author: DOYLE, Chief Judge.

text:
    A17A0067.
    PATEL et al. v. STATE OF GEORGIA.
    (801 SE2d 551)
   DOYLE, Chief Judge.

The State of Georgia filed a complaint for forfeiture in rem against the owners of a Citgo gas station based on alleged illegal commercial gambling on the premises using video gaming machines. The trial court granted the relief sought, and Tejaskumar Satish Patel and Dharmasut, LLC (“the defendants”), the owners of the station, appeal. For the reasons that follow, we affirm.

“We begin by noting that the interpretation of a statute is a question of law, which we review de novo on appeal. Moreover, because the trial court’s ruling on a legal question is not due any deference, we apply the ‘plain legal error’ standard of review.”

The evidence in this case is undisputed. In 2015, the Hall County Sheriff’s Department was informed that employees at the gas station were paying out cash to winners using the store’s coin-operated amusement machines. On May 25, 2015, a confidential informant placed $40 in a machine and redeemed the accumulated $20 credit with a store employee in exchange for two scratch-off lottery tickets. On June 1, 2015, the informant returned to the gas station, again placed $40 in a machine, and obtained a credit of $60. In exchange for the credit, a store employee gave the informant a $10 scratch-off lottery ticket and $40 in cash, and she put $10 in her own pocket.

On June 4, 2015, police executed a search warrant for the gas station and seized $12,027.50 in cash from video gaming machines, the registers, a cash bag, a safe, drawers, boxes, Patel’s wallet, and an ATM machine. The State then filed a complaint for forfeiture in rem pursuant to OCGA § 16-12-32. Following a hearing, the trial court approved the forfeiture, concluding that by paying out cash and lottery tickets as winnings for customers using the amusement machines, the appellants converted the machines to “gambling devices”; the gas station qualified as a gambling place; and the currency was “used in, intended for use in, used to facilitate, derived from, or realized through” gambling activity. This appeal followed.

The defendants contend that the trial court erred by granting the forfeiture because the video gaming machines at issue were not “gambling devices” under Georgia law. We disagree.

OCGA § 16-12-20 (2) (A) (2012) defines a “gambling device” as “[a]ny contrivance which for a consideration affords the player an opportunity to obtain money or other thing of value, the award of which is determined by chance even though accompanied by some skill, whether or not the prize is automatically paid by contrivance.” Because the gaming machines in this case offer players the opportunity to obtain value, and the award they receive is determined by chance even though they do involve an element of skill, they qualify as gambling devices under OCGA § 16-12-35.0CGA § 16-12-35 (d) (1) (2013), however, provides an exception, stating that Georgia’s gambling statutes do not apply to

a coin operated game or device designed and manufactured only for bona fide amusement purposes which involves some skill in its operation if it rewards the player exclusively with: (A) [f]ree replays; (B) [merchandise limited to noncash merchandise, prizes, toys, gift certificates, or novelties, each of which has a wholesale value of not more than $5.00 received for a single play of the game or device; (C) [p]oints, tokens, vouchers, tickets, or other evidence of winnings which may be exchanged for rewards set out in subpara-graph (A) of this paragraph or subparagraph (B) of this paragraph or a combination of rewards set out in subpara-graph (A) and subparagraph (B) of this paragraph; or (D) [a]ny combination of rewards set out in two or more of subparagraph (A), (B), or (C) of this paragraph.

Decided May 18, 2017

LaMalva Geoffroy & Oeland, David A. LaMalva, Paul J. Oeland IV, for appellants.

Lee Darragh, District Attorney, Shiv Sachdeva, Wanda L. Vance, Assistant District Attorneys, for appellee.

Here, the machines themselves do not produce cash or lottery tickets to players as rewards to players. The trial court concluded, however, that by giving players cash and lottery tickets as rewards for winning games on the machines, the gas station employees effectively converted them into gambling devices. OCGA § 16-12-32 (b) (3) (2015) permits the State to seize via forfeiture “[a]ny property located in this state which was, directly or indirectly, used or intended for use in any manner to facilitate a violation of this article or of the laws of the United States relating to gambling and any proceeds.” Thus, pretermitting whether the cash payouts from the employees converted the machines into “gambling devices” as defined by statute, these actions clearly violated the gambling laws of Georgia, which prohibit cash payouts for winning games on machines when the winnings are determined by chance even if they involve an element of skill. Accordingly, the trial court did not err by finding in favor of the State and approving the forfeiture.

Judgment affirmed.

Miller, P. J., and Reese, J., concur.

       (Citations and punctuation omitted.) State of Ga. v. Howell, 288 Ga.App. 176 (653 SE2d 330) (2007).

       The events were recorded on video surveillance equipment.

       OCGA § 16-12-35 (a) defines the term “some skill” as
      any presence of the following factors, alone or in combination with one another: (1) A learned power of doing a thing competently; (2) A particular craft, art, ability, strategy, or tactic; (3) A developed or acquired aptitude or ability; (4) A coordinated set of actions, including, but not limited to, eye-hand coordination; (5) Dexterity, fluency, or coordination in the execution of learned physical or mental tasks or both; (6) Technical proficiency or expertise; (7) Development or implementation of strategy or tactics in order to achieve a goal; or (8) Knowledge of the means or methods of accomplishing a task. The term some skill refers to a particular craft, coordinated effort, art, ability, strategy, or tactic employed by the player to affect in some way the outcome of the game played on a bona fide coin operated amusement machine as defined in paragraph (2) of Code Section 50-27-70. If a player can take no action to affect the outcome of the game, the bona fide coin operated amusement machine does not meet the “some skill” requirement of this Code section.

       At the hearing, the defendants introduced exhibits indicating that in March 2015 and July 2015, respectively, the Georgia Lottery Corporation (“the GLC”) and a company employed by the GLC, inspected the gaming machines in the Citgo and concluded that they were compliant with Georgia law and the GLC regulations.

       See, e.g., Patel v. State of Ga., 289 Ga. 479, 485 (3) (713 SE2d 381) (2011) (“[E]ven property that is lawful to possess and operate can be used to violate the law, and thus would be subject to forfeiture under the RICO statute if it is used in racketeering activity.”).


source: Caselaw Access Project

author: Rickman, Judge.

license: Public Domain

text:
    A17A0207.
    THE STATE v. BYRD.
    (801 SE2d 99)
   Rickman, Judge.

Aquino Rashaad Byrd was tried by a jury and convicted of aggravated child molestation, child molestation, and statutory rape. More than five years after the trial court entered judgment on the verdict, it granted Byrd’s motion for new trial on the general grounds. The State appeals from that decision. For the following reasons, we affirm.

The evidence presented at trial showed the following. In August 2008, the 12-year-old victim went with her cousin to Byrd’s residence. At the time, Byrd was 21 years old. The victim’s cousin asked Byrd if he wanted to have sex with the victim and after he responded affirmatively, she asked the victim if she wanted to have sex with Byrd. After indicating that she did want to have sex with Byrd, the victim went with Byrd into his bedroom. The victim testified that, while in his bedroom, Byrd performed oral sex on her and they engaged in sexual intercourse.

The victim’s cousin observed that the victim and Byrd were in his bedroom for approximately 10 to 15 minutes. Later in the day, the victim told her cousin that she and Byrd had “messed around,” which the cousin understood to mean that the two had sex.

A couple of months later, the victim’s mother feared that the victim might be pregnant. After asking the victim if she had sex with anyone, the victim admitted that she had sex with Byrd. The victim’s mother called the police. The victim was taken to a child advocacy center, where a forensic interviewer conducted a recorded interview of her. During the interview, the victim admitted that she had sex with Byrd. A copy of this recorded interview was published to the jury.

An investigator with the Ashburn Police Department conducted a recorded interview of Byrd. Byrd confessed to performing oral sex on the victim and engaging in sexual intercourse with her. Additionally, Byrd wrote a statement detailing his interaction with the victim. Both the recorded interview and the written statement were published to the jury. However, at trial, Byrd denied having any sexual relations with the victim. Byrd testified that he confessed out of “fear” of going to prison and that he felt “pressured” to write the statement.

Following his convictions, Byrd filed a timely motion for new trial asserting the general grounds. Later, Byrd filed an amended motion for new trial seeking additional grounds for relief. Following a hearing, the trial court granted Byrd’s motion for new trial on the general grounds.

1. The State contends that Byrd waived his right to a new trial based on the general grounds. Specifically, the State argues that because Byrd failed to address the general grounds during the hearing on his motion for new trial or in his brief to the trial court following the hearing, he waived them. We disagree.

In the context of a motion for new trial, grounds for relief must be raised “in either [the] motion for new trial or at the hearing on the motion for new trial.” Jones v. State, 272 Ga.App. 563, 564 (2) (a) (612 SE2d 852) (2005) (emphasis supplied). Byrd expressly raised the general grounds in his first motion for new trial. Additionally, in his amended motion for new trial Byrd asked that “[the] amended motion and the original motion which it amends be inquired into.” The State argues that Byrd affirmatively abandoned this argument because at the hearing on the motion for new trial, his counsel indicated that he would brief “a couple of issues,” and yet the brief did not mention the general grounds. However, these actions do not amount to an express waiver.

“[Byrd] did not waive or abandon his claims under OCGA §§ 5-5-20 and 5-5-21, which were predicated upon the already existing trial record, by not separately raising those claims in an evidentiary hearing where the focus was upon his ineffective assistance claim.” (Citations omitted.) Hartley v. State, 299 Ga. App. 534, 541 (3) (683 SE2d 109) (2009). Nor did he waive or abandon his claims by failing to raise them in his brief following the evidentiary hearing. Accordingly, we find that Byrd did not waive his right to have a new trial granted on the general grounds. See id.

2. The State contends that the trial court erred by granting Byrd’s motion for new trial. Specifically, the State argues that the trial court abused its discretion because the evidence of Byrd’s guilt was overwhelming and demanded the jury’s verdict.

