text:
    A14A0780.
    ATKINS v. ESTATE OF CALLAWAY.
    (763 SE2d 369)
   Miller, Judge.

Clarence Atkins appeals from the trial court’s orders releasing rent money he paid into the court registry and requiring him to pay additional rent money to the Estate of Cason J. Callaway, Jr. (the “Estate”) as part of a dispossessory action. Atkins argues that the trial court’s orders were issued during the pendency of an appeal and are therefore null and void. We agree and reverse.

The record shows that after Callaway’s death, the Estate filed a dispossessory action against Atkins in Harris County. As part of the dispossessory action, the magistrate court ordered Atkins to pay rent into the court registry (OCGA § 44-7-54), and ultimately issued a writ of possession, ordering Atkins off of the property. Atkins appealed the dispossessory order to the superior court. Atkins also filed a Notice of Claim in probate court against the Estate and demanded an accounting, alleging an oral contract between him and Callaway whereby, in exchange for Atkins’s continued work for Callaway, Callaway would deed Atkins a house upon Callaway’s death or Atkins’s retirement.

The dispossessory action and Atkins’s claim against the Estate were consolidated in superior court, and the trial court granted the Estate’s motion to dismiss Atkins’s claim against the Estate, denied Atkins’s request for an accounting, and dismissed Atkins’s appeal from the dispossessory action.

Atkins appealed the dismissal of his claims against the Estate in Case No. A13A1579, and the Estate filed a motion in superior court to release the rent money held in the court registry and for continued payment of rent until Atkins’s appeal was decided. This Court affirmed the trial court’s decision dismissing Atkins’s claims. Atkins v. Estate of Callaway, 324 Ga. App. XXIV (October 11, 2013) (unpublished). Atkins thereafter filed a motion for reconsideration, which this Court denied. Atkins also petitioned for writ of certiorari, which the Supreme Court denied. Atkins v. Estate of Callaway, S14C0502, 2014 Ga. LEXIS 342 (April 22, 2014). This Court issued a remittitur in May 2014.

On October 23,2013, while Atkins’s motion for reconsideration to this Court was pending and well before this Court issued the remittitur, the trial court ordered that all rent monies held in the registry of the court be paid to the Estate and ordered Atkins to pay an additional $2,500 in rent.

1. Atkins appeals from the trial court’s orders releasing the rent money and requiring him to pay additional rent, contending that the trial court did not have jurisdiction since the case was still pending on appeal. We agree.

This Court retains jurisdiction in a case until the remittitur is filed in the trial court, at which point the trial court resumes jurisdiction. See Chambers v. State, 262 Ga. 200, 201 (1), (2) (415 SE2d 643) (1992). “Under ordinary circumstances, a trial court does not have jurisdiction to take any action in a case prior to receiving the remittitur from the appellate court.” (Citation and punctuation omitted.) Styles v. State, 245 Ga. App. 90, 91 (537 SE2d 377) (2000). Until the remittitur is issued, the direct appeal is still pending, and the superior court is without authority to alter the judgment on appeal. See id.; see also Tavakolian v. Agio Corp., 309 Ga. App. 652, 654 (1) (711 SE2d 33) (2011) (until a remittitur from this Court is filed, any further action by the trial court is void).

Decided September 4, 2014.

Ralph L. Phillips, for appellant.

Polsinelli PC, Kenneth B. Hodges III, Amy M. Palesch, for appellee.

Here, Atkins’s prior appeal was still pending when the trial court issued its order. Accordingly, the trial court lacked jurisdiction to release the rent monies and to order Atkins to pay additional rent. The Estate concedes that the trial court erred by entering the orders, but nevertheless urges us to affirm the trial court’s order on the basis that Atkins can show no harm from the early release of the rent money. This Court, however, cannot ignore the nullity of the trial court’s actions. See Morris v. Morris, 226 Ga. App. 799, 799-800 (2) (487 SE2d 528) (1997). That is not how this legal process works. Therefore, the trial court’s order must be reversed.

2. Since we reverse the trial court’s order, we need not consider Atkins’s additional arguments that he was constructively evicted and the Estate converted his personal property. Moreover, we note that these arguments were not enumerated as error and such arguments will not be considered on appeal. Fancher v. State, 190 Ga. App. 438, 440 (2) (378 SE2d 923) (1989) (“Error argued in the brief, but not enumerated as error, will not be considered on appeal.”).

Judgment reversed.

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


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A14A0837.
    MARTIN v. THE STATE.
    (763 SE2d 363)
   Miller, Judge.

Marvlyn Martin, who pled guilty to first degree homicide by vehicle (OCGA § 40-6-393 (a)) and possession of an open container (OCGA § 40-6-253 (b) (1) (B)), appeals pro se from the trial court’s order denying his motion for out-of-time appeal. Martin contends that his plea was invalid because the indictment was defective and that his trial counsel was ineffective for failing to challenge the defective indictment and for failing to inform him of his right to withdraw his guilty plea. For the reasons that follow, we affirm.

We review a trial court’s denial of a motion for out-of-time direct appeal for an abuse of discretion. Belcher v. State, 304 Ga. App. 645, 646 (1) (697 SE2d 300) (2010).

The record shows that Martin was indicted for homicide by vehicle for causing the victim’s death while driving under the influence of alcohol, driving under the influence (DUI per se and DUI less safe), and other offenses, including possession of an open container. The indictment specifically alleged that Martin committed the offenses in Clayton County. On July 9, 2012, Martin entered a nonnegotiated plea to homicide by vehicle and possession of an open container. Martin was sentenced to fifteen years with ten to serve on the homicide conviction, and his fine for the open container violation was suspended.

Thereafter, on July 26, 2012, Martin filed a pro se motion to withdraw his guilty plea, arguing that he should have been sentenced as a first offender. Following a hearing, the trial court denied Martin’s request for first offender treatment and denied his motion to withdraw his guilty plea. On August 28, 2012, Martin filed another motion to withdraw his guilty plea, raising the same claims. The trial court denied Martin’s second motion on res judicata grounds. The trial court also denied Martin’s subsequent motion for sentence reduction.

Martin then filed a motion for out-of-time appeal, arguing that the indictment failed to allege venue in Clayton County and his trial counsel was ineffective for allowing him to enter a guilty plea based on the purported fatal indictment. The trial court denied Martin’s motion for an out-of-time appeal, finding that he failed to show that his right to an appeal was frustrated by ineffective assistance of counsel.

On appeal, Martin argues that the indictment was defective for failing to charge venue and that trial counsel was ineffective for not challenging the defective indictment and in failing to advise him of his right to withdraw his guilty plea. His claims have no merit.

A defendant who has pled guilty to a crime may obtain an out-of-time appeal only if the issues he seeks to raise can be resolved by facts appearing on the record and if his failure to seek a timely appeal was the result of ineffective assistance of counsel. Where the record shows that the attacks on the guilty plea that a defendant seeks to raise in an out-of-time appeal are without merit, trial counsel cannot have been ineffective in failing to pursue such an appeal, and a trial court thus does not err in denying an out-of-time appeal.

(Citation omitted.) Belcher, supra, 304 Ga. App. at 646 (1); see also Olguin v. State, 296 Ga. App. 208, 209 (674 SE2d 89) (2009) (a defendant does not have an unqualified right to a direct appeal following a guilty plea and the merits of an appeal can be addressed only if the issues sought to be raised can be resolved by the record).

Decided September 4, 2014

Marvlyn Martin, pro se.

Tracy Graham-Lawson, District Attorney, Elizabeth A. Baker, Frances C. Kuo, Assistant District Attorneys, for appellee.

(a) To the extent Martin seeks to appeal his guilty plea on the ground of ineffective assistance of counsel, the only evidence in the record is the transcript of his guilty plea hearing. Although Martin filed two motions to withdraw his guilty plea, neither of his motions alleged ineffective assistance of counsel. “A defendant who seeks to appeal a guilty plea on the ground of ineffective assistance of counsel must develop those issues in a post-plea hearing and may not file a direct appeal if the only evidence in the record is the transcript of the guilty plea hearing.” (Citation omitted.) Denova v. State, 268 Ga. App. 16, 18 (4) (601 SE2d 400) (2004). Consequently, Martin has not established that he was entitled to a direct appeal based on a claim that his trial counsel was ineffective. See Olguin, supra, 296 Ga. App. at 209; Denova, supra, 268 Ga. App. at 18 (4). Since the term of court in which Martin entered his guilty plea has expired, Martin’s remedy to pursue an ineffective assistance of counsel claim is to file a petition for writ of habeas corpus. See Walden v. State, 291 Ga. 260, 262 (2) (728 SE2d 186) (2012) (a defendant failing to raise an ineffective assistance claim in a post-plea hearing is not entitled to a direct appeal and is left to raise such a claim in habeas corpus proceedings).

(b) Unlike his ineffective assistance claim, Martin’s claim that the indictment was defective can be decided on the record. The record, however, belies Martin’s claim that the indictment failed to charge venue as to the homicide by vehicle count. The indictment clearly charges that the crimes occurred in Clayton County. Additionally, by pleading guilty, Martin waived the defense that the indictment failed to charge venue. See Wright v. Hall, 281 Ga. 318, 319 (1) (638 SE2d 270) (2006).

Since an examination of the record reveals no merit to Martin’s claimed errors, the denial of his request for an out-of-time appeal was proper. See Adams v. State, 285 Ga. 744 (1) (683 SE2d 586) (2009). Therefore, we affirm the trial court’s ruling.

Judgment affirmed.

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


author: Branch, Judge.

text:
    A14A0934.
    BETTES v. THE STATE.
    (763 SE2d 366)
   Branch, Judge.

Michael Jerome Bettes appeals the denial of his motion for new trial following his conviction on one count of forgery in the first degree. He contends that the evidence was insufficient to support the verdict and that the trial court erred by excluding certain evidence. For the reasons that follow, we affirm.

