author: Adams, Judge. MCFADDEN, Judge,

text:
    A12A0393.
    ROSE et al. v. WALDRIP.
    (730 SE2d 529)
   Adams, Judge.

Linda Rose (“Linda”) and Joy Garcia (“Joy”) appeal the trial court’s order of declaratory judgment in an action filed by “Colleen Waldrip [‘Colleen’] as Administrator with Will Annexed of the Estate of Lee R. Waldrip [‘Waldrip’].” In that order, the trial court enforced the “after-acquired property” clauses contained in a “Revocable Living Trust” agreement (the “Trust Agreement”) establishing the “Lee R. Waldrip Living Trust Dated April 29, 2002” (the “Trust”) and in its contemporaneous Comprehensive Transfer Document (the “CTD”). The trial court found that the language in these clauses alone was sufficient to convey Waldrip’s entire estate into the Trust. We disagree for the reasons set forth below.

Lee R. Waldrip, who died on March 10, 2008, was Linda’s father and Joy’s grandfather. Colleen was his widow but apparently is not otherwise related to Linda and Joy. Colleen was named the primary beneficiary of the Trust as amended. Although earlier versions of the Trust also gave Linda an income of $1,000 per month per life, a second amendment to the Trust dated January 10, 2005, eliminated that provision and gave Linda a one time payment of $1,000. Linda and Joy, however, were named beneficiaries of a will Waldrip executed on January 1, 2008 (the “Will”), which provided for the funding of a trust to furnish Linda with an annual lifetime annuity (the “Linda Trust”) and also excused certain indebtedness Joy owed her grandfather.

At issue in this case is whether the Trust Agreement and the supporting documents that Waldrip executed on April 29, 2002, six years prior to the Will, had the effect of placing all of Waldrip’s property in Trust and removing it from his estate. The Trust Agreement created the Trust and named Waldrip as the trustee and primary beneficiary. In executing the Trust Agreement, Waldrip undertook “to execute and deliver all deeds, assignments, bills of sale, written instructions and other legal documents necessary to convey and register all of my assets that I choose to place in trust under this trust____” The agreement indicates that Waldrip was transferring to the Trust his assets evidenced by titles or deeds as contained in an attached Schedule A. That schedule lists “all bank accounts, all stocks, all bonds, all accounts receivable, all business assets, all real estate, all motor vehicles, all personal property, and all assets of any kind and wherever located.” The schedule notes that this list was illustrative only and should “in no way be construed to limit the number or amount of assets held by this living trust.”

The Trust Agreement also indicated that Waldrip was transferring the following assets to the Trust:

all assets not requiring titles or deeds, including but not limited to my furniture, wearing apparel, and personal possessions. Additionally, [Waldrip was then] holding and will hold, solely and exclusively for and on behalf of such trust, the following: any and all properties of all kinds, whether presently owned or hereafter acquired including, without limitation: bank accounts, certificates of deposit, mutual and money market funds of all kinds, securities, agency and custody accounts, notes and real estate wherever located.

(Emphasis supplied.) The Trust Agreement reiterated that “[a]ll such property is hereby transferred to and the same shall be owned by such trust” and further provided that

[t]his declaration shall apply even though record ownership or title, in some instances, may, presently or in the future, be registered in my individual name, in which event such record ownership shall hereafter be deemed held in trust even though such trusteeship remains undisclosed.

(Emphasis supplied.)

Contemporaneously with the Trust agreement, Waldrip also executed the CTD, which contained similar language transferring Waldrip’s assets to the Trust, whether currently owned or later acquired:

The undersigned hereby declares that solely as trustee of and for the benefit of the [Trust]... and under the provisions of the [Trust Agreement], the undersigned is now holding and will hold, solely and exclusively for and in behalf of such trust, the following: any and all properties of all kinds, whether presently owned or hereafter acquired... including, without limitation...: bank accounts, certificates of deposit, mutual and money market funds of all kinds, securities, agency and custody accounts, notes, real estate wherever located . . . jewelry, antiques, and any and all other assets wherever located.

(Emphasis supplied.) The CTD also contains the same language found in the Trust Agreement providing that Waldrip’s declaration applies even if the assets are held in his name individually, “in which event such record ownership shall hereafter be deemed to be held in trust even though such trusteeship remains undisclosed.”

The same day, Waldrip also executed a Bill of Sale granting to himself as trustee his interest “in all tangible personal property,” and defining such property to include, “without limitation,... such items as articles of personal property and household use which [Waldrip] presently owns or hereafter acquires (regardless of the means by which acquired or the record title in which held)” and providing an illustrative list, without limitation, of such personal property.

Colleen subsequently filed this declaratory judgment action to ascertain what assets, if any, remained in Waldrip’s estate in light of the broad after-acquired property language in the Trust documents. Linda and Joy answered and counterclaimed to assert their rights under the Will, contending that the Waldrip estate had sufficient assets to fund Linda’s trust and seeking an accounting from Colleen. After establishing the Trust, Waldrip apparently executed the necessary paperwork to transfer certain property into the Trust, but Linda and Joy allege that at the time of his death, not all of his property had been so transferred, and they argue that this property should have been used to fund the bequests in the Will.

During the course of the litigation, the trial court issued an order finding that the parties had agreed during an October 20, 2010 motion hearing to submit the matter to a bench trial pursuant to OCGA § 9-11-39. The trial court found that the parties had also agreed to present evidence and argument to the court through briefs and affidavits. The trial court concluded that only one issue remained for its consideration:

The sole issue for decision by the Court is whether that certain Comprehensive Transfer Document (the “CTD”), as amended, was legally effective and operated to vest in the Trust all properties acquired by Lee R. Waldrip acquired after the execution of the CTD, regardless of the names by which Lee R. Waldrip acquired the properties. In a later order, the trial court stated that the parties, in fact, had consented and stipulated “that the sole decision was whether a certain comprehensive transfer document executed by ... Waldrip on April 29, 2002 was legally effective and operated to vest in the [Trust] all of the properties acquired by . . . Waldrip after the execution thereof.”

After considering the parties’ arguments and evidence, the trial court found (1) that Waldrip intended that “all property acquired by him after the creation of the trust... become a part of the trust”; and (2) that the after-acquired property provisions of the Trust documents were enforceable under Georgia law.

1. “The trial court is the trier of fact in a bench trial, and its findings will be upheld on appeal if there is any evidence to support them. The plain legal error standard of review applies where the appellate court determines that the issue was of law, not fact.” (Citations and punctuation omitted.) Hong Investments v. Sarsfield, 312 Ga. App. 82 (717 SE2d 679) (2011). Applying this standard, we must uphold the trial court’s determination that Waldrip intended to transfer all his property to the Trust if there is any evidence to support it, but we review de novo the trial court’s conclusion that the Trust’s after-acquired property provisions effectively fulfilled this intention under the applicable law.

(a) Intent — “Broadly speaking, the terms of a trust are whatever the settlor [] intended them to be at the time of the creation of the trust, so long as those terms are permitted by law.” (Citation omitted.) Heiman v. Mayfield, 300 Ga. App. 879, 882 (1) (686 SE2d 284) (2009). As with any contract, we look first to the language of the Trust documents themselves to determine Waldrip’s intent. See generally Tadlock v. Tadlock, 290 Ga. App. 568, 573 (2) (660 SE2d 430) (2008) (courts look first to the language of agreement to determine parties’ intent; if the language is plain and unambiguous and the intent is clear, the court need look no further). As quoted above, each of the documents executed by Waldrip on April 29, 2002 contemplates that Waldrip’s after-acquired property will become a part of the Trust. Although as settlor, Waldrip committed to complete all necessary paperwork to transfer his assets into the Trust, the Trust documents each provide that the assets are deemed transferred to the Trust even if they are held in Waldrip’s name individually. And though the provisions of the Will are in conflict with the Trust, we must presume that when Waldrip executed the Will he was aware of the contents of the Trust documents he executed six years earlier. See Brinson v. Martin, 220 Ga. App. 638, 639 (1) (469 SE2d 537) (1996) (party who signs a contract or agreement is presumed to know its contents). We conclude, therefore, that the record contains sufficient evidence to support the trial court’s finding that Waldrip intended at the time he executed the Trust documents that the Trust would encompass his entire estate, including any after-acquired property.

(b) After-Acquired Property Clauses — We must determine, therefore, whether the after-acquired property clauses in the Trust documents were enforceable under the applicable law to effect Waldrip’s intent.

