author: McFadden, Judge.

text:
    A11A0994.
    SUNTRUST BANK v. EQUITY BANK, S.S.B.
    (719 SE2d 539)
   McFadden, Judge.

This case involves a dispute between two banks over the priority of competing security deeds. The trial court ruled on summary judgment that the first recorded deed did not provide constructive notice of that bank’s security interest because it contained a mistaken metes and bounds description of the subject property. But because the security deed properly identified the property by its street address and tax parcel identification number, it provided constructive notice, and we therefore reverse the summary judgment rulings of the trial court.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmo-vant.

(Citations omitted.) VATACS Group u. HomeSide Lending, 276 Ga. App. 386 (623 SE2d 534) (2005), affirmed, 281 Ga. 50 (635 SE2d 758) (2006).

So viewed, the evidence shows that on September 9, 2005, Zion Full Gospel World Ministries, Inc., acquired by quitclaim deed a parcel of land with a church building on it in DeKalb County. On September 13, 2005, Zion Full Gospel entered into a deed to secure debt with SunTrust Bank, conveying an interest in the property as security for a $125,000 loan. The SunTrust security deed, recorded on October 12, 2005, identified the property both by its street address of 4091 Carver Drive, Doraville, Georgia 30360-2545, and by its tax parcel identification number. However, the security deed also set forth an incorrect metes and bounds description, which actually pertained to a nearby parcel of land that was not owned by Zion Full Gospel.

Ten months later, Zion Full Gospel entered into a deed to secure debt with Wachovia Bank, N.A., conveying an interest in the property as security for a $230,000 loan. That second security deed was recorded on August 10, 2006, and was later assigned to Equity Bank. The Equity Bank security deed, like the prior SunTrust security deed, described the property by its correct street address and tax parcel identification number, but it also included the correct metes and bounds description. A title examination failed to reveal Sun-Trust’s security deed.

In August 2008, Zion Full Gospel filed a Chapter 11 bankruptcy, naming SunTrust and Equity Bank as creditors. SunTrust moved for relief from the temporary stay, claiming that it held a first priority security interest in the property. The bankruptcy court granted the motion, and SunTrust began foreclosure proceedings. Equity Bank filed an action seeking to enjoin the foreclosure, but later dismissed the complaint. SunTrust foreclosed its security deed on February 3, 2009.

Equity Bank subsequently filed a wrongful foreclosure action against SunTrust. The parties filed cross-motions for summary judgment on the issue of whether Equity Bank had constructive notice of the SunTrust security deed when the Equity Bank security deed was recorded. The trial court denied summary judgment to SunTrust and granted summary judgment to Equity Bank, finding that because the SunTrust security deed included an incorrect metes and bounds description it was outside the chain of title and did not provide constructive notice of SunTrust’s security interest. Sun-Trust appeals.

“Chain of title includes all recorded instruments pertaining to the property that are executed by an entity holding a recorded interest in the property at the time of the execution of the instrument. [Cits.]” VATACS Group, supra at 391 (2).

The filing and recordation of an instrument provides constructive notice to subsequent purchasers of the existence of a prior interest in the property. For more than a century, it has been recognized that a purchaser of land in this state is charged with notice of every fact shown by the records, and is presumed to know every other fact which an examination suggested by the records would have disclosed.

(Citations and punctuation omitted.) Deljoo v. SunTrust Mtg., 284 Ga. 438, 439 (668 SE2d 245) (2008). In this case, it is undisputed that SunTrust recorded its security deed prior to the recording of Equity Bank’s security deed. Thus, contrary to the trial court’s finding, SunTrust’s recorded security deed was in the chain of title and provided constructive notice to Equity Bank.

Furthermore, the fact that the SunTrust security deed included an incorrect description of the property did not render it invalid and take it out of the chain of title. “It is only when a description [of property] is manifestly too meager, imperfect, or uncertain to serve as adequate means of identification that the court can adjudge the description insufficient as a matter of law.” (Citation and punctuation omitted.) Deljoo, supra at 440. Indeed,

Decided November 16, 2011.

Diment Carroll, Price H. Carroll, for appellant.

Fred R. Slotkin, Jr., for appellee.

while the description may be inaccurate, meager or erroneous, yet if it is expressed in such a manner or connected with such attendant circumstances as that a purchaser should be deemed to be put upon inquiry, if he fails to prosecute this inquiry he is chargeable with all the notice he might have obtained had he done so.

(Citations and punctuation omitted.) Id.

Although the SunTrust security deed contained a mistaken metes and bounds description of the property, it also properly identified the property by its street address and tax parcel identification number. These were sufficient keys to identify the property contained in the security deed, and Equity Bank is charged with notice of those facts set forth in the recorded deed. See 3400 Partners v. Chavez, 309 Ga. App. 475, 476 (711 SE2d 19) (2011) (“this Court has previously enforced liens whose legal descriptions contained surplusage, omissions, and even errors”); Swan Kang, Inc. v. Kang, 243 Ga. App. 684, 688 (3) (534 SE2d 145) (2000) (postal address legally sufficient description).

Because the recorded SunTrust security deed provided Equity Bank with constructive notice of SunTrust’s interest in the property, the trial court erred in finding otherwise. See Deljoo, supra (more than 100 years of our jurisprudence provides for broad constructive notice upon recording). Accordingly, we reverse the trial court’s grant of summary judgment to Equity Bank and denial of summary judgment to SunTrust.

Judgment reversed.

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


source: Caselaw Access Project

author: Dillard, Judge.

license: Public Domain

text:
    A11A1020.
    STRADER v. PALLADIAN ENTERPRISES, LLC et al.
    (719 SE2d 541)
   Dillard, Judge.

Rodman Strader filed a personal-injury action, seeking damages related to a slip-and-fall accident outside of his workplace, naming Palladian Enterprises, LLC (“Palladian”) and three John Does as defendants. Palladian failed to file a timely answer to the complaint and thereafter filed a motion to open default, which the trial court granted. We granted Strader’s application for interlocutory appeal, challenging the trial court’s order granting Palladian’s motion to open default. For the reasons noted infra, we affirm the trial court’s decision.

Palladian was served with Strader’s complaint on April 26, 2010, but failed to file a timely answer within 30 days or to open the default as a matter of right within 15 days as permitted by OCGA § 9-11-55 (a). A non-jury trial was then set for August 30, 2010. On August 20, 2010, Palladian paid costs and filed a motion for continuance, in which it also gave notice of its intent to open the default. The trial court granted the continuance and, on August 30, 2010, Palladian filed a motion to open default. Along with its motion to open default, Palladian filed a verified answer setting forth meritorious defenses — namely that it did not own the subject building or property at issue and owed no duty to Strader — and announced that it was ready to proceed with trial. Palladian supplemented the motion to open default with the affidavit of its representative, Patricia Bittinger.

Bittinger’s affidavit explained that she received Strader’s complaint on April 26, 2010, and forwarded it to Palladian’s insurance carrier and local insurance agent on May 11, 2010. Bittinger was informed by the insurer that because Palladian had no ownership rights in either the subject building or the property at issue, it was not a proper party to the lawsuit; she was also directed to place the proper entities on notice of the lawsuit. Bittinger forwarded related documents to Palladian’s insurer and local agent on June 11, 2010, and requested further instruction and direction. On June 20, 2010, Bittinger received and forwarded to Palladian’s insurer a notice placing the case on an August 30, 2010 non-jury trial calendar, and Bittinger again requested further instruction and/or direction at that time. The notice made no mention of Palladian’s default status. Bittinger contends that she first became aware that Palladian was in default on August 18, 2010, when she was advised that her insurer had appointed counsel to represent Palladian and that counsel would attempt to open the default. Two days later, Palladian’s counsel paid costs and filed a motion for continuance, which also contained a notice of intent to file a motion to open the default. The insurer then filed a verified answer and moved to open the default on August 30, 2010.

Upon considering the averments set forth in Palladian’s motion to open default, as well as the supporting affidavit, the trial court found that a “proper case” had been established to open the default and granted the motion. In doing so, the trial court expressly held that (1) Palladian acted diligently by promptly forwarding the complaint and all subsequently received documents to its insurer; (2) Palladian was entitled to infer that its insurer received the forwarded documents and was handling the case based upon its instruction to Bittinger to place the proper entities on notice of the suit; (3) the delay between Palladian first learning of the default and moving to open same was not unreasonable; and (4) Strader failed to show that he would be prejudiced by the opening of the default. Strader filed the instant appeal, challenging the trial court’s order granting Palladian’s motion to open default.

At the outset, we note that OCGA § 9-11-55 (b) allows a default to be opened on one of three grounds: providential cause, excusable neglect, or a proper case. As a condition precedent to the trial court’s consideration of whether any of the three grounds has been met, the defendant must show compliance with four statutory conditions by (1) making a showing under oath, (2) setting up a meritorious defense, (3) offering to plead instanter, and (4) announcing ready to proceed with trial. And here, it is undisputed that Palladian met these preconditions for opening default.

On appeal, Strader limits his challenge to the trial court’s determination that Palladian’s averments presented a “proper case” to allow the default to be opened, arguing that the court abused its discretion in opening the default because Palladian did not provide the court with a “reasonable explanation” for its failure to file a timely answer to his complaint. We disagree.

In considering Strader’s argument, we begin by noting that the proper-case ground, under which the default was opened in this case, has been “construed to confer discretion on the trial court broader than that conferred on the other two grounds, as if reaching out to take in every conceivable case where injustice might result if the default were not opened.” Indeed, the sole function we have as an appellate court reviewing a trial court’s grant of a motion to open default is to ascertain whether all of the conditions delineated in OCGA § 9-11-55 have been satisfied and, if so, “whether the trial court abused its discretion based on the facts peculiar to each case.” And because the public policy of this state strongly favors resolution of cases on their merits, the remedial provisions for opening a default are to be forgivingly applied. For this reason, a default should generally be set aside when the defendant “acts with reasonable promptness and alleges a meritorious defense,” so as to avoid a “drastic sanction” that “should be invoked only in extreme situations.” In sum, once the four preconditions have been satisfied by a defendant, the trial court is vested with broad discretion in determining whether to open a default on the “proper case” ground, and we will not disturb a trial court’s decision on this matter absent an abuse of its discretion.

