author: McMillian, Judge.

text:
    A15A1031.
    HUFF v. THE STATE.
    (779 SE2d 29)
   McMillian, Judge.

Terrence Ramon Huff was convicted by a jury of armed robbery and possession of a knife during the commission of a felony and sentenced to 20 years, 15 to serve. He filed a motion for new trial, as twice amended, which the trial court denied following a hearing. He appeals, contending that the trial court violated OCGA § 17-8-57 by impermissibly commenting on the similarity and probative value of other crimes evidence admitted at trial and that his trial counsel was ineffective. As more fully set forth below, we agree the trial court violated OCGA § 17-8-57 and that, accordingly, Huff is entitled to a new trial.

Construed to support the jury’s verdict, the evidence shows that around 9:35 p.m. on February 2, 2009, three men with their faces partially concealed entered the Tri-County Gas and Grocery convenience store in Ray City, Georgia. The tallest of the three men had a knife, and the other two men were armed with guns. The men demanded money and then went behind the counter where the cash registers were located. Cameras inside the store recorded the robbers’ activities, and video clips were played at trial showing the men opening the cash drawers and removing cash, taking several cartons of cigarettes out of a box on the floor, and removing items from underneath the counter. The men then fled, running out the front door and around the side and toward the back of the building.

Police were dispatched to the store and began searching for the men. Although police found a knife a short distance from the back of the store, the search for the robbers was unsuccessful. One of the store’s black merchandise bags was found on the floor behind the counter, and evidence was presented that the bag had not been on the floor prior to the robbery and that the tall robber with the knife dropped it on the floor while he was going through items underneath the counter. The bag was tested for fingerprints, and five prints, one of which matched Huff’s eighth digit, or left middle finger, were revealed on the bag. Both the store manager and his wife testified that they had seen Huff come into the store on several occasions prior to the robbery, although his face was obscured during the robbery and they could not identify him at that time.

The State also presented evidence that several weeks later, on February 26, 2009, Huff was arrested with several other men in connection with an attempted robbery of a Dominos Pizza Store, and he later entered a guilty plea to that charge. Evidence was presented that Huff was taller than the other men involved in the attempted robbery, and video clips of the convenience store robbery clearly show that one of the robbers was taller than the other two.

1. Huff contends that he is entitled to a new trial because the trial court violated OCGA § 17-8-57 by commenting on the similarity and probative value of the similar transaction evidence. We agree. The record shows that prior to trial, the trial court conducted a hearing to determine the admissibility of evidence of the Dominos attempted robbery and ruled the evidence admissible to show modus operandi, bent of mind, and identity of the Defendant. Subsequently, when the State called its first similar transaction witness at trial, the trial court, sua sponte, made the following statement to the jury:

I don’t know that I made the precise or complete ruling in Chambers this morning but, for the Jury, we’re to the point of the case where the State is offering what is known as Similar Transaction Evidence. I’m going to give you a charge on that in just a minute to help explain to you what’s taking place as far as the presentation of the evidence goes. But on my decision earlier I want to add that the Court found that the probative value as to the similarity and/or the connection of the Defense’s charge outweighs any prejudice to the Defendant and admitted the Similar Transaction Evidence.

(Emphasis supplied.) Immediately thereafter, the Court charged the jury on the consideration of the similar transaction evidence:

Sometimes evidence is admitted for a limited purpose. Such evidence may be considered by the jury for the sole issue or purpose for which the evidence is limited and not for any other purpose. The law provides that evidence of other acts or occurrences of this Defendant that are sufficiently similar or connected and, therefore, purportedly related to the offense or offenses for which the Defendant is on trial may be considered for the limited purpose of showing, if it does, the intent, motive, identity, course of conduct, bent of mind, modus operandi in the crime charged in the case now on trial. Such evidence, if any, may not be considered by you for any other purpose____Before you may consider any other acts or occurrences for the limited purposes stated, you must first determine whether the accused committed the other acts or occurrences, if so, you must then determine whether the act or occurrence was sufficiently similar and, therefore, purportedly related to the crimes charged in the indictment such that proof of the other acts or occurrences tend to prove the crime charged in the indictment.

(Emphasis supplied.) Following the limiting instruction, Huff’s counsel asked for the jury to be excused and repeatedly moved for a mistrial, arguing that the jury had been tainted by the trial court’s comments to the jury on the probative value and similarity of the prior crimes evidence. The trial court denied the motion without explanation, and the trial resumed with the presentation of the similar transaction witnesses.

Generally speaking, remarks made by a trial court in discussing the admissibility of evidence or explaining its rulings do not constitute prohibited expressions of opinion. Smith v. State, 292 Ga. 588, 590 (2) (740 SE2d 129) (2013). However, comments by the trial judge on its rulings that include expressions of opinion as to what has been proven, the credibility of a witness, or on a disputed issue of material fact are clearly improper under OCGA § 17-8-57. See Murphy v. State, 290 Ga. 459, 460 (2) (722 SE2d 51) (2012); Chumley v. State, 282 Ga. 855, 857 (2) (655 SE2d 813) (2008); Patel v. State, 282 Ga. 412, 414 (2) (651 SE2d 55) (2007).

Under analogous circumstances, our appellate courts have on several occasions considered whether a trial court violates OCGA § 17-8-57 by making statements to the jury that the defendant’s statement was freely and voluntarily given, as determined by the trial court at a hearing outside the presence of the jury, and we find the reasoning in those cases equally applicable here. Freeman v. State, 295 Ga. 820, 821-822 (2) (764 SE2d 390) (2014); Chumley, 282 Ga. at 857 (2); Ray v. State, 181 Ga. App. 42, 44 (3) (351 SE2d 490) (1986). Although the trial court in this case acted properly in making a threshold determination concerning the admissibility of the similar crimes evidence under Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991), the trial court should have refrained from commenting on the similarity and probative value of the other offense. Such statements to the jury, even when coupled with an immediate charge on the jury’s responsibility to make the ultimate determination on similarity and probative value, violated OCGA § 17-8-57. Instead, once the trial court determined and ruled outside the presence of the jury that the similar transaction evidence was admissible, it should have simply provided the appropriate limiting instruction about the evidence, without informing the jury of the court’s evaluation of the evidence. See Freeman, 295 Ga. at 822 (2). Cf. Williams v. State, 244 Ga. App. 692, 696 (3) (536 SE2d 572) (2000) (no reversible error where trial court stated, in overruling objection, that there was sufficient corroboration of the similar transaction evidence because defense counsel should have anticipated when posing objection that trial court might feel compelled to explain its earlier ruling to admit the evidence).

Decided October 27, 2015.

J. Clayton Culp, for appellant.

The State argues, however, that the reversal and retrial are not mandated here because Huff admitted that he committed the similar crime. The State is correct that part of Huff’s trial strategy was to admit he was involved in the other offense, point out to the jury that he had taken responsibility for that crime by pleading guilty, and argue that if he was guilty of the present charges, he would have taken responsibility by pleading guilty to that crime also. But whether or not Huff admitted to the similar crime is “immaterial, since the error lies in the trial court’s informing the jury that it had ruled that [the prior offense was sufficiently similar and therefore probative].” Chumley, 282 Ga. at 857 (2). And, in any event, Huff never conceded the similarity of the prior and present offenses; rather, one of his theories of defense was to point out the insufficiencies in the State’s proof and argue that the State was using his guilty plea to improperly bolster its weak evidence of the convenience store crime. Thus, under these circumstances, the trial court’s statement in this case that the other crime was similar and therefore probative of Huff’s guilt on the current robbery charge was particularly damaging to Huff’s theory of defense. Moreover, regardless of any showing of harm, “[i]t is well established that the trial court’s compliance with the statutory language of OCGA § 17-8-57 is mandatory and that a violation of its mandate requires a new trial.” (Citation and punctuation omitted.) Chumley, 282 Ga. at 858 (2). Accordingly, we must reverse Huff’s conviction and remand the case for a new trial.