(i) Applicable law — The parties point us to no Georgia law specifically addressing this issue of an after-acquired property clause in a trust, and we could find none. Linda and Joy contend, however, that the trial court erred in determining that the clauses in the Trust documents were effective in and of themselves to transfer all of Waldrip’s later-acquired assets into the Trust because, in some cases, Waldrip failed to follow Georgia’s established legal requirements to effect the transfer of such property. In support of this argument, Linda and Joy rely upon OCGA § 53-12-25 which provides that the “[tjransfer of property to a trust shall require a transfer of legal title to the trustee.” OCGA § 53-12-25 (a). And “[f]or any interest in real property to become trust property in a trust of which any transferor is a trustee, the instrument of conveyance shall additionally be recorded in the appropriate real property records.” OCGA § 53-12-25 (b).

That statute, however, was enacted as part of the Revised Georgia Trust Code of 2010 (the “Revised Code”) and was not a part of the prior code. Thus, this provision did not go into effect until July 1, 2010, Ga. L. 2010, p. 506, § 1, more than eight years after Waldrip executed the Trust documents and more than one year after he died. fl Although the Revised Code expressly applies to any trust regardless fl of the date such trust was created, the code establishes two excep- fl tions: (1) “to the extent [application of the Revised Code] would impair H vested rights” and (2) “except as otherwise provided by law.” OCGA § fl 53-12-1 (b). The Georgia Constitution also “forbids passage of retroactive laws which injuriously affect the vested rights of citizens.” (Citations omitted.) Recycle & Recover, Inc. v. Georgia Bd. of Natural Resources, 266 Ga. 253, 254 (2) (466 SE2d 197) (1996); 1983 Ga. Const., Art. I, Sec. I, Par. X. See also Woodruff v. Trust Co. of Ga., 233 Ga. 135, 140 (2) (210 SE2d 321) (1974) (a statute is impermissibly retroactive when it “creates a new obligation on transactions or considerations already past, or destroys or impairs vested rights”) (Citation omitted.)

An interest becomes vested “when there is an immediate right of enjoyment or a present fixed right of future enjoyment.” (Citations omitted.) Woodruff v. Trust Co. of Ga., 233 Ga. at 141 (2). See also Recycle & Recover, Inc. v. Georgia Bd. of Natural Resources, 266 Ga. at 254 (2) (“ ‘vested rights’ means ‘interests which it is proper for (the) state to recognize and protect and of which (the) individual cannot be deprived arbitrarily without injustice’ ”) (Citations and punctuation omitted.) We conclude that Colleen’s rights were already vested when the Revised Code was enacted because under the terms of the amended Trust Agreement, her rights to the Trust assets took effect upon Waldrip’s death in 2008. Accordingly, any new obligation imposed by the Revised Code that would impair her right to possession cannot be applied retroactively, and OCGA § 53-12-25 would have no application to the Trust if it, in fact, creates such a new obligation.

We must determine, therefore, whether prior to the enactment of the Revised Code, the law required that assets be formally transferred to the trustee or whether the Trust documents alone would be sufficient to bring Waldrip’s property into the Trust. Although we could find no Georgia authority on point, the case of Ladd v. Ladd, 323 SW3d 772 (Ky. App. 2010) is instructive. There, the Kentucky Court of Appeals considered the same issue now before us and determined that a declaration of trust is enough in and of itself to effect a transfer where, as here, the settlor names himself as trustee:

[N]o authority appears to require that a settlor, who also names himself as trustee of a revocable living trust, must convey his property to the trust by separate instrument. To the contrary, all of the authorities support the conclusion that a declaration by the settlor that he holds the property in trust for another, alone, is sufficient.

Ladd v. Ladd, 323 SW3d at 778 (II).

Although the court relied, in part, upon Kentucky law, it noted that the Restatement (Second) of Trusts was in accord. Indeed, Section 17 of the Restatement (Second) provides that a trust may be created by various means including by “a declaration by the owner of property that he holds it as trustee for another person . . . Restatement (Second) of Trusts § 17 (a) (1959). And the comments provide that “[i]f the owner of property declares himself trustee of the property, a trust may be created without a transfer of title to the property.” Id. at cmt. a. Further instruction may be found in the comments to Section 10 of the Restatement (Third) of Trusts (2003), which clarifies that the legal formalities for transfer generally do not apply in such a case:

[T]he law [does not] ordinarily require acknowledgment or recordation, or other formal change in ownership records or documents of title, for the effective creation of the trust. Even additional statutory formalities, such as those applicable to transfers of land requiring that a document be sealed, attested, acknowledged, or recorded, ordinarily are not essential to effect a valid transfer as between transferor and transferee.

Restatement (Third) of Trusts § 10 cmt. c (2003). As the Ladd court noted, the Bogert treatise on trusts provides the reasoning behind this principle, explaining that formal transfer is not required because the settlor already owns the property and merely takes a lesser interest in it when he makes his trust declaration: Ladd v. Ladd, 323 SW3d at 778-779 (II).

Obviously, if [a] trust is to be created by declaration there is no real transfer of any property interest to a trustee. The settlor holds a property interest before the trust declaration, and after the declaration he holds a bare legal interest in the same property interest with the equitable or beneficial interest in the beneficiary. No new property interest has passed to the trustee. The settlor has merely remained the owner of part of what he formerly owned. George Gleason Bogert and George Taylor Bogert, The Law of Trusts and Trustees § 141 (2d ed., West 1979).

We conclude, therefore, that before enactment of the Revised Code, a settlor who declared a trust naming himself as trustee was not required to separately and formally transfer the designated property into the trust. Because OCGA § 53-12-25 requires formal transfer of trust property, while the prior law did not, we conclude that its retroactive application in this case would impermissibly impair Colleen’s property rights in the Trust; therefore, we apply the law as it existed prior to the Revised Code.

(ii) After-acquired property — Turning next to the issue of whether Waldrip’s after-acquired assets also became Trust property under the language of the Trust documents, we conclude that the Trust documents alone are insufficient to bring such assets within the Trust.

For guidance on this issue, we again turn to the Restatement of Trusts, which provides that “[a]n expectation or hope of receiving property in the future cannot be held in trust.” Restatement (Second) of Trusts § 86. The comments to § 86 explain that “[i]f a person . . . purports to declare himself presently trustee of property [that he hopes to acquire in the future] ... , no trust arises even when he acquires the property in the absence of a manifestation of intention at that time.” Id. at cmt. c. Section 41 of the Restatement (Third) of Trusts also provides that “[a]n expectation or hope of receiving property in the future, or an interest that has not come into existence or has ceased to exist, cannot be held in trust.” (Emphasis supplied.) The comments to that section acknowledge that “[a] person can make a promise to create a trust of an interest in [property not yet owned] should it thereafter be acquired, but such an agreement is not binding unless the requirements of the law of contracts are satisfied.” Restatement (Third) of Trusts, § 41, cmt. b. Thus, where a settlor receives consideration for his declaration of trust on a property not yet owned, “the purported declaration... is treated as a contract to create a trust even though it is worded as a present declaration. . . .” Id. at cmt. c. But without such consideration, no enforceable promise arises, and the Court must examine whether the settlor later confirmed his prior intent to hold such property in trust or otherwise manifested such an intent. See 3 ALR3d 1416 § 11 [a] — 11 [b] (1965). Where a settlor formally conveys his later acquired property to the trust, his intent is manifest, but for those properties where no such formal transfer occurred, we conclude that a court must explore the circumstances surrounding each such property to determine whether the settlor intended it to become part of the Trust:

[T]he position of the Restatement concerning whether the settlor’s mere silence at the time of the acquisition of the property establishes his continuing intention to have the property be property of the trust is that resolution of the question depends upon the circumstances of the particular case. Restatement (Second) of Trusts § 26 (1959) and § 86 cmt. c (1959).

Ladd v. Ladd, 323 SW3d at 779 (III).

Accordingly, we reverse the trial court’s declaratory judgment to the extent that it found that all of Waldrip’s later-acquired assets became a part of the Trust based upon the after-acquired property clauses alone, and we remand the matter to the trial court for further proceedings in accordance with this opinion. We also reverse the trial court’s denial of the motion to compel discovery filed by Linda and Joy and remand for further consideration of the motion in light of this opinion.

2. Linda and Joy also argue that the trial court erred in finding that they stipulated that the only issue that remained for the trial court’s consideration was the validity of the after-acquired property clauses. They assert that they never agreed to limit the trial to this single issue. Linda submitted an affidavit stating that she did not attend the October 20 hearing because she believed it would address only an outstanding discovery motion and that she did not authorize her attorneys to waive any issues for trial. But under Uniform Superior Court Rule 4.12, “[attorneys of record have apparent authority to enter into agreements on behalf of their clients in civil actions.” And where no notice has been provided indicating that an attorney’s authority has been terminated, or otherwise limited, others may rely upon the attorney’s apparent authority to bind the client. See Speed v. Muhanna, 274 Ga. App. 899, 904 (1) (619 SE2d 324) (2005). No evidence exists that Linda and Joy ever provided notice limiting their attorneys’ authority. And although their attorneys submitted affidavits asserting that they did not agree to waive or limit any issues at the October 20 hearing, “in the absence of a transcript of the [hearing], we must presume that the evidence supports the trial court’s findings.”Blue v. Blue, 279 Ga. 550 (1) (615 SE2d 540) (2005). See also Terry v. Burley, 312 Ga. App. 860, 860 (1) (720 SE2d 309) (2011).

