author: MERCIER, Judge.

text:
    A16A1184.
    THE STATE v. CROWDER.
    (791 SE2d 423)
   MERCIER, Judge.

On October 24,2014, the State filed an indictment against Curtis Crowder, alleging that between January 1,2004and June 30,2010he committed the offenses of unlawful conversion of sales and use taxes, theft by taking, and false swearing. Crowder filed a motion for plea in bar, contending that the indictment was barred by the applicable four-year statute of limitation. After an evidentiary hearing, the trial court entered an order granting Crowder’s motion. The State appeals, contending that the statute of limitation was tolled pursuant to OCGA § 17-3-2 because the crimes were unknown to the State until at least October 29, 2010. See OCGA § 5-7-1 (a) (3) (pertinently, permitting an appeal by the State from an order sustaining a plea in bar). Finding no error, we affirm.

The appellate standard of review for a plea in bar asserting a statute of limitation defense is a de novo review of the issue of laws. As this ruling involves a mixed question of fact and law, we accept the trial court’s findings on disputed facts and witness credibility unless they are clearly erroneous, but independently apply the law to the facts.

State v. Conzo, 293 Ga. App. 72, 73 (666 SE2d 404) (2008) (citations omitted).

The evidence shows that Crowder owned and operated Syntellus Dataworks, LLC (“Syntellus”), which sold computer hardware and information technology services. In 2003, Crowder applied for and received a sales tax identification number from the Georgia Department of Revenue (“DOR”) for his business, showing his intent to collect sales tax. During the spring of 2010, Joe Paris, a tax specialist employed by the DOR, began conducting a routine sales tax audit of Syntellus. During the course of the audit, Paris’s co-worker and office-mate, Sharon Martin, was processing a sales tax refund request submitted by SunTrust Bank when, in August 2010, she discovered that Syntellus had collected sales tax from customer SunTrust Bank in 2006, 2007, and 2008, but had not remitted any sales tax to the State. Martin knew that Paris was conducting a sales tax audit of Syntellus, so she informed Paris in August 2010 about SunTrust’s sales tax refund request, told him that Crowder had signed refund certificates indicating that he had collected and remitted taxes in connection with the sales, and informed him of her discovery that Crowder had not filed any sales tax returns and had not remitted any sales tax. Martin sent the signed certificates to Paris in August 2010. The DOR denied the refund request because no sales tax payments had been remitted.

On September 8, 2010, Paris met with Crowder, at which time Crowder showed him copies of Syntellus’s Georgia sales tax returns for all audit years from 2004 forward. Paris testified that the returns showed sales tax due from Syntellus to the DOR and that, by the end of that meeting, he knew that Crowder had collected the sales tax and had failed to remit it. Paris asked Crowder at the meeting why he had not remitted the sales tax and stated that they would “work out” repayment terms. Paris also testified that he knew in July 2010 that there had been no sales tax payments made on Syntellus’s account since the business opened in 2003; that was Paris’s reason for expanding the audit period back to January 1, 2004.

On October 1, 2010, the DOR sent Crowder a notice to produce documents related to Syntellus’s sales tax compliance. In response, Crowder sent summaries of sales rather than details of individual transactions. Finding Crowder’s response insufficient, the DOR issued a tax assessment on October 29, 2010; the assessment contained an estimate of Syntellus’s sales tax liability based on the sales summaries. Crowder protested the assessment and submitted detailed invoices to the DOR in January 2011. According to the State, “[i]t was only upon receipt of this ‘invoice detail’ level of information that the Department of Revenue was able to accurately analyze Syntellus’ sales tax liability and determine whether any crime had been committed.”

On October 24, 2014, the State filed the indictment against Crowder on one count of unlawful conversion of funds collected for the benefit of the State (OCGA § 48-1-5), one count of theft by taking (OCGA § 16-8-2), and three counts of false swearing (OCGA § 16-10-71). As to the conversion charge (Count 1) and the theft charge (Count 2), the indictment alleged that between January 1, 2004 and June 30, 2010, Crowder converted and appropriated sales and use taxes Syntellus collected from retail customers. As to the false swearing charges (Counts 3, 4, and 5), the indictment alleged that Crowder executed three forms under oath, titled “Waiver of Vendor’s Rights for Refund of the Georgia Department of Revenue” (“waiver forms”), for the years 2006, 2007, and 2008, on which Crowder stated that the sales tax shown was collected from SunTrust Bank and remitted to the DOR. More specifically, Count 3 alleged that Crowder made the false statements on or about April 23, 2009, and Counts 4 and 5 alleged that he made the false statements on January 19, 2010. The indictment asserted that the five counts did not fall outside the four-year statute of limitation period otherwise applicable to these offenses “because, pursuant to OCGA § 17-3-2, the crime[s] [were] unknown until at least October 29, 2010.”

In his motion for plea in bar, Crowder requested that the charges be dismissed because they were not brought within four years of the dates on which the crimes were allegedly committed (to wit, January 1, 2004 through June 30, 2010), as required by OCGA § 17-3-1. Crowder added that the evidence and the law belied the State’s assertion that the government did not know of the alleged crimes before October 29, 2010.

In its order granting the plea in bar, the trial court noted that because the alleged crimes occurred no later than June 30, 2010, the October 24, 2014 indictment was filed outside of the four-year statute of limitation period, and that the prosecution for the crimes was thus barred unless the State proved that the limitation period was tolled pursuantto OCGA § 17-3-2 (2), as alleged in the indictment. The trial court further noted that the statute of limitation began to run for each count of the indictment on the date the State had actual knowledge of Crowder’s acts, and found that the State learned of the relevant acts “over the course of the audit [which began in the spring of 2010], well before DOR sent the assessment to [Crowder] on October 29, 2010.”

OCGA § 17-3-1 (c) provides, in relevant part, that prosecutions for felonies must be commenced within four years after the commission of the crime. See OCGA §§ 48-1-5, 16-8-12 (a) (1) (unlawful conversion of funds collected for benefit of State; felony treatment based on value); OCGA §§ 16-8-2, 16-8-12 (a) (1) (theft by taking; felony treatment based on value); OCGA § 16-10-71 (false swearing is punishable as a felony); see generally Pippin v. State, 166 Ga. App. 658, 659 (305 SE2d 408) (1983) (in determining value for felony versus misdemeanor treatment of theft, court applies the statutory dollar amount in effect at the time the crime was committed).

OCGA § 17-3-2 (2) pertinently states: “The period within which a prosecution must be commenced under Code Section 17-3-1... does not include any period in which . . . the crime is unknown.” Under OCGA § 17-3-2 (2), the knowledge of the victim (here, the DOR) is imputed to the State. See Royal v. State, 314 Ga. App. 20, 22 (1) (723 SE2d 118) (2012). “[T]he determination of when the crime was discovered is a factual one.” State v. Campbell, 295 Ga. App. 856, 858 (673 SE2d 336) (2009) (footnote omitted). The burden is on the state to prove that the crime occurred either within the statute of limitation, or, if an exception to the statute is alleged, to prove that the case falls within the exception. Martinez v. State, 306 Ga. App. 512, 522 (2) (702 SE2d 747) (2010); see State v. Mullins, 321 Ga. App. 671 (742 SE2d 490) (2013). Whether the state has met this burden is for the finder of fact. Merritt v. State, 254 Ga. App. 788, 789 (1) (a) (564 SE2d 3) (2002). “Exceptions will not be implied to statutes of limitation for criminal offenses, and... any exception to the limitation period must be construed narrowly and in a light most favorable to the accused.” Jannuzo v. State, 322 Ga. App. 760, 761-762 (746 SE2d 238) (2013) (citation and punctuation omitted).

The State argues that the DOR did not have actual knowledge of the crimes “until after the provision of information by Syntellus following the assessment of October 29, 2010,” and that it was only after it received the detailed invoices in January 2011 that the DOR was able to determine whether any crimes had been committed. We hold that the trial court’s finding that the DOR had actual knowledge of the acts underlying the charges prior to October 29, 2010, was not clearly erroneous.

As discussed above, the evidence included testimony that Crowder received a sales tax identification number from the DOR in 2003 for his “Resale” business, showing his intent to collect sales tax; that Paris, a DOR employee/auditor, knew in July 2010 that no sales tax had been paid on Syntellus’s account since the business opened in 2003; that Martin, a DOR employee/auditor, learned in August 2010 that Syntellus had sold goods to SunTrust Bank and collected sales tax on those sales; that the sales tax collected had not been remitted to the DOR; that Martin relayed that information to Paris, who had been conducting a sales tax audit of Syntellus since the spring; that in August 2010, Martin forwarded to Paris the waiver forms in which Crowder swore that he had collected the sales tax and remitted the tax to the DOR; that on Syntellus’s 2008 and 2009 Georgia corporate tax returns, filed on September 9, 2009 and September 17, 2010, Crowder disclosed to the DOR that the company sold computer hardware and that it had current sales tax liability exceeding $1 million; and that by early September 2010, Paris had “no doubt” that Crowder had collected sales tax and failed to remit the tax to the State. Although Paris testified that at the beginning of the audit he thought Syntellus was a service provider and therefore had no sales tax to return or remit, and that it was possible that Crowder was remitting the sales tax owed from a different account, the DOR had information before October 29, 2010 that contradicted those explanations. Thus, the trial court’s finding that the State had actual knowledge of the crimes before October 29, 2010, was not clearly erroneous. See Beauchamp v. State, 258 Ga. App. 871 (575 SE2d 731) (2002) (a “trial court’s findings of fact are not clearly erroneous if there is any evidence to support them”). Because the prosecution was not commenced until October 24, 2014, the trial court did not err in granting the motion for plea in bar.