On criminal appeal, appellant is no longer presumed innocent and all of the evidence is to be viewed in the light most favorable to the jury verdict. This Court does not reconsider evidence or attempt to confirm the accuracy of testimony. Assessing a witness’s credibility is the responsibility of the factfinder, not this Court.

Batten v. State, 295 Ga. 442, 443 (1) (761 SE2d 70) (2014) (citations omitted). Instead, we review the case “to determine if the evidence, when viewed in the light most favorable to the prosecution, supports the verdict.” Willis v. State, 263 Ga. 597, 598 (1) (436 SE2d 204) (1993), citing Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979). Upon review of the sufficiency of the evidence, “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.” Russu v. State, 321 Ga. App. 695, 696 (1) (742 SE2d 511) (2013) (applying Jackson v. Virginia in a forgery case) (citation, punctuation and footnote omitted; emphasis in original).

The evidence presented at trial shows that on January 6, 2010, Bettes approached Carol Tate, a teller at McIntosh State Bank in Locust Grove, and presented a check dated January 3,2010, made out to “Mihael (sic) J Bettes” in the amount of $1,720, that appeared to be drawn on the account of Southeastern Roof Decks, Inc. at the McIntosh State Bank; the check, with the exception of the signature which purported to be that of John Dumas, the owner of Southeastern Roof Decks, was typewritten. Tate was aware that a day or two earlier, another teller at the same bank had cashed, for a different person, a check that proved to be fraudulent that had been drawn on the same account; Tate had been warned to be on alert for another incident. Tate therefore asked for Bettes’s identification, which he provided, and Tate told Bettes that she had to obtain verification of the account holder’s signature; she then copied Bettes’s identification and placed a telephone call to Dumas. Based on that conversation, Tate contacted the police; Officer Curnutt arrived about ten minutes later. During that time, Bettes did not ask for his identification to be returned, and he did not flee. Upon Curnutt’s arrival, Bettes cooperated with the officer. Curnutt thereafter arrested Bettes based on his conversation with Tate and Bettes; he did not contact Dumas or anyone else at Southeastern Roof Decks.

Dumas testified that his company, which applies insulating concrete to roofs, has twelve full-time and approximately eight part-time employees, and that it does not hire subcontractors or day laborers. He testified that the signature on the check presented to Tate by Bettes was not Dumas’s and that the bank account number thereon was incorrect. Although one person in the company other than Dumas had authority to sign checks, that person does not sign Dumas’s name to checks. Dumas had never met Bettes before, did not believe that Bettes had ever worked for Southeastern Roof Decks, and admitted that Bettes probably could not recognize Dumas’s signature. Dumas was not aware of an incident occurring a few days before January 6, 2010, involving a different person attempting to cash a fraudulent check drawn on his business’s account.

Following the above evidence, the State rested, and Bettes moved for a directed verdict on the ground that the State failed to prove that Bettes knowingly committed forgery. The court denied the motion, concluding that the State had presented circumstantial evidence that Bettes acted knowingly.

Shirley Bettes then testified that immediately prior to January 6, 2010, her husband was not employed permanently but that he would attempt to secure temporary work as a day laborer. Shirley Bettes testified that on the day her husband was arrested, he had come home with dirty clothes after being away for four days working. Thereupon, the defense rested; Bettes did not testify.

During the deliberation, the jury requested answers to the following questions: “Who he reported to on the job? Where was the job site? Who gave him this check? Any witnesses to his working? Who was superintendent on the job?” The judge instructed the jury that the evidence was closed and that the jury should continue its deliberations.

1. Bettes contends the State failed to present sufficient evidence, direct or circumstantial, to sustain a conviction of forgery in the first degree because it failed to prove that Bettes committed the crime knowingly with intent to defraud.

At the time of Bettes’s conviction, the crime was codified as follows:

A person commits the offense of forgery in the .first degree when with intent to defraud he knowingly makes, alters, or possesses any writing in a fictitious name or in such manner that the writing as made or altered purports to have been made by another person, at another time, with different provisions, or by authority of one who did not give such authority and utters or delivers such writing.

OCGA § 16-9-1 (a) (2011). Thus, in addition to the other elements, the State was required to show that Bettes acted with intent to defraud and that he knowingly made, altered, or possessed a fraudulent check. See also Chambers v. State, 22 Ga. App. 748, 750 (97 SE 256) (1918) (“The intent of the accused to defraud is the essence of the crime [of forgery] and must be proved beyond a reasonable doubt”) (citation and punctuation omitted). “Both knowledge and intent to defraud may be proven by circumstantial evidence.” Collins v. State, 258 Ga. App. 400, 401 (1) (574 SE2d 423) (2002) (punctuation and footnote omitted).

Here, the evidence established that Bettes was in possession of a check purportedly signed by Dumas but without Dumas’s authority and that Bettes attempted to cash it at the bank. And because “knowingly passing as genuine a forged instrument is conclusive of the intent to defraud,” Matula v. State, 264 Ga. 673, 675 (2) (449 SE2d 850) (1994) (citation and punctuation omitted), if the State presented sufficient evidence to show that Bettes knowingly possessed a forged check and tried to cash it, then the State would have presented sufficient evidence to prove that Bettes intended to defraud the bank. Thus Bettes’s appeal turns on whether the State presented sufficient evidence to establish that Bettes knowingly possessed the forged check. See id. The State presented no direct evidence to show that Bettes knowingly possessed the check and instead relied on circumstantial evidence to prove this element of the crime.

“To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” OCGA § 24-14-6 (formerly OCGA § 24-4-6). See also Graves v. State, 172 Ga. App. 829, 830 (324 SE2d 790) (1984) (circumstantial evidence that “merely raises a suspicion of guilt is not sufficient to convict”) (citation and punctuation omitted). The proved facts “need not exclude every conceivable inference or hypothesis — only those that are reasonable.” Merritt v. State, 285 Ga. 778, 779 (1) (683 SE2d 855) (2009) (citations omitted; emphasis in original). “Whether the evidence excludes other reasonable hypotheses is ordinarily a question for the jury, whose finding shall not be disturbed unless the verdict of guilt is unsupportable as a matter of law.” Owens v. State, 286 Ga. 821, 825 (1) (693 SE2d 490) (2010) (citation omitted); Blevins v. State, 291 Ga. 814, 816 (733 SE2d 744) (2012) (same). See also Brown v. State, 285 Ga. App. 453, 454 (1) (646 SE2d 289) (2007) (jury in better position to determine reasonableness of alternative hypothesis to forgery than appellate court).

The circumstantial evidence presented in this case together with reasonable inferences arising from that evidence shows that although the check was drawn on an account of Southeastern Roof Decks, Bettes never worked for that company as a day laborer or otherwise and that Bettes or someone acting on his behalf provided Bettes’s name and address to the person who typed the check. Thus an inference arises that Bettes should have known that Southeastern Roof Decks did not owe him any money, that the check was not genuine, and that accordingly, Bettes was not authorized to present the check for payment. It was therefore up to the jury to decide whether Bettes’s alternative proposition suggested by his wife’s testimony — that he performed day labor work entitling him to receive the check — was excluded by the evidence. Although the jury asked questions that showed the members of the jury wanted more information regarding Bettes’s wife’s testimony, the jury reached a decision on the issues presented without that information.

Finally, we find no basis to conclude that the jury’s finding on this issue is unsupportable as a matter of law. See Russu, 321 Ga. App. at 698 (1) (circumstantial evidence that defendant “attempted to withdraw $2,100 from an account belonging to an individual she neither knew nor had any prior dealings with, using a check she claimed had been delivered to her from a source essentially unknown to her” was sufficient to support conviction of first degree forgery even though defendant provided valid identification and her thumbprint at the time she tried to cash the check and gave an explanation of how she came into possession of the check); Brown, 285 Ga. App. at 454 (1). Compare Ryles v. State, 216 Ga. App. 462, 466 (4) (454 SE2d 639) (1995) (circumstantial evidence that witness had seen defendant walking in direction of car dealership was insufficient, standing alone, to link defendant with burglary of dealership even though defendant was guilty of stealing a vehicle from the same dealership later the same night); Shockley v. State, 166 Ga. App. 182 (303 SE2d 519) (1983) (circumstantial evidence that appellant was merely present at his parents’ house was insufficient to convict appellant of knowing possession of marijuana plants growing in flower pots next to house given that appellant’s brother, who lived at the house with his parents, testified that he alone grew and had knowledge of the plants).

Decided September 4, 2014.

Jennifer L. Lewis, for appellant.

James L. Wright III, District Attorney, Ralph Bailey, Jr., Sandra G. Rivers, Assistant District Attorneys, for appellee.

2. Bettes also contends the trial court erred by excluding statements he made to the arresting officer and to his wife. Although the opening statements were not transcribed, the trial transcript shows that the State objected to defense counsel’s opening statement on the ground that counsel was about to tell the jury about a conversation between Bettes and the arresting officer; the State objected on the ground that Bettes’s statements constituted inadmissible, self-serving hearsay. Bettes contends that the trial court erred by sustaining this objection and erred by sustaining a similar objection to Bettes’s wife’s testimony about what Bettes told her about his work prior to his attempt to cash the check. Bettes, however, did not introduce any evidence of the excluded testimony at the hearing on the motion for new trial nor proffer the testimony at trial.

Where the error alleged is that certain evidence has been wrongfully excluded, the rule is well settled that there must have been a proffer or offer of a definite sort so that both the trial court and the appellate court can know whether the evidence really exists. In the absence of such a proffer, the assignment of error is so incomplete as to preclude its consideration by this court.

Holder v. State, 242 Ga. App. 479, 482 (5) (529 SE2d 907) (2000) (citations and punctuation omitted). For these reasons, this assertion of error fails.

Judgment affirmed.

Barnes, P. J., and Boggs, J., concur.

       The Code section was modified in 2012. See Ga. L. 2012, p. 899, § 3-5.


author: MCFADDEN, Judge.

text:
    A14A0927.
    DAVIS v. THE STATE.
    (763 SE2d 371)
   MCFADDEN, Judge.