Decided July 12, 2012

David C. Jones, Jr., for appellants.

Stewart, Melvin & Frost, Frank Armstrong III, for appellee.

Judgment affirmed in part and reversed and remanded in part.

Barnes, P. J., concurs. McFadden, J., concurs fully in Division 1 and specially in Division 2.

MCFADDEN, Judge,

concurring fully in Division 1 and concurring specially in Division 2.

I concur fully in Division 1. As to Division 2,1 do not agree with all that is said and therefore concur specially. I note that the matter now returns to the trial court, who will have the authority to revisit the stipulations and their significance in light of the further proceedings required on remand.

       This Court has jurisdiction in this case because “the sole issue presented on appeal is how to interpret a specific provision of a legal document - the [“after acquired property” provision in Waldrip’s] trust,” and “[t]hat is a straightforward legal question, one that does not require ‘any analysis that could be termed an evaluation of equitable considerations.’ ” (Citations omitted.) Durham v. Durham, 291 Ga. 231, 235 (728 SE2d 627) (2012).

       “ ‘Settlor’ means the person who creates the trust, including a testator in the case of a testamentary trust.” OCGA § 53-12-2 (11).

       Although the attorney who drafted the Will submitted an affidavit stating that Waldrip never told him about the Trust, that evidence was insufficient to overcome this presumption.

       OCGA § 53-12-1 (a) et seq.

       Nevertheless, the Restatement comments note that a settlor may choose “for practical reasons” to follow the formalities for transfer to perfect the rights as to third parties. And “[a]s long as the trust is effectively established, however . . . these steps may he taken later by the settlor or may be accomplished, following the settlor’s death or incompetency, by court order or other procedures appropriate to the circumstances and applicable law or practice.” (Emphasis supplied.) Id.

       Georgia courts repeatedly rely upon the various Restatements of Trusts and the various editions of Bogert’s treatise in addressing trust issues in this state. See, e.g., McPherson v. McPherson, 307 Ga. App. 548 (705 SE2d 314) (2011) (Restatement (Third)); Citizens & Southern

        Nat. Bank v. Haskins, 254 Ga. 131 (327 SE2d 192) (1985) (Restatement (Second) and Bogert).

       Cf. Meeks v. Kirkland, 228 Ga. 607 (1) (187 SE2d 296) (1972) (mere expectation of interest in living parent’s land not a part of husband’s estate out of which an allowance of alimony could be made); Land v. State, 103 Ga. App. 496, 497 (1) (119 SE2d 809) (1961) (legal interest and not mere claim or expectation of interest required to support allegation of ownership of property wrongfully converted in charge of larceny).


source: Caselaw Access Project

author: Dillard, Judge.

license: Public Domain

text:
    A12A0466.
    WILLIAMS v. THE STATE.
    (730 SE2d 541)
   Dillard, Judge.

Following a jury trial, Dante Pierre Williams was convicted of armed robbery, three counts of aggravated assault with a deadly weapon, burglary, and two counts of possession of a firearm during the commission of a crime. On appeal, Williams challenges the sufficiency of the evidence to support his convictions. Williams further contends that the trial court erred by denying his request to charge on identity; denying his motion to suppress evidence found in a car which he was driving; admitting evidence of two photo lineups; denying his motion for severance; and failing to merge his two convictions of possession of a firearm during the commission of a crime. We find no error and affirm Williams’s convictions on the grounds asserted. As set forth infra in Division 6, however, because one of Williams’s convictions of aggravated assault merged with his armed-robbery conviction as a matter of law, we remand this case to the trial court to vacate that conviction and resentence Williams in accordance with this opinion.

Viewed in the light most favorable to the jury’s verdict, the evidence shows that on the afternoon in question, Williams and his co-defendant, Kinard Hall, went to the apartment of the victims, Alisha Paul and Percy Burdine. As Paul opened the door, Williams and Hall, both armed, forced their way into the apartment. The men ordered Paul to sit on the couch. Williams, brandishing a shotgun, remained with Paul. Hall, brandishing a handgun, proceeded to the master bathroom, where he placed his weapon directly into Burdine’s face and demanded to know “[w]here the shit at?” Understanding Hall to be referring to valuable musical equipment that had previously been stored in the apartment, Burdine informed him that it was no longer there.

At some point, Hall became temporarily distracted and directed his attention toward the front door, at which time Burdine jumped through the bedroom window to escape. Williams and Hall then ran from the apartment. On the way out the door, Hall took the victims’ Xbox game console.

Hearing the commotion, Paul’s brother, who lived in the apartment directly across the hall, opened the door to see what was happening. One of the gunman ordered him to “[g]et back inside,” and then Hall fired a gunshot through the door. Williams and Hall ran from the apartment complex onto a wooded path leading to a second housing development, where they were observed leaving in a white vehicle.

During the ensuing investigation, Paul, Burdine, and Paul’s brother identified Hall by name as one of the perpetrators. Paul reported that the second gunman was shorter and darker skinned than Hall and wore black clothing. A separate witness described seeing the two gunmen — one taller, one shorter, one lighter, one darker, one of whom was wearing a dark jacket with an orange interior and a fur-lined hood, and the other wearing all black — flee in a white vehicle.

Law-enforcement officers obtained an arrest warrant for Hall and, after failing to locate him at his last-known address, proceeded the following day to the apartment complex where it was believed Hall resided with his girlfriend. As the officers were in the parking lot of the complex, Williams and Hall drove up in a vehicle matching the description given by the eyewitness. Having previously seen a picture of Hall, the officers recognized him immediately and conducted a stop of the vehicle. Hall was formally arrested, and Williams was temporarily placed in handcuffs.

The officers saw in plain view two dark jackets, one with an orange interior and fur lining, sitting on the back seat of the vehicle and seized them. They proceeded to search the vehicle as well as the apartment, but did not find the stolen Xbox. Consequently, although Williams matched the physical description of the second gunman as given by Paul and the other witness, the officers took a photograph of him for the purposes of creating a photo lineup, and released him. Paul subsequently identified Williams as the second gunman from the photo lineup.

A witness who lived in the same apartment complex as Paul and Burdine told the investigating officers that prior to the robbery, Hall and a friend had come to his apartment in a white car and Hall was asking questions about Burdine. Specifically, Hall asked the witness if Burdine was doing well financially, and also inquired as to the wooded path running behind the complex. The witness subsequently identified Williams from the photo lineup as being the man that was with Hall at the time of the exchange.

Williams was arrested, and both Williams and Hall were tried jointly and convicted of each of the crimes charged. This appeal by Williams follows.

1. Williams makes a general challenge to the sufficiency of the evidence. Contrary to his assertion, however, the evidence set forth above was sufficient to sustain his convictions of armed robbery, three counts of aggravated assault with a deadly weapon, burglary, and two counts of possession of a firearm during the commission of a crime. Although Williams contends that the evidence against him was purely circumstantial, Paul’s identification of him as the second gunman during the photographic lineup constitutes direct evidence of his guilt.

2. Williams next argues that the trial court erred in denying his request to charge on the issue of identity. The trial court gave the following charge:

Identity is a question of fact for you to determine. Your determination of identity is dependent upon the credibility of the witness or witnesses offered for this purpose. You should consider all the facts and circumstances charged with you regarding the credibility of witnesses.
It is for you to say whether or not the evidence in this case — under the evidence in this case, the testimony of the witnesses and the facts and circumstances of the case sufficiently identify this Defendant or these Defendants beyond a reasonable doubt as the perpetrator or perpetrators of the alleged crime, or that the Defendant or Defendants was or were a party to it. It is not necessary that the Defendants... show that another person committed the alleged offense.
If you do not believe that the Defendants have been sufficiently identified as the persons who committed the alleged crime or what was or were a party to it, or if you have any reasonable doubt about such, then it would be your duty to acquit the Defendants.
The burden of proof rests upon the State to prove beyond a reasonable doubt the identity of these Defendants as the persons who committed the crime alleged in this bill of indictment.

