author: McMillian, Judge.

text:
    A13A0869.
    THE STATE v. OUTEN.
    (751 SE2d 109)
   McMillian, Judge.

The trial court granted David Outen’s plea in bar as to one count of a two-count vehicular homicide indictment, and this Court granted the State’s application for interlocutory review. We affirm for the reasons set forth below.

The State originally indicted Outen on March 18, 2009 for two counts of vehicular homicide arising out of a March 21, 2007 automobile wreck, in which one person was killed (the “First Indictment”). Count 1 of that indictment alleged that Outen committed first degree vehicular homicide by driving recklessly in violation of OCGA § 40-6-390 (a), a felony under OCGA § 40-6-393 (a). Count 2 alleged second degree vehicular homicide based on failure to maintain lane, a misdemeanor under OCGA § 40-6-393 (c). See also OCGA § 17-10-3. Outen filed a special demurrer as to Count 1 of the First Indictment, asserting that the language failed to sufficiently apprise him of the particular facts constituting the alleged underlying offense of reckless driving. The trial court granted the demurrer on September 17, 2009.

The State filed a direct appeal from that order, and this Court affirmed the trial court’s ruling in State v. Outen, 304 Ga. App. 203, 204-205 (695 SE2d 654) (2010), holding that Count 1 failed to sufficiently specify how Outen had committed the offense of reckless driving, which the Court found “can be committed in a number of different ways.” Id. The Supreme Court granted the State’s subsequent petition for certiorari, but rather than addressing the merits of the appellate arguments, that court found that we lacked jurisdiction to consider the State’s appeal, holding that a trial court order dismissing or quashing one count of a multi-count indictment is an interlocutory order not subject to direct appeal. State v. Outen, 289 Ga. 579 (714 SE2d 581) (2011). Although this Court previously viewed such orders as directly appealable and the Supreme Court had previously considered the merits of such cases brought on direct appeal, the Supreme Court concluded that the prior cases were wrongly decided and that the State should have followed the interlocutory appeal procedure. Accordingly, the Supreme Court vacated this Court’s judgment and remanded with the direction that the appeal be dismissed. Id. at 582-583. As instructed, this Court dismissed the appeal, State v. Outen, 311 Ga. App. 378 (715 SE2d 782) (2011), andissuedthe remittitur to the trial court on August 31 ,2011.

Approximately four months later, on December 20, 2011, the State filed another indictment against Outen again alleging in Count 1 that he committed vehicular homicide in the first degree through reckless driving and in Count 2 that he committed vehicular homicide in the second degree by failing to maintain his lane (the “Second Indictment”). This time, however, Count 1 alleged additional facts in support of the allegation that Outen drove “in reckless disregard for the safety of persons and property.” Specifically, the indictment alleged that Outen “drove with a known seizure condition,... without taking medication to prevent seizures, and . . . had a seizure while driving.” It further alleged that Outen “then failed to maintain his lane of travel, failed to brake his motor vehicle, and failed to take any evasive action to avoid hitting [the victim’s vehicle].”

Outen filed a “Plea in Bar And Demand for Acquittal” in response to the Second Indictment, asserting that the State failed to file that indictment within the applicable limitation period. OCGA §§ 17-3-1 (c); 17-3-3. The trial court granted Outen’s plea in bar as to Count 1 of the Second Indictment, but issued a certificate of immediate review. This appeal followed.

In considering the trial court’s grant of Outen’s plea in bar based upon the expiration of the statute of limitation, “we conduct a de novo review of the legal issues.” (Citation and punctuation omitted.) Pennington v. State, 323 Ga. App. 92 (746 SE2d 768) (2013) (physical precedent only). And “[t]he burden is unquestionably upon the State to prove that a crime occurred within the statute of limitation . . . .” (Citation and punctuation omitted.) Martinez v. State, 306 Ga. App. 512, 522 (2) (702 SE2d 747) (2010).

1. The State first argues that the trial court erred in granting Outen’s plea in bar because the Second Indictment constitutes a superseding indictment that relates back to the First Indictment for purposes of the statute of limitation.

Felony vehicular homicide, as alleged in Count 1 of the Second Indictment, has a four-year statute of limitation. See OCGA § 17-3-1 (c). And it is indisputable that the State filed the Second Indictment more than four years after the March 21, 2007 automobile collision. However, Georgia has adopted the federal rule recognizing that a superseding indictment filed after the expiration of the statute of limitation may relate back to a timely-filed original indictment if certain conditions are met.

[A] superseding indictment brought after the statute of limitation has run is valid as long as (i) the original indictment is still pending; (ii) the original indictment was timely; and (iii) the superseding indictment does not broaden or substantially amend the original charges.

(Citations omitted.) Wooten v. State, 240 Ga. App. 725, 726 (2) (524 SE2d 776) (1999). The State contends that the Second Indictment qualifies as such a superseding indictment because all three conditions are met in this case. We disagree.

Although the First Indictment was unquestionably timely and even assuming, without deciding, that it was still pending for purposes of this analysis, we find that the Second Indictment represents a substantial amendment to the original charge in Count 1.

This Court has found that “[w]hether an amended indictment broadens or substantially amends the charges contained in the original indictment depends upon whether the new charges contain elements that are separate and distinct from the original charges.” (Citation and punctuation omitted.) Martinez, 306 Ga. App. at 523 (2), citing Lee v. State, 304 Ga. App. 681, 682 (1) (697 SE2d 221) (2010), aff’d in part and rev’d in part, 289 Ga. 95 (709 SE2d 762) (2011). This Court used the term “elements” because in the cited cases, we were considering a second charging document’s addition of new and different charges than those alleged in the original charging document. See Lee, 289 Ga. at 96 (trial court erred in failing to grant motion in arrest of judgment because charge of pimping in second accusation was included only by substantial amendment outside limitation period to the original accusation alleging prostitution); Martinez, 306 Ga. App. at 523 (2) (additional charges of false imprisonment and kidnapping in second indictment outside limitation period broadened and substantially amended original charges of burglary, armed robbery, aggravated assault, sexual battery, and criminal attempt to commit armed robbery in first indictment; thus second indictment did not relate back).

In this case, however, the charges remained the same, but the State alleged additional facts outside the limitation period. We thus face this issue of first impression — under what circumstances does a superseding indictment broaden or substantially amend the charges by adding additional facts not set out in the original indictment. In considering this question, we again turn to the federal courts for guidance. The Eleventh Circuit Court of Appeals has found that “[f]or purposes of the statute of limitations, the ‘charges’in the superseding indictment are defined not simply by the statute under which the defendant is indicted, but also by the factual allegations that the government relies on to show a violation of the statute.” United States v. Italiano, 894 F2d 1280, 1282 (A) (11th Cir. 1990).

Notice to the defendant is the central policy underlying the statutes of limitation. If the allegations and charges are substantially the same in the old and new indictments, the assumption is that the defendant has been placed on notice of the charges against him. That is, he knows that he will be called to account for certain activities and should prepare a defense.

Id. at 1283 (A). Therefore, “[n]otice to the defendants of the charges, so that they can adequately prepare their defense, is the touchstone in determining whether a superseding indictment has broadened the original indictment.” (Citation omitted.) United States v. Smith, 197 F3d 225, 229 (I) (6th Cir. 1999). And “in deciding whether the first indictment tolled the limitations period, the crucial inquiry is whether approximately the same facts were used as the basis of both indictments.” Italiano, 894 F2d at 1285 (C).

Here, we agree with the trial court’s finding that the First Indictment did not “sufficiently apprise the Defendant of what he must be prepared to meet.” The First Indictment failed to allege sufficient facts to allow Outen to prepare a defense to the felony vehicular homicide charge because nothing in the First Indictment put him on notice of the manner in which he allegedly violated the reckless driving statute. The Second Indictment clearly alleged additional facts because it informed him for the first time that he would have to defend the felony charge based on allegations, inter alia, that he had a known seizure condition and had failed to take seizure medication.

In Pennington, this Court considered an indictment alleging additional facts and charges filed outside the limitation period following a timely filed accusation. The initial accusation charged the defendant with four counts of theft by conversion allegedly committed within an eight-to-twelve-month period in either 2006 or 2007 by taking money from a business escrow account without naming any individuals or businesses who had deposited funds into that account. The subsequent indictment charged the defendant with three counts of theft by conversion during the same period, but also included two charges of theft by conversion from an earlier period. It also added seven counts of theft by taking during February, March, or April 2006 from an escrow account and identified specific dependent businesses that had deposited funds into that account as the alleged victims. Pennington, 323 Ga. App. at 99 (1) (a). Notably, the prosecutor admitted at the hearing on the defendant’s motion to quash that she filed the indictment because the accusation was legally deficient to withstand a demurrer because it did not list any victims but only alleged that the defendant took money. Id. at 99 (1) (a), n. 14. This Court concluded that the accusation did not toll the limitations period on the charges alleged in the indictment because the indictment broadened or substantially amended the original charges alleged in the accusation. Id. at 100 (1) (a).