Norman Davis appeals his convictions of child molestation, aggravated child molestation, and kidnapping. Davis argues that trial counsel was ineffective for stipulating to the admissibility of his custodial statement and for asserting a legally invalid mistake-of-fact defense to the child molestation charges. In light of the evidence that Davis initiated the communication with the investigator and gave his custodial statement after knowingly waiving his right to counsel, we find that Davis has failed to demonstrate that he received ineffective assistance of trial counsel. We therefore affirm his convictions.

Davis was represented by appointed counsel at his February 2000 trial and was convicted of child molestation, aggravated child molestation, and kidnapping. Davis v. Frazier, 285 Ga. 16, 17 (673 SE2d 215) (2009). Davis was granted the right to file an out-of-time notice of appeal, and post-conviction counsel timely filed a notice of appeal, asserting two claims of ineffective assistance of trial counsel.

To prevail on his claims of ineffective assistance of counsel, Davis was required to show both deficient performance by trial counsel and actual prejudice. Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984); Smith v. Francis, 253 Ga. 782, 783 (1) (325 SE2d 362) (1985). If Davis “fails to meet his burden of proving either prong, then we do not need to examine the other prong.” Works v. State, 301 Ga. App. 108, 114 (7) (686 SE2d 863) (2009) (citation omitted). “We accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” Robinson v. State, 277 Ga. 75, 76 (586 SE2d 313) (2003) (citation and punctuation omitted). Our review of counsel’s performance is highly deferential. Humphrey v. Walker, 294 Ga. 855, 859-860 (II) (A) (757 SE2d 68) (2014). The law recognizes a strong presumption that counsel performed reasonably,

and [Davis] bore the burden of overcoming this presumption. To carry his burden, [Davis] had to show that no reasonable lawyer would have done what his lawyers did, or would have failed to do what his lawyers did not, or put another way, that his lawyers made errors so serious that they were not functioning as the counsel guaranteed the defendant by the Sixth Amendment. And to carry that burden, [Davis] had to show these things by competent evidence, for a silent or ambiguous record is not sufficient to overcome the presumption.

Id. (citations and punctuation omitted).

1. Counsel was not ineffective for stipulating to the admissibility of Davis’s custodial statement.

Davis argues that trial counsel was ineffective for stipulating to the admissibility of his custodial statement to police in which he admitted having sex with the victim, but claimed that she told him she was 18 or 19. Davis argues that the statement was inadmissible since law enforcement obtained the statement after Davis had requested counsel in violation of his federal and state constitutional rights.

Although it is not clear on this record, we will assume for purposes of appeal that Davis invoked his right to counsel. But see Humphrey v. Walker, 294 Ga. at 859-860 (II) (A) (defendant must show ineffective assistance of counsel by competent, unambiguous evidence); State v. Hatcher, 264 Ga. 556, 558 (448 SE2d 698) (1994) (defendant’s completion of form seeking the appointment of county-funded counsel was a “housekeeping measure” that did not invoke the Fifth Amendment right to counsel so as to prohibit an interrogation). Nonetheless, “even assuming that [Davis] had invoked his right to counsel prior to the . . . interview, an accused may waive the previously-invoked right to counsel by initiating further communication with the police.” Dixon v. State, 294 Ga. 40, 42 (1) (751 SE2d69) (2013) (citation and punctuation omitted). To avoid a violation of a defendant’s Fifth Amendment right to counsel, “authorities may not interrogate a suspect who has requested an attorney, unless counsel is made available to the accused or the accused initiates further communication with the police.” Haynes v. State, 269 Ga. 181, 183 (4) (496 SE2d 721) (1998) (citation omitted; emphasis in original). And a defendant can waive his Sixth Amendment right to counsel, even during questioning initiated by an interrogator. See Stinski v. State, 286 Ga. 839, 856 (61), n. 5 (691 SE2d 854) (2010).

The record shows that Davis initiated the communication in which he gave his custodial statement by telling jail staff that he wanted to speak with the investigator. The investigator gave Davis a waiver of rights form to sign and read it to Davis, asking him if he understood each right, including the right to remain silent, the right to have counsel present during questioning, and the right to stop the interview at any time. Davis signed the form, and then he made the incriminating statements. Davis does not contend that he requested counsel during this interview.

“When trial counsel’s failure to file a motion to suppress is the basis for a claim of ineffective assistance, the defendant must make a strong showing that the damaging evidence would have been suppressed had counsel made the motion.” Arellano-Campos v. State, 307 Ga. App. 561, 566 (2) (a) (705 SE2d 323) (2011) (citation and punctuation omitted). Here such a showing is precluded by the evidence that Davis initiated the communication with the investigator and gave his statement after knowingly waiving his right to counsel. See Lawson v. State, 275 Ga. App. 334, 337 (2) (620 SE2d 600) (2005). See also Hall v. Brannan, 284 Ga. 716, 724 (II) (C) (670 SE2d 87) (2008) (trial counsel was not ineffective for stipulating to the admissibility of evidence that was, in fact, admissible); Arellano-Campos v. State, 307 Ga. App. at 569 (2) (a) (defendant reinitiated discussions with the police after requesting counsel, so his statement was admissible, defendant failed to show statement would have been suppressed, and counsel was not ineffective for stipulating to its admissibility). See also Rios v. State, 281 Ga. 181, 182-183 (3) (637 SE2d 20) (2006) (because defendant voluntarily reinitiated discussions with law enforcement, his statements were properly admitted into evidence, and counsel was not ineffective for failing to appeal the denial of his motion to suppress them).

Decided September 5, 2014.

Michael W. Tarleton, James C. Bonner, Jr., for appellant.

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

2. Counsel was not ineffective for presenting a mistake-of-fact defense.

Davis argues that counsel was ineffective for presenting the legally invalid defense that Davis thought the victim was old enough to consent. See Schultz v. State, 267 Ga. App. 240, 241-242 (1) (599 SE2d 247) (2004) (knowledge of the victim’s age is not an element of the crime of child molestation). We disagree.

In his statement, Davis admitted having sex with the victim, but claimed that she told him she was 18 or 19. At a motion for new trial hearing, trial counsel explained that although a defendant’s knowledge of the victim’s age is not an element of the crime, “it was our hopes that twelve Decatur County jurors would — would believe that he didn’t know and despite the charges, the court would find him not guilty.” He explained that although mistake of fact was not a valid defense, “it was all we had.”

Given that counsel had to combat Davis’s statement admitting having sex with the victim, Davis has failed to show that this was an unreasonable strategy. See Lambert v. State, 287 Ga. 774, 776 (2) (700 SE2d 354) (2010) (despite presenting legally invalid coercion defense to murder charge, trial counsel was not ineffective where she “was constrained by [the defendant’s] admissions to police that he had committed the fatal beating”). “The fact that present counsel might have pursued a different strategic course does not render [counsel’s] strategy unreasonable.” Woods v. State, 291 Ga. 804, 808 (2) (733 SE2d 730) (2012) (citation omitted).

Judgment affirmed.

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


author: McFadden, Judge.

text:
    A14A0937.
    FAB’RIK BOUTIQUE, INC. v. SHOPS AROUND LENOX, INC.
    (763 SE2d 492)
   McFadden, Judge.

Fab’rik Boutique, Inc. (“Fab’rik”) sought a declaratory judgment that a restrictive covenant in its lease with its landlord, Shops Around Lenox, Inc. (“Shops”), is unenforceable because it is overly broad. Both parties moved for summary judgment, and the trial court denied Fab’rik’s motion and granted summary judgment to Shops. We find the restrictive covenant ambiguous, but that ambiguity can be resolved by application of the general rules of contract construction. So construed, the restrictive covenant is not overly broad. Accordingly, we affirm.

1. Facts.
To prevail on a motion for summary judgment,
the moving party must show that there exists no genuine issue of material fact, and that the undisputed facts, viewed in the light most favorable to the nonmoving party, demand judgment as a matter of law. Moreover, on appeal from the denial or grant of summary judgment the appellate court is to conduct a de novo review of the evidence to determine whether there exists a genuine issue of material fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

Atlantic Ins. Brokers v. Slade Hancock Agency, 287 Ga. App. 677 (652 SE2d 577) (2007) (citation omitted). “[Cjontract disputes are particularly well suited for adjudication by summary judgment because construction of contracts is ordinarily a matter of law for the court.” Waste Mgmt. of Metro Atlanta v. Appalachian Waste Systems, 286 Ga. App. 476 (649 SE2d 578) (2007) (citation omitted).

The relevant evidence is not in dispute. On November 10, 2009, the parties entered into a three-year commercial lease. The lease required Fab’rik to operate the leased premises under the trade name “Fab’rik” as a “[w] omen’s clothing and accessories boutique similar to other Fab’rik boutiques.” The lease contained a “radius restriction” under which Fab’rik agreed

not to open or operate another store (other than a store owned by [Fab’rik] as of the [date of the execution of the lease]) within five miles of the [leased p]remises without [Shops’] prior written consent which may be withheld by [Shops] in [Shops’] sole, absolute, and unfettered discretion, and in the event [Fab’rik] breaches this provision, [Fab’rik] shall be in immediate default under this [l]ease.

The lease also contained an option permitting Fab’rik to extend it for three more years, “[p]rovided no [e]vent of [d]efault exists.”

In May 2012, Fab’rik informed Shops that it wanted to extend the lease. Shops responded that Fab’rik had defaulted under the lease by opening two other “Fab’rik” stores within five miles of the leased premises, and Shops declined to extend the lease unless Fab’rik cured the default. Instead, Fab’rik filed its complaint asking the trial court to enter a declaratory judgment that it was not in default under the lease and consequently it was entitled to extend the lease. Fab’rik alleged, among other things, that the radius restriction was invalid because it was overly broad.