Williams does not challenge the accuracy of the charge given (indeed, he requested it), but instead contends that the trial court erred in denying his request to further instruct:

Some, but not all, of the factors you may consider in assessing reliability of identification are:
(1) the opportunity of the witness to view the alleged perpetrator at the time of the alleged incident;
(2) the witness’s degree of attention toward the alleged perpetrator at the time of the alleged incident;
(3) the possibility of mistaken identity;
(4) whether the witness’s identification may have been influenced by factors other than the view that the witness claimed to have; and
(5) whether the witness on any prior occasion did not identify the defendant in this case as the alleged perpetrator.

It is error to refuse to give a charge only when the request is “a correct statement of law that is pertinent and material to an issue in the case and not substantially covered by the charge actually given.” On review of the trial court’s refusal to give a requested charge, we apply the abuse-of-discretion standard.

As given, the trial court “fully covered the issues of identification, mistaken identity and reasonable doubt.” The jury was informed that it was required to determine whether the eyewitness identification was sufficiently reliable to satisfy the State’s burden of proving that Williams was the perpetrator of the crimes alleged based upon its assessment of the credibility of the witnesses and the facts and circumstances presented. It was not error for the trial court to deny Williams’s request to give a consistent, but more detailed, charge directing the jury as to what factors they could consider in making that assessment. As such, we find no abuse of discretion.

3. Williams argues that the evidence obtained from the search of the vehicle should have been suppressed as the product of an illegal search. We disagree.

The search of the vehicle, and the evidence obtained, was authorized as a search incident to a lawful arrest. At the time that the officers conducted a stop of the vehicle, they had an active arrest warrant for Hall, whom they recognized, and who was with an individual matching the physical description of the second gunman, driving in a vehicle similar to one seen leaving the crime scene. Prior to entering the vehicle, the officers viewed clothing on the back seat, which they readily observed matched the description given to them of the clothing worn by the two gunmen at the time of the crime. As the Supreme Court of the United States recently reiterated, the search of a vehicle incident to a lawful arrest is justified when “it is reasonable to believe the vehicle contains evidence of the offense of arrest.” Under these circumstances, it was infinitely reasonable for the officers to believe that the vehicle possibly contained evidence of the crime under investigation.

4. Williams next argues that the trial court erred in failing to suppress the identification evidence because the lineup procedure was impermissibly suggestive. He specifically argues that an officer told Paul that the photographic lineup contained the second suspect.

First, we note that the appellate record does not contain a transcript of the motion-to-suppress hearing or the audio recording of the photographic lineups. Regardless, even assuming that the officer did indicate to Paul that the lineup contained a photograph of the second suspect as alleged, it does not render the identification procedure impermissibly suggestive. Rather, an identification procedure is impermissibly suggestive “when it leads the witness to an all but inevitable identification of the defendant as the perpetrator” of the crime. And here, there was nothing about the identification procedure that would have inevitably led Paul to identify Williams as the gunman. The lineup consisted of photographs of six males, all of whom were the same race, appeared to be approximately the same age, and had similar hairstyles, facial hair, and facial features. Thus, no one photograph stood out from the others. It follows then, that the trial court did not err in concluding that the identification procedure was not impermissibly suggestive and in denying Williams’s motion to suppress.

5. Williams further argues that the trial court erred in denying his motion for severance. Williams’s argument is unavailing.

A trial court has broad discretion when determining whether to sever the trials of co-defendants. When making its assessment, the trial court should consider “(1) the likelihood of confusion of the evidence and law; (2) the possibility that evidence against one defendant may be considered against the other defendant; and (3) the presence or absence of antagonistic defenses.”

In the case sub judice, Williams does not assert a likelihood of confusion or an antagonistic defense, but argues only that he was prejudiced by the strength of the identification evidence against Hall. But it is not enough for the defendant to show “that he would have a better chance of acquittal at a separate trial or that the evidence against a co-defendant is stronger.” Rather, the defendant must show clearly “that a joint trial prejudiced his defense, resulting in a denial of due process.” Williams has made no such showing, and therefore the trial court did not err in denying his motion for severance.

Decided July 12, 2012.

Louis M. Turchiarelli, for appellant.

6. Finally, Williams asserts that the trial court erred in failing to merge his two convictions of possession of a firearm during the commission of a crime. This issue has been decided adversely to Williams by the Supreme Court of Georgia. In State v. Marlowe, the Court held that when “multiple crimes are committed together during the course of one continuous crime spree, a defendant may be convicted once for possession of a firearm during the commission of a crime as to every individual victim of the crime spree.” Because this crime involved two victims and two separate weapons, the trial court did not err in failing to merge the two convictions.

As we held in the case of Williams’s co-defendant, however, Williams’s conviction for aggravated assault against Paul should have merged into his armed-robbery conviction. We therefore remand this case to the trial court with direction that it vacate Williams’s conviction and resentence for the armed robbery of Paul. We affirm in all other respects.

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

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

Garry T. Moss, District Attorney, Patricia G. Hull, Cliff Head, Assistant District Attorneys, for appellee.

        See Powell v. State, 310 Ga. App. 144, 144 (712 SE2d 139) (2011).

       Because Williams was jointly tried with Einard Hall, the factual discussion of this case relies heavily upon those facts laid out in our prior opinion involving the appeal of Hall. See Hall v. State, 313 Ga. App. 66 (720 SE2d 181) (2011).

       Trior to the date of the crimes, Hall dated Paul’s mother and lived in the apartment with Paul and Burdine.

       Hall’s girlfriend and her two children were in the back of the vehicle.

        See OCGA § 16-8-41 (a) (“A person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon .. . .”).

        See OCGA § 16-5-21 (a) (2) (“Aperson commits the offense of aggravated assault when he or she assaults... [wjith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury . . . .”). A person commits an assault when he or she “[cjommits an act which places another in reasonable apprehension of immediately receiving a violent injury.” OCGA § 16-5-20 (a) (2).

        See OCGA § 16-7-1 (a) (“A person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another . . . .”). This statute has since been amended, however the amendment is not applicable to this case or relevant to this appeal. See 2012 Ga. Laws 709.

        See OCGA § 16-11-106 (b) (1) (“Any person who shall have on or within arm’s reach of his or her person a firearm . . . during the commission of. .. [a]ny crime against or involving the person of another . .. and which crime is a felony, commits a felony. . . .”).

        See Johnson v. State, 236 Ga. App. 252, 256 (3) (511 SE2d 603) (1999); see also OCGA § 24-4-8 (“The testimony of a single witness is generally sufficient to establish a fact.”); Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Walton v. State, 272 Ga. 73, 75 (4) (526 SE2d 333) (2000) (punctuation omitted); see Turner v. State, 314 Ga. App. 263,264 (1) (724 SE2d 6) (2012) (“Arefusal to give a requested jury charge is not error unless the request is entirely correct and accurate; is adjusted to the pleadings, law, and evidence; and is not otherwise covered in the general charge.” (punctuation omitted)).

        See Turner, 314 Ga. App. at 263-64 (1).

        Shepherd v. State, 234 Ga. 75, 77 (2) (214 SE2d 535) (1975); see Hightower v. State, 225 Ga. 681, 682-83 (2) (171 SE2d 148) (1969); Strickland v. Mayor & Council of City of Athens, 111 Ga. App. 280, 280 (2) (141 SE2d 594) (1965); see also Payne v. State, 248 Ga. App. 158,161 (3) (a) (545 SE2d 336) (2001) (“The failure to give requested instructions in the exact language requested is not a ground for new trial where the charge given substantially covers the same principles.”).

       We note that the factors contained in the requested charge originated from Neil v. Biggers, 409 U. S. 188, 199-200 (III) (93 SC 375, 34 LE2d 401) (1972), and provide guidance in determining whether an impermissibly suggestive identification procedure resulted in a substantial likelihood of irreparable misidentification. As discussed in Division 4, infra, the trial court held that the identification procedure in this case was not impermissibly suggestive. Regardless, nothing prevented Williams’s counsel from arguing those factors to the jury.

        See Taylor v. State, 272 Ga. 744, 746 (1) (534 SE2d 67) (2000) (“The trial court’s charge, as actually given, was full and fair and substantially covered all the legal principles relevant to the determination of appellant’s guilt.” (punctuation omitted)); see also Petty v. State, 283 Ga. 268, 271 (4) (658 SE2d 599) (2008) (trial court did not err in denying request to charge when the given charge otherwise covered the correct legal principles); Turner, 314 Ga. App. at 265 (1) (same).

        Arizona v. Gant, 556 U. S. 332, 351 (VI) (129 SC 1710, 173 LE2d 485) (2009); accord Hawkins v. State, 290 Ga. 785, 786 (723 SE2d 924) (2012).

        See Hawkins, 290 Ga. at 787-88.