Although the Second Indictment in this case does not assert additional charges as in Pennington, we nevertheless find the case instructive and conclude that the First Indictment did not toll the limitation period on the vehicular homicide charge in Count 1 of the Second Indictment because the First Indictment did not provide Outen sufficient notice of the felony charge against him. The First Indictment failed to inform him of any factual basis for the underlying charge of reckless driving and gave no hint of the basis ultimately alleged in the Second Indictment. Thus, the trial court properly rejected the State’s argument that the Second Indictment related back to the First Indictment for purposes of the statute of limitation. Cf. United States v. Ratcliff, 245 F3d 1246 (11th Cir. 2001) (second indictment alleging eight overt acts, with fifteen or more conspirators and expanding length of conspiracy by twelve years did not relate back to original indictment charging conspiracy involving one overt act and five co-conspirators).

2. The State also contends that the trial court erred in granting the plea in bar because the statute of limitation was extended for six months from the time the indictment was quashed under OCGA § 17-3-3. Asserting that the trial court lacked jurisdiction to entertain a second indictment until this Court returned the remittitur to the trial court from the prior appeal, the State argues that we should consider that the indictment in this case was not finally quashed until August 31, 2011, the date the remittitur was returned to the trial court.

As noted by the State, OCGA § 17-3-3 provides a mechanism for refiling charges after an indictment has been quashed or nolle prossed outside the limitation period. Under that provision, if an indictment that was originally filed within the statute of limitation is later quashed or nolle prossed, the limitation period is “extended six months from the time the first indictment is quashed or the nolle prosequi entered.” OCGA § 17-3-3. This six-month saving period operates as an extension of — rather than an exception to — the statute of limitation. See Kyles v. State, 254 Ga. 49, 50 (326 SE2d 216) (1985) (finding that “OCGA § 17-3-3 is intended to function solely as a savings provision”); Sevostiyanova v. State, 313 Ga. App. 729, 733 (3), n. 19 (722 SE2d 333) (2012).

Nevertheless, this Court previously has decided the issue of the trial court’s jurisdiction during a pending appeal against the State’s position. In Brown v. State, 322 Ga. App. 446 (745 SE2d 699) (2013), the trial court quashed the original indictment against Brown, and the State appealed. During the pendency of that appeal, the State filed a second, timely indictment alleging the same charges, along with additional charges. The trial court denied Brown’s subsequent motion to quash the second indictment on the same jurisdictional grounds the State argues here, and Brown appealed. In affirming the trial court’s denial of the motion to quash, we noted that

[f]iling a notice of appeal divests the trial court of jurisdiction in some matters, but not in all. In a criminal case, the filing of a notice of appeal merely deprives the trial court of its power to execute the sentence. Generally a trial court may not alter a judgment or order while an appeal of that particular judgment or order is pending before the appellate court, nor may a trial court initiate proceedings that require a ruling on the exact matter being appealed.

(Citation omitted; emphasis in original.) Id. at 448 (1). And because the pending appeal in Brown addressed only the validity of the first, quashed indictment, we held that the issuance of a separate, second indictment “had no effect on the issue of whether the First Indictment was valid, and the trial court thus had jurisdiction to consider the Second Indictment.” Id. at 449 (1). Consequently, we found the trial court properly denied the defendant’s motion to quash on jurisdictional grounds. Id. at 447 (1). See also Roberts v. State, 279 Ga. App. 434, 435 (631 SE2d 480) (2006) (holding State had ability to bring a second indictment against defendant although appeal pending on denial of defendant’s motion for acquittal).

Decided November 5, 2013

Kenneth W. Mauldin, District Attorney, Brian V. Patterson, Assistant District Attorney, for appellant.

Edward H. Brumby, Jr., for appellee.

Here, as in Brown, the State’s earlier appeal concerned only whether the First Indictment was valid, and the filing of a timely second indictment would not have required a ruling on the matter appealed. Indeed, the filing of a timely second indictment would have initiated an entirely separate proceeding. Brown, 322 Ga. App. at 449 (1), n. 4. Thus, the trial court retained jurisdiction in this case to consider a second indictment and regardless of when the remittitur was ultimately returned to the trial court, the date that Count 1 of the First Indictment was dismissed remained September 17, 2009, for purposes of calculating the running of the limitation period. See also Duncan v. State, 193 Ga. App. 793, 794 (389 SE2d 365) (1989) (running of limitation period on charge of simple battery not tolled during pendency of prior appeal to determine whether recorder’s court had jurisdiction over charges of driving under the influence and improper lane usage arising from the same incident).

The accident in this case occurred on March 21, 2007, and the State had four years from that date in which to file a charge of felony vehicular homicide. OCGA § 17-3-1 (c). The State originally indicted Outen in a timely fashion on March 18, 2009, but when Count 1 of that indictment was dismissed five months later, the State remained bound by the four-year limitation period, which still had over nineteen months before it expired. Contrary to the State’s argument, OCGA § 17-3-3 does not alter the running of the statute of limitation in this case because it “has no application to a prosecution in which the [charge is dismissed] over six months before the original statute of limitations expires.” (Citation omitted.) Kyles, 254 Ga. at 50-51.

Accordingly, we affirm the trial court’s order granting Outen’s plea in bar.

Judgment affirmed.

Andrews, P. J., and Dillard, J., concur.

       “A superseding indictment usually refers to an indictment that is returned while a valid indictment is still pending. Anew indictment usually refers to an indictment returned after the pending indictment has been dismissed.” United States v. Italiano, 894 F2d 1280, 1282, n. 2 (11th Cir. 1990).

       Although the first count was no longer pending, the Supreme Court implicitly found that the case against Outen remained pending when the court concluded that the dismissal of only one count of the indictment was not a final order. Outen, 289 Ga. at 581.

       Similarly, the Supreme Court of Georgia has explained that
      [tjhe purpose of a statute of [limitation] is to limit exposure to criminal prosecution to a certain fixed period of time following the occurrence of those acts the legislature has decided to punish by criminal sanctions. Such a limitation is designed to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past.
      (Citation omitted.) Womack v. State, 260 Ga. 21, 22-23 (4) (389 SE2d 240) (1990).

       Under Court of Appeals Rule 33 (a), Pennington is not binding precedent because there is a concurrence in judgment only. We do find Pennington to be persuasive, however, given the similar fact pattern.

       We note that, here, the Supreme Court ultimately determined that the State failed to file a valid appeal and thus, the appellate courts lacked jurisdiction to consider the merits of the appeal. Accordingly, the trial court arguably could be deemed never to have lost jurisdiction. Nevertheless, the State is correct that this Court did not return the remittitur until August 31, 2011, and we will address the State’s argument on that basis.


source: Caselaw Access Project

author: Boggs, Judge.

license: Public Domain

text:
    A13A0890.
    DUNCAN v. MUGHELLI.
    (751 SE2d 127)
   Boggs, Judge.

In this child visitation action, Taira Duncan and Ovie Mughelli filed cross-motions for contempt of a final judgment following a guardian ad litem’s arbitration award involving their minor daughter. The trial court issued an order on the motions that, among other things, required the appointment of a parenting coordinator and ordered all forfeiture language stricken from the arbitration award. Duncan appeals, contending that the trial court was without authority to modify the terms of a custody order in a contempt proceeding. For the following reasons, we affirm.

The relevant facts here are as follows. The child, O. M., was born on February 28, 2009. The mother, Duncan, filed a complaint to establish paternity and child support. Duncan and Mughelli subsequently entered into a consent order on December 23, 2009, in which Mughelli was declared to be O. M.’s legitimate father. The parties were awarded joint legal custody, Duncan was awarded primary physical custody, and the parties agreed to the terms of child support and visitation.

In August 2010, Mughelli filed a “Petition for Modification of Custody and Visitation and Petition for Citation of Contempt.” He filed a separate motion on the same day for the appointment of a guardian ad litem. On September 20, 2010, the parties agreed to the appointment of a guardian ad litem, with Mughelli to be responsible for the payment of the guardian ad litem’s fees. After continued disputes between the parties and the filing of several discovery requests, the parties entered into another consent order agreeing to allow the guardian ad litem to arbitrate their disputes. The order provided: “[The guardian ad litemj’s ruling shall be binding on the parties, and shall be incorporated by him into a proposed final order that either side or [the guardian ad litem] may submit to the Court as a final order in this case.”

The guardian ad litem arbitrated the parties’ disputes and submitted an “arbitration award” to the superior court. The guardian ad litem did not modify custody as previously determined in the 2009 consent order, but did modify “parenting time and conditions of visitation.” The award contained the following provision: “If Mr. Mughelli returns the child to Ms. Duncan on a Tuesday later than the grace period provided . . . , then he shall forfeit his next Tuesday visitation.” The award also provided: “The parties are encouraged but not mandated to seek co-parenting counseling or assistance to facilitate their communication and parenting of their child.” On June 16, 2011, the superior court approved the arbitration award and incorporated it into a final order.