Both parties moved for summary judgment, and the trial court granted summary judgment to Shops. The trial court construed the radius restriction to apply to the opening or operation of other stores selling women’s clothing and accessories under the “Fab’rik” trade name and ruled that this restriction was reasonable.

2. Construction of the radius restriction.

Fab’rik argues that the trial court improperly construed the radius restriction and that, properly construed, that provision unreasonably prohibited it from opening or operating a store of any type, not merely a women’s clothing and accessories boutique bearing the “Fab’rik” trade name. We find no error with the trial court’s construction of the radius restriction.

Principles of contract construction apply to restrictive covenants just as they apply to other types of contractual provisions. See Preferred Risk Mut. Ins. Co. v. Jones, 233 Ga. 423, 424-426 (1) (211 SE2d 720) (1975) (applying general rules of contract construction to establish terms of contract before considering whether terms of noncompete provision were unreasonable); Azzouz v. Prime Pediatrics, 296 Ga. App. 602, 604-606 (1) (a) & (b) (675 SE2d 314) (2009) (same); Robinwood, Inc. v. Baker, 206 Ga. App. 202, 203-205 (2) (425 SE2d 353) (1992) (same). Contract construction

involves three steps. At least initially, construction is a matter of law for the court. First, the trial court must decide whether the language is clear and unambiguous. If it is, the court simply enforces the contract according to its clear terms; the contract alone is looked to for its meaning. Next, if the contract is ambiguous in some respect, the court must apply the rules of contract construction to resolve the ambiguity. Finally, if the ambiguity remains after applying the rules of construction, the issue of what the ambiguous language means and what the parties intended must be resolved by a jury.

City of Baldwin v. Woodard & Curran, Inc., 293 Ga. 19, 30 (3) (743 SE2d 381) (2013) (citation omitted); see also Azzouz, 296 Ga. App. at 604 (1) (a).

The radius restriction at issue in this appeal pertinently provides that Fab’rik “agrees not to open or operate another store... within five miles of the [leased p]remises[.]” (Emphasis supplied.) Fab’rik argues that this provision unambiguously prohibits it from opening a store of any type, focusing on the generality of the word “store.” But the plain language of the radius restriction does not prohibit “any store” or “stores of any kind”; it prohibits Fab’rik from opening or operating “another store.” (Emphasis supplied.) This language, on its face, does not unambiguously provide for the expansive restriction asserted by Fab’rik. See Citrus Tower Blvd. Imaging Center v. David S. Owens, MD, PC, 325 Ga. App. 1, 8 (2) (752 SE2d 74) (2013) (contract is unambiguous if, “examining the contract as a whole and affording the words used therein their plain and ordinary meaning, the contract is capable of only one reasonable interpretation”) (citation and punctuation omitted). Instead, the phrase “another store” is also open to the interpretation proposed by Shops — that it refers to another store of the specific type addressed in the lease (namely, a “[wjomen’s clothing and accessories boutique similar to other Fab’rik boutiques” operating under the “Fab’rik” trade name). See id. (contract is ambiguous where “the words used therein [are] open to various interpretations”) (citation and punctuation omitted).

Application of the statutory rules of contract construction resolve this ambiguity in favor of Shops. Under OCGA § 13-2-2 (2), “[w]ords generally bear their usual and common signification[.]” And under OCGA § 13-2-2 (4), “[t]he construction which will uphold a contract in whole and in every part is to be preferred, and the whole contract should be looked to in arriving at the construction of any part.” The lease as a whole addressed a specific type of store. And in another provision, concerning rent, the lease refers to “other ‘Fab’rik’stores” (emphasis supplied), thereby limiting the meaning of the word “store.” Construing the term “another store” to mean other stores of the specific type addressed in other lease provisions is consistent with the usual and common meaning of the word “another” and with the manner in which the concept of a “store” was treated elsewhere in the lease. Moreover, the more expansive construction of the term urged by Fab’rik, which Fab’rik alleges would result in the invalidation of the lease’s radius restriction, see generally Watson v. Waffle House, 253 Ga. 671, 673 (2) (324 SE2d 175) (1985) (discussing overbreadth of restriction of employment in business “in any capacity”), is not preferred under OCGA § 13-2-2 (4) because it would not uphold the lease in whole and in every part. See Azzouz, 296 Ga. App. at 605 (1) (a) (applying this rule of contract construction to r ej ect argument that restrictive covenant should be construed in a manner rendering it unenforceable).

Fab’rik argues that the trial court’s construction of the lease in this more limited way constitutes impermissible blue-penciling. (Because the parties entered into the lease before May 11, 2011, the 2011 act revising the law related to restrictive covenants, with its provision on judicial modification of restrictive covenants, does not apply here. See OCGA § 13-8-54 (b); Holton v. Physician Oncology Svcs., 292 Ga. 864, 870 (3), n. 4 (742 SE2d 702) (2013).) “[A] trial court may not under the guise of the ‘blue pencil’ method reform a contract which is otherwise unenforceable by reason of vagueness.” Waste Mgmt. of Metro Atlanta, 286 Ga. App. at 481 (1) (citation and emphasis omitted). Applying the general rules of contract construction to determine the meaning of a restrictive covenant, however, is not the same thing as blue-penciling. See Azzouz, 296 Ga. App. at 608 (4). The application of the rules of contract construction, and not the “blue pencil” method, resolve any ambiguity in the lease.

3. Enforceability of the radius restriction.

Whether a restrictive covenant violates Georgia law

depends upon whether the covenant can be considered a “reasonable” restraint on competition, given the circumstances of a particular case. Specifically, the restraint imposed must be reasonably limited and it must be reasonably necessary to protect the interest of the party in whose favor it is imposed.

Carson v. Obor Holding Co., 318 Ga. App. 645, 648 (1) (734 SE2d 477) (2012) (citation and punctuation omitted). The level of scrutiny with which the court applies the test for reasonableness varies depending on the nature of the contract containing the restrictive covenant. See generally OnBrand Media v. Codex Consulting, 301 Ga. App. 141, 145 (2) (a) (i) (687 SE2d 168) (2009) (discussing levels of scrutiny applicable to restrictive covenants ancillary to different types of contracts).

Decided September 8, 2014

Littler Mendelson, Jerry C. Newsome, for appellant.

Arnall Golden Gregory, James A. Gober, Rebecca I. Lunceford, for appellee.

Although Fab’rik argues that the trial court failed to apply the proper level of scrutiny in this case, the trial court actually pretermitted that issue, holding that the radius restriction was reasonable “[u]nder either strict scrutiny or a more relaxed standard[.]” Even under the strictest level of scrutiny applicable to covenants ancillary to employment contracts, which Fab’rik argues applies to the lease, the covenant “will be upheld if the restraint imposed is not unreasonable, is founded on a valuable consideration, and is reasonably necessary to protect the interest of the party in whose favor it is imposed, and does not unduly prejudice the interests of the public.” W. R. Grace & Co., Dearborn Div. v. Mouyal, 262 Ga. 464, 465 (1) (422 SE2d 529) (1992) (citation omitted). In analyzing a covenant, we employ a “three-element test of duration, territorial coverage, and scope of activity [,] utilizing it, not as an arbitrary rule but as a helpful tool in examining the reasonableness of the particular factual setting to which it is applied.” Watson, 253 Ga. at 673 (2).

Fab’rik does not challenge the reasonableness of the restriction’s five-mile territorial radius, and the trial court correctly found, as to duration, that the restriction is “co-terminus with the [l]ease.” Moreover, as discussed above, the scope of the activity prohibited by the restriction is limited to the opening or operation of the specific type of store covered by the lease — another “Fab’rik”-branded women’s clothing and accessories boutique. The trial court did not err in finding the radius restriction to be reasonable in duration, territorial coverage and scope of activity and in granting summary judgment to Shops in Fab’rik’s declaratory judgment action.

Judgment affirmed.

Andrews, P. J., concurs. Ray, J., concurs in judgment only.


author: BARNES, Presiding Judge.

text:
    A14A1048, A14A1063.
    FULTON COUNTY BOARD OF TAX ASSESSORS v. TORO PROPERTIES VI, LLC (two cases).
    (763 SE2d 496)
   BARNES, Presiding Judge.

In these companion cases, the Fulton County Board of Tax Assessors (the “Board”) appeals from the superior court’s grant of attorney fees to Toro Properties VI, LLC (“Toro”) after Toro’s successful ad valorem tax appeals challenging the Board’s valuation of two parcels of commercial real property. The Board asserts that the superior court lacked jurisdiction to award litigation costs and attorney fees and, further, that the trial court’s award runs contrary to the public policy of Georgia. We disagree and affirm.

The facts of this case are undisputed. Toro is the owner of two adjacent parcels of commercial real property located in Fulton County and which contain a large, multi-unit apartment complex. For tax year 2011, the Fulton County Board of Equalization (“FCBOE”) determined the respective fair market values of the parcels to be $1,913,500 (“Parcel 1”) and $5,504,000 (“Parcel 2”). Pursuant to the procedures set forth in OCGA § 48-5-311 (g), Toro appealed each of the FCBOE’s valuations to the superior court. Toro then moved for summary judgment and asserted that, contrary to the finding of the FCBOE, the actual fair market value of Parcel 1 was $1,083,600 and the actual fair market value of Parcel 2 was $3,116,400. The Board did not oppose the motions and, consequently, the superior court entered two orders on November 20, 2012, both entitled “Final Order and Judgment Setting Value” (the “Valuation Orders”), in which it set the values accordingly.

Subsequently, on May 6, 2013, Toro filed motions pursuant to OCGA § 48-5-311 (g) (4) (B) (ii) contending that, because the actual fair market value of each parcel was determined by the superior court to be 80 percent or less of the valuation set by the FCBOE, Toro was entitled to recover its litigation costs and attorney fees in both appeals. The Board opposed the motions, but did not challenge the Valuation Orders. Instead, the Board argued, in part, that the superior court lacked jurisdiction to grant the motions after the expiration of the term of court in which the Valuation Orders were issued and that any such award would be contrary to Georgia’s public policy. Following a hearing, the superior court rejected the Board’s argument and awarded Toro its litigation costs and attorney fees (the “Fee Awards”). In each of the Fee Awards, the superior court expressly provided that “ft]here being no further issue pending before the Court in this case, in accordance with OCGA § 9-11-54 (b), the Court certifies this is the Final Order and Judgment terminating this case and the Clerk shall therefore close the file.” This appeal follows.