       To the extent that Williams also argues that the pretrial identifications by Paul and the second witness, both of which occurred prior to Williams being arrested or charged, should be suppressed because he was not represented by counsel, his argument lacks merit. See Mitchell v. State, 236 Ga. 251, 255 (2) (223 SE2d 650) (1976) (“There is no constitutional right to counsel at a pre-indictment lineup.”); Brown v. State, 160 Ga. App. 226, 226 (1) (286 SE2d 487) (1981) (holding that the trial court’s failure to suppress evidence of the lineup was not error because “[t]he defendant did not have a right to have counsel present unless he has been formally charged with a crime”); see also Godbee v. State, 232 Ga. 259, 262 (206 SE2d 432) (1974).

       We made several attempts to obtain the transcript from the trial court but were unable to do so, because it appears that the hearing transcript was never filed with that court.

        See Clark v. State, 271 Ga. 6, 13 (7) (b) (515 SE2d 155) (1999) (holding that, although it should be avoided, making “a statement [informing the person viewing the lineup that the suspect is present in it] does not make a lineup impermissibly suggestive [because] the very fact that a lineup is being conducted suggests that a suspect is contained therein”).

        Id. at 12 (7) (b) (punctuation omitted).

       Because we conclude that the lineup was not impermissibly suggestive, we need not consider the factors set forth in Neil v. Biggers, 409 U. S. at 199-200 (III), as to whether there was substantial likelihood of misidentification. See Jones v. State, 303 Ga. App. 366, 367 (1) (693 SE2d 549) (2010) (“We need not consider the issue of irreparable misidentification unless the array is impermissibly suggestive.” (punctuation omitted)).

        See Jones, 303 Ga. App. at 367 (1) (affirming trial court’s holding that a photographic array that contained men of the same race, general age, and similar hair and features was not impermissibly suggestive); Johnson v. State, 290 Ga. App. 255, 260 (2) (659 SE2d 638) (2008) (same).

        See Tillman v. State, 251 Ga. App. 330, 331 (1) (554 SE2d 305) (2001) (‘Whether a motion for severance should be granted rests in the sound discretion of the trial court.”).

        Herbert v. State, 288 Ga. 843, 845 (2) (708 SE2d 260) (2011).

        Herbert, 288 Ga. at 845 (2); see Zafiro v. United States, 506 U. S. 534, 540 (II) (113 SC 933, 122 LE2d 317) (1993).

        Herbert, 288 Ga. at 845 (2); see Howard v. State, 279 Ga. 166,171 (4) (611 SE2d 3) (2005).

        See Herbert, 288 Ga. at 845 (2); Tillman, 251 Ga. App. at 331-32 (1).

       277 Ga. 383 (589 SE2d 69) (2003).

        Id. at 386 (2) (c); see OCGA § 16-11-106 (b) (1).

        See Marlowe, 277 Ga. at 386 (2) (c); OCGA § 16-2-20 (a) (“Every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime.”); see also Davis v. State, 279 Ga. 11, 13 (4) (608 SE2d 628) (2005); Walker v. State, 305 Ga. App. 607, 613 (1) (c) (699 SE2d 902) (2010). Compare Stovall v. State, 287 Ga. 415, 420-21 (5) (696 SE2d 633) (2010) (holding that appellant’s separate convictions on possession of a firearm during the commission of a crime merged when the continuous crime involved only a single victim).

        See Hall, 313 Ga. App. at 68-69; see also Long v. State, 287 Ga. 886, 889 (2) (700 SE2d 399) (2010); Drinkard v. Walker, 281 Ga. 211, 212-13 (636 SE2d 530) (2006).

        See McKenzie v. State, 302 Ga. App. 538, 539 (1), n. 2 (691 SE2d 352) (2010) (“[A] sentence that imposes punishment on two separate convictions that should have been merged is void, and void judgments may be vacated at any time in any court.” (punctuation omitted)); see also OCGA § 17-9-4.


author: BARNES, Presiding Judge.

text:
    A12A0609.
    PHILLIPS v. PHILLIPS.
    (730 SE2d 548)
   BARNES, Presiding Judge.

Misty Gail Phillips filed for divorce from Brandon Kyle Phillips on March 2, 2011 in Cobb County. At the time the couple married, June 3, 2006, Ms. Phillips had a young son, K. B. Mr. Phillips is neither the biological nor the legal father of K. B. During their marriage, the couple had a daughter, K. P. Following a March 22,2011 temporary hearing, the trial court granted the couple joint physical and legal custody of their daughter and granted the mother primary physical custody of K. B. and the father joint legal custody and visitation with K. B. The trial court’s temporary order stipulated that the children “not be around” Timothy White, Ms. Phillips’ boyfriend. On April 25, 2011, Mr. Phillips filed a petition for contempt and for immediate change of custody, alleging that the mother was still living with White, that the children had been exposed to domestic violence in the home, and that the children were concerned for their safety.

At a May 17, 2011 hearing on the petition, the maternal grandmother, Karen Williams Haynes, testified that the Department of Family and Children Services (DFACS) had become involved in the situation because K. B. had bruises on his face. She testified that K. B. was staying with her, and that DFACS would not “open up a DFACS case” if Mr. Phillips had custody of K. B. After hearing all of the testimony, the trial court issued an order on the petition granting primary physical custody of K. P. to the father, and, over the objection of the mother, continuing his joint legal custody and visitation rights with K. B. The trial court also appointed a guardian ad litem, and set another hearing for June 3, 2011.

After the June 3 hearing, the trial court entered a second temporary order which maintained physical custody of K. P. with the father, and continued Mr. Phillips’ custodial and visitation rights with K. B., the mother’s minor son. The mother continued to object to the court’s exercise of jurisdiction over K. B. Another hearing was held on June 17, 2011, at which the guardian ad litem testified that it was in the children’s best interest for Mr. Phillips to have primary custody, and that K. B. was “terrified to return home to his mother while she’s living with . . . White.” She also testified that Fulton County DFACS had an open deprivation case on K. B. and had gotten a shelter care order for him but “would wait and allow this Court to make decisions before acting on anything.” In considering the evidence at the hearing, the trial court stated that it would be

totally unacceptable — a totally untenable position for some Juvenile Court in Fulton County to say, no, I’m going to give [K. B.] to ... [a stranger], who has applied to be a foster parent. And [the stranger] . . . seems like he’d be a good fit with [K. B.]. And for the Juvenile Court... to place this child with [a stranger] would just be laughable. I mean it would be horrific; it would be just a tragedy.

The trial court entered a third temporary order awarding “sole legal and physical custody ”of K. P. and K. B. to Mr. Phillips. The order also provided visitation to Karen Haynes, the intervenor and maternal grandmother.

The court found that there was

clear and convincing evidence that if K. B. was in the custody of his mother, he would be reared under immoral, obscene, and indecent influences which would degrade his moral character and devote him to a vicious life and that therefore, it is in K. B.’s best interests that the temporary custody and control of [K. B.] be awarded to [Mr. Phillips].

The mother filed an application for discretionary appeal in the Supreme Court of Georgia, and that Court transferred the application to this Court after finding that its jurisdiction was not invoked. As appeals from “all judgments or orders in child custody cases, including, but not limited to, awarding or refusing to change child custody” are directly appealable pursuant to OCGA § 5-6-34 (a) (11), we granted the appellant’s interlocutory application, and this appeal ensued. On appeal, the mother contends that the trial court erred in granting sole legal and physical custody of K. B. to Mr. Phillips, that the trial court erred in finding that it had subject matter and personal jurisdiction over K. B., and erred in granting Haynes’s request to intervene.

1. As a threshold matter, appellant, the mother, has not complied with this court’s requirement of specific citation to the record. Court of Appeals Rule 25 (a) (1). “As we have often stated, it is not our function to cull the record on behalf of a party.” Drew v. Istar Financial, 291 Ga. App. 323 (661 SE2d 686) (2008).

2. We will affirm a trial court’s decision on a petition to change custody if there is any reasonable evidence in the record to support it. See Mitcham v. Spry, 300 Ga. App. 386 (685 SE2d 374) (2009). “When reviewing a child custody decision, this [C]ourt views the evidence presented in the light most favorable to upholding the trial court’s order.” (Footnote omitted.) Id.

“Only the mother of a child born out of wedlock is entitled to her custody, unless the father legitimates her as provided in Code Section 19-7-22. Otherwise, the mother may exercise all parental power over the child.” (Punctuation omitted.) Veal v. Veal, 281 Ga. 128 (636 SE2d 527) (2006). Moreover,

before the law can allow a step-parent to seek custody of a child against the wishes of a biological parent, formal legal procedures and concrete legal standards are necessary to safeguard all of the parties’ interests and to impart the seriousness of the obligations being undertaken. The fact that a biological mother has subsequently married a man, even one who has been a laudable stepfather to her child, cannot, under the law, threaten the mother’s custodial rights. The means by which the husband in this case should have established legal paternal ties with [K. B.] was through the formal adoption process. That process is designed to protect the interests of all parties involved, especially the children who are, after all, entirely innocent in these situations.