The State asserts, however, that the statute of limitation period was tolled because “[y]ou don’t know anything until you see the details,” and Paris did not know “the details” until “after the assessment of October 29,2010 and the subsequent provision of information by Syntellus.” But there was evidence that the DOR had actual knowledge prior to October 29,2010, that Crowder had collected sales tax, had not remitted the tax, and had falsely sworn that he had remitted the tax to the DOR. The fact that the DOR may not have known some details or known that Crowder’s acts were criminal does not mean the DOR lacked actual knowledge of Crowder’s conduct for the purpose of tolling the prosecution. See State v. Lowman, 198 Ga. App. 8, 9 (400 SE2d 373) (1990). To avail itself of the tolling provision, the DOR must have lacked knowledge of the act itself. Id.; State v. Bragg, 332 Ga. App. 608, 611 (2) (774 SE2d 182) (2015) (physical precedent only). The statute of limitation cannot be tolled for the routine investigation of crimes, or based upon the subjective opinion of the DOR or the prosecutor as to whether there is enough evidence to file charges. See Jenkins v. State, 278 Ga. 598, 603 (1) (A) (604 SE2d 789) (2004); Bragg, supra. There being evidence that the DOR had actual knowledge of Crowder’s acts before October 29, 2010 (the earliest date the State alleged it had knowledge), the trial court did not err by finding that the State failed to prove that the exception to the statute of limitation applied in this case.

The cases upon which the State relies to support its position are inapposite. For instance, in one of those cases, State v. Campbell, supra, this Court reversed the grant of a plea in bar because the trial court had relied on an incorrect legal standard in determining when the tolling period ended — the trial court erroneously based its decision on when the injured party could have known or should have known of the criminal acts, rather than when the injured party had actual knowledge of the defendant’s conduct. Id. at 858. In the instant case, however, the trial court used the proper legal standard. And here, unlike in Campbell, there was evidence that the victim first learned of the alleged crimes within four years after they were committed. Id. at 856-857.

Likewise, in another case relied upon by the State, Harper v. State, 292 Ga. 557 (738 SE2d 584) (2013), the Supreme Court found, in relevant part, that the trial court erred by failing to analyze the statute of limitation issue in terms of the date that the crimes became known to the victim; the Court thus remanded the case for necessary factual findings applying the proper standard. Id. at 563 (3). Notably, the State contends that Harper supports its argument that actual knowledge exists only after the victim “see[s] the details.” But Harper does not state that. Further, the two cases are distinguishable in that in the instant case, the auditors were the victim’s employees, and the evidence showed more than the mere raising of “questions” during the four-year limitation period.

Finally, in Royal, supra, which involved an allegation that an insured (the defendant) committed disability insurance fraud, an employee of the defendant called the insurance company’s fraud hotline and reported that the defendant was working while receiving disability payments. Id. at 21 (1). This Court held that the tolling period ended when an investigator for the insurance company (the victim) met with the caller, reviewed documents during that meeting, and had “some corroboration of the [caller’s] allegations.” Id. at 22 (1). We held that the trial court did not clearly err by finding that the victim had actual knowledge of the specific acts constituting the crime once the victim’s investigator met with the caller and reviewed the documents provided during that meeting; the victim’s investigator believed that the documents provided some corroboration of the caller’s allegations. Id. In Royal, the tolling period ended on the date of that meeting — even though the investigator believed that the documentation provided “was not ‘enough at that point’ to report the suspected insurance fraud to the insurance commissioner,” and despite the fact that the investigator still wanted further documentation and conducted additional interviews before making any formal fraud referral to the insurance commissioner. Id. at 22-23. In the instant case, by contrast, the specific acts at issue were not reported to the victim in a phone call from a third party, but were discovered by the victim’s own employees/auditors. Further, the victim in this case had documentation and other evidence of the specific acts at issue within the limitation period, and well before October 29, 2010 (the earliest date the State claimed to have had knowledge of the acts). That Paris wanted to gather additional details or information (particularly after the September 8, 2010 meeting) did not toll the limitation period. See generally Jenkins, supra. Our decision in Royal does not provide otherwise.

As noted above, any exception to the limitation period must be construed narrowly and in a light most favorable to the accused. Jannuzo, supra. In this case, the trial court did not clearly err by finding that the State failed to meet its burden of proving that it lacked actual knowledge of the specific acts constituting the charged crimes during the limitation period. Thus, the trial court did not err by granting Crowder’s motion for plea in bar. See Jenkins, supra at 603 (1) (A).

Decided September 20, 2016.

Samuel S. Olens, Attorney General, Daniel A. Hiatt, Senior Assistant Attorney General, for appellant.

Chalmers Pak Burch & Adams, Byung J. Pak, for appellee.

Judgment affirmed.

Ellington, P. J., and Branch, J., concur.

       SunTrust made the refund request pursuant to a State technology rebate program, seeking a refund of sales taxes SunTrust paid for computer equipment purchased from Syntellus. To apply for the refund, SunTrust was required to obtain a certificate wherein the seller of the equipment stated under oath that he had collected the sales tax, had remitted the sales tax to the DOR, and was declining to claim the refund for itself. SunTrust submitted three such certificates to the DOR, which Crowder signed in April 2009 and January 2010. These certificates form the basis of Counts 3 through 5 of the indictment (false swearing).


source: Caselaw Access Project

author: Branch, Judge.

license: Public Domain

text:
    A16A0771.
    WEGMAN v. WEGMAN et al.
    (791 SE2d 431)
   Branch, Judge.

Following his mother’s death, Marc Wegman brought suit against his four brothers, alleging that they conspired to deprive him of his proper share of a family partnership and of his mother’s will. The trial court dismissed the action on the ground of forum non conve-niens largely because the estate and the partnership were based in Louisiana. Marc contends the trial court erred, in part because the trial court was not authorized to dismiss a case for forum non con-veniens without a motion on that ground and a statutorily-required stipulation from the defendants. We agree and reverse.

“[W]hen an appeal properly is taken from the grant or denial of a motion to dismiss under the doctrine of forum non conveniens, the appellant is entitled to meaningful appellate review, even if that review is only for an abuse of discretion.” Wang v. Liu, 292 Ga. 568, 570 (1) (740 SE2d 136) (2013). Accordingly, we will review this case for an abuse of discretion. Id.; see also Hawkins v. Blair, 334 Ga. App. 898-899 (780 SE2d 515) (2015).

In the verified complaint and the attached documents, Marc averred that he, his mother, and his four brothers (the brothers) were partners in the Wegman Limited Partnership. Following the death of his mother in Louisiana, the partnership terminated, and the partnership agreement required that the assets be liquidated and the proceeds distributed among the brothers. In addition, their mother’s will provided that her assets should be distributed evenly to all five brothers after accounting for one or more loans to Marc. On November 5, 2014, however, Marc, a Georgia resident, filed suit against his brothers in the Superior Court of Cobb County, asserting various claims, including conspiracy to defraud, stemming from his belief that the brothers failed to distribute to him his proper share of the proceeds of both the partnership and the will, as well as certain items of personal property. Marc also requested a temporary restraining order preventing the brothers from disposing of any contested property during the litigation. The court eventually granted a consent temporary restraining order and interlocutory injunction against Myles, the only defendant brother who lives in Georgia.

After being served with the suit, two brothers, Joseph and Myles, timely filed unverified pro se answers, and two brothers, Bradley and Brent, went into default; Bradley later filed an untimely verified answer. Neither Joseph, Myles, nor Bradley raised a defense of forum non conveniens in his answer. Marc later moved for default judgment against Bradley and also sought to compel discovery.

On March 16, 2015, Joseph and Myles, now represented by counsel, moved to dismiss the complaint for lack of subject matter jurisdiction and failure to state a claim. In their motion, Joseph and Myles asserted that Bradley, who lives in Louisiana, was both the executor of their mother’s estate, which was being probated in Louisiana, as well as the managing general partner of the partnership, which was also located in Louisiana. Joseph and Myles argued that Marc’s allegation of a conspiracy between the brothers, including Myles, the Georgia resident, “is a fiction created within Marc’s Complaint in an attempt to establish a basis for subject matter jurisdiction within a Georgia Court, rather than filing the case in the proper venue of the State of Louisiana.”

At a June 1, 2015 hearing on the motion to dismiss, Joseph and Myles argued that the court did not have subject matter jurisdiction and that Marc’s complaint failed to state a claim; they also questioned whether the court was “the proper forum” for the issues raised in the complaint, especially given that Bradley was the “sole person” responsible for decisions related to the will and the partnership. Counsel for Joseph and Myles consistently referred to this issue as one of “jurisdiction” regarding the properties and assets in Louisiana, and he never mentioned the doctrine of forum non conveniens nor argued that the Georgia forum, although proper, was inconvenient for the parties. The defendants also argued that there was no evidence of any conspiracy to defraud between the defendant brothers. Accordingly, they concluded, “if there is an issue at all, the issue is between Mr. Marc Wegman and Mr. Bradley Wegman and not [the other defendant brothers].”

Marc countered that his allegations of torts against joint tort-feasors were properly brought in Georgia where one of the defendants lived; he also argued that the court had personal jurisdiction over all of the defendants. Finally, Marc argued that the Georgia court was the proper forum under the Long Arm Statute. At that point, the court interjected, “[i]t’s not a forum non conveniens argument.” Marc agreed, but the court returned to the topic of forum non conveniens after finding that it had jurisdiction and that venue was proper in the superior court:

What I think is — without making a ruling, just letting you hear what I am thinking, I think that under Georgia law, general partnership law, long arm statute and all that, I think that they can file right here. Listening to the facts of the case, from the first time I heard this what has always been in my mind is whether or not this is forum non conveniens. That’s just the way I think of it. There are certain times when you could file here but it needs to be there. I’m not saying this is one of them.

