author: Blackwell, Judge.

text:
    A11A1061, A11A1062.
    DUNCAN v. KLEIN et al.; and vice versa.
    (720 SE2d 341)
   Blackwell, Judge.

These appeals arise from a legal malpractice case in which Jeffrey W. Duncan claims that lawyer Daniel M. Klein gave him erroneous advice about whether he could sue his employer for violations of federal employment discrimination laws. Klein allegedly told Duncan that such a lawsuit would not succeed, and believing as a result that he had no recourse against his employer, Duncan later resigned his employment. Duncan then enrolled in law school, where he learned that Klein might have given him bad advice, and he filed a lawsuit against his former employer, which he later settled. Notwithstanding that he eventually sued his former employer, and notwithstanding that he evidently got something out of that lawsuit, Duncan recovered less from his former employer, he says, than he would have recovered if Klein had advised him correctly and he had sued his employer more quickly. Moreover, Duncan contends that his decision to resign his employment was based on the advice he received from Klein, and as a result of his resignation, he had to enroll in law school, which caused him to incur substantial costs and to suffer an extended separation from his family. In the case below, Duncan sought to recover damages from Klein and his law firm, Greene, Buckley, Jones & McQueen, for the value of the claims that Duncan was unable to successfully assert against his former employer and for damages arising out of his enrollment in law school, as well as punitive damages and attorney fees.

Klein and the firm moved for summary judgment, and the court below granted that motion in part. The court determined that Duncan could not recover damages arising out of his enrollment in law school, that he could not recover damages for the value of a constructive discharge claim against his former employer, and that he could not recover punitive damages or attorney fees, and the court awarded summary judgment to Klein and the firm to the extent that Duncan sought such damages. The court ruled, however, that Duncan might properly recover damages for the value of any claims against his former employer for back pay that were viable when he consulted with Klein but were barred by the time he eventually sued his former employer. Duncan appeals in Case No. A11A1061 from the award of partial summary judgment, and Klein and the law firm appeal in Case No. A11A1062 from the denial in part of their motion for summary judgment. For the reasons set out below, we see no error and affirm in both appeals.

The standard for summary judgment is settled and familiar. “[T]o prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact, so that the party is entitled to judgment as a matter of law.” Cowart v. Widener, 287 Ga. 622, 623 (1) (a) (697 SE2d 779) (2010) (citations and punctuation omitted). See also OCGA § 9-11-56 (c).

When a defendant moves for summary judgment as to an element of the case for which the plaintiff, and not the defendant, will bear the burden of proof at trial[,] the defendant may show that he is entitled to summary judgment either by affirmatively disproving that element of the case or by pointing to an absence of evidence in the record by which the plaintiff might carry the burden to prove that element.

Strength v. Lovett, 311 Ga. App. 35, 39 (2) (714 SE2d 723) (2011) (citation omitted). On appeal from the grant or denial of a motion for summary judgment, we view the evidence of record in the light most favorable to the party opposing the motion, and we review the decision to grant or deny the motion de novo. Cowart, 287 Ga. at 624 (1) (a).

So viewed, the evidence in this case shows that Duncan, an American citizen, went to work for NGK-Locke, Inc., a subsidiary of a Japanese company, in 1991. By 2001, Duncan had become convinced that NGK treated its Japanese employees better than its American employees. Other American employees of NGK complained about discrimination, and in February 2001, NGK engaged a lawyer to investigate these complaints. In the course of his investigation, the lawyer spoke with Duncan and informed him that a treaty between the United States and Japan permits NGK to discriminate in favor of its Japanese employees, notwithstanding the federal employment discrimination laws.

Sometime in February or March 2001, Duncan asked Klein for advice about NGK and the extent to which he might successfully assert a discrimination claim against it. Duncan told Klein that NGK “claimed a legal right to discriminate,’’ and he asked if NGK was correct. Duncan also asked Klein whether he had a viable claim against NGK for discrimination based on national origin, and if so, how he should proceed to assert such a claim. Klein initially advised Duncan that Title VII of the Civil Rights Act of 1964 applied to NGK and that Duncan could file a claim against NGK under the Act. Duncan later discovered, however, a decision of the United States Court of Appeals for the Fifth Circuit concerning the treaty between the United States and Japan, and he asked Klein to review this decision and reconsider his advice. Klein did so, and according to Duncan, Klein advised him in April 2001 that NGK indeed was permitted to discriminate in favor of its Japanese employees and that any claim against NGK would be “completely barred.”

Duncan became more and more dissatisfied with the circumstances of his employment in the following months. NGK was “moving business from [him],” he says, and Duncan concluded that, sooner or later, he would lose his job. Accordingly, Duncan began to consider other options, and he applied to several law schools. He was admitted in July 2001 to the New England School of Law, and he resigned his employment with NGK as of August 2001 and set off for law school. Duncan since has explained that he left his job to attend law school only because he had no recourse, he thought, against NGK for its discriminatory practices. Duncan testified at his deposition that, “if Mr. Klein had given [him] correct legal advice, [he] would not have resigned [his] position .... [He instead] would have filed [a discrimination] claim, and [his employment] would have been protected by federal law.”

While attending law school, Duncan apparently learned that he might have a viable claim against NGK after all. In February 2002, Duncan filed a discrimination claim against NGK with the Equal Employment Opportunity Commission (EEOC), asserting, among other things, that NGK had denied him promotions based on his national origin and race and that he was constructively discharged by NGK. In September 2002, the EEOC issued a right-to-sue letter, and about three months later, Duncan filed a lawsuit against NGK in a federal district court in Maryland. In that lawsuit, Duncan claimed that NGK had unlawfully discriminated against him on the basis of race and national origin, and he sought damages for, among other things, its failure to promote him, unequal pay, a hostile work environment, retaliation, and constructive discharge. Duncan settled with NGK for a sum of money and dismissed his lawsuit in June 2004.

Duncan sued Klein and the law firm in 2005, asserting claims for legal malpractice, breach of contract, and breach of fiduciary duty. Klein and the firm moved for summary judgment, which the court below granted in part. The court determined that Duncan could not properly recover emotional damages, punitive damages, or the expenses of litigation, and it awarded summary judgment to Klein and the firm on these claims. The court also determined that Duncan could not recover for claims he filed, or could have filed, against NGK after he learned of Klein’s and the firm’s purported error, but that Klein and the firm might be liable to Duncan to the extent that the advice Klein had given was a proximate cause of Duncan waiting to assert otherwise meritorious claims against NGK until after the period of limitations ran on those claims.

All the parties asked the court to clarify its ruling on the motion for summary judgment, and in response to these requests, the court explained that it had awarded summary judgment to Klein and the firm with respect to any claims that were, or could have been, asserted by Duncan in his lawsuit against NGK, including a claim for constructive discharge. According to the court, “[t]his [also] includes claims which were not time barred, but which [Duncan] chose not to raise in that action, such as claims for damages arising out of [Duncan’s] entrance into law school and attendant costs, the refinancing of his home, and other consequential damages.” The court then entered final judgment for Klein and the firm on the claims for damages that, the court had concluded, Duncan could not properly pursue. The court also offered some additional clarification of its earlier order, explaining that only “the claims which were time-barred in the lawsuit against NGK” remained pending in the action.

Case No. A11A1061

1. Duncan contends first that the court below erred when it concluded that he could not recover damages from Klein and the firm for his inability to successfully assert a constructive discharge claim against NGK. Duncan explains that a Maryland court would not recognize a claim for constructive discharge but that he would have been able to successfully pursue a constructive discharge claim in Georgia if only Klein had given him good advice. We think, however, that Duncan misunderstands the law that applied in his Maryland lawsuit, and we conclude that a Maryland court would not necessarily have rejected a claim for constructive discharge under the federal employment discrimination laws.

To succeed on his claim for legal malpractice, Duncan must show that he employed Klein as his lawyer, that Klein failed “to exercise ordinary care, skill, and diligence,” and that Klein’s failure to do so proximately caused Duncan to sustain some injury. Millsaps v. Kaufold, 288 Ga. App. 44, 44-45 (653 SE2d 344) (2007). And to prove proximate causation, Duncan must show that, but for the error of his lawyer, “the outcome would have been different.” Id. at 45. With respect to constructive discharge, Duncan contends that he would have sued NGK in a Georgia court if Klein had given good advice, but because Klein did not, Duncan had to sue NGK in Maryland, where a claim for constructive discharge, he says, is not viable. Put another way, Duncan contends that the erroneous advice he received from Klein caused him to lose an otherwise viable claim against NGK for constructive discharge. See Huntington v. Fishman, 212 Ga. App. 27, 30 (441 SE2d 444) (1994).

