text:
    A13A0473.
    BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA v. BARNES.
    (743 SE2d 609)
   Miller, Judge.

This appeal arises from Thomas Barnes’s breach of contract action against the Board of Regents of the University System of Georgia (the “Board”) seeking damages related to his expulsion without notice or hearing by Valdosta State University (“VSU”). The Board moved to dismiss Barnes’s complaint on the ground of sovereign immunity. The trial court denied the Board’s motion to dismiss, finding that the Board’s defense of sovereign immunity was waived because Barnes established the existence of valid written contracts. Since we find that the trial court erred in concluding that there was a valid written contract between Barnes and the Board, the doctrine of sovereign immunity precludes this action, and we reverse.

In his complaint, Barnes alleges that when he enrolled in VSU in January 2007, he provided confidential medical information to VSU’s Access Office. Barnes subsequently signed a VSU counseling services intake form, providing that all written and verbal information provided to the counseling center would be confidential. In March 2007, Barnes posted a series of fliers around the VSU campus expressing his opposition to a planned parking deck, and e-mailed his concerns to VSU’s president, student government association, faculty environmental committee and others.

VSU President Ronald M. Zaccari met with Barnes in his office, and subsequently notified Barnes in writing that he had been administratively withdrawn, effective May 7, 2007, because he was considered to be a clear and present danger to the campus. The administrative withdrawal letter referenced Board of Regents Policy 1902, which states that any student who obstructs or disrupts campus activities or who attempts to do so is subject to disciplinary procedures, including possible dismissal from VSU.

Barnes filed the instant action against the Board alleging that the policies and provisions in the VSU student handbook, which sets forth policies for student disciplinary procedures, including Board of Regents Policy 1902, and the contracts for student housing established a binding agreement between Barnes and the Board. Barnes also alleged that policies regarding the confidentiality of student information kept by VSU’s Access Office and Counseling Center constituted binding contractual commitments.

The Board answered and moved to dismiss Barnes’s complaint, contending that sovereign immunity barred Barnes’s claims. Barnes’s response to the Board’s motion included unauthenticated documentary exhibits, including an unsigned partial copy of the VSU Student Code of Conduct, and a VSU Counseling Center consent form. Neither of these documents was included as part of Barnes’s complaint or otherwise made part of the record.

The trial court denied the motion to dismiss, finding that Barnes established the existence of valid written contracts and, therefore, the Board’s sovereign immunity defense was waived. The trial court specifically referred to language in the student code of conduct and found that the document demonstrated an intent to enter into a binding agreement. The trial court’s order also specifically referred to the counseling center document. This appeal ensued. For the following reasons, we reverse.

1. As an initial matter, we note that the trial court considered matters outside the pleadings in finding that the unauthenticated partial student code of conduct and counseling center document, which were not included as part of Barnes’s complaint, constituted valid written contracts.

If, on motion to dismiss for failure to state a claim, the trial court elects to consider matters outside of the pleadings, the motion shall be treated as one for summary judgment and disposed of as provided in [OCGA §] 9-11-56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by that [C]ode section. While the trial court may, on its own motion, convert a motion to dismiss into a motion for summary judgment, it must insure that the respondent to the motion has a full and final opportunity to controvert the assertions against him. This opportunity consists of notice that the motion will be converted and additional time to submit affidavits, depositions, or other evidence.

(Punctuation and footnotes omitted.) Bd. of Regents of the Univ. System of Ga. v. Ruff, 315 Ga. App. 452, 454 (1) (726 SE2d 451) (2012).

Here, it was Barnes as the nonmovant who submitted documentary evidence in response to the Board’s motion, and, by doing so,

in effect requested that the motion be converted into one for summary judgment and acquiesced in the trial court’s decision not to give notice of the actual nature of the pending motion. Accordingly, [Barnes’s] motion to dismiss was properly converted into a motion for summary judgment, and we will review it as such.

(Citation and punctuation omitted.) Gaddis v. Chatsworth Health Care Center, 282 Ga. App. 615, 617 (1) (639 SE2d 399) (2006).

2. The Board contends that Barnes’s contract claims are barred by sovereign immunity. Specifically, the Board argues that its defense of sovereign immunity was not waived because there was no written contract between the parties. We agree.

The Georgia Constitution provides that sovereign immunity extends to the State and all of its departments and agencies, and that the State’s sovereign immunity can only be waived by a constitutional provision or an Act of the General Assembly that specifically provides for such waiver and the extent thereof. Ga. Const. of 1983, Art. I, Sec. II, Par. IX (e).

(Citations, punctuation and footnote omitted.) Ga. Dept. of Community Health v. Data Inquiry, 313 Ga. App. 683, 685 (1) (722 SE2d 403) (2012). The Board is the state agency vested with the governance, control, and management of the University System of Georgia, and sovereign immunity applies to the Board. See Ruff, supra, 315 Ga. App. at 456 (2). In this case, the issue of whether there was a valid written contract is critical because, “the defense of sovereign immunity is waived as to any action ex contractu for the breach of any written contract entered into by the state or its departments and agencies.” (Punctuation and footnote omitted.) Id. Moreover, as the party seeking to benefit from this waiver, Barnes, not the Board, had the burden of proof on this issue. See Ga. Dept. of Corrections v. James, 312 Ga. App. 190, 193 (718 SE2d 55) (2011).

Decided May 29, 2013

Samuel S. Olens, Attorney General, Oscar B. Fears III, Julie A. Jacobs, Assistant Attorneys General, for appellant.

The doctrine of sovereign immunity requires that the conditions and limitations of the statute that waives immunity be strictly followed, and an implied contract will not support a waiver of immunity under the provisions of the Georgia Constitution. See Ruff, supra, 315 Ga. App. at 456 (2). However,

[a] valid written contract may be formed when there are multiple, signed, contemporaneous agreements between the parties which demonstrate their intent to enter into a binding contract and the individual documents, considered together, include all of the necessary terms of a contract.

(Punctuation and footnote omitted.) Id.; see also Bd. of Regents of Univ. System v. Tyson, 261 Ga. 368, 369 (1) (404 SE2d 557) (1991).

Viewed in the light most favorable to Barnes as the nonmovant, the evidence shows only an unauthenticated partial copy of the student code of conduct, which is not signed by either party, and a counseling center consent form, which was only signed by Barnes. Since neither of these documents was signed by a representative of the Board or a representative of VSU, they do not constitute signed, contemporaneous agreements between the parties which demonstrate their intent to enter into a binding contract. See Tyson, supra, 261 Ga. at 369 (1) (sovereign immunity not waived absent signed contemporaneous writings, which taken together, contain necessary elements of contract); Ruff, supra, 315 Ga. App. at 456-457 (2) (sovereign immunity not waived where application for study abroad program, copy of refund policy and excerpts from study abroad program manual were not signed by representative of Board or University). Accordingly, the Board did not waive sovereign immunity, and the Board was entitled to summary judgment on Barnes’s breach of contract claims.

Judgment reversed.

Barnes, R J., and Ray, J., concur.

Cary S. Wiggins, for appellee.

       Barnes first filed suit for breach of contract in federal court against the Board, Zaccari and others. Although the district court granted summary judgment to Barnes on his breach of contract claim, the United States Court of Appeals for the Eleventh Circuit reversed that decision, holding that the district court lacked jurisdiction to decide Barnes’s breach of contract claim. See Barnes v. Zaccari, 669 F3d 1295, 1309 (V) (B) (11th Cir. 2012).

       See Geico Gen. Ins. Co. v. Wright, 299 Ga. App. 280 (682 SE2d 369) (2009).


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A13A0488.
    AMERICAN ARBITRATION ASSOCIATION v. BOWEN et al.
    (743 SE2d 612)
   Miller, Judge.

Gene Bowen and Karen McGinn, members of eCential Group, LLC (“eCential”), arbitrated claims through the American Arbitration Association (the “Association”). The Association filed suit on open account against Bowen and McGinn to collect unpaid arbitration fees. Following a hearing, the trial court dismissed the Association’s suit, concluding that there was no evidence showing that Bowen and McGinn (the “Members”) were personally liable to pay the fees. The Association filed a motion for new trial, which the trial court denied. The Association appeals from that ruling, contending that the trial court erred in considering inadmissible hearsay and in dismissing the case without evidence to support the involuntary dismissal. Since there is evidence that the Members asserted individual claims through arbitration, they were liable for a portion of the arbitration fees, and we reverse.

An involuntary dismissal under OCGA § 9-11-41 (b) differs considerably from the grant of summary judgment. A dismissal under OCGA § 9-11-41 (b) does not require a trial court to construe the evidence most favorably toward the nonmovant. In addition, because a trial court determines the facts as well as the law, an involuntary dismissal may be warranted despite the fact that a plaintiff established a prima facie case. In ruling on a motion for involuntary dismissal, the trial court can decide whether essential facts have not been proven. As the trier of fact, the trial court’s determination will be reversed only when the evidence demands a contrary finding.

(Footnotes omitted.) Chambers v. Green, 245 Ga. App. 814, 816 (539 SE2d 181) (2000).

So viewed, the record evidence shows that eCential was a franchisee of iSold It, a retail chain designed to assist customers with selling their products on eBay. Due to a dispute with iSold It, eCential and the Members submitted breach of contract and fraud claims against iSold It to binding arbitration with the Association. After an arbitrator was selected, the Association asked eCential to pay a deposit before performing work on the matter. eCential, unable to pay the arbitration fees at that time, filed a hardship claim to reduce or delay the fee payment. Before the Association ruled on the hardship waiver, it requested eCential and the Members to pay additional fees. The arbitration was discontinued when eCential or its Members were unable to pay the arbitration fees. The Association then sent eCential and the Members a bill for $12,712.50 in unpaid arbitration fees. When no payment was received on the fees or on approximately $3,666 in accrued interest, the Association filed the instant suit against the Members.