The trial court then asked both parties to draft a proposed order detailing their arguments regarding the motion to dismiss. But instead of instructing that the proposed orders address the claims in the motion to dismiss — subject matter jurisdiction and failure to state a claim — the court told the brothers to focus instead on forum non conveniens:

[W]hat you need to do is not so much argue the facts, which would be kind of a summary judgment type thing, because [Marc] is absolutely correct. He’s pled what he needs to plead. I’m not concerned with subject matter jurisdiction. There is no court in Georgia other than the Superior Court that hears these cases, so I have the subject matter jurisdiction. I think I probably have personal jurisdiction, but I want to hear from you on that issue, but you need to be concentrating on the forum non conveniens.

When Marc asked for clarification regarding what to put in the proposed order, given that the court’s instruction that it was “not concerned with subject matter jurisdiction,” the court asked the parties to discuss personal jurisdiction briefly but to focus their proposed order on forum non conveniens:

I’m just telling you that the Judge is sitting up here saying is this a case of a convenient forum or not, and that’s really what I’m kind of thinking about, and that’s where the Judge has some discretion so — but I appreciate your arguments.

Although Marc submitted a proposed order, none of the defendant brothers submitted a proposed order regarding forum non conveniens or amended any previous filings to raise a defense of forum non conveniens. On September 29, 2015, the court entered an order in which it analyzed the seven factors in the forum non conveniens balancing test as given in OCGA § 9-10-31.1 and dismissed Marc’s case against all four defendants on that ground.

1. Among other things, Marc argues that the trial court did not have the authority to dismiss the case on the ground of forum non conveniens given that the defendants never moved for dismissal on that ground and never filed a stipulation required by the forum non conveniens statute. We agree.

Until relatively recently, Georgia trial courts had no authority to decline jurisdiction in a transitory action brought in a Georgia court by a Georgia resident where jurisdiction of a defendant could be obtained; in other words, Georgia common law did not allow dismissal of such actions based on forum non conveniens. See Holtsclaw v. Holtsclaw, 269 Ga. 163-164 (496 SE2d 262) (1998) (Georgia courts have no inherent authority to decline to exercise the jurisdiction otherwise granted by the Georgia Constitution); Richards v. Johnson, 219 Ga. 771, 776 (2) (135 SE2d 881) (1964) (even in a court of equity, the doctrine of forum non conveniens cannot defeat the legal right of a Georgia plaintiff to bring an otherwise proper action in a Georgia county where it has jurisdiction over the defendant); Atlantic Coast Line R. Co. v. Wiggins, 77 Ga. App. 756, 760 (49 SE2d 909) (1948) (“the doctrine of forum non conveniens [canjnot defeat jurisdiction . . . for residents of Georgia in cases where jurisdiction of a defendant can be obtained”); but see AT&T Corp. v. Sigala, 274 Ga. 137 (549 SE2d 373) (2001) (adopting the doctrine of forum non con-veniens in cases involving foreign plaintiffs). Accordingly, in Georgia “the doctrine of forum non conveniens is generally controlled by statutory provisions.” Holtsclaw, 269 Ga. at 164 (citations omitted); see, e.g., OCGA § 50-2-21 (effective July 1, 2003) (allowing application of forum non conveniens for a “civil cause of action of a nonresident accruing outside this state”); compare Sigala, 274 Ga. at 137 (holding that Georgia courts may exercise their inherent power to dismiss cases brought by nonresident aliens). As explained by our Supreme Court, “statutes codifying the doctrine [of forum non con-veniens] will prevail over the common law.” Sigala, 274 Ga. at 141.

In 2005, the legislature enacted OCGA § 9-10-31.1 “to provide that the courts of this state may under certain circumstances decline to decide cases under the doctrine of forum non conveniens.” Ga. L. 2005, p. 1, § 2. As shown above, this statute was adopted in derogation of the common law, and it therefore “must be limited strictly to the meaning of the language employed, and not extended beyond the plain and explicit terms of the statute.” Couch v. Red Roof Inns, 291 Ga. 359, 364 (1) (729 SE2d 378) (2012) (citation and punctuation omitted). The statute requires a written motion from a party in order to obtain a ruling on the ground of forum non conveniens:

(a) If a court of this state, on written motion of a party, finds that in the interest of justice and for the convenience of the parties and witnesses a claim or action would be more properly heard in a forum outside this state or in a different county of proper venue within this state, the court shall decline to adjudicate the matter under the doctrine of forum non conveniens. . . .

(Emphasis supplied.) OCGA § 9-10-31.1 further provides that a movant must file a stipulation waiving a defense asserting the statute of limitation if the case is to be dismissed or transferred:

(b) A court may not dismiss a claim under this Code section until the defendant files with the court or with the clerk of the court a written stipulation that, with respect to a new action on the claim commenced by the plaintiff, all the defendants waive the right to assert a statute of limitations defense in all other states of the United States in which the claim was not barred by limitations at the time the claim was filed in this state as necessary to effect a tolling of the limitations periods in those states beginning on the date the claim was filed in this state and ending on the date the claim is dismissed.

OCGA § 9-10-31.1 (b). “[S]uch a written stipulation ... is a mandatory condition precedent to the dismissal of a case under the doctrine of forum non conveniens.” Hewett v. Raytheon Aircraft Co., 273 Ga. App. 242, 250 (3) (614 SE2d 875) (2005), overruled on other grounds, Wang, 292 Ga. at 571 (1).

Strictly construing OCGA § 9-10-31.1, we hold that the statute does not authorize a trial court to dismiss a case on the ground of forum non conveniens without a written motion from a party and the required stipulation. Nothing in the statute indicates that a trial court is authorized to raise the issue of forum non conveniens on its own or to dismiss a case on that ground without the required stipulation. In this case, Bradley and Brent never moved to dismiss on any grounds, and Joseph and Myles did not move for dismissal under the doctrine of forum non conveniens, argue that the forum was simply inconvenient, or even offer a proposed order on that ground; they only argued that the court did not have subject matter jurisdiction and that the plaintiff had failed to state a claim. Although the defendants questioned whether the superior court was the “proper forum,” a forum non conveniens argument does not go to whether the forum is proper but to whether the forum is convenient based on a number of factors. In addition, the defendants never filed the necessary stipulation waiving the statute of limitation. We therefore hold that the trial court abused its discretion by dismissing the complaint on the ground of forum non conveniens. OCGA § 9-10-31.1 (a), (b).

2. Marc also argues that the trial court erred by dismissing the entire suit given that Bradley and Brent were in default and had therefore admitted jurisdiction and venue and that Joseph and Myles failed to raise a defense of forum non conveniens in their answers. Given our holding in Division 1 and given that Bradley and Brent had no motion to dismiss pending before the court below, the question of whether Bradley’s and Brent’s default would bar them from moving to dismiss for lack of a convenient forum is not ripe for review.

With regard to the waiver argument regarding Joseph and Myles, which we address because it is likely to arise upon remand, OCGA § 9-11-12 (b) requires parties to assert in their responsive pleadings “[e]very defense, in law or fact, to a claim for relief” including “improper venue,” and OCGA § 9-11-12 (h) provides for waiver of “defenses” including improper venue. But although OCGA § 9-10-31.1 is found in an Article entitled “Venue” in Chapter 10 of Title 9 of our Code, nothing in OCGA § 9-10-31.1 states that a motion to dismiss for forum non conveniens is a “defense” or that it is subject to the waiver provisions of OCGA § 9-11-12. There is no Georgia case on point, but generally under federal law the application of the doctrine of forum non conveniens is not seen as a defense subject to waiver. See Yavuz v. 61 MM, Ltd., 576 F3d 1166, 1173 (II) (B) (10th Cir. 2009) (“[F\orum non conveniens is a discretionary doctrine which is not waived by a party’s failure to raise it in an initial responsive pleading.... Under the doctrine of forum non conveniens, a court has the discretion to dismiss a case ‘even if jurisdiction and proper venue are established.’ ”); Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 3829 (4th ed.) (“Although the authority is not extensive,” “[ujnlike a motion to dismiss for improper venue under Rule 12 (b) (3),” a motion to dismiss for forum non conveniens “is not a ‘defense’ that must be raised by pre-answer motion or responsive pleading.”). Furthermore, as explained by one court,

there are sound logical reasons for not requiring a forum non conveniens motion to be made within the limited time period allowed for a defendant to file an answer or to move to amend his answer. . . . This time is certainly adequate to check the venue statutes and determine whether they have been met. However, the factors of equity and convenience, such as the location of important witnesses and evidence, which control a forum non conveniens motion may not be apparent without time-consuming investigation and, frequently, discovery.

Snam Progetti S.P.A. v. Lauro Lines, 387 FSupp. 322, 323 (S.D. N.Y. 1974) (citation omitted). We find this reasoning persuasive and, accordingly, hold that the failure to raise an issue of forum non conveniens in a responsive pleading does not waive the right to later file a motion on that ground under OCGA § 9-10-31.1. See UFJ Bank v. Ieda, 123 P3d 1232, 1240 (III) (A) (2) (a) (Haw. 2005) (“forum non conveniens cannot be said to fall within the scope of the defense of improper venue” and therefore it is not waived by failing to raise it in a responsive pleading); Marchman v. NCNB Texas Nat. Bank, 898 P2d 709, 721 (III) (N.M. 1995) (“Failure to assert the forum non conveniens issue in a pretrial motion or during the period allowed for defendant to file an answer does not constitute waiver.”) (citations omitted); but see Stevens v. Blevins, 890 P2d 936, 939 (Okla. 1995) (“The failure to attempt to invoke the intrastate forum non conve-niens doctrine before a party files an answer constitutes a waiver.”); Hunt v. Hunt, 629 S2d 548, 554 (III) (3) (Miss. 1993) (“Forum non con-veniens is extremely similar to a defense of improper venue, which must be presented to the trial court by either a motion or responsive pleading before trial or be deemed waived.”) (citations omitted) overruled on other grounds by Powell v. Powell, 644 S2d 269 (Miss. 1994).

