attorney fees under the ‘any evidence’ standard; if any evidence exists to support the trial court’s denial of the motion, it must be affirmed.” Kilgore v. Sheetz, 268 Ga. App. 761, 770 (2) (603 SE2d24) (2004). And the “denial of attorney fees and costs under OCGA § 9-15-14 (b) is discretionary; therefore, the standard of review is abuse of discretion.” Head v. Head, 234 Ga. App. 469, 477-478 (4) (507 SE2d 214) (1998).

Brazell asserts that because Chadwick contended in the pre-trial order that he acted at all times within the standard of care, but then at trial “admitted for the first time that his actions were below the standard of care,” his defense lacked any justiciable issue of law or fact, and she is therefore entitled to attorney fees pursuant to OCGA § 9-15-14 (a), and also entitled to fees pursuantto OCGA § 9-15-14(b) because part of Chadwick’s conduct justified them. In denying her motion, the trial court found that Chadwick’s admission that some of his treatment of Brazell fell below the standard of care

related only to the post-operative care and treatment provided by [Chadwick]. . . . [Chadwick] denied that any of his care and treatment of [Brazell] proximately caused [her] injuries. While [Chadwick] admitted in opening statements to certain allegations of negligence related to post-operative care and treatment, the Court finds that such admission did not rise to the level of showing that the defense lacked complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted defense or that the defense lacked substantial justification such that it was substantially frivolous, substantially groundless, or substantially vexatious.

The record before us does not include a full transcript of the trial. Brazell requested only certain portions of the trial transcript in her notice of appeal. Nevertheless, the trial testimony of Chadwick reveals some evidence to support the trial court’s denial of fees pursuant to OCGA § 9-15-14 (a). And, we cannot say that the court abused its discretion in denying Brazell an award pursuant to OCGA § 9-15-14 (b) upon finding Chadwick’s defense was not substantially frivolous, substantially groundless, or substantially vexatious. While Chadwick testified that he should have removed the breast implant when it became exposed rather than suture the opening, and agreed that re-inserting the implant “was not an appropriate treatment for [Brazell] at [that] point in time” and “fell below the standard of care,” he testified further that he met the standard of care in his performance of the original breast augmentation surgery and that “implant extrusion” (the implant protruding from the skin) is a known rare complication that occurs in “less than one percent” of breast augmentation patients. Chadwick explained further that when Brazell contacted him to tell him that a “hole” had “opened up” in her breast on December 23, 2009, she explained that the hole had been there for ten days, and that she did not come and see him upon first discovering it because it was “tough [for her] to get out of work.” He also testified that at that time, he instructed her to come to his office the next day on December 24, 2009, but that she did not come to see him until after Christmas and “declined removal of the implant.” Chadwick explained that he did not initially think he had violated the standard of care in his post-operative treatment of Brazell and asserted that he did not in his deposition, but that “he changed his mind” after reading the depositions of three other experts, and in retrospect believed that he should have removed the implant instead of suturing the opening.

Decided March 19, 2015.

Freeman, Mathis & Gary, Michael D. Flint, Laura L. Broome, for appellants.

DelCampo Weber & Grayson, J. Antonio DelCampo, Randall D. Grayson, Roberts & Associates, Lisa R. Reeves, for appellee.

Because there was evidence to support the trial court’s finding that Chadwick’s admissions did not rise to the level of showing a complete absence of any justiciable issue of law or fact, and that his defense was not substantially frivolous, we must affirm the court’s denial of fees pursuant to OCGA § 9-15-14 (a) and (b). See Kilgore, supra, 268 Ga. App. at 770 (2); see also Rescigno v. Vesali, 306 Ga. App. 610, 615-616 (4) (703 SE2d 65) (2010) (trial court did not abuse its discretion in denying attorney fees where there was some evidence from which jury was authorized to find wrongful eviction but did not).

Judgments affirmed.

Barnes, R J., and Branch, J., concur.

       The parties requested that only excerpts from the trial he included in the record on appeal: an excerpt of the motion in limine filed by Chadwick, an excerpt of post-trial motions, an excerpt of Chadwick’s trial testimony, and an excerpt of his defense counsel’s closing argument.

       Several grounds provide support for the legislature’s decision to require a written offer of settlement to include punitive damages separately and specifically. Punitive damages are “awarded not as compensation to a plaintiff but solely to punish, penalize, or deter a defendant.” See OCGA § 51-12-5.1 (c). Such damages cannot be recovered under uninsured motorist insurance, see Carter v. Progressive Mountain Ins., 295 Ga. 487, 489 (761 SE2d 261) (2014), may be excluded from a general liability insurance policy, see Ga. Baptist Children’s Homes & Family Ministries v. Essex Ins. Co., 207 Ga. App. 346, 350 (3) (427 SE2d 798) (1993), and are taxable as gross income, see generally O’Gilvie v. United States, 519 U. S. 79, 81 (117 SCt 452, 136 LE2d 454) (1996).

       We note that the trial court also has discretion to disallow a fee award pursuant to OCGA § 9-11-68 where a party did not make its offer in good faith. See generally Great West Cas. Co. v. Bloomfield, 313 Ga. App. 180, 181-182 (1) (721 SE2d 173) (2011).

       Contrary to Brazell’s argument here, those cases do not reflect that the defendant physician had already been qualified as an expert.

       We are also doubtful that Brazell would be able to show harm from any error in the admission of Chadwick’s testimony concerning the standard of care. In the absence of a full transcript of the trial, we would not be able to determine whether any similar evidence was admitted rendering Chadwick’s testimony cumulative. Additionally, even if this court were presented with the full transcript of the trial, we are uncertain as to how Brazell could show harm in the face of a verdict in her favor.

