author: SMITH, Presiding Judge. BLACKWELL, Judge, BARNES, Presiding Judge,

text:
    A10A2212.
    CURRY v. THE STATE.
    (711 SE2d 314)
   SMITH, Presiding Judge.

A jury found Patricia Curry guilty of possession of cocaine with intent to distribute, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon. Curry appeals, contending that the warrantless search of her residence was unconstitutional because the State failed to show that she agreed to a special bond condition. Because the evidence supports a finding that Curry freely and voluntarily consented to the special condition of her bond, we affirm the trial court’s denial of Curry’s motion to suppress.

“On appeal of the denial of a motion to suppress, the evidence is to be construed to uphold the findings of the trial court unless they are determined to be clearly erroneous.” (Citation omitted.) Herrera v. State, 288 Ga. 231, 233 (2) (702 SE2d 854) (2010).

The evidence presented at the suppression hearing revealed that prior to the search of Curry’s home, Curry had been arrested for possession of marijuana with intent to distribute, sale of marijuana, and maintaining a disorderly house. She was released from custody when she posted a bond of $30,000.

While Curry was free on bond, a confidential informant advised the Wilcox County Sheriffs Office that Curry was selling crack cocaine out of her home. The informant provided the same information to an agent with the South Central Drug Task Force. After receiving the informant’s tip, the sheriffs deputy, the drug task force agent, and several other law enforcement officers conducted a warrantless search of Curry’s residence. Upon entering the residence, the officers announced that the search was being conducted pursuant to the conditions of Curry’s bond. Curry, however, was uncooperative with the officers and attempted to block their entry into the residence. After physically removing Curry from the residence, the officers searched the back master bedroom, where they discovered a large quantity of crack cocaine and a handgun.

Curry was arrested and indicted on charges of possession of cocaine with intent to distribute, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon. She moved to suppress the cocaine and handgun, contending that the warrantless search of her residence violated the Fourth Amendment.

At the suppression hearing, the State argued that the warrant-less search was justified because Curry consented to warrantless searches of her residence and person upon the request of law enforcement in a special bond condition. To support its argument that Curry had waived her Fourth Amendment rights, the State relied upon certified copies of a bond form in a prior drug case (the “bond form”) and another form titled “Special Drug Conditions of Bond” (the “special conditions form”). The special conditions form provided in relevant part: “The Defendant shall, at the request of law enforcement, consent to a search, without necessity or benefit of a search warrant, of his/her . . . residence ... by a law enforcement officer for the detection of alcohol, drugs or controlled substances.” Although the bond form and special conditions form were executed on the same day, the State introduced them as separate exhibits in the motion to suppress hearing. The forms do not cross-reference one another or contain consecutive numbering. Curry signed the bond form, but not the special conditions form. The special conditions form contains the signature of Curry’s then counsel, the assistant district attorney, and most importantly, the trial judge granting the bond. The State asserted that the two documents “are part and parcel the same document.”

Curry did not testify in the motion to suppress hearing or present any evidence demonstrating that she did not consent to the special conditions of her bond. Instead, her counsel argued that the bond form and the special conditions form were inadequate to fulfill the State’s burden of demonstrating her consent to future warrant-less searches upon request of law enforcement.

The trial court denied Curry’s motion to suppress based, in part, upon its conclusion that Curry waived her Fourth Amendment rights as a special condition of bond. After the denial of her motion to suppress, Curry was tried before a jury and found guilty of the drug and firearm-related offenses as charged. She filed a motion for a new trial and raised again the issues related to her motion to suppress. The trial court denied her motion for new trial without explanation. This appeal followed.

On appeal, Curry argues the special conditions form was insufficient to show that she waived her Fourth Amendment rights because her signature was not on the form. We disagree.

It is well settled that a valid consent to a search eliminates the need for either probable cause or a search warrant. In order to justify a warrantless search on the grounds of consent, the State has the burden of proving that the consent was freely and voluntarily given under the totality of the circumstances.

(Citations and punctuation omitted.) Brooks v. State, 285 Ga. 424, 425 (677 SE2d 68) (2009).

The State presented evidence of the special conditions of Curry’s bond which Curry herself admits was signed by her counsel, and which was also signed by the trial court. The form states that “[Curry] herein specifically agrees to . . . consent to a search, without the necessity or benefit of a search warrant. ...”

Based upon the signature of the trial judge issuing the bond on the special conditions form, the signature of Curry’s counsel on the special conditions form, the statement in the special conditions form about the defendant’s consent to search, the case caption on the special conditions form (“The State v. Patricia Curry”), Curry’s signature on the bond form, the fact that both documents have the same handwritten date, and the presumption of regularity, we conclude that the State was not required to produce anything more to show that Curry consented to future searches upon the request of law enforcement. See Hanifa v. State, 269 Ga. 797, 804-805 (3) (505 SE2d 731) (1998) (evidence supported trial court determination that incriminating statement was voluntarily given where defendant’s mother accompanied her to police station, signed waiver of rights form and was present during defendant’s interrogation, defendant was able to read and write and understood English, and defendant was informed she was a murder suspect); Davis v. State, 244 Ga. App. 715, 716 (1) (536 SE2d 603) (2000) (record failed to support defendant’s claim that he did not receive notice of special condition of bond where bond with his name written on it was introduced into evidence, judge who issued bond testified about custom to go over special conditions with the defendant, and bond was served on defendant).

Once the State presented the special conditions form, the burden then shifted to Curry to show any alleged irregularities, which she failed to do in the motion to suppress or at any time before trial. See Beck v. State, 283 Ga. 352, 354 (2) (658 SE2d 577) (2008) (presumption of regularity attaches when State introduces plea hearing transcript, docket entry or another document affirmatively showing that right was waived; burden then shifts to defendant to show irregularities). Although Curry testified at trial (after the trial court had denied her motion to suppress) that she was unaware that her bond had special conditions, we must assume that the trial court found this testimony not credible when it denied Curry’s motion for new trial without explanation. See Herrera, supra, 288 Ga. at 233 (facts and credibility issues must be upheld unless clearly erroneous).

Although Curry contends that the special condition form was inadequate in the absence of her signature, OCGA § 24-6-3 (a) provides that “[a]ll contemporaneous writings shall be admissible to explain each other.” And in the context of interpreting agreements, we hold that “where multiple documents are executed at the same time in the course of a single transaction, they should be construed together.” (Citations omitted.) Martinez v. DaVita, Inc., 266 Ga. App. 723, 727 (598 SE2d 334) (2004). See also Duke v. KHD Deutz &c., 221 Ga. App. 452, 452-453 (471 SE2d 537) (1996) (“contemporaneous writings should be considered even if one of the writings purports to ‘contain the entire understanding of the parties hereto with respect to the transactions contemplated hereby’ and even if the writings are not cross-referenced”). The bond order and the special conditions form were executed on the same day. Indeed the special conditions form alone would have no meaning separate from the bond order. The order and form should therefore be construed together. Construing these documents together, the State presented sufficient evidence to show that Curry consented to future searches upon the request of law enforcement.

Because the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous, and we must construe the evidence most favorably to the upholding of the trial court’s findings and judgment, Miller v. State, 288 Ga. 286 (1) (702 SE2d 888) (2010), we must conclude that under the totality of the circumstances, Curry freely and voluntarily gave her consent for a warrantless search. The trial court therefore did not err in denying the motion to suppress.

Judgment affirmed.

Andrews, Mikell, Blackwell and Dillard, JJ., concur fully and specially. Barnes, E J., and Adams, J., dissent.

BLACKWELL, Judge,

concurring fully and specially.

I agree with all that is said in the opinion of the Court, and I join it in full. I write separately only to identify an alternative basis on which some of us also would affirm the denial of Patricia Curry’s motion to suppress.

The trial court in this case found that Curry agreed to the special conditions through her lawyer and that, even if she had not done so, the police officers who searched her residence acted reasonably when they relied upon the consent provision contained in the special conditions. Implicit in the opinion of the Court is the notion that a lawyer may be authorized, at least in some cases, to waive his client’s rights under the Fourth Amendment when securing her release on bond. And because a lawyer sometimes may be authorized to consent to a search of his client’s property, the officers in this case were entitled to rely upon the consent provision contained in the special conditions that Curry’s lawyer signed.

Here, the police officers indisputably relied upon this consent provision when they searched Curry’s residence, and one testified that the officers were “confident” that the special conditions were “proper.” It was reasonable for the officers to believe that the special conditions had been properly executed — especially considering that they were signed by a judge of the superior court and an assistant district attorney whose signatures were known to, and authenticated by, the officers — and, therefore, that whoever signed the special conditions as the “Defendant/Defendant’s Attorney” had authority to do so.

In Illinois v. Rodriguez, 497 U. S. 177 (110 SC 2793, 111 LE2d 148) (1990), the United States Supreme Court held that a search is reasonable when it is based on the consent of a person whom officers reasonably, but erroneously, believe has authority to consent to the search. See id. at 186 (III) (B). As the Supreme Court explained in Rodriguez, the Fourth Amendment does not require that officers “always be correct, but that they always be reasonable.” Id. at 185 (III) (B). The existence of authority to consent to a search, the Supreme Court said, “is the sort of recurring factual question to which law enforcement officials must be expected to apply their judgment; and all the Fourth Amendment requires is that they answer it reasonably.” Id. at 186 (III) (B). Citing Rodriguez, our Court has endorsed this principle in several decisions. See, e.g., State v. Parrish, 302 Ga. App. 838, 840 (691 SE2d 888) (2010) (“A warrantless search based upon the consent of a third party will be deemed valid when, at the time of entry, police reasonably believe that the third party possesses common authority over the area to be searched.”); Warner v. State, 299 Ga. App. 56, 59 (1) (681 SE2d 624) (2009) (“[E]ven if the parents in fact did not have the authority to consent to a search of Warner’s bedroom, the circumstances led the police to reasonably believe that the parents had that authority, and therefore the search was valid.”); Pike v. State, 265 Ga. App. 575, 577 (1) (594 SE2d 753) (2004) (“[A] warrantless search based on unauthorized consent could nonetheless be upheld if the law enforcement officer conducting the search reasonably (albeit erroneously) believed the consent given was valid.”) (citation, punctuation and emphasis omitted); Ford v. State, 214 Ga. App. 284, 286 (3) (447 SE2d 334) (1994) (en banc) (same). Because the officers were entitled to conclude that whoever signed the special conditions on behalf of Curry had authority to consent to a search, their search of Curry’s residence was reasonable.