On August 2, 2011, Duncan filed a motion for contempt alleging that Mughelli violated certain visitation terms of the “Consent Final Order.” On April 11, 2012, Mughelli filed a motion for contempt alleging that Duncan had prevented him from seeing O. M. in violation of the June 16 final order. Mughelli filed an amended motion for contempt and complaint for modification of custody on April 30, 2012, alleging that Duncan abused the forfeiture provision of the arbitration award. Duncan then filed a second motion for contempt on June 12, 2012, and a third motion on July 23.

On August 3, 2012, following a hearing on the cross-motions for contempt, the trial court issued a ruling that among other things, ordered that “all forfeiture language is stricken from the Arbitration Award,” and granted Mughelli’s request for the appointment of a parenting coordinator. Duncan now appeals from this order.

In two enumerations, Duncan argues that the trial court “improperly modified the terms of the prior judgment on custody.” She contends that the court was without authority to modify the terms of a custody order in a contempt proceeding. It is true that “[i]n a contempt proceeding, the trial court does not have authority to modify a final order of custody, which must be brought as a separate action.” (Citation and punctuation omitted.) Coker v. Moemeka, 311 Ga. App. 105, 107 (1) (714 SE2d 642) (2011). But here, the court made no modification to custody. Compare id. The court determined that the visitation forfeiture provision was not in the best interest of the child because it had the effect of causing “the child to go for extended periods of time without seeing her father.” By striking this provision of the arbitration award, the court effectively modified visitation, which it had the authority to do in a contempt proceeding. Bowerman v. Bowerman, 314 Ga. App. 487, 490 (3) (a) (724 SE2d 481) (2012); Gildar v. Gildar, 309 Ga. App. 730, 731 (710 SE2d 913) (2011). The appointment of a parenting coordinator likewise did not affect custody. See Bowerman, supra, 314 Ga. App. at 490-491 (3) (b) (order for counseling does not alter legal custody). The trial court has the authority to make such rulings in a contempt action following the entry of a final order of a custody agreement. See id. at 490 (3) (a). And we find no authority to suggest, or any other reason to conclude, that the court would not have the same authority following the entry of a final order of an arbitration award. Compare, e.g., OCGA § 19-9-5 (b) (court shall ratify custody agreement and make part of its final judgment unless such agreement would not be in best interest of the child) with OCGA § 19-9-1.1 (court shall incorporate arbiter’s decision on custody into final judgment unless award would not be in best interest of the child). We therefore affirm the trial court’s order.

Decided November 5, 2013.

Lisa S. West, for appellant.

Kupferman & Golden, Lawrence D. Kupferman, Shawna M. Woods, for appellee.

Judgment affirmed.

Doyle, P. J., and McFadden, J., concur.

       While partially titled “complaint for modification of custody,” Mughelli sought only to remove the forfeiture provision from the arbitration award.

       As noted by the trial court, it had previously ordered the parties to choose a parenting coordinator in July 2012.


author: DOYLE, Presiding Judge.

text:
    A13A1038.
    STOVER v. THE STATE.
    (751 SE2d 115)
   DOYLE, Presiding Judge.

Richard Stover appeals from his conviction of four counts of possession of a firearm during the commission of a crime, contending that the evidence was insufficient to support a guilty verdict because the State failed to prove (and the jury acquitted him) of the underlying assaults and battery serving as the predicate offenses for the firearm offenses. Because Stover’s argument is based on the consistency of the verdict, and Georgia has abolished the inconsistent verdict rule, we affirm.

Construed in favor of the verdict, the record shows that several police officers approached an apartment to execute a warrant based on a reported drug purchase out of the apartment. An entry team knocked on the door and loudly announced “Police, search warrant.” Aman appeared at the door and allowed the team to enter. The team secured the man and three women inside the apartment. As police continued to secure the premises, shots were fired from another location within the apartment. Police returned fire, and Stover was hit in the hand, arm, and face. He was then disarmed and arrested.

Stover was charged with aggravated battery, aggravated assault (four counts), possession of a firearm during the commission of a crime (five counts based on the assault and battery counts), and drug violations (three counts). At trial, Stover testified that he had shot at the officers because he did not hear them announce “police,” and he believed the apartment was being burglarized, which recently had happened in a similar fashion. The jury acquitted him of all counts but the firearm offenses. Following the denial of his motion for new trial, Stover filed this appeal.

In a single enumeration of error, Stover challenges the sufficiency of the evidence. Specifically, he argues that the evidence was insufficient for the jury to find that he committed the firearm offenses because the jury found him not guilty as to the underlying offenses, and the State failed to prove that he committed the underlying offenses. This argument fails.

The Supreme Court of Georgia has abolished the rule against inconsistent verdicts because an appellate court does not know the reasons for a jury’s verdict. Accordingly, appellate courts need not invalidate a conviction on a compound offense (such as the offense of possession of a gun during the commission of a crime in the present case) which is logically inconsistent with an acquittal on the predicate or underlying offense (in this case, [assault or battery]) because the appellate court cannot know and should not speculate why a jury acquitted on the predicate offense and convicted on the compound offense. The reason could bean error by the jury in its consideration or it could be mistake, compromise, or lenity, but as a matter of prudence, the conviction on the compound offense should be upheld so long, as the evidence will support it.
The argument that an acquittal on a predicate offense necessitates a finding of insufficient evidence on a compound felony count simply misunderstands the nature of the inconsistent verdict problem. Whether presented as an insufficient evidence argument, or as an argument that the acquittal on the predicate offense should collaterally estop the Government on the compound offense, the argument necessarily assumes that the acquittal on the predicate offense was proper—the one the jury “really meant.” This, of course, is not necessarily correct; all we know is that the verdicts are inconsistent. For the reasons previously stated, however, there is no reason to vacate the defendant’s conviction merely because the verdicts cannot rationally be reconciled. The defendant is given the benefit of [his] acquittal on the counts on which [he] was acquitted, and it is neither irrational nor illogical to require [him] to accept the burden of conviction on the counts on which the jury convicted.

Decided November 5, 2013.

David J. Koontz, for appellant.

D. Victor Reynolds, District Attorney, John R. Edwards, Amelia G. Pray, Andrew J. Saliba, Assistant District Attorneys, for appellee.

Here, there was evidence that the officers identified themselves as police, Stover himself admitted that he shot his riñe in the direction of the officers, and there is undisputed evidence that one officer was hit. Accordingly, the evidence was sufficient to support the jury’s guilty verdict as to the firearm counts.

Judgment affirmed.

McFadden and Boggs, JJ., concur.

       OCGA § 16-11-106 (b) (1).

       See Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).

       Two drug counts were not submitted to the jury.

       (Punctuation omitted.) Bellamy v. State, 312 Ga. App. 899, 905 (4) (720 SE2d 323) (2011). See Milam v. State, 255 Ga. 560, 562 (341 SE2d 216) (1986) (abolishing the inconsistent verdict rule); Kimble v. State, 236 Ga. App. 391, 392-396 (1) (512 SE2d 306) (1999) (following Milam and overruling adverse precedent misapplying the inconsistent verdict rule).

       (Punctuation omitted.) Kimble, 236 Ga. App. at 395, quoting United. States v. Powell, 469 U. S. 57, 68-69 (105 SCt 471, 83 LE2d 461) (1984).

       See Bellamy, 312 Ga. App. at 905 (4). See also OCGA §§ 16-5-21 (a) (1) (aggravated assault); 16-5-24 (a) (aggravated battery).


text:
    A13A1199.
    TILLMAN v. VININGS BANK.
    (751 SE2d 117)
   DOYLE, Presiding Judge.

Anne S. Tillman filed a complaint for injunctive relief against Vinings Bank seeking to prevent foreclosure of Tillman’s Georgia home, which secured a construction loan on a Florida home. The Bank filed a motion to enforce a settlement agreement that would resolve litigation the Bank initiated in Florida as well as the foreclosure on Tillman’s Georgia home. The trial court granted the motion to enforce the settlement agreement, and Tillman now appeals. For the reasons that follow, we affirm.

“On appeal from a trial court’s order on a motion to enforce a settlement agreement, we apply a de novo standard of review, viewing the evidence in a light most favorable to the nonmoving party.” So viewed, the record shows that in 2008, Tillman executed a $1,920,000 note in favor of the Bank, guaranteed by her now ex-husband, Arnold Tillman. The purpose of the loan was to finance construction of a second home for the Tillmans in Florida, which property would serve as collateral and security. The original note matured and was renewed; the last renewal was on October 2010.

In the meantime, the marriage deteriorated, the couple divorced in late 2009, and Arnold filed for bankruptcy in 2010 and received a discharge. Due to the loss of the guarantor on the note, the Bank considered itself insecure, and Tillman agreed to pledge her Georgia home as additional collateral. The note matured according to its terms in April 2011, and the Tillmans failed to pay the balance due, so the Bank filed an action in Florida on the note and for foreclosure on the Florida property. Tillman answered and filed a counterclaim.