Decided September 21, 2016.

The Hilbert Law Firm, Kurt R. Hilbert, for appellant.

Manning & Associates, John F. Manning, for appellees.

3. Finally, given our holding in Division 1, Marc’s contention that the trial court incorrectly analyzed the seven factors for addressing a non conveniens argument is moot.

Judgment reversed.

Ellington, P J., and Mercier, J., concur.

       The appellant has not raised any enumeration of error regarding these defendants’ failure to file a verified answer. See OCGA § 9-10-111 (“In all cases where the plaintiff files a pleading with an affidavit attached to the effect that the facts stated in the pleading are true to the best of his knowledge and belief, the defendant shall in like manner verify any answer.”).

       The court did not rule on either of Marc’s motions for default judgment or to compel discovery prior to ruling on the defendant brothers’ motion to dismiss.

       “Generally speaking, injuries to person or property of another arising ex contractu or ex delicto are of a transitory nature, and an action may be brought wherever the defendant may be found and served.” Louisville & Nashville R. Co. v. Meredith, 66 Ga. App. 488, 492 (18 SE2d 51) (1941) (citation omitted), aff’d, 194 Ga. 106 (21 SE2d 101) (1942).

       Although the court did state in its order that the ruling was “subject to receipt of Defendants’ stipulation to extend the Statute of Limitations during the course of this action,” even without a stipulation the court informed Marc via e-mail that “[t]he case was dismissed in its entirety on the ground of forum non conveniens.” (Emphasis omitted.)


text:
    A16A0871.
    THE STATE v. SPRIGGS.
    (791 SE2d 441)
   Branch, Judge.

After Andre Spriggs was charged with the armed robbery of a convenience store clerk whom he shot in the head, a trial court granted Spriggs’s motion to suppress two undated “selfie” cell phone videos in which he talked about making money by various means, including armed robbery. The State argues that the grant was erroneous because the videos were relevant and probative evidence of Spriggs’s intent and motive in the armed robbery We disagree and therefore affirm.

We review a decision to admit or exclude evidence under OCGA §§ 24-4-403 and 24-4-404 (b) only for a “clear abuse of discretion.” Bradshaw v. State, 296 Ga. 650, 656 (3) (769 SE2d 892) (2015) (citation and punctuation omitted). See also State v. Jones, 297 Ga. 156, 164 (3) (773 SE2d 170) (2015) (the exclusion of evidence under the balancing test of Rule 403 “is an extraordinary remedy which should be used only sparingly since it permits the trial court to exclude concededly probative evidence”) (citation and punctuation omitted).

At the hearing on the motion to suppress at issue, the State proffered evidence that on September 4,2014, Spriggs’s sister Amanda opened the door to the secured cashier area of the convenience store where she was working, admitting Spriggs, who entered and demanded that the man also working there get on his knees. Spriggs then shot the man in the head, grabbed cash from behind the counter, and ran out the door. Amanda called 911, providing the dispatcher with a false description of the shooter in order to deflect attention from herself and her brother. Text messages between the two showed that they had planned and executed the robbery together.

Spriggs and his sister were arrested and charged with attempted murder, armed robbery, aggravated assault, aggravated battery, and possession of a firearm during the commission of a felony The State filed a notice of its intention to introduce two videos from Spriggs’s cell phone, which was seized in the wake of his arrest, on the ground that the videos were relevant to show Spriggs’s intent, knowledge, plan, motive, opportunity, and preparation as authorized by OCGA § 24-4-404 (b). Although Spriggs told police that he “never had no gun in [his] possession, period,” both videos, which are not included in the appellate record, apparently show him holding a handgun. The parties agree that in the first video, Spriggs says to the camera, “I sit back and think, man, of the ways I can make money Shit. Nine to five, selling dope, or just straight robbing n******.” In the second, Spriggs says, “Yea man, I’m an ATB azz, n***** man. Affiliated with the trap boyf, ]man. N***** try me, man, they know what’s happening, man. We stay strapped like a foo foo and I don’t give a f***. I’ll blow your f***ing head off, you hear me. Straight like that.”

After a hearing at which the trial court viewed the two videos, the court noted that the State had failed to provide any evidence “as to when or under what circumstances” Spriggs had made the videos or that “the videos were linked to the indicted incident in any way.” Accordingly, the trial court held that the State failed to show that the videos “would prove anything other than [Spriggs’s] propensity to rob or injure others.” Finally, the trial court held that any probative value the videos may have had “would be substantially outweighed by its undue prejudice” to Spriggs. The State brought this appeal under OCGA § 5-7-1 (a) (5). On appeal, the State concedes that the videos are not linked to the armed robbery and thus are not intrinsic to that crime. Rather, the State asserts that the trial court erred when it excluded the videos as extrinsic evidence under OCGA §§ 24-4-403 and 24-4-404 (b) because they were relevant and probative as to Spriggs’s intent and motive to commit the armed robbery at issue. See Baughns v. State, 335 Ga. App. 600, 602 (1) (782 SE2d 494) (2016).

Under the three-part test adopted by our Supreme Court in Bradshaw and Jones, when the State seeks admission of “extrinsic” or “other acts” evidence, it must show that the proffered evidence

(1) . . . is relevant to an issue other than a defendant’s character, see Rule 404 (b); (2) the probative value of the other acts evidence is not substantially outweighed by its unfair prejudice, i.e., the evidence must satisfy the requirements of Rule 403; and (3) there is sufficient proof so that the jury could find that the defendant committed the act in question.

Jones, 297 Ga. at 158-159 (1) (citations omitted; emphasis supplied), citing Bradshaw, supra.

As an initial matter, it is undisputed that Spriggs made the videos at issue here. The third part of the above test for the admission of relevant evidence under Rules 403 and 404 (b) is thus satisfied. Turning to the first and second parts of the same test, then, we consider whether (1) the videos were “relevant to an issue other than [Spriggs’s] character” and (2) even if so, the trial court abused its discretion in excluding them as unfairly prejudicial under Rule 403.

1. OCGA § 24-4-404 provides that, with the exception of character evidence admissible under subsections (a) (1), (2), and (3),

[e]vidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. . . .

OCGA § 24-4-404 (b) (emphasis supplied). Rule 404 (b) is, “on its face, an evidentiary rule of inclusion which contains a non-exhaustive list of purposes other than bad character for which other acts evidence is deemed relevant and may be properly offered into evidence.” Jones, 297 Ga. at 159 (2) (citations omitted).

To satisfy the first prong of the test for admission of extrinsic acts, the State had to show that the evidence of the extrinsic acts was “relevant to an issue other than [Spriggs’s] character.” Jones, 297 Ga. at 158-159 (1); see also Olds v. State, 299 Ga. 65, 75 (2) (786 SE2d 633) (2016) (“Evidence is relevant if it has ‘any tendency’ to prove or disprove a fact[.]”) (quoting OCGA § 24-4-401) (emphasis in original). Although the State argued below that the videos were relevant to show opportunity and preparation, the State has not renewed these arguments on appeal. We therefore consider whether the videos were relevant, even as extrinsic evidence, to prove Spriggs’s intent or motive to commit the armed robbery under Rule 404 (b).

Our Supreme Court has recently clarified that

evidence that an accused committed an intentional act generally is relevant to show — the evidence, in other words, has some tendency to make more or less probable — that the same defendant committed a similar act with the same sort of intent, especially when the acts were committed close in time and in similar circumstances. See generally 2 Wein-stein’s Federal Evidence § 404.22 [1] [a] (“The requisite intent maybe inferred from the fact that, after being involved in a number of similar inciden ts, the defendant must have had a mental state that is inconsistent with innocence.”)[.]

Olds, 299 Ga. at 72 (2) (citations omitted; emphasis omitted and supplied). As the Eleventh Circuit has noted, “if the extrinsic acts require the same intent as the charged offenses and if these acts are proximate in time to the charged offenses, then the extrinsic act is highly probative.” United States v. Church, 955 F2d 688, 702 (IV) (A) (11th Cir. 1992) (citation and punctuation omitted; emphasis supplied).

In order to prove that Spriggs committed armed robbery, the State would have to show that Spriggs had “the intent to commit theft and did so with an offensive weapon or any device having the appearance of such weapon.” Worthy v. State, 237 Ga. App. 565, 567 (2) (515 SE2d 869) (1999), citing OCGA § 16-8-41 (a) (defining armed robbery) (citation and punctuation omitted). Thus the State might have obtained admission of the videos at issue if it had shown that Spriggs’s extrinsic act of making the videos was “a similar act with the same sort of intent” as that of committing armed robbery. Olds, 299 Ga. at 72 (2) (citation omitted). The State has not shown, however, that Spriggs’s act of making the videos amounted to any criminal act, let alone that it required the same or similar intent as the charged offense of armed robbery The acts of making the videos and of committing the armed robbery are thus not “similar acts” for purposes of Rule 403 because they do not share “the same sort of intent.” Olds, 299 Ga. at 72 (2) (citations omitted). There is no evidence here, for example, that any of the statements made in the videos, even if threatening, identified or were communicated to any prospective victim such that they could have amounted to a terroristic threat. See, e.g., Sidner v. State, 304 Ga. App. 373, 375-376 (1) (696 SE2d 398) (2010) (reversing conviction for terroristic threats when there was no evidence that the defendant’s threat was communicated to any victim). Further, and as the trial court noted, the State has provided no evidence that the two acts of making the video and committing the armed robbery were “committed close in time and in similar circumstances.” Olds, 299 Ga. at 72 (2).