In the case sub judice, Palladian received the complaint, forwarded same to its insurer, and confirmed that it was received. It also took the steps necessary to notify the proper parties in interest of the lawsuit. Additionally, Palladian forwarded the later-received documentation to its insurer and requested further instruction and/or direction. Moreover, within two days of learning of the default, Palladian paid costs, moved to continue the case, and filed notice of its intent to move to open the default, which it did twelve days later (along with filing a verified answer setting forth meritorious defenses and announcing that it was ready to proceed with trial). Finally, Strader presented no evidence of prejudice suffered by the opening of the default. Under the foregoing circumstances, particularly in light of the evidence that Palladian may not be a proper party in interest to the lawsuit, we conclude that the trial court did not abuse its broad discretion in accepting Palladian’s explanation and opening the default.

In reaching this conclusion, we once again emphasize that, contrary to plaintiffs assertion, “it is not for this Court to determine whether, in the first instance, the proffered justification given by [the defaulting defendant to the trial court] is reasonable,” because to do so would “undermine [ ], to the point of eviscerating, the abuse of discretion standard of review we are charged with adhering to in these cases . . . ,” Thus, while it is certainly true that a “default [may be] opened under the ‘proper case’ analysis only where a reasonable explanation for the failure to timely answer exists,” this Court’s review of a trial court’s determination as to the reasonableness of such an explanation is exceedingly deferential. As we have previously explained, “this Court can (and should) only evaluate the reasonableness of [Palladian’s] proffered justification for opening a default on the ‘proper case’ ground in the context of considering whether the trial court’s acceptance of this justification as a basis for opening default amounts to a manifest abuse of discretion.” To do otherwise would amount to substituting our judgment for that of the trial court, which the applicable standard of review flatly prohibits.

Decided November 16, 2011.

Bell & Mulholland, Robert E. Mulholland, James D. Summer-ville, for appellant.

Goodman, McGuffey, Lindsey & Johnson, David M. Abercrom-bie, for appellees.

Judgment affirmed.

Mikell, C. J., and Smith, P. J., concur.

       Bittinger is the vice president of Palladian, Inc., an affiliated corporation.

       Strader objects to the affidavit on the ground that it contains communications between Bittinger and the insurer that amount to inadmissible hearsay. We disagree. Because the challenged statements are being used to explain Bittinger’s conduct (as opposed to being admitted for the truth of the matter asserted), and are otherwise relevant to the reasonableness of Bittinger’s actions, they do not constitute hearsay and were properly considered by the trial court. See generally Lumpkin v. Deventer N. Am., Inc., 295 Ga. App. 312, 316 (2) (672 SE2d 405) (2008) (admitting out-of-court statements of a non-witness offered to explain conduct relevant to an issue presented); Unified Gov’t of Athens-Clarke County v. Watson, 255 Ga. App. 1, 3 (2) (564 SE2d 453) (2002) (“When the conduct and motives of the actor are matters concerning which the truth must be found (i.e., are relevant to the issues on trial), then information, conversations, letters and replies, and similar evidence known to the actor are admissible to explain the actor’s conduct.” (punctuation omitted)). Cf. Teague v. State, 252 Ga. 534, 534 (1) (314 SE2d 910) (1984) (“[W]here the question is, whether the party acted prudently, wisely, or in good faith, the information[ ] on which he acted, whether true or false, is original and material evidence. . . . This doctrine applies to all other communications, wherever the fact that such communication was made, and not its truth or falsity, is the point in controversy.” (punctuation omitted)).

       Bittinger’s affidavit identifies Intrex Corporation Pension Plan as the owner of the subject building and further identifies Woodlawn Office Park Condominium Association, Inc. as the entity responsible for maintaining the subject property and the surrounding common areas. Palladian asserts that these corporate entities are related or affiliated, though distinct from Palladian.

       Strader was served with the verified answer and motion to open default on August 27, 2010.

       OCGA § 9-11-55 (b); see also Anderson v. Flake, 270 Ga. 141, 143 (2) (508 SE2d 650) (1998); Boggs Rural Life Ctr. v. IOS Capital, 255 Ga. App. 847, 847 (567 SE2d 94) (2002).

       OCGA § 9-11-55 (b); see also Anderson, 270 Ga. at 143 (2); Boggs Rural Life Ctr., 255 Ga. App. at 847.

        Nelson v. Bd. of Regents of Univ. Sys. of Ga., 307 Ga. App. 220, 223 (1) (704 SE2d 868) (2010) (quoting Legacy Hills Res. Ass’n v. Colonial Bank, 255 Ga. App. 144, 145 (564 SE2d 550) (2002)).

        Nelson, 307 Ga. App. at 223 (1) (quoting ABA 241 Peachtree, LLC v. Brooken & McGlothen, LLC, 302 Ga. App. 208, 210 (1) (690 SE2d 514) (2010)).

        See, e.g., Exxon Corp. v. Thomason, 269 Ga. 761, 761-62 (1), (2) (504 SE2d 676) (1998); Johnson v. Am. Nat’l Red Cross, 253 Ga. App. 587, 589 (1) (569 SE2d 242) (2002); Ford v. St. Francis Hosp., 227 Ga. App. 823, 826 (1) (490 SE2d 415) (1997).

        Exxon Corp., 269 Ga. at 763 (2) (punctuation omitted).

        Northpoint Group Holdings, LLC v. Morris, 300 Ga. App. 491, 493 (1) (a) (685 SE2d 436) (2009) (punctuation omitted).

        See, e.g., Henderson v. Quadramed Corp., 260 Ga. App. 680, 680-81(1) (580 SE2d 542) (2003); Majestic Homes, Inc. v. Sierra Dev. Corp., 211 Ga. App. 223, 224 (1) (438 SE2d 686) (1993).

       Strader, relying on BellSouth Telecommunications, Inc. v. Future Communications, Inc., 293 Ga. App. 247 (666 SE2d 699) (2008), argues that these facts did not amount to a showing by Palladian of “its own diligence and the insurer’s assurances that it is handling the case.” See id. at 249 (1) (punctuation omitted). But in making this argument, Strader is implicitly championing the “excusable neglect” standard, which is wholly irrelevant to this case. As explained in Nelson, we were precluded in BellSouth from identifying the reasonable basis for the trial court’s decision to open the default in that case, which was done “without an explanation of the legal or factual basis for doing so.” Nelson, 307 Ga. App. at 226 (1) (punctuation omitted). Nonetheless, any reading of the BellSouth decision “as holding that the ‘proper case’ ground for opening a default is subsumed into the ‘excusable neglect’ ground in each and every case where a defendant mistakenly assumes that a lawsuit is being handled by another person or entity” is misplaced and overly broad. Nelson, 307 Ga. App. at 226 (1).

        See, e.g., Shortnacy v. N. Atlanta Internal Med., PC., 252 Ga. App. 321, 324 (1) (556 SE2d 209) (2001) (noting that “the potential for manifest injustice exists in this case if default judgment is entered against the defaulting defendants because they have pled what appears to be a meritorious defense”); see also Vito v. Dhillon, 269 Ga. App. 899, 904 (2) (605 SE2d 602) (2004) (noting that opening default was appropriate when defendant met the requirements of OCGA § 9-11-55 (b), which includes alleging a meritorious defense); Whitley v. Bank S., N.A., 185 Ga. App. 896, 898 (2) (366 SE2d 182) (1988) (noting that opening default is appropriate when defendant “acts with reasonable promptness and alleges a meritorious defense” (punctuation omitted)).

        See, e.g., Vibratech, Inc. v. Frost, 291 Ga. App. 133, 145 (2) (661 SE2d 185) (2008) (noting that “this Court has recognized a number of factors for determining whether opening default would be appropriate in a particular case, including),]” but not limited to,
      whether and how the opposing party will be prejudiced by opening the default; whether the opposing party elected not to raise the default issue until after the time under OCGA § 9-11-55 (a) had expired for the defaulting party to open default as a matter of right; and whether the defaulting party acted promptly to open the default upon learning no answer had been either filed or timely filed[,]
      and “any additional delay occasioned by a failure to file promptly for opening default upon its discovery can be considered in determining whether defendants’ neglect was excusable” (punctuation omitted)); Ford, 227 Ga. App. at 826 (1) (same).

        See, e.g., Exxon Corp., 269 Ga. at 763 (2); Henderson, 260 Ga. App. at 682 (2); Johnson, 253 Ga. App. at 590-91.(1); Shortnacy, 252 Ga. App. at 323-24 (1).

        Nelson, 307 Ga. App. at 224 (emphasis supplied).

        BellSouth Telecomms., Inc., 293 Ga. App. at 250 (2).

        Nelson, 307 Ga. App. at 224-25 (1).