Concurrent with the Florida litigation, the Bank began foreclosure proceedings under the security deed to the Georgia property, and Tillman filed the instant suit in Georgia seeking an injunction to stop the nonjudicial foreclosure. In December 2011, the Superior Court of Cobb County, following a hearing, entered an order granting the injunction. The Bank filed a timely notice of appeal to the Supreme Court, challenging the award of injunctive relief.

During the pendency of the Supreme Court appeal, the Florida litigation continued. The Bank moved for summary judgment, and a hearing was scheduled for April 10, 2012. At the hearing, attorneys for the parties continued to explore settlement of both the Florida and Georgia litigation, with negotiations culminating late that afternoon when written documents were created and revised. One document, with revisions initialed by Tillman, was signed by her but not the Bank (“Exhibit A”). Another document was signed by both parties (“Exhibit B”), but revisions apparently continued. Tillman’s attorney needed to leave to attend a Miami Heat basketball game, so the negotiations were not finally memorialized that afternoon, and the hearing was rescheduled for the next morning.

When counsel appeared for the hearing, they could not develop a mutually signed agreement before the hearing was called, so the parties recorded a statement through the court reporter purporting to, according to Tillman’s attorney, “memorialize a settlement agreement that occurred between the parties.” In the transcript, Tillman’s counsel explained that Exhibit A, signed by Tillman alone, contained the terms of the agreement, with a modification clarifying that a certain vendor default provision would not apply to the Georgia mortgage. Both versions included a provision requiring the parties to refinance or modify the security deed on the Georgia property to reflect the following terms: a promissory note for $175,000 with interest accruing at 4 percent annually, payments calculated on a thirty-year amortization schedule, payments deferred for six months after execution, a ten-year term with a balloon payment at maturity, with each party responsible for a specified portion of taxes and insurance.

When the Bank provided loan documents in May 2012 to restructure the debt in accordance with the agreement, Tillman refused to execute the documents because they referenced a business loan instead of converting it to a residential loan. The Bank responded that the nature of the loan reflected its use as an investment property and not her personal home, but the status would not affect Tillman (other than saving her paperwork), and the loan would remain true to the basic terms established in the settlement agreement.

On June 20,2012, in accordance with the settlement agreement, the Bank moved to withdraw its appeal in the Supreme Court of Georgia, and Tillman filed a same-day response noting her disagreement that the Florida litigation had been resolved. The Supreme Court granted the motion to withdraw the appeal.

In July 2012, the Bank and Tillman filed a joint stipulation in the Florida court that the Florida case, including a counterclaim brought by Tillman, be dismissed with prejudice because “the parties [had] reached an amicable settlement.” The Bank also continued to perform under the settlement agreement by providing Tillman with a letter for credit reporting purposes stating that Tillman’s outstanding debt to the Bank had been resolved and by paying property taxes and satisfying certain liens on the Florida property. According to the Bank, Tillman also began performing the settlement agreement by executing a deed in lieu of foreclosure on the Florida property, but the parties do not identify this document in the record.

Later in July, due to Tillman’s reluctance to refinance or modify the security deed on the Georgia property according to the settlement agreement, the Bank filed an amendment to its counterclaim to add a claim for breach of the settlement agreement. Tillman opposed the motion, and after a hearing, the trial court granted it, giving rise to this appeal.

1. Tillman contends that the trial court erred by enforcing the settlement agreement because there was no meeting of the minds on definite terms. We disagree.

Compromises of doubtful rights are upheld by general policy, as tending to prevent litigation, in all enlightened systems of jurisprudence. In considering the enforceability of an alleged settlement agreement, however, a trial court is obviously limited to those terms upon which the parties themselves have mutually agreed. Absent such mutual agreement, there is no enforceable contract as between the parties.

Therefore, “settlement agreements must meet the same requirements of formation and enforceability as other contracts,” including mutual assent to the definite terms.

[When] determining if parties had the mutual assent or meeting of the minds necessary to reach agreement, courts apply an objective theory of intent whereby one party’s intention is deemed to be that meaning a reasonable man in the position of the other contracting party would ascribe to the first party’s manifestations of assent. In making that determination, the circumstances surrounding the making of the contract, such as correspondence and discussions, are relevant in deciding if there was a mutual assent to an agreement, and courts are free to consider such extrinsic evidence.

Here, it is undisputed that there were settlement negotiations that resulted in two written versions of an agreement. Each version was signed by Tillman, and in the transcribed conference following the negotiations, Tillman’s counsel explained which version governed the parties’ agreement, specifically outlining the sole discrepancy. It is undisputed that both documents contained the main disputed term, i.e., the modification of the security deed on Tillman’s Georgia home, which is essentially the only major term remaining to be performed by either party. Likewise, both versions provide that the “[p]arties hereby agree to execute all documents necessary to resolve this matter and shall cooperate to effectuate this settlement in a timely manner.” Under these circumstances, a reasonable person in the Bank’s position would ascribe to Tillman her assent to the terms described by her counsel for the express purpose of clarifying and memorializing the written settlement agreements she signed. Furthermore, the essential terms of the agreement, i.e., principal amount of debt, interest rate, amortization and payment schedule, identification of property, and tax liability, were sufficiently definite to enforce the agreement. That the parties agreed to execute documents to effectuate the agreement did not render it unenforceable. Accordingly, we discern no error in the trial court’s finding of mutual assent to the terms as described in the transcribed conference and written agreement.

2. Tillman also argues that the trial court erred by denying her motion for summary judgment on the Bank’s counterclaim for breach of the settlement contract because it reached the substance of the Bank’s claims in the Florida litigation, which was dismissed with prejudice. But the claim in this case is one for breach of a contract that arose independently of the Florida foreclosure proceeding. Thus, the contract claim was not adjudicated in the Florida court and is not barred by res judicata in the instant suit.

In the same enumeration, Tillman also argues that the Bank’s amended counterclaim — asserting the breach of settlement agreement claim — was improper because the Bank failed to seek leave to file the counterclaim. But the record shows that the Bank did thereafter file a petition for leave to amend its counterclaim. Granting such petitions are within the discretion of the trial court, and they are to be treated liberally if no prejudice would result. Tillman fully responded to the counterclaim, and she fails to show any prejudice arising from the trial court’s consideration of the Bank’s amendment. Accordingly, this argument presents no basis for reversal.

Decided November 5, 2013

Jackson B. Harris, for appellant.

Bailey & Davis, C. Lee Davis, for appellee.

3. In light of the holdings herein, and as Tillman concedes, her third enumeration is moot.

Judgment affirmed.

Miller and Ray, JJ., concur.

       (Punctuation omitted.) Triple Eagle Assocs. v. PBK, Inc., 307 Ga. App. 17 (704 SE2d 189) (2010).

       (Citation and punctuation omitted.) Herring v. Dunning, 213 Ga. App. 695, 696-697 (446 SE2d 199) (1994).

        Sherman v. Dickey, 322 Ga. App. 228, 231 (1) (744 SE2d 408) (2013).

       See OCGA § 13-3-1.

       (Citation and punctuation omitted.) Frickey v. Jones, 280 Ga. 573, 575 (630 SE2d 374) (2006).

       See OCGA § 15-19-5 (“Attorneys have authority to bind their clients in any action or proceeding by any agreement in relation to the cause, made in writing____”); Uniform Superior Court Rule 4.12 (“Attorneys of record have apparent authority to enter into agreements on behalf of their clients in civil actions. Oral agreements, if established, are enforceable.”).

       Compare Drug Line v. Sero-Immuno Diagnostics, 217 Ga. App. 530 (458 SE2d 170) (1995) (agreement held unenforceable because the parties agreed to execute another undescribed agreement containing further unspecified details).

       See, e.g., Goobich v. Waters, 283 Ga. App. 53, 56-57 (1) (640 SE2d 606) (2006) (“The existence of [a] future obligation to execute [customary but undxafted] closing documents . . . does not mean that the parties did not intend to be bound by the essential terms already agreed to.”); Neely Dev. Corp. v. Service First Investments, Inc., 261 Ga. App. 253, 257 (1) (c) (582 SE2d 200) (2003) (enforcing a real estate sales contract requiring the execution of an undrafted restrictive covenant).

       See Waldroup v. Greene County Hosp. Auth., 265 Ga. 864, 866 (1) (463 SE2d 5) (1995) (“Three prerequisites must be satisfied before res judicata applies — (1) identity of the cause of action, (2) identity of the parties or their privies, and (3) previous adjudication on the merits by a court of competent jurisdiction”).

       See Martin & Jones Produce v. Lundy, 197 Ga. App. 38, 39 (2) (397 SE2d 461) (1990).

       See id.


text:
    A13A1529.
    KESSLER et al. v. MULTIBANK 2009-1 CRE VENTURE, LLC et al.
    (751 SE2d 121)
   DOYLE, Presiding Judge.

This Court granted an application filed by defendants Jay Kessler and Kenneth Seitz seeking interlocutory review of trial court orders granting a motion to sever certain cross-claims and third-party claims made in their defense. The motion to sever was filed by plaintiff Multibank 2009-1 CRE Venture, LLC (“Multibank”) in Multibank’s suit against the defendants on a guaranty of a note. After thorough consideration of the entire record, we conclude that the trial court did not abuse its discretion by granting the motion to sever. Accordingly, we find that the application for discretionary appeal was improvidently granted, and we dismiss the appeal.