In support of his contention that he could not successfully pursue a constructive discharge claim in Maryland, Duncan points to Reece v. Martin Marietta Technologies, Inc., 1995 U. S. Dist. LEXIS 3711 (D. Md. 1995), a case in which the federal district court dismissed a claim for the tort of constructive discharge under Maryland law. But the rejection of a claim for constructive discharge under state law does not mean that a court necessarily would reject a claim for constructive discharge under federal law, and indeed, the Fourth Circuit, of which Maryland is a part, recognizes such claims under Title VII. See Amirmokri v. Baltimore Gas & Elec. Co., 60 F3d 1126, 1132-1134 (II) (C) (4th Cir. 1995) (reversing summary judgment in favor of employer on Title VII constructive discharge claim); see also Pennsylvania State Police v. Suders, 542 U. S. 129, 143 (II) (A) (124 SC 2342, 159 LE2d 204) (2004) (agreeing “with the lower courts and the EEOC that Title VII encompasses employer liability for a constructive discharge”). The record shows that Duncan sued NGK under Title VII, that he alleged in his lawsuit against NGK that he had been constructively discharged, that a Maryland court likely would have recognized such a claim under federal law, and that Duncan settled his lawsuit against NGK for a sum of money, precluding any dispositive adjudication of the constructive discharge claim by the Maryland court. Under these circumstances, Duncan cannot show that, but for the allegedly erroneous advice that Klein gave him, the outcome of his claim for constructive discharge would have been any different. “In a case where a plaintiffs pending claims remain viable despite the attorney’s alleged negligence, the plaintiff severs proximate causation by settling the case, an act which makes it impossible for his lawsuit to terminate in his favor.” Duke Galish, LLC v. Arnall Golden Gregory, LLP, 288 Ga. App. 75, 76, n. 3 (653 SE2d 791) (2007). See also Huntington, 212 Ga. App. at 38, n. 2 (viability of a claim “refers only to the question of whether further litigation of that claim may lead to a favorable result as of the time prior counsel was dismissed from the case”). Accordingly, we find no error in the award of summary judgment on the claim concerning constructive discharge.

2. Duncan also contends that the trial court erred when it awarded summary judgment to Klein and the firm on his claims for punitive damages and attorney fees. We will address both claims in turn.

(a) Punitive damages may be recovered in cases in which it is established by clear and convincing evidence that “the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.” OCGA § 51-12-5.1 (b). Duncan points to the opinions of his expert witnesses about the shortcomings of the research that Klein undertook and the advice he gave, and Duncan argues that a jury could properly find that these shortcomings show “that entire want of care which would raise the presumption of conscious indifference to consequences” that would warrant punitive damages. We disagree.

Although Duncan points to evidence that Klein may have breached the standard of care, that evidence does not show anything more than, at worst, gross negligence. But as we have said before, “[njegligence, even gross negligence, is inadequate to support a punitive damage award. . . . Something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage.” Brooks v. Gray, 262 Ga. App. 232, 232 (1) (585 SE2d 188) (2003) (citations and punctuation omitted). We find no evidence in the record from which a jury might properly conclude that an award of punitive damages in this case is warranted. See Houston v. Surrett, 222 Ga. App. 207, 208-209 (1) (474 SE2d 39) (1996) (where attorney’s conduct could not be anything more than gross negligence, there was no jury question on issue of punitive damages in client’s malpractice action). The court below, therefore, did not err when it awarded summary judgment to Klein and the firm on punitive damages.

(b) “Attorney fees are recoverable under OCGA § 13-6-11 when a party has acted in bad faith, has been stubbornly litigious, or has subjected the other party to unnecessary trouble and expense.” Bourke v. Webb, 277 Ga. App. 749, 752 (2) (627 SE2d 454) (2006). Questions of bad faith, stubborn litigiousness, and unnecessary trouble and expense are generally questions for the jury. See Jones v. Ceniza, 257 Ga. App. 806, 810 (5) (572 SE2d 362) (2002) (footnote omitted). Duncan, however, points to no evidence that would support an award of attorney fees. Instead, he refers us generally to the “acts and/or omissions made by [Klein and the firm] in their representation of [Duncan],” which are, he says, identified in his pleadings below and, more specifically, in the affidavits of his legal experts. While these pleadings and affidavits may well show negligence, “mere negligence will not support an award of attorney fees based on bad faith.” MARTA v. Mitchell, 289 Ga. App. 1, 4 (659 SE2d 605) (2007) (punctuation and footnote omitted). And as to stubborn litigiousness and unnecessary trouble and expense, Duncan does not point us to any evidence that would support an award of attorney fees on those grounds, and we will not search the extensive record to ascertain if any such evidence exists. See Wilson v. Mallard Creek Holdings, 238 Ga. App. 746, 747 (519 SE2d 925) (1999) (“It is not the function of appellate judges to engage in the insipid search for support of alleged error without citation to relevant parts of the record.”) (citation and punctuation omitted). We find no error in the award of summary judgment on attorney fees.

3. Last, Duncan argues that the trial court erred when it awarded summary judgment on his claims for damages that arise from his decision to attend law school, including the costs of law school, the costs of refinancing his house, and the emotional distress he endured while he was separated from his family while attending law school. The court below concluded that Duncan could have pursued such damages in his lawsuit against NGK, and for this reason, he could not recover them from Klein and the firm. On an appeal from the award of summary judgment, however, we are not confined to the reason given by the trial court for its decision, and we can affirm the decision below if it is right for any reason. See La Quinta Inns, Inc. v. Leech, 289 Ga. App. 812, 819 (2) (658 SE2d 637) (2008) (grant of summary judgment will be affirmed if right for any reason). Whether or not Duncan might have recovered these damages from NGK, Klein and the firm argued below, as they do on appeal, that their malpractice, if any, was not the proximate cause of damages that Duncan allegedly sustained by virtue of attending law school. We agree with Klein and the firm.

Negligence is the proximate cause of an injury only when the injury is “the natural and probable consequence of the negligence, such a consequence as under the surrounding circumstances of the case might and ought to have been foreseen by the wrongdoer as likely to flow from his act.” Beasley v. A Better Gas Co., Inc., 269 Ga. App. 426, 428 (1) (604 SE2d 202) (2004). “The injury must be the direct result of the misconduct charged; but it will not be considered too remote if, according to the usual experience of mankind, the result ought to have been apprehended.” Id. The limitations of proximate cause reflect

a policy decision that, for various reasons including the intervening act of a third person, the defendant’s conduct is too remote from the injury to attach liability. While this policy decision is usually left to a jury, in plain and undisputed cases the court may make the determination as a matter of law.

White v. Rolley, 225 Ga. App. 467, 470 (2) (484 SE2d 83) (1997) (citation and punctuation omitted). This is such a plain and indisputable case.

The record shows that, after Duncan allegedly received bad advice from Klein, he made a decision to resign from NGK and go to law school. After he was admitted to the New England School of Law, Duncan refinanced his house, borrowing $100,000 on his house to pay bills and take care of his family while he attended law school, and he borrowed an additional $160,000 to pay the costs of law school. Regarding his alleged emotional damages, Duncan explains that he had to leave his family in Georgia to attend law school in Massachusetts, and he notes the difficulties that the separation caused his marriage and the pain of separation from his daughter.

It could be argued that, but for the alleged malpractice, Duncan would not have resigned his job with NGK, decided to enroll in law school, incurred debts to support his family and pay for law school, or suffered a separation from his family while he pursued his studies in New England. Nevertheless, it is highly questionable whether attending law school is a legally cognizable injury, notwithstanding that the rigors of law school are well known and undoubtedly unpleasant to some extent. But in any event, we can discern nothing in the record to suggest that Klein and the firm should have foreseen that, as a result of giving bad advice to Duncan about the merits of his claims against NGK, Duncan would elect to enroll in a law school in a faraway place, leave his family behind, and refinance his home to cover the costs of law school and the expenses of his family in the meantime. The alleged malpractice might well be a cause of Duncan leaving his job with NGK, but it is not the proximate cause of his free choice to remake his life and enter into the practice of law. The “intervening decisions by [Duncan] render [the alleged] negligence [of Klein and the firm] too remote to satisfy the proximate cause requirement for a legal malpractice claim.” White, 225 Ga. App. at 470 (2).

