author: MlKELL, Judge.

text:
    A10A1107, A10A1108.
    BAXTER et al. v. FAIRFIELD FINANCIAL SERVICES, INC. et al.; and vice versa.
    (704 SE2d 423)
   MlKELL, Judge.

These companion appeals arise out of a lawsuit filed by Fairfield Financial Services, Inc. (the “Bank”) against appellants Nathan Baxter, Tim Burgess, and Zach W. McLeroy (the “Guarantors”), seeking to recover the outstanding balances owed on notes upon which appellants served as guarantors. The parties filed motions for summary judgment. The Bank argued that it was entitled to judgment as a matter of law on its breach of contract claims and to attorney fees. The Guarantors argued that the Bank’s lawsuit was barred by res judicata as a result of a final judgment entered in a related case in Alabama. The trial court denied both motions and granted certificates of immediate review to both parties. We granted the Bank’s and the Guarantors’ applications for interlocutory review. In Case No. A10A1107, the Guarantors appeal the denial of their motion, and in Case No. A10A1108, the Bank appeals the denial of its motion. We affirm the denial of the Guarantors’ motion for summary judgment in Case No. A10A1107 and reverse the denial of the Bank’s motion for summary judgment in Case No. A10A1108.

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. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant or denial of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

The record shows that the Bank, a collateral agent for a syndicated loan, provided financing to Sapphire Beach West Development, LLC (“Sapphire”), to purchase and redevelop hurricane-damaged condominiums in Alabama. Sapphire executed several promissory notes in the aggregate principal amount of $23,360,000 (“First Priority Notes”) on or about June 3, 2005, and each of the Guarantors executed an Unconditional Guaranty of Payment and Performance (the “Guaranties”), which provided that they unconditionally and irrevocably guaranteed the payment of the notes extended to Sapphire. The Guarantors each held a membership interest in Sapphire. On March 9, 2007, Sapphire executed another promissory note in the amount of $2,420,000 (“Second Priority Note”), and each of the Guarantors executed Guarantees pertaining to the Second Priority Note as well. The project failed, and litigation ensued, first in Alabama, then in Georgia.

On or about June 11, 2007, some of the owners of the damaged condominium units (the “Participating Owners”) filed a declaratory judgment action in Alabama against Sapphire, the Bank, and other defendants, requesting that the court declare their liens to be superior to any other encumbrances on the property and seeking the foreclosure of their vendor’s and equitable liens on the property (the “Alabama action”). The Participating Owners had a stake in Sapphire’s project because they had opted to receive new units in the redeveloped condominiums in return for their conveyance of the interest in their damaged units to Riverbrooke Capital Partners, LLC (“Riverbrooke”)-

On or about January 28, 2008, the Bank filed the instant action against the Guarantors seeking to recover the outstanding balance of the Notes totaling $25,780,000 (the “Georgia action”). On March 26, 2008, the Guarantors moved to stay the Georgia action pending the outcome of a court-ordered mediation in the Alabama action. In their motion, the Guarantors indicated that because of the overlap between the actions, they had agreed to participate in the mediation in Alabama, with the hope that the entire matter could be successfully resolved. The trial court granted the motion to stay in part, staying the case for 90 days, subject to the right of any party to conduct discovery related to filing a summary judgment motion.

On or about April 28, 2008, the Bank filed a third-party complaint against the Guarantors in the Alabama action seeking indemnification for the costs incurred in defending the action. The Bank did not assert its right to collect the unpaid balance from the Guarantors in the Alabama action. The Guarantors did not file an answer or enter an appearance in the Alabama action. The Bank filed a “Motion to Make Default Judgments Final as to Damages Incurred to Date and Conduct Hearing on Damages of Third-Party Plaintiff,” which the Alabama court granted in an order dated September 3, 2008. In the order, the Alabama court awarded final judgment in the amount of $909,487.11 to the Bank against the Guarantors for attorney fees and costs incurred in defending the action and “reserve[d] its right to conduct further hearings as it deem[ed] necessary and proper to make final and carry into effect the Court’s default judgments for future defense costs.”

On March 5, 2009, the parties to the Alabama action, including the Guarantors, entered into a settlement agreement that resolved the Alabama action. A few months later on June 8, 2009, the Alabama court entered its final order, granting the Bank’s Motion for Entry of Final Judgment. The court ruled as follows:

The claim of [the Bank] against [Sapphire] for judicial foreclosure is dismissed without prejudice or waiver of the right of [the Bank] to later initiate a non-judicial foreclosure of its mortgage; There be Judgment in favor of [the Bank] against [Sapphire] in the sum of $909,487.11. Said judgment is joint and several with the Court’s previous judgment against [the Guarantors] of September 3, 2008. The Court’s Judgment against [the Guarantors] is affirmed. Other than as expressly set out herein, all claims remaining against [the Guarantors] are dismissed. This Order resolves all pending claims against all parties and constitutes a final adjudication of all claims in this matter and is without prejudice as to any other litigation including Fairfield Financial Services, et al. v. Baxter, et al., Civil Action File No. 08C-04159-2 pending before the State Court of Gwin-nett County, State of Georgia [the instant action] or claims of any parties against Steve Hornyak and George “Jeff’ Chandler.

The Guarantors argue that the Alabama court’s final order bars the instant action.

Case No. A10A1107

1. In three related enumerations of error, the Guarantors argue that the trial court erred in concluding that res judicata did not bar the instant action. We disagree.

OCGA § 9-12-40 codifies Georgia’s basic common law rule of res judicata. The statute provides that

[a] judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.

“[F]or one action to act as a bar to a subsequent action, the two actions must share certain characteristics. First, the parties to the two actions must be identical and, second, the subject matter of the actions must also be identical.” Additionally, “the party against whom the doctrine of res judicata is raised must have had a full and fair opportunity to litigate the issues in the first action.”

The Guarantors argue that res judicata applies to bar the Georgia action because their alleged liability in both instances was based on the same contractual agreement, the Guaranties. In support of this argument, the Guarantors rely on Flagg Energy Dev. Corp. v. Gen. Motors Corp. and Green v. Bd. of Directors of Park Cliff Unit Owners Assn. In our view, however, these cases do not warrant a finding that res judicata bars the instant action. In Flagg, the plaintiffs purchased turbine engines from one company that were manufactured by General Motors (“GM”). After becoming dissatisfied with the engines, the plaintiffs entered a settlement agreement with GM; and as a part of the settlement, GM assumed all of the duties of the seller under the original purchase order. The plaintiffs filed an action in Connecticut against GM based upon the terms of the purchase order, and then filed a second action in Georgia, alleging a breach of the settlement agreement. We concluded that the subject matter in both actions involved GM’s duties under the settlement agreement; therefore, res judicata applied to bar the plaintiffs’ Georgia claim. In Green, the plaintiff homeowner sued his condominium association for its failure to repair a roof in one action and to maintain the common areas in another. We concluded that res judicata applied because both actions concerned the same subject matter, that is, the association’s failure to maintain the complex in accordance with its bylaws and standards.

Our holdings in Flagg and Green were not based on the fact that the claims in the actions arose from the same document. Rather, the inquiry was whether the subject matter was identical. In the instant case, the subject matters in the two actions are not identical. The Alabama action concerned Sapphire’s breach of its obligations under the mortgage documents entered into with the Participating Owners, which triggered the Guarantors’ obligation to indemnify the Bank for the cost of the litigation. In contrast, the Georgia action concerned the Guarantors’ breach of their contractual obligation to repay Sapphire’s debt. We recognize that the subject matter of the actions is linked. But

[t]he fact that the subject matter of different lawsuits may be linked factually does not mean that they are the same “cause” within the meaning of OCGA § 9-12-40. For that doctrine to act as a bar, the cause of action in each suit must be identical. ... A cause of action has been defined as being “the entire set of facts which give rise to an enforceable claim.” Where . . . some of the operative facts necessary to the causes of action are different in the two cases, the later [sic] suit is not upon the same cause as the former, although the subject matter may be the same, and even though the causes arose out of the same transaction.

Accordingly, res judicata does not bar the instant action. Thus, the trial court’s denial of the Guarantors’ motion for summary judgment was correct.

Case No. A10A1108

2. In this cross-appeal, the Bank appeals the denial of its motion for summary judgment on its breach of contract claim and its claim for attorney fees. In opposition to the Bank’s motion, the Guarantors argue that they were fraudulently induced to execute the Guaranties, rendering them void and unenforceable. The Guarantors also maintain that the Bank breached the duty of good faith and fair dealing that is implied in every contract under Florida law. The trial court denied the Bank’s motion for summary judgment, concluding that Florida law governed the Guaranties, and that under Florida law, the Guarantors raised genuine issues of material fact that precluded the entry of summary judgment in the Bank’s favor. As explained in detail below, we conclude that the trial court erred.

3. In its first enumeration of error, the Bank argues that the trial court erred when it applied Florida law to the Guarantors’ defenses and counterclaims related to the Guaranties, which sound in tort rather than contract. We agree.

The choice-of-law provision in the Guaranties provided as follows: “This Guaranty shall be governed by the laws of Florida.” Citing Young v. W. S. Badcock Corp., the Bank argues that this provision applied only to enforcing the contractual duties and did not govern the tort defenses. We agree with the Bank that Young demands that conclusion.

In Young, the dealership agreement at issue contained the following choice-of-law provision: “This Agreement and the terms hereof shall be governed by and construed in accordance with the laws of the State of Florida.” The plaintiffs in that case filed an action for fraudulent misrepresentation, asserting that the defendant misrepresented amounts owing to plaintiffs under the dealership agreement and made other fraudulent charges not contemplated by the agreement. In determining whether the agreement’s choice-of-law provision applied to the plaintiffs’ tort claim, we emphasized the importance of the language used in the provision. Specifically, we concluded that the plaintiffs’ tort claim was not governed by the choice-of-law provision in the agreement, because the provision “[did] not state that any and all claims arising out of the relationship between the parties shall be governed by Florida law.” Because the provision in Young limited itself to the terms of the agreement, Georgia law applied to the fraudulent representation claim because the representations allegedly occurred in Georgia.