2. In light of our holding in Division 1, it is unnecessary for us to address Huff’s contention that his trial counsel was ineffective.

Judgment reversed and case remanded.

Barnes, P. J., and Ray, J., concur.

Richard L. Perryman III, District Attorney, Rebekah M. Ditto, Assistant District Attorney, for appellee.

       Huff does not challenge the sufficiency of the evidence. Nevertheless, we have reviewed the evidence and find it sufficient to authorize Huff’s convictions under the standar d of Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

       There were three employees in the store at the time of the robbery — the store manager, his wife, and another employee. The store manager and his wife testified at trial, but the other employee no longer worked at the store at the time of trial and was not called to testify. The witnesses testified that they were at a table by the door when the men entered the store and that is where they stayed during the robbery.

       There were two cash drawers — one for lottery ticket sales and one for general merchandise sales. The store manager testified that approximately $2,000 was taken during the robbery.

       At the time Huff was tried in 2010, that section provided:
      It is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused. Should any judge violate this Code section, the violation shall be held by the [appellate court] to he error and the decision in the case reversed, and a new trial granted in the court below with such directions as the [appellate court] may lawfully give.

       We do not suggest that the trial court could violate OCGA § 17-8-57 by simply ruling on an objection on the grounds that the evidence is more prejudicial than probative; rather, it is the comment on the similarity of the evidence here that constitutes a violation of OCGA § 17-8-57. As explained above, remarks during colloquies between the judge and counsel on the admissibility of evidence wherein the judge makes “remarks ... assigning a reason for his ruling are neither an expression of opinion nor a comment on the evidence.” (Citation omitted.) Ellis v. State, 292 Ga. 276, 281-282 (3) (736 SE2d 412) (2013) (judge’s statement in ruling on objection that evidence was “admissible as a prior consistent” did not violate OCGA § 17-8-57).

       We note that since Huff was tried, OCGA § 17-8-57has been amended in several material respects, and we express no opinion as to the continued viability of this statement under the new statute. See Ga. L. 2015, p. 1050, § 1.


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A15A1298.
    CARROLL MANAGEMENT GROUP, LLC v. A CARPET & PAINT, LLC.
    (779 SE2d 26)
   Miller, Judge.

After its invoices for work at an apartment complex went unpaid, A Carpet & Paint, LLC (“A Carpet”) filed a suit on account against both the complex’s property manager, Carroll Management Group, LLC (“Carroll”), and the complex’s owner, Hidden Village Associates, LLC (“Hidden Village”). A Carpet moved for summary judgment against Carroll, contending, inter alia, that Carroll never disclosed its agency relationship with Hidden Village and, therefore, was liable for the full amount of the unpaid invoices. The trial court granted partial summary judgment to A Carpet, finding that Carroll had a duty to disclose the existence of its agency relationship to A Carpet in order to avoid liability and Carroll failed to disclose that it was serving as Hidden Village’s agent prior to December 20, 2012, when it sent A Carpet a check listing Hidden Village as the payor.

On appeal, Carroll contends that the trial court erred in granting partial summary judgment because there is a genuine issue of material fact as to whether A Carpet had actual knowledge prior to December 20, 2012 that Hidden Village owned the complex. As set forth below, well established law provides that Carroll had a duty to disclose its agency in order to avoid liability; A Carpet, on the other hand, had no affirmative duty to investigate the possibility of Carroll being an agent; and the undisputed evidence shows that Carroll did not disclose its agency status prior to December 20, 2012. Accordingly, we affirm the trial court’s partial grant of summary judgment to A Carpet.

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. On appeal from the denial or grant of summary judgment, the appellate court is to conduct a de novo review of the evidence to determine whether there exists a genuine issue of material fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

(Punctuation and footnotes omitted.) Taylor v. Campbell, 320 Ga. App. 362 (739 SE2d 801) (2013).

So viewed, the evidence shows that Herbert Shaw, Carroll’s on-site manager, hired A Carpet to perform carpet and cleaning work at the Highland Village complex and that he set up A Carpet as a new vendor. Shaw did not recall informing A Carpet’s owner, Michelle Ahn, that Carroll was merely acting as the property owner’s agent, and he admitted that he never told Ahn that Hidden Village owned the property. Moreover, Ahn testified that she knew Carroll owned apartments and she believed Carroll owned Highland Village. A Carpet performed the work between August 2012 and February 2013. On December 20, 2012, a check from “Hidden Village Associates” was issued to A Carpet for some of the work. When the invoices for the remaining work were not paid in full, A Carpet filed the instant suit.

On appeal, Carroll contends that the trial court erred in granting summary judgment because the undisclosed agent theory does not render it liable in this case. We disagree.

An agent who makes a contract without identifying his principal becomes personally liable on the contract. If the agent wishes to avoid personal liability, the duty is on him to disclose his agency, and not on the party with whom he deals to discover it.

(Citations and punctuation omitted; emphasis supplied.) Redi-Floors, Inc. v. Sonenberg Co., 254 Ga. App. 615, 616 (1) (563 SE2d 505) (2002). See also OCGA § 10-6-54 (“If an agent shall fail to disclose his principal,” the contracting party may settle with either the agent or the principal.). “Whether or not the fact of the agency and the identity of the principal were disclosed or known to the other contracting party is a question of fact which may be shown by direct or circumstantial evidence.” (Citation and punctuation omitted.) Carpenter v. Cordele Elec. Supply, 220 Ga. App. 548, 549 (2) (469 SE2d 799) (1996).

In this case, the undisputed facts show that Carroll did not disclose its agency and the identity of the owner before Hidden Village issued its check on December 20. The trial court, however, determined that a jury could find that the issuance of the December 20 check from Hidden Village to A Carpet amounted to disclosure of Carroll’s status as an agent for Hidden Village. See Carpenter, supra, 220 Ga. App. at 549 (2) (“[A]n agent’s use of corporate checks may amount to a disclosure of its corporate principal[.]”).

Carroll argues that there is evidence showing Ahn was aware that a property’s manager is sometimes not its owner, because Ahn was a licensed real estate agent and could search public records regarding ownership of property, and Ahn had previously litigated against property managers and owners of other complexes. These facts show, at most, that A Carpet could have determined whether Carroll is the owner of the property. A Carpet, however, did not have an affirmative duty to investigate the possibility of Carroll being an agent. See Redi-Floors, supra, 254 Ga. App. at 616 (1). Carroll also points to evidence that its Regional Manager told Ahn, in reference to another property, that Carroll was merely the property manager and had no financial responsibility to vendors. There is no indication, however, that the regional manager’s conversation with Ahn occurred prior to December 20, or that the regional manager ever specifically discussed the ownership of the Highland Village complex with Ahn. Compare Fletcher Emerson Mgmt. Co. v. Davis, 134 Ga. App. 699, 701 (2) (215 SE2d 725) (1975) (agent’s testimony that it was his practice to explain his agency status to new vendors constituted circumstantial evidence of disclosure that was sufficient to survive summary judgment). Under these circumstances, the trial court did not err by granting partial summary judgment and holding Carroll liable for expenses that accrued prior to December 20.

Although Carroll argues that 'we should overrule our prior precedent imposing a duty of disclosure on the agent, and hold, instead, that a party must exercise reasonable diligence and investigate the possibility of an agency relationship when entering a contract, we decline to do so. “It is well established under the common law that, where an agent wishes to avoid personal liability, the duty is on him to disclose his agency, and not on the party with whom he deals to discover it[.]” (Citation and punctuation omitted.) Dinkler Mgmt. Corp. v. Stein, 115 Ga. App. 586, 590 (155 SE2d 442) (1967). This principle is long-standing and is consistent with OCGA § 10-6-54, which provides that an agent who “fail[s] to disclose his principal” may be held liable on a contract. Accordingly, we affirm the trial court’s grant of partial summary judgment to A Carpet based on Carroll’s failure to disclose its agency prior to December 20, 2012. In so holding, we note, as set forth above, that the trial court’s finding that the December 20 check created a jury question with regard to expenses that accrued after that date and, thus, the trial court’s denial of summary judgment to A Carpet with regard to the post-December 20 expenses are not at issue in this appeal.