There is no evidence that any of the officers had any reason to believe that Curry had not agreed to the consent provision through her lawyer. Indeed, when the officers arrived at her residence, they informed Curry that they intended to conduct a search pursuant to the terms of her bond, and although she attempted to physically prevent them from conducting the search, there is no evidence that she then expressed an unawareness of the special conditions or disputed that she had agreed to them. In these circumstances, the officers were entitled to reasonably rely upon the consent provision in the special conditions, and the search of Curry’s residence was, therefore, reasonable.

No one disputes that the officers reasonably believed that Curry had consented to the search, either herself or through her lawyer. Instead, Curry argues that we cannot consider the reasonable beliefs of the officers because Georgia rejects the good faith exception. See Gary v. State, 262 Ga. 573, 575-576 (422 SE2d 426) (1992) (rejecting good faith exception as inconsistent with statutory exclusionary rule, OCGA § 17-5-30). Curry, however, misapprehends the nature of the good faith exception and our rejection of it in Georgia. The Fourth Amendment secures individuals against unreasonable searches and seizures, and the exclusionary rule secures individuals against the use in judicial proceedings of evidence obtained in violation of the Fourth Amendment. See Illinois v. Gates, 462 U. S. 213, 223 (I) (103 SC 2317, 76 LE2d 527) (1983) (“The question whether the exclusionary rule’s remedy is appropriate in a particular context has long been regarded as an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct.”); see also Arizona v. Evans, 514 U. S. 1, 13 (115 SC 1185, 131 LE2d 34) (1995) (“[T]he issue of exclusion is separate from whether the Fourth Amendment has been violated. . . .”). The good faith exception is an exception to the exclusionary rule, not the reasonableness requirement of the Fourth Amendment or its preference for warrants. Because a search is reasonable when officers obtain the consent of a person whom the officers reasonably, but erroneously, believe is authorized to consent to the search, see Rodriguez, 497 U. S. at 185-186 (III) (B), such a search does not violate the Fourth Amendment. The exclusionary rule — and, therefore, an exception to the exclusionary rule — has no application when there is no violation of the Fourth Amendment. For this reason, the rejection in Georgia of the good faith exception has no bearing upon a proper resolution of this case.

Both for these reasons and the reasons set forth in the opinion of the Court, I would affirm the denial of the motion to suppress.

I am authorized to state that Judge Andrews, Judge Mikell and Judge Dillard join in this opinion.

BARNES, Presiding Judge,

dissenting.

There is no evidence in the record whatsoever that Patricia Curry, who stood accused of a crime by the State but remained innocent until proven guilty, was advised of and personally agreed to a waiver of her Fourth Amendment rights as a special condition of her bond. Surely it is not the law in our State that the mere signature of an accused’s counsel on a special conditions of bond form, standing alone, is sufficient to waive the accused’s Fourth Amendment rights. Something more should be required in cases involving fundamental constitutional rights that are personal to the accused, and, in fact, our Supreme Court has held that an accused must receive notice of a special condition waiving her Fourth Amendment rights. The holding of the majority is inconsistent with this Supreme Court precedent emphasizing the importance of notice to the accused, and, therefore, I dissent.

At the suppression hearing, the State maintained that the warrantless search of Curry’s residence was constitutional because she had waived her Fourth Amendment rights as a special condition of her bond. The State relied upon two distinct documents: Curry’s bond agreement from a prior drug case (the “Bond Agreement”) and a separate, one-page form entitled “Special Drug Conditions of Bond” (the “Special Conditions Form”). The Special Conditions Form contained language stating that the “defendant” consented to a warrantless search “of his/her . . . residence ... by a law enforcement officer for the detection of alcohol, drugs or controlled substances.” As the majority notes, the Bond Agreement and Special Conditions Form were introduced as separate exhibits by the State, were not attached to one another, were not numbered consecutively, and did not cross-reference each other or incorporate the terms of the other. Most significantly, the Bond Agreement was signed by Curry, but not the Special Conditions Form, which was signed by her attorney.

Curry argued that the Special Conditions Form was insufficient to show that she had waived her right to challenge the warrantless search of her residence, given that there was no evidence that she had notice of and personally agreed to the special bond condition waiving her Fourth Amendment rights. The trial court disagreed and denied Curry’s motion to suppress. Later, at trial, Curry testified that she was never made aware of the Special Conditions Form by her attorney or anyone else.

1. The Special Conditions Form. In my view, the trial court erred in concluding that Curry validly waived her Fourth Amendment rights based merely upon the Special Conditions Form. The Fourth Amendment to the United States Constitution protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” See also Ga. Const. of 1983, Art. I, Sec. I, Par. XIII. An officer’s warrantless intrusion into a person’s home violates the Fourth Amendment, outside certain narrowly drawn exceptions to the warrant requirement. State v. Ealum, 283 Ga. App. 799, 801 (643 SE2d 262) (2007). One of those exceptions is when a defendant waives her constitutional right against warrantless searches as a special condition of her release on bond. See Rocco v. State, 267 Ga. App. 900, 902-903 (1) (601 SE2d 189) (2004). But to pass constitutional muster, the defendant must have notice of the special condition when entering into the bond agreement. See Fox v. State, 272 Ga. 163, 164-165 (1) (527 SE2d 847) (2000) (waiver of defendant’s Fourth Amendment rights invalid where defendant did not receive notice of probation condition until after plea agreement was reached and sentence was announced). See also 11 Ga. Proc. Criminal Procedure § 31:28. As our Supreme Court has emphasized in the probation context, “notice of. . . valid limitations of probationers’ liberties serves an important role in making those limitations constitutionally permissible.” (Emphasis in original.) Jones v. State, 282 Ga. 784, 786 (1) (a) (653 SE2d 456) (2007). See also United States v. Knights, 534 U. S. 112, 119-120 (122 SC 587, 151 LE2d 497) (2001) (upholding warrantless search where “[t]he probation order clearly expressed the search condition and [the probationer] was unambiguously informed of it”) (emphasis supplied). There is no reason to think that our Supreme Court would view the need for notice as any less important to a defendant released on bond, who stands accused but not convicted of a crime.

The burden is on the State to show that Curry validly waived her Fourth Amendment rights, see Prince v. State, 299 Ga. App. 164, 168-169 (3) (a) (682 SE2d 180) (2009), and I do not believe that the State met its burden in the present case. The Special Conditions Form relied upon by the State was not signed by Curry, and no transcript of the bond hearing was introduced at the suppression hearing. The State presented no other evidence that Curry had notice of the Special Conditions Form and thus knowingly agreed to its terms when she entered into the Bond Agreement. Under these circumstances, the Special Conditions Form did not support a finding that Curry validly waived her Fourth Amendment rights. See Jones, 282 Ga. at 787 (1) (a) (reiterating that “notice is a critical consideration in determining the limits of any reasonable expectation of privacy”); Fox, 272 Ga. at 164-165 (1) (see supra). Compare Prince, 299 Ga. App. at 168-169 (3) (a) (defendant validly waived his Fourth Amendment rights where State introduced into evidence a special conditions of probation form signed by the defendant); Hess v. State, 296 Ga. App. 300, 301-302 (1) (674 SE2d 362) (2009) (defendant validly waived his Fourth Amendment rights where State introduced into evidence transcript of sentencing hearing in which defendant was expressly informed of the probationary condition requiring him to submit to searches without a warrant).

Nevertheless, the majority asserts that a presumption of regularity attached to the Special Conditions Form and that the State thus met its initial burden of providing prima facie evidence that Curry waived her Fourth Amendment rights. The majority relies upon Beck v. State, 283 Ga. 352, 354 (2) & n. 3 (658 SE2d 577) (2008), in which our Supreme Court held that the State met its initial burden of showing that the defendant waived his right to counsel by introducing a trial court order in which the court made findings of fact on the waiver issue. The situation here is different, however, because the Special Conditions Form included separate signature lines for the assistant district attorney and the “Defendant/ Defendant’s Attorney,” thereby indicating that the assent of the parties was intended to be a precondition to the form’s enforceability. I agree that the State would have met its initial burden if the signature line for “Defendant/Defendant’s Attorney” had been signed by Curry. See Prince, 299 Ga. App. at 168-169 (3) (a). But the Special Conditions Form was signed by Curry’s attorney, not by Curry herself. And, as discussed infra in Division 2, an attorney’s purported waiver of a defendant’s Fourth Amendment rights carries no weight in the absence of evidence that the defendant was informed of and personally agreed to the waiver.

Relying upon the contemporaneous writing rule applicable in civil contract disputes, the majority further argues that the Bond Agreement and Special Conditions Form should be construed together to find that Curry waived her Fourth Amendment rights. The majority cites to OCGA § 24-6-3 (a), which provides that “[a]ll contemporaneous writings shall be admissible to explain each other,” but the terms of the Bond Agreement and Special Conditions Form are not in need of any explanation or interpretation. Rather, the sole issue in this case is the constitutional one of whether Curry had notice of and personally agreed to the terms of the Special Conditions Form. Moreover, the contemporaneous writing rule is applicable only where the documents at issue were executed at the same time and in the course of a single transaction. See Martinez v. DaVita, Inc., 266 Ga. App. 723, 727 (598 SE2d 334) (2004). While the dates on the Bond Agreement and Special Conditions Form are the same, there is no evidence as to the timing and sequence of when the documents were signed or when they were entered into the record. It is entirely plausible that the Bond Agreement was signed and entered into the record at the bond hearing, with the Special Conditions Form being filed into the record at a later point after the hearing had concluded, particularly since Curry signed one of the documents but not the other. In the entire absence of any testimony or other evidence from the State reflecting that the Bond Agreement and Special Conditions Form were executed at the same time in a single transaction, the contemporaneous writing rule should not be applied to find a waiver of Curry’s Fourth Amendment rights.