The Board argues that the Valuation Orders constituted final judgments that terminated the actions as to the parties and their claims, and that the later-issued Fee Awards amounted to an unauthorized attempt by the superior court to modify the final judgments outside the term of court in which they were rendered. Because the trial court did not expressly reserve the right to do so in the Valuation Orders, the Board contends that the Fee Awards “frustrate [ ] the interest of judicial economy and [are] contrary to public policy.” We disagree.

The very premise of the Board’s argument — that the Valuation Orders terminated the proceedings in the superior court — is misguided. Pursuant to OCGA § 48-5-311 (g) (4) (B) (ii), upon appeal to the superior court of a valuation of commercial property set by the FCBOE, “[i]f the final determination of value ... is 80 percent or less of the valuation set by the [FCBOE] ..., the taxpayer, in addition to the interest provided for by this paragraph, shall recover costs of litigation and reasonable attorney’s fees incurred in the action.” Thus, by its express terms, the statute mandates the issuance of an award following the superior court’s final determination as to value if that value triggers the statutory threshold. See Fulton County Bd. of Tax Assessors v. LM Atlanta Airport, LLC, 313 Ga. App. 439, 441 (721 SE2d 640) (2011) (recognizing that an award of reasonable attorney fees and costs under OCGA § 48-5-311 (g) (4) (B) (ii) is required if the statutory conditions are met); SPH Glynn, LLC v. Glynn County Bd. of Tax Assessors, 326 Ga. App. 196, 201 (2) (756 SE2d 282) (2014) (same); see also TermNet Merchant Svcs. v. Phillips, 277 Ga. 342, 344 (1) (588 SE2d 745) (2003) (“When construing statutory phrases,... we note that in its ordinary signification, ‘shall’ is a word of command, and the context ought to be very strongly persuasive before that word is softened into a mere permission.”) (punctuation and footnote omitted). This is true whether or not Toro specifically pleaded for the recovery of costs and fees. See OCGA § 9-11-54 (c) (1) (“[E]very final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings . . . .”). And this remains true regardless of the fact that the superior court entitled each of its Valuation Orders as a “Final Order and Judgment Setting Value.” See OCGA § 9-11-54 (b) (“In the absence of [express direction by the court], any order . . ., however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties____”); Sotter v. Stephens, 291 Ga. 79, 82 (727 SE2d 484) (2012) (noting that “the mere designation of a judgment as ‘final’ is not controlling”) (punctuation omitted); MARTA v. Federick, 187 Ga. App. 696, 698 (1) (371 SE2d 204) (1988) (“A judgment is final only when it disposes of the entire controversy, leaving nothing for the Court to do in the case.”). It follows that by rendering the Fee Awards, the superior court did not modify the Valuation Orders, the issuance of which had not terminated the proceedings between the parties, but instead afforded Toro additional relief to which it was statutorily entitled. See OCGA §§ 9-11-54 (c) (1); 48-5-311 (g) (4) (B) (ii).

Decided September 8, 2014

R. David Ware, W. Shannon Sams, Pat D. Dixon, Jr., for appellant.

Moreover, contrary to the Board’s argument, rendering the Fee Awards after the expiration of the term of court of the Valuation Orders did not frustrate judicial economy or violate Georgia’s public policy. OCGA § 48-5-311 (g) (4) (B) (ii) contains no time limitation dictating when a taxpayer must move or a court must award litigation costs and attorney fees. Compare OCGA §§ 9-11-11.1 (f) (“Attorney’s fees and expenses under this Code section may be requested by motion at any time during the course of the action but not later than 45 days after the final disposition, including but not limited to dismissal by the plaintiff, of the action.”); 9-15-14(e) (“Attorney’s fees and expenses under this Code section may be requested by motion at any time during the course of the action but not later than 45 days after the final disposition of the action.”). And in the absence of a specific statutory dictate, the law otherwise contains safeguards to protect against the cluttering of the court’s docket due to unresolved cases and/or dilatory counsel. See OCGA §§ 9-2-60 (b) (“Any action or other proceeding filed in any of the courts of this state in which no written order is taken for a period of five years shall automatically stand dismissed with costs to be taxed against the party plaintiff.”); 9-11-41 (e) (“Any action in which no written order is taken for a period of five years shall automatically stand dismissed, with costs to be taxed against the party plaintiff.”). For these reasons, the Board’s arguments fail, and the Fee Awards are affirmed.

Judgments affirmed.

Boggs and Branch, JJ., concur.

John F. Woodham, Martenson, Hasbrouck & Simon, Robert D. Feagin III, for appellee.

       OCGA § 48-5-311 (g) provides that “[tjhe taxpayer... may appeal decisions of the county board of equalization ... to the superior court of the county in which the property lies.”

       Toro filed two separate actions because Parcel 1 and Parcel 2 have different addresses and tax identification numbers. On appeal, Case No. A14A1048 specifically concerns the order governing Parcel 1 and Case No. A14A1063 specifically concerns the order governing Parcel 2, although the legal issues raised in both cases are identical and will be addressed together.


author: McFADDEN, Judge.

text:
    A14A1274.
    PETERS et al. v. CERTUSBANK NATIONAL ASSOCIATION.
    (763 SE2d 498)
   McFADDEN, Judge.

Bruce and Judie Peters appeal from the trial court’s order confirming a nonjudicial foreclosure sale conducted by CertusBank National Association. They argue that the confirmation was improper because CertusBank had not complied with OCGA § 44-14-162.2, which among other things requires lenders to notify borrowers of the initiation of foreclosure proceedings through written notice sent according to specified methods of mailing. Because CertusBank did not send the notice by the proper method, we reverse.

1. Facts and procedural background.

On appeal from the confirmation of a nonjudicial foreclosure sale, we “apply a de novo standard of review to questions of law decided by the trial court.” Mackey v. Fed. Nat. Mtg. Assn., 294 Ga. App. 495, 496 (669 SE2d 397) (2008) (citation omitted). We will not overturn the trial court’s decision regarding confirmation if there is any evidence to support the decision, and we review the evidence in the light most favorable to the trial court’s judgment. Wilson v. Prudential Indus. Properties, 276 Ga. App. 180, 180-181 (1) (622 SE2d 890) (2005).

So viewed, the evidence shows that in 2008, the Peterses executed a security deed in connection with a loan encumbering a vacant lot. Among other things, the security deed required the lender to give the Peterses notice prior to accelerating the debt or exercising its right to power of sale. The security deed and other loan documents were assigned to CertusBank.

On June 21, 2012, CertusBank’s attorney sent a letter to the Peterses via certified mail, notifying them that they had breached their loan agreement, that CertusBank demanded immediate payment of the debt, that they could cure the breach by payment of a particular sum by a particular date, that their failure to cure the breach “may result in the acceleration of the total sums secured ... and foreclosure and sale of your property,” that they had a right to reinstate the loan or assert legal defenses in a court action, and that they might be liable for attorney fees. In the June 21 letter, CertusBank also expressly reserved its right to exercise any remedies available to it under the security deed and other loan documents.

On June 25, 2012, CertusBank’s attorney sent the Peterses a letter titled “Notice of Foreclosure Sale for Property,” this time via first-class mail. The June 25 letter enclosed a notice of sale informing the Peterses of the date, place, and time of a scheduled foreclosure sale of the encumbered property. The June 25 letter further provided, “[p]ursuant to OCGA § 44-14-162.2,” the name, address, and telephone number of a CertusBank employee with full authority to negotiate, amend, or modify the terms of the security deed. Finally, the June 25 letter stated that it was “being sent to you in order to comply with Georgia statutory foreclosure law requirements.”

On August 7,2012, CertusBank sold the encumbered property. It then filed a proceeding seeking confirmation of the sale. After receiving evidence, the trial court confirmed the sale. The Peterses argue that this was error because, among other reasons, CertusBank did not comply with the notice requirements of OCGA § 44-14-162.2 (a) in its method of mailing the notice. We agree. (For this reason, we need not address the Peterses’ argument that CertusBank did not comply with the statutory notice requirements in other respects, as well.)

2. Applicable law.

In ruling on a confirmation petition, a trial court “is required not only to determine whether the property sold brought its true market value but also to pass upon the legality of the notice, advertisement, and regularity of the sale.” Martin v. Fed. Land Bank of Columbia, 173 Ga. App. 142 (325 SE2d 787) (1984) (citations and punctuation omitted). Under OCGA § 44-14-162.2 (a): Under a prior Code section, such notice was required only for foreclosed properties “used as a dwelling place by the debtor,” see former OCGA § 44-14-162.3 (a), but the General Assembly removed this limitation in an amendment effective July 1, 2012. See Ga. L. 2012, p. 1079, § 3. Accordingly, the notice requirements of OCGA § 44-14-162.2 (a) applied to the sale of the property in this case even though it was a vacant lot, because the sale occurred on August 7, 2012, after the amendment’s effective date. See Ciuperca v. RES-GA Seven, 319 Ga. App. 61, 63-64 (1) (735 SE2d 107) (2012) (using date of foreclosure sale to determine applicability of notice provisions of OCGA § 44-14-162.2 (a) to property not used as dwelling place by debtor).

Notice of the initiation of proceedings to exercise a power of sale in a mortgage, security deed, or other lien contract shall be given to the debtor by the secured creditor no later than 30 days before the date of the proposed foreclosure. Such notice shall be in writing, shall include the name, address, and telephone number of the individual or entity who shall have full authority to negotiate, amend, and modify all terms of the mortgage with the debtor, and shall be sent by registered or certified mail or statutory overnight delivery, return receipt requested, to the property address or to such other address as the debtor may designate by written notice to the secured creditor. . . .