At the bench trial, the Association presented the testimony of the arbitrator assigned to arbitrate the Members and eCential’s claims. The arbitrator stated that the Association had sent eCential and the Members a bill for unpaid arbitration fees, and that the Members had made no payment toward the fees or any accrued interest. The arbitrator further stated that although he had no documentary proof that the Members agreed to personally pay eCential’s arbitration fees, the Members were parties to the arbitration in their personal capacity. Additionally, although numerous telephone conferences were conducted, no live hearing transpired before the arbitration proceeding was discontinued.

In their defense, the Members argued that they were not personally liable to pay the fees; they never received a bill; and they further disputed the amount of the fees since the Association had granted them a hardship deferment. The Members, however, did not testify or otherwise present evidence at the trial. Following the trial, the trial court dismissed the action based upon a determination that the Association’s invoice sent to the Members was insufficient to establish that they were personally liable to pay eCential’s expenses.

1. The Association contends that the trial court erred in dismissing the case without evidence supporting such dismissal since the arbitrator testified that the Members were parties to the arbitration, they received arbitration services, and they did not pay the arbitration fees. We agree.

A suit on open account is available as a simplified procedure to the provider of goods and services where the price of such goods or services has been agreed upon and where it appears that the plaintiff has fully performed its part of the agreement and nothing remains to be done except for the other party to make payment.

(Citations and punctuation omitted.) Five Star Steel Constr. v. Klockner Namasco Corp., 240 Ga. App. 736, 738-739 (1) (c) (524 SE2d 783) (1999). To establish a prima facie case for a complaint on account, the plaintiff must tender an authenticated invoice, along with testimony that the invoice remains unpaid. Imex Intl. v. Wires Engineering, 261 Ga. App. 329, 332 (1) (a) (583 SE2d 117) (2003). At that point, the defendant has the burden of presenting evidence of specific facts to refute the plaintiffs proof. See Traditional Properties v. Performance Food Group of Ga., 291 Ga. App. 442, 443 (662 SE2d 250) (2008). Moreover, the defendant must offer specific factual evidence, not just a general denial, to refute the plaintiffs proof. Id.

Here, the Association presented the arbitrator’s testimony who stated that he was familiar with the Association’s records and identified an invoice that was sent to the Members. Additionally, the arbitrator testified that payment had not been made on the invoice balance of $12,712.50 or on the accrued interest. Although the Members argued at the hearing that the Association granted them a hardship waiver, they presented no evidence to establish this fact, and the arbitrator testified that the Association did not send invoices to parties that had received such a waiver. Consequently, the Association established a prima facie case for recovery on an open account.

The evidence, however, did not show that the Members were liable for the entire portion of the arbitration fees. We note that pursuant to OCGA § 14-11-303 (a), the Members were not liable, solely by reason of being a member of eCential, for the debts of the limited liability company. See Winzer v. EHCA Dunwoody, 277 Ga. App. 710, 713 (3) (627 SE2d 426) (2006) (“Like a corporation, a limited liability company is a business entity that protects its members from personal liability for business debts.”) (footnote omitted); Milk v. Total Pay and HR Solutions, 280 Ga. App. 449, 451-452 (634 SE2d 208) (2006) (“[A] member of a limited liability company ... is considered separate from the company and is not a proper party to a proceeding by or against a limited liability company, solely by reason of being a member of the limited liability company [.]”) (citations and punctuation omitted). Members may incur personal liability for an LLC’s business debts if they execute a written agreement to personally guarantee the company’s debts and liabilities. OCGA § 14-11-303 (b). In this case, however, there was no evidence that the Members executed such an agreement. Thus, the Members were not liable for eCential’s debts.

Decided May 29, 2013.

Richard M. Howe, Karl J. Howe, Jr., for appellant.

Gene Bowen, pro se.

Karen McGinn, pro se.

Nevertheless, there is evidence that the Members incurred personal debts in the arbitration. Notably, in their trial court brief opposing the Association’s motion for summary judgment, the Members expressly stated as matters of fact that they and “eCential submitted their claims to binding arbitration in California before the [Association].” “It is well established that a party may make admissions in judicio in their pleadings, motions, and briefs.” (Footnote omitted.) Mitsubishi Motors Corp. v. Colemon, 290 Ga. App. 86, 87 (1) (658 SE2d 843) (2008). What a party admits to be true in its pleadings may not subsequently be denied. Aycock v. Calk, 228 Ga. App. 172, 173 (491 SE2d 383) (1997). The factual admissions in judicio made by the Members in their brief are therefore binding. See Holmes v. Clear Channel Outdoor, 298 Ga. App. 178, 183 (2) (679 SE2d 745) (2009); Mitsubishi Motors, supra, 290 Ga. App. at 87 (1). Moreover, the arbitrator testified that the Members were parties to the arbitration in their personal capacities, and evidence from the arbitration shows that the Members appeared in their personal capacities. Since the Members asserted their own claims in the arbitration, they are personally liable for any fees associated with their personal claims.

As a result, although the trial court correctly determined that the evidence failed to establish that the Members were personally liable for eCential’s debts, the trial court erred when it ignored evidence that the Members incurred personal liabilities in the arbitration. Consequently, we reverse the trial court’s order and remand for the trial court to consider what portion of the arbitration fees are attributable to the Members.

2. In light of our holding in Division 1, we need not address the Association’s contention that the trial court erred in considering inadmissible hearsay.

Judgment reversed and case remanded with direction.

Barnes, P. J., and Ray, J., concur.

       The Association also filed suit against eCential and received a default judgment against the company. It appears that eCential was no longer in existence at the time the instant action commenced.


author: Dillard, Judge.

text:
    A13A0536.
    In the Interest of FARR.
    (743 SE2d 615)
   Dillard, Judge.

This appeal follows the dismissal of St. Joseph’s/Candler Health System’s (“SJCHS”) petition for the appointment of an emergency guardian for Claudine Tapley Farr, who is a patient at St. Joseph’s Hospital in Savannah. On appeal, SJCHS contends that the probate court erred by dismissing the emergency guardianship petition for failure to satisfy the requirements of OCGA § 29-4-14 (b) (4). For the reasons set forth infra, we affirm.

The record reflects that SJCHS filed a petition in the Probate Court of Chatham County for the appointment of an emergency guardian. The petition, which was supported by various affidavits and evaluations from SJCHS employees (including physicians), alleged that Farr was “incapacitated by reason of end stage Parkinson’s disease, diabetes mellitus, recurring infections, contracted extremities and respiratory failure” to the extent that she lacked “sufficient capacity to make or communicate significant responsible decisions concerning her health or safety,” and that there was “an immediate, clear and substantial risk of death or serious physical injury, illness, or disease unless an emergency guardian is appointed.” Accordingly, SJCHS sought the appointment of an emergency guardian and requested that such guardian be ordered to assist SJCHS in accomplishing Farr’s discharge from St. Joseph’s Hospital.

Farr’s son filed a motion to dismiss the emergency petition, alleging, inter alia, that it failed to satisfy the requirements of OCGA § 29-4-14 (b) (4), which provides that a petition for the appointment of an emergency guardian must set forth

[a] statement of the reasons the emergency guardianship is sought, including the facts that support the need for a guardian and the facts that establish an immediate and substantial risk of death or serious physical injury, illness, or disease unless an emergency guardian is appointed.

And here, the only apparent “emergency” identified by SJCHS’s petition was the hospital’s desire to transfer Farr out of its acute-care facility and into what it believed to be a more appropriate facility for the lesser-level of care she was deemed to require.

Following a preliminary hearing at which the probate court heard oral argument as to why the parties believed an evidentiary hearing either was or was not necessary, the court directed that it would deny instanter the portion of SJCHS’s request seeking the appointment of an emergency guardian who would also be ordered to discharge Farr from the hospital. Thereafter, the sole issue in dispute was whether SJCHS alleged sufficient facts to establish the need for an emergency guardian.

At the hearing, SJCHS asserted that the emergency was Farr’s need to have a representative who could make decisions on her behalf, but the probate court rejected the contention that this required the appointment of an emergency guardian as opposed to a permanent guardian. Indeed, the court opined that the only “emergency” was SJCHS’s desire to discharge Farr from its acute-care facility, which the court did not consider to be an emergency within the meaning of OCGA § 29-4-14 (b) (4). Thus, the court determined that there was no need to proceed with an evidentiary hearing due to a lack of probable cause and dismissed SJCHS’s petition. This appeal by SJCHS follows.

In its sole enumeration of error, SJCHS argues that the trial court erred in dismissing the petition for appointment of an emergency guardian. We disagree.

As the trial court correctly determined, SJCHS presented nothing to satisfy OCGA § 29-4-14’s requirement of establishing “an immediate and substantial risk of death or serious physical injury, illness, or disease unless an emergency guardian is appointed.” And while SJCHS sought the appointment of an emergency guardian to effectuate its desire to discharge Farr from its acute-care facility and transfer her to a nursing facility that it deemed more appropriate, there was no indication that Farr was threatened by an immediate and substantial risk of death, serious physical injury, illness, or disease necessitating such a discharge and transfer. Accordingly, the trial court did not err in dismissing the petition for lack of probable cause in failing to satisfy the requirements of OCGA § 29-4-14 (b) (4).