Id. at 129-130. Likewise, although the trial court in this case went to great efforts in making a factual determination that it was in the best interest of K. B. for Mr. Phillips to have custody,

the former [step] father is not given the same status as a “grandparent, great-grandparent, aunt, uncle, great aunt, greatuncle, sibling, or adoptive parent” under OCGA § 19-7-1 (b.l), [and] the juvenile court is left with no discretion to determine which placement would be in the child’s best interest.

In the Interest of C. L., 284 Ga. App. 674, 676 (1) (644 SE2d 530) (2007). As we have noted,

[o]ur law provides no clear process for resolving this issue, leaving some courts and parties straining to fit the new reality into the old legal structure. This deficiency results in tragedy for some and uncertainty for all. Only the legislature can fix this problem, by addressing how a nonbiological father may seek custody or at least visitation of a child he has raised and to whom he has bonded.

Decided July 12, 2012.

Constance M. Daise, for appellant.

Pugh, Barrett, Canale & Leslie, David A. Canale, Lawrence E. Burke, for appellee.

Id. at 677.

Accordingly, the trial court’s temporary order granting sole legal and physical custody of K. B. to Mr. Phillips is reversed, and the case is remanded for the trial court to award custody to the mother.

3. Appellant’s remaining enumerations are moot.

Judgment reversed and case remanded.

Adams and McFadden, JJ., concur.

       The trial court entered an order granting Haynes’ motion to intervene on June 17,2011.


author: Adams, Judge.

text:
    A12A0784.
    SUN NURSERIES, INC. v. LAKE ERMA, LLC et al.
    (730 SE2d 556)
   Adams, Judge.

Sun Nurseries, Inc. (“Sun”) appeals the trial court’s order directing a partial verdict in its suit for damages arising out of an agreement to provide landscape installation services, material and labor at the Crystal Lake Golf Course (“Crystal Lake”) in Henry County. We affirm for the reasons set forth below.

Sun originally filed suit against Lake Erma, LLC (“Lake Erma”) and BEC Properties and Holdings, LLC (“BEC”) (collectively referred to herein as the “corporate defendants”) to collect on past due invoices for work it performed at Crystal Lake. Sun contended that both BEC and Lake Erma owned and developed Crystal Lake, although BEC disputed any interest in the development. The suit, as amended, asserted claims for breach of contract, quantum meruit, fraud, attorney fees and conversion. Sun subsequently added David Black, J. P. Evans, Mark Conner, W. D. Everitt and Talon Equities, Inc. (“Talon”) as party defendants. Black, Evans, Conner, Everitt and Talon were all owners, operators and members of Lake Erma. Black, Evans and Conner were also members of BEC. BEC shared office space with Lake Erma, and BEC employees performed work for both companies but were paid by BEC.

The evidence at trial showed that sometime in or around 2003, Robert Mitchell Bozzone, Sun’s owner, entered into discussions with Carl Vassallo, a BEC employee, about the possibility of Sun providing landscaping services for the Crystal Lake project. Bozzone later met with Evans and Vassallo to finalize the terms of a verbal agreement for Sun to work on the golf course. Sun apparently provided landscaping services from late 2003 through mid-2005. At the direction of Evans and Vassallo, Sun submitted its invoices for this work to BEC, but Lake Erma issued the checks to pay the invoices. Lake Erma’s records reflect that it paid Sun in excess of $238,000 for the work it performed, but Sun’s records reflect that it received only around $210,700 in payment. At issue in the litigation were a series of six invoices that Sun submitted in 2005, which Sun contends Lake Erma did not pay in full, leaving a balance due of $30,506.88.

Kevin Burke, who performed accounting services for Lake Erma and BEC, testified that he cut a check to pay those invoices (the “First Check”), but it apparently was lost in the mail. Burke told Bozzone that the check had been lost, that he would stop payment on that check and that Lake Erma would issue another one. At trial, Burke did not recall cutting a replacement check, but he acknowledged that Lake Erma could have issued another check that was never signed. In any event, no replacement check was ever sent to Sun. Although Conner was not called as a witness at trial, he previously submitted an affidavit on summary judgment indicating that at some point, he directed that a check in the amount of $30,067.18 made out to Sun (the “Second Check”) be removed from a stack of payments and then asked Burke to set up a meeting with Bozzone. Burke had no recollection of being directed to pull the Sun check from the payment process or of pulling the check himself, but he acknowledged that someone else could have done so.

Sometime in September 2005, while awaiting payment, Bozzone threatened to file a lien on the Crystal Lake property, but he testified that he did not file the lien because Burke told him that Sun would be paid. Then in October 2005, Burke arranged a meeting with Bozzone, Evans and Conner to discuss the outstanding balance. Evans testified that the meeting was called because Conner and he were concerned that Sun was overcharging for the work it performed on the golf course when compared with charges from other subcontractors. Bozzone testified that Conner told him at the meeting that the Crystal Lake project was over budget and that they did not have the money to pay Sun. Conner accused Sun of overbilling. Evans offered to pay Sun $15,000 on the outstanding balance, but Bozzone refused. Bozzone said that he did not believe that Lake Erma was out of money; he just thought that Evans and Conner did not want to pay what was owed.

Sun filed the complaint in this case in February 2006. During discovery, Sun determined from Lake Erma’s 2005 tax return that at some point in 2005, Lake Erma distributed a total of $8,297,003 to its members. Although the tax returns indicate that these were cash distributions, Evans said that the members instead received the distributions in cash and property. For example, Evans testified that although the tax form indicates that he received $2,103,262 from Lake Erma, only $160,000 of that distribution was in cash and the remainder was in property. And in March 2006, Lake Erma transferred 93 lots to Black and Evans, who then used the lots as collateral to secure a $5.216 million loan from First City Bank in Stockbridge (the “Bank”). Black and Evans then transferred the proceeds of the loans and quitclaimed the lots back to Lake Erma. They did not keep any of the proceeds for themselves. Evans testified that this procedure was employed to pull cash flow out of the property to cover the 2005 distributions and for the corporation’s future needs. Evans said that Black and he determined that it was “simpler” to obtain the loan themselves rather than having Lake Erma obtain the loan directly.

At trial, Sun presented the testimony of an accounting expert, who testified, based upon documentation provided by Sun, that Lake Erma’s $8 million distribution rendered the company insolvent as of the end of 2005. On cross-examination, however, the expert admitted that her original analysis had valued Lake Erma’s property holdings using a historical cost basis of $1,028,920, which was the property’s purchase price plus development costs. After reviewing additional documents provided by the defendants, including a sales contract reflecting an actual sale of Crystal Lake lots, the expert was able to establish the market value for Lake Erma’s property in 2005 as being in excess of $6.2 million. Using the market value in her analysis, the expert determined that Lake Erma had sufficient funds to pay its existing liabilities, with an excess of around $586,000 as of the end of 2005. Sun’s expert conceded, therefore, that if the market value of Sun’s property were considered, the company was not insolvent but rather was “marginally solvent.”

At the close of Sun’s case, the defendants moved for a directed verdict on Sun’s claims. The trial court directed a verdict in favor of the individual defendants on all of Sun’s claims and directed a verdict in favor of the corporate defendants on Sun’s claims of fraud and conversion. The matter was submitted to the jury solely on Sun’s claims of breach of contract, quantum meruit and attorney fees against Lake Erma and BEC. The jury returned a verdict in favor of Sun and against Lake Erma and BEC on those claims. No appeal was taken from this verdict or the trial court’s subsequent order reducing the award of attorney fees. Sun appeals solely from the trial court’s orders of directed verdict.

“A directed verdict is authorized only where the evidence, with all reasonable deductions and construed in favor of the nonmovant, demands a particular verdict. OCGA § 9-11-50 (a).” (Punctuation and footnote omitted.) Allen v. Spiker, 301 Ga. App. 893 (689 SE2d 326) (2009). But where “any evidence” or “some evidence” exists to support a jury issue on the non-movant’s claims, a directed verdict is improper. (Punctuation and footnote omitted.) Id. This Court conducts a de novo review on appeal from the grant of a directed verdict, and we will uphold a directed verdict “only if all of the evidence demands it.” (Footnote omitted.) Id.

1. Sun argues that the trial court erred in directing a verdict on its fraud claims. Sun asserts that it presented at least some evidence to show (1) that Burke’s statements to Bozzone that Sun would be paid, especially the statements made after Bozzone threatened to file a lien, were intended to fraudulently dissuade Sun from filing a lien; and (2) that Lake Erma’s $8 million in distributions constituted a fraudulent transfer designed to defeat the rights of its creditors in violation of OCGA § 18-2-74 (a).