As a matter of constitutional due process, the evidence presented at trial and summarized above was, when viewed in the light most favorable to the verdicts, legally sufficient to authorize a rational jury to . . . find [Byrd] guilty beyond a reasonable doubt of the crimes for which [he] was convicted.

(Citations omitted.) State v. Hamilton, 299 Ga. 667, 670 (2) (791 SE2d 51) (2016). See Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979); see also Sanders v. State, 308 Ga.App. 303, 304 (1) (a) (707 SE2d 538) (2011), overruled in part on unrelated grounds by Washington v. State, 310 Ga. App. 775, 781-782 (7) (714 SE2d 364) (2011) (affirming appellant’s aggravated child molestation conviction where victim testified that appellant performed oral sodomy on her); Collins v. State, 269 Ga. App. 381, 382 (1) (b) (604 SE2d 240) (2004) (where this Court found the evidence sufficient to convict appellant of child molestation when appellant gave a statement to police that he “put his penis” inside the victim); Trejo v. State, 245 Ga.App. 316, 318 (2) (537 SE2d 755) (2000) (evidence sufficient to sustain statutory rape conviction where victim testified about the incident and the defendant admitted to police that he had sexual intercourse with the victim).

However, the fact that the evidence is legally sufficient to sustain Byrd’s convictions does not prohibit the trial court from exercising its discretion to grant a new trial on the general grounds. See Hamilton, 299 Ga. at 670 (2).

In exercising [its broad discretion to sit as a “thirteenth juror”], the trial judge must consider some of the things that she cannot when assessing the legal sufficiency of the evidence, including any conflicts in the evidence, the credibility of witnesses, and the weight of the evidence. Although the discretion of a trial judge to award a new trial on the general grounds is not boundless—it is, after all, a discretion that should be exercised with caution and invoked only in exceptional cases in which the evidence preponderates heavily against the verdict—it nevertheless is, generally speaking, a substantial discretion.

(Citation and punctuation omitted.) Id. “An appellate court will not disturb the first grant of a new trial based on the general grounds unless the trial court abused its discretion in granting it and the law and the facts demand the verdict rendered.” Id. See OCGA § 5-5-50.

In this case, the trial court stated in its new trial order that “[u]pon review of the record, arguments of counsel, and considering the credibility of witnesses, conflicts in the evidence and the weight of the evidence, the [trial court] finds the verdict in this case contrary to the evidence and contrary to the principles of justice and equity.” Having reviewed the record, we note that this case rested entirely upon the credibility of Byrd, the victim, and witnesses. Under the facts and circumstances of this case, we are constrained by existing precedent to “conclude that the trial court, who observed the trial and who had the duty to examine the conflicts in the evidence and the credibility of the witnesses in ruling on the general grounds, did not abuse its broad discretion in granting [Byrd’s] new trial[ ] on the general grounds.” (Footnote omitted.) State v. Cash, 298 Ga. 90, 97 (2) (c) (779 SE2d 603) (2015); see also Hamilton, 299 Ga. at 670-671 (2); State v. Harris, 292 Ga. 92, 94-95 (734 SE2d 357) (2012). “Because the evidence presented at [Byrd’s] first trial was constitutionally sufficient to support the jury’s guilty verdicts, the State may elect to retry [him] on those counts.” Hamilton, 299 Ga. at 671 (4).

Decided May 18, 2017.

C. Paul Bowden, District Attorney, Jennifer D. Hart, Assistant District Attorney, for appellant.

John R. Mobley II, for appellee.

Judgment affirmed.

Ellington, P. J., and Andrews, J., concur.

       OCGA § 16-6-4 (c).

       OCGA § 16-6-4 (a).

       OCGA § 16-6-3 (a).

       Even when the evidence is legally sufficient to sustain a conviction, a trial judge may grant a new trial if the verdict of the jury is “contrary to . . . the principles of justice and equity,” OCGA § 5-5-20, or if the verdict is “decidedly and strongly against the weight of the evidence.” OCGA § 5-5-21. When properly raised in a timely motion, these grounds for a new trial — commonly known as the “general grounds” — require the trial judge to exercise a “broad discretion to sit as a ‘thirteenth juror.’ ”
      (Citation and punctuation omitted.) White v. State, 293 Ga. 523, 524 (2) (753 SE2d 115) (2013).

       The victim’s cousin is also Byrd’s niece.

       Byrd was acquitted of enticing a child for indecent purposes.

       OCGA § 5-5-50 provides: “The first grant of a new trial shall not be disturbed by an appellate court unless the appellant shows that the judge abused his discretion in granting it and that the law and facts require the verdict notwithstanding the judgment of the presiding judge.”


author: DILLARD, Presiding Judge.

text:
    A17A0259.
    JOHNSON v. THE STATE.
    (801 SE2d 294)
   DILLARD, Presiding Judge.

Following a trial by jury, Angel Johnson was convicted of two counts of involuntary manslaughter, one count of cruelty to children in the second degree, and one count of making a false statement to law enforcement. Johnson appeals from these convictions, arguing that (1) the evidence was insufficient to find that her actions were the proximate cause of the victims’ deaths and injuries, and (2) even if the issue of causation was purely a question for the jury, the trial court erred in failing to give her requested instructions as to proximate cause. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the jury’s verdict, the record reflects that in December 2010, Johnson was living in a DeKalb County apartment with four of her children: four-year-old A. Q.; three-year-old D. Q.; two-year-old M. Q.; and approximately three-month-old K. P. Johnson’s boyfriend and K. P.’s father, Keith Lee Pinkney, also lived in the apartment. The couple was suffering from financial difficulties at the time, and their gas was disconnected. As a result, Johnson purchased a space heater to warm the apartment.

On the day in question, December 10, 2010, at 3:35 p.m., Johnson and Pinkney left the three older children—who Johnson claimed were napping—alone in the apartment while they took K. P to pick up and cash Johnson’s paycheck. They returned to the apartment approximately 30 minutes later to find the children still sleeping. Then, later that afternoon, Johnson, Pinkney, and K. P again left the sleeping older children alone while they picked up fast food. Johnson again reported that the children were still asleep when they returned.

Later that evening, around 9:00 p.m., Johnson put the three oldest children to bed together in the same room with the space heater turned on. And once the children were asleep, Johnson, Pinkney, and K. P again left the apartment. But before doing so, Johnson shut the bedroom door, blocked the apartment’s hallway with a sofa, and blocked access to the kitchen using a table. Johnson later explained that she did these things because one of her children was capable of unlocking the front door, and another child had previously knocked over a lamp, which had burned the floor.

After leaving the apartment this third time, Johnson and Pink-ney first stopped by a friend’s home and then went to purchase food at Burger King at 10:32 p.m., which was confirmed by the receipt’s timestamp. Johnson and Pinkney then took food back to their friend before returning home to the apartment. According to a witness who was familiar with Pinkney’s white Escalade, she did not see the vehicle when she arrived at the apartment complex at 10:45 p.m. This same witness indicated that she could smell something burning in the building at the time of her arrival. Johnson and Pinkney returned to the apartment complex shortly after this witness (between 10:45 p.m. and 10:50 p.m.), at which point they were observed exiting Pinkney’s Escalade with K. P. still in his car seat.

Once Johnson opened the door to the apartment, she could smell smoke emanating from within, and she jumped over the sofa to access the children’s smoke-filled room, where she found them in their beds. Johnson grabbed A. Q. while Pinkney grabbed D. Q., and they attempted to resuscitate the children outside of the apartment. Neighbors heard Johnson scream at approximately 10:55 p.m., and one called 911 for assistance at 10:57 p.m. Another neighbor, after hearing that a third child remained inside the apartment, ran in to retrieve two-year-old M. Q., who he found on the sofa blocking the hallway. M. Q. was alive, but skin was peeling away from his body.

At 11:07 p.m., first responders arrived, and M. Q. was immediately transported to the hospital, where he was treated for second- and third-degree burns. M. Q. survived, but remained in the hospital for more than one month to be treated for smoke inhalation, carbon-monoxide poisoning, thermal burns, and corneal injuries. He was also placed on a ventilator and underwent five skin-graft operations to his hands, arms, and head. At trial, a doctor testified that even if M. Q. undergoes future surgeries, he will always sustain scarring from his injuries.

Three-year-old D. Q. was also transported to the hospital and, although he lacked a pulse and was not breathing, paramedics attempted to resuscitate him. D. Q. was pronounced dead at the hospital. His body was burned and blistered, and black mucous and soot were found in his airway, with smoke inhalation the determined cause of death. Four-year-old A. Q. was pronounced dead at the scene. Like her brother, A. Q.’s body was burned and blistered, and smoke inhalation was the determined cause of death.

In the children’s bedroom, firefighters found the walls covered with smoke and soot stains, and the space heater was discovered lying face down on or near one of the children’s mattresses. In addition to the mattresses, the room was also filled with other combustible materials, including blankets, toys, and bunk beds. And when firefighters entered the room, the space heater was still plugged in and running, the unit lacking an automatic cut-off switch that would have triggered when it tipped over. Finally, although the fire had smoldered out after approximately 45 minutes, most likely because the bedroom door was shut (which also prohibited the smoke detector from alerting), firefighters still extinguished “hot spots” upon arrival, including burning embers on the mattress.

During an interview with law enforcement, Johnson told an investigator that she was outside smoking a cigarette before discovering the fire, and she denied having left the apartment complex. But she later admitted to law enforcement that she had in fact been away from the apartment when the fire started, and she testified to the same at trial and admitted that her original statement to law enforcement was false.

Johnson was subsequently convicted of two counts of involuntary manslaughter as to A. Q. andD. Q., one count of cruelty to children in the second degree as to M. Q., and one count of making a false statement to law enforcement. She appeals from the convictions for involuntary manslaughter and cruelty to children in the second degree, and the trial court’s denial of her motion for new trial. We turn now to Johnson’s specific claims of error.