Decided May 29, 2013.

Brennan & Wasden, Wiley A. Wasden III, Maria C. Danello, for appellant.

Gannam & Gnann, J. Hamrick Gnann, Jr., JackK. Berry, Jr., for appellee.

For all the foregoing reasons, we affirm the trial court’s dismissal of SJCHS’s petition for the appointment of an emergency guardian.

Judgment affirmed.

Andrews, P. J., and McMillian, J., concur.

       This was not the first instance in which SJCHS petitioned the probate court with regard to Farr hut, for purposes of this appeal, we need not repeat the entire history of probate filings made between SJCHS, Farr, and Farr’s family.

       OCGA § 29-4-14 (b) (4) (emphasis supplied).

       Farr’s son did not dispute that she was incapacitated and in need of a guardian.

        Compare OCGA § 29-4-10 (setting forth the procedures to petition for the appointment of a guardian) with OCGA § 29-4-14 (setting forth the procedures to petition for the appointment of an emergency guardian).

        See OCGA § 29-4-14 (b) (4) (requiring a petition for an emergency guardian to “establish an immediate and substantial risk of death or serious physical injury, illness, or disease”).

       Specifically, the trial court determined “that the petition fails to satisfy the requirements of OCGA § 29-4-14 (b) (4) as required by OCGA § 29-4-15 (a).” See OCGA § 29-4-15 (a) (“Upon the filing of a petition for an emergency guardianship, the court shall review the petition and the affidavit, if any, to determine whether there is probable cause to believe that the proposed ward is in need of an emergency guardian within the meaning of paragraph (4) of subsection (b) of Code Section 29-4-14.”); OCGA § 29-4-15 (b) (“If the court determines that there is no probable cause to believe that the proposed ward is in need of an emergency guardian, the court shall dismiss the petition . . ..”).

        See OCGA § 29-4-14 (b) (4).

        Compare In re Holloway, 251 Ga. App. 892, 893 (555 SE2d 228) (2001) (after proposed ward fell and broke her hip in a nursing home, “[b]ecause of her children’s inability to agree on whether she should receive medical treatment in Cordele or Macon, an emergency guardian had to be appointed to consent to immediate surgery”)- We note in passing that SJCHS’s appellate brief goes to great lengths to compare the facts in this case to those in In re Hodgman, 269 Ga. App. 34 (602 SE2d 925) (2004). But rather than cite to the case itself for those facts, SJCHS cites almost exclusively to the briefs filed in this Court upon its consideration of the appeal in Hodgman, and the facts describedby SJCHS do not appear in our opinion in that case. Suffice it to say, statements of fact in prior appellate hriefs are not binding authority on this Court. And furthermore, the issues actually discussed in Hodgman are inapposite to those involved in the case sub judice - i.e., whether venue was proper and whether the trial court abused its discretion in appointing a guardian outside of a preference indicated by statute. See id. at 35-36.

        Cf. In re Pitts, 219 Ga. App. 15, 16 (463 SE2d 550) (1995) (“As we agree with the probate court’s determination... that [the] petition failed to establish probable cause that the grounds necessary to seek a modification of guardianship exist, we find that the prohate court did not err in dismissing [the] petition without first conducting a hearing.”).


author: BARNES, Presiding Judge.

text:
    A13A0556.
    HAYNES v. THE STATE.
    (743 SE2d 617)
   BARNES, Presiding Judge.

A jury found Darius Darnell Haynes guilty of armed robbery, aggravated assault, burglary, and possession of a firearm during the commission of a felony based on his participation in a home invasion. The trial court denied Haynes’s motion for new trial. On appeal, Haynes contends that there was insufficient evidence to convict him of aggravated assault and that the trial court erred in failing to merge his aggravated assault conviction into his armed robbery conviction for purposes of sentencing. For the reasons set forth below, we agree with Haynes that the trial court erred with respect to merger, and for that reason, we must vacate his conviction and sentence for aggravated assault and remand for resentencing. We otherwise affirm.

Following a criminal conviction, the defendant is no longer presumed innocent, and we view the evidence in the light most favorable to the jury’s verdict. Braham v. State, 260 Ga. App. 533 (580 SE2d 256) (2003). So viewed, the evidence showed that on the evening of January 7, 2010, a husband and wife were at home with their three children. A tenant rented a room in the basement of the home, but he was not there that evening.

Responding to a knock at the front door, the husband was confronted by two men holding handguns. The first gunman wore a baseball cap with a hoodie pulled over it, while the second gunman had on a baseball cap, a hoodie, and a piece of clothing covering his face. The two gunmen forced their way through the doorway and into the living room. During the course of the home invasion, they repeatedly demanded money and demanded to know the whereabouts of the tenant who lived in the basement.

The husband began wrestling with the first gunmen while his wife ran down the hall in an effort to find her cell phone and call for help. The second gunman then hit the husband in the head with his gun and ran down the hall in pursuit of the wife. After getting hit with the gun, and after the first gunman threatened to have his partner shoot the wife and children if the husband continued to fight, the husband stopped wrestling with the gunman. The husband stood in front of his children in an effort to shield them from harm as the first gunman held them at gunpoint. During the fight with the husband, the hoodie had slipped off the first gunman’s head, and the husband could now get “a clear look at [the gunman’s] face” as he was pointing the gun at the husband.

When the wife was unable to find her cell phone, she barricaded herself in the master bathroom. The second gunman who had pursued her down the hall began banging on the bathroom door, and the wife opened the door out of fear that he would start shooting. The second gunman forced her to walk back down the hall into the living room at gunpoint, where she was ordered to lie down on the floor. The wife was able to clearly see the face of the first gunman, who was pointing a gun at her husband, as she was forced into the living room and onto the floor at gunpoint.

After forcing the wife back into the living room, the second gunman ran downstairs to the basement and began ransacking it. While the second gunman was ransacking the basement, the first gunman held the family at gunpoint in the living room, continuing to ask “where the money was” and “where [the tenant] was,” and the family repeatedly responded that they “didn’t know.” The husband implored the first gunman not to hurt them and for him and his partner to take whatever they wanted from the house. Unable to find the tenant or any money, the gunmen eventually grabbed electronics off a computer table and fled from the house.

Detectives identified Haynes as a potential suspect because he had previously been involved in a heated dispute over money with the tenant who lived in the basement of the family’s home. A detective prepared separate photographic lineups, each of which included a picture of Haynes, for the husband, wife, and their fourteen-year-old and six-year-old daughters to view individually. The fourteen-year-old daughter was unable to identify anyone in the photographic lineup, but the husband, wife, and their six-year-old daughter identified Haynes as the first gunman.

Haynes was indicted and tried before a jury on charges of armed robbery, aggravated assault, burglary, and possession of a firearm during the commission of a felony. The husband, wife, and their two daughters testified at trial about the home invasion and the photographic lineups that they viewed, and the husband and wife positively identified Haynes in the courtroom as the first gunman. The tenant testified regarding his dispute with Haynes over money, and the detectives involved in the case also testified on behalf of the State. In contrast, Haynes testified that he was not involved in the home invasion and presented several defense witnesses in an effort to establish that he had an alibi and had been erroneously identified by the family as one of the gunmen. After hearing the conflicting testimony, the jury found Haynes guilty of the charged offenses.

1. Haynes contends that there was insufficient evidence to convict him of aggravated assault, but his contention is.moot because we conclude in Division 2 below that his aggravated assault conviction merged into his armed robbery conviction for sentencing purposes. See Long v. State, 287 Ga. 886, 887-888 (1) (700 SE2d 399) (2010). With regard to Haynes’s remaining convictions, the evidence presented at trial and summarized above, construed in the light most favorable to the verdict, was sufficient to authorize a rational jury to find him guilty beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979). We therefore affirm his convictions on those counts.

2. Haynes contends that the trial court erred in failing to merge his aggravated assault conviction into his armed robbery conviction for purposes of sentencing. The indictment alleged that Haynes committed the offense of armed robbery under OCGA § 16-8-41 (a) in that, with the intent to commit a theft, he took certain electronic equipment from the immediate presence of the husband and wife “by use of an offensive weapon, to wit: a handgun.” The indictment further alleged that Haynes committed the offense of aggravated assault under OCGA § 16-5-21 (a) (2) in that he assaulted the husband “with an object, to wit: a handgun, which, when used offensively against another person is likely to result in serious bodily injury, by striking [him] in the back of the head with the handgun.” According to Haynes, the aggravated assault was a lesser included offense of the armed robbery, requiring merger. We agree.

‘Whether offenses merge is a legal question, which we review de novo.” McGlasker v. State, 321 Ga. App. 614, 616 (2) (741 SE2d 303) (2013).

It is axiomatic that Georgia law bars conviction for a crime that arises from the same criminal conduct included as a matter of fact or as a matter of law in another crime for which the defendant has been convicted. To determine if an aggravated assault with a deadly or offensive weapon, indicted under OCGA § 16-5-21 (a) (2), is a lesser included offense of armed robbery, we apply the “required evidence” test set forth in Drinkard v. Walker, 281 Ga. 211 (636 SE2d 530) (2006). Long[, 287 Ga. at 888 (2)]. Under that test, the important question is . . . whether, looking at the evidence required to prove each crime, one of the crimes was established by proof of the same or less than all the facts required to establish the commission of the other crime charged. In Long, the Supreme Court of Georgia concluded that there is no element of aggravated assault with a deadly or offensive weapon, OCGA § 16-5-21 (a) (2), that is not contained in armed robbery, OCGA § 16-8-41 (a). Consequently, convictions for both offenses will merge — but only if the crimes are part of the same act or transaction.