         In his brief, Strader criticizes our decision in Nelson, characterizing the “hands off approach” taken in that opinion as being inconsistent with other decisions of this Court, the vast majority of which resulted in this Court affirming the trial court’s exercise of its discretion to grant or deny a motion to open default. See Sierra-Corral Homes, LLC v. Pourreza, 308 Ga. App. 543, 543-45 (1) (708 SE2d 17) (2011); NorthPoint Group Holdings, LLC, 300 Ga. App. at 493 (1) (a); Herring u. Harvey, 300 Ga. App. 560, 560-62 (1) (685 SE2d 460) (2009); Henderson, 260 Ga. App. at 680-81 (1); Tauber v. Cmty. Ctrs. Two, LLC, 235 Ga. App. 705, 706 (3) (509 SE2d 662) (1998); First Union. Nat’l Bank of Ga. v. Floyd, 198 Ga. App. 99, 100-01 (2) (400 SE2d 393) (1990) (physical precedent only). Suffice it to say, Strader’s reliance on these decisions is badly misplaced. Likewise inapt is Strader’s reliance on BellSouth Telecomms., Inc., 293 Ga. App. at 247, for the reasons noted supra at note 13, and on Sidwell v. Sidwell, 237 Ga. App. 716 (515 SE2d 634) (1999), which is easily distinguishable. Id. at 718 (where the only reason given by the defendants for opening the default on proper-case grounds was the “self-serving rationalization” that they were worried about the lawsuit upsetting an elderly gentleman). Additionally, the decisions cited by Strader from our Supreme Court as “being in accord” with the foregoing opinions from this Court do nothing more than set forth the uncontroversial proposition that whether or not a proper case for opening a default has or has not been made by a defendant is a fact-intensive inquiry, and in no way undermines or diminishes the abuse-of-discretion standard of review imposed on Georgia appellate courts in such cases. See Schrembs v. Atlanta Classic Cars, 261 Ga. 182, 183 n.5 (402 SE2d 723) (1991); Muscogee Realty Dev. Corp. v. Jefferson Co., 252 Ga. 400, 402 (314 SE2d 199) (1984); Copeland v. Carter, 247 Ga. 542, 543 (1) (277 SE2d 500) (1981); Axelroad v. Preston, 232 Ga. 836, 837 (1), (2) (209 SE2d 178) (1974). Finally, Strader’s reliance on In the Matter of Turk, 267 Ga. 30, 31 (1) (471 SE2d 842) (1996), is misplaced for the same reason we previously noted in Nelson, 307 Ga. App. at 223 (1) n.5.


author: Adams, Judge.

text:
    A11A1244.
    McGREGOR et al. v. RIVER POND FARM, LLC.
    (719 SE2d 546)
   Adams, Judge.

River Pond Farm, LLC sued to enjoin the appellants from interfering with its alleged easement on the appellants’ property. The appellants counterclaimed to quiet title and, without requesting a jury trial, asked the superior court to submit the matter to a special master pursuant to OCGA § 23-3-63. After both parties filed motions for summary judgment, the special master issued a report finding a prescriptive easement in favor of River Pond. Over an objection by the appellants, the superior court affirmed the special master’s findings, adopted them as its own, and issued a judgment in favor of River Pond.

Most of the facts are not in dispute. R. C. Howell died in 1968 owning significant acreage along the Chattahoochee River in Early County. The parties to this suit agree that they are the successors in interest, respectively, of land held by Howell’s two daughters — Louise Howell Gay and Grey Howell Bell — who inherited their father’s land and, in 1972, divided it roughly equally between them. The appellants are trusts, owned by Robert Lamar McGregor, Sr., and Patricia Gay McGregor, that are successors in interest to over 700 acres of land acquired by Patricia’s mother, Louise Howell Gay (the McGregor property). And since September 2004, River Pond, an entity formed by Grey Howell Bell’s children, has been the successor in interest to over 700 acres of land located immediately south of the McGregor property that Grey Howell Bell received when the property was divided (the Bell property). A road runs from northeast to southwest across the McGregor property to the Bell property, providing a route from County Route 81, a/k/a “Old River Road,” to the Bell property. The road existed in 1968 and before, and it exists essentially unchanged today in the same location; but neither the road nor any related easement was mentioned in the deeds that divided the property. The owners of the Bell property, including River Pond, have used the road to access the Bell property since the division, and they maintained the road at their own expense since 1968, all with full knowledge of the McGregors. Members of the Bell family also hunted on the McGregor property this entire time, and as far back as when R. C. Howell owned all the land.

The parties’ dispute concerns the exact nature of the origin and development of the arrangement whereby the Bell family used the road and hunted on the McGregor property.

1. When River Pond sued to remove a gate that the McGregors erected blocking the road to the Bell property, the McGregors counterclaimed for “quia timet against all the world” pursuant to OCGA § 23-3-60 et seq. Those Code sections provide that the issue may be submitted to a special master who has jurisdiction to review the evidence and submit findings to the court:

[T]he special master shall have complete jurisdiction within the scope of the pleadings to ascertain and determine the validity, nature, or extent of petitioner’s title and all other interests in the land, or any part thereof, which may be adverse to the title claimed by the petitioner, or to remove any particular cloud or clouds upon the title to the land and to make a report of his findings to the judge of the court[.]

OCGA §§ 23-3-66; 23-3-63.

Under this law, the McGregors had the right to demand a jury trial of any question of fact; the special master could also request a jury to try issues of fact. OCGA § 23-3-66. But because the McGreg-ors failed to file a jury demand before the special master heard the case, the special master became “the arbiter of law and fact.” Thornton v. Reb Properties, 237 Ga. 59 (226 SE2d 741) (1976), cited with approval in Addison v. Reece, 263 Ga. 631, 632 (1) (436 SE2d 663) (1993). Although the special master does not divest the trial court of overall jurisdiction of the case, Harbuck v. Houston County, 284 Ga. 4, 5 (1) (662 SE2d 107) (2008), once the trial court adopts the special master’s findings and enters judgment, the court’s decision is upheld by the appellate court unless clearly erroneous. Nelson v. Georgia Sheriffs Youth Homes, 286 Ga. 192, 193 (686 SE2d 663) (2009). “Therefore, if there is any evidence supporting the judgment of the trial court, it will not be disturbed.” (Citation omitted.) Cernonok v. Kane, 280 Ga. 272, 273 (1) (627 SE2d 14) (2006). But conclusions of law are reviewed de novo. Second Refuge Church &c. v. hollar, 282 Ga. 721, 724 (2) (653 SE2d 462) (2007).

2. Here, the special master found that the use and maintenance of the road by River Pond, its agents, and its predecessors in title for at least 20 years (from 1968 to 1988, i.e., dating back to before the property was divided), being known to the McGregors, and without seeking permission and without objection by the McGregors, presented adverse notice to the McGregors that the users intended to use the road as their own. The special master also found that the law only requires seven years of such action and that any actions adverse to their claim of easement taken by River Pond or its predecessors in interest after seven years of such use could not cause a forfeiture or abandonment of an established prescriptive easement. The trial court adopted the facts as found by the special master and found that the special master’s report was consistent with the evidence presented at the November 4, 2008 hearing on the temporary restraining order and the hearing on the motion for summary judgment, neither of which the special master witnessed. The court then affirmed and incorporated the report of the special master in a final judgment, purportedly granting summary judgment in favor of River Pond, and finding that River Pond had a prescriptive easement across the McGregor property. The court also granted the McGreg-ors’ action to quiet title with regard to all possible claims other than the prescriptive easement.

More specifically, on the law, the special master cited four well-known requirements for a prescriptive easement: uninterrupted use for seven years or more; the width of the easement does not exceed twenty feet; the width did not deviate from the original width; and that the plaintiff kept the easement open and in repair for seven uninterrupted years. See generally Jackson v. Norfolk Southern R.R., 255 Ga. App. 695 (566 SE2d 415) (2002); OCGA § 44-9-54. But the special master failed to address the critical legal issue in the case that necessarily arises because the evidence is undisputed that use and maintenance of the road by River Pond’s predecessors in title originated when all the land was jointly owned by R. C. Howell or his estate. River Pond admits this fact; it even specifically asserts that it and its predecessors in title “had an easement since Mr. Robert Claude Howell died,” and the special master found that the Bells’ use and maintenance of the road on the McGregor property began in 1968. But prescriptive use could not have begun on the road prior to when the property was divided. Cf. Bowen v. Lewis, 201 Ga. 487, 493 (2) (40 SE2d 80) (1946) (property owner cannot have easement in a way on his own property that he owned in fee); Duncan v. Sluder, 204 Ga. 458, 461 (1) (50 SE2d 78) (1948) (use of common drive by tenants on property owned by single landowner was permissive until property divided).

Thus, prior to the property division in 1972, all use of the road by the descendants of R. C. Howell was necessarily permissive. In addition, Patricia McGregor, who was present for the 1972 property division and signed some of the relevant documents, gave virtually unrebutted testimony that on the day the property was divided, she and her mother gave express permission to C. A. Bell and his family to use the road and added that, in return, the Bell family was expected to continue to watch over and maintain the property and maintain the road. Under these facts, an exception to the above four requirements for a prescriptive easement must be considered.

“Permissive possession cannot be the foundation of a prescription until an adverse claim and actual notice to the other party.” OCGA § 44-5-161 (b). “When the use of a private way originates by permission of the owner, prescription does not begin to run until the user notifies the owner, by repairs or otherwise, that he has changed his position from that of a mere licensee to that of a prescriben [Cit.]” (Punctuation omitted.) Keng v. Franklin, 267 Ga. 472, 472-473 (480 SE2d 25) (1997). See also Yawn v. Norfolk Southern Ry. Co., 307 Ga. App. 849, 852 (2) (706 SE2d 197) (2011). And, although “the most common and effective way of giving notice of a claim of right is to maintain and repair the way,” Thompson v. McDougal, 248 Ga. App. 270, 271 (546 SE2d 44) (2001), when performed with permission of the landowner, even repairs to a road are insufficient, standing alone, to provide notice of adverse use:

[I]f the use of and the repairs made on the road by the plaintiff were by [the] permission of the landowner, as was his first right to use it, then, in such circumstances the plaintiff would not acquire a prescriptive right or title to the road in question.