       OCGA § 5-5-20 provides: “In any case when the verdict of a jury is found contrary to evidence and the principles of justice and equity, the judge presiding may grant a new trial before another jury.” And OCGÁ § 5-5-21 provides: “The presiding judge may exercise a sound discretion in granting or refusing new trials in cases where the verdict may be decidedly and strongly against the weight of the evidence even though there may appear to be some slight evidence in favor of the finding.”

       This Code section provides:
      If the jury’s award of damages is clearly so inadequate or so excessive as to any party as to he inconsistent with the preponderance of the evidence, the trial court may order a new trial as to damages only, as to any or all parties, or may condition the grant of such a new trial upon any party’s refusal to accept an amount determined by the trial court.

       OCGA § 9-15-14 (a) provides in part:
      In any civil action in any court of record of this state, reasonable and necessary attorney’s fees and expenses of litigation shall he awarded to any party against whom another party has asserted a claim, defense, or other position with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim, defense, or other position.. . .
      Subsection (b) provides in part:
      The court may assess reasonable and necessary attorney’s fees and expenses of litigation in any civil action in any court of record if, upon the motion of any party or the court itself, it finds that an attorney or party brought or defended an action, or any part thereof, that lacked substantial justification or that the action, or any part thereof, was interposed for delay or harassment, or if it finds that an attorney or party unnecessarily expanded the proceeding by other improper conduct, including, but not limited to, abuses of discovery procedures available under Chapter 11. . . . As used in this Code section, “lacked substantial justification” means substantially frivolous, substantially groundless, or substantially vexatious.

       Pursuant to the pretrial order, the jury was to determine whether Chadwick’s performance of the breast augmentation surgery was within the appropriate standard of care; whether he properly advised Brazell of the risks associated with the surgery; whether his post-operative treatment of Brazell, including but not limited to his suturing of the wound once the breast implant was exposed, his removal and reinsertion of the exposed implant and his closure of the wound without a drain, fell within the appropriate standard of care; whether his treatment of Brazell was the proximate cause of her damages; the appropriate amount of damages suffered by Brazell; whether his treatment of her was grossly negligent so as to justify the award of punitive damages, or was willful and malicious; the amount of punitive damages that should be assessed; whether any apportionment should be considered, and, if so, to what effect and in what amount.


author: McMillian, Judge.

text:
    A14A2299.
    BARNES v. THE STATE.
    (771 SE2d 82)
   McMillian, Judge.

Melvin W. Barnes appeals the denial of his motion to withdraw his guilty plea. In his sole enumeration of error, Barnes asserts that the trial court erred in denying his motion to withdraw his guilty plea, which he contends was only entered due to the ineffective assistance of his trial counsel. Finding no error, we affirm.

“After sentence is pronounced, whether to allow the withdrawal of a guilty plea lies within the trial court’s sound discretion, and we review the trial court’s decision for manifest abuse of that discretion.” (Citation and punctuation omitted.) Bailey v. State, 313 Ga. App. 824, 824-825 (723 SE2d 55) (2012). And, “the trial court is the final arbiter of all factual issues raised by the evidence.” (Citation and punctuation omitted.) Id. at 825. Where a defendant who pleads guilty seeks to overturn his conviction on the basis of a claim of ineffective assistance of counsel, he must show both that counsel’s performance was deficient and that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial. See, e.g., Johnson v. State, 307 Ga. App. 853, 855 (706 SE2d 201) (2011).

The record shows that Barnes was charged with two counts of aggravated child molestation, one count of aggravated sexual battery, one count of statutory rape, three counts of child molestation, and one count of sexual battery arising from Barnes’ contact with a thirteen-year-old girl. The evidence against Barnes included two written confessions. The first was written by Barnes, who was 33 years old at the time, and stated, “It started, we were sitting on the couch and we were talking about her girl friend and I just asked her if she wanted to try it and that’s when the full intercourse happened. I did not use protection.” The second confession, which was written by an investigator but signed by Barnes read:

I was at [D. B.]’s house, f] I would stay there off and on and I had been there about a week and a half this time. I knew [D. B.] from high school when we dated. Thursday night I was sitting on the couch with [D. S. B.] and she was telling me about her girl friend. She had told me she liked the girl but did not say who she was. [D. S. B.] said she had just talked to her on the phone. I asked [D. S. B.] if she had ever wondered what it was like to be with a boy. She said yes. I started to perform oral sex on her because I told her I did not want to go all the way. I asked her if she wanted me to go all the way and she said yes. I was talking about putting my penis in her vagina. I got on top [of] her on the couch in the living room. After just a few seconds I felt guilty about what I was doing so I stopped. Nothing else happened after that. We put our clothes back on and sat on the couch. Some time later her mother got home. Tonight [D. B.] found out what happened and I admitted to her what happened and asked them to call the police because I wanted to try and make up for what I have done. I was wrong and I am sorry for what I have done. I am not under the influence of any drugs or alcohol. This statement is true and correct. I have not been made promises and no threats have been made against me.

On January 24, 2011, Barnes entered a guilty plea to one count of statutory rape and two counts of child molestation, and the State agreed to nolle prosse the remaining charges. On February 22,2011, Barnes filed, pro se, a motion for plea withdrawal, alleging ineffective assistance of counsel. The trial court held a hearing on March 8,2011, at which time Barnes announced that he had discharged his trial counsel. Barnes proceeded pro se, calling his trial counsel to testify and taking the stand himself.

At the hearing, both trial counsel and Barnes testified as to Barnes’ claim that he had been a “meth cook” for the people he had been staying with in a house. According to Barnes, when he tried to leave, the people beat him up and told him that if he did not say he was guilty of child molestation, they would continue to beat him up. And it was because of this threat that he ran to a neighbor’s house to call police and later confessed. Trial counsel testified that she believed both of Barnes’ confessions would be admitted at a trial and feared that the jury could find him guilty of aggravated child molestation or aggravated sexual battery, each of which carries a minimum mandatory 25-year sentence. She also explained that although there were some problems with the State’s case, she had tried many cases over the course of ten years and had seen “juries come back guilty on less than a confession.” She felt that it was her fear that Barnes would be convicted and sentenced to 25 years without the possibility of a split sentence that led Barnes to plead guilty. The trial court denied the motion on March 11, 2011 and subsequently sentenced Barnes to 20 years, with 12 years in confinement and the balance on probation, on each count, to run concurrently.