For all these reasons, the award of partial summary judgment to Klein and the firm must be affirmed.

Case No. A11A1062

4. In their cross-appeal, Klein and the firm contend that the court below erred when it denied their motion for summary judgment in part. As we explained earlier, the court held that Klein and the firm might be liable for the advice that Klein gave to Duncan to the extent that this advice proximately caused Duncan to fail to bring an otherwise meritorious claim until after the period of limitations had run. The claims that survived summary judgment below are claims for back pay that, Duncan contends, he could have recovered from NGK if only he had filed his lawsuit against NGK sooner. On appeal, Klein and the firm offer two reasons why, they say, the court should have awarded them summary judgment on these claims as well. We will address each in turn.

Decided November 29, 2011.

Jeffrey W. Duncan, pro se.

Carlock, Copeland & Stair, Johannes S. Kingma, Michele R. Jones, Christopher C. Meeks, for appellees.

(a) First, Klein and the firm contend that Duncan could have recovered the back pay from NGK that he now seeks as damages ir; this case, inasmuch as he actually asserted a claim in his lawsuit against NGK under 42 USC § 1981, and such a claim, they argue, permits a plaintiff to recover damages for back pay, subject to a four-year limitations period. Duncan responds, however, that Klein and the firm did not raise this argument below, and we agree. Because this legal issue was not properly raised below, we will not consider it for the first time on appeal. See Pfeiffer v. Ga. Dept. of Transp., 275 Ga. 827, 829 (2) (573 SE2d 389) (2002) (“Fairness to the trial court and to the parties demands that legal issues be asserted in the trial court”) (footnote omitted).

(b) Second, Klein and the firm assert that there is no evidence from which a jury might find that the advice that Klein gave to Duncan proximately caused him to delay bringing a claim against NGK. We disagree. Duncan testified that, if Klein had correctly advised him about his rights under the federal employment discrimination laws, he would have filed a claim with the EEOC then, while still employed with NGK. And when Duncan later learned that he might have a viable discrimination claim against NGK after all, he did, in fact, file a claim. There is, therefore, at least some evidence from which a jury could conclude that the alleged malpractice caused some delay in the assertion of claims against NGK, and for this reason, the court below did not err in denying in part the motion for summary judgment.

Judgments affirmed.

Barnes, P J., concurs. Adams, J., concurs in judgment only.

       Duncan originally sued Klein and the firm in 2003, but he later dismissed that lawsuit without prejudice and filed the lawsuit below in 2005 as a renewal action.

       Duncan asserts separate claims for legal malpractice, breach of contract, and breach of fiduciary duty, but all these claims are based on the alleged failure of Klein to properly research and advise Duncan about the treaty between the United States and Japan and its implications for his claims against NGK. The court below characterized these claims as claims of legal malpractice, and the parties do not attempt on appeal to differentiate the claims. See, e.g., McMann v. Mockler, 233 Ga. App. 279, 282 (3) (503 SE2d 894) (1998) (trial court correctly concluded that plaintiffs claims for breach of fiduciary duty, breach of contract, and breach of implied duty of good faith and fair dealing merely duplicated her malpractice claim). For this reason, we will also treat all the claims as claims of legal malpractice.

       Duncan does not clearly explain why he could not bring his lawsuit in Georgia at the time he filed it. As best we understand it, Duncan contends that his lawsuit, or at least his constructive discharge claim, had become time-barred in Georgia by the time he filed his lawsuit. Because we conclude that a Maryland court would recognize a constructive discharge claim under federal law, we need not attempt to fully understand why Duncan could not sue in Georgia.

       Moreover, if Reece is right, Duncan could not have maintained a constructive discharge claim under Maryland law in a Georgia court either, so he lost nothing by filing in Maryland.

       He also sought damages under Maryland law for defamation.

       In addition, emotional damages are not recoverable under the facts of this case. With an exception not applicable here, “[o]nly in cases where mere negligence is not relied upon, but the wrong complained of is wanton, voluntary, or intentional, may damages for mental pain and suffering be recovered without a showing of actual physical injury.” Hamilton v. Powell, Goldstein, Frazer & Murphy, 167 Ga. App. 411, 416 (2) (306 SE2d 340) (1983) (citation omitted). Cf. Lee v. State Farm Mutual Ins. Co., 272 Ga. 583, 588 (III) (533 SE2d 82) (2000).

       If Duncan had decided instead to remake himself as a fisherman, would anyone seriously contend that Klein and the firm owe him a boat and a dock? If Duncan had decided to become a professional gambler, would anyone seriously contend that they owe him a six-figure stake at the Bellagio? We doubt it. That one loses his job because his lawyer makes a mistake does not mean that he is entitled to remake his life, however he sees fit, and at whatever cost, on the dime of the lawyer. The claim of such an entitlement is preposterous.

       Duncan has moved twice to dismiss the cross-appeal, and he also has moved to strike the brief of Klein and the firm on the cross-appeal and for an award of sanctions. We deny these motions.

       According to Duncan, the delay in filing caused him to lose the opportunity to recover between eight and ten months of back pay damages, given the two-year period for which back pay can be recovered under Title VII. See generally 42 USC § 2000e-5 (g) (1) (“Back pay liability shall not accrue from a date more than two years prior to the filing of a charge with the Commission.”). For purposes of the cross-appeal, Klein and the firm assert that they are entitled to summary judgment on the claims for such damages, “[r]egardless of whether [Duncan’s claims against NGK] fell outside the Title VII limitations period.”


source: Caselaw Access Project

author: SMITH, Presiding Judge.

license: Public Domain

text:
    A11A1378.
    CITY OF ALBANY v. FREENEY et al.
    (720 SE2d 349)
   SMITH, Presiding Judge.

The City of Albany (“the city”) appeals from a trial court’s order enforcing a settlement between the city and Linda and George Freeney, contending genuine issues of material fact preclude enforcement of the alleged settlement. The city also asserts that the trial iourt erred by awarding attorney fees under OCGA § 9-15-14 without holding a hearing and without making the requisite findings of fact and conclusions of law. For the reasons set forth below, we reverse.

A de novo standard of review applies to a trial court’s order on a motion to enforce a settlement agreement. DeRossett Enterprises v. Gen. Elec. Capital Corp., 275 Ga. App. 728 (621 SE2d 755) (2005).

Because the issues raised are analogous to those in a motion for summary judgment, in order to succeed on a motion to enforce a settlement agreement, a party must show the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of the appellant’s case. Thus, we view the evidence in a light most favorable to the nonmoving party. . . .

(Citations, punctuation and footnotes omitted.) Id.

So viewed, the record shows that the attorneys representing the opposing parties in this action disagree as to whether the city agreed to settle the Freeneys’ property damage claims separately from their personal injury claims during a settlement conference. The attorneys agree that they met on May 19, 2010 to discuss settlement. Several others were also present.

The city’s attorney submitted an affidavit claiming that he “made an offer in the amount of $104,902.19 to settle all of the Freeneys’ claims” during the conference, an offer the Freeneys rejected. In his deposition, the city’s attorney testified unequivocally that there were “never any offers made by the [c]ity to bifurcate this into settling property damage . . . [separate from] personal injury. All of the offers by the [c]ity were to settle the entire claims of the Freeneys.”

The Freeneys’ attorney submitted an affidavit in which he averred that at the conclusion of the meeting, the city’s attorney “offered $29,902.19 for [plaintiffs’ property damage claims and $75,000 for [pllaintiffs’ personal injury claims. [The city]’s attorney did not state, and never stated, that these offers were combined offers that had to be accepted together or not at all.”

A former city employee who was present at the settlement conference submitted an affidavit about her recollection of what was said during the conference. She claimed that the city’s attorney “plainly stated” that the city did “not dispute and agreed to pay the property damages claims of the Freeneys. . . . [The city’s attorney] made it clear that the only remaining issue was how to best resolve the Freeney[s’] . . . personal injury claims.” She explained that the city’s attorney offered $75,000 to settle the Freeneys’ personal injury claims “in addition to the amount[ ] for property damage which [was] not in dispute. The offered amounts were not stated in terms of a combined property damage and personal injury settlement.” According to the city employee, no city representative ever stated during the May 19, 2010 meeting or any other meeting that the Freeneys

had to accept the personal injury and property damage offers together, or not at all. It was very clear and understood by all in attendance, that the property damage and personal injury offers were made separately and independently of the other . . . because resolution of the property damage claims was never in issue.