Decided October 27, 2015

Morris, Manning & Martin, Simon R. Malko, Steven J. Pritchett, for appellant.

Isenberg & Hewitt, Ryan L. Isenberg, Harriet C. Isenberg, David R. Dolinsky, for appellee.

Judgment affirmed.

Andrews, P. J., and Branch, J., concur.

       The trial court also found that a jury question remained as to whether the December 2012 check was sufficient to disclose the existence of Carroll’s agency relationship and to relieve Carroll from liability on the account from that point on. Accordingly, the trial court denied Carroll’s motion for summary judgment as to Carroll’s liability for expenses that accrued after December 20, and also denied Carroll’s cross-motion for summary judgment. These two rulings, however, are not before us on appeal.

       Some of the work was performed by another company owned by Ahn. That company assigned its rights to payment to A Carpet, and the assignment is not at issue in this case.


author: BARNES, Presiding Judge.

text:
    A15A1314.
    BROWER v. THE STATE.
    (779 SE2d 32)
   BARNES, Presiding Judge.

The appellant, Connie Brower, was convicted of four counts of kidnapping, two counts of possessing a hoax device, two counts of terroristic threats, and possession of a knife during the commission of a felony, following which she filed a motion for new trial, which she later amended. The trial court denied her motion and she now appeals and contends that she was prevented from fully presenting a defense because the trial court excluded the testimony of her expert witness about Brower’s post-traumatic stress disorder (“PTSD”).

On appeal from a criminal conviction, we view the evidence in the light most favorable to support the jury’s verdict, and the appellant no longer enjoys a presumption of innocence. Gresham v. State, 246 Ga. App. 705 (541 SE2d 679) (2000). The facts, so viewed and as stated in the appeal of the appellant’s husband and co-defendant, Robbie Brower, Brower v. State, 298 Ga. App. 699 (680 SE2d 859) (2009), demonstrate:

[Robbie] Brower and [the appellant] entered the law office of the lawyer who had represented him in a previous criminal case and who [Robbie] Brower claims was guilty of “gross misfeasance” in handling his case. They first encountered three female members of the office staff.
The receptionist was standing in the doorway of the legal assistant’s office when she heard the office door open, but before she could turn to see who it was, someone grabbed her jacket, asked where the attorney was, and when she told him, pushed her to the very last office where the attorney was working. When they got to the office, [Robbie Brower] had her sit in a chair inside the office door. At that point [Robbie Brower] complained that the attorney had ruined his life and he had waited 11 years for revenge. The attorney offered to pay [Robbie] Brower, but [Robbie] Brower said no, that he wanted revenge. [Robbie] Brower ordered the attorney to go stand in a corner, and when the attorney kept turning around, [he] told [the appellant] to put duct tape over the attorney’s mouth, and she also taped his hands.
The legal assistant heard someone tell the receptionist to go to the back, and then [the appellant] entered the legal assistant’s office and told her to go to the back of the office. When she did not comply immediately, [the appellant] grabbed the legal assistant by the arm “real hard,” and said, “You better go to the back before I push you.” [The appellant] had a wrapped-up package with her that the legal assistant, assumed was a gun. The legal assistant then started walking to the back of the office. After [the appellant] locked the door to the office, she pushed open the door to another office and “got” another of the office staff. [The appellant] “caught” this second woman by the arm and told her to come with [her]; [the appellant] pulled and pushed her down the hall. When they arrived in the attorney’s private office, they found the receptionist and the attorney with [Robbie Brower]. [He] told them to sit down. What appeared to be a bomb was on the attorney’s desk.
[Robbie] Brower and [the appellant] were dressed in what appeared to be camouflage jackets and pants. The attorney attempted to find out what [Robbie] Brower wanted and negotiate with him, but [he] made [the attorney] stand in a corner facing the wall. [Robbie] Brower told the office staff that he did not want them, he would not hurt them, he wanted the attorney, and he would release them in about five minutes. The women did not feel free to leave and the legal assistant did not believe that [Robbie] Brower would not hurt her; she was held against her will and she did not go to the back office of her own volition.
After holding the women for ten to thirty minutes, depending upon the staff’s estimates, [Robbie] Brower opened the back door of the office and, after allowing the women to get their purses, released the women. He told them before they were released that he had a bomb and he wanted the women to tell everyone that they were armed and dangerous and meant business. As they were leaving, [the appellant] asked [Robbie] Brower if he wanted to hold one of them hostage, but he said no. Two of the women went to a nearby office and called 911.
After this, [Robbie] Brower taped the attorney to a rolling chair and rolled him from the back to the front of the office. [The couple] and the attorney remained in the front office for most of the remainder of the day while the Browers watched the TV reports about the hostage situation, threatened revenge on the attorney, negotiated with the authorities, and sent out demands.
After conversations with the attorney and some of the official negotiators, the attorney convinced [Robbie] Brower to surrender. Finally, after many hours, [the couple] attempted to come out; they were directed to get on their knees, and then [Robbie] Brower became upset and, threatening to break the attorney’s neck, forced him back in the building and again locked him in a room.
The next morning ... [the couple] decided to attempt to surrender again. And, this time they were able to do so successfully.

(Footnote omitted.) Id. at 699-701.

Before trial, the State filed a motion in limine to exclude testimony from the appellant’s expert witness about an affirmative defense of justification, specifically claiming battered woman’s syndrome and that the appellant suffered from PTSD. At the pre-trial hearing, the appellant abandoned the battered woman’s syndrome defense, but argued that she was justified in committing the crimes because she suffered from PTSD which negated her intent to commit the charged crimes, essentially asserting a diminished mental capacity defense. The trial court reserved ruling on the State’s motion in limine at that tine.

During trial, outside the presence of the jury, the appellant proffered the testimony of her expert, Dr. Marti Loring, a PTSD specialist at the Center for Mental Health and Human Development. Dr. Loring explained that PTSD is diagnosed using four tools — the trauma symptom checklist, the clinician-administered PTSD scale, the trauma belief inventory, and the Horowitz impact of events scale. She further explained that the indicators of PTSD are often flashbacks to the traumatic events, trouble concentrating, hyper-vigilance, depression, hopelessness, and desperation. Dr. Loring recalled that she had met with the appellant on three different occasions for approximately twenty hours, and after interviewing members of her family and her former therapist, diagnosed the appellant with PTSD. She attributed the PTSD to several traumatic events in the appellant’s life, including her father’s desertion of the family when she was a child, sexual abuse by her stepfather, exacerbated by the appellant’s mother being forced to watch, the verbal and physical abuse of her first husband, and his eventual suicide in 1999 while they were in bed together.

Dr. Loring explained that the PTSD was relevant to the appellant’s criminal case because the appellant believed that Robbie Brower was going “into a situation where he was going to die,” and that because she had lost one husband in traumatic circumstances, the appellant would act, given a traumatic trigger, to keep her current husband alive. Dr. Loring further offered that upon a triggering event, PTSD sometimes impairs judgment, and that because of her PTSD, the appellant “felt like she had no other alternative” but to help Robbie Brower commit the crimes at issue.

The trial court granted the State’s motion in limine to exclude the expert testimony, after concluding, among other things, that the appellant had testified to many of the same facts, Dr. Loring’s testimony would invade the province of the jury, the expert testimony would provide a “cloak of validation” to the appellant’s testimony, and also that, contrary to the appellant’s assertion, neither the affirmative defense of justification nor of coercion applied to the facts of the case.

On appeal, the appellant contends that her convictions must be set aside because she was denied the right to present a defense when the trial court refused to allow her expert to testify about her PTSD diagnosis. The appellant does not assert that it was being used as an affirmative defense, but rather that PTSD was relevant to supply an interpretation of the facts outside the ken of the average layman, specifically the impact of PTSD on her intent to commit the crimes.