However, on August 15,2013, following Barnes’ filing of a habeas corpus petition, the Superior Court of Bibb County vacated the trial court’s order denying the motion for plea withdrawal on the grounds that (1) Barnes had been denied the right to either have appointed counsel or to knowingly and voluntarily waive his right to counsel and (2) he had been denied the right to be advised that he could directly appeal the trial court’s denial of his motion. Barnes was then appointed new counsel who filed a second motion to withdraw guilty plea on October 23, 2013.

A new hearing was held, and trial counsel again testified. This time, she stated that she met with Barnes several times while he was in custody and explained to him that the jury was much more likely to believe that he had been beaten up by the people in the house because he had molested the victim rather than because he was their meth cook and wanted to leave. She also reiterated that she had been trying cases “a very long time and... [had] seen people get convicted on far less evidence than a confession” and that she “tried to give the objective viewpoint of what a jury might see.” On cross-examination, trial counsel agreed that she gave Barnes her professional opinion and legal advice as to what he ought to do based on her investigation of the case and made no threats or promises to him. The trial court denied the second motion to withdraw the guilty plea on January 30, 2014, finding that trial counsel was experienced and diligent and concluding that Barnes had failed to carry his burden to show that trial counsel was ineffective. The trial court further found that counsel “did everything she could to develop [the] evidence and evaluated it, strengths and weaknesses, and certainly confessions are strong and powerful. And she gave Mr. Barnes her best advice.”

On appeal, Barnes argues that his trial counsel was ineffective because she failed to properly prepare for trial when she failed to interview “the key witness that could exculpate him,” and thus he was forced to either plead guilty or proceed to trial with counsel who was unprepared. This key witness was apparently a woman who may have been in the house the night of the incident; however, Barnes has presented no evidence, and we find none in the record, to establish who the witness was, whether or not she was available to testify, what her testimony would have been, or how she was “key” to his defense. Thus, he cannot establish ineffective assistance of counsel on this ground. See Heard v. State, 296 Ga. 681 (769 SE2d 917) (2015) (where appellant asserted that counsel failed to investigate the owner of a cell phone found at the crime scene but failed to produce the cell phone or make any proffer as to what further investigation would have uncovered, he cannot establish ineffective assistance of counsel). See also White v. State, 293 Ga. 825, 827-828 (2) (c) (750 SE2d 165) (2013) (“Having failed to make any evidentiary showing as to what the contents of the phone records would reveal, appellant cannot establish a valid claim of ineffective assistance of counsel” for failure to investigate the records).

Moreover, trial counsel testified that she prepared for and investigated the case. “Concerning the adequacy of investigations, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary, with deference given to counsel’s judgment.” (Citation and punctuation omitted.) Wright v. State, 292 Ga. 825, 827 (2) (742 SE2d 468) (2013). Here, trial counsel listened to the 911 call, reviewed Barnes’ two written statements, reviewed the victim’s multiple forensic interviews, listened to the interviews of other witnesses, and investigated the man Barnes accused of beating him up. And with respect to the woman Barnes wanted her to interview, trial counsel testified that because the woman was asleep in another room of the house and the victim denied ever crying out for help, she explained to Barnes that the witness’s testimony would not be helpful. Because Barnes has failed to establish that his counsel’s performance was deficient, we need not address whether Barnes would have entered a guilty plea had his counsel interviewed the woman. See Culmer v. State, 282 Ga. 330, 333 (3) (647 SE2d 30) (2007) (appellate courts are not required to address both the deficient performance and prejudice prongs of the test if the defendant has made an insufficient showing on either of them); Haynes v. State, 326 Ga. App. 336, 342 (3) (756 SE2d 599) (2014) (same).

Based on the record before us, we find the trial court did not abuse its discretion in denying Barnes’ motion to withdraw his guilty plea. See Allen v. State, 277 Ga. 711, 712 (3) (593 SE2d 662) (2004) (no ineffective assistance where trial counsel testified that he deliberately decided not to contact potential witnesses due to their lack of credibility and lack of any direct knowledge of the crimes). See also Sallins v. State, 289 Ga. App. 391, 393 (1) (657 SE2d 309) (2008) (no ineffective assistance where trial counsel testified he thoroughly reviewed discovery, was provided with no information for witnesses who might help the defendant, and the victim would have identified defendant); Brigman v. State, 282 Ga. App. 481, 487 (4) (639 SE2d 359) (2006) (finding no ineffective assistance where trial counsel testified he chose not to pursue other witnesses as a matter of strategy).

Decided March 19, 2015.

G. Brandon Sparks, for appellant.

Herbert M. Poston, Jr., District Attorney, Susan L. Franklin, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       D. B. is the mother of the victim, D. S. B.

       The record shows that both trial counsel and the trial court carefully explained the process to Barnes and confirmed that he understood the sentencing ranges on each of the charges and all of the pertinent rights he would waive upon entering a guilty plea, including the ability to present any defenses to the charges.

       On cross-examination, Barnes admitted he never told police about these threats when they arrived in response to his 911 call or when he gave either of his confessions while in custody.

       See OCGA §§ 16-6-22.2 (c); 17-10-6.1 (b) (2).

       Barnes initially asked to have his original trial counsel represent him at the sentencing hearing, but the trial court continued the hearing and appointed conflict counsel to represent him at a later sentencing hearing.

       Barnes also admitted at the hearing that he listened to his trial counsel explain what the evidence would be and decided to follow her advice and plead guilty to the nonaggravated charges.