1. First, Johnson argues that no rational finder of fact could have found beyond a reasonable doubt that her “act of leaving her children alone in her apartment was unlawful or that it was the proximate cause of their injuries.” In other words, she challenges the sufficiency of the evidence to support her convictions for involuntary manslaughter and cruelty to children in the second degree.

At the outset, we note that when a criminal conviction is appealed, the appellant no longer enjoys a presumption of innocence. The relevant question before us, then, is whether, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” We are not at liberty to weigh the evidence or determine witness credibility, and the jury’s verdict will be upheld so long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case.

In this case, it is undisputed that Johnson left three of her children home alone the night of December 10, 2010, and that a toppled space heater ignited a fire in their bedroom, causing their injuries while she was absent. Nevertheless, she contends that (1) leaving the children home alone in a closed room with a space heater on was not unlawful; (2) even if leaving her children alone were unlawful, this was not the “but for” cause of their injuries when those same injuries could have been sustained even if she had been home; and (3) the space heater’s lack of an automatic cut-off switch was an unforeseeable intervening cause.

A person commits involuntary manslaughter “in the commission of an unlawful act when he causes the death of another human being without any intention to do so by the commission of an unlawful act other than a felony.” Here, Johnson was indicted for committing involuntary manslaughter in the commission of the unlawful act of reckless conduct, which is a misdemeanor committed when a person “causes bodily harm to or endangers the bodily safety of another person” by “consciously disregarding a substantial and unjustifiable risk that his act or omission will cause harm or endanger the safety of the other person and the disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation ... .” More specifically, Johnson was indicted for two separate counts of involuntary manslaughter as to A. Q. and D. Q. in that she

did unlawfully while in the commission of Reckless Conduct, a misdemeanor, cause the death[s] of [A. Q.], a four-year-old human child [and D. Q., a three-year-old human child], by consciously disregarding a substantial and unjustifiable risk that [her] acts would cause harm and endanger the safety of. . . [A. Q. and D. Q.] in that the accused person[ did leave . . . four-year-old [A. Q.] [and three-year-old D. Q.] without adult supervision in said accused person[’s] home, residence, and dwelling place[,] ... [A. Q. and D. Q.] being left by the accused person[ ] with ... a two-year-old child in a bedroom with a space heater which caught fire to items in the bedroom thereby inflicting injuries and death upon . . . four-year-old [A. Q.] [and three-year-old D. Q.] by smoke inhalation, such disregard by the accused person[ ] being a gross deviation from the standard of care which a reasonable person would exercise in the situation.

As for cruelty to children in the second degree, a person commits this offense when “such person with criminal negligence causes a child under the age of 18 cruel or excessive physical or mental pain[.]” Johnson was indicted for committing this offense in that she did,

with criminal negligence, cause [M. Q.], a two-year-old child, cruel and excessive physical pain by consciously disregarding a substantial and unjustifiable risk that [her] acts would case harm and endanger the safety of. . . [M. Q.] in that the accused person[ ] did leave . . . two-year-old [M. Q.] without adult supervision in [the] accused person[’s] home, residence, and dwelling place[,] said two-year-old [M. Q.] being left by the accused person[ ] with a three-year-old child and a four-year-old child in a bedroom with a space heater which caught fire to items in the bedroom thereby inflicting injuries upon . . . two-year-old [M. Q.] and burning him, such disregard by the accused person[ ] being a gross deviation from the standard of care which a reasonable person would exercise in the situation.

Our Supreme Court has recognized that “[b]oth cruelty to children in the second degree and reckless conduct are crimes involving criminal negligence.” And criminal negligence is “an act or failure to act which demonstrates a willful, wanton, or reckless disregard for the safety of others who might reasonably be expected to be injured thereby.” Here, despite her protestations regarding proximate cause, the jury was presented with sufficient evidence to find that Johnson committed the misdemeanor of reckless conduct and that, by doing so, she caused the deaths of A. Q. and D. Q.; and to show that Johnson committed cruelty to children in the second degree as to M. Q. Indeed, Johnson, who testified in her own defense at trial, admitted to leaving her four-, three-, and two-year-old children home alone on multiple occasions on the day in question; to knowing that space heaters can cause fires; to knowing that her children were capable of engaging in potentially harmful or dangerous conduct (which was why she moved furniture within the apartment to block the children’s access to the front door and kitchen); to knowing that there was sufficient space in the Escalade to fit all four children, such that they did not have to be left alone at any point that day; and to knowing that she had used poor judgment. Thus, because the jury was presented with undisputed evidence that, with the foregoing knowledge, Johnson left her four-, three-, and two-year-old children completely unattended for an extended period of time in a combustibles-filled room, sleeping on a mattress that was placed directly on the floor next to a space heater, the evidence was sufficient to find that she committed involuntary manslaughter in the commission of reckless conduct and to find that she committed cruelty to children in the second degree.

2. Johnson next argues that even if the evidence was sufficient to sustain her convictions and that the question of proximate cause was solely for the jury, the trial court nevertheless committed reversible error by failing to give her requested instructions as to proximate cause. Once again, we disagree.

Jury instructions must be read and considered “as a whole in determining whether the charges contained error.” And it is not reversible error to fail to charge in the exact language requested when “the charge given adequately covers the correct legal principles.”

Here, Johnson requested numerous instructions as to proximate cause, but the trial court declined to give Johnson’s specific requested instructions. Instead, the record reflects thatthe trial court instructed the jury, in relevant part, as follows:

A person commits involuntary manslaughter when that person causes the death of another human being without any intention to do so by the commission of the offense of reckless conduct.
In that connection, I charge you that the offense of reckless conduct is defined as follows: A person who causes bodily harm to or endangers the bodily safety of another person by consciously disregarding a substantial and unjustifiable risk that her acts or omissions will cause harm or endanger the safety of the other person and the disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation commits the offense of reckless conduct.
An injury or damage is proximately caused by an act whenever it appears from the evidence in the case that the act played a substantial part in bringing about or actually causing the injury and damage and that the injury and damage was either a direct result or a reasonably probable consequence of the act.
A person commits the offense of cruelty to children in the second degree when such person with criminal negligence causes a child under the age of 18 cruel or excessive physical or mental pain.
Criminal negligence is an act which demonstrates a willful, wanton, or reckless disregard for the safety of others who might reasonably be expected to be injured thereby.

Our Supreme Court has explained that “[pjroximate causation imposes liability for the reasonably foreseeable results of criminal (or, in the civil context, tortious) conduct if there is no sufficient, independent, and unforeseen intervening cause.” And here, the instructions given by the trial court adequately expressed the requirement that the children’s deaths and/or injuries must have been the proximate result of the alleged criminal acts—involuntary manslaughter in the commission of reckless conduct and cruelty to children in the second degree. Accordingly, the trial court did not err in declining to give Johnson’s additional requested instructions on proximate cause.

Decided May 18, 2017

Michael W. Tarleton, for appellant.

Robert D. James, Jr., District Attorney, Lenny I. Krick, Assistant District Attorney, for appellee.

For all these reasons, we affirm Johnson’s convictions.

Judgment affirmed.

Ray and Self, JJ., concur.

        See, e.g., Muse v. State, 323 Ga. App. 779, 780 (748 SE2d 136) (2013).

       It is undisputed that Pinkney was indicted for the same offenses as Johnson and pleaded guilty to them on March 3, 2015. Pinkney is not a party to this appeal.

       Johnson does not challenge her conviction for making a false statement to law enforcement.

        Arbegast v. State, 332 Ga. App. 414, 415 (1) (773 SE2d 283) (2015); Westbrooks v. State, 309 Ga. App. 398, 399 (1) (710 SE2d 594) (2011).

        Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

        Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001); Westbrooks, 309 Ga. App. at 399-400 (1).

       OCGA § 16-5-3 (a).

       OCGA § 16-5-60 (b).

       OCGA § 16-5-70 (c).

        Corvi v. State, 296 Ga. 557, 559 (1) (769 SE2d 388) (2015).

       OCGA § 16-2-1 (b); accord Corvi, 296 Ga. at 559 (1).

        See Bohannon v. State, 230 Ga. App. 829, 834 (1) (b) (498 SE2d 316) (1998) (affirming conviction for involuntary manslaughter in commission of reckless conduct when “conscious disregard was accomplished at the moment when the intoxicated appellant placed her three-month-oldbaby in bed so that [the child] would be defenselessly lying between herself and the co-defendant who was known to her at the time to be intoxicated to the point of being disoriented and high”); Turnipseed v. State, 186 Ga. App. 278, 280 (2) (367 SE2d 259) (1988) (physical precedent only) (affirming conviction for involuntary manslaughter in commission of reckless conduct when, although “at the time of the [pitbull] attack on the child, there was no state law specifically forbidding the ownership of pitbull terriers or specifically outlawing any one of [the defendant’s] isolated acts regarding the dogs, this did not preclude the jury from finding that the acts of keeping the dogs in the circumstances evidenced, and leaving them unguarded, all with the knowledge of past incidents, built up to reckless conduct on this occasion”); see also Baker v. State, 280 Ga. 822, 822-23 (1) (633 SE2d 541) (2006) (holding that evidence was sufficient to support conviction for misdemeanor reckless conduct when defendant left his nine-month-old and three-year-old sons unsupervised on upper floor of a two-story home near an unprotected flight of downward stairs); Reyes v. State, 242 Ga. App. 170, 172-73 (1) (529 SE2d 192) (2000) (holding that evidence was sufficient to support mother’s conviction for reckless conduct in failing to supervise three-year-old daughter found unconscious, bloody, and soaked with rainwater in neighbor’s yard after apparent attack by an animal, when evidence showed that mother allowed daughter to wander unsupervised, and daughter was missing for more than one hour before mother began looking for her).