The same result is warranted here because the choice-of-law provision here is similar to that at issue in Young. The Guaranties state only that “[t]his Guaranty” is to be governed by Florida law. Since the alleged misrepresentations in the instant case, which are discussed below, occurred in Georgia, Georgia law governs the validity of the Guarantors’ defenses sounding in tort. Therefore, we now turn to the issue of whether the Bank was entitled to summary judgment under Georgia law.

4. The Bank argues that the trial court erred in holding that a triable issue of fact exists regarding the Guarantors’ claim that they were fraudulently induced to sign the Guaranties. We agree.

Sapphire originally had four members, the three Guarantors and Riverbrooke. The Guarantors claim that they were fraudulently induced to sign the Guaranties based on alleged statements made by Paul Williams, a loan officer employed by the Bank, about the creditworthiness of Hornyak and Chandler, who owned and operated Riverbrooke. According to the Guarantors, Williams told them that Chandler and Hornyak “were the Bank’s strongest borrowers,” “were loved at the Bank,” and “were good people to do business with ; that the project was a “great deal”; and that the property that secured the loan had been appraised at $48.2 million. The Guarantors maintain that these representations were false. Even assuming the Guarantors are correct, however, they cannot show that they were fraudulently induced to enter the Guaranties under Georgia law.

“The tort of fraud has five elements: a false representation by a defendant, scienter, intention to induce the plaintiff to act or refrain from acting, justifiable reliance by plaintiff, and damage to plaintiff.” In the instant case, the Guarantors’ defense fails because they cannot establish the third element, justifiable reliance. It is well settled that “a bank owes no legal duty to act as a customer’s legal or financial advisor.”

[0]ur law does not create a confidential or fiduciary relationship between a financial institution and those with whom it deals. . . . Further, no confidential relationship exists between a bank and its customers merely because the customer had advised with, relied upon, and trusted the bankers in the past. There is, moreover, particularly no confidential relationship between lender and borrower or mortgagee and mortgagor for they are creditor and debtor with clearly opposite interests. The mere fact that one reposes trust and confidence in another does not create a confidential relationship.

“A party can be held liable for fraudulently concealing a material fact only if the party has a duty to disclose or communicate the fact.” Here, the Bank had no such duty, because “a bank has no duty to advise a party who is contemplating serving as the guarantor for a bank loan about problems with the viability of the business venture financed by the loan.” Therefore, because there was no confidential relationship between the Bank and the Guarantors, they could not justifiably rely on the Bank’s statements.

Moreover, “where the representation consists of general commendations or mere expressions of opinion, the party to whom it is made is not justified in relying upon it and assuming it to be true; he is bound to make inquiry and examination for himself so as to ascertain the truth.” The statements alleged to have been made by Williams concerning Hornyak’s and Chandler’s financial situations were nothing more than mere “expressions of opinion, general commendations, and sales puffing.” The Guarantors and Hornyak and Chandler were business partners in Sapphire. Therefore, “[they] were in at least as good a position as the [Bank] to analyze [Hornyak’s and Chandler’s] financial condition, and their failure to investigate the matter showed a lack of due diligence.”

Similarly, Williams’ alleged statement about the appraised value of the Alabama property does not establish justifiable reliance. We have held that an appraisal is simply an opinion of the value of real estate, upon which a buyer is not entitled to rely. Had the Guarantors wished to obtain their own appraisal, they could have done so.

In order for a genuine issue of material fact to exist as to justifiable reliance, there must be some evidence that the plaintiff exercised his duty of due diligence to ascertain the truth of the matter and to avoid damage. Although questions of due diligence often must be resolved by the trier of fact, that is not always the case. A party may fail to exercise due diligence as a matter of law.

It follows then that “[f]raud cannot be the basis of an action if it appears that the party alleging the fraud had equal and ample opportunity to prevent it and yet made it possible through the failure to exercise due diligence.” Blind reliance precludes a fraud claim as a matter of law.

The record shows that prior to any communication with the Bank about the project, two of the Guarantors, Burgess and McLeroy, met with Chandler and Hornyak to discuss the project upon Hornyak’s invitation. Burgess testified that at that meeting, he and several others received a copy of the pro forma on the project and saw the appraisal of the real property. Additionally, he recalled that the potential investors were told that they would not incur any expense to participate in the project but would earn approximately 12 percent of $53 million. McLeroy also testified that he attended the meeting after receiving a call from Hornyak and that he was shown several documents, including the pro forma and appraisal. Baxter, the third appellee, testified that he had no communications with Hornyak or Williams until after he had already signed the Guaranty. Accordingly, as there was no confidential relationship between the Guarantors and the Bank, and because the Guarantors failed to exercise due diligence to protect their own interests, the Guarantors’ defense that the Bank fraudulently induced them to enter into the Guaranties fails.

The Guarantors argue that granting summary judgment in the Bank’s favor would be premature because the Guarantors filed a counterclaim for setoff and recoupment to recover the following damages: (1) the difference between the actual value of the property and the represented value; (2) the difference between the actual value of the project and the value it would have had if the Bank’s misrepresentations had been true; (3) costs, fees, and interest paid to the Bank; (4) costs, fees, and expenses incurred due to the Bank’s wrongful acts. This argument lacks merit.

“Under Georgia law, both setoff and recoupment are considered counterclaims. ”

A set-off allows the defendant to set off a debt owed him by the plaintiff against the claim of the plaintiff. A recoupment is a right of the defendant to have a deduction from the amount of the plaintiffs damages because the plaintiff has not complied with the cross-obligations or independent covenants arising under the contract being sued upon.

There can be no setoff or recoupment here because there is no claim that the Bank owed any debt to the Guarantors. Additionally, any argument that the Bank breached a cross-obligation or independent covenant under the Guaranties is based on the defense of fraudulent inducement, which, as discussed above, lacks merit.

Decided October 15, 2010

Reconsideration denied December 2, 2010

Ichter Thomas, Cary Ichter, S. Renee Huskey, for appellants.

Weissman, Nowack, Curry & Wilco, Leigh M. Wilco, McGuire Woods, Robert J. Waddell, Jr., Charles J. Myers, for appellees.

In sum, because the Guarantors cannot establish the elements necessary to substantiate their defense of fraudulent inducement, the trial court erred in denying the Bank’s motion for summary judgment. Accordingly, we remand the case to the trial court for proceedings consistent with this opinion, specifically to determine the amount owing to the Bank pursuant to the Guaranties.

5. In light of our holding in Division 3, we need not address the Bank’s remaining enumerations of error as they relate to other theories upon which the trial court relied to deny the motion for summary judgment, all of which ultimately depend upon a finding that a genuine issue of fact existed as to whether the Bank committed fraud.

Judgment affirmed in Case No. A10A1107. Judgment reversed in Case No. A10A11081

Smith, P. J., and Adams, J., concur.

        Dabbs v. Key Equip. Finance, 303 Ga. App. 570 (694 SE2d 161) (2010), citing Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

       Riverbrooke, also a member of Sapphire, purchased the property from the Sapphire Beach Condominium Association. Riverbrooke was owned and operated by Steven Hornyak and George F. Chandler, who developed the plan for the damaged property and sought financing from the Bank.

       OCGA § 9-12-40. See also Karan, Inc. v. Auto-Owners Ins. Co., 280 Ga. 545, 546 (629 SE2d 260) (2006) (“Res judicata prevents a plaintiff from instituting a second complaint against a defendant on a claim that has already been brought, after having previously been adjudged not to be entitled to the recovery sought on that claim.”) (punctuation omitted).

        Lawson v. Watkins, 261 Ga. 147, 148 (1) (401 SE2d 719) (1991).

       (Citations omitted.) Fowler v. Vineyard, 261 Ga. 454, 455-456 (1) (405 SE2d 678) (1991).

       235 Ga. App. 540 (509 SE2d 399) (1998).

       279 Ga. App. 567 (631 SE2d 769) (2006).

        Flagg, supra at 541.

       Id.

       Id.

       Id. at 542-543 (1).

       Supra.

       Id. at 569 (2).

       Id. at 570 (2).

       Supra.

       Supra.

        Flagg, supra at 542 (1); Green, supra at 569 (2).

       (Citations, punctuation and emphasis omitted.) Morrison v. Morrison, 284 Ga. 112, 115-116 (3) (663 SE2d 714) (2008).

       222 Ga. App. 218 (474 SE2d 87) (1996).

       (Punctuation omitted.) Id. at 218-219 (1).

       Id. at 218.

       Id. at 219 (1).

       Id. See also Symeon C. Symeonides, “Choice of Law in the American Courts in 1996,” 45 Am. J. Comp. L. 447, 489 (V) (1) (1997) (whether noncontractual issues, such as claims arising in tort, are governed by the law of the state named in the choice-of-law provision depends upon the breadth of the language used in the provision).

       (Citation, punctuation and footnote omitted.) Serchion v. Capstone Partners, Inc., 298 Ga. App. 73, 76-77 (2) (679 SE2d 40) (2009).

        First Union Nat. Bank of Ga. v. Gurley, 208 Ga. App. 647, 648 (1) (431 SE2d 379) (1993).

       (Citations and punctuation omitted.) Arp v. United Community Bank, 272 Ga. App. 331, 334 (3) (612 SE2d 534) (2005). Accord Hicks v. Sumter Bank & Trust Co., 269 Ga. App. 524, 527 (1), n. 5 (604 SE2d 594) (2004) (“arm’s-length business transaction” does not involve confidential relationship) (citations omitted).

       (Citations omitted.) Lilliston v. Regions Bank, 288 Ga. App. 241, 245 (2) (653 SE2d 306) (2007).

       (Citations omitted.) Id. at 244 (1). See also Gurley, supra at 649-650 (1) (bank had no duty to communicate to guarantor “the various obstacles facing the successful completion of the project”) (citation and punctuation omitted).

       (Punctuation and footnote omitted.) Hicks, supra at 527 (1).

       (Citations omitted.) U-Haul Co. of Western Ga. v. Dillard Paper Co., 169 Ga. App. 280, 281 (312 SE2d 618) (1983) (statements of opinion concerning building’s condition did not support fraud claim). Accord Reeves v. Habersham Bank, 254 Ga. 615, 617 (1) (331 SE2d 589) (1985) (statements regarding purchaser’s financial condition); Hicks, supra (statements that property was ready for development).