       She also requested a psychological evaluation for Barnes, which was performed and revealed that Barnes was competent.

       She was not permitted to speak with the victim or her mother.


author: Miller, Judge.

text:
    A14A2330.
    COWAN et al. v. CARILLO et al.
    (771 SE2d 86)
   Miller, Judge.

After their minor childrenE. G. andY. G. were bitten by a pit bull, Rafaela Carillo and Ernesto Gurrola (collectively, “the Plaintiffs”) filed suit against Daniel Cowan and Sarah Arechiga, the owners of the dog. The trial court granted partial summary judgment to the Plaintiffs, finding that there was no material question of fact as to whether the dog was properly restrained under OCGA § 51-2-7. A jury then returned a verdict in favor of the Plaintiffs. Cowan and Arechiga appeal, contending that the trial court erred in finding that they were negligent under OCGA § 51-2-7 and by instructing the jury that the only issue for determination was damages, because the trial court had only granted partial summary judgment to the Plaintiffs as to one element of their cause of action. Cowan and Arechiga also contend that the jury’s calculation of damages was not supported by the evidence. We reverse because the trial court erred by removing the question of whether the defendants carelessly managed the dog from the jury’s consideration.

Viewed in the light most favorable to the jury’s verdict, the trial evidence shows that the Plaintiffs rented Unit 2-B of an apartment duplex in Lilburn, and Cowan and Arechiga rented Unit 2-A next door. The units shared a common front yard. Shortly after moving in, the Plaintiffs discovered that Cowan and Arechiga owned a pit bull. The Plaintiffs would see the pit bull outside the apartment, sometimes unrestrained, and the dog would growl at them. One time, when the dog escaped, Arechiga had to run after it. The Plaintiffs complained to their landlords about the pit bull because they felt unsafe, and they brought their children inside when they saw the dog.

On February 27, 2011, E. G. and Y. G. were playing outside, and E. G. returned home to get a drink of water. At the time, Cowan had two guests at the apartment who had gone outside to smoke. Cowan’s guests had failed to properly shut the apartment’s front door, and the pit bull was able to get out of the apartment. After drinking some water, E. G. ran out of the front of his apartment, and the pit bull then attacked him. Arechiga, who had just returned home, attempted to control the pit bull and yelled for Cowan to come outside to control the dog. The pit bull took off running and subsequently bit Y. G. The children were taken to a hospital for their injuries.

After the Plaintiffs filed the instant suit, they moved for partial summary judgment on the ground that the pit bull was a vicious or dangerous animal under OCGA § 51-2-7 because it was not properly restrained as required by local county ordinances. The trial court granted the Plaintiffs’ motion, finding that there was no genuine issue of material fact as to whether the pit bull was properly restrained. The trial court’s order was not appealed, and the case proceeded to trial.

Following the presentation of evidence, Arechiga moved for a directed verdict, arguing that there was no evidence that she had any role in letting the dog escape the apartment. The trial court denied Arechiga’s motion, concluding that there was a factual question as to whether Arechiga carelessly managed the pit bull. The trial court then instructed the jury that, as to Arechiga and Cowan, it had already decided that they were negligent because the pit bill was not properly restrained and that the jury was only to calculate the amount of damages. Arechiga and Cowan objected to the trial court’s instruction, arguing that the trial court had previously found only that the pit bull was not properly restrained. The jury returned a verdict in favor of the Plaintiffs in the amount of $150,000, apportioned equally between Arechiga and Cowan. This appeal ensued.

1. In related enumerations of error, Arechiga and Cowan contend that the trial court erred in concluding that they were negligent under OCGA § 51-2-7 and in taking this issue away from the jury’s consideration because the trial court’s order granting partial summary judgment found only that the pit bull was not properly restrained and made no ruling as to whether the dog was carelessly managed. We agree.

Under OCGA § 51-2-7,

[a] person who owns or keeps a vicious or dangerous animal of any kind and who, by careless management or by allowing the animal to go at liberty, causes injury to another person who does not provoke the injury by his own act may be liable in damages to the person so injured. In proving vicious propensity, it shall be sufficient to show that the animal was required to be at heel or on a leash by an ordinance of a city, county, or consolidated government, and the said animal was at the time of the occurrence not at heel or on a leash____

Consequently, under this Code section, a plaintiff must show that (1) the owner carelessly managed or allowed the animal to go at liberty; (2) the animal was vicious or unrestrained at the time of the injury in violation of a local ordinance requiring such restraint; and (3) the animal caused the injury. See Hackett v. Dayton Hudson Corp., 191 Ga. App. 442, 445 (2) (382 SE2d 180) (1989); see also Askew v. Rogers, 326 Ga. App. 24, 26 (1) (755 SE2d 836) (2014) (physical precedent only). OCGA § 51-2-7 relieves a plaintiff from producing evidence of a dog’s vicious propensity based on evidence of a violation of an ordinance that requires a dog to be at heel or on a leash. See Stennette v. Miller, 316 Ga. App. 425, 427 (1) (729 SE2d 559) (2012); Huff v. Dyer, 297 Ga. App. 761, 763 (1) (678 SE2d 206) (2009).

(a) In this case, it is undisputed that the pit bull was not properly restrained as required by section 10-29 of Gwinnett County’s animal control ordinance. Evidence establishing that Cowan and Arechiga were in violation of Gwinnett County’s leash law, however, only relieved the Plaintiffs from having to show that the owners had knowledge of the dog’s vicious propensity. See Stennette, supra, 316 Ga. App. at 427 (1); Huff, supra, 297 Ga. App. at 763 (1). Under OCGA § 51-2-7, the Plaintiffs still had to establish that the owners carelessly managed the pit bull or allowed the animal to go at liberty. See Hackett, supra, 191 Ga. App. at 445 (2). Here, there was no evidence that Cowan or Arechiga personally allowed the pit bull to run free on the day in question, because the evidence showed that Arechiga was not at home when the dog escaped and Cowan’s guests had allowed the dog to escape when they failed to properly close the apartment’s front door. Consequently, the Plaintiffs had to establish careless management. See Goodman v. Kahn, 182 Ga. App. 724, 725 (356 SE2d 757) (1987).