        See Johnson v. State, 292 Ga. 856, 858 (1) (742 SE2d 460) (2013) (holding that finding of criminal negligence, on charge of second-degree cruelty to children as predicate felony for felony-murder charge, was supported by evidence that mother failed to prevent three-year-old son from accessing her methadone and failed to seek medical treatment once it became clear that he was ill); Kain v. State, 287 Ga. App. 45, 47-48 (1) (650 SE2d 749) (2007) (holding that evidence was sufficient to support mother’s conviction for cruelty to children in the second degree for criminal negligence in supervising her children when her failure to supervise her two-year-old daughter and her three-year-old son caused their deaths by drowning, and witnesses testified to mother’s past chronic neglect in supervising the children). Cf. Corvi, 296 Ga. at 560-61 (1) (holding that evidence was insufficient to establish that defendant’s conduct as to children who drowned in pool was so willful, wanton, or reckless as to constitute criminal negligence, thus precluding convictions for cruelty to children in the second degree and reckless conduct, when evidence established that sometime during defendant’s 45-minute telephone call, children left the bedroom where they had been playing and wandered to backyard pool, and the call itself was the extent of evidence of any failure to supervise the children).

        Kinsey v. State, 326 Ga. App. 616, 624 (3) (757 SE2d 217) (2014) (punctuation omitted); accord Alexander v. State, 308 Ga. App. 245, 246 (707 SE2d 156) (2011).

        Kinsey, 326 Ga.App. at 624 (3) (punctuation omitted); accord Head v. State, 261 Ga.App. 185, 187-88 (2) (582 SE2d 164) (2003).

       (Emphasis supplied.)

        State v. Jackson, 287 Ga. 646, 654 (3) (697 SE2d 757) (2010).

        See Flournoy v. State, 294 Ga. 741, 746 (3) (755 SE2d 777) (2014) (“The trial court’s instruction on felony murder and party to a crime, which referenced the allegations of the indictment, was sufficient to inform the jury that, in order to convict, it had to determine [the defendant] caused or was a party in the causing of [the victim’s] death, and thus no error is shown by the trial court’s failure to give a charge on proximate cause.”); Lewis v. State, 180 Ga. App. 369, 371 (3) (349 SE2d 257) (1986) (“With regard to the requirement that the death must have been the proximate result of the criminal act, this was adequately conveyed by the court’s instruction that the death must have occurred ‘as a result of’ the negligent omission.”).

        See Kinsey, 326 Ga.App. at 624 (3) (“[T]he foregoing jury charges, when read as a whole, were complete and fair, and in view of them, the trial court did not reversibly err in refusing to give a separate charge [as requested by the defendant].”); see also Scavonne v. State, 193 Ga.App. 603, 605 (3) (388 SE2d 735) (1989) (holding that trial court’s alleged failure to charge jury on proximate cause was not reversible error when court gave appropriate charge on the subject matter, and noting that when “the charge given substantially covers the applicable principles, failure to give requested instructions in the exact language requested is not error” (punctuation omitted)).


text:
    A17A0428.
    A17A0429.
    PALMER v. THE STATE. ELLERBEE v. THE STATE.
    (801 SE2d 300)
   DILLARD, Presiding Judge.

Royce Palmer and Brandon Ellerbee appeal from the trial court’s denial of their pleas in bar. Following that denial, both appellants were convicted, in a stipulated bench trial in Calhoun County, of theft by taking and criminal trespass and sentenced under the First Offender Act. Palmer and Ellerbee argue that the trial court erred in denying their pleas in bar when their prosecutions in Calhoun County were barred by double jeopardy because both had entered into a pretrial diversion program in Irwin County with regard to the same criminal conduct at issue in Calhoun County For the reasons set forth infra, we affirm Palmer and Ellerbee’s convictions.

The standard of review of a “grant or denial of a double jeopardy plea in bar is whether, after reviewing the trial court’s oral and written rulings as a whole, the trial court’s findings support its conclusion.” But when the evidence is uncontroverted and witness credibility is not an issue, “our review of the trial court’s application of the law to the undisputed facts is de novo.” Here, as stipulated to or testified to by both Palmer and Ellerbee at their Calhoun County plea-in-bar hearing and the subsequent bench trial, the record shows that on October 17, 2013, the appellants went to a farm in Calhoun County for the purpose of committing a theft. Thereafter, Palmer and Ellerbee took from the farm a trailer loaded with pecans, the combined value of the items being $28,240. The men then drove the trailer to Irwin County, where they unloaded the pecans for sale to a pecan company and then disposed of the trailer by pushing it into the Alapaha River. They were subsequently arrested in Irwin County and charged with two counts of theft by receiving stolen property. The pair was later arrested in Calhoun County and charged with theft by taking and criminal trespass.

On February 4, 2013, a grand jury in Calhoun County returned an indictment against Palmer and Ellerbee on counts of theft by taking and criminal trespass. Twenty-four days later, on February 28, 2013, Palmer and Ellerbee entered into a pretrial intervention program in Irwin County concerning their arrests for theft by receiving. It is undisputed that no indictment or accusation was ever filed in Irwin County, but the terms of the pretrial intervention agreement required two years of compliance with the program and payment of a $1,000 fine. Upon successful completion of the Irwin County program, the pending warrants against Palmer and Ellerbee would be dismissed. Both Palmer and Ellerbee paid the fine and began reporting to Irwin County authorities in compliance with the terms of the agreement.

Meanwhile, as to the indicted charges in Calhoun County, in early March 2013, the appellants waived arraignment. AndonDecem-ber 2, 2013, they waived their right to a jury trial. Finally, on March 3,2014, Palmer and Ellerbee each filed a plea in bar as to the charges in Calhoun County On that same day, they appeared in Calhoun County Superior Court for a hearing on their pleas in bar and, following the court’s denial of same, a consolidated, stipulated bench trial on the charges for theft by taking and criminal trespass.

When the Calhoun County hearing occurred, Palmer and Eller-bee had already paid the $1,000 fine and successfully completed one year of the two-year pretrial intervention program in Irwin County Thus, they argued that their prosecution in Calhoun County on charges stemming from the same criminal conduct was barred by double jeopardy But the trial court disagreed, and went on to convict both men of the Calhoun County charges following the stipulated bench trial. This consolidated appeal by Palmer and Ellerbee follows, in which both challenge the denial of their pleas in bar.

We begin our analysis by noting that the prohibition against double jeopardy in both the United States Constitution and the Georgia Constitution protects our citizens from, inter alia, being prosecuted a second time for the same offense after an acquittal or conviction. As our Supreme Court has previously explained, the bar to multiple convictions “usually arises [when] several crimes arising out of one criminal transaction are tried at the same time” and, in such cases, “the rule does not operate until after the verdicts.” But the bar to multiple convictions may “have a procedural aspect [when] the crimes arising out of the same criminal transaction are tried separately.” And when crimes are tried separately, “it is generally held that if multiple convictions arising out of a single prosecution are barred they will likewise be barred from successive prosecution.” Thus, when crimes are to be prosecuted separately, “the more serious known crimes should be prosecuted first to avoid the conviction of a lesser crime barring a subsequent prosecution for a more serious crime.”

In this regard, several Georgia statutory provisions, including OCGA § 16-1-7 and OCGA § 16-1-8, “provide limitations on multiple prosecutions, convictions, and punishments for the same criminal conduct.” Accordingly, because Georgia law “expands the proscription of double jeopardy beyond that provided for in the United States and Georgia Constitutions,” we look to these statutory provisions to resolve issues of double jeopardy. Finally, we note that when a “defendant in a single act violates the ‘peace and dignity’ of two sovereigns by breaking the laws of each, he has committed two distinct ‘offences[,]’ ” and he may be prosecuted by each sovereign “without violating the constitutional protection against double jeopardy.” That said, the various counties within Georgia are not separate sovereigns.

Turning to the statutes relevant to this appeal, we are mindful that in considering the meaning of a statute, our charge as an appellate court is to “presume that the General Assembly meant what it said and said what it meant.” And toward that end, we must afford the statutory text its plain and ordinary meaning, consider the text contextually, read the text “in its most natural and reasonable way, as an ordinary speaker of the English language would,” and seek to “avoid a construction that makes some language mere surplusage.” In summary, when the language of a statute is “plain and susceptible of only one natural and reasonable construction, courts must construe the statute accordingly.”

Bearing these principles of statutory construction in mind, OCGA § 16-1-7 provides, in relevant part:

When the same conduct of an accused may establish the commission of more than one crime, the accused may be prosecuted for each crime. He may not, however, be convicted of more than one crime if[ ] ... [o]ne crime is included in the other; or . . . [t]he crimes differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct.

And OCGA § 16-1-8 provides, in relevant part:

A prosecution is barred if the accused was formerly prosecuted for the same crime based upon the same material facts, if such former prosecution[ ] . . . [Resulted in either a conviction or an acquittal; or . . . [w]as terminated improperly after the jury was impaneled and sworn or, in a trial before a court without a jury, after the first witness was sworn but before findings were rendered by the trier of facts or after a plea of guilty was accepted by the court.

“Prosecution” is defined elsewhere in the Code as “all legal proceedings by which a person’s liability for a crime is determined, commencing with the return of the indictment or the filing of the accusation, and including the final disposition of the case upon appeal.”

After having considered these statutory provisions, the trial court denied Palmer and Ellerbee’s pleas in bar because (as the State again argues on appeal) there was no prosecution in Irwin County Indeed, it is undisputed that there had been neither an indictment returned nor an accusation filed there for either appellant.

We agree with the trial court that, after applying the undisputed facts in this case to the plain language of the relevant statutes (quoted supra), it is clear that Palmer and Ellerbee’s prosecution in Calhoun County was not barred by their decision to enter into a pretrial intervention program (a type of program expressly authorized by our General Assembly) in lieu of prosecution in Irwin County (a purpose which is recognized by the very statute that authorizes such programs). And while there might arguably be some tension between the incentive to enter into and complete a pretrial diversion program (which the appellants had not yet done at the time of their pleas in bar) and the principles that are applicable to double jeopardy, we need not address or attempt to resolve any such tension at this time. Once again, under the relevant facts and law applicable to this case, because Palmer and Ellerbee were not actually prosecuted in Irwin County, jeopardy did not attach.