Other city employees also present at the May 19, 2010 meeting submitted affidavits in which they averred that an offer was made during the settlement conference to settle all of the Freeneys’ claims for $104,902.19 and that the city’s attorney “never stated that the [c]ity agreed to pay solely the property damage claim[ ]....”

Following the settlement conference, the Freeneys’ attorney sent a four-page letter to the city’s attorney outlining his position on the city’s liability for the personal injury claim. At the conclusion of the letter, he stated that his clients “will accept the offer to pay off the property damage in full in the amount of $29,902.19, but regarding the personal injury claim they have requested that I reject your counteroffer of $75,000 . . . and make a counteroffer . . . for their combined personal injury claims.”

The city did not respond to this letter or another letter sent the following day. The city’s attorney explained that he did not respond in writing to the May 19, 2010 letter because the counteroffer was too high and the city was not “interested in settling it at that price.” He considered the acceptance of the alleged property damage settlement offer as “self-serving” because “there wasn’t any offer to accept for just property damage.”

The plaintiffs’ attorney contends that during the May 26, 2010 conference call, the city’s attorney verbally acknowledged its obligation to settle the property damage claim separately; the city’s attorney denies doing so. The city’s attorney contends that the city accepted the Freeneys’ offer to settle all of their claims for $58,431.24 during the conference call. According to the city’s attorney, the parties subsequently disagreed about whether an $11,000 expense should be deducted from the $58,431.24 settlement amount, but the city ultimately agreed to bear the cost of this expense. The Freeneys’ attorney disputes that a settlement of all claims was ever reached.

The Freeneys subsequently sued the city for specific performance to enforce the alleged $29,902.19 property damage settlement. The trial court granted summary judgment in the Freeneys’ favor, reasoning:

Here, Defendant offered to pay Plaintiffs the sum of $29,902.19 in resolution of Plaintiffs’ claims for property damage. On the same date, Plaintiffs counsel accepted, in writing, the Defendant’s offer. Plaintiffs sent multiple letters confirming the existence of the settlement. Defendant never denied or refuted the existence of a valid property damage settlement. See Sutton v. Winn Dixie Stores, 233 Ga. App. 424, [4]26 (504 SE2d 245) (1998) (holding that acquiescence or silence when the circumstances require an answer or denial may amount to an admission). The Court finds that a settlement of Plaintiffs’ property damage claim was reached.

The trial court also awarded attorney fees sua sponte based upon a conclusory finding “that Defendant’s position in this matter lacked substantial justification and that there was no justiciable issue of law or fact interjected by Defendant. See OCGA § 9-15-14.”

1. The city asserts the trial court erred by entering summary judgment in favor of the Freeneys because genuine issues of material fact exist as to whether it ever offered to settle the property damage claims separately, as to whether the May 19, 2010 letter confirming the alleged settlement was sufficient to establish the existence and terms of the settlement, and as to whether it rebutted any presumption flowing from its failure to respond in writing to letters confirming the alleged property damage settlement. We agree.

“Oral settlement agreements are enforceable if their existence is established without dispute.” (Citation and punctuation omitted.) Reichard v. Reichard, 262 Ga. 561, 564 (2) (423 SE2d 241) (1992). But “where the very existence of the agreement is disputed, it may only be established by a writing.” (Citation and punctuation omitted.) Abrams v. Abrams, 262 Ga. 170 (1), n. 1 (416 SE2d 88) (1992).

This requirement of a writing goes to the certainty that an agreement exists and to the certainty of the terms of the agreement. . . . The writing which will satisfy this requirement ideally consists of a formal written agreement signed by the parties. However, letters or documents prepared by attorneys which memorialize the terms of the agreement reached will suffice.

Decided November 29, 2011.

Brumbelow v. Northern Propane Gas Co., 251 Ga. 674, 676 (308 SE2d 544) (1983). While letters or documents from one party’s attorney “will suffice” to establish written evidence of a settlement, such letters do not require entry of summary judgment in that party’s favor in every case. Cf. Moreno v. Strickland, 255 Ga. App. 850, 852-853 (1) (567 SE2d 90) (2002) (holding written file notes of attorney provided “some evidence” of existence of settlement agreement creating issue of fact); Scott v. Carter, 239 Ga. App. 870, 873, n. 1 (521 SE2d 835) (1999) (noting that record did not reflect that party’s attorney agreed to specific terms of letter confirming alleged settlement).

In this case, the attorneys representing both parties disagree about whether a settlement agreement of the property damage claim exists. The city’s attorney contends its oral settlement offer was conditioned upon the settlement of all claims (personal injury and property damage). The Freeneys’ attorney claims that he accepted the city’s oral offer to settle the property damage claim separately. Consequently, there are genuine issues of material fact with regard to the existence of a settlement between the parties, and the trial court erred in granting summary judgment in favor of the Freeneys. McKenna v. Capital Resource Partners, 286 Ga. App. 828, 833-834 (2) (a) (650 SE2d 580) (2007) (finding genuine issues of material fact as to existence of settlement despite existence of writings regarding settlement).

We find no merit in the Freeneys’ argument that the city’s attorney’s failure to promptly dispute their purported acceptance of the earlier offer on May 19, 2010, mandates summary judgment in their favor. While this conduct may provide admissible evidence on the issue, any evidentiary presumption created by the city’s attorney’s failure to respond would be for the trier of fact to determine, based upon the city’s attorney’s explanation that he viewed it as a counteroffer to which no reply was needed. “[T]he presumption arising from a failure to answer a letter is not a presumption of law, but one of fact, and subject to explanation. [Cits.]” Ga. Health Care v. Loeb, 151 Ga. App. 350, 351 (2) (259 SE2d 734) (1979).

2. Based upon our holding in Division 1, we reverse the trial court’s award of attorney fees under OCGA § 9-15-14. Tavakolian v. Agio Corp., 304 Ga. App. 660, 666 (6) (697 SE2d 233) (2010).

Judgment reversed.

Mikell, C. J., and Dillard, J., concur.

Jenise S. Smith, for appellant.

Flynn, Peeler & Phillips, Patrick S. Flynn, for appellees.


author: Adams, Judge.

text:
    A11A1410.
    A11A1411.
    NEWTON v. LAWSON. LAWSON et al. v. LAWSON.
    (720 SE2d 353)
   Adams, Judge.

Jason and John B. Lawson III (collectively the “Lawsons”) intervened in an existing lawsuit filed by appellant Danny Doy Newton for specific performance of a contract to make a will. The complaint asserted that Syble Lawson promised to leave Newton a life interest in her estate, with the remainder interest to her grandson Jason Lawson, in return for services provided by Newton, giving rise to an enforceable contract to make a will (the “Will Contract”). In these companion appeals, the Lawsons and Newton appeal the trial court’s final judgment, following a bench trial, in favor of Christy B. Lawson, as the executor of Syble Lawson’s estate.

The Lawsons filed a recent, related appeal in the Supreme Court of Georgia, in which they contested Syble Lawson’s 2004 will (the “2004 Will”). The Supreme Court explained the underlying factual basis of that appeal, as follows:

Appellants John and Jason Lawson are the son and grandson of Syble Lawson, who died in December 2005 at age 73. Her June 2004 will left her entire estate to her other son, appellee Christy “Chris” Lawson; he was also named her executor. Appellants filed a caveat to the probate of this will as did Danny Newton (not a party to this appeal), who lived with testator for the last ten years of her life. Appellants asserted, inter alia, that the 2004 will was the product of undue influence, and Newton petitioned the probate court to probate a document purporting to be testator’s 2000 will, under which Newton was left a life estate in testator’s realty and the remainder interest went to appellant Jason Lawson, along with certain other bequests. After a hearing, the probate court established the 2004 will as testator’s last will and testament and held the 2000 will to be revoked.

Lawson v. Lawson, 288 Ga. 37 (701 SE2d 180) (2010). The Supreme Court affirmed the probate court’s judgment validating the 2004 Will after finding no evidence in the record that Christy Lawson exerted undue influence on Syble Lawson. Id. at 38 (1). In this case, Newton and the Lawsons rely upon Syble Lawson’s 2000 Will, a health care Durable Power of Attorney executed the same day, and a handwritten memorandum (the “Notes”) discovered after her death to support their claim of a will contract.