A recent decision from the Eleventh Circuit provides us with an instructive scenario as to when a videotape of an extrinsic act would be admissible as probative and not unduly prejudicial under Rule 404 (b) and confirms our conclusion that the videos before us do not present such a scenario. In United States v. Hodges, 616 Fed. Appx. 961 (11th Cir. 2015), “[t]wo witnesses with knowledge testified as to the contents and the circumstances of discovery” of videos and photographs “taken from a computer or external hard drive” showing the defendant “sitting beside what appear[ed] to be marijuana and a digital scale” and also showing “marijuana displayed alongside cash, a digital scale, and guns[.]” Id. at 966-967 (I) (C). The Eleventh Circuit held that the videos and photographs were relevant to Hodges’s “intent to distribute the marijuana found in the house” as well as his “intent to exercise control over the guns found outside” the house, and thus to the charged offenses of possession of marijuana with intent to distribute and possession of firearms in furtherance of drug trafficking. Id. at 967 (I) (C). A jury could reasonably conclude that the acts portrayed on the videos in Hodges were committed with the same criminal intent as those charged, with the result that the videos portraying such acts would be admissible extrinsic evidence under Rule 404 (b). Here, as we have noted, Spriggs’s making of the videos was not a criminal act, with the result that the State has failed to show that the making of the videos and the armed robbery were “similar act[s] with the same sort of intent.” Olds, 299 Ga. at 72 (2).

The result is the same as to the State’s argument that the videos were admissible as extrinsic evidence to show motive in the armed robbery. As an example, the Eleventh Circuit has ruled that prior drug convictions are not only “highly probative of intent” as to charged drug and firearm offenses, but also “probative of [the defendant’s] knowledge of the drug trade [as showing] his motive to possess a gun.” United States v. Johnson, 348 Fed. Appx. 468, 469 (11th Cir. 2009); see also Bradshaw, 296 Ga. at 657 (3) (evidence of a prior murder was relevant to motive “because it demonstrated [defendant’s] willingness to use violence when he or someone close to him is cheated in a drug deal”) (citation omitted). By contrast, Spriggs’s act of making videotapes containing vague threats and showing him in possession of a gun does not demonstrate motive, as these acts were not in themselves criminal. Further, the fact that Spriggs possessed a gun in the armed robbery he allegedly committed “do[es] nothing to distinguish [Spriggs] from most other robbers or to prove a specific motive for this crime.” Milich, Georgia Rules of Evidence, 2015-2016 ed., § 11.13, pp. 317-318, n. 6. Instead, such facts show only a mere propensity to commit armed robbery, and are thus inadmissible. Id.

2. Even if we assume that the videos were relevant to prove intent or motive to commit the armed robbery, the second part of the test for admission of extrinsic evidence provides that a trial court may exclude “[Relevant evidence .. . if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” OCGA § 24-4-403. “Even when a trial court determines that all three prongs of the test for admissibility under OCGA § 24-4-404 (b) are satisfied, the trial court may still exclude the evidence pursuant to OCGA § 24-4-403” as long as that exclusion is not an abuse of discretion. State v. Brown, 333 Ga. App. 643, 653 (3) (777 SE2d 27) (2015). Here too, our Supreme Court has given us recent guidance to the effect that “the greater the tendency to make the existence of a fact more or less probable, the greater the probative value.” Olds, 299 Ga. at 75 (2).

[T]he extent to which evidence tends to make the existence of a fact more or less probable depends significantly on the quality of the evidence and the strength of its logical connection to the fact for which it is offered. See Milich, Georgia Rules of Evidence § 6.1 (2015) (“Probative value refers to the strength of the connection between the evidence and what it is offered to prove.”). Probative value also depends on the marginal worth of the evidence — how much it adds, in other words, to the other proof available to establish the fact for which it is offered. The stronger the other proof, the less the marginal value of the evidence in question.

Olds, 299 Ga. at 75-76 (2) (footnote omitted; emphasis supplied).

The videos at issue here have not been included in the appellate record, with the result that notwithstanding the parties’ agreement as to their verbal content, we must defer to the trial court’s determination that taken as a whole, their prejudicial effect substantially outweighed their probative value. See State v. Reid, 313 Ga. App. 633, 634-635 (722 SE2d 364) (2012) (where trial court’s judgment was based not only on a video absent from the appellate record, but also on an assessment of credibility, the appellate court was required to defer to the trial court’s ruling and did affirm that ruling). As we have already noted, moreover, the State failed to introduce any evidence as to the time when the videos were made, and the videos themselves make no reference to any specific victim, such that they have only a tenuous “logical connection” to Spriggs’s intent to commit the specific armed robbery at issue and thus little or no probative value as extrinsic evidence. Olds, 299 Ga. at 76 (2); compare Church, 955 F2d at 702 (IV) (A) (if an extrinsic act “require[s] the same intent as the charged offenses [and is] proximate in time to the charged offenses, then the extrinsic act is highly probative”). Finally, the videos at issue here included statements as to Spriggs’s involvement in drug dealing, an illegal activity which had no relevance to the charged crime of armed robbery, but references to which would have been highly prejudicial. See United States v. Loughry, 660 F3d 965, 972-975 (II) (A) (4), (B) (7th Cir. 2011) (trial court abused its discretion in admitting child pornography videos, the probative value of which was substantially outweighed by the danger of unfair prejudice as to the adult pornography charges at issue such that a new trial was required). This record thus supports the trial court’s discretionary determination that any probative value the videos might have had was substantially outweighed by their unduly prejudicial effect.

Decided September 21, 2016

Robert D. James, Jr., District Attorney, Anna G. Cross, Shelly D. Faulk, Assistant District Attorneys, for appellant.

Morris P. Fair, Jr., for appellee.

For these reasons, we affirm the court’s exclusion of the videos under OCGA §§ 24-4-403 and 24-4-404 (b). See State v. Dowdell, 335 Ga. App. 773, 781 (783 SE2d 138) (2016) (Peterson, J., concurring specially) (because “the record contains some support for the trial court’s conclusion that the proffered other acts evidence would be of limited probative value,” the appellate court could not “set that conclusion aside while applying an abuse of discretion standard” to the decision to exclude that evidence).

Judgment affirmed.

Mercier, J., concurs. Ellington, P. J., concurs in judgment only.

       “Trap boy” is slang for drug dealer. See http://www.urbandictionary.com /define.php?term= trap+boy, accessed April 19, 2016.

       OCGA § 5-7-1 (a) (5) authorizes appeals “[f]rom an order, decision, or judgment excluding any . . . evidence,” other than evidence suppressed as the result of an illegal seizure (see OCGA § 5-7-1 (a) (4)). See State v. Andrade, 298 Ga. 464, 466-467 (782 SE2d 665) (2016).

       Compare Baughns v. State, 335 Ga. App. 600, 602 (1) (782 SE2d 494) (2016) (“ ‘evidence is intrinsic to the charged offense, and thus does not fall within Rule 404 (b)’s ambit, if it (1) arose out of the same transaction or series of transactions as the charged offense; (2) is necessary to complete the story of the crime; or (3) is inextricably intertwined with the evidence regarding the charged offense’ ”) (quoting United States v. Nowak, 370 Fed. Appx. 39, 41 (I) (11th Cir. 2010)); see also United States v. Troya, 733 F3d 1125, 1131-1132 (II) (A) (11th Cir. 2013) (unlike Rule 404 (b) evidence, relevant “direct” evidence is always admissible unless it falls under a rule of exclusion, including Federal Rule of Evidence 403).

       See OCGA § 24-4-404 (a):
      Evidence of a person’s character or a trait of character shall not be admissible for the purpose of proving action in conformity therewith on a particular occasion, except for:
      (1) Evidence of a pertinent trait of character offered by an accused or by the prosecution to rebut the same; or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under paragraph (2) of this subsection, evidence of the same trait of character of the accused offered by the prosecution;
      (2) Subject to the limitations imposed by Code Section 24-4-412, evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused or by the prosecution to rebut the same; or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor; or
      (3) Evidence of the character of a witness, as provided in Code Sections 24-6-607, 24-6-608, and 24-6-609.

       Many provisions of the new Evidence Code were borrowed from the Federal Rules of Evidence, and when we consider the meaning of these provisions, we look to decisions of the federal appellate courts construing and applying the Federal Rules,

        especially the decisions of the United States Supreme Court and the Eleventh Circuit. [Cit.] Rule 404 (b) is one such provision, [Jones, 297 Ga. at 158 (1)], and so, when we have considered the meaning of Rule 404 (b), we consistently have looked for guidance in the decisions of the federal appellate courts construing and applying [that Rule].

        Olds, 299 Ga. at 69 (2) (citations omitted).


author: Rickman, Judge.

text:
    A16A0925.
    CARTER v. CORNWELL et al.
    (791 SE2d 447)
   Rickman, Judge.

Following her arrest for altering a prescription to illegally obtain a controlled substance, Tami Carter filed a complaint against William O. Cornwell, M.D., and his practice TCFPA Family Medical Centers, PC. alleging that her arrest was due to Cornwell and TCFPA’s negligence. Cornwell and TCFPA filed a motion to dismiss on the basis that Carter failed to file an expert affidavit with her complaint as required by OCGA § 9-11-9.1. The trial court granted the motion and dismissed the complaint, and Carter appeals that order, contending that the trial court erred by granting the motion to dismiss because her claims sounded in simple negligence rather than professional malpractice and thus an expert affidavit was not required. For the following reasons, we affirm in part and reverse in part.

“We review a trial court’s ruling on a motion to dismiss de novo, viewing all well-pled allegations in the complaint as true.” (Citation omitted.) Hobbs v. Great Expressions Dental Centers of Ga., 337 Ga. App. 248 (786 SE2d 897) (2016).