Decided May 18, 2017.

Gilbert J. Murrah, for appellant (case no. A17A0428).

Mark D. Brimberry, for appellant (case no. A17A0429).

Accordingly, for all these reasons, we affirm the trial court’s denial of Palmer and Ellerbee’s pleas in bar.

Judgments affirmed.

Self, J., concurs. Ray, J., concurs in judgment only.

Joseph K. Mulholland, District Attorney, Moruf O. Oseni, Assistant District Attorney, for appellee.

        Johns v. State, 319 Ga.App. 718, 719 (738 SE2d 304) (2013) (punctuationomitted); accord Nicely v. State, 305 Ga.App. 387, 389 (1) (699 SE2d 774) (2010).

        State v. Hill, 333 Ga. App. 785, 785 (777 SE2d 265) (2015) (punctuation omitted).

       SeeOCGA § 16-8-7 (a) (“A person commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen unless the property is received, disposed of, or retained with intent to restore it to the owner. ‘Receiving’ means acquiring possession or control or lending on the security of the property.”).

       SeeOCGA § 16-8-2 (“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, regardless of the manner in which the property is taken or appropriated.”); OCGA § 16-7-21 (b) (“A person commits the offense of criminal trespass when he or she knowingly and without authority [ ] ... [ejnters upon the land or premises of another person or into any part of any vehicle, railroad car, aircraft, or watercraft of another person for an unlawful purpose [.] ”).

         See U. S. Const, amend. V (“. .. nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb . . .”); see also Brown v. Ohio, 432 U. S. 161, 165 (II) (97 SCt 2221, 53 LE2d 187) (1977) (“Because it was designed originally to embody the protection of the common-law pleas of former jeopardy, the Fifth Amendment double jeopardy guarantee serves principally as a restraint on courts and prosecutors. The legislature remains free under the Double Jeopardy Clause to define crimes and fix punishments; but once the legislature has acted courts may not impose more than one punishment for the same offense and prosecutors ordinarily may not attempt to secure that punishment in more than one trial.” (citation and footnote omitted)).

        See Ga. Const. Art. 1, § 1, ¶ XVIII (“No person shall be put in jeopardy of life or liberty more than once for the same offense except when a new trial has been granted after conviction or in case of mistrial.”).

        See Phillips v. State, 298 Ga.App. 520, 521 (1) (680 SE2d 424) (2009) (“The prohibition against double jeopardy in both the United States and Georgia Constitutions, among other things, protects against a second prosecution for the same offense after acquittal or conviction.”); Roberts v. State, 280 Ga.App. 672, 673 (634 SE2d 790) (2006) (“The prohibition against double jeopardy found in both the United States Constitution and Georgia Constitution protects against a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense.” (punctuation omitted)).

        Keener v. State, 238 Ga. 7, 8 (230 SE2d 846) (1976).

        Id.

        Id.

        Id.

        Phillips, 298 Ga. App. at 521 (1) (punctuation omitted); see OCGA § 16-1-6; OCGA § 16-1-7; OCGA § 16-1-8.

        Phillips, 298 Ga.App. at 521 (1) (punctuation omitted); see Prater v. State, 273 Ga. 477, 480 (4) (545 SE2d 864) (2001) (“Because the Georgia Code expands the [double jeopardy proscription] beyond that provided for in the United States and Georgia Constitutions, all questions of double jeopardy in Georgia must be determined under OCGA §§ 16-1-6,16-1-8 and 16-1-7.” (punctuation and footnote omitted)).

        Jackson v. State, 284 Ga. 826, 828 (4) (672 SE2d 640) (2009) (punctuation omitted).

        Id.

        See Perkinson v. State, 273 Ga. 491, 494 (1) (542 SE2d 92) (2001) (“It is also clear that Bartow and DeKalb counties are not separate sovereigns. Although more than one county and prosecutor are involved, all the criminal charges against [the defendant] were brought on behalf of the State of Georgia.” (citations omitted)); see also Jackson, 294 Ga. at 828 (4) (noting that Perkinson v. State “involved improper successive prosecutions for the same conduct in two Georgia counties, which are not separate sovereigns”). As an aside, we note that Calhoun and Irwin Counties are not in the same judicial circuit. See OCGA § 15-6-1 (34), (39) (“The entire state is divided into judicial circuits, in reference to the jurisdiction and sessions of the superior courts, as follows[ ] . . . South Georgia Judicial Circuit, composed of the Counties of Baker, Calhoun, Decatur, Grady, and Mitchell . . . [and] Tifton Judicial Circuit, composed of the Counties of Tift, Irwin, Worth, and Turner [.] ”).

        Deal v. Coleman, 294 Ga. 170, 172 (1) (a) (751 SE2d 337) (2013) (punctuation omitted); see also Arby’s Restaurant Group, Inc. v. McRae, 292 Ga. 243, 245 (1) (734 SE2d 55) (2012) (same); Martinez v. State, 325 Ga. App. 267, 273 (2) (750 SE2d 504) (2013) (same).

        See Deal, 294 Ga. at 172 (1) (a) (“To that end, we must afford the statutory text its plain and ordinary meaning.” (punctuation omitted)); State v. Able, 321 Ga.App. 632, 636 (742 SE2d 149) (2013) (“A judge is charged with interpreting the law in accordance with the original and/or plain meaning of the text at issue (and all that the text fairly implies). . . .”).

        See Arizona v. Inter Tribal Council of Arizona, Inc., _ U. S. _ (II) (B) (133 SCt 2247, 2254, 186 LE2d 239) (2013) (“Words that can have more than one meaning are given content, however, by their surroundings.” (punctuation omitted)); Deal, 294 Ga. at 172 (1) (a) (“[W]e must view the statutory text in the context in which it appears[.]”); see also Tibbles v. Teachers Retirement Sys. of Ga., 297 Ga. 557, 558 (1) (775 SE2d 527) (2015) (“The common and customary usages of the words are important, but so is their context.” (punctuation omitted)).

        Deal, 294 Ga. at 172-73 (1) (a); see Luangkhot v. State, 292 Ga. 423, 424 (1) (736 SE2d 397) (2013) (same).

        In the Interest of L. T., 325 Ga. App. 590, 592 (754 SE2d 380) (2014) (punctuation omitted); see also Ga. Transmission Corp. v. Worley, 312 Ga.App. 855, 856 (720 SE2d 305) (2011) (same).

        Holcomb v. Long, 329 Ga.App. 515, 518 (1) (765 SE2d 687) (2014) (punctuationomitted); see Deal, 294 Ga. at 173 (1) (a) (“[I]f the statutory text is clear and unambiguous, we attribute to the statute its plain meaning, and our search for statutory meaning is at an end.” (punctuation omitted)).

       OCGA § 16-1-7 (a) (l)-(2).

       OCGA § 16-1-8 (a) (l)-(2).

       OCGA § 16-1-3(14); see also Armstrong v. State, 281 Ga. App. 297, 298 (635 SE2d 880) (2006) (“A defendant is not placed in jeopardy until, in a court of competent jurisdiction with a sufficient indictment, he has been arraigned, has pled, and a jury has been impaneled and sworn.” (punctuation omitted)); Fletcher v. State, 213 Ga. App. 401, 404 (2) (445 SE2d 279) (1994) (same).

        See OCGA § 15-18-80 (a) (“The prosecuting attorneys for each judicial circuit of this state shall be authorized to create and administer a Pretrial Intervention and Diversion Program. The prosecuting attorney for state courts, probate courts, magistrate courts, municipal courts, and any other court that hears cases involving a violation of the criminal laws of this state or ordinance violations shall also be authorized to create and administer a Pretrial Intervention and Diversion Program for offenses within the jurisdiction of such courts.”). We note that OCGA § 15-18-80 (a) was slightly amended, effective July 1, 2016, so as to further provide that “[u]pon the request of the district attorney or solicitor and with the advice and express written consent of such attorney, the state or local governing authority may enter into a written contract with any entity or individual for the purpose of monitoring program participants’ compliance with a Pretrial Intervention and Diversion Program.” See Ga. L. 2016, p. 443, §§ 1-9, 14-1 (a). However, in all other respects, OCGA § 15-18-80 (a) remains the same as that which applied in 2013.

        See OCGA § 15-18-80 (b) (“It shall be the purpose of such a program to provide an alternative to prosecuting offenders in the criminal justice system.” (emphasis supplied)).

        Cf. Commonwealth v. McSorley, 485 A2d 15, 19 (Pa. Super. Ct. 1984) (“In placing a defendant into a diversion program, the state covenants to dismiss the charges once the defendant satisfies the conditions of the program. Unless the defendant violates one of those conditions, the state cannot prosecute him. Just as the terms of a plea bargaining arrangement are binding on the state, so must the terms of a diversion agreement bind the state. To hold otherwise, would create a disincentive for defendants to enter diversion programs.” (citation omitted)); State v. Urvan, 446 NE2d 1161, 1166-67 (IV) (Ohio App. 1982) (holding that defendant’s successful completion of pretrial intervention program in one county, and the entry of a nolle prosequi as to the relevant charges in that county, barred subsequent prosecution in a separate county for charges arising out of the same conduct). But see Evans v. State, 293 Ga. App. 371, 373 (1) (667 SE2d 183) (2008) (“While a plea bargain is a binding contract between the State and the defendant, we have not analyzed pre-trial intervention programs under contract law.” (citation omitted)); Buice v. State, 239 Ga. App. 52, 53 (1) (520 SE2d 258) (1999) (“The entry of nolle prosequi does not act as an acquittal or bar future prosecution for the same offense. Thus, an order of nolle prosequi is not necessarily the ending of the prosecution, but the continuance of the same as the State clearly has the authority to re-indict the defendant for the same offense.” (citation and punctuation omitted)); McGahee v. State, 133 Ga. App. 964, 966 (3) (213 SE2d 91) (1975) (“A nolle prosequi is a cessation of prosecution for the nonce, but it may spring into life again and be continued again with all of the fervor and energy at the command of the prosecuting officers. A new indictment may be returned or a new accusation may be filed, and the earlier nolle prosequi can in no sense be pleaded as autrefois acquit or former jeopardy, or res judicata.”).