Burnum v. Thomas, 71 Ga. App. 690, 694 (31 SE2d 925) (1944). See also Ponder v. Williams, 80 Ga. App. 145, 151 (2) (55 SE2d 668) (1949) (no prescriptive easement where use and repairs of road began with permission of landowner). This is so because the repairs must provide notice of adverse use; and repairs by permission are not adverse and therefore not prescriptive. In order for repairs begun with permission to constitute notice of adverse use, something about use of the road, the repairs, or the parties’ statements or actions regarding their relative rights must provide the landowner with notice of adverse use. “The gist of the requirement as to repairs is not so much the repairs as the notice which is given by the repairs.” (Citation and punctuation omitted.) Nelson v. Girard, 215 Ga. 518, 520 (2) (111 SE2d 60) (1959) (“repairs were done through the years under the agreement permitting the [claimant] to use the road and to repair it” showed no adverse use and could not result in a prescriptive easement). In this case, there is no indication in either the report of the special master or the trial court’s orders that this law was considered, and therefore the decision of the special master was not based on the correct law.

Moreover, “ [prescriptive rights are to be strictly construed, and the prescriber must give some notice, actual or constructive, to the landowner he or she intends to prescribe against.” (Citation and punctuation omitted.) MEA Family Investments, LP v. Adams, 284 Ga. 407, 408 (667 SE2d 609) (2008). Under the applicable law, and given that the use, including repair, of the road began with permission, the special master’s finding that River Pond and its predecessors in title never asked for permission and that the McGregors never objected to their activities from 1968 to 20 08 is inadequate to establish the adverse notice necessary to establish an easement by prescription. See Douglas v. Knox, 232 Ga. App. 551, 552-553 (2) (502 SE2d 490) (1998) (“That a property owner knows of and acquiesces in the use of his private way is insufficient to establish prescription.”). The special master failed to determine whether the original use, although permissive, changed to adverse use at some point based upon a notice of adverse use by the Bell family or River Pond. For the above reasons, the special master’s conclusion that River Pond had acquired an easement by prescription was not based on an application of the complete law applicable to the case. “Where it is apparent that a trial court’s judgment rests on an erroneous legal theory, an appellate court cannot affirm.” (Citation omitted.) Gwinnett County v. Davis, 268 Ga. 653, 655 (492 SE2d 523) (1997) (in trial court’s order following bench trial, trial court relied on evidence, which standing alone, was not sufficient to support the trial court’s legal conclusion). See also Capers v. Camp, 244 Ga. 7, 12 (4) (257 SE2d 517) (1979) (where the special master in a quia timet proceeding committed a reversible error, the trial judge errs by adopting the special master’s findings of fact and conclusions of law).

3. River Pond argues that we could affirm on a separate ground by finding an easement by implication, but that issue is not before us. The superior court’s judgment granted the McGregors’ claim for quia timet “as to all other persons and claims, except the prescriptive easement of the Plaintiff,” and River Pond has not filed a cross-appeal. “The general rule is that an appellee must file a cross-appeal to preserve enumerations of error concerning adverse rulings. [Cits.]” Georgia Society of Plastic Surgeons v. Anderson, 257 Ga. 710, 711 (1) (363 SE2d 140) (1987). And because a ruling on an easement by implication is not material to a ruling on a prescriptive easement, we find no grounds to stray from the general rule here. Id.

4. The McGregors argue that we must not only vacate the grant of a prescriptive easement in favor of River Pond but also quiet title in their favor. They point to the special master’s finding that beginning in 1968, the Bells’ and River Pond’s use of and repairs to the road remained unchanged for 20 years thereafter. They argue that since the repairs began with permission and continued unchanged thereafter, it necessarily follows that the use remained permissive the entire time, thereby defeating any claim of prescriptive easement.

We conclude, however, that due to the procedural posture of the case, a remand to the trial court and the special master is required. Cf. Burnum, 71 Ga. App. at 694 (trial court correctly remanded to ordinary for new trial on issue of whether use and repairs of road began with permission). As shown above, under OCGA § 23-3-60 et seq., the special master in this case functioned as “the arbiter of law and fact,” of the issues before him, which were disputed, and the trial court adopted those findings of fact. Although the parties filed cross-motions for summary judgment and the trial court purportedly granted summary judgment based on the special master’s report, a judgment issued based on factual findings arising out of disputed facts is not summary judgment. It was more akin to findings following a bench trial. Under these circumstances, the trial court’s grant of a prescriptive easement must be vacated and the case remanded because we cannot determine what the special master would have concluded if he had considered the correct law. See Gwinnett County, 269 Ga. at 655.

We therefore vacate the trial court’s award of a prescriptive easement in favor of River Pond and remand for the special master to reconsider its decision in light of the applicable legal authority, including that cited above.

Judgment vacated and case remanded with direction.

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

Decided November 16, 2011.

Vansant & Corriere, Alfred N. Corriere, for appellants.

Jesse G. Bowles III, for appellee.

       The McGregors do, however, contend there is an issue of fact regarding the width of the road and whether the width has been changed since 1972.

       On appeal, the appellants at times appear to argue that there is no evidence of any repairs during the early years after the property was divided, but Patricia McGregor has admitted that the Bell family used and maintained the McGregor property and roads from 1972 through 1988.

       There is a hunting agreement in the record, prepared by Tommy Bell, dated 1988, that allows the Bells to hunt on the McGregor property, and it has a provision requiring the Bells to maintain the roads on the McGregor property. Also, Tommy Bell, one of the members of River Pond, made comments in writing in 2002 indicating that the Bells would need an easement or a different road if the McGregors sold their property. He also wrote to Patricia McGregor in 2007, “I appreciate you letting us have access and hunt your property over these many years and helping you manage your timber.”

       River Pond does not contend that the Bells had other property separate from that acquired through Grey Howell Bell, from which they had access to the road on the undivided R. C. Howell estate holdings.

       There is evidence in the form of the affidavit of C. A. Bell, Grey Howell Bell’s husband, that he was never given verbal or written permission to use, maintain or repair the road from R. C. Howell, Louise Howell Gay, Patricia Gay McGregor or anyone else. But one month prior to signing that affidavit, C. A. Bell testified that he did not remember anything that was done or said in connection with the August 1972 division of the property.

       The special master also found that River Pond’s contractors performed work on the McGregor property “without permission” from the McGregors. But this finding is not relevant for two reasons. First it is not relevant in time because the statements occurred 12 years or more after the property was divided. Second, the contractors were given their assignments by the Bells and River Pond, not the McGregors.


text:
    A11A1328.
    ALEMAN et al. v. SUGARLOAF DIALYSIS, LLC et al.
    (719 SE2d 551)
   Adams, Judge.

Marcos Aleman, individually and as administrator of the estate of Josefa Aleman, appeals entry of summary judgment on claims arising out of the death of his wife of 15 years. Josefa had diabetes, and while undergoing dialysis she became unresponsive. Despite attempts to resuscitate her, she never regained consciousness; she died about three weeks later. In this action, Aleman claims the defendant medical providers were negligent in how they reacted when Josefa initially became unresponsive, including that they failed to provide proper cardiopulmonary resuscitation (CPR) and failed to use an automated external defibrillator (AED). He also asserts negligent hiring, training, supervision, and retention. The trial court found Aleman had failed to raise an issue of material fact regarding causation.

The record shows that on December 26, 2006, Josefa began dialysis at Sugarloaf Dialysis, LLC at 10:37 a.m. At 10:48, Michelle Mouang, the patient care technician, noticed Josefa’s blood pressure was low. She administered saline, but Josefa passed out possibly as early as 10:50. Mouang summoned nurse Oluwole “Wally” Adepitan. He arrived “within thirty seconds” and asked her to get an oxygen tank, which took “less than a minute.” They connected the oxygen and tilted Josefa’s dialysis chair so that her feet were above her head. Adepitan administered more saline and called the attending doctor. At some point Josefa became unresponsive, and, according to Mouang, Adepitan began CPR, although she was not sure at what time or whether he started after the 911 call. She testified, “after we called 911, the CPR started, and then I went to see another patient.” Before she moved to the other patient, Mouang saw Adepitan begin CPR; she recalled that Josefa was still in her chair. Josefa was disconnected from the dialysis machine at some point. According to emergency medical service (EMS) records, the 911 call was received at 10:53 a.m. But the nursing record states, among other things, “Paramedics arrived and started CPR; I was told to detach ED.”

EMS technicians arrived at 10:59, got to Josefa at 11:00, and saw that CPR was already being performed with a bag valve mask. The lead EMS responder thought that Josefa was on the floor beside the chair when they arrived, but he could not be sure. EMS records state that when they arrived, Josefa’s heart was in a state of “pulseless electrical activity,” meaning a monitor will show some electrical activity in the heart, but there is no actual beating. In this state, an AED will not deliver a shock. Among other things, EMS administered drugs to restart the heart and took Josefa to a hospital emergency room. She was diagnosed with anoxic encephalopathy, or brain damage caused by lack of oxygen. She never regained consciousness, and she died on January 16, 2007.

Plaintiffs expert Dr. Victor Chou testified that based on his review of Josefa’s medical records from Sugarloaf Dialysis, the staff at Sugarloaf Dialysis had failed to timely or properly perform CPR or to use an AED, and that such a failure violates the standard of care. He opined “that if [Josefa] had been given immediate CPR, as well as timely use of an AED, significant neurological damage could have been avoided.” Nevertheless, Chou admitted that the literature concludes CPR is only effective between five and thirty percent of the time, and, relying on that fact, he could not say one way or the other whether immediate, correct CPR would have led to a different outcome or whether restarting her heart within thirty seconds of cardiac arrest would have resulted in her condition being any different. The trial court held that the plaintiff had failed to raise an issue of fact concerning whether Josefa’s injuries were caused by the alleged failure to timely administer CPR and/or to use an AED.

On appeal, Aleman contends that the trial court erred by concluding there was no material issue of fact regarding causation. Aleman relies on Dr. Chou’s testimony that based on a reasonable degree of medical certainty, (1) “chances of suffering anoxic brain injury after cardiac arrest are dramatically increased if CPR is not performed immediately and if an AED is not used within five minutes of cardiac arrest”; (2) that immediate CPR and use of an AED creates a “high likelihood” that the risk of brain injury to Aleman would have been “significantly reduced”; (3) that CPR was not timely performed on Aleman; (4) that performing CPR in the dialysis chair falls below the standard of care; (5) that an AED was not used in a timely manner; (6) that an AED should have been attached regardless of Josefa’s condition, because in addition to defibrillating, it functions to inform those attending of the patient’s heart rhythm; and (7) that the success rate of AED use is more than 50 percent.