2. The Signature of Curry’s Attorney. In concluding that a Fourth Amendment waiver had occurred, the trial court relied upon the fact that the Special Conditions Form was signed by the attorney who represented Curry in the bond proceedings. The concurring opinion likewise suggests that the signature of Curry’s attorney might be sufficient to waive her Fourth Amendment rights. The trial court and concurring opinion, however, fail to give due regard to our Supreme Court’s emphasis in Jones and Fox on the need for a defendant to receive notice of a special condition waiving Fourth Amendment rights. See Jones, 282 Ga. at 787 (1) (a); Fox, 272 Ga. at 164-165 (1). Because the State presented no evidence that Curry was advised of the Special Conditions Form by her attorney or was otherwise made aware of its terms when she entered into the Bond Agreement, the State failed to meet its burden of showing that a valid constitutional waiver occurred under the reasoning of Jones and Fox.

Furthermore, “[cjriminal defendants possess essentially two categories of constitutional rights: those which are waivable by defense counsel on the defendant’s behalf, and those which are considered fundamental and personal to defendant, waivable only by the defendant.” (Citation omitted.) Stinson v. State, 279 Ga. App. 107, 110 (1) (630 SE2d 553) (2006). See Slater v. State, 251 Ga. App. 620, 621 (1) (555 SE2d 8) (2001). Fourth Amendment rights are clearly fundamental to a defendant and should not be relegated to second-tier constitutional status:

[T]he rights . . . protected by the Fourth Amendment are to be regarded as of the very essence of constitutional liberty; and . . . the guaranty of them is as important and as imperative as . . . the guaranties of the other fundamental rights of the individual citizen.

(Citation and punctuation omitted.) Harris v. United States, 331 U. S. 145, 150 (67 SC 1098, 91 LE 1399) (1947), overruled in part on other grounds by Chimel v. California, 395 U. S. 752, 768 (89 SC 2034, 23 LE2d 685) (1969). See also Randolph v. State, 264 Ga. App. 396, 400 (1) (590 SE2d 834) (2003) (“This Court should not read the Fourth Amendment from a perspective of impoverishment, but from the vantage point of proper respect for a fundamental right.”). Fourth Amendment rights also are clearly personal to a defendant: “Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.” (Citation and punctuation omitted.) Rakas v. Illinois, 439 U. S. 128, 133-134 (II) (A) (99 SC 421, 58 LE2d 387) (1978). See State v. Kuhnhausen, 289 Ga. App. 489, 491 (1) (657 SE2d 592) (2008) (one brother cannot waive another brother’s Fourth Amendment rights); State v. Jackson, 243 Ga. App. 330, 331 (533 SE2d 433) (2000) (“Fourth Amendment rights are personal in nature and may be enforced only at the instance of the person whose protection was infringed by the search and seizure.”). A defendant’s rights under the Fourth Amendment, therefore, fall into the second category of constitutional rights which defense counsel cannot waive simply by signing a special conditions form on the defendant’s behalf, without any evidence that the defendant herself was informed of and agreed to those conditions. Consequently, because there is no evidence that Curry was informed of and personally agreed to the Special Conditions Form, no valid constitutional waiver occurred in this case.

3. The Officers’ Reliance on the Special Conditions Form. In its order denying Curry’s motion to suppress, the trial court also justified the warrantless search on the ground that the officers had relied in good faith upon the Special Conditions Form in executing the search. But “Georgia does not recognize the good faith exception to its statutory exclusionary rule because our legislature has not provided one.” Beck, 283 Ga. at 353 (1). See OCGA § 17-5-30; Gary v. State, 262 Ga. 573, 575-576 (422 SE2d 426) (1992). See also Kuhnhausen, 289 Ga. App. at 491 (1) (Georgia’s exclusionary rule required suppression of evidence discovered during warrantless search of the defendant’s residence, even though officers had good faith belief that there had been a Fourth Amendment waiver of the right to contest such a search as a condition of probation). Just as Georgia’s exclusionary rule still applies even when an officer relies in good faith upon a defective search warrant, the exclusionary rule still applies even when an officer relies in good faith upon a form containing special conditions of bond that is defective for lack of evidence that the defendant had notice of and agreed to the conditions found in the form. As such, the officers’ reliance on the Special Conditions Form, although in good faith, did not alter the fact that Curry’s motion to suppress should have been granted.

Nevertheless, the concurring opinion relies upon a separate line of cases upholding warrantless searches based upon the consent of a third party whom officers reasonably (but erroneously) believed had authority to consent to the search on the defendant’s behalf. See, e.g., Illinois v. Rodriguez, 497 U. S. 177 (110 SC 2793, 111 LE2d 148) (1990); Warner v. State, 299 Ga. App. 56, 59 (1) (681 SE2d 624) (2009); Pike v. State, 265 Ga. App. 575, 577 (1) (594 SE2d 753) (2004); Ford v. State, 214 Ga. App. 284, 286 (3) (447 SE2d 334) (1994). Those cases involved situations where officers came in face-to-face contact with a third party at the scene of the search, obtained that party’s consent to the search, and then executed a warrantless search based upon the belief that the third party had authority to give such consent. In those cases, there was actual evidence in the record that the officers executing the search believed that a third party had given consent to search.

That is far different from the situation here. None of the officers in this case testified that they believed that the undecipherable signature on the Special Conditions Form belonged to defense counsel or that they had relied upon such a belief as justification for their warrantless search. Thus, there was no evidence that the officers relied on the consent of a third party (i.e., defense counsel) in deciding to execute the warrantless search. The cases cited by the concurring opinion, therefore, are simply inapposite. It is not sufficient that the officers relied generally on a defective Special Conditions Form without any further evidence that the officers believed that they were relying upon a third party’s consent, if the very line of cases upon which the concurring opinion purports to rely is predicated specifically on an officer’s reliance on such consent.

Decided March 30, 2011

Reconsideration denied April 14, 2011

Timothy L. Eidson, Steven D. Knittle, for appellant.

Denise D. Fachini, District Attorney, Matthew P. Brown, Assistant District Attorney, for appellee.

For these combined reasons, I believe that the trial court erred in finding that the officers were justified in conducting a warrantless search of Curry’s residence, and, therefore, erred in denying her motion to suppress the evidence discovered in her bedroom. Curry’s convictions should be reversed and the case remanded to the trial court with direction to grant her motion to suppress.

I am authorized to state that Judge Adams joins in this dissent.

       In her appellate brief, Curry concedes for the first time that the signature on the signature fine for the “Defendant/Defendant’s Attorney” on the special conditions form, which was otherwise undecipherable, was that of her attorney in the prior drug case. A different attorney represented Curry in the present case.

       At trial, Curry testified that she did not know about the special bond condition and denied that her attorney told her about it.

       See, e.g., Williams v. City of Tifton, 3 Ga. App. 445, 446 (60 SE 113) (1908) (explaining that a bail bond is a contract).

       This notion is consistent with existing Supreme Court precedent, which has held that an individual properly may waive her rights under the Fourth Amendment in a variety of ways, whether “directly or through an agent.” Stoner v. California, 376 U. S. 483, 489 (84 SC 889, 11 LE2d 856) (1964). It also is consistent with the principle that “[a]ttorneys have authority to bind their clients in any action or proceeding by any agreement in relation to the cause, made in writing, and by signing judgments, entering appeals, and entering such matters, when permissible, on the dockets of the court.” OCGA § 15-19-5.

       I reject the notion that officers may never rely reasonably upon consent given in writing unless they also have face-to-face contact with the person signing the consent. While it is true, I think, that officers cannot rely upon just any piece of paper that purports to have been signed by one with authority to consent, the officers here were relying upon a court filing, the authenticity of which was indisputable. When a judge of the superior court has approved an agreement between an assistant district attorney and a defense lawyer, I think a police officer reasonably may rely — absent information to the contrary — upon the validity of the agreement and the authority of the defense lawyer to enter the agreement on behalf of his client.

       This fact distinguishes this case from State v. Kuhnhausen, 289 Ga. App. 489 (657 SE2d 592) (2008), in which this Court held that the consent of a probationer to a search of his residence did not entitle officers to search the adjacent residence of his brother, notwdthstand-ing that the officers may genuinely have believed that they were a single residence. Any such belief, though genuine, was unreasonable because one of the officers “knew that the structure was divided into two separate residences.” 289 Ga. App. at 490 (1).

       I note that Presiding Judge Smith’s opinion and Judge Blackwell’s special concurrence both garnered the votes of a majority of the seven judges on this panel. Nonetheless, for ease of reference, I will refer throughout my dissent to Presiding Judge Smith’s opinion as “the majority” and to Judge Blackwell’s special concurrence as “the concurring opinion.”

       Our Supreme Court has not resolved the question of whether the State still must prove that there were reasonable grounds to justify the search, even if the defendant knowingly agreed to a special condition of probation or bond waiving her Fourth Amendment rights. The Supreme Court granted certiorari in Brooks v. State, 292 Ga. App. 445 (664 SE2d 827) (2008), “to consider whether reasonable grounds were required to justify a search and seizure of [the] probationer . . . despite the existence of a validly imposed special condition of probation that prospectively waived [his] Fourth Amendment rights.” Brooks v. State, 285 Ga. 424 (677 SE2d 68) (2009). However, the Supreme Court ultimately concluded that it was “not the appropriate case to address that issue” and thus left for another day “the question of whether a probation search must be supported by reasonable grounds despite a Fourth Amendment waiver.” Id.