        Cf. Pope v. State, 309 Ga. App. 728, 729 (2) (710 SE2d 911) (2011) (holding that plea in bar was properly denied when, “[bjecause the trial court did not accept a guilty plea to the dead-docketed Counts 4 and 5 of the Fulton County indictment which alleged the same crimes as the Gwinnett County indictment here, jeopardy did not attach”); Evans, 293 Ga.App. at 373 (1) (“[The defendant] argues that being sentenced to anything but drug court would constitute a second sentence on the same crime and thus constitute double jeopardy. But agreeing to attend drug court is not a ‘sentence.’ It is a pre-trial intervention contract in which the defendant agrees to attend drug court in exchange for the opportunity to avoid having a conviction on his record.”); Armstrong, 281 Ga. App. at 298-99 (affirming denial of plea in bar and holding that because superior court lacked jurisdiction to prosecute offense without an indictment or waiver of indictment, subsequent prosecution for that offense in a court of competent jurisdiction was “not barred on the basis of double jeopardy or prior prosecution” because jeopardy had not attached); State v. Nwobu, 652 A2d 1209, 1219 (IV) (N.J. 1995) (“[Pretrial intervention (PTI)] closely resembles probation, which has been recognized as a criminal sanction. However, punishment in the form of probation normally follows a finding of guilt. By its nature PTI is designed to furnish rehabilitative services in place of the normal criminal findings of guilt. In any event, we need not resolve whether PTI is a criminal punishment. We are satisfied that because [the defendant] lacked a reasonable expectation of finality in his status when the trial court ordered him into PTI, double-jeopardy provisions do not preclude the State’s prosecution of him.” (citation omitted)).


text:
    A17A0434.
    WALLIN et al. v. WALLIN.
    (800 SE2d 617)
   DILLARD, Presiding Judge.

In 2009, Cassie Wallin filed a lawsuit against her then father-in-law, Eugene (“Gene”) Wallin, and her soon-to-be-former husband, Jeremy Wallin, asserting claims for breach of an oral agreement and quantum meruit based on Gene’s refusal to deed a parcel of property to her. Following trial, a jury awarded $276,000 to Cassie on her quantum meruit claim, and shortly thereafter, the trial court entered judgment, affirming that award. But that same day, Gene transferred the subject property, via a security deed, to his brother’s former wife, Linda Wallin. Subsequently, Cassie filed suit against Gene, Linda, and Jeremy, claiming that the transfer of the property was fraudulent and, thus, should be set aside. And following a bench trial, the court agreed and voided the transfer. Gene, Linda, and Jeremy (collectively “appellants”) now appeal, arguing that the court erred in ruling the transfer was fraudulent under OCGA § 18-2-70 et seq. and in entering judgment against Jeremy when he was not a party to the allegedly fraudulent security deed. For the reasons set forth infra, we reverse the trial court’s judgment voiding the transfer.

We first note that on appellate review of a bench trial, “the factual findings shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” Importantly, in a bench trial, the judge sits as trier of fact, and “the court’s findings are analogous to a jury’s verdict and should not be disturbed if there is any evidence to support them.” But this Court reviews any questions of law decided by the trial court de novo.

So viewed, the record shows that in 1990, Gene’s brother, Jack Wallin, and Jack’s wife, Linda, purchased the subject property, which is located at 317 Deer Head Cove Road in Rising Fawn, Georgia, by obtaining a mortgage for $127,000 and executing a security deed in favor of the lender, Citizens Bank & Trust. On May 12,1994, Jack and Linda conveyed the property to Gene, via a warranty deed, but the parties executed no promissory note at that time, and instead, Gene made mortgage payments directly to Citizens Bank & Trust. Moreover, Jack and Linda retained possession of the property and, in fact, operated a business on it for several years.

In 2002, Jack and Linda divorced, and on January 29 of that year, allegedly as a means for Jack to satisfy part of the couple’s divorce settlement, Gene executed a promissory note in favor of Linda for $150,000. The promissory note, however, mentioned no collateral. At the same time, Gene executed a security deed in favor of Linda, pledging the property as collateral for the $150,000 promissory note, but this deed was never recorded.

Thereafter, Cassie and her then-husband, Jeremy, Gene’s son, rented the property from Gene but paid rent directly to Linda. During that time, Cassie and Jeremy made significant improvements to the property and operated two businesses on it for several years. In addition, Cassie and Jeremy paid the mortgages, insurance, and taxes on the property, allegedly under an oral agreement with Gene that, if they did so, he would deed the property to them. But in 2009, when Gene purportedly breached that agreement, Cassie filed suit against him and her soon-to-be-former husband, Jeremy, seeking damages on claims of breach of contract and quantum meruit.

As previously noted, on April 8, 2011, following trial, a jury awarded Cassie $276,000 on her quantum meruit claim, and on May 12, 2011, the trial court affirmed the jury’s verdict and entered a judgment in favor of Cassie. On that very same day, and with the assistance of the same counsel who represented him at trial, Gene executed a second security deed in favor of Linda, again pledging the subject property as collateral for the 2002 promissory note. Eight days later, unlike the 2002 deed, that deed was recorded.

On May 25, 2011, five days after the second deed from Gene to Linda was recorded, Cassie obtained a writ of fieri facias in the amount of $276,000 against Gene and Jeremy. But shortly after doing so, Cassie learned of the May 12, 2011 security deed that Gene had executed in favor of Linda. And on November 23, 2011, following unsuccessful efforts to collect on the judgment, Cassie filed suit against Gene, Linda, and Jeremy, alleging that the subject property was fraudulently conveyed and, thus, seeking to have the second deed voided.

After discovery, the case proceeded to a bench trial, during which all of the parties testified. Specifically, during Gene’s testimony, he conceded that he executed the second security deed so that Linda would have priority over Cassie to satisfy the debt he owed Linda under the 2002 promissory note. But Gene’s new counsel argued, inter alia, that even the unrecorded 2002 security deed gave Linda priority over Cassie’s judgment. Nevertheless, at the conclusion of the bench trial, the court entered an order finding that the conveyance was fraudulent because it was executed “to defeat and hinder” Cassie’s ability to collect on her judgment and voiding it on such grounds. Subsequently, Gene, Jeremy, and Linda filed a motion for reconsideration, which the trial court denied. This appeal follows.

1. The appellants contend that the trial court erred in ruling that Gene’s May 12, 2011 conveyance of the subject property to Linda, via a security deed, was fraudulent under the Uniform Fraudulent Transfers Act (“UFTA”), OCGA § 18-2-70 et seq. We agree.

Under the UFTA,

[a] transfer made or obligation incurred by a debtor is voidable as to a creditor, whether the creditor’s claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation... [wjith actual intent to hinder, delay, or defraud any creditor of the debtor [.]

And OCGA § 18-2-74 (b) lists several factors, colloquially known as “badges of fraud,” that “consideration may be given [to], among other factors,” in determining whether a fraudulent transfer has been made with actual intent to defraud a creditor:

(1) [t]he transfer or obligation was to an insider; (2) [t]he debtor retained possession or control of the property transferred after the transfer; (3) [t]he transfer or obligation was disclosed or concealed; (4) [bjefore the transfer was made or obligation was incurred, the debtor had been sued or threatened with suit; (5) [t]he transfer was of substantially all the debtor’s assets; (6) [t]he debtor absconded; (7) [t]he debtor removed or concealed assets; (8) [t]he value of the consideration received by the debtor was reasonably equivalent to the value of the asset transferred or the amount of the obligation incurred; (9) [t]he debtor was insolvent or became insolvent shortly after the transfer was made or the obligation was incurred; (10) [t]he transfer occurred shortly before or shortly after a substantial debt was incurred; and (11) [t]he debtor transferred the essential assets of the business to a lienor who transferred the assets to an insider of the debtor.

Thus, a creditor who can show a fraudulent conveyance has “numerous remedies under the Act including but not limited to avoidance of the transfer and attachment of the asset transferred.”

In this matter, Cassie argued, and the trial court agreed, that Gene conveyed the subject property to Linda shortly after a jury awarded Cassie a $276,000 judgment against Gene for the sole purpose of hindering Cassie’s ability to satisfy that judgment. And indeed, based on Gene’s own testimony, the trial court found that “[djefendants acknowledged at trial that the second deed to secure debt was drafted to defeat the ability of the plaintiff to collect the judgment of $276,000.00.”

Nevertheless, it is well established under Georgia law that “satisfaction of a judgment authorizes a levy only upon property which the judgment debtor owns.” Thus, in light of the 2002 unrecorded security deed pledging the subject property as collateral for the debt Gene owed to Linda, Gene’s ownership interest in the property was not such that it could be characterized as an “asset” subject to the UFTA. Specifically, under OCGA § 18-2-71 (2) (A), “ ‘[ajsset’ means property of a debtor, but the term does not include ... [pjroperty to the extent it is encumbered by a valid lien[.j” And here, although the 2002 security deed was not recorded, it is nevertheless a valid lien on the property as far as Cassie’s judgment is concerned. This is because while an unrecorded deed does not have priority over a subsequent deed to a bona fide purchaser for value without notice, under Georgia law, the holder of a prior unrecorded security deed has priority over a subsequent judgment lien creditor. Indeed, more than one hundred years ago, our Supreme Court held:

The sale of land, although the deed may not have been recorded, as between the parties to the contract, and indeed as to all the world, is a parting of the right of title and ownership from the grantor to the grantee; and to hold that an after acquired judgment against the grantor shall become a lien upon the property conveyed, would be to add to judgments a quality never possessed heretofore, and to take from a deed a condition heretofore always recognized.