“Expert opinion testimony... is admissible where the conclusion of the expert is one which jurors would not ordinarily be able to draw for themselves; i.e., the conclusion is beyond the ken of the average layman.” Smith v. State, 247 Ga. 612, 619 (277 SE2d 678) (1981). The appellant contends that the excluded testimony was relevant to her only defense, which appears to be that she could not form the requisite intent to commit the crimes charged because she suffered from PTSD.

Evidence of a criminal defendant’s mental disability may be presented in support of a defense of insanity or delusional compulsion (see OCGA §§ 16-3-2 and 16-3-3); a claim of incompetency to stand trial (see OCGA § 17-7-130); or, since such pleas were authorized, a plea of guilty but mentally ill or guilty but mentally retarded (see OCGA § 17-7-131) — none of which Appellant raised in this case. For more than 150 years, however, [our Courts have] consistently upheld the exclusion of evidence of a defendant’s diminished mental condition when offered to support other defenses or to negate the intent element of a crime. See, e.g., State v. Abernathy, 289 Ga. 603, 607-608 (715 SE2d 48) (2011) (“ ‘[M]ental abnormality, unless it amounts to insanity, is not a defense to a crime.’ ”) (quoting Wallace v. State, 248 Ga. 255, 262 (282 SE2d 325) (1981)); Paul v. State, 274 Ga. 601, 603 (555 SE2d 716) (2001) (rejecting the defendant’s argument that “he was entitled to introduce expert evidence of his mental impairment tending to show his lack of intent to kill,” because “the expert evidence was irrelevant to the state of mind necessary to determine guilt in light of the defendant’s refusal to assert an insanity defense or that he was mentally ill at the time of the conduct in question”) [.]

(Footnote omitted.) Thompson v. State, 295 Ga. 96, 98-99 (2) (757 SE2d 846) (2014). Moreover,

[i]t should be noted that Georgia takes a more restrictive position on this issue than many other jurisdictions, where the admission of evidence relating to a defendant’s deficient mental condition to support defenses other than those based on diminished mental capacity or to negate a required element of a crime has been authorized by statute or judicial decision in at least some circumstances. Georgia, however, is not such a jurisdiction, and if the law established by our longstanding precedent is to change, it would be better done as a matter of public policy legislated by the General Assembly.

Decided October 27, 2015.

Kevin A. Anderson, Jimmonique R. S. Rodgers, for appellant.

Richard A. Mallard, District Attorney, Keith A. McIntyre, Assistant District Attorney, for appellee.

(Citation omitted.) Id. at 100 (2).

Under these circumstances the trial court did not err in excluding the expert’s testimony regarding PTSD. Accord Thompson, 295 Ga. at 98-99 (2) (trial court did not err in excluding expert testimony that appellant has an IQ of 67, which he asserted was relevant to his defense that the shooting was accidental because his mental disability prevented him from understanding how to use the crossbow properly).

Judgment affirmed.

Ray and McMillian, JJ., concur.

       The appellant was apparently diagnosed with PTSD in 1999 after her first husband’s suicide.

       “P]t has not yet been determined whether post traumatic stress disorder ... [is an] admissible scientific principle [ ] in Georgia.” Prickett v. State, 220 Ga. App. 244, 247 (3) (469 SE2d 371) (1996), overruled in part on other grounds, State v. Belt, 269 Ga. 763, 764, n. 1 (505 SE2d 1) (1998). See Carter v. Glenn, 243 Ga. App. 544, 549, n. 2 (533 SE2d 109) (2000).


author: ANDREWS, Presiding Judge.

text:
    A15A1621.
    BELL v. TAYLOR.
    (779 SE2d 42)
   ANDREWS, Presiding Judge.

This appeal is from a final order granting joint legal custody of a child to the father and the maternal grandmother, but primary physical custody to the grandmother. We reverse.

The minor child, D. B., was born August 19, 2008, to two unmarried parents, David Bell, Jr., and Kristy Taylor. In 2011 both parents consented to the maternal grandmother, Misty Taylor, being the temporary guardian, and the grandmother has reared the child since then. Bell, who was 20 when D. B. was born, had little to no role in the child’s life for the first few years. He acknowledged that in the past he used drugs and alcohol, and was “just young and wild and partied a lot.” But Bell eventually straightened his life out.

On September 19,2013, Bell filed a petition seeking legitimation and custody of the child. The appellee, grandmother Taylor, answered the petition, but the child’s mother did not. On January 22, 2014, the trial court granted the legitimation and changed the child’s last name to Bell. The court entered a separate order awarding Bell temporary visitation with the child. The trial court then held a hearing on the custody issue on August 20, 2014, and entered its final order on October 22, 2014, awarding joint legal custody to both parties, but primary physical custody to the grandmother.

At the hearing, Bell’s father and mother both testified about Bell’s checkered past but stated that during the last two years, Bell had been clean and sober, had become a responsible worker, and had started wanting to be the father to his son. Bell works for his father, who described Bell as “a hundred percent different” now. Bell married in June 2014 and has a stable home with his wife and two stepchildren.

The appellee has reared D. B. for most of his life. Also in her household are her husband, her grown daughter, and D. B.’s younger half-sister. Taylor encouraged Bell to be involved in D. B.’s life, and she acknowledged that although D. B. initially had a difficult time when Bell first got visitation rights, eventually the visitation started “going pretty good.”

Both Bell and the grandmother had witnesses testify on their behalf. Tony Roberson, a cabinet shop owner and family friend of Bell, testified that he had seen Bell go from not being worth a “plug nickel” to being mature, grown up, in a good marriage, looking after his stepchildren, and able to provide a “solid life” for D. B. Johnny Taylor, the ex-husband of the appellee, testified that he usually gets D. B. every other weekend, and based on those visits he reported that D. B. was happy and doing great living with the appellee. Richard Foskey, sheriff of Bacon County, testified that he knew both the appellee and her current husband, and that D. B. seemed to be a loving child who was well taken care of by the appellee.

Bell contends the trial court misapplied the legal standard for deciding custody actions between a parent and a grandparent. OCGA § 19-7-1 (b.l) provides, in pertinent part:

... 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.

“Implicit in this statute are three presumptions: (1) the parent is a fit person entitled to custody, (2) a fit parent acts in the best interest of bis or her child, and (3) the child’s best interest is to be in the custody of a parent.” (Footnote omitted.) Burke v. King, 254 Ga. App. 351, 352-353 (562 SE2d 271) (2002).

To rebut the presumption set forth in OCGA § 19-7-1 (b.l), the third party must show that parental custody would cause physical or significant long-term emotional harm, not merely social or economic disadvantage. Clark v. Wade, 273 Ga. 587, 598 (544 SE2d 99) (2001); Strickland v. Strickland, 330 Ga. App. 879 (769 SE2d 607) (2015). See also Harris v. Snelgrove, 290 Ga. 181, 182 (2) (718 SE2d 300) (2011). “[A] change in home and school will often be difficult for a child, but some level of stress and discomfort may be warranted when the goal is reunification of the child with the parent.” Clark, supra at 598.

In determining whether reuniting a child to the parent would harm the child, the trial court must consider the factors set forth in Clark, supra at 598-599:

(1) who are the past and present caretakers of the child; (2) with whom has the child formed psychological bonds and how strong are those bonds; (3) have the competing parties evidenced interest in, and contact with, the child over time; and (4) does the child have unique medical or psychological needs that one party is better able to meet.

See Lopez v. Olson, 314 Ga. App. 533 (724 SE2d 837) (2012).

In the instant case, at the conclusion of the hearing, the trial court discussed the first three (and only pertinent) factors, and remarked that he could decide the case either way and would sleep well at night because he felt both parties would take good care of D. B. But in its final order, the court decided:

Because of the bond between [D. B.] and his grandmother and due to the fact that her home has been his residence for an overwhelming majority of his life, it would be harmful to [D. B.] for him to be removed from that home and it is in the best interest of [D. B.] that he remain in the care and custody of Defendant Misty Taylor.