The Plaintiffs argue that, in granting partial summary judgment to them, the trial court implicitly found that Cowan and Arechiga carelessly managed the pit bull. That issue, however, was not presented to the trial court in Plaintiffs’ motion for partial summary judgment. In their motion, the Plaintiffs argued only that Cowan and Arechiga were strictly liable because their pit bull was not properly restrained pursuant to the Gwinnett County animal control ordinance, but they made no argument regarding careless management. Had the trial court ruled on summary judgment that Arechiga and Cowan carelessly managed the dog, such a ruling would have been erroneous because there is no evidence that the defendants had notice and an opportunity to respond on that issue. See Hodge v. SADA Enterprises, Inc., 217 Ga. App. 688, 690 (458 SE2d 876) (1995) (where an issue is not raised in movant’s motion for summary judgment, the trial court may not sua sponte grant summary judgment unless the non-movant is given full and fair notice and opportunity to respond to the issue prior to entry of summary judgment).

The parties clearly contemplated that the negligence issue had not been fully resolved because the pre-trial order expressly mentioned that the defendant’s negligence under OCGA § 51-2-7 was an issue for the jury to determine. “Once entered, the pretrial order controls the subsequent course of the action unless modified at the trial to prevent manifest injustice.” (Citation and punctuation omitted.) Williams v. Martin, 273 Ga. App. 562, 564 (1) (615 SE2d 774) (2005). Additionally, following the presentation of the trial evidence, the trial court determined that the jury still needed to resolve the careless management issue when it denied Arechiga’s motion for a directed verdict, in which she argued that she did not carelessly manage the dog because she was not at the residence when the dog escaped.

Notwithstanding its rulings that there were unresolved questions of fact concerning careless management, the trial court removed the issue from the jury’s consideration by instructing the jury that it had already found that Arechiga and Cowan were negligent for not properly restraining the pit bull. This instruction was erroneous because a finding of negligence under OCGA § 51-2-7 requires more than a showing that the animal was not properly restrained. See Hackett, supra, 191 Ga. App. at 445 (2).

(b) The trial court’s erroneous instruction was prejudicial because it effectively granted a directed verdict in favor of the Plaintiffs on the issue of careless management and allowed the jury to determine only the amount of damages.

A directed verdict is authorized only where the evidence, with all reasonable deductions and construed in favor of the non[-]movant, demands a particular verdict. But where any evidence or some evidence exists to support a jury issue on the non-movant’s claims, a directed verdict is improper. This Court conducts a de novo review on appeal from the grant of a directed verdict, and we will uphold a directed verdict only if all of the evidence demands it.

(Citations and punctuation omitted.) Sun Nurseries, Inc. v. Lake Erma, LLC, 316 Ga. App. 832, 835 (730 SE2d 556) (2012).

Here, the evidence did not demand a finding that Cowan and Arechiga carelessly managed the dog. Viewing the evidence in their favor, the evidence shows that Cowan’s guests allowed the dog to escape the apartment when they failed to properly shut the front door. With respect to Arechiga, it is undisputed that she was not at home when the pit bull escaped from the apartment and attacked E. G. However, there is also evidence showing that the dog had previously escaped from Arechiga’s and Cowan’s apartment and that the defendants had also let the dog leave the apartment unrestrained. In light of this conflicting evidence, there is a question of fact as to whether Cowan and Arechiga carelessly managed the pit bull. See Evans-Watson v. Reese, 188 Ga. App. 292, 293-294 (372 SE2d 675) (1988) (where owner’s daughter opened a gate that allowed the dog to escape the yard, questions of fact remained as to whether owner carelessly managed dog because the evidence did not conclusively establish that the owner took measures to ensure that the dog would not be let out of the yard by people normally opening the gate). Compare Goodman, supra, 182 Ga. App. at 725 (holding that roommate of dog owner could not have carelessly managed the dog because the owner was managing the dog at the time of the dog biting incident). While a jury would have been authorized to conclude that Cowan and Arechiga carelessly managed the dog under the circumstances, the evidence did not demand such a finding.

Decided March 19, 2015.

Cowsert & Avery, Craig C. Avery, Michael S. Broun, for appellants.

The Federal Firm, R. Keegan Federal, Jr., R. O. Lerer, for appellees.

Consequently, the trial court’s instruction that Cowan and Arechiga were negligent under OCGA § 51-2-7 based solely on the fact that they did not properly restrain the pit bull was a misstatement of the law. This error cannot be considered harmless because the jury did not have an opportunity to consider the primary issue of whether Cowan and Arechiga carelessly managed the dog. See Pendarvis Constr. Corp. v. Cobb County-Marietta Water Auth., 239 Ga. App. 14, 17 (2) (520 SE2d 530) (1999) (reversing judgment entered upon jury verdict where the trial court’s substantially erroneous jury charge went to a primary issue in the case and was, therefore, prejudicial). Accordingly, Cowan and Arechiga are entitled to a new trial.

2. In light of our holding in Division 1, we need not address Cowan’s and Arechiga’s remaining enumerations of error.

Judgment reversed.

Doyle, P. J., and Dillard, J., concur.

       The Plaintiffs also sued the landlords of the apartment complex where the incident occurred, but the jury returned a verdict in favor of the landlords.

        Turner Broadcasting System, Inc. v. McDavid, 303 Ga. App. 593, 593-594 (693 SE2d 873) (2010).