       (Citations omitted.) Reeves, supra.

        Coote v. Branch Banking & Trust Co., 292 Ga. App. 164, 166 (2) (664 SE2d 554) (2008) (even where the buyer was advised not to obtain his own appraisal, he could not reasonably rely on the bank’s appraisal because there was no confidential relationship between them).

       (Punctuation and footnote omitted.) Dyer v. Honea, 252 Ga. App. 735, 737 (1) (557 SE2d 20) (2001).

       (Citation and punctuation omitted.) Ledford v. Smith, 274 Ga. App. 714, 726 (3) (618 SE2d 627) (2005).

        Dyer, supra at 738 (1).

       (Footnote omitted.) Hill v. Green Tree Servicing, 280 Ga. App. 151, 154 (2) (633 SE2d 451) (2006).

       (Footnotes omitted.) Automated Print v. Edgar, 288 Ga. App. 326, 330 (2) (654 SE2d 413) (2007). Accord Imex Intl. v. Wires Engineering, 261 Ga. App. 329, 339 (8) (583 SE2d 117) (2003).

       See Automated Print, supra.

       Id.

       The Bank did not enumerate as error the trial court’s ruling that the Bank was not entitled to attorney fees at the statutory rate provided by OCGA § 13-1-11; thus, the issue of attorney fees is resolved in the Guarantors’ favor and will not be in dispute on remand.


source: Caselaw Access Project

author: Johnson, Judge.

license: Public Domain

text:
    A10A2347.
    SARKAR v. CACV OF COLORADO, LLC.
    (704 SE2d 438)
   Johnson, Judge.

Ali A. Sarkar appeals from a trial court order that denied his motion to set aside a judgment enforcing an arbitration award. Sarkar appeals pro se, claiming that the trial court erred because he “did not have any credit card . . . with the account number” that CACV of Colorado, LLC claimed was in default and that “[n]o evidence of the proof of debt was provided.”

The record shows that on April 11, 2008, an arbitration award was entered against Ali for approximately $4,700, apparently based upon a default under a credit card agreement. The trial court found that Ali failed to make an application to vacate the award within three months after delivery, and it issued an order confirming the award on June 18, 2009. On June 9, 2010, Ali filed a motion to set aside the judgment, claiming that he never entered into a valid agreement to arbitrate. On June 16, 2010, the trial court issued an order denying Ali’s motion to set aside, and it is from this motion that Ali appeals.

Decided November 16, 2010

Reconsideration denied December 2, 2010.

Ali A. Sarkar, pro se.

James T. Freaney, for appellee.

While Ali now claims that errors exist in the findings of fact made by the arbitrator and confirmed by the trial court, he has failed to support such claim with a transcript of the hearings below or any other evidence of record. “The absence of a transcript precludes review of claims of error committed by the arbitrator, thereby necessitating an affirmance of the superior court’s refusal to vacate the arbitration award.” As a result, we cannot conclude that the arbitrator manifestly abused its discretion, and so we likewise cannot conclude that the trial court erred in confirming the arbitration award or in denying Ali’s motion to set aside the judgment.

Judgment affirmed.

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

       See OCGA § 9-9-13 (a).

       (Citation and punctuation omitted.) Ordner Constr. Co. v. Parkside Crossing, 300, 276 Ga. App. 753, 754 (1) (624 SE2d 206) (2005).

       See id.


author: PHIPPS, Presiding Judge.

text:
    A10A1388, A10A1389.
    WORTHY v. THE STATE (two cases).
    (704 SE2d 808)
   PHIPPS, Presiding Judge.

A Lamar County grand jury returned an indictment against Vernon Worthy for false imprisonment, aggravated assault, and pointing a gun at another. His case is before us on interlocutory appeal of the trial court’s denial of several motions, as follows. Worthy, an officer with the Morehouse College Police Department, filed a motion to quash the indictment, arguing that he was denied his right as a police officer to be present and to make a statement when the evidence against him was presented to the grand jury. Later, Worthy filed another motion to quash the indictment, this time challenging the racial composition of the grand jury list. Worthy subsequently filed a plea in abatement, arguing that several of the jury commissioners and the clerk of the board of jury commissioners had failed to take the proper oaths. And he filed a supplement to the plea in abatement, arguing that one of the jury commissioners was not qualified. In Case No. A10A1388, Worthy appeals from the trial court’s denials of his motions to quash and the plea in abatement. In Case No. A10A1389, he appeals from the denial of his supplement to the plea in abatement. For the reasons that follow, we affirm.

Case No. A10A1388

1. Worthy contends that the trial court erred in finding that the indictment was valid because at least one jury commissioner and the clerk of the board of jury commissioners did not take and subscribe to the oaths of office required by OCGA §§ 15-12-22 and 15-12-23.

(a) Oath of jury commissioners.

OCGA § 15-12-22 provides:

Jury commissioners, before entering on the discharge of their duties, shall take and subscribe before the judge of the probate court of their respective counties the following oath, which shall be entered on the minutes of the probate court:
“You shall faithfully and impartially discharge the duty of jury commissioners for the County of_, in accordance with the Constitution of this state, to the best of your skill and knowledge; and the deliberations and counsel of the jury commissioners, while in the discharge of their duties, you shall forever keep secret and inviolate, unless called upon to give evidence thereof in some court of justice or other legal tribunal of this state. So help you God.”

The record shows that George Barrett, one of the jury commissioners serving when Worthy was indicted, did not take an oath subscribing to the exact language set forth in OCGA § 15-12-22. Specifically, Barrett’s oath did not include the words, “and the deliberations and counsel of the jury commissioners.”

(b) Oath of the clerk of the hoard of jury commissioners.

OCGA § 15-12-23 (a) provides, in pertinent part, that the clerk of the superior court shall serve as the clerk of the board of jury commissioners, and that:

Before entering upon the performance of his duties as clerk of the board [of jury commissioners], [the clerk] shall take an oath before the judge of the probate court to discharge faithfully his duties as required by law and never to divulge any of the proceedings and deliberations of the jury commissioners unless compelled to testify thereof in some court in this state.

Robert F. Abbott, the clerk of superior court, in taking the oath as clerk of the board of jury commissioners, subscribed to an oath that varied from that described in OCGA § 15-12-23 in the following respects: Instead of swearing to discharge his duties “faithfully,” Abbott swore to discharge his duties “to the best of [his] skill and knowledge”; the statutory language “as required by law” was replaced by “in accordance with the Constitution of this State”; and instead of swearing to never divulge any of the proceedings and deliberations of the jury commissioners unless compelled to testify thereof in some court “in this state,” Abbott swore never to do so unless compelled to testify thereof in some court “of justice or other legal tribunal of this state.” In addition, Abbott took the oath before a superior court judge rather than a probate court judge. At the hearing on the motions, the court announced that new oaths would be prepared and administered by the probate court judge that day or in the near future; later in the hearing, the one jury commissioner who testified (Barrett) affirmed that he signed a corrected oath that same day.

(c) Effect of non-compliance. OCGA § 15-12-22 requires the taking of and subscribing to an oath containing specific language, but OCGA § 15-12-23 does not, and neither statute provides for a remedy when there has not been compliance with its provisions. For the reasons discussed below, we hold that the oath subscribed to by commissioner Barrett did not comply with OCGA § 15-12-22 and thus was not a proper oath; however, Barrett’s official acts as a jury commissioner were valid. And while the oath subscribed to by the clerk of the board of jury commissioners, Abbott, did not meet the requirements set out in OCGA § 15-12-23 and thus was not a proper oath, the official acts of the jury commissioners were nonetheless valid.

Generally, in deciding whether the failure of the clerk of the board of jury commissioners or jury commissioners to take and subscribe to the oath of office as provided by statute constituted reversible error, our appellate courts have considered whether there was harm. For example, in Lawson v. State, the Supreme Court of Georgia found harmless error in the taking of an improper oath by the clerk of the board of jury commissioners where the appellant did not dispute that the board of jury commissioners properly entered into its duties and followed statutory guidelines in selecting the jury lists, and there was no denial of due process or violation of the appellant’s right to trial by jury. Similarly, in Lopez v. State, this Court held that a challenge to the jury array based on the clerk of the board of jury commissioners not having taken the proper oath would have lacked merit, because there was no showing that, as a result of the lack of a proper oath, the jury commissioners had failed to properly enter into their duties and to follow statutory guidelines in selecting the jury lists. As discussed further in Division 2, Worthy has not shown that, as a result of improper oaths, the jury commissioners failed to properly enter into their duties or to follow statutory guidelines in selecting the jury lists. Thus, the error in the clerk’s oath was harmless.

Likewise, where jury commissioners took an improper oath, we held that even “if [the jury commissioners] were not de jure officers, their acts as de facto officers were not invalid. . . . [T]he official acts of an officer are none the less valid for his omission to take and file the oath, unless in cases when so specifically declared.” Thus, the jury commissioner’s official acts were valid despite omissions in the oath as originally taken and subscribed.

The fact that Worthy made his challenge before trial does not distinguish this case in any meaningful way from those cited above. Even where defendants challenged before trial the clerk’s or jury commissioners’ ineligibility for failure to take or subscribe to a proper oath, and their unsuccessful challenges were followed by trials and convictions, our courts have held that the officials’ acts were not invalid. And in a case in which the appellant raised the improper oath issue after trial, we held that a pre-trial challenge to the indictment based on that issue would have lacked merit absent a showing of harm. Worthy has shown no basis for reversal of the denial of his plea in abatement.

2. Worthy contends that the trial court erred in finding that the indictment was valid when African-Americans were overrepresented on the grand jury list by 6.429 percent in relation to the number of such persons in the community. Worthy cites OCGA § 15-12-40 (a) (1), which provides that a grand jury list must contain a “fairly representative cross[-]section of the intelligent and upright citizens of the county,” and he adds that his right to a representative jury is guaranteed by the Constitution of the United States.