The evidence showed that Newton met Syble Lawson in either 1995 or 1996 and subsequently moved into her home. Their relationship lasted until her death in 2005. Newton testified that in 1998 or thereafter Syble Lawson began indicating that she would leave him a life interest in her house (provided he did not remarry); income from her pine straw business; income from a rental trailer; the right to harvest timber, which he would share with Jason Lawson; and the right to receive certain personalty. In consideration for these promises, Newton agreed to care for Syble, to care for her dog and to perform upkeep and maintenance of the house and farm. Newton testified that in 2002 he gave up his job as a maintenance foreman at an apartment complex with a salary of $500 per week to care for Syble Lawson after she was diagnosed with breast cancer. Newton stated that he cared for Syble Lawson until her death and continued to care for her dog following her death. He also remodeled Syble Lawson’s rental trailer, added a room onto the house and cleaned and maintained the property. He contends that these actions were undertaken pursuant to the Will Contract.

Newton asserts that the 2000 Will “essentially tracks” his agreement with Syble Lawson. That will left Newton a life estate in the house and the land “provided he lives alone,” with a remainder interest in Jason Lawson. Newton also received income from the trailer and pine straw, and he shared the proceeds from any harvested timber with Jason Lawson. The Durable Power of Attorney for health care appointed Jason Lawson, Syble Lawson’s neighbor, Corinne McMillian and Newton as her agents for making decisions about her health care. The Notes upon which Newton and the Lawsons rely are undated and unsigned but appear to be in Syble Lawson’s handwriting. The Notes largely correspond with the terms of her 2000 Will with regard to the property left to Newton and Jason Lawson, but are not entirely consistent. For example, the Notes indicate that he should share the income from the pine straw with Jason Lawson, while the Will gives him all the income. The Notes also list various bequests of personal property that are not a part of the Will Contract and that differ somewhat from the 2000 Will. Although both the 2000 Will and the Notes indicate that Newton would care for the dog after her death, they do not address any obligations he had prior to her death. Newton did not see either the 2000 Will or the Notes until after Syble Lawson died.

Significantly, although Newton was not named in Syble Lawson’s 2004 Will, the evidence at trial demonstrated that he received a $50,000 certificate of deposit (“CD”) made payable to him on her death independent of any will. This CD is not mentioned in the Notes, nor is it a part of the Will Contract. Moreover, Newton acknowledged that Syble Lawson paid his living expenses until her death and paid him $100 per month out of the rental income from the trailer.

Christy Lawson testified at trial that on several occasions Syble Lawson stated, in Newton’s presence and hearing, that Christy Lawson would inherit the farm. On those occasions, Christy Lawson says that Newton never protested based upon the Will Contract.

A contract to make a will, supported by valuable consideration, is valid. An oral contract to make a will also may be valid and enforceable if entered into before January 1, 1998 .... However, such a contract must be definite, certain, and precise in its terms and its existence must be established beyond a reasonable doubt.

(Citations and punctuation omitted.) Rushin v. Ussery, 298 Ga. App. 830, 832 (1) (681 SE2d 263) (2009). Any will contracts entered into on or after January 1, 1998, must be in writing, signed by the one who undertakes to make a will or testamentary disposition. OCGA § 53-4-30.

1. Because Newton stated that his discussions with Syble Lawson about her estate occurred in 1998 and thereafter, he was required under OCGA § 53-4-30 to prove a written will contract signed by Syble Lawson. Based upon the evidence at trial, the judge concluded, in a well-reasoned opinion, that Newton failed to prove the existence of a written contract to make a will and entered judgment in Christy Lawson’s favor. Newton and the Lawsons argue on appeal, however, that the requirements of OCGA § 53-4-30 are met by Syble Lawson’s execution of the 2000 Will and her handwritten Notes.

Newton admitted at trial that Syble Lawson and he never signed a written contract memorializing the Will Contract. Nevertheless, Newton and the Lawsons argue that the 2000 Will should be admissible as evidence of that contract, citing Martin v. Turner, 235 Ga. 35, 37 (3) (218 SE2d 789) (1975). The Martin case, decided prior to the enactment of OCGA § 53-4-30, held that “a will, or codicil, written pursuant to an alleged oral contract to make a will, although revoked, is admissible in a suit upon such contract as a writing to help prove the oral contract.” (Emphasis supplied.) Id.

Here, however, Newton and the Lawsons argue that the 2000 Will meets the writing and signature requirements of OCGA § 53-4-30, and thus proffer it as a written contract. Even assuming, without deciding, that the 2000 Will could be considered admissible in this case, it is not a written contract promising to make a will for valuable consideration. Although the 2000 Will was signed by Syble Lawson, nothing in its terms reflects a promise to leave her estate in the manner described in exchange for valuable consideration, and nothing in the language of the will irrevocably binds her to its terms. To the contrary, this Court is bound by the Supreme Court’s conclusion that the 2000 Will was revoked upon Syble Lawson’s execution of the 2004 Will. Lawson v. Lawson, 288 Ga. at 38 (1). Moreover, the 2000 Will does not address the obligations Newton says he undertook prior to Syble Lawson’s death as consideration for her bequests. We conclude, therefore, that the document is simply what it purports to be: a revocable will reflecting Syble Lawson’s testamentary intent at the time she executed it. The Supreme Court determined that Syble Lawson changed her testamentary intent when she executed the 2004 Will. Thus, the 2000 Will cannot be relied upon to fulfill the requirements of OCGA § 53-4-30.

Newton and the Lawsons also argue that the Notes, although unsigned, meet the statutory requirements. Contrary to their argument, however, the requirement that Syble Lawson sign a will contract is not a “useless formality” simply because the Notes are handwritten. The signature is, in fact, a mandatory statutory requirement. “It is axiomatic that when the language of a statute is plain and susceptible of but one construction, the courts have no authority to place a different construction on the statute, but must apply it according to its own terms. Thompson v. Ga. Power, 73 Ga. App. 587 (37 SE2d 622) (1946).” Kirk v. Lithonia Mobile Homes, 181 Ga. App. 533, 536 (2) (352 SE2d 788) (1987).

In any event, the Notes suffer from the same contractual inadequacies as the 2000 Will because they do not reflect the consideration Newton described as part of the Will Contract, nor do the Notes embody any promise on Syble Lawson’s part. Rather, the Notes simply state her wishes as to the disposed of her property and the handling of her estate and contain no language binding her to distribute her property in the manner listed. Moreover, the Notes include distributions to individuals other than Newton and Jason Lawson. Thus, the Notes cannot reasonably be considered the written embodiment of the Will Contract Newton described.

Accordingly, we agree with the trial court that Newton and the Lawsons did not prove a written will contract meeting the statutory requirements.

2. Newton and the Lawsons also argue that the tried court erred in finding that the equitable exceptions codified at OCGA §§ 23-2-131 and 23-2-132 are not applicable to OCGA § 53-4-30. OCGA § 23-2-131 (a) allows for the specific performance of a parol contract as to land “if the defendant admits the contract or if the contract has been so far executed by the party seeking relief and at the instance or by the inducements of the other party that if the contract were abandoned he could not be restored to his former position.” OCGA § 23-2-132 provides that

[sjpecific performance will not be decreed of a voluntary agreement or merely gratuitous promise. If, however, possession of lands has been given under such an agreement, upon a meritorious consideration, and valuable improvements have been made upon the faith thereof, equity will decree the performance of the agreement.

Newton contends that we should apply these provisions to order the specific performance of the Will Contract based upon his care for Syble Lawson and her dog, as well as his maintenance and upkeep of her property.

“But it is axiomatic that the terms of a specific statute govern over those of a more general statute,” and thus the more specific provisions of OCGA § 53-4-30 addressing contracts to make a will control over the more general provisions of OCGA §§ 23-2-131 and 23-2-132 addressing any parol contract as to land and any voluntary agreement or merely gratuitous contract to land, respectively. Thus, even assuming, without deciding, that Newton had been able to prove an oral will contract beyond a reasonable doubt, we conclude that the equitable relief of specific performance is not available as a means of enforcing such a contract.

In any event, as the trial court correctly found, Newton could not meet the requirements of these statutes.

[W]here possession and valuable improvements are relied upon, they must have been by virtue of and on the faith of the oral contract or promise, so as to take the case out of the statute of frauds and constitute the equivalent of a writing by showing acts unequivocally referring to the alleged contract or promise.