(Citations and punctuation omitted.) Crowley v. State, 315 Ga. App. 755, 759 (3) (728 SE2d 282) (2012). See OCGA § 16-1-6 (1); Long, 287 Ga. at 888-890 (2); McGlasker, 321 Ga. App. at 617 (2); Hall v. State, 313 Ga. App. 66, 67-69 (720 SE2d 181) (2011).

To determine if the striking of the husband with the handgun, which formed the basis for the aggravated assault conviction, was a separate act or transaction from the armed robbery, “we must inquire when the robbery began and when it concluded.” McGlasker, 321 Ga. App. at 617 (2). If the underlying facts show that the aggravated assault was completed prior to the armed robbery, or vice versa, there is no merger. See Brown v. State, 314 Ga. App. 198, 205-206 (6) (723 SE2d 520) (2012) (aggravated assault based on striking of victim with gun did not merge into armed robbery conviction, where armed robbery was complete before aggravated assault occurred); Ransom v. State, 298 Ga. App. 360, 361-362 (1) (680 SE2d 200) (2009) (aggravated assault based on pointing gun at victim did not merge into armed robbery conviction, where aggravated assault was complete before armed robbery occurred).

Here, the husband and wife testified that in addition to demanding to know the whereabouts of the tenant who lived in the basement, the gunmen repeatedly demanded to know “where the money was” during the home invasion, and the husband was struck in the head with the handgun as the gunmen were attempting to subdue the family so that the money and tenant could be located in the home, and before any of the family’s property had been taken. Under these circumstances, the striking of the husband with the handgun and the commission of the armed robbery were not separate and distinct acts committed in sequential order but rather were “one uninterrupted criminal transaction.” Crowley, 315 Ga. App. at 760 (3). For this reason, the aggravated assault conviction merged into the armed robbery conviction. See Long, 287 Ga. at 888-890 (2) (aggravated assault for striking victim with gun merged with armed robbery conviction); McGlasker, 321 Ga. App. at 617 (2) (aggravated assault predicated on pistol-whipping of victim during course of armed robbery merged with armed robbery conviction); Garland v. State, 311 Ga. App. 7, 12-13 (3) (714 SE2d 707) (2011) (aggravated assault for striking homeowner in head with gun merged with attempted armed robbery conviction).

Decided May 29, 2013.

Sharon L. Hopkins, for appellant.

The State, however, attempts to differentiate between the gunmen’s search for money in the home and their subsequent taking of the electronics when no money could be found. The State suggests that the gunmen’s efforts to subdue the family and hold them at gunpoint so that they could search for money in the home was a separate act or transaction from the ultimate taking of the electronics. We are unpersuaded.

We rejected a similar argument in Hall, 313 Ga. App. at 68-69, where the State attempted to differentiate Hall’s holding of one victim at gunpoint in an effort to find valuable musical equipment that Hall thought was located in the victims’ apartment, from Hall’s ultimate decision to take an Xbox console after failing to locate the musical equipment. Concluding that Hall’s aggravated assault and armed robbery convictions merged, we explained that

[t]he State’s argument that Hall’s taking of the Xbox console was an “afterthought” in no way changes this result. Indeed, it is not determinative under the merger analysis... that the desired object of Hall’s armed robbery was something other than that which he actually took. Instead, what dictates merger is the fact that both crimes for which Hall was convicted were predicated upon the same conduct — namely, Hall’s use of the handgun to overpower and intimidate [one of the victims] for the purpose of robbing the victims of their belongings.

Id. at 69.

Similar to Hall, the aggravated assault and armed robbery in the present case were predicated on the same conduct — the gunman’s use of the handgun to overpower and intimidate the husband for the purpose of robbing the family of their belongings. Thus, contrary to the State’s argument, the aggravated assault conviction merged into the armed robbery conviction, Haynes’s conviction and sentence for aggravated assault must be vacated, and the case must be remanded to the trial court for resentencing. See generally Sears v. State, 292 Ga. 64, 73-74 (6) (734 SE2d 345) (2012).

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

Miller and Ray, JJ., concur.

Daniel J. Porter, District Attorney, Franklin P. Clark, Assistant District Attorney, for appellee.

       The four photographic lineups prepared by the detective had pictures of the same six individuals (including Haynes), but the pictures were assigned a different order in each lineup.

       The couple’s son was one year old at the time of the home invasion.

       Detectives ultimately identified the second gunman, who had his face covered during the home invasion. The charges relating to the home invasion brought against the second gunman were nolle prossed as part of a plea deal under which the gunman pled guilty to other unrelated crimes.

       We note that neither battery nor aggravated battery was charged in this case. See Bradley v. State, 292 Ga. 607, 616 (740 SE2d 100) (2013) (Hunstein, C. J., concurring) (“Prosecutors seeking to avoid this incongruity in similar circumstances might be wise to seek indictment on aggravatedbattery, as an alternative to aggravated assault.”). See also McGlasker, 321 Ga. App. at 617 (2) (noting that “[n]either species of battery was charged” in the case).

       The State’s reliance on Bunkley v. State, 278 Ga. App. 450, 455-456 (2) (629 SE2d 112) (2006) is misplaced because that case was decided a few months before our Supreme Court’s decision in Drinkard, which disapproved the “actual evidence” test and adopted the “required evidence” test in its stead for determining when one offense is included in another under OCGA § 16-1-6 (1).


text:
    A13A0564.
    MARTINEZ v. THE STATE.
    (743 SE2d 621)
   Miller, Judge.

Following his conviction of aggravated assault (OCGA § 16-5-21 (a) (2)), simple battery (OCGA § 16-5-23 (a) (1)), and hindering an officer (OCGA § 16-10-24 (a)), Geraldo Martinez appeals from the denial of his motion for new trial. Martinez contends that the trial court erred in accepting his improper waiver of his right to grand jury presentment and an indictment perfect in form; trial counsel was ineffective in failing to ensure a proper waiver; and the evidence was insufficient to support his conviction for hindering an officer. For the reasons that follow, we affirm in part and reverse in part.

Viewed in the light most favorable to the verdict, the evidence shows that the victim knew Martinez and had hung out with him a few times. On October 2, 2008, the victim went over to Martinez’s house in Gordon County around 7:00 p.m. Around 8:00 p.m. Martinez and the victim walked to a liquor store to buy some beer and wine. While the victim was paying for his items at the store, Martinez noticed that the victim had about $900 in cash. After completing their purchase, Martinez and the victim went back to Martinez’s house.

At some point, after they returned to the house, Martinez asked the victim to go to the back yard with him. When they reached the back yard, Martinez hit the victim in the eye and repeatedly punched him in the stomach. The victim felt a painful, burning sensation and when he looked down he noticed that he had blood all over his stomach, pants and shirt. The victim walked away from Martinez’s house and toward a nearby road where he passed out. A witness found the victim lying in the road and took him to the hospital. The victim subsequently received medical treatment for a cut on his right eyelid, and exploratory surgery for a stab wound on his left side that entered his abdomen and cut through his entire abdominal wall.

A Calhoun Police Department detective interviewed the victim at the emergency room on the night of the incident. The victim identified Martinez as his attacker and provided directions to Martinez’s house. Upon the officers’ arrival at the house, Martinez, who was on the porch, ran inside the house. While searching the house, the patrolman noticed that the attic compartment was open. The patrolman identified himself as a police officer and repeatedly ordered anyone who was up in the attic to come down. Several minutes later, at his girlfriend’s request, Martinez finally came down from the attic. Martinez was then arrested and subsequently indicted for aggravated assault, battery and hindering an officer.

At trial, however, the prosecutor informed the trial court that the State intended to try Martinez by accusation because the language of the assault charge in the indictment was based on the use of a knife and the victim could not identify the solid object that was used in the assault. After speaking with trial counsel, Martinez verbally waived his right to reindictment and agreed to proceed on the accusation. The jury then convicted Martinez of aggravated assault, simple battery, and hindering an officer.

1. Martinez contends that the trial court erred in accepting his waiver of his right to grand jury presentment and an indictment perfect in form because his waiver was not in writing. We agree in part and reverse Martinez’s conviction for aggravated assault.

(a) OCGA §17-7-71 (a) pertinently provides: “In all misdemeanor cases, the defendant may be tried upon an accusation framed and signed by the prosecuting attorney of the court.” The accusations charging Martinez with simple battery and hindering an officer met the requirements of OCGA § 17-7-71 (a). Accordingly, Martinez had no right to grand jury indictment on those charges.

(b) With regard to the felony charge of aggravated assault, however, the State had to comply with the requirements of OCGA § 17-7-70 (a) in order to try Martinez by accusation rather than by grand jury indictment.

OCGA § 17-7-70 establishes the procedure for trials and guilty pleas on accusations. Subsection (a) gives the district attorney authority to file accusations against defendants in felony cases, other than capital felonies, when the defendant waives indictment by the grand jury in writing.

Smith v. Wilson, 268 Ga. 38 (1) (485 SE2d 197) (1997). Aggravated assault is not one of the felony crimes for which a defendant may be tried without an indictment or a written waiver. See OCGA § 17-7-70.1 (a) (1). Accordingly, the State was only authorized to try Martinez by accusation on the aggravated assault charge if Martinez waived indictment by the grand jury in writing. See OCGA § 17-7-70 (a).