       The majority relies upon two additional cases, Hanifa v. State, 269 Ga. 797, 804-805 (3) (505 SE2d 731) (1998), and Davis v. State, 244 Ga. App. 715, 716 (1) (536 SE2d 603) (2000), to support its conclusion that the Special Conditions Form was sufficient to waive Curry’s Fourth Amendment rights. Both are inapposite. In Hanifa, 269 Ga. at 804-805 (3), the issue was whether a juvenile defendant who arrived with her mother at the police homicide office to give a statement had freely and voluntarily waived her right against self-incrimination. In pointing to several factors indicating that the juvenile had freely and voluntarily waived her rights, the Supreme Court indicated that the juvenile herself had read the waiver of rights form by emphasizing that she “was able to read and write and understood the English language.” Id. at 805 (3). That is a far cry from the situation here, where there is no evidence that Curry ever saw or was notified of the Special Conditions Form. In Davis, 244 Ga. App. at 716 (1), the trial judge who conducted the bond hearing and issued the bond testified that it was his custom to go over the special conditions with defendants and that the bond was served on the defendant in that case. There was no similar testimony from the trial judge in the present action.

       OCGA § 24-6-3 is found in Chapter 6, “Parol Evidence Rule,” of Title 24.

       The concurring opinion cites to Stoner v. California, 376 U. S. 483 (84 SC 889, 11 LE2d 856) (1964), but that case does not address the relationship between a defendant and her attorney, or the extent to which an attorney can waive a defendant’s Fourth Amendment rights by executing a court form, where there is no evidence that the attorney or anyone else informed the defendant of the form. The concurring opinion also cites to OCGA § 15-19-5, but that general statute does not address an attorney’s authority to unilaterally waive a client’s fundamental constitutional rights, a question controlled by the Georgia and United States Constitutions rather than statutory law.

       It is just as plausible that the officers erroneously believed that the signature on the Special Conditions Form belonged to Curry herself, and clearly the line of cases pertaining to third party consent would not apply under that circumstance.


source: Caselaw Access Project

author: MILLER, Presiding Judge.

license: Public Domain

text:
    A10A2214.
    WEINSTOCK et al. v. NOVARE GROUP, INC. et al.
    (710 SE2d 150)
   MILLER, Presiding Judge.

Shaun Weinstock and David Sarif bought condominiums on the south side of Twelve Atlantic Station (“Twelve”), a residential tower located in Atlanta. Weinstock and Sarif contend that defendants Novare Group, Inc. and its alleged affiliates (collectively, “Novare”), who marketed and sold Twelve, were involved in a scheme to sell and advertise condominiums at Twelve as having spectacular city views while intending to block those same views by later constructing The Atlantic, a 46-story tower, on a lot directly south of Twelve. In their complaint, as amended, Weinstock and Sarif sued Novare raising claims of negligent misrepresentation, fraud in the inducement, negligent supervision, breach of implied easement rights, and violation of the Georgia Fair Business Practices Act, OCGA § 10-1-390 et seq. (FBPA). The trial court granted summary judgment to Novare on all claims, from which Weinstock and Sarif appeal. We affirm. Weinstock and Sarif, who did not timely rescind their purchases, could not justifiably rely on representations that were not made in their purchase contracts. The claim of fraudulent inducement, as couched by Weinstock and Sarif, does not support the conclusion that Novare induced the sale by concealing a defect in the property. Novare successfully pointed to a lack of evidence to create an issue of material fact on the claims of negligent supervision and breach of implied easement rights. Lastly, we agree with the trial court that the FBPA claim is barred by the statute of limitation.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. On appeal from the grant or denial of a motion for summary judgment, this Court must conduct a de novo review of the evidence and view the undisputed facts in the light most favorable to the nonmoving party.

(Footnotes omitted.) ChoicePoint Sucs. v. Graham, 305 Ga. App. 254, 255 (699 SE2d 452) (2010).

So viewed, the evidence shows that in 2006 Weinstock and Sarif each bought a residential condominium unit on the south side of Twelve from defendant WN Atlantic Properties, LLC. Novare Group, WN Atlantic, and the other defendants were involved in the marketing and sale of Twelve condominiums.

Twelve is a 26-story building which Novare marketed as having “spectacular city views.” Novare knew that at the time of marketing and selling of condominiums at Twelve that The Atlantic would be constructed south of Twelve and would obstruct views of the Atlanta skyline, but Novare did not disclose this fact to Weinstock and Sarif, who contend that they paid a premium for the view. Upon construction, The Atlantic obstructed the view of downtown Atlanta from Weinstock’s and Sarif s condominiums.

Novare also knew that real estate agents would be asked about future development on the building pads located around the property, including the pad where The Atlantic was to be constructed. The sales agents were directed to respond to questions about whether the building would be developed and how high it might be as follows:

It is likely that all of the building lots around our building will be developed. No developments have been announced, and the timing is uncertain. They could be developed at any point in the future. There is not [sic] height limit on buildings which could be developed on those sites.

Weinstock and Sarif deposed that in response to direct question-mg, real estate agents represented that the development on the property where The Atlantic is now located would be a low to mid-rise building and would not be constructed for five years.

1. Weinstock and Sarif contend that the trial court erred in granting summary judgment to Novare on Weinstock’s and Sarif s negligent misrepresentation claim. We disagree.

(a) Justifiable reliance is an essential element of negligent misrepresentation. Real Estate Intl. v. Buggay, 220 Ga. App. 449, 452 (3) (469 SE2d 242) (1996). The purchase contracts contain a comprehensive merger clause providing that the respective contracts reflected the “entire agreement” between the parties and that, among other things, no party relied upon any representation or warranty not set forth in the contract. The purchase contracts further provide, in bold capital letters prominently located on the first page of the respective documents, that oral representations cannot be relied upon as stating the representations of the seller. Disclosures within the contracts include that “[t]he views from and natural light available to the Unit may change over time due to, among other circumstances, additional development. . . .’’In light of the merger clause and the disclosures contained within the purchase contracts, Weinstock and Sarif could not rely on prior representations regarding the view from the condominiums or the height of the building to be constructed on the site now occupied by The Atlantic. See Megel v. Donaldson, 288 Ga. App. 510, 515 (4) (654 SE2d 656) (2007) (in light of merger clause, appellant was “estopped from asserting that she relied upon [appellee’s] earlier promises”); Savage v. KGE Assocs. Ltd. Partnership, 260 Ga. App. 770, 776 (2) (a) (580 SE2d 591) (2003) (in light of entire agreement clause, “[t]he purchaser is . . . barred from claiming that he or she relied on an alleged misrepresentation not contained within the agreement”) (citation and punctuation omitted).

(b) Weinstock and Sarif argue that because they sought to rescind the purchase contracts that they need not be restricted to reliance upon representations made within the purchase contracts themselves. “It is inconsistent to apply a disclaimer provision of a contract in a tort action brought to determine whether the entire contract is invalid because of alleged prior fraud which induced the execution of the contract.” City Dodge v. Gardner, 232 Ga. 766, 770 (208 SE2d 794) (1974). See del Mazo v. Sanchez, 186 Ga. App. 120, 125 (366 SE2d 333) (1988) (“If the party elects to rescind the contract as voidable, he is not bound by the provisions of the rescinded contract. If the defrauded party elects to affirm the contract and sue for damages for fraud and deceit he is bound by the contract provisions.”) (citation omitted). Weinstock and Sarif further assign error to the trial court’s finding that they affirmed the contract by failing to seek rescission in the original complaint.

“In general, a party alleging fraudulent inducement to enter a contract has two options: (1) affirm the contract and sue for damages from the fraud or breach; or (2) promptly rescind the contract and sue in tort for fraud.” (Citation omitted.) Ekeledo v. Amporful, 281 Ga. 817, 819 (1) (642 SE2d 20) (2007). In this case, Weinstock and Sarif did not attempt to rescind the purchase contract before filing suit, nor did they raise a rescission claim contemporaneously therewith. Compare Nexus Sucs., Inc. v. Manning Tronics, Inc., 201 Ga. App. 255, 256 (410 SE2d 810) (1991) (rescission is a prerequisite to the filing of the action). The original complaint filed on April 24, 2008 alleged fraud in the inducement and violation of the FBPA. Almost a year later, on March 23, 2009, Weinstock and Sarif amended their complaint to include a prayer to rescind the purchase contract. “An announcement of the intent to rescind the contract must be made in a timely fashion, as soon as the facts supporting the claim for rescission are discovered.” Holloman v. D.R. Horton, 241 Ga. App. 141, 146 (3) (524 SE2d 790) (1999) (“The original complaint, by affirming the contract and seeking damages resulting from the alleged fraud without alleging any cause of action for rescission, constituted an election of remedies and a waiver of any rescission claim.”) Id. at 146-147 (3). Weinstock and Sarif do not contend that they learned of the alleged fraud only after filing their complaint.

We have generally found that a claim for damages unaccompanied by a claim for rescission operates as an election to affirm the underlying contract. Megel, supra, 288 Ga. App. at 515 (3) (appellant failed to pursue claim for rescission until filing amended complaint); Authentic Architectural Millworks v. SCM Group USA, 262 Ga. App. 826, 827 (1) (586 SE2d 726) (2003) (contract affirmed where appellant only sought money damages in counterclaim and failed to seek rescission until after appellee raised the issue); Markowitz v. Wieland, 243 Ga. App. 151, 153 (1) (532 SE2d 705) (2000) (even if there were an attempted rescission, complaint for damages without a claim for rescission affirmed the contract); Consulting Constr. v. Edwards, 207 Ga. App. 296, 298 (1) (427 SE2d 789) (1993) (“appellants’ attempt to rescind the contract in response to the appellee’s motion for summary judgment was untimely,” and as a result affirmed the contract). Weinstock and Sarif argue that the fraud claim set forth in their original complaint was nevertheless sufficient to support their claim for rescission. Arko v. Cirou, 305 Ga. App. 790, 793, n. 2 (700 SE2d 604) (2010) and Conway v. Romarion, 252 Ga. App. 528, 531-532 (1) (557 SE2d 54) (2001), relied on by Weinstock and Sarif for this point, are distinguishable. Compare Sarif v. Novare Group, Inc., 306 Ga. App. 741, 744 (1) (703 SE2d 348) (2010) (construing pleadings favorably to appellants in context of a motion for judgment on the pleadings).