A defendant bears the burden, under a Fourteenth Amendment equal protection claim, a Sixth Amendment fair cross-section claim, and a claim under OCGA § 15-12-40, of making a prima facie showing of under-representation of a particular group of persons. In this regard, the Constitution requires only that the state not deliberately and systematically exclude identifiable and distinct groups from jury lists; hence, to prevail on a constitutional challenge to the composition of the grand or petit juries in his case, a criminal defendant must establish prima facie that a distinct and identifiable group in the community is substantially under-represented. Once the defendant makes a prima facie case of discrimination, the burden of going forward then shifts to the state to explain the figures in a non-discriminatory way. “A violation of OCGA § 15-12-40 is proven by showing a wide absolute disparity between the percentage of the group in the population and its percentage in the jury pool.” Generally speaking, an absolute disparity between the percentage of a group in the population and its percentage on the jury list of less than five percent is almost always constitutional; an absolute disparity between five and ten percent is usually constitutional; and an absolute disparity of over ten percent is probably unconstitutional. The extent of under-representation is a question of fact to be determined by the trial court, and the effect of the disparity, once its extent has been determined, is a question of law; with mixed questions of facts and law, the appellate court accepts the trial court’s findings on disputed facts unless clearly erroneous, but independently applies the legal principles to the facts.

Notably, Worthy’s asserted error states that the indictment was invalid because the grand jury list was ocer-represented by African-Americans. It does not include a complaint of the under-representation of any group, though Worthy mentions in the argument section of his brief that Caucasians were under-represented in the pool by 4.839 percent. It is clear from his enumeration of error and arguments in support thereof that Worthy’s claim of error was not based on under-representation of Caucasians. Even if it had been, such an argument presents no basis for reversal because an absolute disparity of less than five percent is almost always constitutional, and Worthy has shown no reason why this general rule should not apply in his case.

Assuming, arguendo, that the laws pertaining to under-representation of distinctive groups on jury lists also apply to the over-representation of such groups, Worthy’s argument is still without merit. The absolute disparity in over-representation on the grand jury list of 6.429 percent of African-Americans falls within a range that generally meets constitutional requirements. Worthy has not met his burden of showing that this disparity violates the Constitution or OCGA § 15-12-40.

Worthy’s reliance on Rule II of Georgia’s Unified Appeal Procedure (“UAP”) is misplaced. That rule, in pertinent part, provides that significant under-representation of a cognizable group shall be corrected prior to trial, and that the difference between the group’s representation on the grand jury list and its population in the county must be less than five percent. But the UAP applies only in cases where the death penalty is sought, and this is not such a case. Even if the rule were applicable, Worthy has not shown under-representation of any group by more than five percent. The trial court did not err in denying Worthy s motion to quash the indictment based on the racial composition of the grand jury list.

3. Worthy states that he was a law enforcement officer, and that although he was off-duty at the time of the alleged crimes, he believed he was effecting a lawful arrest; thus, he claims, the crimes alleged would have been committed while in the scope of his official duties and OCGA § 17-7-52 (a) applies to this case. Therefore, Worthy contends that the trial court erred in finding that he was not entitled to be present and make a statement when the case was presented to the grand jury, and that his motion to quash the indictment on that ground was erroneously denied.

OCGA § 17-7-52 (a) provides, in pertinent part, that before an indictment is returned by a grand jury against a peace officer charged with a crime which is alleged to have occurred while he was in the performance of his duties, the officer shall be afforded the rights provided in OCGA § 45-11-4; those rights include, inter alia, being present during the presentation of evidence on the proposed indictment and making a sworn statement if desired at the conclusion of the presentation.

Worthy did not testify at the hearing on the motions to quash the indictment, but counsel for Worthy made the following proffer: At the time of the charged incident, Worthy was Chief of the Morehouse College Police Department, and was EO.S.T.-certified as a peace officer. Worthy was in Lamar County, on land he leased, tending to food plots and attempting to prevent poaching. Johnny Goodrum owned property nearby and had given Worthy permission to hunt on his land. As Worthy was leaving his leased land, he unknowingly walked onto Goodrum’s land. He encountered a man who was wearing camouflage clothing and a mask, and who had a rifle. The man asked Worthy what he was doing. Worthy, who believed he was still on land he leased, identified himself as a police officer and ordered the man to put down his weapon and get on his knees. Although the man had permission to be on Goodrum’s property, Worthy believed the man was trespassing on the land Worthy leased.

Worthy’s attorney conceded at the hearing that Worthy “was outside his jurisdiction of Morehouse College,” but stated that Worthy believed he “was carrying out his duties as a peace officer of the State of Georgia when he [placed the man] under arrest for trespassing because he had probable cause to believe that he had committed a crime in his presence.”

In denying Worthy’s motion to quash, the trial court specifically found, based on the facts as alleged by counsel, that Worthy was not performing his duties as a Morehouse College police officer when the alleged acts occurred in Lamar County, and that he was engaged instead in leisure activity. When the evidence is uncontroverted and no issues of witness credibility are presented, we review de novo the trial court’s application of the law to undisputed facts.

Moreover, OCGA § 17-7-52 (a) applies where a peace officer has been charged with a crime “which is alleged to have occurred while he or she was in the performance of his or her duties.” The indictment did not allege that the crimes occurred while Worthy was performing his duties.

“[OCGA § 17-7-52] was intended to afford to police officers the same procedural protection afforded to other public officials as to accusations arising from the performance or non-performance of their official duties.” Statutes such as OCGA § 45-11-4 and OCGA § 45-15-11 (involving public officials) “are narrowly drawn and relate only to misconduct in public office.”

OCGA § 20-8-2 provides:

On the campus of an educational facility, a campus policeman employed by such educational facility who is certified in accordance with Code Section 20-8-3 and when authorized by the governing body or authority of such educational facility shall have the same law enforcement powers, including the power of arrest, as a law enforcement officer of the local government with police jurisdiction over such campus.

Campus is defined, in part, as the grounds and buildings owned by the college and any public or private property within 500 yards thereof. Worthy was not on campus as defined by the statute. Although Worthy states that “he had a duty to arrest a person whom he believed to be violating the law in his presence,” he has cited no authority (legal, job-related, or otherwise) supporting that contention. The record does not show that Worthy’s official duties as a campus police officer included the commission of the acts at issue, while he was off duty and engaged in leisure activities outside of his jurisdiction. Worthy’s reliance on State v. Allen as requiring a different result is misplaced, as the court in that case did not address the issue of whether the defendant was performing his official duties as a police officer when the charged incidents occurred (because that issue had already been decided by the trial court and was not appealed). Worthy’s claim of error is without merit.

Case No. A10A1389

4. Worthy contends that the trial court erred in denying his supplement to the plea in abatement because jury commissioner Barrett: (a) admitted that he had committed election fraud and was, therefore, not a “discreet” person as required by OCGA § 15-12-20 (a), capable of selecting jurors who were “experienced, upright, and intelligent” as defined by OCGA § 15-12-60 (a); and (b) could not serve as a jury commissioner because he also served as a bailiff in superior court.

OCGA § 15-12-20 (a) provides, in pertinent part, that members of the board of jury commissioners “shall be discreet persons who are not practicing attorneys at law nor county officers.” OCGA § 15-12-60 (a) provides, in pertinent part, that all citizens “who are the most experienced, upright, and intelligent persons are qualified” to serve as grand jurors. OCGA § 15-12-60 (b) provides that the following persons are incompetent to serve as grand jurors: (1) any person who holds any elective office in state or local government or has held any such office within two years preceding the time of service as a grand juror; and (2) any person who has been convicted of a felony and has not been pardoned or had his or her civil rights restored.

(a) The record shows that Barrett was reprimanded by the State Election Board and assessed a fine for assisting voters with absentee ballots and failing to sign the ballot envelopes indicating that he had provided such assistance. He signed a consent order with the State Election Board; he was not convicted of a crime.

The only case Worthy cites to support his argument that Barrett’s involvement in the election fraud matter disqualified him from serving as a jury commissioner, Bashlor v. Bacon, is distinguishable. In that mandamus action, the Court was concerned with whether jury commissioners had performed their duties as contemplated by law when they moved to exclude all members of a particular racial group from the jury lists. The Court held that the commissioners had acted unlawfully because the acts were not made by a quorum of qualified commissioners, and the commissioners had grossly abused their discretion in acting to exclude honorable, upright and intelligent persons from the jury lists. Worthy has cited no authority that supports his position that under circumstances such as those present here a jury commissioner is “not a discreet person.”

Decided November 4, 2010 —

Reconsideration denied December 3, 2010.

Smith, Welch & Brittain, Pandora E. Palmer, Katherine E. Fagan, Joseph S. Key, for appellant.

Richard G. Milam, District Attorney, Jason S. Johnston, Assistant District Attorney, for appellee.

Worthy also argues that Barrett’s lack of capacity to select grand jurors who meet the requirements of OCGA § 15-12-60 was demonstrated by the fact that he selected a grand juror, Eldridge Harris, who had committed election fraud. Harris was reprimanded by the State Election Board and assessed a fine for assisting voters with absentee ballots and failing to sign the ballot envelopes as required by law. Harris was never convicted (or charged with) a crime. Worthy has not shown that Barrett was incapable of selecting qualified jurors.

(b) Because a bailiff is not a county officer within the meaning of OCGA § 15-12-20, Barrett was not disqualified based on that statute.

In any event, even if a jury commissioner were ineligible to hold the office of jury commissioner, if he was appointed and acted therein, he was a jury commissioner de facto, and the acts of the board were valid and cannot be collaterally attacked on the grounds of his incompetence to hold that office. A de facto jury commissioner’s acts are not void as to the public and third parties, and they cannot be invalidated in a proceeding to which he is not a party.

Judgments affirmed.

Miller, C. J., and Johnson, J., concur.

       Worthy alleged in the plea in abatement that the oath of several jury commissioners was improper, but produced evidence as to only one jury commissioner, George Barrett.

       Because no evidence was presented to the trial court to support Worthy’s claim that the oath taken by any other jury commissioners was also improper, that issue is abandoned.

       242 Ga. 744 (251 SE2d 304) (1978).

       Id. at 744-745 (1) (b).