Bell contends the trial court’s findings do not evince any finding of physical or significant, long-term psychological harm, and we agree. Rather, the type of harm noted by the trial court falls within that level of stress and discomfort that is an acceptable price for reuniting a child with a parent, and is insufficient to infringe the fiercely guarded right of a parent to have legal and physical custody of his or her child. Clark, supra; Strickland, supra.

Accordingly, the trial court’s judgment is reversed and the case remanded with direction for the trial court to enter a custody award in favor of the appellant father.

Decided October 28, 2015.

DuAnn C. Davis, for appellant.

William J. Edgar, for appellee.

Judgment reversed and case remanded with direction.

Miller and Branch, JJ., concur.


author: ELLINGTON, Presiding Judge.

text:
    A15A2319.
    EZUNU v. MOULTRIE.
    (779 SE2d 44)
   ELLINGTON, Presiding Judge.

Ndoumbe Moultrie (“the mother”) filed this action in the Superior Court of Fulton County against Ifeanyi Ezunu (“the father”) for modification of custody of the parties’ two minor children, U. M. E. and A. J. E. After a bench trial, the trial court awarded the mother sole legal and physical custody of the children. The judgment provided no visitation for the father, but provided that visitation would be phased in as deemed appropriate by the children’s therapist. The father appeals, contending that the trial court erred in adopting the recommendations of the court-appointed guardian ad litem. In addition, the father contends that the visitation provisions of the judgment constitute a self-executing change of visitation which impermissibly abdicates the trial court’s duty to determine the best interests of the children. For the reasons explained below, we reverse in part and remand the case to the trial court with direction that the court strike the portion of the judgment that provides for changes in the father’s visitation privileges without judicial scrutiny into the children’s best interests.

The record shows the following. U. M. E. was born on August 29, 2002, and A. J. E. was born on December 26, 2004. The father filed a petition in the Superior Court of Muscogee County to legitimate the children, which was granted. In an order entered November 6, 2012, the Muscogee court awarded the parents joint legal custody, awarded physical custody to the father, and provided visitation for the mother.

In May 2013, the children reported to school personnel that the father had physically abused them. The children were placed in foster care. The mother filed the instant petition for modification of custody on July 9, 2013. On August 16, 2013, the trial court issued a temporary order, giving the mother sole legal and physical custody and ordering no visitation for the father, and issued a one-year family violence protective order. The trial court appointed a guardian ad litem to investigate and provide recommendations for the care and custody of the children going forward.

The trial court held a hearing on the mother’s petition on August 20,2014. The mother testified that the father had hit her and U. M. E. when they lived together and that, when she had the children for visitation, they regularly complained to her about being caned by the father, and she saw bruises on them. At the hearing, the father admitted that corporal punishment, using a switch, had “always been part of [his] parenting,” and he considered it to be appropriate.

Based on a year-long investigation, including conversations with the children, the guardian ad litem found that the children were very afraid of the father and feared that he would mistreat them as punishment for “telling on him.” They wanted to stay with the mother and were reluctant even to begin having telephone visitation with the father. The guardian ad litem testified that, because of the protective order, she never had the opportunity during her investigation to observe the father interact with the children and consequently her report was not complete in that respect. The father’s counsel made an oral motion for the court to suspend the trial to allow the guardian ad litem additional time to complete her investigation. The trial court denied the request.

The court awarded sole legal and physical custody of the children to the mother. The order provides:

There will be no visitation for the father, Mr. Ezunu, at this time based on the recommendations of the Guardian ad Litem and the children’s therapist. Telephone calls between the children and Mr. Ezunu shall be supervised by the children’s therapist. Visitation will be implemented with the assistance of the child’s therapist, beginning with supervised visitation for up to four hours, when the therapist finds the children are ready for such visits. Visitation will then be increased as deemed appropriate by the children’s therapist in order to ultimately achieve a standard visitation schedule for Mr. Ezunu of every other weekend.

1. The father contends that, because the guardian ad litem’s investigation was incomplete, the trial court erred in adopting the guardian’s recommendations regarding visitation.

“[A] trial court faced with a petition for modification of child custody is charged with exercising its discretion to determine what is in the child’s best interest.” (Punctuation and footnote omitted.) Jackson v. Sanders, 333 Ga. App. 544, 558 (5) (773 SE2d 835) (2015). Although a trial court may consider the recommendations of a guardian ad litem, such recommendations “are not a substitute for the [trial] court’s independent discretion and judgment.” (Citation and punctuation omitted.) King v. King, 284 Ga. 364, 365 (667 SE2d 30) (2008). “[A] trial court’s decision regarding a change in custody/ visitation will be upheld on appeal unless it is shown that the court clearly abused its discretion. . .. And where there is any evidence to support the trial court’s ruling, a reviewing court cannot say there was an abuse of discretion.” Jackson v. Sanders, 333 Ga. App. at 558-559 (5).

A review of the trial transcript and the trial court’s judgment shows that the trial court was aware of the limitations in the thoroughness of the guardian ad litem’s investigation and report. The record shows that the trial court considered other evidence regarding the father’s relationship with the children, including evidence that the children had been traumatized by the unreasonable, excessive corporal punishment the father administered and were fearful of him. The trial court was particularly disturbed by the father’s failure to understand the children’s fear of him. Although the trial court decided to follow the guardian ad litem’s recommendation, nothing in the record suggests that the trial court failed to exercise its own judgment regarding what was in the best interests of the children. Because there is evidence to support the trial court’s ruling (with the exception of the provision addressed in Division 2, infra), the father has not shown any abuse of the trial court’s discretion. Salmon-Davis v. Davis, 286 Ga. 456, 458 (1) (689 SE2d 303) (2010); King v. King, 284 Ga. at 365; Taylor v. Taylor, 282 Ga. 113, 114 (2) (646 SE2d 238) (2007).

2. The father contends that the visitation provisions of the judgment constitute an impermissible self-executing change of visitation which abdicates the trial court’s duty to determine the best interests of the children, citing Johnson v. Johnson, 290 Ga. 359 (721 SE2d 92) (2012), among other cases. In Johnson, the Supreme Court of Georgia considered a visitation order similar to the one at issue in this case that allowed for an automatic change in a father’s visitation, from supervised to unsupervised visitation, based on a future event, specifically the determination of the therapist, “without any additional judicial scrutiny.” Id. at 360. The Court explained that

[a] self-executing change of custody/visitation is acceptable as long as it poses no conflict with our law’s emphasis on the best interests of the child. However, a self-executing change in custody/visitation that constitutes a material change, i.e., is one that is allowable only upon a determination that it is in the best interests of the child at the time of the change, generally violates Georgia’s public policy founded on the best interests of the child. A requirement that a parent’s visitation be supervised is a provision expressly meant for the child’s best welfare, and it is the trial court’s responsibility to determine whether the evidence is such that a modification of custody/visitation privileges is warranted, and the responsibility for making that decision cannot be delegated to another, no matter the degree of the delegatee’s expertise or familiarity with the case. While the expert’s opinion may serve as evidence supporting the trial court’s decision to modify visitation, the decision must be made by the trial court, not the expert.

(Citations and punctuation omitted.) Id.

We agree with the father that the visitation provision in this case would allow material changes in visitation, from no visitation to limited supervised visitation to nonsupervised overnight visitation, to occur without any judicial consideration of the children’s best interests. Johnson v. Johnson, 290 Ga. at 360. As such, it is an invalid self-executing change of visitation that impermissibly delegates to the children’s therapist the determination if and when future modifications of the father’s visitation privileges are warranted. Id. As in Johnson, the self-executing change of visitation provision should not have been included in the judgment. It does not follow, however, that the entire judgment must be reversed and the case remanded for a rehearing. As in Johnson, we reverse the judgment in part only and remand the case to the trial court with direction that the self-executing change of visitation provision of the judgment be stricken. Id. See also Rumley-Miawama v. Miawama, 284 Ga. 811, 814 (2) (671 SE2d 827) (2009); Dellinger v. Dellinger, 278 Ga. 732, 735 (1) (609 SE2d 331) (2004); Scott v. Scott, 276 Ga. 372, 377 (578 SE2d 876) (2003). The judgment is otherwise affirmed. Any future change in the father’s visitation privileges (from no visitation as currently ordered) will be subject to judicial scrutiny into the children’s best interests as provided by law.