Given these particular circumstances, despite not being recorded, the 2002 security deed executed in favor of Linda, pledging the property as collateral for the $150,000 promissory note, gave Linda, as one of Gene’s creditors, priority over Cassie’s judgment, such that the property could not be characterized as Gene’s “asset” under the UFTA. Consequently, while perhaps executed with nefarious intent, the 2011 security deed that Gene conveyed to Linda shortly after judgment was entered in favor of Cassie was essentially superfluous with respect to establishing Linda and Cassie’s respective priority as Gene’s creditors. Accordingly, we reverse the trial court’s judgment voiding the transfer of the property as fraudulent under the UFTA.

Decided May 18, 2017.

J. Robin Rogers, for appellants.

Joseph E. Willard, Jr., Ann E. Willard Fiddler, for appellee.

2. Given our holding in Division 1, we need not address the appellants’ remaining enumerations of error.

Judgment reversed.

Ray and Self, JJ., concur.

       In 2012, this Court affirmed the judgment against Gene Wallin but reversed it as to Jeremy Wallin. See Wallin v. Wallin, 316 Ga. App. 455 (729 SE2d 567) (2012).

        Davison v. Citizens Bank & Trust Co., 338 Ga. App. 671, 672 (791 SE2d 437) (2016) (punctuation omitted).

        Id. (punctuation omitted).

        Id.; accord Washington v. Harrison, 299 Ga. App. 335, 336 (682 SE2d 679) (2009).

       Quantum meruit is an equitable doctrine “based on the concept that no one who benefits from the labor and materials of another should be unjustly enriched thereby.” Hamler v. Wood, 337 Ga. App. 319, 323 (2) (787 SE2d 299) (2016) (punctuation omitted).

        See supra note 1.

       As previously noted, this Court reversed the judgment against Jeremy in a separate appeal. See supra note 1.

       Effective July 1, 2015, theAct was renamed the “Uniform Voidable Transactions Act.” Ga. L. 2015, p. 996, § 4A-1.

       OCGA § 18-2-74 (a) (1).

        See BFP v. Resolution Trust Corp., 511 U. S. 531, 540-41 (II) (114 SCt 1757, 128 LE2d 556) (1994) (Scalia, J.) (“The modern law of fraudulent transfers had its origin in the Statute of 13 Elizabeth, which invalidated ‘covinous and fraudulent’ transfers designed ‘to delay, hinder or defraud creditors and others.’ . . . English courts soon developed the doctrine of ‘badges of fraud’: proof by a creditor of certain objective facts (for example, a transfer to a close relative, a secret transfer, a transfer of title without transfer of possession, or grossly inadequate consideration) would raise a rebuttable presumption of actual fraudulent intent.”) (citation omitted); Sun Nurseries, Inc. v. Lake Erma, LLC, 316 Ga.App. 832, 839 (1) (b) (730 SE2d 556) (2012) (referring to the eleven nonexclusive factors delineated in OCGA § 18-2-74 (b) as “badges of fraud”).

       OCGA § 18-2-74 (b); see also SRB Inv. Servs., LLLP v. Branch Banking & Trust Co., 289 Ga. 1, 4(2) (709 SE2d 267) (2011) (applying the badges of fraud as delineated in OCGA § 18-2-74 (b)).

        Bloom v. Camp, 336 Ga. App. 891, 894 (1) (785 SE2d 573) (2016) (punctuation omitted).

        Wells Fargo Bank, N.A. v. Twenty Six Props., LLC, 325 Ga. App. 662, 664 (1) (754 SE2d 630) (2014); see OCGA § 9-13-3 (“Every execution shall follow the judgment upon which it issued[.]”); OCGA § 9-13-10 (“Except as otherwise provided by law, executions ... may be levied on all the estate of the defendant, both real and personal, which is subject to levy and sale.”).

        See Caldwell v. Nw. Atlanta Bank, 194 Ga. 370, 373-74 (1) (21 SE2d 619) (1942) (noting that an unrecorded deed of bargain and sale is postponed only to later bona fide purchasers for value without notice); OCGA § 44-14-63 (a) (“Deeds to secure debt or bills of sale to secure debt not recorded shall remain valid against the persons executing them.”).

        See In the Matter of Clifford, 566 F2d 1023, 1025-27 (5th Cir. 1978) (discussing, at length, the legal history in Georgia pertaining to the priority of unrecorded deeds versus subsequent judgment liens and concluding that, since the 1931 amendment of the applicable statutes, Ga. L. 1931, p. 153 (now OCGA §§ 44-2-1; 44-2-2; and 44-14-63), “Georgia law grants priority to an unrecorded security deed over a subsequent judgment lien”); Mackler v. Lahman, 196 Ga. 535, 537 (27 SE2d 35) (1943) (noting that under the Code of 1933, §§ 67-109, 67-1305, the “effect of a failure to record a mortgage or bill of sale or deed to secure debt ‘shall be the same as is the effect of failure to record a deed of bargain and sale,’ so changes the previous law with reference to those securities as to render such instruments, even though unrecorded, superior in rank to subsequent liens created by law”).

        Donovan v. Simmons, 96 Ga. 340, 346-47 (22 SE 966) (1895); accord Caldwell, 194 Ga. at 374-75; Twenty Six Props., 325 Ga. App. at 665 (1) n.7; In the Matter of Clifford, 566 F2d at 1027.

        See OCGA § 18-2-71 (2) (A) (“ ‘[ajsset’ means property of a debtor, but the term does not include . . . [pjroperty to the extent it is encumbered by a valid lien[.]”); Safari v. RES-MS

        Bayfront, LLC, 333 Ga. App. 164, 165 (775 SE2d 637) (2015) (noting same). We note that under Georgia law, after executing the security deed for the property in favor of Linda, Gene retains an equitable title and the right to regain or redeem legal title by payment of the secured indebtedness. See West Lumber Co. v. Schnuck, 204 Ga. 827, 835 (1) (51 SE2d 644) (1949) (“A deed to land to secure a debt is an absolute conveyance until the debt is paid and passes the title to the land to the grantee therein.”); see also OCGA § 44-14-60. But an equitable interest is “not subject to ordinary levy and sale,” and in order to “collect on a judgment against a person with only an equitable interest in property, a creditor must satisfy any outstanding debt on the property prior to a levy and sale.” Dime Sav. Bank of N. Y., FSB v. Sandy Springs Assocs., Inc., 261 Ga. 485, 487 (3) (405 SE2d 491) (1991) (citation omitted); see OCGA § 9-13-60.

        See In the Matter of Clifford, 566 F2d at 1027 (holding that because Georgia law grants priority to an unrecorded security deed over a subsequent judgment lien, creditor’s security deed, which was obtained earlier from now-bankrupt debtor but was not recorded properly, had priority over bankruptcy trustee, who was deemed to have the rights of a hypothetical judgment lien creditor). Cf. Twenty Six Props., 325 Ga. App. at 664-65 (1) (holding that because the record did not establish that debtor had any ownership interest in the property upon which judgment creditor’s right to seize his assets could attach, the trial court erred in finding as a matter of law that judgment creditor holds a judgment lien against the property).

       We caution that our holding is limited to a finding that the trial court erred in ruling that the 2011 conveyance was fraudulent, and nothing in our holding should be construed as opining on the means by which Cassie may satisfy her judgment against Gene.


author: MILLER, Presiding Judge.

text:
    A17A0349.
    TISDALE v. THE WESTMOORE GROUP, LLC et al.
    (800 SE2d 624)
   MILLER, Presiding Judge.

Adrian Tisdale sued The Westmoore Group (“Westmoore”) and two individuals who assisted in obtaining a mortgage on her home (collectively “Defendants”), alleging multiple violations of federal statutes and the Georgia Fair Lending Act (“GFLA”), fraud in the inducement, and civil conspiracy. Defendants filed a counterclaim for attorney fees under OCGA § 13-6-11. The trial court granted summary judgment in favor of Defendants and awarded them $61,231.10 in attorney fees. Tisdale now appeals. After a thorough review of the record, we affirm in part and reverse in part.

“On appeal from a grant of summary judgment, we review the evidence de novo to determine whether the trial court erred in concluding that no genuine issue of fact remains and that the moving party is entitled to judgment as a matter of law.” (Citation omitted.) Chapman v. C. C. Dickson Co., 273 Ga. App. 640, 641 (1) (616 SE2d 478) (2005).

So viewed, the evidence shows that in 2011, Tisdale obtained a high-interest mortgage loan (“the Loan”) through Westmoore in the amount of $49,062 to purchase her home in Covington. The Loan was secured by a security deed, which contained an accelerated remedies clause providing for an opportunity to cure any default prior to foreclosure.

Soon after Tisdale closed on the home, she made late payments and disputed the closing costs, mortgage terms, and loan calculations. On August 28, 2012, Westmoore agreed to a loan modification, in which it refunded certain fees to Tisdale, and Tisdale signed a release (the “Release”) agreeing that “all aspects of the Loan [were] proper and correct and in full compliance with all applicable state and federal laws.” The Release further provided that Tisdale would release Westmoore and its agents and employees from any claims she “ever had, now have, or which she hereafter can, shall or may have” against them. Under the terms of the Release, any violation would allow Westmoore to “declare the Loan immediately due and payable.”

Despite signing the Release, Tisdale continued to dispute the terms of her mortgage. She also fell further into arrears on her payments. In July 2013, Westmoore notified Tisdale of her default and the opportunity to cure so as to avoid the acceleration of the Loan and the subsequent commencement of foreclosure proceedings.

After Tisdale again disputed the amount due, Westmoore agreed to postpone acceleration of the Loan. In a Postponement Letter Tisdale signed and agreed to on August 15, 2013, Westmoore advised Tisdale that the failure to comply with the terms of the Postponement Letter could result in foreclosure proceedings. Notably, in the Postponement Letter, Tisdale admitted that she had no defenses against Westmoore in connection with its security interest.