The defendants agree with the trial court that there was no issue of fact raised regarding causation, and they argue another point raised below — that there is no evidence that they violated the standard of care.

1. In his depositions, Chou testified that all health care providers trained in basic life support, regardless of the setting, are subject to the same standard of care regarding use of CPR and an AED. He testified that once a patient exhibits symptoms of cardiac arrest, such as a finding of no pulse, CPR should be begun immediately and an AED should be connected within the first few minutes. The AED should be connected even though it will not provide a shock under certain circumstances, because the AED interprets the patient’s heart rhythm and will deliver a shock if appropriate, and it will instruct on whether to continue CPR. He testified that CPR in a soft dialysis chair in a seated position also falls below the standard of care.

Although Mouang testified that Adepitan started CPR and the EMS record states that CPR was being performed when EMS arrived, the dialysis record prepared by Adepitan states, “Paramedics arrived and started CPR; I was told to detach ED.” We do not have an affidavit or a deposition from Adepitan. The quoted sentence could be construed to mean that CPR was first begun when EMS arrived. Conflicts in the evidence are to be resolved by the jury. Montgomery v. Barrow, 286 Ga. 896, 898 (1) (692 SE2d 351) (2010) (“it is precisely because there are bits of evidence in the record which create genuine issues of material fact that summary judgment is not appropriate in this case.”).

Also, Mouang testified that when CPR was begun, Josefa was in a soft, reclining dialysis chair. Construed in favor of Aleman, it could be that CPR was improperly performed in this manner from the time of the 911 call to the time that EMS arrived, which was approximately seven or eight minutes. Thus, there is an issue of fact regarding whether CPR was correctly performed, and given the amount of elapsed time and the fact that Josefa had no pulse when EMS arrived, a jury could find that this fell below the standard of care. Mouang also testified that the dialysis center had an AED available for use that day, but she did not know whether Adepitan had used it on Josefa. And no one explained what Adepitan meant when he said “detach ED” in his report. Thus, there is an issue of fact as to whether the defendants failed to use an AED.

In short, with regard to both CPR and use of an AED, there is some evidence that the defendants violated the standard of care as provided by Dr. Chou.

2. In response to a motion for summary judgment in a medical malpractice case, the plaintiff must be able to show an issue of fact regarding causation:

It is clear that a plaintiff cannot recover for medical malpractice, even where there is evidence of negligence, unless the plaintiff establishes by a preponderance of the evidence that the negligence “either proximately caused or contributed to cause plaintiff (harm).”

Zwiren v. Thompson, 276 Ga. 498, 500 (578 SE2d 862) (2003); OCGA § 9-11-56. To do so, the plaintiff must present expert medical testimony establishing causation to a reasonable medical probability or reasonable medical certainty:

In order for the plaintiff to show that the defendant’s alleged negligence was the proximate cause of the plaintiffs injury, the plaintiff must present expert medical testimony. An expert’s opinion on the issue of whether the defendant’s alleged negligence caused the plaintiffs injury cannot be based on speculation or possibility. It must be based on reasonable medical probability or reasonable medical certainty.

Id. at 503-504.

Here, Chou gave conflicting testimony regarding causation. On the one hand, he testified that proper CPR and AED use would have reduced the risk of brain injury significantly:

[Biased on my experience as a medical doctor, based on my training and practice and based on the review of the medical literature, I believe that there was a high likelihood that if these processes [CPR and use of an AED] had been performed in accordance with the appropriate basic life support guidelines, the risk of anoxic brain injury would have been significantly reduced.

He testified that his opinion was based on a reasonable degree of medical certainty. He reiterated that within a reasonable degree of medical certainty, “if she had been given immediate CPR, as well as timely use of an AED, significant neurological injury could have been avoided.” In addition, he testified that with regard to AED use, results are improved in correlation with how quickly the AED is used. And use of an AED within the first few minutes of symptoms of cardiac arrest improves chances of successfully restoring a person’s heart to its regular rhythm to over 50 percent.

On the other hand, Chou testified that, given that medical literature states that CPR has only a five to thirty percent chance of success, he could not say one way or the other whether timely CPR would have changed the outcome for Josefa. He also could not state to a reasonable degree of medical certainty that, had Josefa’s heart been restarted within 30 seconds, the result of her cardiac arrest would have been any different.

The Supreme Court long ago affirmed that the “self-contradictory testimony rule” is not applicable to an expert witness and that the jury must resolve such issues:

Because a party to litigation is without power to prevent his or her witnesses from contradicting themselves when testifying, the party should not be held responsible under Prophecy when such contradictions inevitably arise in the testimony of expert witnesses. Furthermore, simply because an expert witness’s testimony is contradicted is no cause for disregarding it under the Prophecy rule — the fact that an expert witness’s testimony is contradictory has never rendered that testimony inadmissible. To the contrary, such contradictions go solely to the expert’s credibility, and are to be assessed by the jury when weighing the expert’s testimony.

Thompson v. Ezor, 272 Ga. 849, 853 (536 SE2d 749) (2000). The facts of Ezor are analogous. As summarized by the Supreme Court:

During discovery, Hayes [the expert witness] gave deposition testimony in which he stated that rather than being negligent, Thompson’s conduct was against “conventional wisdom” and “the party line.” Hayes also conceded that Thompson’s practices may actually have been “way ahead” of the ophthalmology profession, and Hayes admitted he was “not sure” Ezor was harmed by the second of the multiple vision correction operations that Thompson performed on her eyes.
Thompson then moved for summary judgment. Ezor responded by filing a second affidavit from Hayes, in which Hayes contradicted his deposition testimony by stating that Thompson had violated the standard of care by not waiting three months before performing the second surgery on Ezor’s eyes, and that Ezor had suffered permanent injury as a result.

Id. at 850. Despite the significant conflict in the expert’s testimony regarding the breach of care and causation, summary judgment was not proper in that case. See also Naik v. Booker, 303 Ga. App. 282 (692 SE2d 855) (2010) (jury must resolve conflict between expert’s deposition testimony regarding causation and affidavit on same topic).

Decided November 16, 2011.

Jimmy Hwang, for appellants.

Hall, Booth, Smith & Slover, Richard N. Sheinis, for appellees.

Because Dr. Chou’s testimony combined with the other evidence described above raises an issue of fact regarding Aleman’s malpractice claim against the defendants, we reverse the decision of the lower court granting the defendants’ motion for summary judgment.

Judgment reversed.

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


author: Smith, Presiding Judge.

text:
    A11A1462.
    PARTNERSHIP HOUSING AFFORDABLE TO SOCIETY EVERYWHERE, INC. v. DECATUR COUNTY BOARD OF TAX ASSESSORS.
    (719 SE2d 556)
   Smith, Presiding Judge.

Following a bench trial, the Partnership Housing Affordable to Society Everywhere, Inc. (“PHASE”) appeals from the superior court’s decision to uphold the denial of an ad valorem tax exemption to PHASE. PHASE contends the trial court erred by concluding that it does not qualify for a tax exemption under OCGA § 48-5-41 (a) (4). For the reasons set forth below, we affirm.

OCGA § 48-5-41 (a) (4) provides that “ [a]ll institutions of purely public charity” shall be exempt from all ad valorem property taxes. In order to qualify as an institution of “purely public charity” under this Code section, “First, the owner must be an institution devoted entirely to charitable pursuits; second, the charitable pursuits of the owner must be for the benefit of the public; and third, the use of the property must be exclusively devoted to those charitable pursuits.” (Emphasis supplied.) York Rite Bodies &c. v. Bd. of Equalization &c., 261 Ga. 558 (2) (408 SE2d 699) (1991). In a four-page order detailing its findings of fact and conclusions of law, the trial court determined that PHASE was not entitled to an exemption under OCGA § 48-5-41 (a) (4) because it was “not devoted entirely to charitable pursuits.”

On appeal, we are bound to defer to the trial court’s findings of fact, which shall not be set aside unless clearly erroneous, with due regard given to the opportunity of the trial court to judge the credibility of the witnesses. If there is any evidence to support the findings of fact by a trial court sitting without a jury, then the appellate court affirms without interference with or disturbing such factfindings.

(Citations and punctuation omitted.) Bd. of Tax Assessors &c. v. Baptist Village, 269 Ga. App. 848, 850 (1) (605 SE2d 436) (2004) (affirming trial court’s factual finding that 501 (c) (3) nonprofit did not hold “homes for the aged” for investment purposes and therefore did not lose its property tax exemption under OCGA § 48-5-41 (a) (12) (B)). See also Fulton County Bd. of Tax Assessors v. Visiting Nurse Health System &c., 256 Ga. App. 475, 477 (2) (b) (568 SE2d 798) (2002) (issue on appeal whether “any evidence” supports factfinder’s conclusion that appellee was “institution of purely public charity”).

The evidence presented to the trial court shows that PHASE is a nonprofit corporation exempt from federal taxation under Section 501 (c) (3) of the Internal Revenue Code. PHASE’S articles of incorporation describe its purpose as follows: “To receive and administer funds exclusively for educational and charitable purposes without pecuniary gain or profit, incidental or otherwise, to any individual, with particular emphasis on providing affordable housing to low-income persons, including farmworkers and the elderly.” Joyce M. Barr incorporated PHASE in 1996 and serves as its chief executive officer, president, and sole employee.

Barr testified that in 1998, PHASE applied for and obtained grants and loans to build Harvest Home Apartments for low-income farm workers. The apartments were completed in 2003. After experiencing low occupancy rates, in part, because the farm workers preferred living on the property where they worked, PHASE began renting the apartments to other people with “low and very low income.” Around the same time, PHASE took over management of the apartments and received management fees to cover its administrative overhead.

