text:
    A13A1510.
    BROOKS v. THE STATE.
    (750 SE2d 423)
   Miller, Judge.

Following a jury trial, Maurice Brooks was convicted of burglary (OCGA § 16-7-1) and armed robbery (OCGA § 16-8-41 (a)). Brooks appeals from the denial of his motion for a new trial, challenging the sufficiency of the evidence and arguing that his trial counsel rendered ineffective assistance. We discern no error and affirm.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to support the verdict, and the defendant no longer enjoys a presumption of innocence. We determine only whether the evidence authorized the jury to find the defendant guilty beyond a reasonable doubt, and in doing so we neither weigh that evidence nor judge the credibility of the witnesses.

(Citations and punctuation omitted.) Drammeh v. State, 285 Ga. App. 545, 546 (1) (646 SE2d 742) (2007). So viewed, the evidence shows that at approximately 7:52 a.m. on June 29,2010, the manager for the Family Dollar store on Lawrenceville Highway in Gwinnett County arrived to open the store. After she entered the store, three men who were inside the store approached her. The men wore t-shirts over their faces. One of them pointed a gun at the manager’s face and told her to open the safe, which was located near the front door. The manager entered the code for the top compartment, which contained petty cash. After she gave the men the cash, they told her to enter the code for the bottom compartment, which had a ten-minute delay and contained the previous day’s deposit. After she did so, a bread delivery man arrived at the store. The manager mouthed “help” to the delivery man, who returned to his truck, called a colleague, and asked him to call 911. When the men got the deposit money, they put it in a bag and ran toward the back of the store.

Detective Seth Bailey and one his colleagues were among the officers who responded to the scene. Bailey learned from other officers that a robbery had occurred and that three black males had fled through the rear of the store. Bailey and his colleague drove around to a road that runs through a residential area and comes up behind the store. While they were driving, Bailey saw a house with a shed and observed a black male, later identified as Brooks, standing near the shed with some bags and looking through one of them. Brooks appeared nervous when he saw the officers and started to walk off. The officers told him to stop, but Brooks ran behind the house and down toward a creek bed. As the officers followed, they found a bag similar to the ones by the shed. Bailey heard his colleague shout, “police, don’t move,” and saw him pointing a gun at Brooks, who was in the creek. Brooks was taken into custody.

After Brooks was apprehended, the lead investigator on the case remarked to some other officers that he wondered where the others were. The lead investigator was standing about six feet from Brooks, with his back to him. Brooks stated, “I don’t know where the other two went. I guess they left me.” The lead investigator directed another officer to take control of Brooks, and while the officer was conducting a pat-down search of Brooks, Brooks stated that “he took the stuff so that he could pay his bills.”

The bags found in Brooks’s vicinity consisted of six cooler totes containing approximately $700 in merchandise from the Family Dollar store and a plastic bag containing money and the deposit slip from the store’s safe. Police recovered a backpack in the same area that contained a handsaw and a hatchet. A crime scene technician discovered a hole in the ceiling in the store’s front office that was big enough to allow a person to get into the store. She also found and photographed a shoe print in the dust on top of a cooler that was similar to the tread on the shoes Brooks was wearing when apprehended. Video from the store’s surveillance system was played and introduced into evidence at trial. The video showed that one of the three men was wearing jeans that had a distinctive pattern on the back pockets that was similar to that on the jeans Brooks was wearing when he was apprehended.

1. Brooks challenges the sufficiency of the evidence, contending that the only evidence linking him to the crimes were his jeans with distinctive back pockets. This argument ignores a host of other relevant evidence. Notably, Brooks made incriminating statements that he took the “stuff” to pay his bills and that he did not know “where the other two were.” When police encountered Brooks in close proximity to the Family Dollar store shortly after the crimes standing near bags containing the stolen cash and merchandise and looking in one of them, he was nervous and fled from the officers. See Shaheed v. State, 245 Ga. App. 754, 755 (1) (538 SE2d 823) (2000) (flight is circumstantial evidence of consciousness of guilt, and the weight to be given to such evidence is for jury to decide). In the same area as the bags, police recovered a backpack containing a handsaw and a hatchet. The crime scene investigator photographed a shoe print on a cooler in the store appearing to match the shoe tread on Brooks’s shoes. We conclude that the evidence was sufficient for a jury to find Brooks guilty beyond a reasonable doubt of armed robbery and burglary. See Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

2. Brooks argues that he received ineffective assistance from his trial counsel. “To establish an ineffective assistance of counsel claim, the defendant must show that counsel’s performance was deficient and the deficient performance prejudiced the defense.” (Citation omitted.) Bright v. State, 292 Ga. 273, 274 (2) (736 SE2d 380) (2013). In reviewing a trial court’s ruling on an ineffective assistance claim, we accept the trial court’s factual findings and credibility determinations unless clearly erroneous but independently apply the legal principles to the facts. Holloman v. State, 293 Ga. 151, 154 (4) (744 SE2d 59) (2013).