Taylor v. Cureton, 196 Ga. 28, 30 (1) (25 SE2d 815) (1943). See also OCGA § 23-2-131 (b) (allowing specific performance based upon “possession alone with valuable improvements, if clearly proved in each case to have been done with reference to the parol contract”). As the trial court noted, Newton

failed to show that he had possession of [Syble Lawson’s] home or pine straw or timber sales and that he made valuable improvements thereto simply by virtue of [Syble Lawson’s]promise that she would use her will to leave him a life estate in these things. To the contrary, [Newton] testified that [Syble Lawson] paid [him] for the work he performed on the home .... [Newton] further testified that he and [Syble Lawson] were a “loving couple” [who] lived their daily lives together, shared the same bed, vacationed together, and took care of one another and the home they shared. In short, his care was not compelled or contingent upon any promises of [Syble Lawson],

(Emphasis in original.) Therefore, Newton and the Lawsons are not entitled to specific performance of the Will Contract.

3. Newton and the Lawsons further argue that the trial court erred in finding Jason Lawson’s claims moot. To the extent that Jason Lawson raised claims as a third-party beneficiary of the Will Contract, they are moot because Newton failed to prove an enforceable contract. As the Lawsons’ counsel argued at trial, “this is a contract that’s going to either stand or fall together. If the contract exists, the contract as set forth in the writing, which is required, benefits both Jason [Lawson] and Danny Newton. And — we don’t feel that that could or should be separated.”

But Newton and the Lawsons also argue, however, that Syble promised to provide for him based upon her concern for his health and medical care. They argue that this promise was supported by a separate, mutual consideration of love and affection between a grandmother and her grandson, independent of any contract with Newton. But Jason Lawson’s claim of such a will contract also fails. Jason Lawson failed to prove a written contract that meets the requirements of OCGA § 53-4-30, nor did he prove an oral contract beyond a reasonable doubt that was “definite, certain, and precise in its terms.” (Citations and punctuation omitted.) Rushin v. Ussery, 298 Ga. App. at 832 (1). Jason Lawson testified that “[s]he told me if I played — said, if you play your cards right, after I pass you’ll never have to work another day in your life. I said, you know, thank you and went on. I didn’t — I didn’t go into details.” Although other witnesses testified as to conversations at some point in time that Syble Lawson wanted to bequeath certain items to her grandson Jason, the evidence at trial was insufficient to support Jason Lawson’s contractual claims.

Decided November 29, 2011.

Hall & Kirkland, Joseph M. Hall, for appellant (case no. A11A1410).

Ronald W. Hallman, for appellant (case no. A11A1411).

Brown, Rountree & Stewart, George H. Rountree, Jesse A. Van Sant, for appellee.

Judgments affirmed.

Barnes, P. J., and Blackwell, J., concur.

       The appellants originally filed these appeals before the Supreme Court of Georgia, which transferred the case to this Court after determining that the appeals did not invoke the Supreme Court’s equity jurisdiction.

       (Citation and punctuation omitted.) Ga. Society of Ambulatory Surgery Centers v. Ga. Dept. of Community Health, 309 Ga. App. 31, 36 (1) (710 SE2d 183) (2011).

       This conclusion is bolstered by the Supreme Court of Georgia’s transfer of the case based upon a finding that the appeals did not invoke that Court’s equity jurisdiction.

       John Lawson’s counsel described his claims at trial as “a very contingent claim . . . which would be to split the remainder interests should Jason [Lawson] die before Danny [Newton].” The Lawsons raise no arguments on appeal relating to any such claims.


author: Andrews, Judge.

text:
    A11A1607.
    In the Interest of G. Q., a child.
    (720 SE2d 647)
   Andrews, Judge.

On appeal from the juvenile court’s adjudication of delinquency for battery, theft by receiving stolen property, and other crimes, the child G. Q. argues that the evidence was insufficient as to venue and that the juvenile court erred when it sentenced him as a designated felon. We reverse because the evidence was insufficient as to venue.

On appeal, we view the evidence from an adjudicatory hearing in the light most favorable to the prosecution to determine whether a rational trier of fact could have found, beyond a reasonable doubt, that the juvenile committed the acts charged. The evidence is examined under the standard of Jackson v. Virginia, 443 U. S. 307, 318 (99 SC 2781, 61 LE2d 560) (1979), with all reasonable inferences construed in favor of the juvenile court’s findings.

(Citations omitted.) In the Interest of M. F., 276 Ga. App. 402, 402-403 (1) (623 SE2d 234) (2005).

So viewed, the record shows that on December 12, 2010, after smoking marijuana, G. Q. battered his mother and stole her jewelry from their home at “601 Lafayette Street, Hahira, Georgia.” A City of Hahira police officer responded and, after a struggle, arrested G. Q. at the scene. The jewelry was recovered from a pawn shop at a local mall. G. Q. was charged with the offenses of family violence battery, felony obstruction, and possession of marijuana. After a hearing, the juvenile court found G. Q. delinquent and ordered him into the care of the Department of Juvenile Justice.

Decided November 29, 2011.

Samantha M. Edwards, for appellant.

J. David Miller, District Attorney, Laura A. Wood, Assistant District Attorney, for appellee.

1. As the State concedes, the evidence in this case was insufficient to prove venue in Lowndes County.

Lowndes County is sometimes mentioned on the same page of pleadings that also refer to the Hahira address of the crime scene, and G. Q. was released into the custody of the Lowndes County Sheriffs Department after his apprehension. These references are not competent evidence that any of the crimes were committed in that county, however. As the Supreme Court of Georgia has held, “proving that a crime took place within a city without also proving that the city is entirely within a county does not establish venue.” Graham v. State, 275 Ga. 290, 293 (2) (565 SE2d 467) (2002). We therefore reverse the juvenile court’s adjudication of delinquency. Lee v. State, 305 Ga. App. 214, 215 (2) (699 SE2d 389) (2010) (evidence that crime took place in a particular city was insufficient to show that it took place in a particular county); Quezada-Barrera v. State, 295 Ga. App. 747 (673 SE2d 126) (2009) (evidence that county sheriffs department conducted a crime investigation at a certain street address was insufficient to prove the crime’s venue in that county); In the Interest of N. T. S., 242 Ga. App. 109 (528 SE2d 876) (2000) (adjudication of delinquency reversed where prosecution failed to show whether fight at issue occurred in county).

The State may retry G. Q. “because there was otherwise sufficient evidence at trial to support [his] delinquency adjudication for the crimes charged.” (Citation and punctuation omitted.) In the Interest of D. D., 287 Ga. App. 512, 515 (651 SE2d 817) (2007).

2. Our disposition of the venue question moots G. Q.’s remaining assertion of error.

Judgment reversed.

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


text:
    A11A1785.
    RINKS v. THE STATE.
    (718 SE2d 359)
   Andrews, Judge.

Billy Ray Rinks, Jr., was found guilty by a jury of entering an automobile with intent to commit a theft in violation of OCGA § 16-8-18. The State relied on evidence that a co-defendant, Rusty Eugene Self, who pled guilty, directly committed the charged offense, and that Rinks was guilty as a party to the offense. Rinks claims the evidence was insufficient to find him guilty as a party. We find the evidence was sufficient and affirm.

“On appeal from a criminal conviction, the defendant no longer enjoys the presumption of innocence, and the evidence is viewed in a light most favorable to the verdict.” Parker v. State, 220 Ga. App. 303 (469 SE2d 410) (1996). So viewed, the following evidence was presented to the jury. A witness for the State testified that, as she exited the Rite Aid pharmacy, she saw a man, later identified as Self, smash the window of a parked automobile, reach inside the automobile and grab an item, then get into the passenger side of a black truck idling behind and perpendicular to the automobile, and ride away in the truck. The witness saw a male driver, later identified as Rinks, sitting at the steering wheel of the truck when Self got in the passenger side. The witness wrote down the tag number of the truck and called 911 to report the incident. The owner of the automobile testified that, when she came out of the pharmacy, she discovered that the driver’s side window of her automobile had been smashed and her purse had been stolen from the front seat. The owner testified that no one had permission to enter her automobile or to take the purse. After the witness gave police the tag number and a description of the truck and its occupants, police ran a check on the tag and obtained a name and address associated with the tag registration. Police discovered a black truck parked at the address with the matching tag number. When police knocked, Rinks answered the door of the apartment located at the address, denied to police that he had been at the Rite Aid pharmacy that day, then later admitted that he had been there in the truck and heard a window being broken. Rinks denied that anyone else was in the apartment, but a subsequent search produced Self hiding in a closet and the stolen purse in a trash can. Self admitted to police that he was at the pharmacy with Rinks and that he smashed the window of the automobile, took the purse, and returned to the apartment in the truck driven by Rinks. Although Rinks testified at trial that he drove the truck to the pharmacy with Self, and drove from the scene with Self after seeing that Self had smashed the window, Rinks claimed to have no idea that Self planned to commit the offense. Rinks also contradicted the State’s eyewitness by testifying that he was walking away from the truck into the pharmacy when Self smashed the window. Self testified at trial that Rinks, a good friend he had known for 15 years, had nothing to do with the charged offense. The jury found Rinks guilty after considering the evidence and the trial court’s charge on the law including instructions on when a defendant may be found guilty as a party to a crime.