In Conway, the plaintiffs did not set forth a specific rescission claim in their original complaint, but they asserted their intent to rescind in a timely fashion before filing their action, they noted the rejection of their tender in the complaint, and they even attached the letter of rescission thereto. Conway, supra, 252 Ga. App. at 531-532 (1). We found that under those circumstances the plaintiffs could amend their complaint to formally assert a rescission claim. Id. at 532 (1). In Arko, the appellants filed a complaint seeking to rescind two instruments, and we concluded that the fraud allegations of the complaint supported a later attempt to rescind a third related agreement notwithstanding that the complaint did not “expressly pray” to rescind that specific contract. Arko, supra, 305 Ga. App. at 793, n. 2. Unlike Arko, Weinstock and Sarif did not file a suit for rescission and, unlike Conway, they did not reference rescission in their initial complaint after seeking to rescind the underlying transaction. Rather, Weinstock and Sarif continued to enjoy the fruits of their contracts and did not raise the issue of rescission in the original complaint, and the later amendment to the complaint did not “formally” or “expressly” set forth a claim for rescission raised by the original complaint or underlying facts. Arguably, Weinstock’s and Sarif s failure to include a specific claim for breach of contract in the original complaint left their intentions unclear. But this ambiguity must be weighed against the requirement that the intent to rescind be announced “as soon as” the underlying facts supporting the claim are discovered. See Holloman, supra, 241 Ga. App. at 146 (3). Accordingly, we conclude that the circumstances of this case are not sufficient to authorize a departure from the general rule. Weinstock’s and Sarif s attempt to assert a claim for rescission in 2009 by amendment to the complaint was too late because the original complaint for damages affirmed the purchase contracts.

In light of the foregoing, we conclude that the trial court did not err in awarding summary judgment to Novare on Weinstock’s and Sarif s negligent misrepresentation claim.

2. Weinstock and Sarif claim that the trial court erred in granting summary judgment to Novare on their claim for fraudulent inducement. As we found in Division 1 (b), supra, Weinstock and Sarif affirmed their pürchase contract and did not “promptly rescind” the agreements. “[WJhere the allegedly defrauded party affirms a contract which contains a merger or disclaimer provision and retains the benefits, he is estopped from asserting that he relied upon the other party’s misrepresentation and his action for fraud must fail.” (Citations and punctuation omitted.) Ekeledo, supra, 281 Ga. at 819 (1). Thus, to the extent the plaintiffs fraudulent inducement claim is supported by alleged acts of misrepresentation, it is without merit. See Herman Homes v. Smith, 249 Ga. App. 131, 132-133 (1) (547 SE2d 591) (2001) (fraudulent inducement claim for concealment of drainage defect failed in light of entire agreement clause in purchase contract). Compare Sarif, supra, 306 Ga. App. at 744-745 (1) (a) (where pleadings did not require the conclusion that purchasers had affirmed the contract, claim for fraud via active concealment withstood motion for judgment on the pleadings).

Weinstock and Sarif point out that their fraudulent inducement claim alleges Novare’s active and passive concealment of a defect in the property. Therefore, they contend, the trial court erred in relying on the contract’s merger clause in analyzing this claim.

[WJhere a buyer affirms the sales contract and sues claiming, not that the seller made extracontractual oral or written misrepresentations about the purchased property, but that the seller actively or passively concealed damage or defects in the purchased property, there is no basis for using an entire agreement clause in the sales contract as a defense to the suit.

Browning v. Stocks, 265 Ga. App. 803, 806 (2) (595 SE2d 642) (2004). In Browning, the seller fraudulently concealed termite damage with putty and paint. Id. at 804-805 (1). Here, Weinstock and Sarif do not allege that Novare concealed a defect in the condominium itself. See Dickey v. Clipper Petroleum, Inc., 280 Ga. App. 475, 478 (2) (634 SE2d 425) (2006) (plaintiff failed to allege or prove a defect in the installed equipment; fraud in the inducement claim was barred by decision to affirm the contract). We find no merit in Weinstock’s and Sarif s attempt to characterize an (eventually) obstructed view of downtown Atlanta from their condominiums as a “defect” for purposes of their concealment claims, and Weinstock and Sarif do not cite to authority that would demand a different conclusion. See generally Worthey v. Holmes, 249 Ga. 104, 105 (2) (287 SE2d 9) (1982) (passive concealment doctrine permits homeowner “to recover for latent building construction defects about which he did not know and in the exercise of ordinary care would not have discovered”). Accordingly, we find that the trial court did not err in granting summary judgment on Weinstock’s and Sarif s fraudulent inducement claim.

3. Weinstock and Sarif challenge the trial court’s findings of a lack of evidence to support their claim for negligent supervision. They contend that Novare failed to satisfy its burden on this issue because it failed to present evidence to negate an essential element of a negligent supervision claim. However,

[a] defendant who does not bear the burden of proof at trial need not produce evidence or disprove the plaintiffs claim on summary judgment. Rather, the defendant meets its summary judgment burden by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the plaintiffs case.

(Punctuation and footnotes omitted.) Grossman v. Brown & Webb Builders, 255 Ga. App. 897, 899 (1) (567 SE2d 116) (2002). Novare did exactly this in its moving papers.

Weinstock and Sarif also contend that there was evidence of record to support a negligent supervision claim. “An employer may be held liable for negligent supervision only where there is sufficient evidence to establish that the employer reasonably knew or should have known of an employee’s tendencies to engage in certain behavior relevant to the injuries allegedly incurred by the plaintiff.” (Punctuation and footnote omitted.) Leo v. Waffle House, Inc., 298 Ga. App. 838, 841 (2) (681 SE2d 258) (2009). Weinstock and Sarif argue that Novare could have anticipated that its agents would make misrepresentations about the development of the neighboring properties. However, they failed to produce evidence showing that any of Novare’s agents had a tendency to engage in misrepresentation or fraud. See id. (summary judgment to employer on issue of negligent supervision proper where the record was devoid of evidence that employer knew or should have known that employee had previously engaged in reckless behavior). Further, the terms of the purchase contracts, including the merger clause and the disclaimers therein, relieved Novare of any duty to Weinstock and Sarif concerning representations made by sedes agents. See, e.g., Liberty v. Storage Trust Properties, 267 Ga. App. 905, 912-913 (4) (600 SE2d 841) (2004) (claim of negligence in supervision of property barred by contract).

4. Weinstock and Sarif contend that the trial court erred in granting summary judgment to Novare on their claim for breach of implied easement rights. This claim rests upon the theory that Novare violated their implied easement rights under OCGA § 44-9-2 and common law by construction of The Atlantic. Novare has pointed to an absence of a material issue of fact as to the application of OCGA § 44-9-2. The Atlantic was constructed on a lot which was owned by Atlantic Station LLC, not WN Atlantic, at the time that Weinstock and Sarif bought their condominiums. Moreover, the lot was separated from Twelve by 17th Street. The easement contemplated by OCGA § 44-9-2 only arises when “a person sells a house and the light necessary for the reasonable enjoyment thereof is derived from and across adjoining land belonging to such person.” (Emphasis supplied.) See Goddard v. Irby, 255 Ga. 47, 48 (1) (335 SE2d 286) (1985) (where “common grantor could not have conveyed an easement in [appellee’s] property with the sale of a house on the [appellant’s] lot” an implied easement did not arise) (emphasis supplied). It follows that an implied easement under OCGA § 44-9-2 could not arise here. Further, a violation of the general right to free passage of light and air is not implicated under the record. Savannah Jaycees Foundation v. Gottlieb, 273 Ga. App. 374, 379 (3) (615 SE2d 226) (2005) (“the right to the free passage of light and air is subject to the superior right of the adjoining landowner to make use of his property in good faith, and so long as it is not for a malevolent purpose he may improve his property in such a way as to cut off the free passage of light and air over his property”) (punctuation and footnote omitted).

5. Lastly, Weinstock and Sarif contend that the trial court erred in granting summary judgment to Novare on their FBPA claims (i) because their cause of action was not barred by the statute of limitation and (ii) because Weinstock and Sarif could show that they justifiably relied on the representations made in violation of the FBPA. We agree with the trial court that the FBPA claims were barred by the statute of limitation. Accordingly, we do not reach the issue of justifiable reliance for purposes of the FBPA.

“[N]o action shall be brought [under the FBPA] . . . [m]ore than two years after the person bringing the action knew or should have known of the occurrence of the alleged violation[.]” OCGA § 10-1-401 (a) (1). This language requires consideration of “the timing of the alleged FBPA violation and whether [Weinstock and Sarif] exercised due diligence in discovering it.” Tiismann v. Linda Martin Homes Corp., 279 Ga. 137, 138 (610 SE2d 68) (2005). The limitation period, however, cannot begin until the cause of action accrues. Id. “The true test to determine when the cause of action accrued is to ascertain the time when the plaintiff could first have maintained his action to a successful result.” (Citations and punctuation omitted.) Id. “[A] private FBPA claim has three elements: a violation of the Act, causation, and injury.” (Citation and punctuation omitted.) Id. at 139.

The alleged violations of the FBPA occurred before Weinstock and Sarif closed on their condominiums in February 2006. They filed the original complaint on April 24, 2008, alleging, among other things, that on March 31, 2006, the Atlanta Business Chronicle published an article outlining Novare’s plans to build a 40-50 story condominium tower known as The Atlantic. They do not dispute they were aware of the article at that time. Weinstock and Sarif contend, however, that they could not have successfully maintained an action for unlawful and deceptive practices until Novare constructed The Atlantic and blocked the advertised “spectacular city views.” This occurred, they argue, no earlier than February or March 2007, when Novare broke ground on The Atlantic’s development site. Alternatively, Weinstock and Sarif maintain that the statute of limitation did not run on their FBPA claim because Novare concealed its wrongful scheme through fraud and deceit. See OCGA § 9-3-96 (“If the defendant or those under whom he claims are guilty of a fraud by which the plaintiff has been debarred or deterred from bringing an action, the period of limitation shall run only from the time of the plaintiffs discovery of the fraud”).