       260 Ga. App. 713 (580 SE2d 668) (2003).

       Id. at 717 (4).

       See Lawson, supra; Lopez, supra.

        Rosenblatt v. State, 2 Ga. App. 649, 651 (58 SE 1107) (1907) (citations and punctuation omitted).

       See Wright v. State, 124 Ga. 84, 85 (52 SE 146) (1905); Chadwick v. State, 176 Ga. App. 296, 297 (1) (335 SE2d 674) (1985); Rosenblatt, supra.

        Lopez, supra.

       Based on the latest official United States Census (2000) data available at the time the grand jury list from which the grand jury was selected that returned Worthy’s indictment was certified, African-Americans made up 28.93 percent of the over-18 population of Lamar County, and 35.36 percent of the grand jury fist.

        Ramirez v. State, 276 Ga. 158, 162 (2) (575 SE2d 462) (2003).

        Humphreys v. State, 287 Ga. 63, 67 (2) (c) (694 SE2d 316) (2010).

        Cochran v. State, 155 Ga. App. 418, 420 (271 SE2d 864) (1980).

        Morrow v. State, 272 Ga. 691, 693 (1) (532 SE2d 78) (2000) (citations omitted).

       Id. at 692 (1).

        Smith v. State, 275 Ga. 715, 720 (4) (571 SE2d 740) (2002).

       The grand jury that returned Worthy’s indictment was selected from a grand jury list certified in February 2008. Based on the latest official United States Census (2000) data available at the time of that certification, Caucasians made up 69.48 percent of the over-18 population of Lamar County, and 64.64 percent of the grand jury list.

       See Smith, supra at 716 (1); Morrow, supra at 692 (1).

       Compare Cochran, supra (54 percent disparity was amply significant to authorize an inquiry into whether an opportunity for discrimination existed from the source of the jury list).

       See Edwards v. State, 281 Ga. 108, 109 (636 SE2d 508) (2006) (trial court correctly found that under-representation of cognizable group by 6.04 percent is generally not unconstitutional); Cook v. State, 255 Ga. 565, 571 (11) (340 SE2d 843) (1986).

       See Edwards, supra; Morrow, supra at 695 (1).

       UAP Rule II (C) (6) (b), (E).

       See OCGA § 17-10-36; Sliger v. State, 248 Ga. 316, 321 (6) (282 SE2d 291) (1981).

       OCGA § 45-11-4 (g).

        State v. Hammang, 249 Ga. App. 811 (549 SE2d 440) (2001).

        Mize v. State, 152 Ga. App. 190, 191(1) (262 SE2d 492) (1979) (citing former Code Ann. § 27-706 (now OCGA § 17-7-52), § 89-9908 (now OCGA § 45-11-4), and § 40-1617 (now OCGA § 45-15-11) (citation and punctuation omitted)); see State v. Smith, 286 Ga. 409, 411 (688 SE2d 348) (2010).

        Mize, supra at 191-192 (1) (citation omitted).

       OCGA § 20-8-1 (1).

       262 Ga. App. 724 (586 SE2d 378) (2003).

       Id. at 726 (1) (involving an off-duty Georgia State Patrol officer charged with offenses stemming from his response to his daughter’s call for assistance).

       168 Ga. 370 (147 SE 762) (1929).

       Id. at 374.

       Id. at 373-374.

       See Owens v. State, 251 Ga. 313, 319 (4) (305 SE2d 102) (1983).

       See Clark v. State, 255 Ga. 370, 374, n. 9 (338 SE2d 269) (1986).

        Chadwick, supra; see Clark, supra at 374.

       See Wright, supra; Chadwick, supra.


author: Barnes, Presiding Judge.

text:
    A10A1509.
    DEUTSCHE BANK NATIONAL TRUST COMPANY v. JP MORGAN CHASE BANK, N.A.
    (704 SE2d 823)
   Barnes, Presiding Judge.

JP Morgan Chase Bank, N.A. commenced this action against Deutsche Bank National Trust Company f/k/a Banker’s Trust Company after the two banks conducted competing foreclosure sales of certain real property in DeKalb County. JP Morgan’s claim of title to the property was predicated on a 2004 security deed, while Deutsche Bank’s claim of title was predicated on a 2001 security deed. The case turned on the legal effect of a notarized warranty deed recorded in 2003 and on whether JP Morgan was a bona fide purchaser for value based upon the warranty deed. The trial court granted summary judgment to JP Morgan, concluding that JP Morgan’s interest in the property was superior to and not subject to any interest held by Deutsche Bank. We conclude that the uncontroverted evidence shows that the 2003 warranty deed was not a forgery, but was signed by someone fraudulently assuming authority, and that JP Morgan was a bona fide purchaser for value entitled to take the property free of any outstanding security interest held by Deutsche Bank. Thus, we affirm.

To prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact, and that the undisputed facts, viewed in a light most favorable to the party opposing the motion, warrant judgment as a matter of law. Our review of a grant of summary judgment is de novo, and we view the evidence and all reasonable inferences drawn from it in the light most favorable to the nonmovant.

(Citations and punctuation omitted.) Consumer Solutions Financial Svcs. v. Heritage Bank, 300 Ga. App. 272 (684 SE2d 682) (2009). See OCGA § 9-11-56 (c); Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Guided by these principles, we turn to the record in the present case.

This case involves a dispute over the tract of real property located at 275 Haas Avenue, Atlanta, Georgia 30316 in DeKalb County (the “Property”). The Property was conveyed to Rebecca Diaz by warranty deed recorded in September 2001. On the same date, Diaz executed and recorded a security deed encumbering the Property in favor of People’s Choice Home Loan, Inc. (the “2001 Security Deed”). IndyMac Bank, F.S.B. acquired the 2001 Security Deed by assignment.

In July 2003, a notarized warranty deed from “Indy Mac Bank, F. S. B.” to Diaz was recorded which purported to reconvey the Property to Diaz in fee simple (the “Warranty Deed”). The Warranty Deed was executed by an individual named Pamela Whales, who identified herself as an assistant vice president of IndyMac. The Warranty Deed was attested by two witnesses, one of whom was a notary public.

The Property subsequently was deeded to various parties but ultimately to an owner who, in April 2004, executed and recorded a security deed encumbering the Property in favor of OneWorld Mortgage Corporation (the “2004 Security Deed”). Washington Mutual Bank F.A. acquired the 2004 Security Deed by assignment.

In June 2004, IndyMac assigned the 2001 Security Deed to Deutsche Bank. That same month, Deutsche Bank foreclosed upon the Property pursuant to the power of sale provision contained in the 2001 Security Deed. Deutsche Bank was the highest bidder at the foreclosure sale.

In December 2005, Washington Mutual also foreclosed upon the Property pursuant to the power of sale provision contained in the 2004 Security Deed. Washington Mutual was the highest bidder at the foreclosure sale. Thereafter, Washington Mutual was closed by the federal Office of Thrift Supervision, and JP Morgan succeeded to Washington Mutual’s interest in the Property under the terms of a purchase and assumption agreement.

Following the competing foreclosure sales, JP Morgan brought this action against Deutsche Bank for declaratory relief and attorney fees, alleging that its interest in the Property was superior to and not subject to any interest held by Deutsche Bank. Deutsche Bank answered and counterclaimed for a declaratory judgment that its interest in the Property was superior to and not subject to any interest held by JP Morgan.

The parties cross-moved for summary judgment on their declaratory judgment claims. JP Morgan argued that the 2001 Security Deed upon which Deutsche Bank predicated its interest in the Property had been canceled by the Warranty Deed as a matter of law. Alternatively, JP Morgan argued that the uncontroverted evidence showed that it qualified as a bona fide purchaser for value such that it was protected against any outstanding security interest in the Property held by Deutsche Bank. Deutsche Bank strongly disputed these arguments, contending that the Warranty Deed was facially irregular, had been forged, and failed to satisfy thé statutory requirements for cancellation of a security deed. The trial court granted summary judgment to JP Morgan and denied it to Deutsche Bank. Deutsche Bank now appeals the trial court’s grant of JP Morgan’s motion for summary judgment.

1. We affirm the trial court’s grant of summary judgment in favor of JP Morgan because the uncontroverted evidence shows that JP Morgan was afforded the protection of a bona fide purchaser for value, not subject to any outstanding security interest in the Property held by Deutsche Bank.

“To qualify as a bona fide purchaser for value without notice, a party must have neither actual nor constructive notice of the matter at issue.” (Citation and punctuation omitted.) Rolan v. Glass, 305 Ga. App. 217, 218 (1) (699 SE2d 428) (2010). “Notice sufficient to excite attention and put a party on inquiry shall be notice of everything to which it is afterwards found that such inquiry might have led.” (Citation and footnote omitted.) Whiten v. Murray, 267 Ga. App. 417, 421 (2) (599 SE2d 346) (2004). “A purchaser of land is charged with constructive notice of the contents of a recorded instrument within its chain of title.” (Citation, punctuation and footnote omitted.) VATACS Group v. HomeSide Lending, 276 Ga. App. 386, 391 (2) (623 SE2d 534) (2005). Furthermore, the grantee of a security interest in land and subsequent purchasers are entitled to rely upon a warranty deed that is regular on its face and duly recorded in ascertaining the chain of title. See Mabra v. Deutsche Bank &c., 277 Ga. App. 764, 767 (2) (627 SE2d 849) (2006), overruled in part on other grounds by Brock v. Yale Mtg. Corp., 287 Ga. 849, 852 (2) (700 SE2d 583) (2010).

On motion for summary judgment, JP Morgan argued that it was entitled to protection as a good faith purchaser because the notarized, recorded Warranty Deed purported to transfer the Property back to Diaz, thereby extinguishing the 2001 Security Deed, and there was no reason to suspect a defect in the Warranty Deed calling into question the chain of title. In contrast, Deutsche Bank argued that JP Morgan was not entitled to such protection because the Warranty Deed was facially irregular in that it misidentified the grantor and failed to comply with OCGA § 14-5-7 (b).