       That ordinance provides:
      A dog is considered not under restraint or control when it is running at large, whether wearing a collar and tag or not. Reasonable care and precautions shall be taken to prevent the dog from leaving the real property limits of its owner, possessor, or custodian, and to ensure that: (1) It is securely and humanely enclosed within a house, building, fence, pen or other enclosure out of which it cannot climb, dig, jump, or otherwise escape on its own volition, and that such enclosure is securely located at any time the animal is left unattended; or (2) It is securely and humanely restrained by an invisible containment system. If using an invisible containment system, a sign must be posted on the property indicating that the system is in place; or (3) It is on a leash and under the control of a competent person, or it is off leash and obedient to and under voice command of a competent person who is in the immediate proximity of the dog any time it is not restrained as provided for in subsection (1) or (2) above while on the owner’s property.
      Gwinnett County Municipal Code § 10-29 (b).

       The strict liability standard for dog biting has long been abolished. See Hamilton v. Walker, 235 Ga. App. 635, 636-637 (510 SE2d 120) (1998). Under current Georgia law, an owner’s negligence is presumed when an individual is attacked by an animal that is ferae naturae, such as a lion, tiger, or bear. See Harper v. Robinson, 263 Ga. App. 727 (1) (589 SE2d 295) (2003). A dog is not considered ferae naturae, but rather is a domestic animal. Id. at 728 (1). Therefore, an owner is not presumed negligent when his or her dog attacks a person.


author: McFadden, Judge.

text:
    A14A2352.
    OLVERA et al. v. UNIVERSITY SYSTEM OF GEORGIA’S BOARD OF REGENTS et al.
    (771 SE2d 91)
   McFadden, Judge.

Non-citizen college students who are beneficiaries of the federal Deferred Action for Childhood Arrivals program (“DACA”) brought an action against the University System of Georgia’s Board of Regents and its members in their official capacities (collectively, “the Board”) seeking a declaration that they were entitled to in-state tuition benefits at institutions in the University System of Georgia. The trial court granted the Board’s motion to dismiss on the ground that sovereign immunity bars the action. We agree and affirm. Accordingly, we do not reach the merits of the action.

“We review de novo a trial court’s ruling on a motion to dismiss based on sovereign immunity grounds, which is a matter of law. Factual findings are sustained if there is evidence supporting them, and the burden of proof is on the party seeking the waiver of immunity.” Bd. of Regents of the Univ. System of Georgia v. Canas, 295 Ga. App. 505, 509 (3) (672 SE2d 471) (2009) (citation and punctuation omitted).

In their declaratory judgment petition, the students alleged that their status as DACAbeneficiaries rendered them lawfully present in the United States. They further alleged that the Board’s policy manual required students to provide verification of their lawful presence in the United States before being classified as in-state students for tuition purposes. And they alleged that the Board had not defined “lawful presence” for the purpose of its policy manual. The students alleged that the Board has “refusfed] to confer in-state tuition benefits to Georgia college students[ ] who have obtained lawful presence in the United States through DACA[.]” They sought a declaration that they “and other similarly situated DACA approved students[ ] who would otherwise qualify for in-state tuition benefits are entitled to those benefits[.]”

Arguing that sovereign immunity barred the declaratory judgment action, the Board moved for the trial court to dismiss it. The trial court agreed and granted the motion to dismiss, reasoning among other things that sovereign immunity extends to declaratory judgment actions and that the provision in the Administrative Procedure Act authorizing declaratory judgment actions against state agencies to determine the validity of agency rules, OCGA § 50-13-10, did not waive sovereign immunity in actions concerning “interpretive rules.”

We agree with the trial court that sovereign immunity bars this action. Our state constitution provides that, with certain exceptions not relevant to this case, sovereign immunity “extends to the state and all of its departments and agencies.” Ga. Const. of 1983, Art. I, Sec. II, Par. IX (e). Accordingly, sovereign immunity extends to the Board of Regents. Wilson v. Bd. of Regents of the Univ. System of Georgia, 262 Ga. 413, 414 (3) (419 SE2d 916) (1992); Carroll v. Bd. of Regents of the Univ. System of Georgia, 324 Ga. App. 598, 602 (2) (751 SE2d 421) (2013); Bd. of Regents of the Univ. System of Georgia v. Ruff, 315 Ga. App. 452, 456 (2) (726 SE2d 451) (2012). It also extends to individual members of the Board when, as here, they are sued in their official capacities. See Ga. Dept. of Natural Resources v. Center for a Sustainable Coast, 294 Ga. 593, 599 (2) (755 SE2d 184) (2014) (plain language of Ga. Const. of 1983, Art. I, Sec. II, Par. IX (e) applies to the state and its officers and employees when sued in their official capacities); Cameron v. Lang, 274 Ga. 122, 126 (3) (549 SE2d 341) (2001) (sovereign immunity applies to public employees sued in their official capacities). And sovereign immunity extends to declaratory judgment actions against state agencies. See Judicial Council of Ga. v. Brown & Gallo, LLC, 288 Ga. 294, 298 (702 SE2d 894) (2010); DeKalb County School Dist. v. Gold, 318 Ga. App. 633, 637, 640 (1) (a) (734 SE2d 466) (2012); Live Oak Consulting v. Dept. of Community Health, 281 Ga. App. 791, 796 (1) (637 SE2d 455) (2006).

It is true that sovereign immunity can be waived. But it “can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.” Ga. Const. of 1983, Art. I, Sec. II, Par. IX (e). See Center for a Sustainable Coast, 294 Ga. at 603 (2). And it is true that in OCGA § 50-13-10 of the Administrative Procedure Act, OCGA § 50-13-1 et seq., the General Assembly specifically waived the state’s sovereign immunity for certain declaratory judgment actions against state agencies. Gold, 318 Ga. App. at 637 (1) (a). But that waiver is not applicable here. It

authorizes a superior court to accept an action for a declaratory judgment on the validity of rules of a state agency, and for the state agency to be made a party with service of the petition on the attorney general. Thus, the state has consented to suit in actions alleging necessity of a declaratory judgment on validity of rules of state agencies.