Harvest Home Apartments was built on three acres of a thirteen-acre tract purchased by PHASE. In 2004, PHASE sold 5.761 acres to Courtes de Emerald, LP (“Courtes I”) for $75,000. PHASE subsequently sold additional land to Courtes de Emerald II, LP (“Courtes II”), in 2008 for $67,500. Both of these limited partnerships built mixed-income apartments on the land purchased from PHASE. Some of the units were rented at market rate, “but 75 to 80 percent of the units are low-income, qualified units.” Rents in the low-income units were two or three hundred dollars less than the market rate for the same amenities.

According to Barr, she was paid only by PHASE for her role as “the main principal” developing the properties for the private limited partnerships. She received six-figure compensation from PHASE in 2007-2009, including bonuses in the $50,000 to $75,000 range.

An entity controlled by PHASE owned a nominal .01 percent interest in both limited partnerships. The remaining 99.99 percent interest in the limited partnerships was owned by investors who provided cash in exchange for offsets against their income from other sources via losses and depreciation from the limited partnerships. Neither of the limited partnerships was a nonprofit organization. Barr explained that “every time P[HASE] develops a property, we have to organize an ownership entity, and that’s why we have [four different entities]. Each one of those entities refers directly to the property that was developed. Aside from that, we serve as the . . . manager of the general partner.” PHASE paid the attorney fees to set up the limited partnerships with funds received from a government grant.

Barr testified that the limited partnerships and resultant tax credits furthered the mission of PHASE because it was “another excellent program that we can utilize to bring affordable housing to rural areas because otherwise these projects could not be built.” She further explained that PHASE receives a “developer fee as our income for developing the properties. And that’s PHASE’S main and only source of income is through developing properties.” Barr testified that “P[HASE]’s main overhead is my compensation.” She explained, “I have been a one person shop. ... I mean as a nonprofit, it’s just been me.”

It is undisputed that PHASE never made distributions to its board members or owners. The record also shows, however, that PHASE lent $229,950 to one of the limited partnerships, the same amount as a government grant received by PHASE. Barr testified that PHASE did not expect the loan to be repaid and that PHASE has not in fact been repaid. Barr explained that PHASE “had to . . . sort of loan the money to the partnership because that was the tax benefit that the investment partner wanted to see.” The money from this loan went into construction and was never paid back. Additionally, according to a deed to secure debt in the record, PHASE lent $67,500 to one of the limited partnerships on April 22, 2008, the same amount as the purchase price for one of the parcels of land sold on the same day. When shown the loan and the deed during cross-examination, Barr denied the existence of a loan and insisted that the sale “was a cash purchase.”

Based upon the “any evidence” standard of review, we affirm the trial court’s conclusion that PHASE was “not devoted entirely to charitable pursuits.” See Institute of Nuclear Power Operations v. Cobb County Bd. of Tax Assessors, 236 Ga. App. 48, 51 (1) (510 SE2d 844) (1999); Board of Equalization v. York Rite Bodies &c., 209 Ga. App. 359, 360 (433 SE2d 299) (1993). PHASE’S conduct in giving $229,950 to the limited partnership in the form of a loan that was not expected to be repaid served the noncharitable purpose of increasing the limited partners’ tax credits. This unearned increase in the tax credits provided pecuniary gain to the investors in violation of PHASE’S articles of incorporation, which provided that PHASE would “receive and administer funds exclusively for . . . charitable purposes without pecuniary gain or profit, incidental or otherwise, to any individual. ...” (Emphasis supplied.)

Decided November 16, 2011

Sutherland, Joshua A. Mayes, for appellant.

Hall, Booth, Smith & Slover, J. Brown Moseley, for appellee.

The Georgia Supreme Court’s recent opinion in Nuci Phillips Mem. Foundation v. Athens-Clarke County Board of Tax Assessors, 288 Ga. 380, 385 (2) (703 SE2d 648) (2010) (plurality opinion), does not alter this result. In Nuci Phillips, the Supreme Court addressed the impact of a 2007 amendment to OCGA § 48-5-41 (d) (2), which is not applicable here. The issue before the court was not whether an institution fulfilled the first prong of the York Rite test requiring that “the owner must be an institution devoted entirely to charitable pursuits.” Rather, the Supreme Court looked to the third prong of the York Rite test to decide whether the renting of space for private birthday parties and wedding receptions was a use of the property inconsistent with the requirement that it be used “exclusively” for the charitable purpose. Id. at 384-385 (1). There was no question in Nuci Phillips as to whether the charity was “devoted entirely to charitable pursuits.”

Judgment affirmed.

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


author: Barnes, Presiding Judge.

text:
    A11A1067.
    GREENE v. THE STATE.
    (722 SE2d 77)
   Barnes, Presiding Judge.

Following a jury trial in the State Court of Henry County, Harry Greene was found guilty of DUI less safe and DUI per se. The trial court denied his motion for new trial, and Greene appeals, contending that the trial court erred in denying his Sixth Amendment fair cross-section claim, and erred in refusing to give his requested charge on circumstantial evidence. Upon our review, we affirm.

1. The record below shows that before Greene’s jury trial, he submitted a written challenge to the jury array in which he maintained that the current jury list from which his array was drawn, of which 13.8 percent was African-American, is not a true representation of the voting-aged African-American population in Henry County. Greene contended that the composition of the jury list should reflect the more current population of African-Americans in the county of 31 percent, as found by the United States Census Bureau’s 2008 American Community Survey (“ACS”), rather than the 13.9 percent reflected in the 2000 census. The trial court proceeded with jury selection, but released the jury without swearing it in. It thereafter conducted an evidentiary hearing on the array challenge, and after denying the challenge, proceeded with Greene’s trial.

Under OCGA § 15-12-162,

[t]he accused may, in writing, challenge the array for any cause going to show that it was not fairly or properly impaneled or ought not to be put upon him. The court shall determine the sufficiency of the challenge at once. If sustained, a new panel shall be ordered; if not sustained, the selection of jurors shall proceed.

“[T]he Constitution does not guarantee that the jury impaneled in a particular case will be a representative cross-section of the community. The correct inquiry concerns the procedures for compiling the jury lists and not just the composition of a particular jury.” (Citations omitted.) Lane v. State, 239 Ga. App. 230, 231 (2) (b) (520 SE2d 705) (1999). In so inquiring, the party challenging the composition of a jury array bears the burden of showing that a distinct and identifiable group is significantly underrepresented in the array. Anthony v. State, 213 Ga. App. 303, 305 (2) (444 SE2d 393) (1994).

At the hearing, the clerk of the Henry County Superior Court, who is also the clerk of the county jury commission, testified that the commission compiles a master jury list every two years, composed of county residents with a driver’s license, a state-issued identification card, or who are registered to vote. See OCGA § 15-12-40 et seq. The commission determines how many grand and trial jurors the county courts should need for the next two years. It then draws that number of qualified jurors from the master list, using a formula so that the percentages of various cognizable groups — race, age, and gender — placed on the grand and trial jury lists match the percentages of those groups reported in the most current census. In this case, the percentage of African-Americans in the master list was 36.9 percent, but the commission reduced the percentage of African-Americans on the grand and trial jury lists to 13.9 percent because that was the percentage of African-American Henry County residents reported in the 2000 census. As of the hearing, the commission had not yet received the 2010 census.

Greene presented data from the ACS, the United States Census Bureau’s annual estimate of local population statistics, which showed that in 2008, Henry County’s African-American voting age population was 31.03 percent. His expert, a professor of industrial and systems engineering at Georgia Tech, testified as to the veracity of the methodology and results of the ACS. The expert testified that the true proportion of Henry County’s African-American voting age population is at least fifteen percent higher than that reflected by the jury list, and was increasing by about two percent per year.

In its motion denying Greene’s challenge to the jury array, the trial court found that he had

introduced evidence from the jury commission and from the ACS to show the disparity between the proportion of African-Americans on the jury list and the proportion of African-Americans in the jury-eligible community at large is at least 17% . . . [and] therefore met [his] burden to prove the state-mandated procedure systemically excluded African-Americans from the jury array.

The trial court, however, concluded that, even though Greene had made a prima facie showing of a fair cross-section violation, the State demonstrated a significant state interest to rebut the prima facie showing, in that it “is justified in using the Decennial Census as part of the State’s significant interest in ‘obtaining comprehensiveness and objectivity’ in the jury array construction process.”

To make a prima facie claim of a fair cross-section violation, a defendant must show (1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group [on the trial jury list] is not fair and reasonable in relation to the number of such persons in the community; and (3) that this under-representation is due to systematic exclusion of the group in the jury selection process. A fair cross-section claim is “almost identical” to a claim raised directly under the equal protection clause of the Fourteenth Amendment, ‘ ‘with the one prominent exception being that the claimant need not demonstrate any intent to under-represent a cognizable group. However, a prima facie showing of a fair cross-section violation can be rebutted if the State can demonstrate that “attainment of a fair cross section (is) incompatible with a significant state interest.”

(Citations and punctuation omitted.) Williams v. State, 287 Ga. 735, 737-738 (2) (699 SE2d 25) (2010).

Greene maintains that the trial court erred in finding that the State had rebutted his prima facie case by showing that it has a sufficient state interest in using the Decennial Census head count because the Unified Appeal Procedure (“UAP”) does not apply to misdemeanor cases. The UAP requires the trial court in a case in which the death penalty is sought to compare the percentages of cognizable groups on the grand and trial jury lists with the percentages of those groups in the population as measured by the most recent available census report; to certify there is no significant under-representation of any of those groups; and to correct any such significant under-representation. UAP II (C) (6); OCGA § 15-12-40; Ramirez v. State, 276 Ga. 158, 163 (3) (575 SE2d 462) (2003).