Nevertheless, Tisdale failed to make the required payments, and Westmoore began foreclosure proceedings. Tisdale continued to challenge the underlying mortgage obligation by filing a complaint in Newton County Superior Court. While that case was pending, Tisdale also sought injunctive relief to stop the foreclosure sale in federal court. Both of these cases were later voluntarily dismissed.

Tisdale then filed the instant suit, and Defendants filed a counterclaim for attorney fees under OCGA § 13-6-11. Liberally construing Tisdale’s state-law claims in her complaint, she alleged that Defendants committed fraud in connection with the initiation and signing of her Loan, conspired to commit fraud in connection with her Loan, and violated the GFLA by demanding payments that exceed the permissible amount. In February 2014, Tisdale filed a bankruptcy petition, which stayed the foreclosure proceeding.

Defendants removed this case to the federal district court, which ultimately dismissed the federal claims and remanded Tisdale’s state-law fraud, conspiracy, and GFLAclaims, as well as Defendants’ counterclaim, to the trial court. On remand, the trial court granted Defendants’ motion for summary judgment, finding (1) the Release was a valid agreement, and, therefore, any claims relating to the Loan prior to the August 28,2012 date of the Release were barred by the terms of the Release; (2) claims relating to conduct that occurred between the date of the Release and the August 15, 2013 Postponement Letter were barred by the terms of the Postponement Letter; and (3) Defendants were entitled to OCGA § 13-6-11 attorney fees in the amount of $61,231.10.

1. Before we reach the merits of the appeal, we note that Tisdale’s brief fails to comply with this Court’s rules because it does not contain numbered and distinct enumerations of error with supporting arguments. See Court of Appeals Rule 25 (c) (1). Tisdale’s pro se status does not relieve her of her obligation to comply with the rules of this Court. See Floyd v. Brown, 338 Ga. App. 520, 521 (1) (790 SE2d 307) (2016). “Our requirements as to the form of appellate briefs were created, not to provide an obstacle, but to aid parties in presenting their arguments in a manner most likely to be fully and efficiently comprehended by this Court.” (Citation and punctuation omitted.) Id.

Our rules are more than a mere formality. Barnett v. Fullard, 306 Ga.App. 148, 149 (1) (701 SE2d 608) (2010). Rather, they are designed to ensure that all enumerations of error are addressed and to aid our review of each enumeration. Id. By failing to comply with Court of Appeals Rule 25, Tisdale has hindered our review of her arguments and has risked the possibility that certain enumerations will not be addressed. See id. at 149-150 (1). Nevertheless, we will address claims of error to the extent we are able to discern them, and we deny Defendants’ motion to dismiss the appeal on this basis. See id. at 150 (D-

Reviewing Tisdale’s brief, we interpret her claims to challenge the grant of summary judgment to Defendants on the grounds that (a) her claims arising prior to August 15, 2013 were not barred; (b) Defendants were in breach by refusing to allow her to cure the default; and (c) the Release and the Postponement Letter are void. Tisdale also contends that the trial court erred in awarding fees to Defendants under OCGA § 13-6-11.

2. Tisdale first argues that the trial court erred in granting summary judgment to Defendants because (a) her claims are not barred by the Release and the Postponement Letter, and (b) Defendants thwarted her attempts to cure the default. Importantly, although Tisdale argues that her federal claims were properly before the trial court, the federal court dismissed those claims and remanded only the state-law claims. Therefore, only the GFLA, conspiracy, and fraud claims were properly before the trial court.

(a) Claims barred by the Release

Having reviewed the record, we conclude that the trial court properly found that Tisdale’s state-law claims relating to conduct that occurred before the date of the Release were barred by that agreement.

A release or settlement agreement is a contract subject to construction by the court. It is governed by state law applicable to contracts in general. The cardinal rule of construction is to determine the intention of the parties. Where the terms of a written contract are clear and unambiguous, the court will look to the contract alone to find the intention of the parties. Such a contract is the only evidence of what the parties intended and understood by it.

(Citations, punctuation and footnote omitted.) UniFund Financial Corp. v. Donaghue, 288 Ga. App. 81, 82 (653 SE2d 513) (2007).

As noted, Tisdale’s state-law claims alleged fraud in connection with the origination of her Loan, conspiracy in connection with that fraud, and violations of the GFLA based on the amount of payment required under the Loan. The trial court properly found that Tisdale’s state-law claims were barred because the Release provided that “all aspects of the Loan [were] proper and correct and in full compliance with all applicable state and federal laws.” Moreover, in signing the Release, Tisdale agreed that she would release Westmoore and its agents and employees from any claims she “ever had, now have or which she hereafter can, shall or may have” against them. This document indisputably covers all of Tisdale’s fraud, conspiracy, and GFLA claims relating to the Loan, the closing documents, and the arrearage in her mortgage payments prior to the August 28, 2012 execution date.

Moreover, there is no merit to Tisdale’s argument that the Release and the Postponement Letter were void because she signed them under threat of foreclosure. The threat of foreclosure, which was within Westmoore’s right due to Tisdale’s failure to pay the Loan, does not amount to duress. Savannah Sav. Bank v. Logan, 99 Ga. 291 (25 SE 692) (1896); see also Cannon v. Kitchens, 240 Ga. 239, 240 (240 SE2d 78) (1977).

Finally, the Release and the Postponement Letter are not void for violating the GFLA because, contrary to Tisdale’s argument, the payments required there did not exceed the amount that could be charged either as interest or as a payment. See OCGA § 7-6A-5 (2), (4), (13) (A).

Tisdale has not shown any genuine issue of material fact to preclude summary judgment, and the trial court properly concluded as a matter of law that the Release and the Postponement Letter were binding and barred all of Tisdale’s state-law claims relating to the formation of the Loan that occurred prior to August 15, 2013. Accordingly, we conclude that Defendants were entitled to summary judgment on Tisdale’s claims for fraud, conspiracy, and GFLA violations that allegedly occurred prior to the date of the Release.

(b) Failure to allow Tisdale to cure the default

The only state-law claim that Tisdale alleged occurred after the dates of the Release and the Postponement Letter is that Westmoore breached the terms of the Loan when it did not allow her to cure her default before initiating foreclosure proceedings. We disagree.

Under the terms of the Postponement Letter, the parties agreed that Westmoore would postpone foreclosure provided that Tisdale made the necessary payments. The Postponement Letter further provided that if Tisdale failed to comply, Westmoore would go forward with foreclosure proceedings. The letter also stated that Tisdale understood that the failure to make payments as required gave Westmoore the right to immediately pursue foreclosure. The Postponement Letter clearly gave Defendants the right to immediately accelerate the Loan and commence foreclosure proceedings in the event of another untimely payment.

Although Tisdale argued before the trial court that she made the payments and Westmoore refused to accept them, she points to no evidence in the record to support this claim. Therefore, Tisdale has not met her burden to show a genuine issue of fact with respect to any attempt to cure. Chapman, supra, 273 Ga. App. at 642 (1) (summary judgment is proper where no genuine issue of material fact remains). Accordingly, the trial court correctly found that Defendants were entitled to summary judgment on the claims occurring after August 15, 2013.

3. Tisdale next argues that the trial court erred in awarding fees under OCGA § 13-6-11. Because the trial court lacked authority to award attorney fees on summary judgment, we agree.

OCGA § 13-6-11 provides:

The expenses of litigation generally shall not be allowed as a part of the damages; but where the plaintiff has specially pleaded and has made prayer therefor and where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them.

(Emphasis supplied.) Thus, as our Supreme Court has explained, “both the liability for and amount of attorney fees pursuant to OCGA § 13-6-11 are solely for the jury’s determination, [and] a trial court is not authorized to grant summary judgment in favor of a claimant therefor.” (Citations omitted.) Covington Square Assoc. v. Ingles Markets, 287 Ga. 445, 446 (696 SE2d 649) (2010). This is because “the very language of the statute prevents a trial court from ever determining that a claimant is entitled to attorney fees as a matter of law.” (Citations and punctuation omitted.) Sherman v. Dickey, 322 Ga. App. 228, 233-234 (2) (744 SE2d 408) (2013). Moreover, “although a trial court is permitted to grant such fees when it sits as a trier of fact, it is not a trier of fact on a motion for summary judgment.” (Citations and punctuation omitted.) Id.

Decided May 23, 2017.

Adrian Tisdale, pro se.

Louis G. McBryan, for appellees.

Accordingly, the trial court here was without authority to award fees under OCGA § 13-6-11 on summary judgment, and we reverse the trial court’s award. In light of our determination that the award must be reversed, we need not address Tisdale’s claim that the amount included monies for claims litigated in the federal action.

For the foregoing reasons, we affirm the trial court’s order granting summary judgment, but reverse the order awarding attorney fees.

Judgment affirmed in part and reversed in part.

Doyle, C. J., and Reese, J., concur.

       OCGA § 7-6A-5.

       Defendant Jeffrey Ganek was dismissed from the suit. The only remaining defendants are Westmoore and Jonathan Block, who is a principal, officer, and manager of Westmoore.

       Defendants also requested fees under OCGA § 9-15-14, but the trial court did not award fees on this basis.

       She also sought a restraining order in state court to prevent the sale, but the trial court denied relief. We note that no foreclosure has occurred, given the pending bankruptcy action, and thus Tisdale cannot make a claim for wrongful foreclosure.

       The bankruptcy court found Tisdale was in arrears on her mortgage and reminded Tisdale of her obligation to make her mortgage payments in a timely manner.

       Tisdale appears to allege that Westmoore failed to make the insurance payments collected from her escrow account. The record shows that escrow was part of the original Loan, but as part of the Release, Westmoore removed the escrow payment, and Tisdale agreed to be responsible for her own taxes and insurance. Thus, there can be no claim against Defendants regarding insurance payments after the date of the Release.

       Tisdale has not waived this argument by failing to raise it before the trial court because the trial court lacked authority to award fees as a matter of law. See Sherman v. Dickey, 322 Ga. App. 228, 233 (2) & n. 20 (744 SE2d 408) (2013).