Ga. State Bd. of Dental Examiners v. Daniels, 137 Ga. App. 706, 707 (1) (224 SE2d 820) (1976) (citations omitted) (construing earlier version of OCGA § 50-13-10).

The waiver in OCGA § 50-13-10 only applies to actions determining the validity of rules adopted by agencies under the rule-making procedures of the Administrative Procedure Act. See Daniels, 137 Ga. App. at 708-709; see also OCGA § 50-13-4 (setting forth procedural requirements for adoption of agency rules). Our Supreme Court has held that an agency requirement that has “never been enacted as a .. . rule pursuant to the APA” is not a “rule” within the meaning of OCGA § 50-13-10 but rather an “interpretive rule” not subject to review in a declaratory judgment action under that Code section. Roy E. Davis & Co. v. Dept. of Revenue, 256 Ga. 709, 711 (353 SE2d 195) (1987). See also Ga. Oilmen’s Assn. v. Ga. Dept. of Revenue, 261 Ga. App. 393, 400-401 (582 SE2d 549) (2003) (agency policy was “interpretive rule” not subject to OCGA § 50-13-10 because it was not an independently promulgated agency rule but merely the agency’s interpretation of existing laws).

Decided March 19, 2015

Kuck Immigration Partners, Charles H. Ruck, for appellants.

Samuel S. Olens, Attorney General, Russell D. Willard, Senior Assistant Attorney General, Allen I. Lightcap, Assistant Attorney General, for appellees.

The trial court correctly treated the Board’s policies regarding non-citizen eligibility for in-state tuition benefits as falling outside the waiver of sovereign immunity found in OCGA § 50-13-10. The students have not met their burden of showing that the policies at issue were agency rules adopted pursuant to the Administrative Procedure Act’s rule-making procedures and thus subject to OCGA § 50-13-10’s waiver, rather than “interpretive rules” exempt from OCGA § 50-13-10. See Carroll, 324 Ga. App. at 603 (3) (plaintiffbears burden of proving waiver of sovereign immunity). Accordingly, the trial court did not err in finding that sovereign immunity barred the action. See Georgia Oilmen’s Assn., 261 Ga. App. at 401.

Judgment affirmed.

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


text:
    A12A2293.
    SCOTT v. THE STATE.
    (771 SE2d 93)
   McMillian, Judge.

In Scott v. State, 295 Ga. 39 (757 SE2d 106) (2014), our Supreme Court overruled a long line of cases on the knowledge required to prove trafficking in cocaine under the former version of OCGA § 16-13-31 (a) (l). Accordingly, the Supreme Court reversed the part of our holding in Scott v. State, 320 Ga. App. XXVI (March 11, 2013) (unpublished), in which we relied on that precedent to affirm Scott’s conviction, and directed us upon remand “to determine whether the evidence at trial was sufficient to prove beyond a reasonable doubt that [Kenneth] Scott knew that the cocaine he possessed weighed 28 grams or more.” Scott, 295 Ga. at 42 (3), n. 5. We have reviewed the evidence in light of this directive and once again conclude that the evidence was sufficient to convict Scott of trafficking in cocaine under former OCGA § 16-13-31 (a) (1). Further, we also have considered and reject Scott’s contention that in light of the “change” in the law, he will be denied due process and his right to a trial by jury if we merely affirm his conviction instead of allowing him to be retried. Accordingly, we now affirm Scott’s conviction as more fully set forth below.

1. We start with the applicable version of OCGA § 16-13-31 (a) (1), which provides in relevant part as follows:

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

As the Supreme Court explained in Scott:

The plain language of the version of former OCGA § 16-13-31 (a) (1) at issue dictates the conclusion that knowledge of the quantity of the drug was an element of the crime. It contains express scienter requirements, that is, knowledge of the nature and amount of the drug and of being in possession of it. And, certainly, where “knowledge” is made part of an offense, the State has the burden to prove the defendant’s guilty knowledge.

(Footnote omitted.) 295 Ga. at 40 (1).

However, knowledge, like possession, may be proved by circumstantial evidence. “ ‘[I]t has long been the law that knowledge may be proved by facts and circumstances from which a jury could reasonably infer that a defendant knowingly possessed contraband.’ ” Childs v. State, 330 Ga. App. 727, 730 (1) (769 SE2d 147) (2015), citing Hernandez-Garcia v. State, 322 Ga. App. 455, 461 (745 SE2d 706) (2013). Robinson v. State, 331 Ga. App. 872 (772 SE2d 223) (2015) (A13A1386) (physical precedent only); Griffin v. State, 331 Ga. App. 550 (1) (769 SE2d 514) (2015) (A14A1614); Freeman v. State, 329 Ga. App. 429, 432 (1) (765 SE2d 631) (2014).

Concerning the narrow issue before us, the evidence, viewed in the light most favorable to the verdict, shows that sometime in 2009, the Vidalia Police Department began receiving tips that caused them to suspect that drugs were being sold in an area around a house Scott rented at 307 Jenkins Street in Vidalia, Georgia. Police conducted two separate drug buys at the house, one involving an undercover police officer and the second with a confidential informant, and then obtained a warrant to search the premises.

The warrant was executed on September 25, 2009. Officers executing the warrant found several packages of crack cocaine that appeared to have been packaged for resale lying on the floor; a slab of crack cocaine lying in “plain view” beside a mirror and a cutting object; 37 individually wrapped packets of powder cocaine inside a drawer; a large chunk of powdery cocaine in a box inside a ziplock bag; cigar boxes containing individually packaged marijuana and more cocaine in a twist tie package; digital scales; sandwich bags; cutting tools; and loaded handguns that appeared to have been placed strategically around the room for easy access. A state crime lab forensic chemist testified he weighed and tested samples of the smaller quantities of cocaine, and that additional testing on the largest piece of cocaine for purity showed it weighed 72.65 grams with a purity of 72.6 percent.