We agree with JP Morgan and reject the arguments raised by Deutsche Bank. The Warranty Deed was regular on its face and duly recorded. See OCGA § 44-5-30 (“A deed to lands must be in writing, signed by the maker, and attested by at least two witnesses.”). See also OCGA § 44-2-21 (a) (4), (b) (one of two required attesting witnesses may be a notary public). Also, the Warranty Deed on its face was executed in a manner that conformed with OCGA § 14-5-7 (b), which provides:

Instruments executed by a corporation releasing a security agreement, when signed by one officer of the corporation or by an individual designated by the officers of the corporation by proper resolution, without the necessity of the corporation’s seal being attached, shall be conclusive evidence that said officer signing is duly authorized to execute and deliver the same.

The Warranty Deed appeared to be executed by an assistant vice president of IndyMac, and thus by an “officer of the corporation.” Moreover, the only interest that IndyMac held in the Property prior to execution of the Warranty Deed was its security interest arising from the 2001 Security Deed, and reconveyance of the Property by way of a warranty deed was a proper way to release that security interest. See Clements v. Weaver, 301 Ga. App. 430, 434 (2) (687 SE2d 602) (2009) (grantor of quitclaim deed estopped from asserting any interest in property conveyed); Southeast Timberlands v. Haiseal Timber, 224 Ga. App. 98, 102 (479 SE2d 443) (1996) (physical precedent only). The Warranty Deed, therefore, facially complied with OCGA § 14-5-7 (b) and would appear to anyone searching the county records to serve as “conclusive evidence” that execution of the deed had been authorized by IndyMac.

(a) In opposing summary judgment, Deutsche Bank argued that the Warranty Deed was facially irregular because it improperly identified the grantor as “Indy Mac Bank, F. S. B.” rather than “IndyMac Bank, F. S. B.” But “a mere misnomer of a corporation in a written instrument... is not material or vital in its consequences, if the identity of the corporation intended is clear or can be ascertained by proof.” (Citation, punctuation and emphasis omitted.) Hawkins v. Turner, 166 Ga. App. 50, 51-52 (1) (303 SE2d 164) (1983). It cannot be said that the mere placement of an additional space in the corporate name (i.e., “Indy Mac” versus “IndyMac”) made the identity of the corporation unclear. As such, the misnomer did not render the Warranty Deed irregular on its face.

(b) Deutsche Bank also argued that the Warranty Deed failed to comply with OCGA § 14-5-7 (b) because the phrase “when signed by one officer of the corporation” should be construed as requiring the signature of the corporate president or vice president. “The cardinal rule of statutory construction requires that we look to the intention of the legislature. And in so doing, the literal meaning of the statute prevails unless such a construction would produce unreasonable or absurd consequences not contemplated by the legislature.” Johnson v. State, 267 Ga. 77, 78 (475 SE2d 595) (1996). The words of OCGA § 14-5-7 (b) are unambiguous and do not lead to an unreasonable or absurd result if taken literally: any officer of the corporation has authority to sign the instrument releasing the security interest. There is no basis from the language of the statute to limit that authority to a subset of corporate officers such as a president or vice president.

It is clear that the legislature knew how to specify such a limitation when it chose to do so. In OCGA § 14-5-7 (a), the legislature imposed a limitation on the specific types of corporate officers who could execute instruments for real estate conveyances other than those releasing security agreements. Consequently, we must presume that the legislature’s failure to include similar limiting language in OCGA § 14-5-7 (b) “was a matter of considered choice.” Transp. Ins. Co. v. El Chico Restaurants, 271 Ga. 774, 776 (524 SE2d 486) (1999).

Deutsche Bank further argued that the Warranty Deed failed to comply with OCGA § 14-5-7 (b) because the statute should be construed as requiring the instrument to expressly state that it was “releasing a security agreement,” and the Warranty Deed did not contain such express language. But nothing in the plain language of OCGA § 14-5-7 (b) imposes an express language requirement, “and the judicial branch is not empowered to engraft such a [requirement] on to what the legislature has enacted.” (Citation omitted.) Kaminer v. Canas, 282 Ga. 830, 835 (1) (653 SE2d 691) (2007).

(c) Given the facial regularity of the recorded Warranty Deed, there was no reason to suspect that it might be defective in some manner or that there might be a problem in the chain of title resulting from the deed. Nothing in the Warranty Deed would have excited attention or put a party on inquiry that the 2001 Security Deed might remain in full force and effect. Accordingly, the original grantee of the 2004 Security Deed (OneWorld Mortgage Corporation) was entitled to rely upon the facially regular Warranty Deed and was afforded the protection of a bona fide purchaser of the Property, entitled to take the Property free of the 2001 Security Deed. See generally Farris v. Nationsbanc Mtg. Corp., 268 Ga. 769, 771 (2) (493 SE2d 143) (1997) (“A bona fide purchaser for value is protected against outstanding interests in land of which the purchaser has no notice.”). Because OneWorld Mortgage Corporation had the status of a bona fide purchaser, subsequent holders of the 2004 Security Deed were likewise afforded that status, including Washington Mutual (now JP Morgan). See OCGA § 23-1-19 (“If one without notice sells to one with notice, the latter shall be protected[.]”); Murray v. Johnson, 222 Ga. 788, 789 (3) (152 SE2d 739) (1966); Thompson v. Randall, 173 Ga. 696, 701 (161 SE 377) (1931). Consequently, summary judgment was appropriate to JP Morgan on the issue of its status as a bona fide purchaser for value.

2. In opposing summary judgment, Deutsche Bank contended that even if JP Morgan qualified as a bona fide purchaser for value, there was a genuine issue of material fact over whether the Warranty Deed constituted a forgery, and thus over whether JP Morgan acquired good title to the Property. JP Morgan responded that the uncontroverted evidence showed that the Warranty Deed did not constitute a common law forgery, which occurs when someone signs another person’s name, since the Warranty Deed was signed by a person using her own name but who fraudulently assumed authority to act on behalf of IndyMac. JP Morgan further maintained that its status as a bona fide purchaser for value protected it against any fraud (rather than forgery) that might have been involved in the execution of the Warranty Deed.

The dispute between the parties centered on the assertions contained in the affidavit of Yolanda Farrow, which was filed by Deutsche Bank in opposition to summary judgment (the “Farrow Affidavit”). Farrow averred that she was a records keeper formerly employed by IndyMac and currently employed at IndyMac’s successor bank. Farrow further averred that her office maintained the IndyMac personnel records in an electronic database; that she had personal knowledge of the maintenance and upkeep of those records; and that she had personally researched and examined the records database for the person identified in the Warranty Deed as Pamela Whales, Assistant Vice President. Based upon her review of the records database, Farrow opined that to the best of her knowledge and belief, no one by that name was an employee or agent of IndyMac when the Warranty Deed was executed. Deutsche Bank maintained that the Farrow Affidavit served as circumstantial evidence creating a genuine issue of material fact over whether the Warranty Deed was a forgery.

[W]e have . . . long recognized that a forged deed is a nullity and vests no title in a grantee. As such, even a bona fide purchaser for value without notice of a forgery cannot acquire good title from a grantee in a forged deed, or those holding under such a grantee, because the grantee has no title to convey.

(Citations and punctuation omitted.) Brock, 287 Ga. at 852 (2). See also Second Refuge Church &c. v. Lollar, 282 Ga. 721, 726-727 (3) (653 SE2d 462) (2007). In contrast, a bona fide purchaser is protected against fraud in the execution or cancellation of a security deed of which he or she is without notice. See Murray, 222 Ga. at 789 (4).

We conclude that the Farrow Affidavit filed by Deutsche Bank was insufficient to raise a genuine issue of material fact as to whether the Warranty Deed was a forgery.

A recorded deed shall be admitted in evidence in any court without further proof unless the maker of the deed, one of his heirs, or the opposite party in the action files an affidavit that the deed is a forgery to the best of his knowledge and belief. Upon the filing of the affidavit, the genuineness of the alleged deed shall become an issue to be determined in the action.

OCGA § 44-2-23. While “forgery” is not defined in the statute, we have previously noted that the general principles espoused in the statute were “taken from the common law.” McArthur v. Morrison, 107 Ga. 796, 797 (34 SE 205) (1899). Furthermore, we favor the construction of a statute in a manner that is in conformity with the common law, rather than in derogation of it. See Intl. Indem. Co. v. Bakco Acceptance, 172 Ga. App. 28, 32 (2) (322 SE2d 78) (1984). Under the common law, a forgery occurs where one person signs the name of another person while holding out that signature to be the actual signature of the other person. See Barron v. State, 12 Ga. App. 342, 348 (77 SE 214) (1913) (“[T]o constitute forgery, the writing must purport to be the writing of another party than the person making it.”) (citation and punctuation omitted). See also Gilbert v. United States, 370 U. S. 650, 655-658 (II) (82 SC 1399, 8 LE2d 750) (1962) (discussing the common law of forgery); People v. Cunningham, 813 NE2d 891, 894-895 (N.Y. 2004) (same). On the other hand,

[w]here one executes an instrument purporting on its face to be executed by him as the agent of the principal, he is not guilty of forgery, although he has in fact no authority from such principal to execute the same. This is not the false making of the instrument, but merely a false and fraudulent assumption of authority.

(Citation and punctuation omitted.) Ga. Cas. &c. Co. v. Seaboard Surety Co., 210 FSupp. 644, 656-657 (N.D. Ga. 1962), aff'd, Seaboard Surety Co. v. Ga. Cas. &c. Co., 327 F2d 666 (5th Cir. 1964) (applying Georgia law). This common law distinction between forgery and a fraudulent assumption of authority has been discussed and applied in several Georgia cases. See Morgan v. State, 77 Ga. App. 164, 165 (48 SE2d 115) (1948); Samples v. Milton County Bank, 34 Ga. App. 248, 250 (1) (129 SE 170) (1925); Barron, 12 Ga. App. at 347-350.

In the present case, the Farrow Affidavit merely asserted that Whales, the individual who signed the Warranty Deed, was not an employee or agent of IndyMac. It is undisputed that the individual signing the Warranty Deed was in fact Whales. Hence, the Farrow Affidavit alleged a fraudulent assumption of authority by Whales, not a forgery, under the common law. See Georgia Cas. &c. Co., 210 FSupp. at 656-657; Morgan, 77 Ga. App. at 165; Samples, 34 Ga. App. at 250 (1); Barron, 12 Ga. App. at 347-350.