(a) Brooks contends that his trial counsel was ineffective because he failed to file a motion to suppress evidence resulting from Brooks’s arrest. When a failure to file a motion to suppress is the basis for a claim of ineffective assistance, the defendant must make a strong showing that the damaging evidence would have been suppressed had counsel made the motion. Rivers v. State, 283 Ga. 1, 5 (3) (b) (655 SE2d 594) (2008).

Brooks argues that a motion to suppress would have required the State to prove that police had probable cause to arrest him. Detective Bailey, who arrived on the scene in response to a robbery in progress call, testified that he learned from other officers that three black males involved in the robbery had fled toward the rear of the business. Shortly thereafter, Bailey and his colleague encountered Brooks standing by a shed in a neighborhood behind the Family Dollar store. Brooks was standing by some bags and looking through one of them, and he appeared nervous and tried to walk off when he saw the officers. At that point, police had, at a minimum, an articulable suspicion that Brooks committed the crimes and were authorized to stop him for questioning. Anderson v. State, 265 Ga. App. 428, 433 (4) (594 SE2d 669) (2004); Freeman v. State, 248 Ga. App. 363, 364-365 (1) (548 SE2d 616) (2001). When officers told Brooks to stop, he ran, and in pursuing him, police found a bag similar to the ones by the shed. “[P]robable cause need not be defined in relation to any one particular element, but may exist because of the totality of circumstances. Flight in connection with other circumstances may be sufficient probable cause to uphold a warrantless arrest.” (Punctuation and footnote omitted.) Adams v. State, 263 Ga. App. 694, 695 (1) (589 SE2d 269) (2003). Here, Bailey’s testimony regarding Brooks’s flight and the other circumstances preceding his arrest established probable cause. Although Brooks argues that had his trial counsel filed a motion to suppress, Bailey’s colleague, who apprehended Brooks in the creek bed, would have been required to testify at the motion to suppress hearing, Brooks did not call this officer as a witness at the motion for new trial hearing. Given this omission and Bailey’s testimony, Brooks failed to make a strong showing that a motion to suppress would have been granted. See Parnell v. State, 280 Ga. App. 665, 671 (2) (b) (634 SE2d 763) (2006) (appellant failed to show motion to suppress drugs discovered during pat-down would have been granted in light of account of officer who observed pat-down and appellant’s failure to call the officer who conducted the pat-down as a witness at the motion for new trial hearing).

(b) Brooks argues that his trial counsel was ineffective because he failed to request a Jackson-Denno hearing prior to trial as to the admissibility of his statement, overheard by the lead investigator, that “I don’t know where the other two went. I guess they left me,” and failed to object when the prosecutor referred to that statement in her opening statement. The trial court, however, held a Jackson-Denno hearing regarding the statement before the lead investigator testified at trial and ruled that the statement was admissible, as it was voluntary and not the product of custodial interrogation. Consequently, Brooks cannot establish ineffective assistance on this ground. See Cuvas v. State, 306 Ga. App. 679, 681 (1) (b) (703 SE2d 116) (2010).

(c) Brooks contends that his trial counsel was ineffective in failing to timely object during closing argument when the prosecutor made statements of prejudicial matters not in evidence, contrary to OCGA § 17-8-75.

The record reflects that during closing argument, defense counsel, in arguing that jurors could find a reasonable doubt as to Brooks’s guilt, urged them to consider the State’s inability to produce certain evidence, such as the gun used or the gloves worn during the robbery; the State’s failure to conduct a lineup; and the State’s failure to process the crime scene or items recovered by police for certain forensic evidence. Defense counsel also pointed out that the label on an evidence bag tendered into evidence by the State referred to Dollar General instead of Family Dollar. In her closing argument, the prosecutor argued that the reference to Dollar General on the evidence bag was simply a mistake and that pointing it out “was just nothing but smoke and mirrors to distract you from what’s really going on.” Before proceeding to a point-by-point rebuttal of defense counsel’s recitation of purported deficiencies in the State’s case, the prosecutor commented, “I would submit to you again that that’s nothing more than smoke and mirrors, just like the Family Dollar versus Dollar General[.]” The prosecutor concluded her rebuttal by stating: “It’s easy to throw all of these ‘they should have done this, should have done that’ out there to try to confuse you, to try to muddy the water, but the picture is actually pretty clear.” Brooks’s trial counsel did not assert a contemporaneous objection to the prosecutor’s comments but instead moved for a mistrial at the conclusion of closing arguments. The trial court denied the motion, finding that any objection was waived and that the prosecutor’s use of metaphors was not improper.

“Closing arguments are judged in the context in which they are made.” Adams v. State, 283 Ga. 298, 302 (3) (e) (658 SE2d 627) (2008).

Counsel enjoys very wide latitude in closing arguments, and may make use of illustrations, so long as he does not make extrinsic or prejudicial statements that have no basis in the evidence. Counsel’s illustrations... maybe as various as are the resources of his genius; his argumentation as full and profound as his learning can make it; and he may, if he will, give play to his wit, or wing to his imagination.