Here, the evidence showed that Martinez verbally waived his right to grand jury indictment at the start of his trial. This is insufficient, however, because a written waiver was a necessary prerequisite to the trial court’s jurisdiction. See Roberson v. Balkcom, 212 Ga. 603 (1) (94 SE2d 720) (1956); Armstrongv. State, 281 Ga. App. 297, 298-299 (635 SE2d 880) (2006). Nothing in the record shows that Martinez waived his right to indictment in writing. Accordingly, Martinez’s aggravated assault conviction is void for lack of jurisdiction and must be reversed.

2. Martinez contends that the evidence was insufficient to support his conviction for hindering an officer. We disagree.

Under OCGA § 16-10-24 (a), “a person who knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties is guilty of a misdemeanor.” A conviction for misdemeanor obstruction or hindering an officer requires proof of “some form of knowing and wilful opposition to the officer sufficient to constitute obstruction or hinderance [sic].” (Punctuation and footnote omitted.) Connelly v. State, 298 Ga. App. 223, 224 (679 SE2d 790) (2009). This Court has held that a defendant’s flight from police and his attempt to conceal himself constitute sufficient evidence to support a conviction of misdemeanor hindering of an officer. See Cline v. State, 221 Ga.App. 175, 175-176 (471 SE2d 24) (1996); cf. Reddick v. State, 298 Ga. App. 155, 156-157 (679 SE2d 380) (2009) (holding that defendant’s actions in walking away from officers and refusing to stop when asked were sufficient to support his conviction for obstructing an officer).

Here, the evidence showed that Martinez fled into his house when the patrolman arrived in his patrol car. Martinez then hid in the attic of the house and refused to come down when ordered by the patrolman. Although Martinez argues that he did not resist arrest and had no verbal exchange with the patrolman, the evidence shows that his actions were not limited to a mere failure to immediately respond to the patrolman’s orders. Compare Coley v. State, 178 Ga. App. 668, 668-669 (344 SE2d 490) (1986) (holding that defendant’s failure to immediately respond to officer’s orders, without more, was insufficient to support defendant’s conviction under OCGA § 16-10-24).

By fleeing into the house and hiding in the attic when the police officers arrived, Martinez hampered and delayed the police in the lawful execution of their duty. See Cline, supra, 221 Ga.App. at 176. Accordingly, the evidence was sufficient for the jury to find Martinez guilty of misdemeanor hindering an officer.

Decided May 29, 2013.

Steven A. Miller, for appellant.

T. Joseph Campbell, District Attorney, Rosemary M. Greene, Assistant District Attorney, for appellee.

Judgment affirmed in part and reversed in part.

Barnes, P. J., and Ray, J., concur.

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

       In light of this holding, we need not address Martinez’s contention that trial counsel was ineffective with regard to the waiver of his right to indictment.

       Martinez does not challenge the sufficiency of the evidence supporting his conviction and sentence for simple battery.


author: DOYLE, Presiding Judge.

text:
    A13A0176.
    WYNN v. THE STATE.
    (744 SE2d 64)
   DOYLE, Presiding Judge.

Following a jury trial, Donnie Lee Wynn was convicted of rape, child molestation, and incest. He appeals the denial of his motion for new trial, challenging the sufficiency of the evidence with regard to his rape and incest convictions. Wynn also argues that the trial court abused its discretion by denying his motion for continuance and that he received ineffective assistance of counsel. For the reasons that follow, we affirm.

“On appeal from a criminal conviction, a defendant no longer enjoys the presumption of innocence, and the evidence is viewed in the light most favorable to the guilty verdict.”

So viewed, the evidence shows that on Saturday, May 6, 2006, Wynn checked into a motel room containing a single, king-sized bed with his 15-year-old daughter. After the victim went to sleep, Wynn got into bed with her, wrapped his arm around her chest, and began rubbing her stomach. Wynn then put his hands down the victim’s underwear and put his fingers inside her vagina. He then turned her onto her back, pulled off her pants and underwear, and directed her to open her legs. When the victim, who was pretending to be asleep because she was frightened, failed to comply, he opened her legs and then penetrated her with his hands and his penis. According to the victim, Wynn had sexual intercourse with her “all night.”

On Monday, May 8, 2006, the victim told her friend that “something happened with [her] dad.” Later that day, the victim and her friend were summoned to the principal’s office; “[b]oth girls were crying hysterically,” and the friend advised the principal that the victim “was raped by her father.” The victim then went to the school guidance counselor’s office, where she wrote a multi-page statement detailing the incident at the motel.

The victim was subsequently taken to the hospital, where a sexual assault kit was conducted, including cervical swabs. Authorities also obtained buccal swabs from both Wynn and the victim. Subsequent testing by the Georgia Bureau of Investigation (“GBI”) revealed that the cervical swabs taken from the victim contained spermatozoa, as well as the victim’s DNAand DNA of Wynn’s sperm cells.

Wynn testified at trial. He admitted that he took his daughter to a motel for the night on May 6, 2006, but he denied sexually assaulting her. Instead, Wynn testified that while the victim slept in the bed, he went in and out of the motel room while talking on the phone to his wife and watched television from a chair in the room, and he denied getting into the bed with the victim.

At the conclusion of the trial, the jury found Wynn guilty of rape, child molestation, and incest. The trial court denied Wynn’s subsequent motion for new trial, and this appeal followed.

1. Wynn contends that the evidence was insufficient to sustain his conviction for rape because the State failed to prove the element of force. We disagree.

“A person commits the offense of rape when he has carnal knowledge of. .. [a] female forcibly and against her will. . . . Carnal knowledge in rape occurs when there is any penetration of the female sex organ by the male sex organ.”

The term “against her will” means without consent; the term “forcibly” means acts of physical force, threats of death or physical bodily harm, or mental coercion, such as intimidation. The fact that a victim is under the age of consent may supply the “against her will” element in a forcible rape case since it shows that the victim is incapable of giving legal consent. Importantly, only minimal evidence of force is required in order to prove rape of a child, and intimidation may substitute for force. Further, force may be proved by direct or circumstantial evidence. Lack of resistance, induced by fear, is force, and may be shown by the victim’s state of mind from her prior experience with the defendant and subjective apprehension of danger from him.

Here, the victim testified that she pretended to be asleep during the assault because she was scared. When she failed to obey Wynn’s command that she open her legs, he pushed them open. As Wynn spoke to her, the victim did not reply and continued to pretend to be asleep. When Wynn went into the bathroom during the repeated acts of sexual intercourse, she remained motionless in the bed because she was scared to move. Further, the victim testified that it “did not feel good” when her father had intercourse with her.

“The testimony of a single witness is generally sufficient to establish a fact.” Here, “the victim’s testimony provided evidence of force necessary to support [Wynn’s] rape conviction[ ].” Thus, the trial court did not err by denying Wynn’s motion for new trial on this basis.

2. Next, Wynn challenges his conviction of incest, arguing that there was insufficient evidence of consanguinity. This argument is without merit.

OCGA § 16-6-22 (a) (1) provides in relevant part that “[a] person commits the offense of incest when such person engages in sexual intercourse ... with a person whom he ... knows he ... is related to either by blood or by marriage as . . . [f]ather and child.”

Wynn’s argument that there was insufficient evidence that he was the victim’s father is completely meritless, in light of the uncontested testimony of the victim and her mother that Wynn was the victim’s father, and, more importantly, Wynn’s repeated testimony at trial that the victim was his daughter. The trial court did not err by denying Wynn’s motion for new trial on this basis.

3. Wynn contends that the trial court abused its discretion by denying his motion for continuance made on the morning of trial. We disagree.

On October 22, 2007, Wynn filed a motion for serological testing of the DNA sample taken from the victim’s cervical swab during the sexual assault kit “to determine whether or not the DNA sample came from blood, saliva, semen, or sperm.” The trial court granted the motion on November 29, 2007. On January 8, 2008, GBI testing revealed the presence of spermatozoa and partially intact spermatozoa in the cervical smear slides, and the State faxed the results to Wynn’s trial counsel. The case was subsequently placed on a March 17, 2008 trial calendar. On March 10, 2008, Wynn filed a motion for continuance and for additional discovery, stating therein that although the defense had obtained the cervical swab from the victim, Wynn needed to obtain new “reference” buccal samples from himself and the victim for further testing by an independent laboratory.

The trial court heard argument on Wynn’s motion for continuance on the morning of the first day of the trial beginning April 21, 2008. Wynn’s trial counsel argued that he had just obtained the buccal swabs of the victim and the defendant two weeks previously, which did not give the laboratory enough time to perform additional testing. The State objected to a continuance, pointing out that the case had appeared on 14 calendars, including every available trial calendar beginning in February 2007, with a single exception. The State also argued that the defense did not need a buccal swab from the victim to determine whether the DNA matter obtained from the victim’s cervical swab contained semen or was some other bodily fluid of Wynn. The trial court denied the motion.

We will uphold a trial court’s ruling on a motion for continuance absent a clear abuse of discretion. “Further, to warrant a reversal on appeal, the appellant must also show that harm resulted from the denial of the continuance.” “To show harm, [Wynn] was required to specifically identify what other evidence or witnesses he would have put forth in his defense if his counsel had been given more time to prepare; speculation and conjecture are not enough.”