To comply with the statutory notice requirements, therefore, CertusBank had to use one of the specified methods of delivery to convey to the Peterses in written form the information specified in OCGA § 44-14-162.2 (a). Neither the June 21 letter nor the June 25 letter met this requirement.

3. June 21 letter.

Contrary to CertusBank’s assertion on appeal, the June 21 letter was not a “[n]otice of the initiation of proceedings to exercise a power of sale” under OCGA § 44-14-162.2 (a). In other correspondence with the Peterses, CertusBank described the June 21 letter as an “Initial Communication Letter,” and the contents of the June 21 letter support that description. Pertinently, the June 21 letter did not state that CertusBank was initiating foreclosure proceedings, but only that it might initiate such proceedings in the future.

Nevertheless, CertusBank argues that we should construe the June 21 letter to substantially comply with the requirements of OCGA § 44-14-162.2 (a). But we must strictly construe that Code section because it is in derogation of common law. WCI Properties v. Community & Southern Bank, 320 Ga. App. 671, 674 (1) (740 SE2d 686) (2013). It is true that we have permitted substantial compliance with OCGA § 44-14-162.2 (a) in a limited circumstance involving the requirement to provide certain contact information. See TKW Partners v. Archer Capital Fund, 302 Ga. App. 443, 445-446 (1) (691 SE2d 300) (2010) (permitting substantial compliance where notice listed contact information for an individual — the lender’s attorney — who had “as much authority as any individual to negotiate a loan modification on [the lender’s] behalf, [in circumstances where] there was no individual at [the lender] with full authority to modify the loan because [that] would be a group decision”) (punctuation omitted); see also Stowers v. Branch Banking & Trust Co., 317 Ga. App. 893, 896 (1) (731 SE2d 367) (2012) (noting that holding in TKW Partners stands for the principle “that substantial compliance with the contact information requirement of OCGA § 44-14-162.2 (a) is sufficient”). We decline to extend that holding to allow CertusBank, after the fact, to recharacterize its “Initial Communication Letter” as a notice of the initiation of foreclosure proceedings.

Decided September 8, 2014.

Knight Johnson, James M. Johnson, Todd N. Robinson, for appellants.

Harrison & Horan, Victor J. Harrison, for appellee.

4. June 25 letter.

Unlike the June 21 letter, CertusBank presented its June 25 letter to the Peterses as its “Notice of Foreclosure Sale for Property,” and that letter’s contents support that characterization. The letter references OCGA § 44-14-162.2 (a) and sets forth the information required by that Code section. It refers to an enclosed copy of the notice of the foreclosure sale of the property that was sent for publication, and it provides the date and place of the scheduled sale. Finally, the June 25 letter states that it is being sent to the Peterses “in order to comply with Georgia statutory foreclosure law requirements.”

Nevertheless, the June 25 letter did not satisfy OCGA § 44-14-162.2 (a)’s requirement that the notice “be sent by registered or certified mail or statutory overnight delivery, return receipt requestedf.]” OCGA § 44-14-162.2 (a). CertusBank sent the letter via regular first class mail. Regular mail delivery does not satisfy a statutory requirement prescribing another delivery method. See Swanigan v. Leroux, 240 Ga. App. 550, 550-551 (1) (524 SE2d 244) (1999) (trial court did not err in granting defendant summary judgment based on lack of service where plaintiffs served action by regular mail and applicable statute required service by registered or certified mail). Consequently, CertusBank did not meet the notice requirements of OCGA § 44-14-162.2 (a), and the trial court erred in confirming the foreclosure sale.

Judgment reversed.

Ray, J., concurs. Andrews, P. J., concurs in judgment only.


author: ELLINGTON, Presiding Judge.

text:
    A14A1216.
    CITY OF ATLANTA v. DEMITA.
    (762 SE2d 436)
   ELLINGTON, Presiding Judge.

Regina Demita brought this nuisance action against the City of Atlanta in the State Court of Fulton County to recover for damage to her home and property allegedly caused by the City’s negligent construction or maintenance of a storm water drainage system. A jury found in Demita’s favor and awarded her $85,200 in damages, $88,800 in attorney fees, and $54,433.21 in litigation expenses. The City appeals from the judgment, contending, inter alia, that there was no evidence that it created or maintained a nuisance and that it is therefore entitled to judgment as a matter of law. For the reasons explained below, we reverse.

1. The City contends that there was no evidence that it created or maintained a nuisance or that it violated any duty to abate the alleged nuisance. Rather, the City contends that the evidence established that the developer that built a group of homes, including Demita’s home, on Oakridge Avenue, created the conditions that allow water to collect on her property. Accordingly, the City contends that it is entitled to judgment as a matter of law.

On appeal from a trial court’s rulings on motions for directed verdict and judgment notwithstanding the verdict^] we review and resolve the evidence and any doubts or ambiguities in favor of the verdict; directed verdicts and judgments notwithstanding the verdict are not proper unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demands a certain verdict.

(Citation, punctuation and footnote omitted.) Pricewaterhouse-Coopers, LLP v. Bassett, 293 Ga. App. 274 (666 SE2d 721) (2008).

Under Georgia law, municipalities have sovereign immunity against claims of negligence in performing, or failing to perform, their governmental functions. Generally, a municipality will be immune from liability for negligence in failing to protect property from water incursion.

[A] municipality^ however,] like any other individual or private corporation [,] may be liable for damages it causes to a third party from the operation or maintenance of a nuisance, irrespective of whether it is exercising a governmental or a ministerial function. This exception to sovereign immunity is based on the principle that a municipal corporation can not, under the guise of performing a governmental function, create a nuisance dangerous to life and health or take or damage private property for public purpose, without just and adequate compensation being first paid.

(Citations and punctuation omitted.) City of Thomasville v. Shank, 263 Ga. 624, 624-625 (1) (437 SE2d 306) (1993). Thus, even in the absence of a waiver of its immunity to suit, a municipality may be liable for maintaining a continuing, abatable nuisance, such as by negligently constructing a sewer or drainage system or negligently maintaining a sewer or drainage system under its control which causes the repeated flooding of property.

To be held liable for maintenance of a nuisance, the municipality must be chargeable with performing a continuous or regularly repetitious act, or creating a continuous or regularly repetitious condition, which causes the hurt, inconvenience or injury; the municipality must have knowledge or be chargeable with notice of the dangerous condition; and, if the municipality did not perform an act creating the dangerous condition,... the failure of the municipality to rectify the dangerous condition must be in violation of a duty to act.

(Citations and punctuation omitted.) Mayor of Savannah v. Palmerio, 242 Ga. 419, 426-427 (3) (i) (249 SE2d 224) (1978). In particular, the liability of a municipality for a nuisance cannot arise solely from its approval of a construction project which leads to an increase in surface water runoff.

The City contends that the evidence demanded a finding that it has never constructed a storm water sewer or drainage system to service Demita’s property and that it cannot be held liable for negligently maintaining a system that does not exist.

The record shows the following. In 2002, Demita bought a house located at 42 Oakridge Avenue, Atlanta; it was one of four newly-constructed houses on that street. The street, which predated the new in-fill construction, is owned and maintained by the City. Throughout Demita’s ownership, water has pooled on the street in front of her property. The area in front of her house (and the house across the street, 43 Oakridge Avenue) is the low point on the street. Before Demita’s home was built, water flowed east-west across Oakridge Avenue, which runs north-south. There is no storm drain, sewer grate, manhole, drop inlet, retention pond, or catch basin on the street for runoff to drain into. Water that collects in that low area simply remains standing there until it evaporates, is removed by the City’s vacuum trucks, or is splashed onto adjacent property (including Demita’s) by vehicles traveling on the road. When it rains heavily, pooling water frequently rises higher than the curbs that the developer installed in front of the new homes, and the rising water overflows onto Demita’s property. As a result, her property has sustained erosion, soil saturation, garage and crawlspace flooding, and other damage.

In 2010, the City’s Department of Watershed Management evaluated the recurrent flooding at 42 and 43 Oakridge Avenue and compared potential solutions to the problem. Staff members recommended that water be diverted away from the low point on Oakridge Avenue by installing two catch basins to collect runoff at that low point, installing 1,660 linear feet (or more) of piping to route the concentrated flow north along Oakridge Avenue to Hosea L. Williams Drive, and installing manholes and other appurtenances to join the new Oakridge Avenue storm sewer to the existing storm sewer on Hosea L. Williams Drive. No remedial project has yet been initiated.

As the City contends, there is no evidence that it ever installed any manhole or grate to allow water on Oakridge Avenue to drain into sewer piping, constructed any catch basin on the street, or took control and responsibility for maintaining any such sewer or drainage infrastructure components. Demita contends that the evidence nonetheless authorized the jury to find that the City is liable for maintaining a nuisance, in that the street itself, which the City owns and maintains, constitutes a sewer or drainage system.

Demita’s expert, a civil engineer and professional hydrologist, opined that the City has a storm water drainage system that serves Demita’s property, “consist[ing] of street curbs and gutters which control and convey storm water through Oakridge Avenue, and other public streets and rights of way of the City of Atlanta.” He also opined that the flooding and drainage problems affecting Demita’s property “result from the failure of the City of Atlanta to maintain the existing storm water drainage system, which includes the street surface, along with the curbing and gutters located in front of [Demita’s property].” At trial, the hydrologist explained that,

this street[, Oakridge Avenue,] and most every street that’s constructed, is constructed with a high place in the center of the roadway called the crown[,]... so that water that falls on that street drains to the side ... against [the] curb ... and is carried off. . . . So . . . the street is actually a part of the drainage system, [and] the curb is part of the drainage system.

In his opinion, “curbing is storm water related. . . . [T]he drainage system within a city is that the pavement drains the water over to the curb and gutter. And then the curb and gutter holds that water, or at least directs that water to a [catch basin].” He noted, though, that, in this case, the water is not carried away and there is no catch basin; instead, water collects at the lowest point of the street.