So viewed, the record shows that Cornwell had been Carter’s physician since 1998, and he treated her for chronic pain. On a visit in August 2014, Cornwell wrote Carter a prescription for 120 pills of hydrocodone. Before Carter left his office, Cornwell decided to change the quantity of pills on the prescription from 120 to 180 and altered the prescription to reflect that change.

Carter took the prescription to Walgreens and dropped it off. Assuming the prescription had been altered by Carter, a Walgreens employee called TCFPA and spoke to Cornwell’s partner who was the on-call physician at the time. The on-call physician was not aware that Cornwell had altered the prescription and did not call Cornwell to verify if he had done so. When Carter arrived back at Walgreens to pick up her pills, she was arrested for altering a prescription to illegally obtain a controlled substance.

Carter contends that the trial court erred by granting the motion to dismiss because her claims against Cornwell and TCFPA sounded in simple negligence rather than professional malpractice, and thus an expert affidavit was not required. We disagree that Carter’s claim against Cornwell for altering her prescription for hydrocodone instead of writing a new prescription is a claim for simple negligence. However, we agree that Carter’s claim against TCFPA for failing “to exercise ordinary care in handling on call responsibilities for its patients” was for simple negligence and not professional malpractice and thus an expert affidavit was not required.

OCGA § 9-11-9.1 (a) provides, in pertinent part: “In any action for damages alleging professional malpractice . . . the plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.”

By negative implication, an expert affidavit is not required for claims averred in a complaint that are based on acts or omissions constituting simple negligence rather than professional malpractice. Whether the alleged acts or omissions constitute simple negligence or professional malpractice is a question of law for the court to resolve. The resolution of whether an act or omission sounds in simple negligence or medical malpractice depends on whether the conduct, even if supervisory or administrative, involved a medical judgment. “Medical judgments” are decisions which normally require the evaluation of the medical condition of a particular patient and, therefore, the application of professional knowledge, skill, and experience.

(Citations and punctuation omitted.) James v. Hosp. Auth. of City of Bainbridge, 278 Ga. App. 657, 659 (1) (629 SE2d 472) (2006).

In this case, Carter concedes that when Cornwell decided which controlled substance to prescribe and the dose needed to treat Carter’s pain, he was acting in his professional capacity. However, Carter argues that when Cornwell changed the quantity of pills from 120 to 180, he was no longer using his professional judgment because he was only carrying out his decision to prescribe Carter hydrocodone and thus would be liable for simple negligence, not professional malpractice.

Administrative, clerical, or routine acts demanding no special expertise fall in the realm of simple negligence. We have previously held that a nurse’s failure to activate an alarm, as a doctor ordered, was ordinary negligence. Likewise, claims that employees failed to carry out instructions and that hospitals failed to have appropriate equipment alleged ordinary negligence. However, if a claim of negligence goes to the propriety of a professional decision rather than to the efficacy of conduct in the carrying out of a decision previously made, the claim sounds in professional malpractice.

(Footnotes omitted.) Upson County Hosp. v. Head, 246 Ga. App. 386, 389 (1) (540 SE2d 626) (2000).

Pursuant to OCGA § 16-13-41 (a), (b):

... [N]o controlled substance in Schedule II maybe dispensed without the written prescription of a registered practitioner. .. . When a practitioner writes a prescription drug order to cause the dispensing of a Schedule II substance, he or she shall include the name and address of the person for whom it is prescribed, the kind and quantity of such Schedule II controlled substance, the directions for taking, the signature, and the name, address, telephone number, and DEA registration number of the prescribing practitioner. Such prescription shall be signed and dated by the practitioner on the date when issued, and the nature of such signature shall be defined in regulations promulgated by the State Board of Pharmacy. . . .

Carter’s claim against Cornwell calls into question his professional judgment in altering the quantity of pills on the prescription that he wrote. Regardless of the reason Cornwell altered the quantity of pills on the prescription, we will not make a distinction between writing the dose of a controlled substance and the quantity of the same. In Georgia, only a registered practitioner may write a prescription for hydrocodone and, on the prescription, the practitioner must write the kind and quantity of hydrocodone.

[I]t is the duty of the prescribing physician to know the characteristics of the drug he is prescribing, to know how much of the drug he can give his patient, to elicit from the patient what other drugs the patient is taking, to properly prescribe various combinations of drugs, to warn the patient of any dangers associated with taking the drug, to monitor the patient’s dependence on the drug, and to tell the patient when and how to take the drug. The decision to employ prescription medication or medical devices involves professional assessment of medical risks in light of the physician’s knowledge of a patient’s particular need and susceptibilities.

(Citation, punctuation and footnote omitted.) Nail v. State of Ga., 301 Ga. App. 7, 9 (686 SE2d 483) (2009) (addressing failure to warn claim involving a medical prescription).

Writing a prescription for a controlled substance “[is a] decision[ ] which normally require[s] the evaluation of the medical condition of a particular patient and, therefore, the application of professional knowledge, skill, and experience.” Dent v. Mem. Hosp. of Adel, 270 Ga. 316, 318 (509 SE2d 908) (1998). Thus, the trial court did not err in dismissing Carter’s claim against Cornwell for failure to file an expert affidavit along with her complaint. See James, 278 Ga. App. at 658-660 (1) (trial court properly concluded that plaintiff’s claims against physician for misdiagnosis were for professional malpractice not simple negligence); see also MCG Health v. Casey, 269 Ga. App. 125, 128 (603 SE2d 438) (2004) (plaintiff’s allegation against physician for failing to administer pain medication, using plates and screws not approved by the FDA, and failing to inform plaintiff of the risk of using the plates and screws were claims involving professional malpractice not simple negligence); Shirley v. Hosp. Auth. of Valdosta/Lowndes County, 263 Ga. App. 408, 409-410 (1) (587 SE2d 873) (2003), overruled on other grounds by Chandler v. Opensided MRI of Atlanta, 299 Ga. App. 145, 157 (2) (b) (682 SE2d 165) (2009) (whether hospital employees properly applied surgical solution on plaintiff is a question that involves expert medical judgment and thus the trial court did not err in treating the claim as one for professional malpractice); Herndon v. Ajayi, 242 Ga. App. 193, 194 (2) (532 SE2d 108) (2000) (plaintiff’s claims against physician for failing to inform him of the importance of keeping a follow-up appointment after surgery and failing to contact him after he missed his appointment were for professional malpractice and not simple negligence).

Decided September 21, 2016.

James, James & Joyner, Stuart F. James, for appellant.

However, we find that Carter’s claim against TCFPA for failing to properly handle on-call responsibilities because the physician on call did not make an effort to call Cornwell after he or she was contacted by Walgreens or have any procedure to verify the prescription “was not one of professional negligence for which an affidavit was required.” MCG Health, 269 Ga. App. at 128. “This alleged conduct did not require the exercise of professional judgment or skill.” Id. at 128-129. Professional judgment or skill is not involved in simply verifying if a patient is in lawful possession of a prescription for a controlled substance. “[N]ot every suit which calls into question the conduct of one who happens to be a medical professional is a medical malpractice action. We must look to the substance of an action against a medical professional in determining whether the action is one for professional or simple negligence.” (Footnotes omitted.) Atlanta Women’s Health Group v. Clemons, 287 Ga. App. 426, 427 (651 SE2d 762) (2007).

In this case, the allegations against TCFPA do not turn on a medical question. The on-call physician was not utilizing professional judgment or medical expertise when he or she failed to contact Cornwell after speaking with the Walgreens employee. Thus, the trial court erred when it granted TCFPA’s motion to dismiss for failure to file an expert affidavit. See MCG Health, 269 Ga. App. at 128 (plaintiff’s claim against physician was for simple negligence not professional malpractice); see also Kerr v. OB/GYN Assoc. of Savannah, 314 Ga. App. 40, 41-42 (1) (723 SE2d 302) (2012) (trial court erred by dismissing plaintiff’s complaint for failure to attach expert affidavit because plaintiff’s claim against medical assistant was for simple negligence); OKelley v. Atlanta Heart Assoc., 316 Ga. App. 218, 219-220 (728 SE2d 313) (2012).

Judgment affirmed in part and reversed in part.

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

Spears, Moore, Rebman & Williams, Cara E. Weiner, for appel-lees.

       She also sued Walgreen Co., but it is not a party to this appeal.

       Hydrocodone is a Schedule II controlled substance. See OCGA § 16-13-26 (1) (A) (ix).


author: McMlLLIAN, Judge.

text:
    A16A1135.
    SHEFFIELD v. SHEFFIELD.
    (791 SE2d 428)
   McMlLLIAN, Judge.

Kaleigh Sheffield (the “Mother”) appeals the juvenile court’s final order awarding joint legal custody (the “Final Order”) of her minor child (the “Child”) to her mother, Holly Sheffield (the “Grandmother”). In her sole enumeration of error, the Mother asserts that the juvenile court erred in awarding joint legal custody of the Child to her and the Grandmother after finding that she is fit to parent.For the reasons set forth below, we reverse and remand for further proceedings consistent with this opinion.

Following a bench trial in a child custody case, we view the evidence in the light most favorable to the trial court’s decision. See Brawner v. Miller, 334 Ga. App. 214, 214 (778 SE2d 839) (2015). So viewed, the limited record shows that the Grandmother filed a petition for custody of the Child in November 2014, and a bench trial to determine custody was held in June 2015. The Grandmother has been the Child’s primary caretaker since his birth and provided a stable home environment for the Child, who has significant developmental delays. The juvenile court also found that the Grandmother has demonstrated a commitment to meeting the Child’s special needs by attending therapy with the Child and meeting with his teachers and school counselors to ensure compliance with his Individualized Educational Plan.