Weinstock’s and Sarif s FBPA claims are analogous to those of other consumers who contend that they paid for something other than what they received due to a seller’s deceptive business practices. They claim, in effect, that they “paid a premium price for a [condominium with spectacular views] and got a much less valuable [condominium] instead.” Johnson v. GAPVT Motors, Inc., 292 Ga. App. 79, 85 (2) (663 SE2d 779) (2008). That premium was paid at closing and they were injured at that time. See, e.g., Tiismann, 279 Ga. at 139 (appellant could not suffer damages for violation of FBPA until the house was conveyed). At the latest, Weinstock and Sarif were actually injured when the prospect that the view from condominiums on the south side of Twelve would be blocked became public knowledge in March 2006.

Further, Weinstock and Sarif do not dispute knowledge of the article disclosing Novare’s plans to build The Atlantic in March 2006, at which time any reasonable person would have realized that their views of the city were at risk. In light of the media reports, Weinstock and Sarif “knew or should have known of the occurrence of the alleged violation,” OCGA § 10-1-401, more than two years before they filed suit. “Once [Weinstock and Sarif] learned of this potential problem, they were obligated to exercise reasonable diligence to protect their interest in their home and their legal rights.” Scully v. First Magnolia Homes, 279 Ga. 336, 339 (2) (614 SE2d 43) (2005) (statute of limitation began to run when purchasers became aware through media accounts of potential problem with their home’s stucco).

Weinstock’s and Sarif s argument that fraud tolled the statute of limitation is without merit. “The fraud which tolls a statute of limitation must be such actual fraud as could not have been discovered by the exercise of ordinary diligence.” (Citations and punctuation omitted.) Fuller v. Dreischarf, 238 Ga. App. 18, 20 (1) (b) (517 SE2d 89) (1999). Even assuming that Novare had fraudulently hidden its plans to construct The Atlantic from Weinstock and Sarif and had thereby deterred them from learning that Novare’s representations with regard to the “spectacular city views” were false, they were not deterred from discovering the truth once Weinstock and Sarif were put on notice that Novare planned to build a tower south of Twelve. Hendry v. Wells, 286 Ga. App. 774, 780 (1) (650 SE2d 338) (2007) (“the statute of limitation would not be tolled where the plaintiff had information in her possession from which she could have discovered the truth”). We conclude, therefore, that the trial court correctly granted summary judgment to Novare on Weinstock’s and Sarif s FBPA claims.

Decided March 28, 2011

Reconsideration denied April 14, 2011

Weinstock & Scavo, Wallace H. Ehrenclou, James R. Fletcher II, for appellants.

Troutman Sanders, William N. Withrow, Jr., Thomas E. Reilly, Brian P. Watt, for appellees.

Judgment affirmed.

Phipps, P. J., and McFadden, J., concur.

       The other defendants are Atlantic WN Properties, Inc., Novare Group Holdings, LLC, Twelve Hotels and Residences, LLC, and WN Atlantic Properties, LLC.

       The contracts provide:
      This agreement contains the entire agreement between the parties hereto. No agent, representative, salesman or officer of the parties hereto has authority to make, or had made, any statements, agreements, or representations, either oral or in writing, in connection herewith, modifying, adding to, or changing the terms and conditions hereof and neither party has relied upon any representation or warranty not set forth in this Agreement. No dealings between the parties or customs shall be permitted to contradict, vary, add to, or modify the terms hereof.

       Their claims for negligent misrepresentation, negligent supervision, and breach of implied easement rights were added in a second amended complaint, filed on May 26, 2009.

       Although there are some overlapping parties, facts, and theories of recovery between this appeal and Sarif which also involves fraud claims by purchasers of condominiums in Twelve, Sarif is a separate civil action. In that case, we reviewed an appeal from the grant of a motion on the pleadings and “construefd] the complaint in a light most favorable to the appellant[s], drawing all reasonable inferences in [their] favor.” Id. at 742. (Citation and punctuation omitted.) So construed, appellants had notified appellees of their intent to rescind their purchases before fifing the complaint, and we concluded that the appellants had not affirmed their purchase contracts for purposes of a judgment on the pleadings. Id. at 744 (1) (a). Here, both the standard of review and the facts, as developed for purposes of the motion for summary judgment, differ from those in Sarif.

       Weinstock and Sarif argue that whether they timely rescinded the purchase agreement was irrelevant because “a party need not tender back what he is entitled to keep, and need not offer to restore where the defrauding party has made restoration impossible, or when to do so would be unreasonable.” Orion Capital Partners, L.P. v. Westinghouse Elec. Corp., 223 Ga. App. 539, 542 (2) (b) (478 SE2d 382) (1996). Weinstock and Sarif contend that the existence of mortgage loans on the properties rendered tender unnecessary. Assuming, but not deciding, that no tender was required, this does not excuse an unreasonable delay in electing the remedy of rescission. Id. at 543 (2) (b).

       OCGA § 44-9-2 provides:
      A right to an easement of light and air passing over another’s land through existing lights or windows may not be acquired by prescription; but, when a person sells a house and the light necessary for the reasonable enjoyment thereof is derived from and across adjoining land belonging to such person, the easement of light and air over such vacant lot shall pass as an incident to the house sold as being necessary to the enjoyment thereof.

       After Novare pointed out that the record showed a lack of common ownership of the two lots, Weinstock and Sarif failed to come forward with evidence that would give rise to a triable issue of fact. Weinstock and Sarif did allege below that they would pierce the corporate veil, but they did nothing to show that the separateness of the corporate entities should be disregarded. Further, even if we agreed with Weinstock and Sarif that there remained an issue as to common ownership, an implied easement for a view of downtown Atlanta could not have arisen under the terms of the purchase contracts. “The introduction of an implied term into the contract of the parties can only be justified when the implied term is not inconsistent with some express term of the contract!.]” (Citation, punctuation and emphasis omitted.) Higginbottom v. Thiele Kaolin Co., 251 Ga. 148, 149 (1) (304 SE2d 365) (1983).

       Weinstock and Sarif also contend that the trial court erred in finding the FBPA was pre-empted by the Georgia Condominium Act, OCGA § 44-3-111 et seq. The trial court did not directly address the issue but assumed the FBPA applied. Novare does not contest the issue for purposes of this appeal.

       According to Weinstock’s and Sarif s complaint, “upon public disclosure of [Novare’s] plans to build The Atlantic, the value of south side condominiums would be significantly diminished.”


author: BARNES, Presiding Judge.

text:
    A10A2337.
    COOPER v. SPOTTS et al.
    (710 SE2d 159)
   BARNES, Presiding Judge.

Following a bench trial in the State Court of Cherokee County of Ellen Cooper’s appeal from a Magistrate Court judgment in favor of Leslie and James Spotts, the trial court dismissed Cooper’s claims after finding that she was not a real party in interest, and thus had no standing to pursue a claim related to the property at issue. The trial court, however, found for the Spotts on their counterclaim. We granted Cooper’s application for discretionary appeal, and this appeal ensued.

1. Before turning to the merits, we must first examine this Court’s jurisdiction over this appeal. “It is the duty of this Court on its own motion to inquire into its jurisdiction.” (Citation and punctuation omitted.) Yeazel v. Burger King Corp., 236 Ga. App. 110 (511 SE2d 237) (1999).

OCGA § 5-6-35 (h) provides that “[t]he filing of an application for appeal shall act as a supersedeas to the extent that a notice of appeal acts as supersedeas.” In addition, OCGA § 5-6-35 (d) provides in part that “[w]hen a motion for new trial, a motion in arrest of judgment, or a motion for judgment notwithstanding the verdict has been filed, the application shall be filed within 30 days after the entry of the order granting, overruling, or otherwise finally disposing of the motion.” Housing Auth. of Atlanta v. Geter, 252 Ga. 196 (312 SE2d 309) (1984) (“In the event a motion for new trial is timely filed as provided in OCGA § 5-5-40 . . ., the effectiveness of the divestiture of jurisdiction is then delayed until the motion for new trial is ruled upon and a notice of appeal to the ruling has been filed or the period for appealing the ruling has expired.”).

Here, the trial court entered its judgment on April 28, 2010, and Cooper timely filed a motion for new trial on May 10, 2010, then subsequently filed an application for discretionary review on May 26, 2010. On June 11, 2010, we dismissed Cooper’s application for discretionary appeal without prejudice because it was filed while her motion for new trial was pending. On June 15, Cooper withdrew her motion for new trial, and moved for reconsideration of our order dismissing her application. Although our disposition of Cooper’s application was consistent with OCGA § 5-6-35 (h), Cooper relied on Dept. of Human Resources v. Holland, 236 Ga. App. 273 (511 SE2d 628) (1999), a fair reading of which supported her argument that this Court had jurisdiction to review the application on the merits. On reconsideration, we granted Cooper’s application for discretionary appeal, and vacated the June 11 order dismissing the same.

In Holland we held that:

The filing of an application for discretionary review acts as a supersedeas and has the effect of depriving the trial court of jurisdiction to modify or alter its judgment. Nest Investments v. Tzavaras, 221 Ga. App. 282 (471 SE2d 223) (1996); OCGA § 5-6-35 (h). In the instant case, when DHR filed its initial application for discretionary review on December 31, 1997, the trial court was divested of jurisdiction to rule on DHR’s motion for new trial. See Bryson v. State, 228 Ga. App. 84, 85 (1) (491 SE2d 184) (1997).

Holland, 236 Ga. App. at 274. We concluded that the trial court’s ruling on the motion for new trial was a nullity, and thus provided no basis for the appeal. Id. However, neither Nest Investments nor Bryson, relied upon by this Court in Holland, involved the trial court’s jurisdiction over motions for new trial.

In Nest Investments, the investment company’s appeal from a summary judgment in favor of Tzavaras was dismissed because of an inexcusable delay in transmitting the record to the appellate court. Id. After the trial court granted Tzavaras’s motion for attorney fees, Nest filed a motion for reconsideration and an application for discretionary appeal from both orders of the trial court. Id. Meanwhile, the trial court granted the motion for reconsideration, and Nest withdrew its application for appeal. Tzavaras then filed a motion for reconsideration and an application for appeal. The trial court also granted that motion for reconsideration.