Here, the State’s experts testified that the DNA recovered from the victim’s cervical swab was identical to Wynn’s DNA. Other than by speculating, Wynn has failed to demonstrate how additional time would have benefitted him or how the lack of a continuance harmed him. Indeed, at the hearing on the motion for new trial, defense counsel argued that

[trial counsel] was ineffective . . . because the information that he could have obtained, the experts that he could have brought to trial, may have made a difference, and they may have provided a different opinion of the DNA evidence [,] and they may have provided a different outcome for the trial____

“Accordingly, the trial court did not err in denying the motion for continuance.”

4. Finally, Wynn contends that he received ineffective assistance of counsel. This argument presents no basis for reversal.

In order to prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. The criminal defendant must overcome the strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct. As the appellate court, we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts. As a general rule, matters of reasonable tactics and strategy, whether wise or unwise, do not amount to ineffective assistance of counsel.

(a) Wynn argues that trial counsel’s failure to present expert witnesses and obtain additional DNA evidence constituted ineffective assistance of counsel. As we concluded in Division 3, Wynn “failed to make a proffer of any favorable evidence that could have been elicited if an expert witness had been called. Thus, [Wynn] failed to meet his burden of showing both deficient performance on the part of trial counsel and prejudice arising from such performance.”

Decided May 30, 2013.

Debra R. Neumann, James C. Walker, for appellant.

Ashley Wright, District Attorney, Madonna M. Little, Assistant District Attorney, for appellee.

(b) Wynn contends that trial counsel was ineffective by failing to object to hearsay testimony or to the State “badgering” him during cross-examination and by failing to rehabilitate him after cross-examination. These claims, however, are not supported by specific citation or argument. Therefore, “[w]e deem these portions of [Wynn’s] ineffective assistance claim to be abandoned.”

Further, Wynn did not call his trial counsel as a witness at the motion for new trial.

Where, as here, trial counsel does not testify at the motion for new trial hearing..., it is extremely difficult to overcome this presumption [that counsel’s decisions were strategic. Wynn] thus made no affirmative showing that the purported deficiency in counsel’s representation was indicative of ineffectiveness, as opposed to being an example of a conscious, deliberate^] and reasonable trial strategy.

Judgment affirmed.

McFadden and Boggs, JJ., concur.

       OCGA § 16-6-1 (a) (1).

       OCGA § 16-6-4 (a) (1).

       OCGA § 16-6-22 (a) (1).

       (Punctuation omitted.) Goss v. State, 305 Ga. App. 497 (699 SE2d 819) (2010). See also Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

       The victim did not live with Wynn. She began spending time with him in 2005.

       OCGA § 16-6-1 (a).

       (Citations, punctuation and footnote omitted.) Wightman v. State, 289 Ga. App. 225, 227-228 (1) (656 SE2d 563) (2008).

       OCGA § 24-4-8 (2012).

        Brown v. State, 319 Ga. App. 680, 682 (1) (738 SE2d 132) (2013). See also Smith v. State, 319 Ga. App. 590, 592 (1) (a) (737 SE2d 700) (2013) (“the jury could infer from the victim’s testimony and her young age that she did not willingly consent but was intimidated into complying with [the defendant’s] demands out of fear”).

        See Pyburn v. State, 301 Ga.App. 372, 373 (1) (687 SE2d 909) (2009); Edmonson v. State, 219 Ga. App. 323, 324 (3) (464 SE2d 839) (1995), overruled on other grounds, Collins v. State, 229 Ga. App. 658 (495 SE2d b59) (1997) (unrebutted testimony of the defendant, his wife, and the victim that the defendant adopted the victim was sufficient to support his conviction for incest).

       See Carter v. State, 285 Ga. 394, 398 (7) (677 SE2d 71) (2009).

       (Punctuation omitted.) French v. State, 288 Ga. App. 775, 776 (2) (655 SE2d 224) (2007).

       (Punctuation omitted.) Whorton v. State, 318 Ga. App. 885, 890 (2) (735 SE2d 7) (2012).

       (Emphasis supplied.)

       Id. at 891 (2). See also Collum v. State, 281 Ga. 719, 724 (5) (642 SE2d 640) (2007).

        Whorton, 318 Ga. App. at 891-892 (4).

       (Citation and punctuation omitted.) Ellis v. State, 316 Ga. App. 352, 365(8) (e) (729 SE2d 492) (2012).

        Humphrey v. Riley, 291 Ga. 534, 544 (II) (I) (731 SE2d 740) (2012). See also Court of Appeals Rule 25 (c) (2).

       (Citation and punctuation omitted.) Newsome v. State, 288 Ga. 647, 652-653 (4) (706 SE2d 436) (2011).


text:
    A13A0294.
    ERICK v. THE STATE.
    (744 SE2d 69)
   BARNES, Presiding Judge.

Following a bench trial, the trial court found Phillip Moore Erick guilty of theft by taking based on evidence that he had misappropriated $20,000 owed to his employer. On appeal, Erick maintains that there was insufficient evidence that venue was proper in Gwinnett County. For the reasons discussed below, we affirm.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict[.]” Vadde v. State, 296 Ga. App. 405 (674 SE2d 323) (2009). So viewed, the evidence shows that Erick worked for D&S Glass Incorporated as a project manager who bid on glass-installation jobs on behalf of the company. However, during the summer of 2007, while he continued to work for D&S Glass, Erick decided that he wanted to start his own glass installation company.

In June 2007, Erick negotiated a contract for glass windows to be installed during the construction of a new home in Fulton County for a total price of $39,644, which included a $20,000 deposit. According to the homeowner, Erick held himself out as representing D&S Glass during the negotiations. In negotiating the contract, Erick also had the homeowner come to the Cobb County business location of D&S Glass to view different types of glass for possible installation and to meet with several representatives of the company.

The homeowner ultimately agreed to Erick’s proposal with the understanding that D&S Glass would be performing the glass installation work. At the homeowner’s direction, the general contractor overseeing the construction of the home finalized the documentation for the glass installation and paid the $20,000 deposit, and the homeowner reimbursed the contractor.

The general contractor had not been involved in the negotiations between the homeowner and Erick over the glass installation, had not gone with the homeowner to view different types of glass at the business location ofD&S Glass, and was unaware that Erick had held himself out to the homeowner as representing D&S Glass. On June 29, 2007, Erick had the general contractor sign a work proposal for the $39,644 glass installation that listed “Erick’s Glass, Co.” as the installer of the windows rather than D&S Glass, and he had the general contractor name “Erick’s Glass” as the payee on the $20,000 deposit check issued by the contractor.

Neither the signed work proposal nor the $20,000 deposit were provided by Erick to D&S Glass. Instead, Erick later provided the owners of D&S Glass with a work proposal for the glass installation that listed the total installation price as only $17,200.

Over the course of the summer, D&S Glass workers using glass and other materials ordered from that company began installation of the windows at the home under the direction of Erick. Erick continued to receive a salary from D&S Glass during this period.

Ultimately, however, very little progress was made in the installation of the windows. By the end of the summer, the homeowner and general contractor had become frustrated because only a small percentage of the windows had been installed, and the windows that had been installed repeatedly failed the quality control tests performed by the general contractor. In September 2007, the homeowner and general contractor met with Erick to discuss the installation problems. The meeting was held in the garage of the house under construction. During the meeting, Erick admitted that he had taken the $20,000 deposit check and used it to start his own glass company, “Erick’s Glass.” According to Erick, he had used the deposit to purchase a truck and a trailer for his new business rather than to pay D&S Glass for labor and materials. Because Erick had used the $20,000 for starting his own company, only 20 percent of the glass installation work had been completed by that point, and there were insufficient materials on site for completion of the job.

After Erick made these disclosures, one of the owners of D&S Glass was contacted, and he came to the garage, where he was informed of what Erick had done. Erick never returned to D&S Glass after the meeting and would not answer phone calls to him from the company’s owners. D&S Glass subsequently attempted to correct the installation problems and finish the installation of the glass at the home, but the homeowner ultimately had all of the windows that had been installed on the sides and back of the house removed and hired another company to complete the installation work. In the end, D&S received only $2,000 for the glass installation work it performed at the house.

The owners of D&S Glass contacted the police in Cobb County to report Erick’s misappropriation of the $20,000 because that was the county where the company was located. However, Cobb County transferred the case to Gwinnett County after learning that the $20,000 check had been deposited into an account associated with Erick via an automatic teller machine (“ATM”) located in the latter county. After he was indicted in Gwinnett County for theft by taking based on misappropriating the $20,000 owed to D&S Glass, Erick elected to have his case tried in a bench trial.

At the bench trial, the homeowner, the general contractor, the two owners of D&S Glass, and the Cobb County police investigator testified to the events as set out above. To establish venue, the State called a banking center manager from Bank of America as a witness, through whom bank business records were introduced into evidence. Business records for the bank reflected that the $20,000 check issued by the general contractor to “Erick’s Glass” had been endorsed for deposit only and had been deposited into a business account with Bank of America via a drive-up ATM located in Gwinnett County on June 29, 2007, the same day that the check had been provided to Erick. The business account was under the name of Erick’s wife d/b/a “Erick’s Glass Consultants.” The address listed on the account for “Erick’s Glass Consultants” was in Walton County and was the same address that had been listed for “Erick’s Glass, Co.” on the work proposal that Erick had the general contractor sign. The banking center manager was unable to identify from the business records the specific person who had made the deposit into the business account. The recordings from the surveillance camera at the ATM were no longer in existence for the date at issue.