Sun bore the burden at trial of presenting sufficient evidence to establish each element of its fraud claims. See Simmons v. Pilkenton, 230 Ga. App. 900, 901 (2) (497 SE2d 613) (1998). “In order to prove fraud, the plaintiff must establish five elements: (1) a false representation by a defendant, (2) scienter, (3) intention to induce the plaintiff to act or refrain from acting, (4) justifiable reliance by plaintiff, and (5) damage to plaintiff.” (Citation and punctuation omitted.) Summit Automotive Group v. Clark, 298 Ga. App. 875, 880 (3) (681 SE2d 681) (2009). And a plaintiffs failure to establish even one of these elements entitles a defendant to summary adjudication. See Beach v. B. F. Saul Property Co., 303 Ga. App. 689, 697 (2), n. 6 (694 SE2d 147) (2010) (standards for both summary judgment and directed verdict motions are the same); Scarbrough v. Hallam, 240 Ga. App. 829, 832 (3) (525 SE2d 377) (1999) (summary judgment appropriate where plaintiff failed to establish at least one element of fraud); OCGA §§ 9-11-50 (a) and 9-11-56 (c).

(a) Sun asserts that it proffered evidence to support its claim that Burke intentionally misled Bozzone in order to forestall Sun’s filing of a lien. Sun points to evidence that it submitted invoices to BEC totalling $30,506.88 that were not paid; that Bozzone spoke with Burke within what it contends was the statutory time for filing a materialman’s lien and Burke said the invoices would be paid; that the check was issued and presumably lost in the mail; that Burke later indicated that a stop order would be placed on that check and another one issued; that Bozzone relied upon Burke’s representations and refrained from filing a hen; that Conner caused any re-issued check from being delivered; and that Lake Erma subsequently refused to pay the invoices. We find that this evidence was insufficient to support Sun’s claim of fraud.

A fraud action requires proof of a willful misrepresentation of a material fact. OCGA § 51-6-2 (a). Thus, “knowledge of the falsehood constitutes an essential element of the tort.” OCGA § 51-6-2 (b). Here, absolutely no evidence exists that Burke knew the statements were false when he made them. In fact, Bozzone testified that he believed that Burke was probably telling the truth. And although “[a] fraudulent or reckless representation of facts as true when they are not, if intended to deceive, is equivalent to a knowledge of their falsehood even if the party making the representation does not know that such facts are false,” id., Sun failed to demonstrate that Burke made the statement with reckless disregard for the truth or intent to deceive. Although Burke may have been aware that some concerns about the invoices existed at one point, he eventually got approval to issue the first check. And although Conner and/or Evans may have asked him to arrange a meeting with Bozzone about their concerns, no evidence existed that Burke should have been aware at the time he made the statements to Bozzone that Lake Erma was not ultimately intending to pay Sun what was owed. Accordingly, Sun failed to establish the first element of its fraud claim.

Moreover, Sun failed to present evidence that Burke made these statements with fraudulent intent to prevent Sun from asserting its lien rights. Under OCGA § 44-14-361.1 (a) (2), a materialman must file his or her claim of lien within 90 days after completion of the work. Our courts have considered that the “completion of the work” occurs the last day that work was completed, service was furnished or material was delivered. See D. C. Ecker Constr. v. Ponce Investment, 294 Ga. App. 833, 834 (670 SE2d 526) (2008); Womack Indus. v. B & A Equip. Co., 199 Ga. App. 660, 662 (1) (405 SE2d 880) (1991). The invoices submitted by Sun for work at Crystal Lake show that the last work for which Sun sought payment occurred on May 26, 2005. Sun alleged that Burke’s statements were made in mid-September and early October 2005, which would have been more than 90 days after the last invoiced work.

Bozzone testified, however, that the last service Sun rendered actually occurred on July 17, 2005 when he personally traveled to the Crystal Lake site to supervise the straightening of two trees that Sun had previously installed. He said that he performed this work for free and never submitted an invoice for it. Thus, Sun contends that Burke made the alleged misrepresentations during the period in which it could file a lien.

But Bozzone conceded that he never told Conner, Evans, Black or Everitt about his July visit. And the record contains no evidence indicating that Burke was aware of this visit. Bozzone could only testify that Vassallo knew he was on site in July, but Sun failed to demonstrate that Vassallo ever discussed the July work with Burke or anyone else at Lake Erma or BEC. The mere possibility that such conversations may have occurred is not enough to avoid summary adjudication. “While fraud may be proved by slight circumstances, it must amount to more than mere speculation.” (Punctuation and footnote omitted.) Power v. Ga. Exterminators, 243 Ga. App. 355, 359 (1) (532 SE2d 475) (2000). Nor did Sun present any evidence that Vassallo was aware of Burke’s representations. Sun failed to establish, therefore, that Burke or his superiors were or should have been aware that Sun even had existing lien rights at the time Burke made the statements. Even if Bozzone threatened to file a lien in September, no evidence exists that Burke believed that Sun had active lien rights at the time and thus that he made the statements in order to forestall the filing of the lien. Thus, Sun also failed to establish the second and third elements of its claim.

Although Bozzone stated at trial that he also relied upon Vas-sallo’s assurances that he would be paid, he did not indicate when Vassallo gave these assurances nor did Sun establish that Vassallo knew or should have known that Lake Erma did not intend to pay the invoices when he gave those assurances. Thus, Sun failed to present any evidence to support a finding that Vassallo acted with fraudulent intent. In any event, Sun did not assert in the pretrial order, nor does it argue on appeal, that Bozzone relied on Vassallo’s statements in failing to file a lien.

Additionally, Sun failed to establish any culpability on the part of the individual defendants for Burke’s representations. No liability arises simply by virtue of their status as members of Lake Erma:

The law of corporations is founded on the legal principle that each corporation is a separate entity, distinct and apart from its stockholders. . . . And a member of a limited liability company similarly is considered separate from the company and is not a proper party to a proceeding by or against a limited liability company, solely by reason of being a member of the limited liability company ....

(Citation omitted.) Milk v. Total Pay and HR Solutions, 280 Ga. App. 449, 451-452 (634 SE2d 208) (2006). Rather, “[a]n LLC member may be held individually liable [only] if he or she personally participates or cooperates in a tort committed by the LLC or directs it to be done.” (Citations omitted.) Id. at 454. Sun presented no evidence to demonstrate that any of the individual defendants personally participated or cooperated in any of Burke’s representations or that they directed Burke to make such representations with the intent to mislead Bozzone and Sun. Thus, the trial court properly granted a directed verdict on Sun’s claims of misrepresentation.

(b) Sun contends that the trial court also erred in granting a directed verdict on his claim that the 2005 distributions to the Lake Erma members constituted a fraudulent transfer in violation of OCGA § 18-2-74 (a). The pertinent portion of that statute provides that

(a) A transfer made or obligation incurred by a debtor is fraudulent as to a creditor, whether the creditor’s claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation:
(1) With actual intent to hinder, delay, or defraud any creditor of the debtor ....

(Emphasis supplied.) Sun asserts that Lake Erma made the distributions with the intent to defeat the rights of its creditors, including Sun, because those transfers rendered Lake Erma insolvent. “A debtor is insolvent when, after a conveyance, property left or retained by him is not ample to pay his existing debts.” (Footnote omitted.) Word v. Stidham, 271 Ga. App. 435, 436-437 (609 SE2d 651) (2004).

In support of its claim of fraudulent transfer, Sun points to Bozzone’s testimony that Conner said that the project was over budget and thus Lake Erma could not pay Sun the full amount of its invoices. But Bozzone himself discounted that statement, testifying that he did not believe Conner. Sun also relies upon its expert’s initial conclusion that the 2005 distributions rendered Lake Erma insolvent. But Sun’s expert acknowledged that her calculation of insolvency relied upon limited documentation provided by Sun and utilized a low historical value for Lake Erma’s property. When the expert employed a calculation using a more current market value, she conceded that Lake Erma had $586,000 in excess of its debt obligations.

Even if the expert’s initial analysis could be considered some evidence of insolvency, however, Sun failed to demonstrate that the distributions were done with an actual intent to hinder, defraud or delay Sun’s collection of its debt as required by the statute.

[Ajctual intent to cause injury has been defined in a tort context to mean an actual intent to cause harm to the plaintiff, not merely an intent to do the act purportedly resulting in the claimed injury. This definition of intent contains aspects of malice, perhaps a wicked or evil motive.