We reversed the trial court’s judgments, finding that the trial court was without jurisdiction to grant the motions for reconsideration while the parties’ appeals and applications for appeal were pending because a notice of appeal deprived the trial court of jurisdiction, acting as supersedeas after costs were paid in the trial court pursuant to OCGA § 5-6-46 (a), and that “the filing of the application, which of course occurs much earlier [than the grant of an application], . . . acts as supersedeas.” Nest Investments, 221 Ga. App. at 282.

Likewise in Bryson, we

address[ed] the jurisdiction of the trial court to enter an amended revocation order subsequent to defendant’s filing of an application for discretionary appeal. Pursuant to OCGA § 5-6-35 (h), the filing of that application acted as a supersedeas to the same extent as a notice of appeal. Thus, the trial court was divested of jurisdiction to enter an order altering or amending the original revocation order which defendant sought to appeal. Contrary to the State’s reliance upon OCGA § 15-1-3 (6), the filing of an application for discretionary appeal or notice of appeal has the effect of depriving the trial court of jurisdiction to modify or alter its judgment.

Bryson and Nest Investments, unlike Holland, did not address the jurisdiction of the trial court related to the filing of a motion for new trial.

A notice of appeal from the judgment, filed while a motion for new trial is pending, and unaccompanied by a proper certificate for immediate review, confers no jurisdiction in the appellate court and results in a dismissal of the appeal. ... If a motion for new trial is timely filed as provided in OCGA § 5-5-40, the divestiture of jurisdiction is then delayed until the motion for new trial is ruled upon and a notice of appeal to the ruling has been filed or the period for appealing the ruling has expired.

Decided March 28, 2011

Reconsideration denied April 14, 2011.

Meriwether & Tharp, Patrick L. Meriwether, Robert L. Tharp, for appellant.

Johnson & Dickenson, B. Glen Johnson, for appellees.

(Citations and punctuation omitted.) Griffin v. Loper, 209 Ga. App. 504, 504-505 (433 SE2d 653) (1993).

Thus, to the extent Holland holds that the trial court is divested of jurisdiction to rule on a motion for new trial by the filing of a discretionary application, it is disapproved and overruled. In so doing, we find that Cooper’s application for discretionary appeal was improvidently granted upon reconsideration, and we are without jurisdiction to consider the merits of the case.

Although Cooper withdrew her motion for new trial after the initial dismissal of her application for discretionary appeal apparently in an attempt to confer jurisdiction in this Court,

OCGA § 5-6-38 requires a trial court order granting, denying, or otherwise finally disposing of a party’s motion for new trial in order to extend the time for filing a notice of appeal more than 30 days after the entry of judgment. A party’s voluntary withdrawal of its motion for new trial, standing alone, is not the statutorily-required court order finally disposing of the motion for new trial.

(Emphasis in original.) Heard v. State, 274 Ga. 196, 197 (1) (552 SE2d 818) (2001). There is no order disposing of the motion in the record.

Likewise, after withdrawing her motion for new trial, on June 28, 2010, Cooper filed another application for discretionary appeal in this Court. We dismissed the application for lack of jurisdiction, finding that Cooper’s motion for new trial did not extend the 30-day period for filing her application; her application, filed 61 days after the entry of the order she seeks to appeal, was untimely. See Rosenstein v. Jenkins, 166 Ga. App. 385 (304 SE2d 740) (1983).

Appeal dismissed.

Ellington, C. J., Smith, P. J., Miller, P. J., Phipps, P J., Andrews, Mikell, Adams, Doyle, Blackwell, Dillard and McFadden, JJ., concur.


author: PHIPPS, Presiding Judge.

text:
    A11A0399.
    RAYBON v. THE STATE.
    (710 SE2d 579)
   PHIPPS, Presiding Judge.

After a jury trial, David Raybon was convicted of aggravated child molestation and child molestation. He contends that he received ineffective assistance of trial counsel because his counsel failed to move for a demurrer on his indictment in connection with the child molestation count. We disagree, and affirm.

To prevail on a claim of ineffective assistance of counsel, a defendant must establish, pursuant to Strickland v. Washington, that counsel’s performance was deficient and that the deficient performance was prejudicial to his defense. In reviewing a trial court’s determination regarding a claim of ineffective assistance of counsel, we uphold the court’s factual findings unless they are clearly erroneous, and review the court’s legal conclusions de novo.

Raybon complains that trial counsel did not move for a demurrer on the count that alleged that, during a certain period of time, he committed child molestation by “hav[ing] sexual intercourse with [K. S.], a child under 16 years of age, with intent to satisfy the sexual desires of said accused.” He argues that this count of the indictment was subject to demurrer because the allegations therein also could have constituted felony statutory rape, a conviction for which he asserts could have subjected him to a different punishment than a conviction for child molestation.

“An accused may challenge the sufficiency of an indictment by filing a general or special demurrer. A general demurrer challenges the sufficiency of the substance of the indictment, whereas a special demurrer challenges the sufficiency of the form of the indictment.” An indictment is sufficient to withstand a general demurrer

if an accused would be guilty of the crime charged if the facts as alleged in the indictment are taken as true[;] . . . however, if an accused can admit to all of the facts charged in the indictment and still be innocent of a crime, the indictment is insufficient and is subject to a general demurrer.

An indictment is sufficient to withstand a special demurrer if

it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.

The alleged child molestation occurred when Raybon was in his early twenties and the victim, K. S., was 11 to 12 years old. Child molestation is committed when a person “[d]oes any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” The allegation in the child molestation count that Raybon had sexual intercourse with a child under 16, with the intent to satisfy his sexual desires, contained the elements of the offense of child molestation. Moreover, the child molestation count apprised Raybon of the charge against him, and when and how it was committed. Accordingly, the indictment was sufficient to withstand a special demurrer. And Raybon could not have admitted to the facts charged and still be innocent of child molestation; thus the indictment was sufficient to withstand a general demurrer.

Decided April 18, 2011.

William J. Mason, for appellant.

Scott L. Ballard, District Attorney, Robert W. Smith, Jr., Assistant District Attorney, for appellee.

Citing the rule of lenity, Raybon argues that the child molestation count of the indictment nevertheless was subject to demurrer. “The rule of lenity applies when a statute, or statutes, establishes, or establish, different punishments for the same offense, and provides that the ambiguity is resolved in favor of the defendant, who will then receive the lesser punishment.” But Raybon has provided no authority, and we have found none, for the proposition that the rule of lenity could subject to demurrer an otherwise sufficient indictment.

Because the indictment was sufficient to withstand demurrer, the failure of Raybon’s trial counsel to move for demurrer did not constitute deficient performance. Accordingly, Raybon did not demonstrate that he received ineffective assistance of counsel, and the trial court did not err in denying his motion for new trial.

Judgment affirmed.

Andrews and McFadden, JJ., concur.

        Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

        Conaway v. State, 277 Ga. 422, 424 (2) (589 SE2d 108) (2003).

        Suggs v. State, 272 Ga. 85, 88 (4) (526 SE2d 347) (2000).

       See OCGA § 16-6-3 (a) (a person commits the offense of statutory rape when he or she engages in sexual intercourse with any person under the age of 16 years and not his or her spouse).

        State v. Corhen, 306 Ga. App. 495, 496-497 (700 SE2d 912) (2010) (citation and punctuation omitted).

       Id. at 497 (citation omitted); see Lowe v. State, 276 Ga. 538, 539-540 (2) (579 SE2d 728) (2003).

        Corhen, supra (citations omitted).

       OCGA § 16-6-4 (a) (1).

       See Maynard v. State, 290 Ga. App. 403, 404-405 (1) (659 SE2d 831) (2008) (adult’s act of having sexual intercourse with child can support conviction for child molestation), contrasting Dixon v. State, 278 Ga. 4-7 (1) (596 SE2d 147) (2004) (person could not be convicted of felony child molestation for act constituting misdemeanor statutory rape — sexual intercourse between a person fourteen or fifteen years old and a person no more than three years older). Misdemeanor statutory rape was not at issue in this case due to the ages of Raybon and the victim. See OCGA § 16-6-3 (c).

       See Corhen, supra at 501 (4).

       See Lowe, supra; Corhen, supra.

        Banta v. State, 281 Ga. 615, 617 (2) (642 SE2d 51) (2007) (citation omitted).

       Cf. id. at 618 (2) (where single act, as factual matter, violates more than one penal statute, defendant may he prosecuted for more than one crime; the injustice to be avoided in that circumstance is sentencing the defendant for more than one crime following his conviction of multiple crimes; this injustice is avoided through merger, not application of rule of lenity); Falagian v. State, 300 Ga. App. 187, 190-191 (2) (684 SE2d 340) (2009) (argument based on rule of lenity was premature when defendant had not yet been convicted).

       See Corhen, supra.

       See Jackson v. State, 285 Ga. 840, 842 (2) (684 SE2d 594) (2009); May v. State, 287 Ga. App. 407, 409 (4) (651 SE2d 510) (2007).

        May, supra.


text:
    A11A0499.
    BUFORD v. THE STATE.
    (710 SE2d 582)
   PHIPPS, Presiding Judge.

A robbery incident led to numerous criminal convictions for Maurice Buford. In this appeal, he contends that the evidence was insufficient to support his convictions for armed robbery and theft by taking. We affirm.

When an appellant challenges the sufficiency of the evidence to support the conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”

The state’s witnesses testified to the following at the jury trial. On September 17, 2008, an acquaintance of Buford drove him to an apartment, purportedly to buy marijuana through a person who lived there. While Buford and the acquaintance were inside the apartment with several other individuals, Buford brandished a gun and demanded cell phones and money. One of the individuals handed Buford his cell phone; another handed Buford money. Buford ran outside, then drove away in his acquaintance’s car without her permission.

Police were immediately notified of the incident. Shortly thereafter, several patrol cars engaged in a high speed chase of Buford in the car reported stolen. When the car Buford was driving crashed into a median, he was taken into custody.