The instant dispute is based on guaranties made by Kessler and Seitz in connection with a loan made by Multibank’s predecessor to Boden, LLC, a company formed to acquire and develop certain real property. After Boden defaulted on the loan, Multibank sued Boden, Delman Creviston (a co-investor in Boden), Kessler, and Seitz to collect on their guaranties. In response, Kessler and Seitz answered and asserted counter-claims against Multibank, cross-claims against Creviston, and third-party claims against other individuals and entities. Kessler and Seitz’s claims all stem from allegations that they were induced to invest in Boden and guaranty the loans as a result of fraud on the part of several people including their co-investors and Multibank. Specifically, they alleged that Creviston and others concealed the existence of an unrecorded easement that prevented the property from being developed as planned. They also argue that an employee of Multibank’s predecessor orally “vouched” for Creviston’s credibility, which helped persuade them to invest in Boden and enter into the guaranty.

Multibank moved to sever the cross-claims and third-party claims, arguing that those claims, which essentially argued fraud by third parties, did not arise out of the transaction that is the subject matter of Multibank’s suit, i.e., the guaranties. After thorough briefing by the parties, the trial court granted the motion to sever, concluding that the D’Oench Duhme doctrine negated a fraud defense against Multibank based on an alleged oral misrepresentation about Creviston’s credibility and any alleged misrepresentations by co-investors about the underlying merits of the business venture.

“[S] ever anee of claims is largely a matter of discretion for the trial judge, and absent clear and manifest abuse of that discretion, it will not be interfered with on appeal.” Based on our review of the record, the trial court did not abuse its discretion by severing the fraud claims from Multibank’s on the guaranty. Under the D’Oench Duhme doctrine, applied by the trial court, “oral agreements [not recorded in bank documents] between debtors and failed banks will not be enforced against the FDIC” or its successors. The purpose of the doctrine is to protect banking regulators from an undisclosed shift of liability from debtors to federal deposit insurance agencies. Accordingly, the Supreme Court of Georgia has held that borrowers could not assert a fraud claim against a lender who allegedly induced a borrower to consummate a loan by wrongfully promising that the borrowers’ planned condominium development would be sold within a six-month period, enabling the borrower to quickly pay off the debt. Here, the alleged oral assurance by Multibank’s predecessor falls within the scope of the doctrine, so it cannot support a fraud claim or defense against Multibank in the bank’s suit on the unconditional guaranties. Furthermore, any fraud by the co-investors or others is not germane to the merits of Multibank’s suit against Kessler and Seitz on the unconditional guaranties. Accordingly, we discern no abuse of discretion by the trial court in severing those claims from the instant suit, and the appeal is dismissed as improvidently granted.

Decided November 5, 2013.

Thompson Hine, Alexandra J. Chanin, Gary S. Freed, Seth A. Litman, Russell J. Rogers, for appellants.

Hawkins, Parnell, Thackston & Young, H. Lane Young II, Jackson A. Dial, Geerdes & Kim, Holly L. Geerdes, Morris, Manning & Martin, Brian J. Levy, John A. Lockett HI, Boling Rice, Charles A. Ratz, Thomas C. Rowsey, for appellees.

Appeal dismissed.

McFadden and Boggs, JJ., concur.

       Multibank’s predecessor failed, and Multibank acquired its interest in the loan from the FDIC, which acted as receiver for the predecessor.

       (Punctuation omitted.) Belans v. Bank of America, N.A., 306 Ga. App. 252, 253 (1) (701 SE2d 889) (2010).

       (Punctuation omitted.) Stovall v. Fed. Savings and Loan Ins. Corp., 260 Ga. 475, 476 (2) (396 SE2d 484) (1990).

       See id.

       See id. See also Bellamy v. Resolution Trust Corp., 266 Ga. 630, 631 (1) (469 SE2d 182) (1996) (“Neither fraud in the inducement nor knowledge by the [lender] is relevant to application of [the D’Oench Duhme doctrine], although fraud in the factum [precluding the borrower from knowing the terms of the loan] would be.”) (citations omitted).

       Contrary to appellants’ argument on appeal, they do not plead a fraud in the factum defense, which would fall outside the scope of the D’Oench Duhme doctrine. A fraud in the factum defense arises from allegations that the bank induced the debtor to sign the loan documents without the opportunity to obtain knowledge of the character or essential terms of the loan document. See, e.g., Fed. Deposit Ins. Corp. v. Turner, 869 F2d 270, 274 (II) (6th Cir. 1989) (doctrine did not bar defense that bank erased essential terms and replaced them without the consent or knowledge of the borrower). Such a circumstance is not pleaded here.

       We note that the record belies Kessler and Seitz’s procedural argument that the trial court erred by considering evidence and improperly converting the motion to sever as one for summary judgment. On motion for reconsideration, the trial court explicitly clarified that it did not consider evidence, and the pleadings, which lay out the alleged fraud defenses and claims, support this characterization.


text:
    A13A1570, A13A1617.
    CITY OF TYBEE ISLAND et al. v. LIVE OAK GROUP, LLC; and vice versa.
    (751 SE2d 123)
   Boggs, Judge.

In this case, the City of Tybee Island, Georgia (“the City”) denied an application filed by Live Oak Group, LLC (“Live Oak”) seeking to amend the building standards applicable to Live Oak’s real property. Live Oak filed a “Zoning Appeal and Petition for Writ of Mandamus” in superior court against the City asserting state and federal constitutional claims and a claim for inverse condemnation. The parties subsequently filed cross-motions for summary judgment, and following the trial court’s ruling on the motions, both parties appeal. In Case No. A13A1570, the City appeals from the trial court’s denial of its motion for summary judgment, and the grant of Live Oak’s motion, on Live Oak’s claim for inverse condemnation. In Case No. A13A1617, Live Oak appeals, seeking to remand this case for a ruling on its federal takings claim in the event this court concludes in Case No. A13A1570 that the trial court erred in its ruling on the inverse condemnation claim. For the following reasons, we reverse in both cases and remand with direction in Case No. A13A1617.

Summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). “We review the grant or denial of a motion for summary judgment de novo, and we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.” (Citation and punctuation omitted.) Woodcraft by MacDonald, Inc. v. Ga. Cas. and Surety Co., 293 Ga. 9, 10 (743 SE2d 373) (2013).

The record reveals that on May 2, 2005, Live Oak purchased certain property on Tybee Island for $250,000. Prior to the purchase, Live Oak was told in writing by a city administrator that the property was zoned “R-l” for a single-family residence, but the property was in fact zoned “PUD” for a planned unit development.

On August 13, 2008, Live Oak filed an application for a “PUD Amendment” seeking to construct a single-family home on the property within the “R-l” building standards. When the City denied the application, Live Oak filed a “Zoning Appeal and Petition for Writ of Mandamus” alleging inverse condemnation, an unconstitutional application of the City’s zoning ordinance, a deprivation of rights authorized by 42 USC § 1983, a substantive due process violation of the federal and state constitutions, a taking of property without just compensation in violation of the federal and state constitutions, a denial of equal protection, attorney fees pursuant to 42 USC § 1988, and attorney fees pursuant to OCGA § 9-15-14.

The parties subsequently filed cross-motions for summary judgment on Live Oak’s claims. The trial court granted summary judgment in favor of Live Oak on its inverse condemnation claim, but denied summary judgment on its remaining claims after finding that the City’s zoning ordinance was not unconstitutionally vague. With the exception of the inverse condemnation claim, the court then granted the City summary judgment on Live Oak’s remaining claims. The court explained that it was denying Live Oak’s motion for summary judgment on its federal takings claim, and granting the City’s motion on the claim, solely because Live Oak “succeeded on its inverse condemnation claim.” Both parties now appeal.

Case No. A13A1570

The City asserts that the trial court erred in denying it summary judgment, and in granting Live Oak summary judgment, on Live Oak’s claim for inverse condemnation. Because the City’s denial of Live Oak’s application for a “PUD Amendment” did not amount to inverse condemnation, we agree.

To state a claim for inverse condemnation, the property owner does not have to show a physical invasion that damages the property, but only an unlawful interference with the owner’s right to enjoy the land. Private property owners may be compensated in inverse condemnation actions for the temporary taking of land for the paving of a turn lane, increased noise and odor from a county’s sewage plant, and flooding, siltation, and pollution from surface water diverted by roadway maintenance.

(Citations, punctuation and footnotes omitted.) Columbia County v. Doolittle, 270 Ga. 490, 491-492 (1) (512 SE2d 236) (1999). Municipalities

can be liable for conditions created on private property only under the constitutional eminent domain provisions against taking or damaging such property for public purposes without just and adequate compensation, which provisions function as a waiver of sovereign immunity . . . [and] may be liable for damages ... if it creates a condition on private property, such as a nuisance, that amounts to inverse condemnation or a taking without compensation. Regardless of how the various claims are denominated, therefore, the plaintiffs may recover if and only if the [trespass or nuisance] amounted to the taking of property without just compensation.