On the other hand, the juvenile court found that the Mother has been unwilling to participate in and cooperate with professionals to make sure that the Child’s special needs are adequately met and that the Child “would suffer long term emotional harm if sole custody were awarded to [the Mother]Therefore, the court found that “it would be in the best interests of the [Child] that the [Grandmother] is awarded primary physical custody” with the Mother to have visitation rights. Nonetheless, the court found that the Mother “meets the definition of fitness to parent under Georgia law” and awarded joint legal custody of the Child to the Mother and the Grandmother. This appeal followed.

Child custody disputes between a biological parent and a grandparent are governed by OCGA § 19-7-1 (b.1), which provides:

. . . [I]n any action involving the custody of a child between the parents or either parent and a third party limited to grandparent, great-grandparent, aunt, uncle, great aunt, great uncle, sibling, or adoptive parent, parental power may be lost by the parent, parents, or any other person if the court hearing the issue of custody, in the exercise of its sound discretion and taking into consideration all the circumstances of the case, determines that an award of custody to such third party is for the best interest of the child or children and will best promote their welfare and happiness. There shall be a rebuttable presumption that it is in the best interest of the child or children for custody to be awarded to the parent or parents of such child or children, but this presumption may be overcome by a showing that an award of custody to such third party is in the best interest of the child or children. The sole issue for determination in any such case shall be what is in the best interest of the child or children.

To overcome the rebuttable presumption that it is in the child’s best interest to award custody to a parent, a third-party relative, such as a grandparent, must show by clear and convincing evidence that awarding custody to the parent would cause either physical harm or significant, long-term emotional harm to the child. See Clark v. Wade, 273 Ga. 587, 598 (IV) (544 SE2d 99) (2001). In considering the issue of harm, the trial court should consider “a variety of factors that go beyond the parent’s biological connection or present fitness to encompass the child’s own needs.” Id. The factors include (1) who the child’s past and present caretakers are; (2) with whom the child has formed psychological bonds and how strong those bonds are; (3) whether the parties have evidenced interest in, and contact with, the child over time; and (4) whether the child has unique medical or psychological needs that one party is better able to meet. Id. at 598-99 (IV).

Decided September 21, 2016.

Joel A. Correa, for appellant.

Chambers & Quinde, Mari L. Chambers, for appellee.

Here, the juvenile court found “by clear and convincing evidence that the [Child] would suffer physical or emotional harm if custody were awarded to the [Mother].” However, the court then went on to award the Mother and the Grandmother joint legal custody. Our Supreme Court recently explained that the Georgia General Assembly “has clearly indicated that joint custody arrangements do not include third parties when one or both parents are suitable custodians.” Stone v. Stone, 297 Ga. 451, 452 (774 SE2d 681) (2015) (reversing order granting joint legal custody to father and grandmother). Thus, while a third party may have sole legal custody of a child when no parent is suitable for custody, Georgia law only allows joint custody arrangements between parents. Id. at 454. See also OCGA § 19-9-3 (a) (1).

Accordingly, although the juvenile court clearly intended to act in the best interests of the Child, we must reverse the grant of joint legal custody to the Mother and the Grandmother and remand for further proceedings on the question of legal custody. See Stone, 297 Ga. at 455. Cf. Holdaway v. Holdaway, 338 Ga. App. 477 (789 SE2d 817) (2016) (affirming grant of primary physical and legal custody to grandmother under OCGA § 19-7-1 (b.1)).

Judgment reversed and case remanded.

Miller, P. J., and McFadden, J., concur.

       Because the Mother does not enumerate as error the award of primary physical custody to the Grandmother, we do not address this issue on appeal.

       Because the parties did not pay for the record to be taken down at trial, there is no transcript available for our review. Thus, we are limited in our review to the Grandmother’s petition for custody and the juvenile court’s Final Order. Although the juvenile court appointed the Child a guardian ad litem, and the Final Order references the guardian ad litem’s report, the report is not included in the record before us.

       It appears that in 2008 the Mother consented to the Grandmother’s appointment as the Child’s temporary guardian. However, the Supreme Court has held that “[ujnless and until the relationship of parent and child is lawfully terminated, parents retain parental rights, even in circumstances in which they properly may have lost parental power.” In the Interest of M. F., 298 Ga. 138, 145 (2) (780 SE2d 291) (2015).

       And where neither parent is suitable to have custody, a grandparent may certainly be qualified to have sole custody of a minor child. See OCGA § 19-7-1 (b.1).

       This statute provides:
      In all cases in which the custody of any child is at issue between the parents, there shall be no prima-facie right to the custody of the child in the father or mother. There shall be no presumption in favor of any particular form of custody, legal or physical, nor in favor of either parent. Joint custody may be considered as an alternative form of custody by the judge and the judge at any temporary or permanent hearing may grant sole custody, joint custody, joint legal custody, or joint physical custody as appropriate.
      OCGA § 19-9-3 (a) (1).


author: Per curiam.

text:
    A16A1158.
    UNDERWOOD v. THE STATE.
    (791 SE2d 436)
   Per curiam.

Trimaine Underwood appeals from the trial court’s denial of his motion to withdraw his guilty plea, arguing that when the trial court rejected his plea agreement with the State, it failed to comply with the requirements of Uniform Superior Court Rule (“USCR”) 33.10 and State v. Germany, 246 Ga. 455 (271 SE2d 851) (1980). We agree and reverse.

In January 2012, Underwood was charged with two counts of theft by shoplifting. At his plea hearing in June 2014, he presented a negotiated plea agreement to the trial court. Under the terms of that agreement, the State recommended a sentence of two-and-a-half to three years’ confinement followed by probation, concurrent with any other sentence Underwood was serving, and a waiver of recidivist treatment. After the State recited the factual basis for the plea and summarized Underwood’s lengthy criminal history, the trial court stated that it would not accept the negotiated agreement. Specifically, the court stated:

And the Court is going to reject the plea agreement in the case. I’m going to tell you what I’m inclined to do in the event Mr. Underwood would like to reconsider. I’m inclined to sentence him to ten years of incarceration on count 1, followed by ten years of probation on count 2, if you would like to consider that.

Underwood conferred with his attorney, who advised the court that Underwood still wanted to plead guilty. The trial court then entered a judgment of conviction and imposed the 20-year sentence it had described. Underwood subsequently filed a timely motion to withdraw his guilty plea, which the court denied. This appeal ensued.

In State v. Germany, our Supreme Court held that where the trial court intends to reject a negotiated plea agreement,

the trial court shall, on the record, inform the defendant personally that (1) the trial court is not bound by any plea agreement, (2) the trial court intends to reject the plea agreement presently before it, (3) the disposition of the present case may be less favorable to the defendant than that contemplated by the plea agreement, and (4) that the defendant may then withdraw his or her guilty plea as a matter of right.

Decided September 21, 2016.

Thomas E. McCants, for appellant.

Ashley Wright, District Attorney, Joshua B. Smith, Pierce G. Blitch IV, Assistant District Attorneys, for appellee.

(Emphasis supplied.) 246 Ga. at 456 (1). See also USCR 33.10. We have described this rule as a “bright line test” that requires the trial court to “expressly” inform the defendant, “personally and on the record,” of his right to withdraw his guilty plea. See Lawrence v. State, 234 Ga. App. 603, 605 (1) (507 SE2d 490) (1998). And in a case where the trial court failed to give a statement that was required by the rule — there, an explicit statement that the court intended to impose a harsher sentence than contemplated by the agreement — we rejected the State’s argument that this deficiency was cured by the fact that the defendant “was represented by experienced defense counsel who would surely have discussed the possibility of a less favorable sentence with her.” Mulkey v. State, 265 Ga. App. 631, 632 (595 SE2d 330) (2004).

Here, as in Mulkey, the trial court did not explicitly advise Underwood of all four of the principles identified in State v. Germany and USCR 33.10. Specifically, the court did not advise Underwood that, because it had decided not to impose the recommended sentence, he could withdraw his guilty plea as a matter of right, which the State concedes on appeal. Further, as in Mulkey, this deficiency was not cured by defense counsel advising the defendant, off the record, of the same principle. See Mulkey, 265 Ga. App. at 632. Accordingly, the trial court’s failure to comply with the directives of USCR 33.10 and Germany necessitates a reversal in this case.

Judgment reversed. Division Per Curiam.

All Judges concur.


author: Dillard, Judge.

text:
    A16A1470.
    DAVISON v. CITIZENS BANK & TRUST COMPANY.
    (791 SE2d 437)
   Dillard, Judge.

Citizens Bank & Trust Company (“Citizens Bank”) filed suit against Stephen Davison, Robert Fricks, and HOCO Cubs, LLC (“HOCO”), alleging that HOCO defaulted on a promissory note and that Davison and Fricks were personally liable based on a written guaranty. Following a bench trial, the court dismissed HOCO and found that Fricks was not personally liable, but concluded that Davison was personally liable, under OCGA § 11-3-403, as an unauthorized signer on the note because Citizens Bank, in good faith, took the note for value. On appeal, Davison contends that the trial court erred in finding that he was liable on the note under OCGA § 11-3-403. For the reasons set forth infra, we reverse the trial court’s judgment.

At the outset, we note that on appellate review of a bench trial, the factual findings shall not be set aside unless clearly erroneous, and “due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” Furthermore, in a bench trial, the judge sits as trier of fact, and “the court’s findings are analogous to a jury’s verdict and should not be disturbed if there is any evidence to support them.” We review any questions of law decidedby the trial court, however, de novo.