Buford challenges the sufficiency of the evidence to support the guilty verdicts upon charges of: (i) armed robbery, by taking a cell phone from one individual, by using a gun; (ii) armed robbery, by taking money from another individual, by using a gun; and (iii) theft by taking his acquaintance’s car. He cites what he claims were weaknesses in the state’s case, including that the state’s witnesses were not credible. With regard to the armed robbery counts, he additionally points out that the pursuing officers found no gun in his possession. And with regard to the theft by taking count, he points to his own testimony that he and his acquaintance had planned the heist and that, in accordance therewith, he had her permission to use her car to leave the scene.

Buford has demonstrated no basis for reversal. The jury, not this court, resolves conflicts in the testimony and weighs the evidence. And decisions regarding credibility are uniquely the province of the jury, which was not required to believe Buford’s testimony, nor to disbelieve that of the state’s witnesses. Where, as here, there was sufficient evidence, even though contradicted, to support each fact necessary to make out the state’s case, the jury’s verdicts will be upheld.

Decided April 18, 2011.

Brown & Gill, Angela B. Dillon, for appellant.

Daniel J. Porter, District Attorney, John A. Warr, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews and McFadden, JJ., concur.

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

        Wells v. State, 297 Ga. App. 153, 154 (1) (676 SE2d 821) (2009).

       See Cleveland v. State, 285 Ga. 142, 147 (674 SE2d 289) (2009).

        Wells, supra at 157 (1) (b).

        Jackson v. Virginia, supra; Wells, supra at 154 (1); Feaster v. State, 283 Ga. App. 417, 418-419 (1) (641 SE2d 635) (2007) (evidence was sufficient to prove armed robbery, where victim identified defendant as the person who showed him a gun, threatened to shoot him, and then took his belongings, even though the officer who arrested defendant shortly after the incident did not find any gun in the defendant’s possession); see OCGA §§ 16-8-2 (defining theft by taking); 16-8-41 (a) (defining armed robbery).


author: Ellington, Chief Judge.

text:
    A11A0204.
    SIMMONS v. THE STATE.
    (710 SE2d 193)
   Ellington, Chief Judge.

A DeKalb County jury found Michael Simmons guilty of armed robbery, OCGA § 16-8-41 (a). Simmons appeals from the denial of his motion for new trial, contending that his trial counsel was ineffective and that the trial court erred in denying his request for a continuance to retain private counsel and in admitting an impermissibly suggestive pretrial identification. Finding no error, we affirm.

Viewed in the light most favorable to the jury’s verdict, the record shows that, at around 4:30 a.m. on April 1, 2008, Simmons entered a DeKalb County Waffle House restaurant and robbed a waiter of cash using what appeared to be a handgun. The robbery was witnessed by the restaurant’s cook, who obtained the tag number of the car in which Simmons fled. That same day, the police traced the tag number of the car to Simmons’ girlfriend. The girlfriend, who owned the car in question, told the police and testified at trial that she loaned Simmons her car that morning. Two days after the armed robbery, the police separately showed the cook and the waiter a photographic lineup. Both selected Simmons’ photograph and both identified him as the robber at trial. The police obtained the restaurant’s video surveillance recording of the robbery, and the State played the recording for the jury.

1. Simmons, who was represented by a public defender at trial, contends the trial court erred in denying his pro se request for a continuance so that he might retain private counsel. A ruling on a motion for continuance is within the trial court’s sound discretion and will not be disturbed absent a clear abuse of that discretion. Greene v. State, 274 Ga. 220, 221 (3) (552 SE2d 834) (2001).

The record shows that the DeKalb County Public Defender’s Office represented Simmons as early as April 18, 2008, shortly after his arrest. A public defender served discovery on the State after the indictment was returned a few months later and began preparing the case for trial. The public defender investigated the case, spoke with witnesses, discussed possible plea offers, and filed a motion to suppress the witnesses’ pretrial identification. The case was eventually transferred to another public defender, who announced ready to try the case on February 19, 2009. By that date, the case had been on three previous trial calendars. On the eve of trial, Simmons told the court that he was dissatisfied with his public defender and wanted a continuance so that he could hire a private attorney. The trial court denied the request as untimely and proceeded to trial. However, on February 23, 2009, after Simmons refused to cooperate during voir dire, the trial court declared a mistrial. Simmons testified during the motion for new trial hearing that, thereafter, the judge gave him an opportunity to hire a private attorney, but that he was unable to gather the needed funds. On March 26, 2009, when the court next called the case for trial, the court denied Simmons’ second pro se request for a continuance, finding that Simmons had “had more than enough time” to retain his own attorney but had failed to do so. The case was eventually tried on March 30 and 31, 2009.

Under the circumstances, we find no basis for concluding that the trial court abused its discretion in denying Simmons’ pro se request for a continuance. See Holder v. State, 242 Ga. App. 479, 483 (7) (529 SE2d 907) (2000) (“Denial of a continuance may be proper where defendant negligently failed to employ counsel promptly or where it appears he is using the tactic for delay.”) (citations and punctuation omitted); Smith v. State, 161 Ga App. 512, 514 (3) (288 SE2d 754) (1982) (“A defendant will not be permitted to use the discharge of appointed counsel and employment of another counsel as a dilatory tactic in requesting a continuance.”) (citations and punctuation omitted).

2. Simmons contends the trial court erred in denying his motion to suppress the witnesses’ pretrial identification and allegedly tainted in-court identification as the photographic line-up was unduly suggestive in that Simmons had the darkest complexion in the photo array.

“An identification procedure is impermissibly suggestive when it leads the witness to an all but inevitable identification of the defendant as the perpetrator or is the equivalent of the authorities telling the witness, ‘This is our suspect.’ ” (Citations and punctuation omitted.) Williams v. State, 275 Ga. 622, 623 (2) (571 SE2d 385) (2002).

In this case, the detective put together an array containing six photographs that depicted individuals with similar characteristics. All were African-American males of a similar age, with the same build, head shape, skin tone, facial hair, jewelry, clothing, and expression. The photographs were also alike in that they were the same size and were head shots taken against the same neutral background. Although Simmons’ skin-tone was slightly darker than the others depicted, that was a minor difference that did not cause the photographic array to be impermissibly suggestive. See Padilla v. State, 273 Ga. 553, 554 (1) (544 SE2d 147) (2001) (failure to match skin complexions did not require reversal). The photographic array was included in the record, and, based upon our review of it, we conclude that the trial court was authorized to find that there was no impermissible suggestiveness. Id.

Moreover, even if the lineup had been impermissibly suggestive, the trial court would have been authorized to find that there was not a substantial likelihood that either witness misidentified Simmons. To review the trial court’s ruling that the lineup was not impermis-sibly suggestive, we are required to consider “(1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness’ degree of attention, (3) the accuracy of the witness’ prior description of the criminal, [and (4)] the length of time between the crime and the confrontation.” (Footnote omitted.) Mobley v. State, 277 Ga. App. 267, 270-271 (1) (626 SE2d 248) (2006). Here, witnesses testified that the crime occurred inside a restaurant, that Simmons stood just a short distance from each of them, that each got a good look at Simmons’ face, and that they each independently picked Simmons’ photograph out of the lineup without any hesitation or doubt. Further, the identification occurred only two days after the crime was committed. Given the totality of the circumstances, we find that the trial court would have been authorized to conclude that there existed no substantial likelihood of irreparable misidentification. Id.

3. Simmons contends that his trial counsel was ineffective in three respects: (a) she failed to adequately prepare the case and consult with him prior to trial; (b) she failed to support his request for a continuance; and (c) she failed to engage in plea negotiations that would have resolved cases pending in other jurisdictions.

To prevail on a claim of ineffective assistance of counsel, the defendant must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defense of the case. Trial counsel is afforded a strong presumption that his conduct and decisions are reasonable. Moreover, we will uphold the trial court’s determination as to counsel’s effectiveness unless it is clearly erroneous.

(Citations and footnotes omitted.) Terrell v. State, 276 Ga. App. 102, 103 (1) (622 SE2d 434) (2005).

(a) The record reveals that Simmons’ first public defender met with him at the jail and in court to discuss the case and pending charges, that she investigated the case, spoke with witnesses, filed discovery and pretrial, motions, either received or reviewed the State’s evidence, and prepared voir dire and cross-examination questions and jury charges. Although a new public defender inherited Simmons’ file from the first attorney a few weeks before the February 2009, calendar call, she testified that the case had been fully investigated and was ready to be tried and that she had no reason to ask for a continuance. She also checked into all of Simmons’ claims, including alibi witnesses, but, in her opinion, those leads yielded nothing helpful to the defense. The record does not support Simmons’ claim that his trial counsel was unprepared or that she failed to consult with him.

(b) Simmons suggests that his public defender should have moved for a continuance so that he could retain private counsel. The record, however, reveals that counsel only became aware of Simmons’ wishes on the eve of trial, and that they made those wishes known to the trial court on February 19, 2009. Counsel testified that it was up to Simmons to hire an attorney and that the decision to allow a continuance or a substitution was up to the trial court. We see no evidence in the record that the public defender failed to convey Simmons’ wishes to the court or impeded his efforts to retain private counsel.

(c) Simmons contends that his DeKalb County public defenders provided ineffective assistance because they failed to engage the district attorney in Gwinnett County, where Simmons had multiple pending armed robbery charges, in plea negotiations in an effort to simultaneously resolve all his pending charges. Even if the evidence suggested that this contention were true, we have held that counsel’s failure to initiate plea negotiations does not constitute deficient performance. Terrell v. State, 276 Ga. App. at 103 (1).

Decided March 30, 2011

Reconsideration denied April 19, 2011.

Thomas S. Robinson III, for appellant.

R. Javoyne Hicks White, District Attorney, Daniel J. Quinn, Assistant District Attorney, for appellee.

Having reviewed Simmons’ claims and the record before us, we conclude that the trial court did not err in finding that the public defenders who represented Simmons were not deficient in their performance. Because Simmons has failed to show deficient performance by his public defenders, his claim of ineffective assistance of counsel must fail. Terrell v. State, 276 Ga. App. at 103 (1).

Judgment affirmed.

Miller, P. J., and Doyle, J., concur.

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