Decided October 28, 2015.

Anene & Associates, Onyema A. Farrey, for appellant.

Michelle H. Jordan, Lorraine E. Anderson, for appellee.

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

Dillard and McFadden, JJ., concur.

       OCGA § 19-9-3 (a) (3) (O) (In determining the best interests of the child in any case in which custody or visitation is at issue between the parents, the judge may consider any relevant factor, including any “recommendation by a court appointed custody evaluator or guardian ad litem.”).

       See also Rumley-Miawama v. Miawama, 284 Ga. 811, 814 (2) (671 SE2d 827) (2009) (accord); Dellinger v. Dellinger, 278 Ga. 732, 735 (1) (609 SE2d 331) (2004) (accord); Scott v. Scott, 276 Ga. 372, 377 (578 SE2d 876) (2003) (accord); Bankston v. Warbington, 332 Ga. App. 29, 35 (2) (771 SE2d 726) (2015) (accord).


author: Ray, Judge.

text:
    A15A0968.
    SALAS et al. v. JP MORGAN CHASE BANK, N.A. et al.
    (779 SE2d 48)
   Ray, Judge.

Maria Molina Salas and Ignacio Molina Salas as trustee of the Salas Family Trust (collectively, the “Plaintiffs”) filed suit against, inter alia, JP Morgan Chase Bank, N.A. (“Chase Bank”) and the Federal National Mortgage Association (“Fannie Mae”) seeking to stop foreclosure proceedings initiated against Maria’s property. Chase Bank then filed an answer and counterclaimed for judgment under a promissory note, reformation of a security deed, and declaratory judgment or, in the alternative, equitable subrogation. Fannie Mae also filed an answer. Chase Bank and Fannie Mae moved for summary judgment on all of the Plaintiffs’ claims and on the pending counterclaims. After a hearing, the trial court granted summary judgment to Chase Bank and Fannie Mae on all of the Plaintiff’s claims. The trial court also entered judgment in favor of Chase Bank on each of its counterclaims.

Plaintiffs appeal from the trial court’s grant of Chase Bank’s counterclaims, arguing that the trial court erred in considering an affidavit that the Plaintiffs contend was inadmissible and in granting summary judgment on Chase Bank’s counterclaims for reformation and declaratory judgment. Plaintiffs also allege that the trial court erred when it awarded a monetary judgment in favor of Chase Bank on the suit on a note counterclaim because allegedly there was no admissible evidence in support of its damage calculations or attorney fees related to this counterclaim.

For the following reasons, we affirm the trial court’s grant of summary judgment to Chase Bank on its counterclaim to reform the Chase Bank Security Deed and reverse the trial court’s grant of summary judgment as to Chase Bank’s counterclaim for declaratory judgment. We also reverse the award of damages to Chase Bank on its counterclaim for suit on a note and remand the case to the trial court for further proceedings on that issue.

“On appeal from a grant of summary judgment, this Court conducts a de novo review of the record, construing the evidence and all inferences therefrom most favorably to the nonmoving party.” (Citation omitted.) American Manufacturers Mut. Ins. Co. v. E A Technical Svcs., 270 Ga. App. 883, 883 (608 SE2d 275) (2004).

The evidence presented at the summary judgment proceeding shows the following. On May 21, 2001, Yvette Salas purchased property in Duluth via a Special Limited Warranty Deed (the “Property”). The Property was described as being Lots 6, 7, 8, and 9 of Unit 1, Section 2, Block E of the Berkeley Hills Subdivision in Gwinnett County (collectively, the “Lots”), all of which have the same street address. Lot 9 is identified by records in the Gwinnett County Georgia Tax Assessor’s Office as an improved lot. Lots 6, 7, and 8 are identified as unimproved lots. To finance the purchase, Yvette obtained a purchase money loan from American Summit Mortgage Corporation for $165,000 and executed a security deed in favor of that institution. The purchase money security deed was recorded on June 12, 2001.

On May 18, 2001, Yvette conveyed the Lots to herself and Maria pursuant to a quitclaim deed (the “First Quitclaim Deed”). The First Quitclaim Deed was not recorded until May 31, 2002.

On July 3,2002, Yvette conveyed her interest in the Lots to Maria via quitclaim deed (the “Second Quitclaim Deed”). The Second Quitclaim Deed was recorded on July 12, 2002. This conveyance was for the purpose of a refinance transaction in which Maria obtained a $240,000 loan from America’s Wholesale Lender (“AWL”) and granted a security deed in favor of AWL on July 12, 2002 (the “AWL Security Deed”). As part of the refinance transaction, funds from the proceeds of the AWL loan went to pay off the original purchase money loan under Yvette’s name. The original purchase money security deed was accordingly marked satisfied and cancelled on record on December 2, 2002.

After executing the AWL Security Deed and obtaining a payoff of the original purchase money security deed, Maria conveyed the Lots back to Yvette and herself as joint tenants with rights of survivorship pursuant to a quitclaim deed recorded on July 12, 2002 (the “Third Quitclaim Deed”).

On February 14, 2003, Maria obtained a revolving line of credit against the Lots from SunTrust Bank with a maximum principal balance of $56,200. On that same date, Maria executed a security deed in favor of SunTrust conveying a junior lien against her interest in the Lots to SunTrust (the “HELOC Security Deed”). The HELOC Security Deed was not recorded until January 10, 2005.

Prior to the recording of the HELOC Security Deed, Yvette and Maria executed a quitclaim deed conveying all interest in the Lots to Maria on May 18, 2003 (the “Fourth Quitclaim Deed”). The Fourth Quitclaim Deed was recorded on June 18, 2003.

On August 1, 2003, a quitclaim deed dated September 18, 2002, was recorded, in which Yvette purported to convey her interest in the Lots to David Lipps (the “Lipps Quitclaim Deed”). The Lipps Quitclaim Deed was recorded after the Fourth Quitclaim Deed.

On May 24, 2007, Maria entered into a refinance transaction in which she obtained a loan from Chase Bank in the amount of $304,800 and executed a promissory note as evidence of the loan. As part of the transaction, Chase Bank paid the outstanding balances owed by Maria on the HELOC and AWL loans. At the closing, Maria executed a security deed in favor of Chase Bank (the “Chase Bank Security Deed”).

The Chase Bank Security Deed describes the property conveyed as “Parcel ID number 6228041,” which corresponds to Lot 9. However, the legal description of the property attached to the Chase Bank Security Deed describes the secured property as Lot 6.

Maria defaulted on the Chase Bank loan, and the loan balance was accelerated. As a result of the default, Chase Bank referred the property for nonjudicial foreclosure, but no foreclosure sale was held because the Plaintiffs filed the present lawsuit seeking, inter alia, an injunction against foreclosure, a declaratory judgment that the defendants had no enforceable interest in the property, and to quiet title. Chase Bank and Fannie Mae each filed an answer to the complaint. Chase Bank also filed a counterclaim seeking, inter alia, a judgment on the note, reformation of the legal description of the property secured by the Chase Bank Security Deed, and a declaratory judgment to establish the validity and priority of the Chase Bank Security Deed against all Lots.

After a hearing, the trial court granted summary judgment in favor of Fannie Mae and Chase Bank and granted relief to Chase Bank on its counterclaims. Plaintiffs appeal from that order.

1. Plaintiffs allege that the trial court erred in granting Chase Bank’s counterclaim for a declaratory judgment that the Chase Bank Security Deed, as reformed, is a “first priority lien wholly encumbering the Property in favor of [Chase Bank] and its successors and assigns and that [Chase Bank] may non-judicially foreclose its interest in the Property in its entirety[.]” Plaintiffs allege that this ruling was in error because David Lipps holds a 50 percent intervening interest in the Lots and was never made a party to the proceedings. For the following reasons, we reverse this ruling.