Arguing for a contrary conclusion, Deutsche Bank maintained that the cases applying the Georgia common law of forgery which have addressed the doctrine of a “fraudulent assumption of authority” have involved an admitted agent with some authority to act on behalf of its principal, but who exceeded that authority. Deutsche Bank asserted that the present case is thus distinguishable, since the Farrow Affidavit reflected that Whales had no authority to act as an agent of IndyMac in any capacity or under any circumstances.

We are unpersuaded. Nothing in the language or reasoning of the cases applying the doctrine of fraudulent assumption of authority suggests that the doctrine should be limited in the manner espoused by Deutsche Bank. See Georgia Cas. &c. Co., 210 FSupp. at 656-657; Morgan, 77 Ga. App. at 165; Samples, 34 Ga. App. at 250 (1); Barron, 12 Ga. App. at 347-350. Indeed, in Georgia Cas. &c. Co., 210 FSupp. at 652, 656-657, the district court did not hesitate to apply the doctrine, even though the court found that the individuals who had executed the corporate documents were “purely intruders” with “no contract of employment existing nor even in contemplation,” who lacked any authority whatsoever to act on behalf of the corporation as officers or otherwise.

For these reasons, the trial court correctly rejected Deutsche Bank’s contention that there was evidence that the Warranty Deed had been forged. Because the Farrow Affidavit at best showed a fraudulent assumption of authority by Whales as signatory to the Warranty Deed, JP Morgan, as a bona fide purchaser, was protected against the fraudulent actions alleged by Deutsche Bank. See Murray, 222 Ga. at 789 (4).

3. In opposing summary judgment, Deutsche Bank also maintained that the Warranty Deed could not cause the 2001 Security Deed to be canceled because the Warranty Deed failed to comply with the requirements of OCGA § 44-14-67 (b) (2). That statute provides in pertinent part:

(b) In the case of a deed to secure debt which applies to real property, in order to authorize the clerk of superior court to show the original instrument as canceled of record, there shall be presented for recording:
(2) A conveyance from the record holder of the security deed, which conveyance is in the form of a quitclaim deed or other form of deed suitable for recording and which refers to the original security deed[.]

According to Deutsche Bank, the Warranty Deed did not authorize the clerk of the superior court to cancel the 2001 Security Deed because the Warranty Deed made no express reference to the 2001 Security Deed, as required by this statute. As such, Deutsche Bank argued that, as a matter of law, the Warranty Deed could not effectuate the cancellation of the 2001 Security Deed and thereby extinguish Deutsche Bank’s interest in the Property.

Deutsche Bank’s argument was predicated on the false assumption that OCGA § 44-14-67 (b) provides the exclusive means for the cancellation or extinguishment of a security deed. But as previously noted, a bona fide purchaser for value is entitled to take property free of any outstanding security interest of which the purchaser had no actual or constructive notice. See Farris, 268 Ga. at 771 (2). And it would produce an anomalous result to interpret Georgia’s recording statutes, including OCGA § 44-14-67 (b), in a manner that would defeat the interests of a bona fide purchaser for value. See Lionheart Legend v. Norwest Bank Minnesota Nat. Assn., 253 Ga. App. 663, 667 (560 SE2d 120) (2002) (noting that Georgia’s recording acts are intended to protect bona fide purchasers for value). It follows that because JP Morgan was a bona fide purchaser for value, it was entitled to take the Property free of the 2001 Security Deed, separate and apart from the procedures for cancellation by the clerk of the superior court set forth in OCGA § 44-14-67.

For these combined reasons, the trial court correctly concluded that the uncontroverted evidence of record showed that JP Morgan’s interest in the Property was superior to and not subject to any interest held by Deutsche Bank. The trial court, therefore, committed no error in granting summary judgment in favor of JP Morgan on its claim for a declaratory judgment.

Judgment affirmed.

Blackwell and Dillard, JJ., concur.

Decided November 19, 2010

Reconsideration denied December 6, 2010

Lefkoff, Duncan, Grimes, Miller & McSwain, John R. Grimes, for appellant.

Smith, Gambrell & Russell, Edward D. Burch, Jr., for appellee.

       Deutsche Bank does not appeal the trial court’s denial of its motion for summary judgment.

       OCGA § 14-5-7 (a) provides:
      Instruments executed by a corporation conveying an interest in real property, when signed by the president or vice-president and attested or countersigned by the secretary or an assistant secretary or the cashier or assistant cashier of the corporation, shall be conclusive evidence that the president or vice-president of the corporation executing the document does in fact occupy the official position indicated; that the signature of such officer subscribed thereto is genuine; and that the execution of the document on behalf of the corporation has been duly authorized. Any corporation may by proper resolution authorize the execution of such instruments by other officers of the corporation.


author: JOHNSON, Judge.

text:
    A10A2229.
    HURT v. THE STATE.
    (704 SE2d 434)
   JOHNSON, Judge.

After a bench trial, Rico Hurt was found guilty of operating a motor vehicle while having an unlawful blood alcohol level. Hurt appeals, claiming that the trial court erred in denying his motion to suppress evidence because the police roadblock which led to his arrest was illegal. The claim is without merit, and we affirm.

In examining the propriety of roadblock stops, the issue for resolution is not whether there was probable cause to stop the vehicle, but whether the roadblock stop was otherwise implemented and conducted in a manner as to demonstrate that the stop of the vehicle was reasonable under the Fourth Amendment.

A police roadblock satisfies constitutional mandates where

(1) the decision to implement the roadblock was made by supervisory personnel at the programmatic level, rather than officers in the field, for a legitimate primary purpose; (2) all vehicles, rather than random vehicles, are stopped; (3) the delay to motorists is minimal; (4) the roadblock is well identified as a police checkpoint; and (5) the screening officer has adequate training to make an initial determination as to which motorists should be given field sobriety tests.

Hurt contends that the first, second and fifth factors set forth above were not satisfied by the roadblock in this case. With regard to the first factor, Sergeant T. S. Mester, supervisor of the DeKalb County Police Strategic Traffic Accident Reduction team, testified that he made the decision to implement the roadblock for the primary purpose of DUI detection, and that his decision was approved by his lieutenant. Sergeant Mester also testified that he determined the location, time and duration of the roadblock. He further stated that he was present at the roadblock only in his supervisory capacity, and not as a field officer. Officer J. B. Welchel confirmed that the roadblock had been departmentally approved, and that he was assigned to help implement it by his supervisor, Sergeant Mester. Based upon the testimony of Sergeant Mester and Officer Welchel, the trial court was authorized to find that the decision to implement the roadblock had been made by supervisory officers at the programmatic level, for a legitimate primary purpose.

As for the second factor, Sergeant Mester testified that all vehicles were stopped. When asked if some cars were not stopped due to traffic congestion, the sergeant testified that he did not recall that happening. But he further explained that if traffic backs up, then the supervisor would have discretion to order that some motorists be let through in order to reduce congestion. As this court has noted, “common sense recognizes the reasonableness of some type of procedure to suspend or halt a roadblock where the flow of traffic overwhelms the resources dedicated to that roadblock and poses a threat to public safety.” Given the authority to interrupt a roadblock for ensuring safety and the absence of any evidence showing that any vehicles went unchecked, the trial court did not err in denying Hurt’s motion to suppress upon the claim that the roadblock was not randomly conducted.

Finally, Sergeant Mester testified without contradiction that all of the officers implementing the roadblock were POST-certified and had training in DUI detection. Moreover, Officer Welchel, who screened and eventually arrested Hurt at the roadblock, testified that he is a member of the DUI task force and has received specialized DUI training. Given this testimony, the trial court was authorized to find that the officer’s training was “more than sufficient to qualify [him] to screen for motorists who should be given field sobriety tests. [Cits.]” Accordingly, the trial court’s denial of the motion to suppress must be affirmed.

Decided November 16, 2010

Reconsideration denied December 6, 2010

Dwight L. Thomas, for appellant.

Nicole D. Marchand, Solicitor-General, Kelly A. McMichael, Assistant Solicitor-General, for appellee.

Judgment affirmed.

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

       OCGA § 40-6-391 (a) (5).

       (Citations and punctuation omitted.) LaFontaine v. State, 269 Ga. 251, 252 (3) (497 SE2d 367) (1998).

       (Citation omitted.) Harwood v. State, 262 Ga. App. 818, 819 (1) (586 SE2d 722) (2003).

       See Brent v. State, 270 Ga. 160, 162 (2) (510 SE2d 14) (1998); Carson v. State, 278 Ga. App. 501, 502 (629 SE2d 487) (2006); Ross v. State, 257 Ga. App. 541, 542 (1) (573 SE2d 402) (2002).

       (Citations and punctuation omitted.) Ross v. State, supra at 543 (2).

       Id.

        Wrigley v. State, 248 Ga. App. 387, 389 (1) (546 SE2d 794) (2001).


text:
    A10A2207.
    In the Interest of D. M., a child.
    (704 SE2d 479)
   Johnson, Judge.

After an adjudicatory hearing, the Juvenile Court of Spalding County found that D. M. was delinquent for committing the designated felony offense of aggravated assault. D. M. appeals, challenging the sufficiency of the evidence. The challenge is without merit, and we thus affirm the judgment of the juvenile court.

In considering a challenge to the sufficiency of the evidence supporting an adjudication of delinquency, we construe the evidence and every inference from the evidence in favor of the juvenile court’s adjudication to determine if a reasonable finder of fact could have found, beyond a reasonable doubt, that the juvenile committed the acts charged. Thus, the standard of review on appeal in a case of adjudication of delinquency of a juvenile is the same as that for any criminal case. In reviewing such cases, we do not weigh the evidence or determine witness credibility.