The UAP states that there should be no imbalances for cognizable groups greater than five percent, UAP II (E). In Williams, however, where African-American persons were under-represented by 17.49 percent, our Supreme Court held:

[T]he [UAP] provides a statewide procedure for creating and evaluating jury source lists, and that method was designed by this Court to promote adequate representation of cognizable groups through the use of a comprehensive and objective standard, the same standard that is invoked with unqualified confidence in the case relied upon by the dissent. Although, in some instances, that procedure may create temporary, self-rectifying anomalies as Decennial Census reports grow old, we conclude that the ill done by those temporary anomalies is outweighed by the other benefits of the procedure. Based upon our careful consideration of the issue, we hold that a continued adherence to the requirements of the [UAP] regarding the balancing of cognizable groups to match the most-recent Decennial Census is justified by a sufficiently-significant state interest.

Williams v. State, 287 Ga. at 738 (2).

Although Greene correctly maintains that the UAP does not apply to misdemeanor cases, we see no possible rationale for concluding that the State’s use of the Decennial Census to provide a “comprehensive and objective standard” to promote adequate representation would prove acceptable in capital cases, but not so in misdemeanor cases. Our Supreme Court has found that the “balancing of cognizable groups to match the most recent Decennial Census is justified by a sufficiently-significant state interest,” and we are bound by such determination because in this case that method was utilized. See Williams v. State, 287 Ga. at 738 (2). Accordingly, the trial court did not err in denying Greene’s fair cross-section challenge to the jury array.

2. Greene also contends his conviction should be reversed because the trial court erred in failing to give his requested jury charge on circumstantial evidence. We do not agree.

Greene was found guilty of DUI less safe, OCGA § 40-6-391 (a) (1), and DUI per se, OCGA § 40-6-391 (a) (5). The officer who stopped Greene testified that he performed field sobriety tests on Greene, and that during the horizontal gaze nystagmus test, Greene exhibited a lack of smooth pursuit, “visible jerks,” and onset of nystagmus prior to 45 degrees. According to the officer, Greene also exhibited poor balance while performing the walk and turn test, and showed poor balance when performing the one-leg stand test. The officer also discovered a clear water bottle in Greene’s vehicle that contained a “non-clear liquid” and emitted “a very strong odor” of alcohol. The officer arrested Greene for DUI less safe. After the officer read him the implied consent warning, Greene elected to take a breath test, which was later performed at the jail on an Intoxilyzer 5000. That test resulted in 0.080 and 0.083 readings for blood alcohol concentration.

The bright-line rule established by the Supreme Court in Mims v. State, 264 Ga. 271 (443 SE2d 845) (1994), imposes a duty upon the trial court to give this charge when “the case includes both direct and circumstantial evidence and the defendant has requested a charge on circumstantial evidence.” (Citation omitted; emphasis supplied.) Id. See also Taylor v. State, 278 Ga. App. 181, 183 (2) (628 SE2d 611) (2006). We have held that in a DUI case,

the result of a blood alcohol test of a driver showing alcohol content greater than [0.08] must be characterized as direct evidence; it is consistent only with the conclusion that the person from whom the blood was drawn was in violation of OCGA § 40-6-391 (a) (5). ... By the same token, the opinion testimony of a trained officer based upon his observation of an accused that the accused was impaired and a less safe driver is consistent only with the conclusion that the accused was driving in violation of OCGA § 40-6-391 (a) (1). It, too, is direct evidence. But the evidence upon which the officer’s opinion is based must be characterized as circumstantial. Failing field sobriety tests, for instance, may be caused by illness or handicap; the odor of alcohol about one’s person may derive from alcohol inadvertently spilled on one’s clothing by another.

Decided November 17, 2011

David C. Abbott, J. Scott Key, for appellant.

Charles A. Spahos, Solicitor-General, Brian M. Johnston, Assistant Solicitor-General, for appellee.

Waits v. State, 232 Ga. App. 357, 359 (2) (501 SE2d 870) (1998).

Pretermitting whether the trial court erred in failing to charge the jury on circumstantial evidence, Greene’s request was predicated upon the DUI less safe count, which was merged into the DUI per se conviction. In light of the merger, the DUI less safe count is void, and any error as to that count was harmless. See Daniel v. State, 298 Ga. App. 245, 248-249 (4) (679 SE2d 811) (2009); Harrelson v. State, 287 Ga. App. 664, 667, n. 4 (653 SE2d 98) (2007) (“As merger renders a conviction void, any error as to that count [is] harmless.”) (punctuation omitted).

Judgment affirmed.

Adams and Blackwell, JJ., concur.

       OCGA § 40-6-391 (a) (1).

       OCGA § 40-6-391. (a) (5).

       In the “Jury Composition Reform Act of 2011,” the legislature repealed OCGA §§ 15-12-40 through 15-12-45, effective July 1, 2012, and substituted OCGA § 15-12-40.1, which establishes a system for producing a statewide master jury list from which county jury commissions will obtain their master jury lists.

       Generally, an absolute disparity between the percentage of a group in the population and its percentage on the jury list of less than five percent is almost always constitutional; an absolute disparity between five and ten percent is usually constitutional; and an absolute disparity of over ten percent is probably unconstitutional. Morrow v. State, 272 Ga. 691, 692 (1) (532 SE2d 78) (2000).


text:
    A11A1247.
    In the Interest of S. F., a child.
    (719 SE2d 558)
   Smith, Presiding Judge.

Following a hearing, 14-year-old S. F. was adjudicated delinquent after admitting to acts which, if committed by an adult, would constitute the crimes of assault and robbery. The juvenile court sentenced S. F. pursuant to OCGA § 15-11-63 (a) (2) (B) (ii), which classifies certain offenses as “designated felony acts,” and ordered that he be placed in the custody of the Department of Juvenile Justice for five years and confined in a youth development center for thirty months.

S. F. appeals contending that the juvenile court participated in the “plea negotiation” by offering him a “plea,” and then threatened him with a longer term of confinement if he elected to proceed with the adjudication rather than entering an admission. He also claims that the juvenile court failed to make the requisite findings of fact pursuant to OCGA § 15-11-63 (c). For the following reasons, we affirm.

1. S. F. first contends that the juvenile court “directly involved [itself] in the so-called plea negotiation,” and threatened him with a longer term of confinement if he proceeded with adjudication rather than entering an admission. At the beginning of the hearing, S. F.’s counsel announced that the defense was ready for the bench trial. After the State outlined the facts of the case at the request of the court, the court asked about the disposition of S. F.’s juvenile co-defendant. The State explained that the co-defendant made an admission and received “thirty six months.” The court explained:

The only thing I would agree to do in this case would be to give [S. F] the same thing that the other guy got. I wouldn’t give him any[ ]more. I’m not gonna give him any less. I believe if the facts come out as they appear to be, [he] would be a party to a crime and equally culpable ... of course I mean I would listen to your presentation.

S. F.’s counsel responded: “I think that my client would like to go for the trial.” The court then proceeded to swear in the witnesses after which the following colloquy took place:

[The State]: Your Honor, as the first witness, we’d call Deputy —
[The Court]: [Defense counsel], let me ask you a question. He knows what he’s facing?
[Trial Counsel]: Uh, huh.
[The Court]: And the other, he knows — [the co-defendant] pled, right? Do you understand that he’s facing the entire ball of wax?
[Trial Counsel]: I mean I —
[The Court]: Do you want to talk to him one more time?
[Trial Counsel]: I will.
[The Court]: Just let him know that they’re facing the whole thing.
[Trial Counsel]: Yeah.
[The Court]: The judge’s indication that he would plea to three years, which this other gentleman got, would be similar to a plea offer as opposed to anything else.
[pause while counsel conferred with S. E]
[The Court]: [Defense counsel], do you have an announcement in this case for the record?
[Trial Counsel]: Yes, sir. [S. E] would like to enter his admission at this time.

The court then posed a series of questions to determine that the admission was knowing and voluntary. In response to the court’s inquiries, S. F. responded affirmatively that he understood the rights he was waiving, including the right to a trial and to present witnesses. At the end of this inquiry, the court asked S. E: “I’m asking you today, right now, do you want to continue this admission or do you want to have a trial?” S. F. responded: “I’ll just go ahead today [and continue with the admission].” S. F. admitted that he and his co-defendant were “over at the track messing around,” and that he was “talking to the lady at the gate, asking her which horse was gonna win” when his co-defendant hit the victim on the head with a brick. S. F. stated further that he ran and that when he looked back he saw the victim on the ground. The court found that S. F. was a party to the crime of aggravated assault for hitting the victim on the head and a party to the crime of robbery for taking the victim’s waist bag containing $200.

The Georgia Supreme Court recently held in Pride v. Kemp, 289 Ga. 353 (711 SE2d 653) (2011), that

[j Judicial participation in plea negotiations is prohibited as a constitutional matter when it is so great as to render a guilty plea involuntary. A guilty plea must be knowingly and voluntarily entered. Making a knowing and voluntary plea requires an understanding of the nature of the charge, the rights being waived, and the consequences of the plea. Due to the force and majesty of the judiciary, a trial court’s participation in the plea negotiation may skew the defendant’s decision-making and render the plea involuntary because a defendant may disregard proper considerations and waive rights based solely on the trial court’s stated inclination as to sentence.

(Citations and punctuation omitted.) Id. at 354. See also Uniform Superior Court Rule 33.5 (A).

Here, trial counsel announced twice that S. F. was ready to proceed with the bench trial, after which the juvenile court stated: “The judge’s indication that he would plea to three years, which this other gentleman got, would be similar to a plea offer as opposed to anything else.” Because the juvenile court presented S. F. with a “plea offer” of three years of confinement if he made an admission rather than proceeding with the adjudication, the court inappropriately participated in the “plea negotiation.” See, e.g., Ealey v. State, 310 Ga. App. 893 (714 SE2d 424) (2011).