As noted above, Yvette allegedly conveyed her interest in the Lots to David Lipps on September 18, 2002, pursuant to a quitclaim deed. Yvette then conveyed that same interest in the Lots to Maria in the Fourth Quitclaim Deed on May 18, 2003. The Fourth Quitclaim Deed was recorded on June 18, 2003. However, the Lipps Quitclaim Deed was not recorded until August 1, 2003.

Chase Bank correctly notes that the Lipps Quitclaim Deed was not recorded until after Maria recorded the Fourth Quitclaim Deed. OCGA § 9-11-19 (a) (2) (A) mandates joinder of persons where the indispensable party “claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may ... [a] s a practical matter impair or impede his ability to protect that interestf.]” Here, Lipps allegedly had an interest conveyed to him by Yvette in the Lipps Quitclaim Deed. Although Chase Bank correctly asserts that the deed recorded first has priority in a contest between deeds conveying the same property, such is true only when the deed is “taken without notice to the buyer and with consideration to the seller.” (Citation omitted.) Thomas v. Henry County Water and Sewerage Auth., 317 Ga. App. 258, 261 (1) (731 SE2d 66) (2012). See also OCGA § 44-2-1 (“[a] deed maybe recorded at any time; but a prior unrecorded deed loses its priority over a subsequent recorded deed from the same vendor when the purchaser takes such deed without notice of the existence of the prior deed”). Here, the failure to join Lipps as an indispensable party prevents him from presenting any argument that he should not lose priority for any reason, including the possibility that Maria took the Fourth Quitclaim Deed with notice of the existence of his prior unrecorded deed. See Hall v. Oliver, 251 Ga. App. 122, 122-123 (1) (553 SE2d 656) (2001) (Under OCGA § 9-11-19 (a) (2) (A), the determination of whether a party is necessary to an action is based on “not whether relief has been requested against the other party, but whether the other party has or claims an interest relating to the subject of the action and is so situated that the disposition of the action in [his] absence may as a practical matter impair or impede [his] interest”) (footnote omitted). Accordingly, we reverse the portion of the trial court’s order ruling on Chase Bank’s motion for a declaratory judgment, returning this case to trial to allow Lipps to be added as a party.

2. In two related enumerations, the Plaintiffs argue that the trial court’s grant of summary judgment in favor of Chase Bank on the reformation counterclaim was in error because the evidence supporting the claim, the affidavit of Jeffrey A. Javorsky and accompanying exhibits, should have been deemed inadmissible. We disagree.

Chase Bank submitted Javorsky’s affidavit in conjunction with its motion for summary judgment. In his affidavit, Javorsky sets out his role and personal access to and knowledge of the records created and maintained by Chase Bank in the ordinary course of business. He then references and authenticates various bank documents, including the security deed Maria executed in favor of Chase Bank. He notes that Chase Bank extended the loan amount to Maria “upon the express understanding that [Chase Bank] was gaining a first-priority security interest in the Property,” and that the security deed was intended to encumber Lot 9 of the Property (a residential lot with a two-story house built upon it) and not Lot 6 (which was a residential unbuildable lot). Based upon his review of the loan, Javorsky stated in his affidavit that Chase Bank would not have issued the loan if it expected to receive a residential, unbuildable lot as security for repayment of the indebtedness. He also stated that Maria executed a document titled “Document Correction Agreement” wherein she agreed that “[i]f any document... inaccurately reflects the true and correct terms and conditions of the Loan, upon request of the Lender, Borrower(s) will comply with Lender’s request to execute, acknowledge, initial and deliver to Lender any documentation Lender deems necessary to . .. correct” the document. He went on to state that the bank’s records reflect several documents executed by Maria that reference the fact that the secured property was a residential parcel with a house built on it, including a property appraisal. Notably, a scrivener’s affidavit was prepared by the closing attorney asserting that the security deed “should have encumbered Lot 9 instead of Lot 6.” The Javorsky affidavit further stated that Maria was in default on the loan and that the scheduled foreclosure sale did not occur.

(a) Plaintiffs first allege that the Javorsky affidavit should have been deemed inadmissible because Chase Bank did not comply with the notice requirement of OCGA § 24-9-902 (11). We are unpersuaded.

A writing will generally not be admitted into evidence “unless the offering party tenders proof of the authenticity or genuineness of the writing.” (Citation and punctuation omitted.) Jaycee Atlanta Dev. v. Providence Bank, 330 Ga. App. 322, 325 (2) (765 SE2d 536) (2014). However, Georgia’s new Evidence Code specifies a number of documents that are self-authenticating and do not require “[e]xtrinsic evidence of authenticity as a condition precedent to admissibility” under OCGA § 24-9-902, including

[t]he original or a duplicate of a domestic record of regularly conducted activity that would be admissible under paragraph (6) of Code Section 24-8-803 if accompanied by a written declaration of its custodian or other qualified person certifying that the record: (A) Was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of such matters; (B) Was kept in the course of the regularly conducted activity; and (C) Was made by the regularly conducted activity as a regular practice.

OCGA § 24-9-902 (11). This subsection also requires a party intending to offer such records into evidence to “provide written notice of such intention to all adverse parties and shall make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge such record and declaration[.]” Id.

Here, Chase Bank does not dispute that it failed to notify the Plaintiffs in writing that it intended to introduce the Javorsky affidavit or the accompanying bank records as self-authenticating exhibits pursuant to OCGA § 24-9-902 (11). However, the Plaintiffs received the documents as part of Chase Bank’s motion for summary judgment and had the opportunity to respond to the admissibility of such records both in their response brief and during oral argument. Plaintiffs argued before the trial court that they were unsuccessful in seeking to depose Javorsky and that Chase Bank did not respond to its notice to produce corporate resolution or meeting minutes identifying his job title within the bank. They informed the Court that they “intended] to file a motion on that issue[,]” but no motion was ever filed. Accordingly, Plaintiffs were clearly on notice that Chase Bank sought to introduce the bank records as business records under OCGA § 24-8-803(6) and thatthe documents were intended to qualify as self-authenticating under OCGA § 24-9-902 (11).

Because OCGA § 24-9-902 mirrors the Federal Rules of Evidence, we will look to the advisory notes and federal case law interpreting the Federal Rules of Evidence for guidance. See, e.g., Hayek v. Chastain Park Condo. Assn., 329 Ga. App. 164, 167 (1), n. 2 (764 SE2d 183) (2014). Fed. R. Evid. 902 (ll)’s notice requirement was “intended to give the opponent of the evidence a full opportunity to test the adequacy of the foundation set forth in the declaration.” Fed. R. Evid. 902 advisory committee’s note (2000 Amendment). See, e.g., United States v. Komasa, 767 F3d 151, 155 (2d Cir. 2014) (although plaintiff did not comply with the notice requirements of Fed. R. Evid. 902 (11), the requirement was excused where the defendants clearly had actual notice of the government’s intent to introduce documents as self-authenticating copies of the records prior to trial, and the defendants admitted they had an opportunity to challenge authenticating certificates). We find that the intended notice was provided in this case.

Further, we find that Javorsky has sufficiently authenticated the Chase Bank records he relied upon and attached to his affidavit. Under Georgia’s new Evidence Code, business records maybe admissible as a hearsay exception:

Unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness ... , a memorandum, report, record, or data compilation, in any form ... if (A) made at or near the time of the described acts, events, conditions, opinions, or diagnoses; (B) made by, or from information transmitted by, a person with personal knowledge and a business duty to report; (C) kept in the course of a regularly conducted business activity; and (D) it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness or by certification. . . .

OCGA § 24-8-803 (6). Areview of the affidavit reveals that Javorsky complied with these requirements.