Accepting this testimony as evidence that the City maintains a sewer or drainage system on Oakridge Avenue would mean that the City maintains a sewer or drainage system on a street simply by virtue of owning a street that is paved and (at least partially) edged with curbs and performing maintenance on the street such as periodic repaving. It follows that, accepting the hydrologist’s definition of a “drainage system,” the City maintains a sewer or drainage system on virtually every paved, curbing-edged, city-controlled street throughout Atlanta. Accepting the hydrologist’s definition of a “drainage system,” the City could be liable for maintaining a nuisance to any property owner who, like Demita, owns property adjacent to a low point on a street where water collects and repeatedly overflows the curbing, floods that adjacent property, and causes damage there. Such an expansive definition of maintaining a sewer or drainage system is not consistent with Georgia jurisprudence. Because there is no evidence that the City negligently constructed or maintained a sewer or drainage system under its control which has caused the repeated flooding of Demita’s property, the City cannot be held liable for maintaining a nuisance under this theory. City of Atlanta v. Kleber, 285 Ga. 413, 418-419 (3) (677 SE2d 134) (2009) (Contention that, as a result of new construction approved by the city, runoff increased and contributed to the flooding of the plaintiff’s property failed to raise a triable claim of nuisance, where the homeowners failed to show that the city acquired ownership or actively exercised control over the culvert and pipes the permittee installed.); Merlino v. City of Atlanta, 283 Ga. 186, 189 (2) (657 SE2d 859) (2008) (Where there was no evidence that the city owned a drainage pipe on private property or exercised direct dominion and control over it, and no evidence that the city took any affirmative steps to repair, restore, or maintain the pipe, there was no basis for holding the city liable for an alleged nuisance based on its failure to prevent the property owners from plugging the pipe.).

In the alternative, Demita contends that, regardless whether there is a drainage system serving her property, the City can be held liable for a nuisance created by water draining off of city-maintained streets, citing Bass Canning Co. v. MacDougald Constr. Co., 174 Ga. 222 (162 SE 687) (1932), and Gleaton v. City of Atlanta, 131 Ga. App. 399 (206 SE2d 46) (1974) (physical precedent only). Neither of those cases, however, stands for the proposition that a claim of nuisance will lie where a municipality simply maintains a street off of which water flows. Bass Canning Co. v. MacDougald Constr. Co., 174 Ga. at 222 (the city contracted for the installation of storm sewers, catch basins, and manholes and for the conversion of an open perpendicular sewer into a closed manhole); Gleaton v. City of Atlanta, 131 Ga. App. at 399 (combined city sewers ran through the plaintiff’s property). This is not a case where the City’s conduct in maintaining a street diverted or changed the flow of water so that it flooded adjacent property. Rather, the builder placed new construction adjacent to an existing city street and natural forces did the rest. See id.

Decided August 20, 2014

Reconsideration denied September 9, 2014

Cathy Hampton, Torrey D. Smith, Davené D. Walker, for appellant.

Martin & Jones, Samuel L. Starks, for appellee.

Because there is no evidence that the City maintained a nuisance under either theory advanced by Demita, the City is not liable for Demita’s property damage. The trial court therefore erred in denying the City’s motions for a directed verdict and for judgment notwithstanding the verdict.

2. Given our ruling in Division 1, supra, the City’s remaining claims of error are moot.

Judgment reversed.

Phipps, C. J., and McMillian, J., concur in judgment only.

       Following Demita’s presentation of her case at trial, the City moved for a directed verdict, and, after trial, it moved for judgment notwithstanding the verdict; the trial court denied both motions. See Christopher J.McFaddenet al., Ga. Appellate Practice, § 9:25 (updated November 2013).

       See generally OCGA §§ 36-33-1 (“[Tjhere is no waiver of the sovereign immunity of municipal corporations of the state and such municipal corporations shall be immune from liability for damages.... Municipal corporations shall not he liable for failure to perform or for errors in performing their legislative or judicial powers.”); 36-33-2 (“Where municipal corporations are not required by statute to perform an act, they may not be held liable for exercising their discretion in failing to perform the act.”); Mayor of Savannah v. Palmerio, 242 Ga. 419, 424-427 (3) (249 SE2d 224) (1978) (“A municipality is immune from suit for acts it performs which are authorized by law and executed in accordance with the judgment or conclusion reached by the municipal authority in the exercise of a governmental function.”) (citations omitted); Albertson v. City ofJesup, 312 Ga. App. 246, 249 (1) (718 SE2d 4) (2011) (Municipalities have sovereign immunity against claims of negligence in performing, or failing to perform, their governmental functions.).

        City of Atlanta v. Kleber, 285 Ga. 413, 418-419 (3) (677 SE2d 134) (2009); Merlino v. City of Atlanta, 283 Ga. 186, 189 (2) (657 SE2d 859) (2008); Hibbs v. City of Riverdale, 267 Ga. 337, 338 (478 SE2d 121) (1996).

        Hibbs v. City of Riverdale, 267 Ga. at 338 (Where a municipality negligently constructs or undertakes to maintain a sewer or drainage system which causes the repeated flooding of property, a continuing, abatable nuisance is established, for which the municipality is liable. The property owner must show that the municipality’s actions in regard to the storm drainage system constituted such exercise of control or acceptance so as to establish a duty on the part of the municipality to adequately maintain it.); Bass Canning Co. v. MacDougald Constr. Co., 174 Ga. 222, 227-228 (162 SE 687) (1932) (Because the maintenance by a city of a sewerage drainage system is connected with the preservation of the public health, and therefore is a governmental function, the city ordinarily cannot be held liable for any damage to person or property caused by the negligence of any of the city’s servants while engaged in such work or by an error of judgment on the part of its authorities in adopting a general plan of drainage and in determining when, where, and of what size, and at what level, drains or sewers shall be located. But, where negligence in the maintenance by a municipality of a sewerage drainage system results in the creation and maintenance by the city of a nuisance, permanent in its character, and dangerous to life and health, and where the effect of the nuisance is specially injurious to an individual by reason of its proximity to his home, such person is entitled to recover adequate compensation for his injuries, including damages for any decrease in the market value of his realty.); City of Columbus v. Barngrover, 250 Ga. App. 589, 592-593 (1) (552 SE2d 536) (2001) (Drainage system that channeled water from city streets under homeowners’ property and into sanitary and storm sewers, which the city undertook to maintain, that caused repeated flooding of private property created a continuous abatable nuisance for which the City could he held liable.).

       See also Albertson v. City of Jesup, 312 Ga. App. at 250 (2) (To hold a municipality liable for maintaining a nuisance, the plaintiff must show that (1) the alleged defect or degree of misfeasance exceeded mere negligence; (2) the act was of some duration and the maintenance of the act or defect was continuous or regularly repetitious; and (3) the municipality failed to act within a reasonable time after knowledge of the defect or dangerous condition.).

        City of Atlanta v. Kleber, 285 Ga. at 418-419 (3); Hibbs v. City of Riverdale, 267 Ga. at 338.

       A Department of Watershed Management staff member focused on 43 Oakridge Avenue, the property across the street from Demita, and stated, based on site reconnaissance and available maps and records, that the house “appears to have been constructed in a natural drainage channel.”

       See authority cited in footnotes 2 through 6, supra.


text:
    A14A1957.
    MALLOY v. THE STATE.
    (763 SE2d 501)
   ELLINGTON, Presiding Judge.

In the Superior Court of DeKalb County, a jury found Dr. Tyrone Malloy guilty of two counts of Medicaid fraud and the court sentenced him to serve four years in prison. Prior to filing his motion for a new trial, Malloy sought an appeal bond, which the court denied following a hearing. Malloy appeals from the order denying bond, contending that he presented sufficient evidence demonstrating that he was not a flight risk. For the following reasons, we affirm.

1. “There is no constitutional right to bond pending appeal. Whether to grant an appeal bond to eligible [] felony defendants lies within the sound discretion of the convicting court, and we will not disturb the court’s decision absent a flagrant abuse of discretion.” (Footnotes omitted.) Luke v. State, 282 Ga. App. 749, 750 (639 SE2d 645) (2006).

In exercising its discretion, the trial court must answer four questions: (1) whether there is a substantial risk the defendant will flee; (2) whether there is a substantial risk the defendant will pose a danger to others in the community; (3) whether there is a substantial risk the defendant will intimidate witnesses or otherwise interfere with the administration of justice; and (4) whether it appears the appeal is frivolous or taken only for the purpose of delay. An affirmative answer to any one of these questions will support the trial court’s decision to deny an appeal bond.

(Footnotes omitted.) Abernathy v. State, 245 Ga. App. 857, 857-858 (539 SE2d 203) (2000); see also Birge v. State, 238 Ga. 88 (230 SE2d 895) (1976).

The defendant bears the burden of persuading the court to grant an appeal bond, and the court should not grant bond “unless the defendant presents sufficient information, evidence, or argument to convince the trial court that none of the four factors applies.” (Footnote omitted.) Abernathy v. State, 245 Ga. App. at 858. See also Moore v. State, 151 Ga. App. 413, 414 (260 SE2d 350) (1979) (accord). In addition to any evidence offered by the defendant, “the trial judge may consider all the evidence adduced at the trial that is pertinent to [the appeal bond] determination[.]” (Punctuation and footnote omitted.) Williford v. State, 218 Ga. App. 522, 523 (462 SE2d 632) (1995). “Whether we agree with [the trial court’s] findings and conclusions is not controlling.” (Citations and punctuation omitted.) Hardy v. State, 192 Ga. App. 860, 861 (2) (386 SE2d 731) (1989) (physical precedent only). Thus, as long as there is some evidence to support the trial court’s decision, we will not disturb it. See Abernathy v. State, 245 Ga. App. at 857-858.

Decided September 9, 2014

Garland, Samuel & Loeb, Donald F. Samuel, Chilivis, Cochran, Larkins & Bever, Brian F. McEvoy, for appellant.