Although Scott was not on the premises when the warrant was executed, a police officer testified that he had observed Scott standing in the yard directly in front of the house just prior to the execution of the warrant, and Anthony Holloway, who was arrested at the house that day and testified for the State at trial, said that Scott had “just walked out [of] the house” before police arrived. Holloway also testified that he had known Scott for many years and that he had seen Scott engage in hundreds of drug transactions over the years.

A detective testified that based on the items found during the search, it was his opinion that 307 East Jenkins Street was used primarily to distribute drugs, otherwise known in street terminology as a “trap house.” He said he based his opinion on the “packaging material that was found there, scales, razor blades, the cutting agents,... the way that the bags of drugs was [sic] individually packaged, and even down to the crack cocaine cut up into individual rocks.” He testified that the large chunk of cocaine, which was commonly referred to as a “brick” would be cut down, mixed with another substance and packaged for distribution.

In this case, there were numerous circumstances from which the jury could reasonably infer that Scott knew the cocaine he possessed weighed at least 28 grams. The evidence showed that Scott had extensive experience selling drugs and that the residence he rented at 307 East Jenkins Street was primarily used as a site for drug distribution. Even excluding the smaller quantities of cocaine that were not tested for purity, the cocaine found there weighed substantially more than double the amount specified in the trafficking statute and had a purity of 72.6 percent, which is also well over the ten percent minimum specified in the statute. Additionally, officers found a quantity of crack and powder cocaine that had already been cut down and packaged for resale, as well as a large quantity of cocaine that had not yet been readied for distribution. Officers also found the tools necessary to cut, weigh, and package the drugs, including razor blades, a set of digital scales, and an assortment of ziplock type plastic bags. This evidence was sufficient to establish beyond a reasonable doubt that Scott knew that the cocaine in his possession weighed 28 grams or more. Harrison v. State, 309 Ga. App. 454, 459 (2) (711 SE2d 35) (2011). Griffin, 331 Ga. App. at_(1); Robinson, 331 Ga. App. at_(evidence sufficient to show defendant knew weight of cocaine where the cocaine was approximately 65 percent pure and weighed nearly ten times the statutory trafficking threshold amount); Freeman, 329 Ga. App. at 432 (1) (cocaine was 82 percent pure, weighed 50.62 grams, and State submitted evidence of five similar transactions). Cf. Childs, 330 Ga. App. at 731 (1) (evidence defendant knew weight of cocaine insufficient where quantity was just in excess of 28 grams and no evidence that defendant had scales or other items used to measure, weigh or package contraband).

2. Scott also contends, however, that he should be retried by a jury that has been properly charged on the “new element” of knowledge of weight of the cocaine, arguing that otherwise he will be denied his right to a trial by jury and his due process rights will be abridged. We find this contention to be unavailing.

First, we note that Scott did not challenge the trial court’s instructions to the jury in his initial appeal to this Court, and thus will not now be heard to complain that the jury was improperly charged. And, in any event, the transcript reveals the trial court defined trafficking in cocaine under the former statute as follows:

Any person who is knowingly in possession of 28 grams or more of cocaine commits the offense of trafficking in cocaine____As with all other elements of the prosecution, the State has the burden of proving weight.

Decided March 20, 2015

Robert L. Persse, for appellant.

S. Hayward Altman, District Attorney, Rizza C. Palmares, Jessica B. Wilson, Assistant District Attorneys, for appellee.

Moreover, in addition to charging generally on the State’s burden of proof and proof of guilt beyond a reasonable doubt, the trial court also gave a specific charge on proof of knowledge:

Knowledge on the part of the defendant that the crimes as charged in this indictment were being committed and that the defendant knowingly and intentionally participated in or helped in the commission of [such] crime must be proved by the State beyond a reasonable doubt. If you find from the evidence in this case that the defendant had no knowledge that a crime was being committed or that the defendant did not knowingly and intentionally commit, participate or help in the commission of the alleged offense, then it would be your duty to acquit the defendant. On the other hand, should you find beyond a reasonable doubt that the defendant had knowledge that the crime or crimes as alleged in this indictment was being committed and that the defendant knowingly and intentionally participated or helped in the commission of it, then you would be authorized to convict the defendant.

And, importantly, nowhere in the charge did the trial court instruct the jury that the State was not required to prove knowledge of the weight of the cocaine. Thus, considering the charge as a whole, the jury was informed that the State had to prove that Scott was in knowing possession of 28 grams or more of cocaine, and neither his right to be tried by a jury nor his due process rights have been denied under the circumstances of this case. See Harrison, 309 Ga. App. at 457 (2) (a) (not error to refuse to give more specific charge when charge given fully apprised the jury that State was required to prove defendant knew cocaine in his possession weighed 28 grams or more).

Judgment affirmed.

Barnes, P. J., and McFadden, J., concur.

       The General Assembly has since amended the statute to delete the word “knowingly throughout subsection (a), and has added a new Code section that specifically provides that the defendant’s knowledge of the weight or quantity of a controlled substance is not an essential element of the offense which the State has to prove. See Ga. L. 2013, p. 222, §§ 4, 6. These changes became effective on July 1,2013, and apply to offenses which occur on or after that date. Id. at § 21. The offense at issue here was alleged to have occurred in September 2009.

       Because we do not read the Supreme Court’s opinion as directing us to revisit the issue of Scott’s knowing possession of the cocaine, we focus our inquiry on whether Scott knew the cocaine he possessed weighed 28 grams or more.

       Scott raised these issues by way of a supplemental brief upon remand to this Court.

       Additional facts may be found in our published opinion in the separate appeal of Scott’s co-defendant, Michael Scott. Scott v. State, 326 Ga. App. 115 (756 SE2d 220) (2014).

        Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979).