(Citations and punctuation omitted.) Stanfield v. Glynn County, 280 Ga. 785, 786 (1) (631 SE2d 374) (2006).

Live Oak’s complaint here fails to set forth an inverse condemnation claim. Such a claim is properly set forth where the county or municipality takes

some affirmative action for public purposes causing a nuisance or trespass which, in turn, result[s] in the diminished utility and functionality of a private owner’s land. The diminished functionality and utility, in turn, interfere [s] with the owner’s use and enjoyment of the land.

Rabun County v. Mountain Creek Estates, 280 Ga. 855, 857 (1) (632 SE2d 140) (2006). It is only then that a “ ‘taking’ for a public purpose occur [s] which support [s] a claim for inverse condemnation.” Id. As noted in Doolittle, supra, an “inverse condemnation action may be brought against [a] public body for diverting water, impairing access, causing mud and silt to flow onto property and for damaging property by noise, odors, or pollution.” Id. at 492 (1), n. 7.

Here, there was simply no affirmative act by the City for a public purpose causing a nuisance or trespass on Live Oak’s property resulting in diminished utility and functionality of the property. See Mountain Creek Estates, supra; compare, e.g., Powell v. Ledbetter Bros., 251 Ga. 649, 650-651 (2) (307 SE2d 663) (1983) (allegation that the DOT negligently designed and maintained roads that caused repeated flood damage to private property was sufficient to sustain inverse condemnation action), overruled on other grounds, David Allen Co. v. Benton, 260 Ga. 557, 557-558 (398 SE2d 191) (1990); Duffield v. DeKalb County, 242 Ga. 432, 432-435 (1), (2) (249 SE2d 235) (1978) (noxious odors and noise from county water pollution control plant resulted in inverse condemnation of private property).

While the theory of inverse condemnation arises out of the eminent domain paragraph of the Georgia Constitution, see Doolittle, supra, 270 Ga. at 491 (1), it is not synonymous with a claim attacking the constitutionality of an existing zoning ordinance following the denial of an application to rezone (which requires a determination as to whether the plaintiff has suffered an unconstitutional deprivation or “taking”). See Gradous v. Bd. of Commrs. of Richmond County, 256 Ga. 469, 470 (349 SE2d 707) (1986) (judicial inquiry into the validity of zoning ordinance is triggered only by plaintiff sustaining unconstitutional deprivation or “taking”; no showing of deprivation to support constitutional challenge to existing zoning); see also Jervey v. City of Marietta, 274 Ga. 754, 754-755 (1), (2) (559 SE2d 457) (2002) (denial of zoning application not unconstitutional taking); Holy Cross Lutheran Church v. Clayton County, 257 Ga. 21, 21-22 (2) (354 SE2d 151) (1987) (same).

Even when a new zoning or regulatory event occurs, it provides no basis for an inverse condemnation claim unless it creates a trespass or nuisance resulting in the diminished utility or functionality of the property. In Lamar Advertising of South Ga. v. City of Albany, 260 Ga. 46 (389 SE2d 216) (1990), the city adopted a new sign ordinance requiring new specifications and annual charges. Id. The Supreme Court of Georgia declared the ordinance unconstitutional because it resulted in “the destruction of a substantial part” of an existing “lawful enterprise,” thereby constituting a “taking” of private property without just compensation. Id. at 46-47 (2), (3). Thus, the “takings” claim was a constitutional takings claim, and not an inverse condemnation claim as the city’s action “created neither a nuisance nor a trespass upon [Lamar Advertising’s] property.” See Mountain Creek Estates, supra, 280 Ga. at 857 (1).

The Supreme Court of Georgia has questioned whether inverse condemnation is an available remedy in a zoning case, and these decisions support our conclusion here. See Mayor & Aldermen of Savannah v. Savannah Cigarette & Amusement Svcs., 267 Ga. 173, 174 (476 SE2d 581) (1996) (“[e]ven assuming that inverse condemnation is an available remedy” where a landowner’s property is rezoned by the governing authority); Fulton County v. Wallace, 260 Ga. 358 (393 SE2d 241) (1990) (holding that inverse condemnation is not available remedy under facts of case; pretermits question of whether board’s failure to rezone to a constitutional classification as interpreted by trial court could ever amount to inverse condemnation under Georgia law), overruled on other grounds, Alexander v. DeKalb County, 264 Ga. 362, 363-364 (1) (444 SE2d 743) (1994) (holding that Wallace, supra, “rejected inverse condemnation as a remedy in a rezoning case”). Under the facts of this case, we conclude that Live Oak could not sustain a claim for inverse condemnation. The trial court therefore erred in granting summary judgment to Live Oak and denying summary judgment to the City on this ground.

Decided November 5, 2013

Callaway, Braun, Riddle & Hughes, Edward M. Hughes, Oliver Maner, Patrick T. O’Connor, Benjamin M. Perkins, for appellants.

Hunter, Maclean, Exley & Dunn, Robert B. Lovett, Edgar M. Smith, for appellee.

Case No. A13A1617

The trial court denied Live Oak’s federal takings claim because Live Oak “succeeded on its inverse condemnation claim.” While Live Oak requests that we remand this case for a ruling on its federal takings claim, the City urges us to rule on the merits of the claim. But we decline to review a claim not ruled upon by the trial court below. See City of Gainesville v. Dodd, 275 Ga. 834, 838-839 (573 SE2d 369) (2002); Zurich American Ins. Co. v. Heard, 321 Ga. App. 325, 333 (5) (740 SE2d 429) (2013). Because we have held in Case No. A13A1570 that the trial court erred in its rulings on Live Oak’s inverse condemnation claim, we reverse the trial court’s rulings with regard to Live Oak’s federal takings claim and remand this case for consideration of that claim.

Judgment reversed in Case No. A13A1570. Judgment reversed in Case No. A13A1617 and case remanded with direction.

Doyle, P. J., and McFadden, J., concur.

       Live Oak’s action here sought a writ of mandamus. While mandamus is an extraordinary remedy that falls within the jurisdiction of the Supreme Court of Georgia, see Stendahl v. Cobb County, 284 Ga. 525, n. 1 (668 SE2d 723) (2008), the sole issue is whether the trial court erred in its ruling on Live Oak’s inverse condemnation claim. For this reason, we conclude that this court has jurisdiction to entertain the appeal.

       We note that the record reveals that during negotiations for the purchase of the property, the parties agreed to a reduced purchase price provided that: “Buyer aware of current zoning ordinances and will close on the transaction without a variance being granted.”

       “PUD” does not permit the construction of a single-family home as it is defined as “any single-family planned unit development on one acre or more, which in design and construction complements the cultural and historical values of the surrounding area.” Live Oak also challenged the designation of the property as PUD. But the trial court ruled that the property was zoned PUD and that Live Oak must therefore seek a PUD amendment. This ruling is not part of the appeal before us.

       We note that the trial court granted the City’s motion for summary judgment, and denied Live Oak’s motion, on Live Oak’s state law takings claim and its “as-applied constitutional challenge,” and found that the ordinance was not unconstitutionally vague. Live Oak does not appeal from these rulings.


author: Miller, Judge.

text:
    A13A1203.
    FLEMING v. THE STATE.
    (749 SE2d 54)
   Miller, Judge.

Following a jury trial, John Fleming was convicted of battery (OCGA § 16-5-23.1 (a)) and criminal damage to property in the second degree (OCGA § 16-7-23 (a) (1)). Fleming appeals from the denial of his motion for new trial, contending that the evidence was insufficient to sustain his convictions, the trial court erred in failing to charge on justification as a defense to the crime of criminal damage to property, and that he received ineffective assistance of counsel. For the reasons that follow, we affirm.

“On appeal from a criminal conviction, the evidence is viewed in the light most favorable to the verdict.” (Punctuation omitted.) Philpot v. State, 311 Ga. App. 486 (716 SE2d 551) (2011). So viewed, the evidence showed that the victim lived across the street from Fleming in the Golden Estates Mobile Home Park located in Douglas County. The victim testified that Fleming would frequently play music from his car stereo at a high volume. At first, Fleming would only play loud music on the weekends, but later, he also began playing loud music in the morning during the work week. The victim, who usually got home from work around 4:30 a.m. and went to sleep at about 6:00 a.m., stated that Fleming’s loud music would often wake him up around 8:00 a.m.

One morning in January 2007, the victim was awakened by loud music coming from Fleming’s car. The victim became irritated and decided to move his truck onto the street directly in front of Fleming’s driveway in order to block Fleming’s car. About 15 minutes later, Fleming went to the victim’s trailer and confronted the victim about his truck. Fleming told the victim to “move your f’ing truck,” that he would bust the truck’s windows if the victim refused, and then said, “Never mind, I’ll move it myself.”