Robert D. James, Jr., District Attorney, Samuel S. Olens, Attorney General, Nancy B. Allstrom, Senior Assistant Attorney General, for appellee.

In this case, the court denied Malloy’s request for bond by affirmatively finding that there was a substantial risk that Malloy would flee. Although Malloy presented evidence of his community ties, the trial court stated that it was not persuaded by Malloy’s assurances. Given that Malloy was convicted of Medicaid fraud, a crime involving deceit and the theft of public funds, the court’s distrust of Malloy’s assurances is reasonably based in record evidence. Also, at sentencing, Malloy showed no acceptance of the jury’s verdict and little understanding that it warranted criminal punishment, stating “I would not have sacrificed all of the things that I have done if I had intent to defraud Medicaid. I feel that my contribution of what I felt a doctor should be and should do was what I’ve accomplished in 37 years. In no way was I trying to do something that was illegal.” The record also contains evidence that Malloy is older, wealthy, and has family and business connections outside of Georgia, connections that may provide him refuge or aid. Given that some record evidence supports the court’s decision to deny Malloy an appeal bond, we cannot say that the trial court manifestly abused its discretion. See Williford v. State, 218 Ga. App. at 524.

2. Malloy’s motion to expedite this appeal is denied as moot.

Judgment affirmed.

Phipps, C. J., concurs. McMillian, J., concurs in judgment only.

       OCGA § 49-4-146.1 (b) (2) makes it unlawful for any person or Medicaid provider “knowingly and willfully to accept medical assistance payments to which he or she is not entitled or in an amount greater than that to which he or she is entitled or knowingly and willfully to falsify any report or document required under this article.”

       Although the case below is pending, making the instant order interlocutory, “the present practice is that a direct appeal from an order denying appeal bond should be considered on the merits.” (Citation omitted.) Wade v. State, 218 Ga. App. 377, 378 (1) (461 SE2d 314) (1995).

       Because Malloy’s conviction for fraud is not among those offenses listed in OCGA § 17-6-1 (g), he is eligible for an appeal bond.

       The trial court is not required to make findings of fact supporting its decision. Rather, the court is only required to affirmatively find in its order the existence of one of the four factors outlined above. See Moore v. State, 151 Ga. App. at 414-415.

       The court did not address any of the other factors relevant to the decision to deny an appeal bond. Consequently, whether the court’s decision also may be sustainable on another ground is not properly before this Court.


text:
    A14A1479.
    GOODRICH v. BANK OF AMERICA, N.A.
    (762 SE2d 628)
   BARNES, Presiding Judge.

Marilyn E. Goodrich sued Bank of America, N.A., on December 1, 2011 to enjoin the then-pending foreclosure on her property. The litigation has followed a long and tortuous path through the courts, and is now before us on Goodrich’s direct appeal of the dismissal of her previous appeal for failure to pay costs. Goodrich has filed separate cases in federal court on her wrongful foreclosure claim and in superior court on her wrongful dispossessory claim. In this case Goodrich sought an injunction against the foreclosure, but because the foreclosure was completed more than two years ago, the issue is moot. Accordingly, this appeal is dismissed.

Goodrich has filed several appeals in this case. In April 2012, she filed a direct appeal of the trial court’s March 15, 2012, order requiring her to pay past-due mortgage payments into the court registry before the court would entertain her petition for an injunction. Acting upon the bank’s motion, the trial court dismissed that appeal in October 2012 on the ground that Goodrich should have obtained a certificate of immediate review and filed an application for interlocutory appeal under OCGA § 5-6-34 (b) rather than a direct appeal.

Goodrich then filed an application for a discretionary appeal. Because the dismissal of an appeal by a trial court is directly appealable, Castleberry’s Food Co. v. Smith, 205 Ga. App. 859, 860 (424 SE2d 33) (1992), this court granted the application and directed Goodrich to file a notice of appeal with the trial court within ten days if she had not already done so. Consequently, Goodrich filed a notice of direct appeal with the trial court on December 5, 2012. In May 2013, the bank moved the trial court to dismiss Goodrich’s notice of appeal for failure to pay costs. After a hearing in September 2013, the trial court granted the bank’s motion to dismiss the appeal on October 9, 2013, finding that Goodrich had failed to pay costs and failed to rebut the presumption that her delay of more than eight months in paying costs was unreasonable and inexcusable.

Goodrich then filed a notice of appeal from the trial court’s order dismissing her appeal, designating a list of pleadings for inclusion in the record. She filed amended notices of appeal on October 30, 2013, and November 14, 2013. Then, on December 4, 2013, Goodrich filed her fourth amended notice of appeal, this time to the Supreme Court of Georgia instead of the Court of Appeals. She stated in the notice that the trial court’s orders “changed the jurisdiction from the GA Court of Appeals to the GA Supreme Court because of the issue of access to the Appellate Courts found in the GA Constitution Bill of Rights Article I, Section I, Paragraph XII.” She directed the trial court clerk to omit everything from the record except her notices of appeal and a transcript of the hearing on March 15, 2012, because she had filed a Record Appendix with the Supreme Court of Georgia.

In March 2014, the Supreme Court of Georgia transferred Goodrich’s appeal to this court by order, holding that even if Goodrich’s allegation — that the lower court was denying her access to the appellate courts — was true, the Supreme Court had no jurisdiction over the appeal because the issue was not raised or ruled on at the trial court level. This appeal was thus docketed in this court on April 15, 2014.

Goodrich has enumerated ten errors challenging the propriety of the trial court’s March 15, 2012 order requiring Goodrich to pay past-due mortgage payments into the court registry or its order dismissing her October 2012 appeal, the merits of the bank’s assignment of the note secured by Goodrich’s property, the denial of her motion to consolidate this case with the dispossessory case, the validity of the court’s electronic signature on an order, and the court’s failure to set a hearing “to determine the contents of the Record to be forwarded to [the] Appellate Courts.” Before we consider whether these enumerations have merit, we must first consider the bank’s motion to dismiss this appeal as moot.

“It is a rather fundamental rule of both equitable jurisprudence and appellate procedure, that if the thing sought to be enjoined in fact takes place, the grant or denial of the injunction becomes moot.” Jackson v. Bibb County School Dist., 271 Ga. 18, 19 (515 SE2d 151) (1999); Adams v. Smith, 240 Ga. 436, 437 (241 SE2d 1) (1978). “Acase is moot when its resolution would amount to the determination of an abstract question not arising upon existing facts or rights. To prevent such an appeal from becoming moot the appealing party must obtain a supersedeas” to stay the transaction. (Citations and punctuation omitted.) Brown v. Spann, 271 Ga. 495, 496 (520 SE2d 909) (1999).

In her initial complaint, Goodrich sought to enjoin the foreclosure of her property, arguing that errors in the assignment of the security deed and note should prevent the bank from being a party to the foreclosure. She asked for no other relief. She obtained a temporary protective order, and upon the bank’s motion to dissolve the protective order or require her to pay the past-due mortgage payments into the court registry, the trial court ordered the latter by April 2, 2012, and held the petition for an injunction “in abeyance” until the parties returned for a hearing on April 3,2012 to address the status of the payments. Goodrich did not make payment into the court registry, instead filing a notice of appeal on April 3, 2012. Goodrich filed a motion on April 11, 2012, to set aside the foreclosure that took place after 10:00 a.m. on April 3, 2012, arguing that “Cobb County did not have jurisdiction in this matter at the time of the auction” because she had filed a notice of appeal at 9:48 a.m. that morning. She also argued that the bank was not a secured creditor because of the allegedly improper assignment and that the bank had no equitable claim because it made a demand for full payment of the loan knowing that the trial court had ordered her to pay less than that into the court registry.

Goodrich has been attempting to appeal the trial court’s March 15, 2012 order since April 3, 2012. But the only relief she requested in her initial complaint was to enjoin the foreclosure. Further, Goodrich stated both in her initial brief to this court and in her response to the bank’s motion to dismiss that she has a case pending in federal court for wrongful foreclosure, which she filed on January 23, 2013, “because of delays caused by Bank of America” in this case. The federal court has abstained from ruling further and suspended discovery, according to Goodrich, but that case may be re-opened per order of the district court judge once this case has completed its journey through the state court system.

We agree with the bank that the questions presented in this appeal are moot because the foreclosure Goodrich sought to enjoin has already taken place. While Goodrich argues in her response to the motion to dismiss that other issues remain, a review of her initial petition confirms that, while Goodrich raised arguments about the validity of the bank’s loan assignment, the only relief she sought was an injunction. This issue is therefore moot, and this appeal is therefore dismissed. See Faulkner v. Ga. Power Co., 241 Ga. 618, 621 (247 SE2d 80) (1978) (appeal moot because “no injunction pending appeal was sought and the act sought to be restrained was completed during the pendency of the appeal”); Cotton v. First Nat. Bank of Gwinnett County, 235 Ga. 511, 512 (220 SE2d 132) (1975) (“[T]he injunctive relief sought by plaintiffs, and which was denied by both courts, was to stop the foreclosure. The foreclosure sale has taken place. Thus, the very event sought to be restrained from happening has in fact occurred.”); Brown v. Auchmuty, 232 Ga. 879 (209 SE2d 209) (1974) (appeal dismissed because construction of house appellant sought to enjoin had been completed).

Appellant’s motion to dismiss the appeal as moot is hereby granted.

Appeal dismissed.

Boggs and Branch, JJ., concur.

Decided August 15, 2014

Reconsideration denied September 10, 2014

Marilyn E. Goodrich, pro se.

McCalla Raymer, J. Thomas Howell, Gregory S. Krivo, for appellee.

       Goodrich’s “motion for determination of jurisdiction” regarding her claim that she was denied access to the appellate court when the trial court twice dismissed her notices of appeal, “motion to correct docketing clerical error” regarding the identity of counsel for the bank, and motion to supplement the record are hereby denied.