But the court’s participation in this case was not so great as to make S. F.’s admission involuntary. First, following S. F.’s indication that he wished to make an admission, the juvenile court engaged S. F. in the standard colloquy to determine if S. F. made the admission knowingly and voluntarily. After S. F. stated that he understood the rights he was waiving, he again informed the court that he wished to proceed with an admission.

Second, the juvenile court did not make any threats of a longer term of confinement if S. F. chose to go to trial, nor did it offer S. F. any benefit for making an admission. Compare Pride, supra, 289 Ga. at 354-355 (improper for court to repeatedly state it would impose longer sentence if defendant went to trial); Ealey, supra, 310 Ga. App. at 898 (waiver of right to jury trial invalid where court remarked it would take into consideration fact that court’s time was being used if defendant opted for jury trial and that it intended to “bestow . . . benefits” upon defendant “in exchange for his waiver of the right to a jury trial”); Skomer v. State, 183 Ga. App. 308, 309-310 (358 SE2d 886) (1987) (court improperly participated in plea negotiations by stating that it would consider giving defendants probation if they pled guilty). The juvenile court, sitting as the trier of fact, explained at the beginning of the hearing that it was inclined to give S. F. the same three-year term of confinement that S. F.’s co-defendant received, and then suggested that it would accept a “plea offer” of “three years” if S. F. gave an admission. Following the court’s acceptance of S. F.’s admission, the court ordered that S. F. serve thirty months in confinement, rather than the three years it originally stated it was inclined to impose. Under these circumstances, we cannot say that the juvenile court’s participation in the “plea negotiations” was such that it rendered S. F.’s admission involuntary in the absence of evidence that S. F. “disregard[ed] proper considerations and waive [d] rights based solely on the trial court’s stated inclination as to sentence.” (Citations omitted.) Pride, supra, 289 Ga. at 354.

2. In two enumerations, S. F. contends that the juvenile court failed to make the requisite findings to confine him pursuant to OCGA § 15-11-63 (c). OCGA § 15-11-63 (b) provides that when a juvenile is found to have committed a designated felony act, the order of disposition must include a finding based upon a preponderance of the evidence as to whether the juvenile requires restrictive custody. OCGA § 15-11-63 (c) requires the court to consider five relevant circumstances:

(1) The needs and best interests of the child; (2) The record and background of the child; (3) The nature and circumstances of the offense, including whether any injury involved was inflicted by the child or another participant; (4) The need for protection of the community; and (5) The age and physical condition of the victim.

“These findings not only provide a meaningful legal road map for the lower court in exercising discretion in effecting a fundamentally fair case disposition, but also assist the appellate court in its review of the merits of an appeal.” (Citation and punctuation omitted.) In the Interest of C. T., 197 Ga. App. 300, 303 (3) (398 SE2d 286) (1990).

(a) S. F. complains that the trial court did not “apply the statutory factors” because it was predisposed to give him the same term of confinement as his co-defendant. But although the court stated during the hearing that it would consider giving S. F. the same three-year term of confinement that his co-defendant received, the record reveals that the court, upon considering the evidence presented, made the requisite finding in its order to determine whether restrictive custody was required. Moreover, any discrepancy between any oral statement by the court and court’s written order must be resolved in favor of the written order. See In the Interest of S. S., 276 Ga. App. 666, 667 (624 SE2d 251) (2005).

(b) S. F. also complains that the court failed to make a specific finding regarding the fifth factor: the age and physical condition of the victim. He argues that the juvenile court failed to indicate if the age of the victim is an aggravating factor and failed to address the physical condition of the victim. See OCGA § 15-11-63 (c) (5). With regard to this factor, the juvenile court found that “the victim is a thirty-eight year old female . . . the victim was hit in the head with a brick, causing serious injuries.” Because the record revealed that the victim suffered severe lacerations to her head and had more than $4,000 in medical expenses as a result of the assault, the court’s finding was sufficient to satisfy the requirements of OCGA § 15-11-63 (c) (5). See In the Interest of J. A. C., 291 Ga. App. 728, 731 (3) (662 SE2d 811) (2008) (finding that juvenile was “in need of treatment and rehabilitation” satisfied the requirement that court considered needs and best interest of child); see also In the Interest of C. T., supra, 197 Ga. App. at 303 (3) (extent and depth of analysis to which each of five elements must be subjected is within sound discretion of court).

Judgment affirmed.

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

Decided November 17, 2011.

Craig T. Pearson, for appellant.

Tom Durden, District Attorney, Johnathan C. Gaskin, Assistant District Attorney, for appellee.


text:
    A11A1367.
    GOSS v. THE STATE.
    (719 SE2d 561)

   Smith, Presiding Judge.

Clement Goss appeals from his convictions of trafficking in cocaine and selling cocaine. In two enumerations of error, Goss contends the trial court erred by admitting evidence of similar transactions. We disagree and affirm.

The State presented evidence showing that Goss sold an undercover agent two ounces of cocaine for $1,400. Goss’s co-defendant, Dennis Wright, was also present for part of the sale. During this transaction, the undercover agent and Goss discussed a future transaction in which Goss would sell a kilo of cocaine to the agent. After additional telephone negotiations, Goss agreed to meet the undercover agent at a grocery store parking lot near Georgia 400 to sell him a kilo of cocaine for $23,000. Goss arrived at the grocery store in a truck driven by Wright and got out of the truck and into the agent’s truck with a bag containing 982 grams of cocaine. When Goss accepted a partial payment of $10,000, he and Wright were arrested.

After a proffer from the State and hearing argument from counsel, the trial court ruled that it would allow the State to introduce evidence about two similar transactions, one from 2006 and the other from 2007. The rationale for the trial court’s decision was that Goss had requested a jury charge on duress, coercion or compulsion based upon evidence that Goss’s co-defendant had a loaded weapon pointed at Goss when he delivered the cocaine to the undercover officer. Before the evidence was introduced, the trial court charged the jury on the limited purpose of similar transaction evidence for showing “knowledge, intent, course of conduct, and bent of mind.”

With regard to the 2006 similar transaction, the State presented evidence showing that Goss was a rear seat passenger in a car that was stopped for a traffic violation while entering Georgia 400 near the Chattahoochee River. When the officer smelled marijuana, he asked all three occupants to exit the car. After obtaining consent to search Goss and searching everything except his shoes and socks, the officer found $1,256 cash in his pocket. When the officer searched the car, he located a Luger pistol with eight rounds in the magazine under the driver’s seat directly in front of where Goss had been sitting. After locating the firearm, the officer searched Goss again and discovered in his shoes five bags of cocaine with a total weight of twenty-one grams. Based upon the total weight, the packaging, the gun at Goss’s feet, and the amount of cash found on his person, the arresting officer testified to his opinion that Goss “was actively engaged in the sale of cocaine.”

With regard to the 2007 similar transaction, the State presented evidence showing that Goss was arrested on an outstanding arrest warrant during a routine traffic stop on Georgia 400. The officer searching Goss after his arrest discovered a clear plastic bag in his pocket with a white powder in it that Goss acknowledged was cocaine. While being transported to jail, Goss repeatedly banged his leg in the back seat area, claiming that he had a cramp in it. When the officer removed Goss from the patrol car, his left shoe had come off. A search of the patrol car revealed a plastic bag under the driver’s seat containing two small plastic bags of cocaine and one small plastic bag of opium. The officer testified that these bags, in addition to the $460 cash found on Goss’s person during booking, “indicat[ed] that he possessed the drugs to distribute them.”

Goss testified in his own defense and claimed that he was merely a drug user coerced into selling and delivering the cocaine because he owed money to Wright. He claimed that Wright had threatened harm to him and his family and also held a loaded and cocked weapon during the delivery of cocaine to the undercover officer.

On appeal, Goss claims the trial court erred by admitting the similar transactions because the State did not meet its burden of demonstrating sufficient similarity. We disagree.

“We review the trial court’s determination that the similar transaction evidence was admissible under an abuse of discretion standard.” (Citation and footnote omitted.) Williamson v. State, 300 Ga. App. 538, 542 (2) (b) (685 SE2d 784) (2009). “When considering the admissibility of similar transaction evidence, the proper focus is on the similarities, not the differences, between the separate crimes and the crimes in question.” (Citation and punctuation omitted.) Gaudlock v. State, 310 Ga. App. 149, 152 (2) (713 SE2d 399) (2011). Here, both similar transactions and the instant case involved amounts or packaging of cocaine consistent with sale or distribution. In all three cases, the cocaine was directly handled by Goss, he used a car to transport the cocaine, and he was arrested on or near Georgia 400. Based upon these similarities, we cannot conclude that the trial court abused its discretion by admitting the similar transaction evidence. Id.; Williamson, supra, 300 Ga. App. at 542-543 (2) (b).

Decided November 17, 2011.

Mary Erickson, for appellant.

Penny A. Penn, District Attorney, James A. Dunn, Assistant District Attorney, for appellee.

The cases cited by [Goss] to show lack of similarity are distinguishable. See Vaughan v. State, 251 Ga. App. 221, 223 (2) (553 SE2d 335) (2001) (prior conviction for cocaine possession based on possession of crack pipe with cocaine residue not admissible to show motive and identity in subsequent case involving cocaine sale); King v. State, 230 Ga. App. 301, 302-304 (1) (496 SE2d 312) (1998) (ten-year-old conviction for methamphetamine sale not admissible as similar transaction in case involving possession of methamphetamine in bodily fluids where defendant claimed drug was put in his coffee without his knowledge or consent).

Williamson, supra, 300 Ga. App. at 543 (2) (b), n. 12. See also King v. State, 242 Ga. App. 642, n. 1 (530 SE2d 744) (2000) (distinguishing King, supra, 230 Ga. App. 301, for same reason).

Judgment affirmed.

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

       The trial court merged Goss’s sale of cocaine conviction into his trafficking conviction.