So viewed, the record shows that in 2009, Davison and Fricks were co-owners of Zoegetics International, LLC, with each owning 25 percent of the company and two other individuals splitting the remaining 50 percent. In addition to handling most of Zoegetics’s financial matters, Fricks also separately and solely owned HOCO, which listed property containing a small youth baseball field as its sole asset. Davison, however, had no involvement with HOCO in any capacity

In June 2009, Davison and Fricks met with Mac Hardin, the president of Citizens Bank in Warner Robins, to discuss obtaining a loan for Zoegetics. During that initial meeting, Davison, Fricks, and Hardin discussed whether Fricks had property that could serve as sufficient collateral for the loan. And because he did not want to be personally liable on the loan, Davison emphasized that he would not sign a promissory note unless there was sufficient collateral to secure it. The issue was not resolved at that point, and Davison left the meeting without signing any documents. Nevertheless, a few days later, $300,000 was deposited into Zoegetics’s account, and thus, Davison assumed that Fricks and Hardin had successfully negotiated a loan with sufficient collateral.

In September 2009, Hardin contacted Davison to discuss renewing the June loan, and as part of that process, Davison and Fricks paid $12,500 each to reduce the overall debt. Thereafter, on September 24, 2009, Davison went to Citizens Bank, met briefly with Hardin’s assistant, and signed several documents, which he admittedly did not read but assumed were the renewal note and personal guaranty. That same month, Fricks also signed a personal guaranty of the September renewal note but not the note itself. At some point, Fricks also signed a security deed that provided Citizens Bank with the property owned by HOCO as collateral for the renewal note, but for reasons unclear from the record, Citizens Bank did not record that deed until July 2010.

Several months later, after the September 2009 renewal note went into default, Hardin, on behalf of Citizens Bank, began contacting Davison to discuss collection on the debt. And in an attempt to understand the exact nature of his debt obligations, Davison went to Citizens Bank, confronted Hardin, and demanded to see all the loan documents. Hardin complied, and upon reviewing the June 24, 2009 promissory note, Davison observed that HOCO—a company with which he was not familiar—was indicated as the borrower and that his name and title as a member of HOCO were printed below the signature line. Additionally, Davison determined that his signature had been forged on both the June note and the guaranty of that note. Davison also reviewed the September 24, 2009 renewal note and guaranty, which he had actually signed, and now noticed that it similarly indicated HOCO as the borrower and that he was signing as a member of that company

Immediately thereafter, Davison reported the forgeries on the June 2009 loan documents to law enforcement and the local district attorney. Law enforcement and the FDIC ultimately opened investigations into Hardin’s banking practices and eventually charged him with offenses related to many of the loans he originated. But these authorities never definitively determined that Hardin forged Davi-son’s signature on the June 2009 note and guaranty, and none of the charges filed against him pertained to that loan. Subsequently, Citizens Bank terminated Hardin’s employment, but it also continued efforts to collect the HOCO debt from Davison.

On September 9, 2011, Citizens Bank filed a lawsuit against Davison and HOCO, seeking $363,718, interest, and attorney fees for nonpayment of the June 2009 promissory note and guaranty and September 2009 renewal note and guaranty Shortly after Davison filed his answer, Citizens Bank successfully moved to add Fricks as a defendant, and Fricks filed an answer as well. The case proceeded to a bench trial, during which Davison, Fricks, and a vice president of Citizens Bank testified. After the trial’s conclusion, the court dismissed HOCO based on the undisputed evidence that Citizens Bank never even attempted to serve the company. Additionally, the court directed the parties to file briefs on the issue of whether Davison and Fricks were personally liable for the debt in light of HOCO’s dismissal, and it took the matter under advisement pending its review of those briefs.

The parties then filed post-trial briefs as directed by the trial court. And in its rebuttal brief, Citizens Bank argued for the first time that even if the June 2009 promissory note and guaranty were unenforceable because Davison’s signature was a forgery, Davison was nevertheless liable for the September 2009 renewal note as an unauthorized signer under OCGA § 11-3-403. Davison contested this argument in a further reply Nevertheless, on November 6, 2015, the trial court issued an order of judgment finding that Fricks was not personally liable for any of the debt but that Davison was liable for the full amount of the debt, plus interest and attorney fees, based on his signing of the September 2009 renewal note. Specifically, the trial court found that Davison’s signature on the June 2009 note and guaranty was indeed a forgery and, therefore, that note and guaranty were unenforceable. However, because Citizens Bank did, in fact, loan $300,000 to HOCO, which Fricks immediately transferred to Zoegetics’s account, Citizens Bank had an unspecified “quasi ex contractu” claim. It then found that Davison was liable on the September 2009 renewal note as an unauthorized signer, under OCGA § 11-3-403 (a), and that Citizens Bank took the note in good faith and for value. The court further reasoned that Citizens Bank’s quasi ex contractu claim constituted the consideration for the renewal note, which otherwise would have been lacking given that it was the renewal of the unenforceable June 2009 note. Finally, the trial court found that neither Davison nor Fricks was liable under the September 2009 guaranty because Citizens Bank failed to proffer the original or a copy of the guaranty into evidence. This appeal follows.

In three separate enumerations of error, Davison contends that the trial court erred in ruling that he was liable on the September 2009 note under OCGA § 11-3-403 (a). Specifically, he argues that the court erred in finding that he was an unauthorized signer on the note, that Citizens Bank took the note in good faith, and that it took the note for value. But pretermitting whether Davison was an unauthorized signer and whether the September 2009 note was taken for value, the trial court erred in finding that Citizens Bank took the note in good faith, and thus, we reverse its judgment.

OCGA § 11-3-403 (a) provides that

[ujnless otherwise provided in this article or Article 4 of this title, an unauthorized signature is ineffective except as the signature of the unauthorized signer in favor of a person who in good faith pays the instrument or takes it for value. An unauthorized signature may be ratified for all purposes of this article.

And although this section of Georgia’s Uniform Commercial Code is most commonly applied to instances involving forged checks, as noted in the UCC official comments accompanying OCGA § 11-3-403, an “ ‘[unauthorized’ signature is defined in Section 1-201 (43) as one that includes a forgery as well as a signature made by one exceeding actual or apparent authority.” Consequently, as Citizens Bank argued below and on appeal, the Code section may also apply to one such as Davison, who signed his own signature but without authority to do so on behalf of HOCO.

Turning to the manner in which OCGA § 11-3-403 (a) imposes liability, the comments provide that

[t]he except clause of the first sentence of subsection (a) states the generally accepted rule that the unauthorized signature, while it is wholly inoperative as that of the person whose name is signed, is effective to impose liability upon the signer or to transfer any rights that the signer may have in the instrument. The signer’s liability is not in damages for breach of warranty of authority, but is full liability on the instrument in the capacity in which the signer signed.

But importantly, the last sentence of the same comment also provides that the signer’s liability “is, however, limited to parties who take or pay the instrument in good faith; and one who knows that the signature is unauthorized cannot recover from the signer on the instrument.”

Here, Davison undisputedly testified that he has never been a member of HOCO and, in fact, has never been affiliated with that company in any capacity Furthermore, Fricks testified that he was the sole shareholder of HOCO and that Davison never had any role in the company. But more importantly, Citizens Bank had information in its possession confirming that Fricks was the sole owner of HOCO and that Davison had no involvement with the company. Indeed, during the bench trial, Citizens Bank’s vice president provided the following testimony on cross-examination:

Decided September 21, 2016.

Q: Okay. The Bank—if the Bank is making a loan to an entity such as a corporation or a limited liability company, does the bank normally require documents in its file to verify who can sign on behalf of the company?
A: We would.
Q: And so in this case with the loan being made to HOCO Cubs, LLC, the Bank has obtained an operating agreement from HOCO Cubs, LLC; is that correct?
A: That is correct.
Q: And that’s in the Bank’s file?
A: That’s correct.
Q: And according to the operating agreement of HOCO Cubs, LLC, Rob Fricks is the sole member manager; is that correct?
A: From what I can find, correct.
Q: Is there anything in the Bank’s file that would say that Steve Davison had any authority to sign for HOCO Cubs, LLC?
A: Nothing presented and executed.

Given this undisputed testimony from Davison, Fricks, and Citizens Bank’s own vice president, Citizens Bank knew that Davison was not authorized to sign a promissory note on behalf of HOCO and, therefore, cannot recover the debt from Davison in this regard. Thus, the trial court erred in finding that Citizens Bank took the note in good faith and in ruling that Davison was liable for the debt under OCGA § 11-3-403 (a). Accordingly, we reverse that ruling and the trial court’s judgment in favor of Citizens Bank.

Judgment reversed.

Phipps, P. J., and Peterson, J., concur.

James C. Marshall; Moore Law Firm, H. David Moore, Lisa R. Coody, for appellant.

Phillips, Phillips & Smith, Arthur L. Phillips, Alex C. Smith, for appellee.

        Brock Built, LLC v. Blake, 316 Ga. App. 710, 712 (730 SE2d 180) (2012) (punctuation omitted).

        Id. (punctuation and footnote omitted).

        Washington v. Harrison, 299 Ga. App. 335, 336 (682 SE2d 679) (2009).

        See, e.g., Gerber & Gerber, P.C. v. Regions Bank, 266 Ga. App. 8, 10 (2) (596 SE2d 174) (2004) (noting that because payee’s signatures on check were forgeries, they were ineffective as endorsements by payee under OCGA § 11-3-403 (a)).

       This Court has held that “[i]n order to determine the meaning and purpose behind the enactment of a Georgia Commercial Code provision that is taken verbatim from the UCC, we turn to the UCC Official Comments for assistance.” Metzger v. Americredit Fin. Servs., 273 Ga. App. 453, 457 n. 3 (615 SE2d 120) (2005); accord Coleman v. DaimlerChrysler Servs. of N. Am., 276 Ga. App. 336, 339 n. 3 (623 SE2d 189) (2005).

       OCGA § 11-3-403, Official Comment 1.

       OCGA § 11-3-403, Official Comment 2.

        Id.

        See id.