Erick elected not to testify and presented no witnesses on his behalf. After hearing all of the evidence, the trial court denied Erick’s motion for a directed verdict of acquittal and subsequently found him guilty of theft by taking. Erick moved for a new trial, contending that there had been insufficient evidence to prove that venue was proper in Gwinnett County. The trial court disagreed and denied the motion. Erick later moved for permission to file an out-of-time appeal, the trial court granted the motion, and this appeal followed.

On appeal, Erick contends that the State failed to prove that venue was proper in Gwinnett County, and, therefore, that the trial court erred in denying his motion for a directed verdict of acquittal. Erick asserts that the State failed to prove that he was the person who deposited the $20,000 check into the ATM in Gwinnett County and thus failed to establish that he ever exercised control over the money in that county. We are unpersuaded.

“Venue is a jurisdictional fact[ ] and is an essential element in proving that one is guilty of the crime charged. Like every other material allegation in the indictment, venue must be proved by the prosecution beyond a reasonable doubt.” (Citations and punctuation omitted.) Bell v. State, 284 Ga. 790, 792 (1) (671 SE2d 815) (2009). Venue can be proven through direct or circumstantial evidence. Williams v. State, 297 Ga. App. 150, 151 (2) (676 SE2d 805) (2009). The question of venue is normally for the trier of fact, and the factfinder’s decision will not be set aside if there is any evidence to support it. Jones v. State, 245 Ga. 592, 596 (2) (266 SE2d 201) (1980).

Under Georgia law, “[a] person commits the offense of theft by taking when he unlawfully takes or, being in lawful possession thereof, unlawfully appropriates any property of another with the intention of depriving him of the property[.]” OCGA § 16-8-2. In a theft by taking case, “the crime shall be considered as having been committed in any county in which the accused exercised control over the property which was the subject of the theft.” OCGA § 16-8-11. Consequently, “the State bears the burden of proving that the defendant exercised control over the property taken in the county where the case was prosecuted.” Williams, 297 Ga. App. at 151 (2).

Notably, “[i]n a prosecution for theft by taking checks in one county and depositing them into a bank account in another county, venue is proper in either county.” Gautreaux v. State, 314 Ga. App. 103, 106(1) (722 SE2d 915) (2012). See Bearden v. State, 316 Ga. App. 721, 724 (2) (728 SE2d 874) (2012) (noting that “in the prosecution of theft by taking, venue is proper in the county where the checks were taken or deposited”). Additionally, venue is proper in the county where a defendant’s agent exercised control over the property. See Queen v. State, 210 Ga. App. 588, 589 (1) (436 SE2d 714) (1993), superseded in part by statute on other grounds as stated in Callaham v. State, 317 Ga. App. 513, 519 (2) (b) (732 SE2d 88) (2012). See also DeVine v. State, 229 Ga. App. 346, 348 (1) (494 SE2d 87) (1997) (noting that the “receipt of the funds by an agent of the defendant designated for that purpose [is] sufficient to establish venue”).

Here, there was evidence that the $20,000 check at issue was deposited into a Bank of America ATM in Gwinnett County on the same day that Erick had been provided the check by the general contractor. And while the State did not present direct evidence that Erick deposited the check, there was circumstantial evidence from which the trial court was entitled to infer that the deposit had been made by Erick or someone acting on his behalf. Specifically, the $20,000 check was deposited into a business account for Erick’s wife d/b/a “Erick’s Glass Consultants,” and Erick had identified his new glass installation company to the homeowner and general contractor at the September 2007 meeting as “Erick’s Glass.” Moreover, Erick had convinced the general contractor to sign a work proposal for the glass installation that listed “Erick’s Glass, Co.” as the installer rather than D&S Glass, and he had persuaded the general contractor to name “Erick’s Glass” as the payee on the $20,000 deposit check. Furthermore, Erick admitted to the homeowner and general contractor at the September 2007 meeting that he had used the $20,000 to buy a truck and trailer for his new glass installation company.

In light of this combined circumstantial evidence, the trial court was authorized to find that Erick or someone acting on his behalf exercised control over the $20,000 check in Gwinnett County by depositing the check into an ATM there. Accordingly, the trial court committed no error in finding that venue was proper in Gwinnett County and in denying Erick’s motion for a directed verdict of acquittal on that ground. See Bearden, 316 Ga. App. at 724 (2); Gautreaux, 314 Ga. App. at 106 (1); DeVine, 229 Ga. App. at 347 (1); Queen, 210 Ga. App. at 589 (1).

Judgment affirmed.

Miller and Ray, JJ., concur.

Decided May 30, 2013.

Douglas R. Daum, for appellant.

Daniel J. Porter, District Attorney, Stephen A. Fern, Assistant District Attorney, for appellee.

       Erick contends that the State failed to present competent evidence that an ATM debit card had been issued to him for the business account or that he had signed a signature card for the account at or around the time of the $20,000 deposit. But irrespective of whether the State presented competent evidence regarding an ATM debit card or a signature card, there was other circumstantial evidence that sufficiently linked Erick to the bank account, as discussed above.


text:
    A13A0570, A13A0571.
    FEDINA v. LARICHEV (two cases).
    (744 SE2d 72)
   DOYLE, Presiding Judge.

Following their divorce, Yuliya Fedina sued Alexi Larichev, seeking title to a condominium, cancellation of a security deed and promissory note, an accounting for Larichev’s business, and repayment of money she alleges Larichev owes to her. Larichev filed counterclaims for breach of contract and conversion. Following a bench trial, the trial court entered judgment in favor of Larichev as to Fedina’s claims and in favor of Larichev as to his counterclaims, but awarded him $0 in damages. Fedina appeals in two related cases, arguing in Case No. A13A0570 that the trial court erred by failing to cancel the security deed and promissory note and by finding in favor of Larichev as to her claim that he owed her money. In Case No. A13A0571, Fedina argues that the trial court erred by awarding Larichev attorney fees under OCGA § 9-15-14 (b) and by denying her post-judgment motions to unseal records from the Georgia Department of Human Services (“GDHS”) regarding Larichev and for an accounting of Larichev’s safe deposit box. We have consolidated the cases for review, and for the reasons that follow, we affirm in part, vacate the award of attorney fees, and remand.

When an appeal is taken from a judgment entered following a bench trial, we owe no deference to the way in which the court below resolved questions of law, but we accept its factual findings unless clearly erroneous, and we view the evidence in the light most favorable to the judgment.

So viewed, the evidence in this case shows that Fedina and Larichev were married on April 9, 2008. The couple separated several months later, and they decided to purchase a condominium for Larichev. On August 28, 2008, Fedina closed on the property. Because Larichev had poor credit, the property was titled in Fedina’s name. Although both parties provided funds for the purchase, in an effort to give Larichev “some financial interest in [the] property,” Fedina executed a promissory note and security deed, both of which listed Fedina as the borrower and Larichev as the lender. Larichev subsequently repaid Fedina in full for the amounts she paid toward the condominium.

The couple divorced shortly thereafter on January 14,2009, after reaching a settlement. On the day of the divorce, Fedina provided Larichev with a quitclaim deed for the condominium.

On May 11, 2010, Fedina filed the instant lawsuit against Larichev, seeking title to the condominium; cancellation of the security deed and promissory note, which Fedina characterized as “a sham”; an accounting for Larichev’s business, A&Y Trade, LLC; and repayment of money she alleged Larichev owed to her. Larichev filed an answer and counterclaim, asserting claims for breach of contract with respect to the promissory note and conversion based on Fedina’s alleged failure to reimburse him for money he lent to her.

After the quitclaim deed was recorded, Fedina filed a lis pendens on the condominium. Thereafter, Fedina filed an adverse claim bond pursuant to OCGA § 7-1-353 (b) (3), seeking access to a safe deposit box owned by Larichev. Following an emergency hearing, the trial court entered an order dissolving the bond and finding that Fedina was not entitled to restrict Larichev’s access to his safe deposit box or to have the contents delivered to the trial court (as requested by Fedina), but ordered that Larichev and his attorney conduct an inventory of the contents of the safe deposit box.

On June 3, 2011, Fedina filed a request for production on GDHS seeking Larichev’s federal income tax returns for 2008, 2009, and 2010 and copies of any financial statements filed by Larichev “in connection with any application for welfare benefits, including but not limited to Temporary Family Assistance, Food Stamps, [and] Medicaid.” GDHS filed a motion to quash the request, arguing that the requested documents are statutorily restricted by OCGA § 49-4-1 et seq. and by federal guidelines limiting the disclosure of public assistance records. The trial court, without holding a hearing, entered an order on July 12, 2011, sealing the GDHS records relating to Larichev.

The case proceeded to a bench trial on August 22, 2011. At the conclusion, the trial court entered an order finding in favor of Larichev as to Fedina’s claims and finding in favor of Larichev as to his counterclaim, but awarding damages in the amount of $0.

On October 7, 2011, Larichev filed a motion for attorney fees under OCGA § 9-15-14 (b), which motion the trial court granted, ordering Fedina to pay him $12,000. On December 6, 2011, Fedina filed a motion to unseal the GDHS records regarding Larichev and a motion to require Larichev to file the results of the inventory of his safe deposit box. The trial court denied both motions. These appeals followed.

Case No. A13A0570

1. Fedina argues that the trial court erred by failing to grant her request to cancel the promissory note that she executed, which she characterizes as “a sham.” We disagree.

In the final order, the trial court concluded that Fedina was not entitled to the equitable relief of cancelling the promissory note because she “has [u]nclean [h]ands with respect to this transaction.”