(b) Plaintiffs next call into question the trustworthiness of the business records relied on by Javorsky, arguing that his Linkedln.com profile does not list him as having the same job title at Chase Bank that his affidavit does. However, courts

that have examined the trustworthiness prong of the business record exception to the hearsay rule have noted that, generally, bank records are particularly suitable for admission under [OCGA § 24-8-803 (6)] in light of the fastidious nature of record keeping in financial institutions, which is often required by governmental regulations.

(Citations and punctuation omitted.) Ware v. Multibank 2009-1 RES-ADC Venture, 327 Ga. App. 245, 249 (2) (758 SE2d 145) (2014). Here, the Plaintiffs do not challenge that Maria signed the Chase Bank Security Deed and accompanying closing documents. “It is within the trial court’s discretion to determine whether a proper foundation was laid for application of the business records exception to a particular document.” (Citation and punctuation omitted.) Ciras, LLC v. Hydrajet Technology, 333 Ga. App. 498, 501 (773 SE2d 800) (2015). We find that the trial court did not abuse its discretion in admitting the routine bank records prepared by Chase Bank and admitted via the Javorsky affidavit.

3. Plaintiffs next contend that the trial court erred in granting summary judgment in favor of Chase Bank on its counterclaim seeking reformation of the Chase Bank Security Deed because, even assuming that the above-referenced documents were admissible, there still was inadequate evidence to support the award of summary judgment. We disagree.

A written instrument can be reformed under equity if there is a mutual mistake between the parties. “A‘mutual mistake’ in an action for reformation means one in which both parties had agreed on the terms of the contract, but by mistake of the scrivener the true terms of the agreement were not set forth.” (Punctuation and footnote omitted.) First Nat. Bank of Polk County v. Carr, 260 Ga. App. 439, 440 (1) (579 SE2d 863) (2003). The legal description of the property to be secured by the Chase Bank Security Deed describes Lot 6 as the encumbered property.

Javorsky’s affidavit provided evidence that the parties intended to use Lot 9, which contained the residential building, as security for the loan to Chase Bank as opposed to the undeveloped Lot 6. This evidence included the following documents signed as part of the loan closing: the “As Is” statement signed by Maria in conjunction with the loan closing stating that the encumbered property is a “residential property[;]” the Occupancy Affidavit stating that “[t]he property for which this mortgage is being obtained is being purchased/refinanced-as a primary home and I/we intend to occupy the aforementioned property [;]” a flood hazard notice in which Maria agreed and acknowledged that “[t]he building or mobile home securing the loan for which you applied is ... located in an area with special flood hazards [;]” and that Maria identified the property to be encumbered as a primary residence on the loan application. The bank records also include a Uniform Residential Appraisal Report identifying the property given as collateral for the loan as being 1.08 acres with a two-story brick home built upon it. Further, the attorney who conducted the closing transaction executed a scrivener’s affidavit asserting that the security deed should have encumbered Lot 9 instead of Lot 6.

Plaintiffs argue that these documents did not prove mutual mistake because they show only that the closing attorney made a mistake, not Maria. We are unpersuaded. The above evidence shows that Maria executed several documents exhibiting her intent to encumber the lot that included her residence, not an undeveloped property. She has pointed us to no evidence indicating otherwise. Accordingly, we find that summary judgment in favor of Chase Bank on this ground was not in error. See Aames Funding Corp. v. Henderson, 275 Ga. App. 323, 323-325 (620 SE2d 503) (2005) (trial court erred in not granting summary judgment to lender to reform security deed to expand legal description to include three additional lots other than those described in security deed when evidence presented showed that both parties intended to encumber all four lots). We find no error.

4. At the motion for summary judgment hearing, Plaintiffs consented to the trial court granting summary judgment to Chase Bank on its suit on a note counterclaim. In its order, the trial court granted summary judgment in favor of Chase Bank on its suit under the promissory note and awarded damages to Chase Bank in the amount of $507,555.97, which included $304,800 in unpaid principal, $116,349.07inunpaidinterest, $30,588.23inescrow advances, $84.14 in late charges, $13,594.62 in corporate advances, and $42,139.91 in statutory attorney fees under OCGA § 13-1-11. It also held that additional interest shall accrue on the principal balance at the rate of $55.32 per day. Plaintiffs contend that although they consented to liability for this cause of action, they did not consent to the amount of damages awarded and that the damages awarded were not proven to a reasonable certainty by competent evidence in the record. We agree that an issue of fact remains as to the amount.

“Where a party sues for damages, it has the burden of proof of showing the amount of loss in a manner in which the trial judge can calculate the amount of the loss with a reasonable degree of certainty.” (Citation and punctuation omitted.) Nelson v. Hamilton State Bank, 331 Ga. App. 419, 421 (2) (771 SE2d 113) (2015). See also Lockwood v. Fed. Deposit Ins. Corp., 330 Ga. App. 513, 517 (2) (b) (767 SE2d 829) (2014) (“[I]n an action on a promissory note, the plaintiff has the burden of proving that the defendant is indebted to him and in a definite and correct amount”) (punctuation and footnote omitted). Thus, a party seeking judgment on a suit on a note “is not entitled to summary judgment as to the amount of the debt where it offers no testimony or any documentation explaining its method of calculating the specific amounts sought such that the trial court is unable to confirm the [party’s] calculation of the purported damages.” (Citations omitted.) Nelson, supra at 422 (2).

The affidavit presented by Chase Bank in support of its motion for summary judgment states that “an unaltered Payoff Quote for the [l]oan good through April 30, 2014” was attached as Exhibit 16. However, Exhibit 16 is a payoff quote for a loan issued by a different bank and does not support the damages awarded to Chase Bank. On appeal, Chase Bank does not point us to any additional evidence supporting the trial court’s award of damages on the outstanding amounts due under the Note or any evidence identifying the corporate advances, escrow advances and late charges they sought to recover. Further, the trial court’s award of attorney fees under OCGA § 13-1-11 was invalid, as it is derivative of the amount of principal and interest owing on the note. See OCGA § 13-1-11 (a) (1). Accordingly, we find that the trial court erred by entering a judgment for the specific amount of the debt and attorney fees, and we remand the case back to the trial court for further proceedings to determine a proper award of damages and attorney fees.

Judgment affirmed in part and reversed in part, and case remanded.

Barnes, P. J., and McMillian, J., concur.

Decided October 29, 2015.

Smith Law, William J. Smith, for appellants.

Gilroy Bailey Trumble, Monica K. Gilroy, Tania T. Trumble; Wargo & French, David M. Pernini, Dustin S. Sharpes, for appellees.

       Several parties in this ease have the last name “Salas.” Accordingly, for clarity’s sake, we shall refer to Maria Molina Salas as “Maria” and Yvette Salas as ‘Yvette.”

       It appears from the trial court’s order that it did not rule upon the alternative claim for equitable subrogation because it granted summary judgment on Chase Bank’s counterclaim for declaratory judgment.

       We remind the parties and the bar that the Rules of the Court of Appeals require that record and transcript citations must he to the volume or part of the record or transcript and the page numbers that appear on the appellate records or transcript as sent from the court below. See Rule 25 (a) (1). This means that parties should not cite to the internal page number of a document included in the record, such as a deposition or affidavit, but rather to the record page number.

       We note that we herein make no decision as to whether the Lipps Quitclaim Deed is valid, and if it is, whether it was really executed and delivered on the date it indicates. We take such representations as being true for purposes of this appeal, as we must. At the same time, it is curious that the deed indicates there was no transfer tax paid upon the transfer and that it was not recorded for 11 months after its alleged execution.

       As noted in Division 4 of this opinion, infra, the affidavit did erroneously include a document from another bank’s loan as Exhibit 16. However, that document is not relied upon as evidence supporting Chase Bank’s counterclaim for reformation of the security deed, and Plaintiffs do not cite this error as an indication that the Chase Bank documents attached to the affidavit are untrustworthy.

       We do not agree with Chase Bank’s contention that the Plaintiffs waived any objection to the amount of damages on appeal. Plaintiffs arguably objected to the amount of proposed damages in their response to Chase Bank’s statement of material facts, and they did not explicitly consent to an amount to be awarded at the summary judgment hearing.