Fleming then ran back to his trailer. The victim walked out the front door of his trailer and toward Fleming’s trailer in order to keep an eye on Fleming. When the victim saw Fleming trying to pick up a brick, he thought Fleming was going to throw the brick at his truck. The victim then ran toward his truck in an attempt to move it before Fleming damaged it. Just as the victim neared the driver’s side rear door, Fleming threw a brick at the truck, hitting the front passenger door and step rail. The victim suffered more than $500 in damages to the truck.

Fleming and the victim then got into a heated argument, whereupon Fleming punched the victim in the face. The victim retreated to his truck, entered the driver-side door, and moved the truck back to his trailer. The victim then called the police and later received medical attention for his injuries, which included cuts on his nose and under his eye.

1. Fleming contends that the trial court erred by failing to charge the jury on justification as a defense to the offense of criminal damage to property in the second degree because it was his sole defense. We disagree.

Although Fleming refers to a “justification defense” in his brief, he cites to OCGA § 16-3-23, which is the statute that sets out the defense of habitation. While Fleming made a request for a charge on justification, he did not specifically request a charge on the defense of habitation and did not object to the court’s instruction that the defense of justification had no relevance to the issue of criminal damage to property. Consequently, we review Fleming’s enumeration of error only to determine whether the trial court’s failure to include a specific instruction on defense of habitation constitutes plain error. See OCGA § 17-8-58 (b) (“Failure to object . . . shall preclude appellate review of such portion of the jury charge, unless such portion of the jury charge constitutes plain error which affects substantial rights of the parties[.]”); Allen v. State, 290 Ga. 743, 744-745 (3) (723 SE2d 684) (2012).

In determining whether plain error exists, we apply a four-part test. Allen, supra, 290 Ga. at 745 (3).

First, there must be an error or defect — some sort of deviation from a legal rule — that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error — discretion which ought to be exercised only if the error seriously affects the fairness, integrity[,] or public reputation of judicial proceedings.

(Citation and punctuation omitted.) Id.

Here, although Fleming argues that the trial court was required to charge on his sole defense, even without a request to charge, this requirement only applies where there is slight evidence supporting the theory of the charge. See Arnold v. State, 303 Ga. App. 825, 827 (1) (695 SE2d 299) (2010). OCGA § 16-3-23 provides: “Aperson is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to prevent or terminate such other’s unlawful entry into or attack upon a habitation^]” (Emphasis supplied.) The clear language of the statute states that the authorized use of force is to be directed against another person, not against property. Since there is no authority that the defense of habitation applies to the use of force against another person’s property, Fleming cannot show that the trial court’s failure to include an instruction on defense of habitation was a clear and obvious error.

Even if the habitation defense permitted the use of force against another person’s property, as opposed to the person, the charge was nevertheless unwarranted.

[C]ritical to the application of the defense of habitation is the moment in time at which the defendant resorts to . . . force and the act being performed by the victim at that moment____ Where there is no evidence that the victim was attempting to enter or attack the habitation at the time he was injured by the defendant, the defense of habitation is not available.

(Citations and punctuation omitted.) Coleman v. State, 286 Ga. 291, 298 (6) (687 SE2d 427) (2009); see also Fair v. State, 288 Ga. 244, 254 (2) (a) (702 SE2d 420) (2010) (“[Generally the use of force in defense of habitation is justified only where there is an unlawful entry.”) (emphasis in original). In this case, at the time Fleming threw the brick at the victim’s truck, the victim was moving from his trailer toward his truck that was parked in front of Fleming’s driveway in an attempt to move it. There was no evidence that the victim was attempting to enter or attack Fleming’s habitation at the time Fleming threw a brick at the victim’s truck. Indeed, Fleming testified at trial that the reason he threw the brick was to get the victim to move his truck. Therefore, the charge on defense of habitation was not warranted. See, e.g., Coleman, supra, 286 Ga. at 298 (6) (a); Philpot, supra, 311 Ga. App. at 489 (3). Accordingly, the trial court did not err, much less plainly err, in failing to charge on the defense of habitation.

2. Fleming contends that the evidence was insufficient to support his convictions for battery and criminal damage to property in the second degree, arguing that his actions were justified under the circumstances. We disagree.

(a) “A person commits the offense of battery when he or she intentionally causes substantial physical harm or visible bodily harm to another.” OCGA § 16-5-23.1 (a). The term “visible bodily harm” means “bodily harm capable of being perceived by a person other than the victim and may include, but is not limited to, substantially blackened eyes, substantially swollen lips or other facial or body parts, or substantial bruises to body parts.” OCGA § 16-5-23.1 (b).

In support of his argument that he was justified in his actions, Fleming cites his own trial testimony in which he stated that after the victim noticed the damage to his truck, the victim called Fleming a racial slur. Fleming testified that he and the victim then approached each other, that he ducked when the victim swung at him, and that he then punched the victim in self-defense.

A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to defend himself or herself against such other’s imminent use of unlawful force. OCGA § 16-3-21 (a). But a person is not justified in using force in self-defense if he is the initial aggressor or engages in mutual combat, unless he withdraws from the encounter and notifies the other participant that he is doing so.

(Citation and punctuation omitted.) Muckle v. State, 307 Ga. App. 634, 637 (1) (a) (705 SE2d 721) (2011). Once evidence of self-defense is presented, the burden is on the State to disprove that defense beyond a reasonable doubt. Id. at 637 (1) (a). The question of whether a defendant acted in self-defense is for the jury to resolve. Holmes v. State, 273 Ga. 644, 645 (1) (543 SE2d 688) (2001).

Viewed in the light most favorable to the verdict, the evidence was sufficient for the jury to conclude beyond a reasonable doubt that the State disproved Fleming’s self-defense claim as to the battery offense. The victim’s testimony alone was sufficient to support a finding that Fleming was the aggressor and that he punched the victim without provocation. See OCGA § 24-14-8 (“The testimony of a single witness is generally sufficient to establish a fact.”). Although Fleming offered testimony that conflicted with the State’s version of events, it was the role of the jury to assess the credibility of the witnesses and decide whose testimony to accept or reject. Muckle, supra, 307 Ga. App. at 638 (1) (a). As a result, the jury was authorized to conclude that Fleming’s hitting of the victim was not justified as an act of self-defense. Furthermore, since there is evidence in the record showing that Fleming caused “visible bodily harm” to the victim, the jury was authorized to conclude that Fleming was guilty of the offense of battery. See, e.g., Mack v. State, 294 Ga. App. 518, 519 (669 SE2d 487) (2008) (upholding battery conviction where victim had marks and bruises as a result of defendant’s actions); Kuykendoll v. State, 278 Ga. App. 369, 369-370 (1) (629 SE2d 32) (2006) (upholding conviction for family violence battery based on evidence that the victim suffered a nose bleed, bruises, a cut lip, and loosened teeth).

(b) OCGA § 16-7-23 (a) (1) provides: “A person commits the offense of criminal damage to property in the second degree when he . . . [intentionally damages any property of another person without his consent and the damage thereto exceeds $500.00.”

In this case, it is undisputed that Fleming threw a brick at the victim’s truck, and the evidence shows that Fleming’s action caused over $500 in damages to the truck. While Fleming asserts that he was justified in throwing the brick in defense of his habitation, his claim is belied by his own trial testimony. Fleming testified that he threw the brick in order to get the victim to move his truck, and that the victim did not make any aggressive move until after the brick was thrown. Moreover, as indicated above in Division 1, the habitation defense did not apply because there was no evidence that the victim was attempting to enter or attack Fleming’s habitation at the time Fleming threw the brick at the victim’s truck. See, e.g., Coleman, supra, 286 Ga. at 298 (6) (a). As a result, the jury was authorized to convict Fleming of criminal damage to property in the second degree. See Elsasser v. State, 313 Ga.App. 661, 662 (1) (722 SE2d 327) (2011).

3. Fleming also contends that he received ineffective assistance of counsel.

To prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the defendant that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. . . . Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984). If an appellant fails to meet his or her burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong. In reviewing the trial court’s decision, we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts. Furthermore, there is a strong presumption that the performance of counsel was within the wide range of reasonable professional lawyering, and we cannot reach a contrary conclusion unless defendant successfully rebuts the presumption by clear and convincing evidence. Judicial scrutiny of counsel’s performance must be highly deferential.

(Citations and punctuation omitted.) Bridges v. State, 286 Ga. 535, 537 (1) (690 SE2d 136) (2010). Applying these standards, we review Fleming’s claims.

(a) Fleming contends that trial counsel was ineffective for failing to object to testimony that Fleming failed to keep an appointment with an internal affairs investigator regarding his complaint against the arresting officer. We disagree.

The arresting officer testified that upon responding to the 911 call, she spoke to the victim and Fleming separately before deciding to arrest Fleming. The internal affairs officer testified that following Fleming’s arrest, he received a voice mail from Fleming indicating that he wanted to complain about the arresting officer. The internal affairs officer testified that when he spoke with Fleming, Fleming described his version of the events leading up to the arrest and complained that the arresting officer arrested him only because he was black while the arresting officer and the victim were both white. The internal affairs officer spoke to Fleming a second time in an attempt to get Fleming to come into the police department to discuss the complaint further. Fleming stated that he would not be able to meet due to a medical condition and indicated that he might be able to meet at a later time. The internal affairs officer subsequently called Fleming and made an appointment to meet him, but Fleming failed to appear. The internal affairs officer never heard from Fleming again.