“Unclean hands” is a shorthand reference to OCGA § 23-1-10, which states, “He who would have equity must do equity and must give effect to all equitable rights of the other party respecting the subject matter of the action.” . . . OCGA § 23-1-10 embodies both the “unclean hands” doctrine and the concept that “one will not be permitted to take advantage of his own wrong.” However, relief is precluded only if the inequity so infects the cause of action that to entertain it would be violative of conscience.

The inequity “must relate directly to the transaction concerning which complaint is made. The rule refers to equitable rights respecting the subject-matter of the action. It does not embrace outside matters.”

Here, Fedina specifically characterizes the promissory note as a sham, testifying that at the time it was executed the parties actually intended that Larichev repay her, rather than agreeing that she owed Larichev. This evidence supports the trial court’s conclusion that Fedina had unclean hands, and her wrongdoing directly relates to her claim against which the doctrine is asserted. Moreover, Fedina’s self-serving testimony that the promissory note was “a sham” is an insufficient basis to cancel a promissory note. For these reasons, the trial court did not err by denying Fedina’s request to cancel the promissory note.

2. Fedina also argues that the trial court erred by denying her claim for repayment of money that she loaned to Larichev. We disagree.

Fedina claims that before the parties married, she loaned Larichev $25,000 to help him set up his business, and Larichev failed to repay her. Larichev, on the other hand, testified that he borrowed less than $25,000, and he repaid Fedina in full. The trial court rejected Fedina’s claim on the basis that the claim was barred by the doctrine of res judicata because it was made prior to their divorce, and their settlement agreement did not mention the loan.

The doctrine of res judicata prevents the re-litigation of all claims which have already been adjudicated, or which could have been adjudicated, between identical parties or their privies in identical causes of action. But as a matter of public policy, the doctrine of res judicata is less strictly applied in the context of divorce. Thus, the true rule of res judicata in divorce cases seems to be that a final decree has the effect of binding the parties and their successors as to all matters which were actually put in issue and decided, or which by necessary implication were decided between the parties. Moreover, in applying res judicata in cases where a settlement agreement was incorporated into the final judgment and decree of divorce, we apply the rules of contract construction to determine whether the agreement manifested an intent to settle all issues between the parties.

Here, the parties’ divorce settlement agreement provided that they “want to settle between themselves all questions of alimony, division of property, debts[,\ and all other rights and obligations arising out of their marital relationship.” The parties also acknowledged therein “that they have already made a division of their marital property, including . . . bank accounts . . . and other personal property.” Thus, the trial court properly concluded that Fedina’s claim for repayment of money she loaned to Larichev was barred by res judicata.

Case No. A13AO571

3. Fedina contends that the trial court erred by denying her post-judgment motion to unseal the GDHS documents regarding Larichev, specifically arguing that the trial court improperly sealed the records without first holding a hearing.

Notwithstanding the trial court’s failure to hold a hearing before placing the documents under seal as required by In re Atlanta Journal-Constitution, Fedina did not seek access to the records before or during the trial, nor did she object to the order sealing the documents. Thus, she waived this argument. And her contention that she intends to use the sealed documents as new evidence in her appeal is unavailing. Accordingly, we find no abuse of discretion.

4. Next, Fedina argues that the trial court erred by denying her post-trial motion to require Larichev to file the inventory of his safe deposit box. Again, Fedina did not request that Larichev do so before trial, nor did she raise the issue at trial. Thus, for the same reasons set forth in Division 3, this argument fails.

5. Finally, Fedina argues that the trial court erred by awarding Larichev $12,000 in attorney fees. The trial court awarded the fees underOCGA § 9-15-14 (b), concluding that (l)Fedina’s actions lacked substantial justification, and (2) “[t]he improper conduct of [Fedina], both in the prosecution of her claims . . . and her actions regarding title of the condominium and unauthorized authority in demanding the denial of access to [Larichev’s] safety deposit box, unnecessarily expanded the proceedings.”

Based on this evidence, the trial court did not abuse its discretion by awarding fees under OCGA § 9-15-14 (b). The trial court’s order, however, does not indicate how the court apportioned its award to fees generated based on Fedina’s sanctionable conduct. “As we have held in cases involving OCGA § 9-15-14 (a) or (b), the trial court must limit the fees award to those fees incurred because of the sanctionable conduct. Thus, ‘lump sum’or unapportioned attorney fees awards are not permitted in Georgia.” Larichev’s attorney submitted an affidavit with billing statements reflecting fees and expenses totaling $13,775.

The trial court’s award of $[12],000 may have been reasonable, but the trial court’s order, on its face fails to show the complex decision making process necessarily involved in reaching a particular dollar figure and fails to articulate why the amount awarded was $[12],000 as opposed to any other amount. Accordingly, we must vacate the award and remand for appropriate factfinding with respect to the amount of attorney fees to be assessed.

Decided May 30, 2013.

Contract. Cobb Superior Court. Before Judge Stoddard, Senior Judge.

Kenneth A. Hindman, for appellant.

Manko & Hogan, James D. Hogan, Jr., Cynthia L. Bower, for appellee.

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

Barnes, P. J., and Ray, J., concur.

       (Citation omitted.) French v. Dilleshaw, 313 Ga. App. 834, 835 (723 SE2d 64) (2012).

       Fedina later testified that she “really was not aware that [she] signed the promissory note,” explaining that she simply signed the documents that the attorney gave her at closing.

       The quitclaim deed is dated August 28, 2008, and it was recorded on July 26, 2010. Fedina testified, however, that she gave Larichev the quitclaim deed on January 14, 2009, the date the divorce was finalized. Fedina has never lived in the condominium, in which Larichev and his daughter reside.

       Fedina also filed two lawsuits in Cobb County Superior Court against the homeowners’ association for the condominium alleging fraud and breach of contract; Fedina ultimately dismissed both lawsuits, and the superior court required Fedina to pay the homeowners’ association $12,000 in attorney fees for abusive litigation under OCGA § 9-15-14 (b) based on the fact that she did not own the condominium.

       Fedina did not object to the trial court’s order sealing Larichev’s records, nor did she seek access to the records before or during trial.

       Fedina does not argue on appeal that the security deed should have been cancelled as well.

       We note that while Larichev sought to recover damages for breach of the promissory note in his counterclaim, in the subsequent consolidated pretrial order, Larichev sought only damages for Fedina’s alleged conversion of proceeds from the sale of a vehicle and attorney fees. Thus, Larichev apparently abandoned his attempt to recover under the promissory note at trial.

       (Citations and punctuation omitted.) Goodson v. Ford, 290 Ga. 662, 666 (5) (725 SE2d 229) (2012).

       (Punctuation omitted.) Hampton Island, LLC v. HAOP, LLC, 306 Ga. App. 542, 546 (3) (702 SE2d 770) (2010).

       See Williams v. Williams, 255 Ga. 264, 265 (336 SE2d 244) (1985).

       See Lovell v. Ga. Trust Bank, 318 Ga. App. 860, 863 (2) (734 SE2d 847) (2012) (“A promissory note is an unconditional contract whereby the maker engages that he will pay the instrument according to its tenor.... The note being an unconditional promise, the contract is complete as written. Parol evidence may not be used to impose conditions which are not apparent from the face of the note. An oral agreement between the parties, made contemporaneously with the execution of the note or prior thereto relating to a condition not expressed in the note is incompetent to change the contract as represented on the face of the note.”) (punctuation omitted).

       (Citations and punctuation omitted.) Ga. Neurology & Rehabilitation, P.C. v. Hiller, 310 Ga. App. 202, 207 (2) (b) (712 SE2d 611) (2011).

       (Emphasis supplied.)

       See Prince v. Prince, 147 Ga. App. 686, 689 (2) (250 SE2d 21) (1978) (res judicata barred ex-husband’s claim that ex-wife converted funds because their divorce settlement agreement stated that they intended “to settle all matters pertaining to alimony and division of property’).

       271 Ga. 436, 438 (519 SE2d 909) (1999) (“[BJefore a trial court may enter an order sealing a record, Uniform Superior Court Rule 21.1 specifically requires it to hold a hearing on the issue.”).

       See, e.g., Raszeja v. State, 298 Ga. App. 713, 714-715 (2) (680 SE2d 690) (2009) (appellant waived argument regarding admission of copies of photographs by failing to move to compel production of the originals or to object to admission of the copies); Mallard v. Forest Heights Water Works, 260 Ga. App. 750, 752 (2) (580 SE2d 602) (2003) (holding that appellant waived argument that the trial court erred by considering appellee’s summary judgment motion without first ruling on appellant’s motion to compel discovery responses because appellant never moved to continue the summary judgment ruling or otherwise object at the trial level).

       See, e.g., Seamon v. Seamon, 279 Ga. App. 151, n. 1 (630 SE2d 659) (2006) (“ ‘it is well established appellate procedure that this Court is unable to consider matters outside the record and transcript’ ”).

       See Haggard v. Bd. of Regents of Univ. System of Ga., 257 Ga. 524, 527 (4) (c) (360 SE2d 566) (1987); Ford v. Hanna, 293 Ga. App. 863, 868 (4) (668 SE2d 271) (2008).

       (Punctuationomitted.) Trotmanv. Velociteach Project Mgmt., LLC, 311 Ga.App. 208, 214 (6) (715 SE2d 449) (2011), citing Brewer v. Paulk, 296 Ga. App. 26, 31 (2) (673 SE2d 545) (2009).

       (Punctuation and footnote omitted.) Trotman, 311 Ga. App. at 214 (6). See also Huggins v. Chapin, 233 Ga. App. 109, 110 (503 SE2d 356) (1998).