A person who is present but does not directly commit a crime may be convicted upon proof that the crime was committed and that such person was a party to it. Walsh v. State, 269 Ga. 427, 429 (499 SE2d 332) (1998). “Every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime.” OCGA § 16-2-20 (a). A person is concerned in the commission of a crime if he “[intentionally aids or abets in the commission of the crime; or . . . [intentionally advises, encourages, hires, counsels, or procures another to commit the crime.” OCGA § 16-2-20 (b) (3), (4). Mere presence at the scene of a crime, or even approval of the criminal act not amounting to encouragement, will not suffice to show participation in a crime; rather, “[a] common criminal intent must be proven to establish that one is a party to a crime.” Jordan v. State, 272 Ga. 395, 396 (530 SE2d 192) (2000); Brown v. State, 250 Ga. 862, 864 (302 SE2d 347) (1983). “Criminal intent may be inferred from one’s conduct prior, during, and after the commission of the crime charged.” Jones v. State, 250 Ga. 11, 13 (295 SE2d 71) (1982). Generally, aiding and abetting the commission of a crime requires affirmative action, and a person’s mere knowledge that a crime will be committed and failure to take steps to prevent the crime do not amount to aiding and abetting. Parker v. State, 190 Ga. App. 126, 127 (378 SE2d 503) (1989). But if the evidence is sufficient for a trier of fact to infer that the person knew about the intended crime and shared in the criminal intent of one who directly committed it, such person is an aider and abettor. Id.

Hence, if the defendant was at the scene and did not disapprove or oppose the commission of the offense, a trier of fact may consider such conduct in connection with prior knowledge and would be authorized to conclude the defendant assented to the commission of the offense, that he lent his approval to it, thereby aiding and abetting commission of the crime.

Id. Moreover,

[ejvidence of a defendant’s conduct prior to, during, and after the commission of a criminal act will authorize the defendant’s conviction for commission of the criminal act if a jury could infer from the conduct that the defendant intentionally encouraged the commission of the criminal act.

Decided November 29, 2011

James K. Luttrell, for appellant.

David McDade, District Attorney, Rachel D. Ackley, James A. Dooley, Assistant District Attorneys, for appellee.

Jordan, 272 Ga. at 396.

Evidence showed that Rinks drove with his friend, Self, to the pharmacy; that he sat at the wheel of the idling truck and waited while Self got out and committed the criminal act in plain view; that he immediately drove from the scene with Self to his apartment where Self hid in a closet when police arrived; and that he lied to police when confronted about the criminal act. There was also evidence that, in contradiction of eyewitness testimony produced by the State, Rinks gave false testimony at trial that he was walking away from the truck when Self smashed the window. The evidence in this case was sufficient for the jury to infer that Rinks intentionally aided, abetted, or encouraged Selfs direct commission of the crime, and was guilty beyond a reasonable doubt as a party to the crime. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

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


text:
    A11A2306.
    CHAMBERS v. THE STATE.
    (720 SE2d 358)
   Andrews, Judge.

On appeal from his conviction for cruelty to children, Jacarol Chambers argues that the trial court erred when it questioned a witness and that counsel was ineffective. We find no error and affirm.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.” Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165) (2004). We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

So viewed, the record shows that the six-year-old victim was spending the night of October 8, 2006 with his mother at Chambers’s house when Chambers whipped him with a telephone cord, leaving wounds on his back, buttocks, thighs, and groin. Chambers was upset because the victim had broken a pair of glasses and told an investigator at the scene that he had whipped the child with a cord. After she hurt her toe stepping over the child and attempted to treat his injuries only by “soak[ing] him in salty water,” the mother took the victim to the emergency room.

Chambers elicited testimony from the treating emergency room physician that the wounds were not bleeding and were “most likely a few days old.” Chambers then elicited testimony from an emergency room nurse that the victim had not been treated before arrival. When counsel indicated that he had no further questions of the nurse, the trial court began the following exchange:

Q. Did you notice whether or not the child was bleeding?
A. There was open areas and, like, there was some old, old bleeding there.
Q. Okay. But nothing at the time. You didn’t see any blood . . . that could have been [from] a previous time, but you’re saying there was none that you saw when he got there to you?
A. I mean, just the dry blood was all.
Q. Okay. So you saw some dried blood?
A. Yes, ma’am.
Q. Okay.

At the hearing on Chambers’s motion for new trial, the trial court said that it had asked these questions because “I intended to find out for myself and for the jury . . . whether or not there was seeping blood or dried blood because I thought it was indicative of timing.” Specifically, the trial court agreed with the defense’s assertion that because Chambers was not present at the house between 8:30 a.m. and 1:30 p.m. on the morning of the day the victim appeared at the emergency room, “if it’s fresh blood, still oozing, mama did it,” but that “[i]f it’s old dry blood, then the jury’s going to figure that the defendant did it or [that] mama’s with him and she knows who did it.” Chambers’s motion for new trial was denied.

1. The evidence outlined above was sufficient to sustain Chambers’s conviction for first-degree cruelty to children. See OCGA § 16-5-70 (b) (defining cruelty to children in the first degree as “maliciously causing] a child under the age of 18 cruel or excessive physical or mental pain”); Dinkler v. State, 305 Ga. App. 444, 449-450 (699 SE2d 541) (2010) (evidence that defendant beat victims with bat and belt was sufficient to sustain conviction on two counts of first-degree cruelty to children).

2. Under OCGA § 17-8-57, “[i]t is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.” As the Supreme Court of Georgia has held, however, a trial court “may propound questions to a witness to develop the truth of the case, to clarify testimony, to comment on pertinent evidentiary rules and to exercise its discretion when controlling the conduct of counsel or witnesses in order to enforce its duty to ensure a fair trial to both sides.” Dickens v. State, 280 Ga. 320, 324 (3) (627 SE2d 587) (2006).

This trial court propounded a short series of questions in order to establish whether the witness had seen fresh or dried blood on the victim. Once the witness’s testimony had been clarified on this relevant point, the trial court expressed no opinion as to what had been proved or its significance as to Chambers’s guilt. There was no abuse of discretion here. Dickens, 280 Ga. at 324 (3); see also Curry v. State, 283 Ga. 99, 102 (4) (657 SE2d 218) (2008) (trial court did not violate OCGA § 17-8-57 when its questions were “entirely objective, did not suggest any particular answer to the witness, and related to the events surrounding” the crime).

3. Chambers argues that trial counsel was ineffective in failing to develop evidence and argument concerning the victim’s and the mother’s motives to lie. We disagree.

To show ineffective assistance of counsel, a defendant must show that counsel’s performance was deficient and that the deficient performance prejudiced the defense. Suggs v. State, 272 Ga. 85, 87-88 (4) (526 SE2d 347) (2000), citing Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). The question of ineffectiveness is a mixed one of both law and fact: “we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” Suggs, 272 Ga. at 88 (4).

At the hearing on Chambers’s motion for new trial, counsel testified that inconsistencies in the victim’s and the mother’s accounts were obvious to her and must have been to the jury as well. The record shows, for example, that the mother could not say on cross-examination whether she hurt her toe before or after her child was beaten. It was also established at trial that the mother had previously been convicted of second-degree cruelty to children and that she had lied to police and contradicted herself on the stand concerning the details of the incident. Trial counsel also testified that because she believed that the victim was lying and that the mother had beaten him, she had asked the victim three times whether he had been coached, but that he consistently denied having been.

Decided November 29, 2011.

Grayson P. Lane, for appellant.

Jacquelyn L. Johnson, District Attorney, Jan Kennedy, Assistant District Attorney, for appellee.