Construed in favor of the juvenile court’s adjudication, the evidence shows that 15-year-olds D. M. and J. T. had been friends, but had a falling out after a fight at school. On the night of June 8, 2009, J. T. encountered D. M. as he walked by his house. As J. T. approached, D. M. pulled a handgun from his pants and began shooting at J. T. One of the bullets struck J. T. in the neck, paralyzing him. Police officers arrived at the scene, and J. T. identified D. M. as the person who had shot him. D. M. was subsequently apprehended, and gave a statement to police in which he admitted the shooting, but claimed that he had fired only after J. T. had swung a black stick at him. J. T. denied that he had a stick, and no such weapon was found by the police at the scene of the shooting.

Decided December 9, 2010.

Kimberly A. Gross, for appellant.

Scott L. Ballard, District Attorney, Christy R. Jindra, Robert W. Smith, Jr., Assistant District Attorneys, for appellee.

D. M. argues that the juvenile court judge was required to find that the shooting was justified based on his claim that he fired in self-defense after seeing the alleged stick. However,

[t]he juvenile judge, as factfinder, is authorized to believe or disbelieve all or any part of the testimony of witnesses, and it serves as the arbiter of conflicts in the evidence before it. Here, the juvenile judge evidently disbelieved [D. M.’s] protestations of innocence [and claim of self-defense], which is the factfinder’s prerogative.

As it is not this court’s role to reweigh the evidence to place greater credence in the justification defense than did the juvenile court, we conclude that the adjudication of delinquency is supported by sufficient evidence.

Judgment affirmed.

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

       (Citation and punctuation omitted.) In the Interest of J. L. H., 289 Ga. App. 30 (656 SE2d 160) (2007).

       (Citations and punctuation omitted.) In the Interest of J. D. T, 262 Ga. App. 860, 864 (2) (586 SE2d 748) (2003).

       See Carter v. State, 303 Ga. App. 142, 144 (1) (692 SE2d 753) (2010).


text:
    A10A2249.
    GIOIA v. THE STATE.
    (704 SE2d 481)
   Johnson, Judge.

After a jury trial, Phillip Gioia was convicted of two counts of child molestation and one count of aggravated child molestation. He appeals, raising challenges to the sufficiency of the evidence and the sentences imposed by the trial court. We affirm the convictions, but vacate the sentence for the aggravated child molestation conviction, and remand for resentencing as to that count.

1. Gioia claims that the trial court erred in denying his motion for a directed verdict of acquittal. The standard of review for such a denial is the same as that used for determining the sufficiency of the evidence to support a conviction. In making that determination,

we view the evidence in the light most favorable to the verdict, and [the appellant] no longer enjoys the presumption of innocence. We neither weigh the evidence nor assess the credibility of witnesses, but merely ascertain that the evidence is sufficient to prove each element of the crime beyond a reasonable doubt. Moreover, conflicts in the testimony of the witnesses are a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the state’s case, the jury’s verdict will be upheld.

Viewed in favor of the verdict, the evidence in this case shows that Gioia was married to the mother of ten-year-old B. G. and eight-year-old L. G. In October 2006, B. G. gave a note to her mother indicating that Gioia had been molesting L. G. The mother contacted authorities, and during an interview with a child advocate, L. G. stated that Gioia had massaged her breasts and genitals with his hands, and had kissed her on her mouth and “private parts.” At trial, L. G. testified that on several occasions Gioia had kissed her on the mouth, and had touched her with her pants pulled down in ways that she did not like.

B. G. was also interviewed by the child advocate, and told her that Gioia had kissed her with his tongue, had fondled her private area, and had pressed his genitals against hers. B. G. testified at trial that Gioia had kissed her in her private area and had also fondled her. She further testified that she had seen Gioia kissing L. G. on her private area with her pants pulled down.

Contrary to Gioia’s claim, there was sufficient evidence from which a rational trier of fact could have found him guilty beyond a reasonable doubt of the crimes for which he was convicted. Accordingly, the trial court did not err in denying his motion for a directed verdict of acquittal.

2. Gioia argues that the trial court erred in failing to merge an aggravated sodomy count of the indictment with the aggravated child molestation count prior to the start of the trial because they involved the same conduct. However, merger of counts does not occur prior to trial, but occurs after a verdict for sentencing purposes. Indeed, where the same conduct may establish the commission of more than one crime, a criminal defendant may be prosecuted for each crime, although he may not be convicted of more than one crime if one is included in the other. In this case, Gioia was acquitted of the aggravated sodomy count. Because the trial court did not enter a judgment of conviction and sentence on that count, “any issues concerning [it] are moot and will not be considered. [Cit.]”

Decided December 9, 2010.

John W. Strickland, Jr., for appellant.

Catherine H. Helms, District Attorney, for appellee.

3. Gioia’s contention that the trial court erred in failing to merge the two child molestation counts for sentencing is specious since those counts involved different victims. “The same conduct was not being punished twice, nor was one crime included in the others so as to bar the separate conviction and punishment for each act. [Cit.]”

4. OCGA § 16-6-4 (d) (1) provides in pertinent part that “a person convicted of the offense of aggravated child molestation shall be punished by imprisonment for life or by a split sentence that is a term of imprisonment for not less than 25 years and not exceeding life imprisonment, followed by probation for life[.]” Here, the trial court did not choose either of these sentencing options — life imprisonment or a split sentence of imprisonment followed by probation. Instead, the trial court improperly sentenced Gioia to serve 25 years to life in prison for the aggravated child molestation count. Accordingly, while the judgment of conviction as to the aggravated child molestation count is affirmed, the improper sentence as to that count is vacated, and the case is hereby remanded for imposition of a sentence consistent with the statute and this opinion.

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

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

        Zuniga v. State, 300 Ga. App. 45, 47 (1) (684 SE2d 77) (2009).

       (Citations and punctuation omitted.) Vaughn v. State, 301 Ga. App. 391 (687 SE2d 651) (2009).

       See Gable v. State, 222 Ga. App. 768, 769-770 (1) (476 SE2d 66) (1996).

        Drinkard v. Walker, 281 Ga. 211, 212-213 (636 SE2d 530) (2006).

        Funderburk v. State, 276 Ga. 554, 555 (1) (580 SE2d 234) (2003).

        Gable, supra at 770 (3).


text:
    A10A2280.
    ABERCROMBIE v. THE STATE.
    (704 SE2d 483)
   JOHNSON, Judge.

After a jury trial, Rodney Abercrombie was convicted of kidnapping, rape, aggravated assault and two counts of cruelty to children. Abercrombie appeals, challenging a portion of the jury charge on the offense of rape and a ruling as to the cross-examination of a witness. The challenges are without merit, and we therefore affirm the convictions.

1. Abercrombie claims that the trial court, in charging the jury on the offense of rape, erroneously included a portion of the suggested pattern jury instructions which provided that, “[i]n cases of incapacity to consent, the element of force is automatically supplied by law.” Abercrombie argues that this portion of the charge created an impermissible mandatory presumption as to the element of force. However, even if we assume for purposes of this appeal that the charge created an impermissible presumption, such an “instruction is harmless so long as the instruction was applied to an element of the crime that was not at issue in the trial, and if the evidence of guilt is overwhelming.”

In this case, the evidence of Abercrombie’s guilt is overwhelming. As fully recounted in a prior decision from this court affirming the convictions of co-defendant Clarence Cole, the evidence shows that Abercrombie and Cole forced the 15-year-old victim into their car, made her drink alcohol, drove her and her cousin to a secluded area, and sexually assaulted her. Among other things, the cousin testified that he saw Abercrombie on top of the victim with his penis in her vagina, and that she was begging him not to hurt her. There was also medical evidence establishing that, after the attack, the victim’s jaw was swollen, and she had bruises on her neck, arms, legs, chest and near her vagina.

Furthermore, the element of force was not at issue in the trial. Abercrombie and Cole did not raise a defense that the sexual intercourse was consensual, and instead asserted a defense of noninvolvement in the alleged crime. Cole did not testify, while Abercrombie claimed that he was home at the time of the incident, and that “the first time he met [the victim] was when she and [her cousin] awoke him the next morning at 6:00 a.m. and said they were ‘just out goofing off.’ ” Because the evidence of guilt was overwhelming and because the defense of noninvolvement in the crime did not place the element of force in issue, the alleged error in the charge was harmless.

Decided December 9, 2010.

Jeffrey L. Floyd, for appellant.

Joe W. Hendricks, Jr., District Attorney, Clifford A. Sticker, Assistant District Attorney, for appellee.

2. After the victim’s cousin testified for the state, Abercrombie’s trial counsel thoroughly cross-examined him, followed by another lengthy cross-examination by counsel for the co-defendant. Thereafter, Abercrombie’s attorney indicated that he wanted to question the witness further, but he did not specify any questions that he wished to ask. The trial court refused to allow any further questioning. Abercrombie complains that this ruling improperly limited his right to cross-examine the witness. However,

[i]n order to be in a position to complain of the abridgement of the right of cross-examination, a party to a legal proceeding or his counsel must either ask the questions he desires to ask or state to the court what questions he desires to ask and then interpose timely objection to the ruling of the court denying the right to propound the questions.

In this case, because neither Abercrombie nor his attorney asked the desired questions or stated to the court precisely what further questions they wished to pose, the issue was not preserved and there is nothing for us to review.

Judgment affirmed.

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

       See Sandstrom v. Montana, 442 U. S. 510, 522 (III) (99 SC 2450, 61 LE2d 39) (1979).

       (Citations and punctuation omitted.) Mohamed v. State, 276 Ga. 706, 708-709 (1) (583 SE2d 9) (2003).

        Cole v. State, 279 Ga. App. 219, 219-221 (1) (630 SE2d 817) (2006).

       Id. at 220 (1).

       Id. at 220-221 (1).

       Id. at 221 (1).

       See Bridges v. State, 268 Ga. 700, 706-707 (2) (f) (492 SE2d 877) (1997); Stover v. State, 293 Ga. App. 210, 214 (1) (666 SE2d 602) (2008).

       (Citations and punctuation omitted.) Bradford v. State, 182 Ga. App. 337, 338 (5) (355 SE2d 735) (1987).

       See Morris v. State, 239 Ga. App. 100, 103 (4) (520 SE2d 485) (1999); Daniels v. State, 235 Ga. App. 296, 297 (1) (509 SE2d 368) (1998).