Fleming argues that the testimony regarding his failure to show up at the appointment with the internal affairs investigator constituted an improper comment on his right to remain silent. In this case, however, Fleming freely spoke to the internal affairs investigator, as well as the arresting officer, and there is no evidence that he ever expressly invoked his right to remain silent. Moreover, Fleming testified that he declined to show up at the appointment because he did not think it would be worthwhile, not because he wanted to remain silent. Under these circumstances, the testimony about Fleming’s failure to appear for the interview did not amount to an impermissible comment on his right to remain silent. See, e.g., Curry v. State, 291 Ga. 446, 451 (3) (729 SE2d 370) (2012) (since the defendant did not invoke his right to remain silent during a police interview, testimony regarding his failure to respond to particular questions during interview was admissible); Gilyard v. State, 288 Ga. 800, 802 (2) (708 SE2d 329) (2011) (where defendant spoke with police without ever invoking his right to remain silent, questions from the prosecuting attorney about why he had not come forward sooner “did not constitute impermissible commentary on [his] right to remain silent”) (citations omitted). Consequently, an objection to the testimony at issue would have been futile, and the failure to make a meritless objection to the admission of certain evidence does not constitute deficient performance of counsel. Wesley v. State, 286 Ga. 355, 356 (3) (a) (689 SE2d 280) (2010).

(b) Fleming also contends that trial counsel was ineffective for failing to call witnesses who would have corroborated his testimony that there were no complaints made against him for playing loud music. We have previously held, however, that the failure to present cumulative evidence through additional witness testimony does not amount to ineffective assistance of counsel. See, e.g., Gibbs v. State, 316 Ga. App. 431, 432 (729 SE2d 563) (2012); Duran v. State, 274 Ga. App. 876, 879 (3) (619 SE2d 388) (2005).

(c) Fleming also argues that his trial counsel was ineffective for failing to move to dismiss on constitutional speedy trial grounds. We disagree.

To demonstrate that trial counsel was ineffective on this ground, Fleming

must show that the motion to dismiss would have been granted had it been filed. When considering a motion to dismiss on speedy trial grounds, the trial court must conduct a two-part test as set forth in the United States Supreme Court decisions in Barker v. Wingo, 407 U. S. 514, 530 (92 SC 2182, 33 LE2d 101) (1972), and Doggett v. United States, 505 U. S. 647, 651-652 (112 SC 2686, 120 LE2d 520) (1992). First, the trial court must determine whether the interval from the defendant’s arrest, indictment, or other formal accusation to trial is sufficiently long to be considered “presumptively prejudicial.” If the delay is presumptively prejudicial, the trial court must determine whether the defendant has been deprived of his right to a speedy trial by analyzing a four-part balancing test that considers (1) the length of the delay, (2) the reason for the delay, (3) the assertion of the defendant of his right to a speedy trial, and (4) prejudice to the defendant.

(Citations and punctuation omitted.) Chalk v. State, 318 Ga. App. 45, 48 (1) (c) (733 SE2d 351) (2012).

(i) Presumptive prejudice. “Speedy trial rights attach at the time of arrest or formal indictment, whichever is earlier.” (Citation and punctuation omitted.) Stewart v. State, 310 Ga. App. 551, 553 (1) (713 SE2d 708) (2011). Here, Fleming was arrested in January 2007 and went to trial in June 2009. The 29-month delay was presumptively prejudicial. See Ditman v. State, 301 Ga. App. 187, 189-190 (1) (687 SE2d 155) (2009) (a pretrial delay exceeding 12 months is presumptively prejudicial).

(ii) Length of the delay. The 29-month pretrial delay in this case was uncommonly long, and is a factor weighed against the State. See Ruffin v. State, 284 Ga. 52, 57-59 (2) (b) (i) (663 SE2d 189) (2008) (delay of over 26 months weighed against State).

(iii) Reasons for the delay. The record reveals that after the indictment was filed in March 2007, the case was assigned to three different prosecutors after the first two prosecutors left the district attorney’s office. Trial counsel testified at the motion for new trial hearing that he had announced ready for trial at several calendar calls, and that part of the delay was attributable to the trial court’s volume and backlog. Based on this evidence, the delay must be weighed against the State, but not too heavily. See Ruffin, supra, 284 Ga. at 60 (2) (b) (ii) (overcrowded dockets, the State’s failure to provide sufficient prosecutors, and neglect by the prosecution are factors that weigh against the State though less heavily than delay designed to sabotage the defendant’s case).

(iv) Assertion of the right. Trial counsel testified that during the time that the case was reassigned to different prosecutors, he continued to pursue plea deals with each prosecutor. Trial counsel further testified that he advised Fleming to accept this plea offer at numerous trial calendar calls, and when it became clear that Fleming would not accept the plea offer, he filed a speedy trial demand on Fleming’s behalf in March 2009, approximately 26 months after Fleming was arrested. The 26-month delay in requesting a speedy trial is weighed against Fleming. See Nealy v. State, 246 Ga.App. 752, 754 (3) [3] (542 SE2d 521) (2000).

(v) Prejudice to Fleming’s defense. The most important BarkerDoggett factor is whether the pretrial delay harmed the defendant. See Over v. State, 302 Ga. App. 215, 218 (4) (690 SE2d 507) (2010).

The right to a speedy trial is an important safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delay will impair the ability of an accused to defend himself. Of these forms of prejudice, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.

(Citations and punctuation omitted.) Id.

Fleming asserts only that his defense was impaired by the delay because a material witness was unavailable to testify. Trial counsel testified at the motion for new trial hearing that he was unaware of any material witnesses that had gone missing or were unavailable on account of the delay. Fleming testified that he told trial counsel that no complaints had been made against him, and argues that the former manager of the Golden Estates Mobile Home Park would have been able to definitively testify as to whether any noise complaints had been made against Fleming prior to the incident in question. Fleming did not proffer the former manager’s testimony, as he submitted only that the manager could “definitively testify” without providing details about what the evidence would show or how this testimony would have benefitted his defense. See Chalk, supra, 318 Ga. App. at 49-50 (1) (c) (v) (defendant failed to show actual prejudice where he did not provide details about how missing witness’s anticipated testimony would have benefitted the defense). At best, the former manager’s testimony would have merely corroborated Fleming’s trial testimony that there were never any noise complaints filed against him by fellow neighbors. See Ingram v. State, 280 Ga. App. 467, 471 (1) (d) (634 SE2d 430) (2006) (defendant failed to establish prejudice as a result of missing witness where witness’s testimony would have been either cumulative or not material). In light of the substantial evidence of guilt, including Fleming’s own trial testimony, Fleming “has not shown any other circumstance from which it can be concluded that he is substantially prejudiced by the unavailability of the [former manager], or that the absent witnesses] testimony was uniquely vital to his defense.” (Citations and punctuation omitted.) Over, supra, 302 Ga. App. at 219 (4).

(vi) Balancing the Barker-Doggett factors, the length of and reasons for the delay weigh against the State. Fleming’s failure, however, to assert his constitutional right to a speedy trial for 26 months, and the failure to establish actual prejudice from the delay are weighed against him. As a result, Fleming has failed to establish that the 29-month delay violated his constitutional right to a speedy trial. Therefore, even if trial counsel was deficient for failing to raise the speedy trial claim, Fleming cannot demonstrate that this failure prejudiced his defense, and his ineffective assistance claim on this ground fails. See Chalk, supra, 318 Ga. App. at 50 (1) (c) (v); Nealy, supra, 246 Ga. App. at 755 (3).

Decided October 2, 2013

Reconsideration denied November 6, 2013.

James K. Luttrell, for appellant.

David McDade, District Attorney, Jeffrey M. Gore, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       Although trial counsel later reserved objections to the charge as discussed in the charge conference, the only objection made by counsel during the conference concerned an unrelated instruction.

       Trial counsel ultimately negotiated a plea offer that would dismiss all felony counts against Fleming in exchange for his guilty plea to one misdemeanor charge of criminal trespass as a lesser included offense of criminal damage to property in the second degree with a recommended sentence of 12 months probation. Trial counsel explained that he advised Fleming to accept this plea offer because he did not have a legal defense to the charge of criminal damage to property in the second degree.

       The former manager’s employment with Golden Estates Mobile Home Park ended in December 2008, about a year after the date of the offense and almost seven months prior to trial. The manager’s replacement testified at the motion for new trial hearing that while there were no business records of any complaints having been filed against Fleming for playing loud music, she acknowledged that the former manager was replaced, in part, because she failed to maintain adequate records.

       While Fleming argues that the former manager’s testimony would have impeached the victim’s testimony, the victim testified that he never made a complaint to the manager of the mobile home park. While the victim testified that his wife made a complaint against Fleming, she was not an eyewitness to the offenses of battery and criminal damage to property in the second degree.