Counsel could have reasonably concluded that the only effective way to undermine the child’s credibility was to suggest, as she repeatedly did, that the mother was lying. Chambers proffered no evidence at the hearing on the motion for new trial to show that counsel might well have succeeded in undermining the victim’s testimony further. Under these circumstances, counsel could not have been ineffective, nor could Chambers have suffered prejudice, for failing to introduce additional evidence as to either witness’s lack of credibility. See Lyons v. State, 269 Ga. App. 27, 31 (3) (d) (602 SE2d 917) (2004) (“Trial counsel’s failure to present cumulative evidence does not amount to ineffective assistance”); Dickens, supra, 280 Ga. at 322 (2) (defendant must put up evidence in addition to counsel’s statements at hearing sufficient to rebut the presumption that counsel’s tactical decisions were reasonable).

Judgment affirmed.

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


author: Doyle, Judge.

text:
    A11A0997.
    COLOTL v. THE STATE.
    (720 SE2d 210)
   Doyle, Judge.

Following a jury trial, Jessica Colotl appeals from her conviction for driving without a valid driver’s license. Colotl relies on statutory language providing that a person “shall not be guilty” of the offense if the person “produces in court a valid driver’s license,” and she argues that the trial court erred by not dismissing the case because she produced an instruction permit (“learner’s permit”) to the court. Because Colotl’s permit was obtained after she drove without a valid license, we affirm.

Construed in favor of the verdict, the evidence shows that Colotl was observed by a law enforcement officer driving in a parking lot and searching for a parking space. While the officer watched, Colotl paused to wait for a parking space to open; upon noticing the officer, she circled around the lot and paused again to wait for the parking space to open. After the second pause, the officer executed a traffic stop based on his belief that she was impeding the flow of traffic, and he requested Colotl’s driver’s license and proof of insurance. Colotl could not produce a driver’s license but stated that she had a valid Mexican driver’s license. The officer gave her 24 hours to appear at the police station and produce her Mexican license. Colotl appeared at the police station the next morning, but she explained that she could not find her license. At that time, an officer arrested Colotl and cited her for driving without a license and impeding the flow of traffic.

Prior to trial, Colotl proffered evidence that she had obtained a Class C Georgia learner’s permit six days before trial, and she moved to dismiss the driver’s license charge. The trial court denied the motion on procedural grounds. At trial, Colotl testified that she did not have a valid Georgia driver’s license at the time of the arrest, but that she had since obtained the learner’s permit proffered by her attorney. After the close of the evidence and the charge of the court, the jury rendered a guilty verdict only on the driving without a license charge. Colotl moved for judgment notwithstanding the verdict, and the motion was denied, giving rise to this appeal.

On appeal, Colotl argues that the trial court erred by denying her motion for judgment notwithstanding the verdict. As before the trial court, she relies on OCGA § 40-5-20 (a), which provides as follows, in relevant part:

No person, except those expressly exempted in this chapter, [] shall drive any motor vehicle upon a highway in this state unless such person has a valid driver’s license under this chapter for the type or class of vehicle being driven. . . . Any violation of this subsection shall be punished as provided in Code Section 40-5-121, except ... if such person produces in court a valid driver’s license issued by this state to such person, he or she shall not be guilty of such offenses. . . .[]

Thus, the emphasized language operates as a safe harbor for defendants who are cited for driving without a license, but who later produce a valid license in court.

Based on this safe-harbor provision, Colotl argues that the trial court should not have convicted her because she presented evidence that she had obtained a valid learner’s permit issued by the State of Georgia. Colotl argued at trial and on appeal that her learner’s permit should be considered a “valid driver’s license” for the purposes of the safe-harbor language in OCGA § 40-5-20 (a), even if she did not have anyone in the car with her as required by her permit. Nevertheless, pretermitting the merits of this argument, it is misplaced here, because the evidence is undisputed that she obtained the permit after the citation was issued. Therefore, it was not “valid” at the time she was driving.

This conclusion is based on a plain reading of OCGA § 40-5-20 (a) and application of the rules of statutory construction.

Specifically, we apply the fundamental rules of statutory construction that require us to construe the statute according to its terms, to give words their plain and ordinary meaning, and to avoid a construction that makes some language mere surplusage. At the same time, we must seek to effectuate the intent of the legislature. Furthermore, this Court may construe statutes to avoid absurd results.

The statute’s language is clear in its proscription that “[n]o person . . . shall drive any motor vehicle upon a highway in this state unless such person has a valid driver’s license . . . for the type or class of vehicle being driven.” Consistent with this, we view the safe-harbor provision to require a defendant to produce a driver’s license that was valid at the time the vehicle was being driven. This avoids a construction conflicting with the statute’s clear purpose of protecting public safety by ensuring that people who drive have met minimum qualifications. To permit driving before the operator meets these qualifications would frustrate this purpose and lead to the absurd result that unlicensed drivers would not be guilty of driving without a license when there is no dispute that they drove without being licensed. Therefore, in light of the principles of statutory construction, we decline to adopt Colotl’s interpretation that a later-obtained license satisfies the safe-harbor provision in OCGA § 40-5-20 (a). Nothing in the statutory language indicates that a subsequently obtained license operates retroactively when presented to the trial court, and Colotl has cited no case law supporting such a proposition.

Decided November 9, 2011

Reconsideration denied November 30, 2011

Hernán, Taylor & Lee, Jerome Lee, for appellant.

Furthermore, our holding is consistent with existing statutory and case law stating that OCGA § 40-5-29 (b) creates a legal presumption that a person lacks a valid license if she fails to produce a valid license to an officer requesting it at the time she is driving. Accordingly, this Court has stated that such a person accused of violating OCGA § 40-5-20 (a) bears “the burden of establishing that she did, in fact, have a valid driver’s license at that time." Because Colotl did not produce a license valid at the time she was driving, the safe-harbor provision of OCGA § 40-5-20 (a) did not apply, and the trial court did not err by entering a judgment of conviction on the jury’s guilty verdict.

Judgment affirmed.

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

Barry E. Morgan, Solicitor-General, Rachel H. Bearman, Assistant Solicitor-General, for appellee.

       OCGA § 40-5-20 (a).

       Id.

       See Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).

       The officer’s authority to execute the stop was not challenged at trial or on appeal.

       Class C vehicles are typical passenger vehicles, i.e., those with a gross vehicle weight not in excess of 26,000 pounds. See OCGA § 40-5-23 (c).

       There was no other licensed driver in the vehicle at the time Colotl was stopped by the officer. Also, her pre-trial motion made it clear that she had obtained the license after her arrest.

       In light of our holding herein, we need not address the State’s argument that Colotl was procedurally barred from making a post-verdict motion for judgment notwithstanding the guilty verdict in lieu of a timely motion for a directed verdict. See, e.g., State v. Canup, 300 Ga. App. 678, 680 (1) (686 SE2d 275) (2009) (“Because there is no provision in Georgia law authorizing a trial court to entertain a motion for judgment of not guilty notwithstanding a verdict of guilty in a criminal case, the court’s action [granting such relief] was procedurally unauthorized.”).

       Colotl does not argue that she is exempted.

       (Emphasis supplied.)

       See, e.g., Rocha v. State, 250 Ga. App. 209, 210 (551 SE2d 82) (2001) (the “presumption may be defeated, however, if the defendant produces at trial their driver’s license and demonstrates that it was valid at the time of the [incident]”).

       On Colotl’s pretrial motion to dismiss, the trial court appeared to rule that whether Colotl had a valid license was a question of fact for the jury. We hold that the applicability of the safe-harbor provision of OCGA § 40-5-20 presents a question of law for the court. Nevertheless, to the extent that the trial court erred, such error was harmless because Colotl could not meet her burden under the analysis of this opinion.

       (Citation and punctuation omitted.) State v. Mussman, 289 Ga. 586, 588-589 (1) (713 SE2d 822) (2011).

       OCGA § 40-5-20 (a).

       See, e.g., OCGA § 40-5-23 (authorizing rules establishing “training, experience, or educational prerequisites”) and § 40-5-24 (outlining learner’s permit requirements).

       See OCGA § 40-5-29 (b) (“A refusal to comply with [an officer’s demand to display a driver’s license] . . . shall . . . give rise to a presumption of a violation of subsection (a) of this Code section and of Code Section 40-5-20.”). See Rocha, 250 Ga. App. at 211. See also Wickham v. State, 273 Ga. 563, 566 (544 SE2d 439) (2001) (“the various provisions of the [statute] should be viewed in harmony and in a manner which will not produce an unreasonable or absurd result.”).

       (Emphasis supplied.) Rocha, 250 Ga. App. at 211.