(Punctuation omitted.) Valades v. Uslu, 301 Ga. App. 885, 890-891 (1) (689 SE2d 338) (2009). And OCGA § 18-2-74 (b) “lists 11 nonexclusive factors (sometimes called ‘badges of fraud’) that can be considered in determining whether funds were transferred with the actual intent to defraud a creditor.” (Citations omitted.) SRB Investment Svcs. v. Branch Banking & Trust Co., 289 Ga. 1, 3-4(2) (709 SE2d 267) (2011).

We find that Sun did not present sufficient evidence of these badges of fraud to support a finding of actual intent in this case. Thus, Sun failed to point us to any evidence in the record showing that Lake Erma retained possession or control of the property distributed to its members; that Lake Erma concealed the distributions; that consideration or other factors surrounding the distributions indicated fraud; that Sun or any other creditor had sued or threatened Lake Erma with suit before they made the distributions; that the distributions represented substantially all of Lake Erma’s assets (at least when the more current value of the property was considered); that the members of Lake Erma absconded after the distributions; that Lake Erma removed or concealed assets; that the transfer occurred shortly before or shortly after a substantial debt was incurred; or that Lake Erma transferred the essential assets of the business to a lienor who transferred the assets to a Lake Erma insider. See OCGA § 18-2-74 (b) (l)-(ll). And even if the expert’s initial analysis can be considered some evidence of insolvency, we find that evidence standing alone is insufficient to establish actual intent. Accordingly, we affirm the trial court’s grant of directed verdict on the fraudulent transfer claim.

2. Sun further contends that the trial court erred in directing a verdict on its conversion claim under OCGA § 11-3-420. Sun bases this claim on Conner’s removal of the Second Check from the payment process. Sun asserts that the Second Check somehow became its property because Lake Erma mailed the First Check and this mailing constituted sufficient delivery to grant it constructive possession of both checks. We disagree.

Under Georgia’s Uniform Commercial Code, OCGA § 11-1-101 et seq., the holder of a check is entitled to negotiate it, and a holder is one who has possession of the check. OCGA §§ 11-1-201 (20) (a), 11-3-301 (i). But a person cannot reasonably obtain possession of a check when its whereabouts cannot be determined. See generally OCGA § 11-3-309 (a) (iii). Thus, pretermitting whether mailing the First Check constituted a form of delivery, that check was lost in the mail and Sun never received delivery or otherwise had possession of it. In any event, no allegation or evidence exists that any of the defendants converted the First Check.

Moreover, it is undisputed that the Second Check, if it even existed, was never mailed to Sun; thus Sun has absolutely no basis to claim that check was delivered. Although OCGA § 11-3-420 (a) applies the law of conversion to a negotiable instrument such as a check, a]n action for conversion of an instrument may not be brought by ... a payee or indorsee who did not receive delivery of the instrument either directly or through delivery to an agent or a co-payee.” (Emphasis supplied.) OCGA § 11-3-420 (a) (ii). Because Sun did not receive delivery of the Second Check, it has no claim for conversion:

No conversion action lies because a payee who never had possession of the check has no interest in the check and cannot enforce it. As noted in the Uniform Commercial Code (UCC) official comments accompanying OCGA § 11-3-420, “[ujntil delivery, the payee does not have any interest in the check. The payee never became the holder of the check nor a person entitled to enforce the check.”

Jenkins v. Wachovia Bank, 309 Ga. App. 562, 565 (711 SE2d 80) (2011). In other words, “a payee who does not take delivery of an instrument does not have any ownership interest in the check” and “has no standing to enforce it,” thus its “claims based on tort fall to the ground.” Id. at 566. The trial court, therefore, properly granted a directed verdict on this claim as well.

3. Sun also asserts that the trial court erred in directing a verdict in favor of the individual defendants on the remaining claims because it presented sufficient evidence to pierce the corporate veil between Lake Erma and its members. Sun contends that the March 2006 transfer of property from Lake Erma to Evans and Black for the purpose of securing a loan demonstrated a use by its members of the corporate “assets and income, interchangeably, without regard to Lake Erma’s corporate identity.” We disagree.

As previously noted, a limited liability corporation has a legal existence separate from its members. And evidence of an abuse of the corporate form is necessary in order to pierce this corporate veil. Thus, “[t]he plaintiff must show that the defendant disregarded the separateness of legal entities by commingling on an interchangeable or joint basis or confusing the otherwise separate properties, records or control.” Christopher v. Sinyard, 313 Ga. App. 866, 867 (1) (723 SE2d 78) (2012). To prove the requisite commingling, a plaintiff must

show that the shareholders disregarded the corporate entity and made it a mere instrumentality for the transaction of their own affairs; that there is such unity of interest and ownership that the separate personalities of the corporation and the owners no longer exist.

(Citation omitted.) Pazur v. Belcher, 290 Ga. App. 703, 707-708 (2) (659 SE2d 804) (2008).

Here, Sun introduced no evidence to suggest that the individual defendants commingled or confused Lake Erma’s corporate records, assets, or finances with their own. Although Lake Erma transferred property to Black and Evans to facilitate a loan for the benefit of the corporation, the loan proceeds were returned immediately to Lake Erma, as was the underlying property. Black and Evans did not make personal use of the loan proceeds; rather the cash flow generated by the loans apparently allowed Lake Erma to continue operating. Sun has failed to establish that this transaction was in any way concealed or that it was not properly reflected on the corporate books and in the public record. Indeed, Sun introduced certified copies of deeds and other documentation reflecting the public nature of the transaction. We have already held that Sun failed to demonstrate that the 2005 distributions themselves were fraudulent, and Sun has not demonstrated that the distributions were otherwise illegal or improper. The mere existence of transfers or loans between a limited liability corporation and its members does not in and of itself represent an abuse of the corporate form, especially where such transactions are properly reflected on the corporate books and in the public record. See Pazur v. Belcher, 290 Ga. App. at 708 (2) (closely held corporation); Stewart Bros. v. Allen, 189 Ga. App. 816 (1) (377 SE2d 724) (1989) (closely held corporation). That some part of the loan proceeds may have been used to replenish the company coffers after the 2005 distributions, and thus may have indirectly benefitted the members’ own ends along with the corporation’s, does not in and of itself constitute abuse of the corporate form. See Pazur v. Belcher, 290 Ga. App. at 709.

Decided July 12, 2012

Simmons & Szczecko, Joseph Szczecko, for appellant.

Power, Jaugstetter & Futch, Patrick D. Jaugstetter, Robert E. Maloney, Jr., Andrew C. Ausband, for appellees.

Absent any indication that the individual defendants commingled the corporation’s finances with their own, appropriated the corporation’s assets for their own personal use, or otherwise used the corporation as a “mere instrumentality” for the transaction of their own personal affairs, we conclude that the 2005 distributions and the 2006 loan transaction are insufficient to evidence a disregard by Black, Evans or the remaining individual defendants of the corporation’s separate identity. Accordingly, we affirm the trial court’s order directing a verdict in favor of the individual defendants on the remaining claims.

Judgment affirmed.

Barnes, P. J., and McFadden, J., concur.

       The corporate defendants, Conner and Talon, made no appearance and filed no briefs in this appeal.

       Evans testified that he did not recall attending this meeting.

       Sun asserts that the Bank was owned by Everitt and Conner, but the record citations provided by Sun in support of this statement reflect only that Evans was on the Bank’s board of directors at one point; that Evans, Everitt and Conner were on the Bank’s loan committee at various times; that Everitt was chairman of the bank hoard in 2005; and that Conner owned some hank stock at one point.

       Sun also argued below that Conner misrepresented at the October 2005 meeting that Lake Erma was out of money and that Bozzone relied upon that misstatement, but Sun does not raise that claim on appeal, and we do not address it. In any event, Bozzone testified that he did not believe Conner.

       Although Sun attempts to expand this claim on appeal, we will confine our consideration of Sun’s argument to the assertions raised in the trial court. “This court’s function is to review errors of the lower courts, not to review assertions made by appellant and brought directly to this court.” (Punctuation and footnote omitted.) Anderson v. State, 251 Ga. App. 785 (554 SE2d 811) (2001). For example, Sun argues under its claim of misrepresentation that Conner, Evans and Burke misled Bozzone by failing to inform him in the October 2005 meeting that Lake Erma intended to make $8 million in distributions to its principals in December 2005, an allegation not raised below.

       We note that the analysis for piercing the corporate veil would be the same for a single shareholder corporation as it is for a limited liability corporation. “Sole ownership of a corporation by one person or another corporation is not a factor [in a piercing the corporate veil analysis], and neither is the fact that the sole owner uses and controls it to promote his ends.” (Citations omitted.) Soerries v. Dancause, 248 Ga. App. 374, 375 (546 SE2d 356) (2001). In either case, the plaintiff must establish an abuse of the corporate form.