(Punctuation and footnote omitted.) Rainly v. State, 307 Ga. App. 467, 478 (8) (705 SE2d 246) (2010).

Viewed in context, the prosecutor used the challenged metaphors in her effort to refute the significance of the purported evidentiary deficiencies cited by the defense. The trial court, in ruling on the untimely motion for mistrial, ruled that the remarks constituted fair oratory, and we find no abuse of discretion in this regard. See Coghlan v. State, 319 Ga. App. 551, 555-556 (2) (a) (737 SE2d 332) (2013) (trial court did not abuse discretion by allowing prosecutor to argue that defense counsel had used a “smoke and mirrors” strategy); Rainly, supra, 307 Ga. App. at 477-478 (8) (trial court did not abuse discretion in allowing prosecutor to state that defense counsel had engaged in “magic” and “misdirection” and that jury should focus on the evidence and the truth). Since the prosecutor’s arguments were permissible, “trial counsel’s failure to object. . . cannot serve as the basis for an ineffective assistance claim.” (Citations omitted.) Herndon v. State, 309 Ga. App. 403, 406 (1) (710 SE2d 607) (2011).

(d) Finally, Brooks argues that he received ineffective assistance from his trial counsel in connection with the State’s plea offer.

On the first day of trial, the prosecutor stated for the record that the State had extended a plea offer to Brooks under which it would recommend a sentence of 20 years, 12 to be served in prison, if Brooks pled guilty, but Brooks rejected the offer. Brooks maintains that his trial counsel rendered ineffective assistance in connection with the plea offer because he did not show Brooks the surveillance video from the Family Dollar store prior to trial. At the motion for new trial hearing, trial counsel admitted that he did not show the video to Brooks, but he testified that he discussed the video and its contents with Brooks. Trial counsel testified that he told Brooks that, while the video was a little blurry, the final scene showed the perpetrators exiting through the back door and the distinctive stitching on the third person’s jeans. Trial counsel also testified that he had several discussions with Brooks regarding the State’s offer; he discussed the discovery and evidence with Brooks; he informed Brooks of the potential sentences he faced; he reviewed all of the defenses with Brooks; and Brooks decided to proceed to trial. Although Brooks provided conflicting testimony regarding what his trial counsel told him about the surveillance video, the trial court was entitled to credit trial counsel’s testimony over Brooks’s. See McDaniel v. State, 279 Ga. 801, 802 (2) (a) (621 SE2d 424) (2005). Trial counsel’s testimony was sufficient to show that he communicated the significance of the surveillance video and fulfilled his duty to provide Brooks with informed advice concerning the plea offer. See Cammer v. Walker, 290 Ga. 251, 255 (2) (719 SE2d 437) (2011) (duty to provide informed legal advice includes discussing risks of going to trial, the evidence against the accused, and differences in possible sentences that would be imposed following a guilty plea and a conviction at trial).

Decided October 25, 2013.

Mickey G. Roberts, for appellant.

Daniel J. Porter, District Attorney, Teresa B. Klein, Assistant District Attorney, for appellee.

Brooks also maintains that after he saw the surveillance video at trial, he told his trial counsel that he wanted to change his plea, but his trial counsel never communicated his desire to the prosecutor. At the motion for new trial hearing, trial counsel testified that Brooks did not tell him he wanted to change his plea after viewing the video and that had Brooks done so, he would have spoken to the prosecutor. Again, the trial court was authorized to credit trial counsel’s testimony over Brooks’s account, McDaniel, supra, 279 Ga. at 802 (2) (a), and as such, the trial court did not err in concluding that Brooks failed to establish that trial counsel performed deficiently.

Judgment affirmed.

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


source: Caselaw Access Project

author: BARNES, Presiding Judge.

license: Public Domain

text:
    A13A2238.
    CAWLEY v. THE STATE.
    (750 SE2d 428)
   BARNES, Presiding Judge.

Patrick Cawley appeals from the trial court’s order denying his motion to dismiss the criminal charges against him on the ground that his constitutional right to a speedy trial was violated. Because the trial court’s order is insufficient to allow us to determine whether the court abused its discretion in denying Cawley’s motion, we vacate the judgment and remand for entry of an order expressly including proper findings of fact and conclusions of law in accordance with Barker v. Wingo, 407 U. S. 514 (92 SCt 2182, 33 LE2d 101) (1972).

The record reflects that on February 19, 2009, Cawley was arrested for DUI and speeding. On April 22, 2009, Cawley was arraigned, pled not guilty, and requested a jury trial. The case was placed on the June 20, 2011 trial calendar, but the State requested — and received — a continuance because the arresting officer was not available. The case was next placed on the September 12, 2011 trial calendar, but Cawley failed to appear. A special bench warrant was issued, and Cawley was instructed to appear in court on September 21, 2011, which he did. That same day, the trial court ordered Cawley’s case to be placed on a trial calendar for January 2013. Nevertheless, the case was not called for trial at that time.

On March 1, 2013, Cawley moved to dismiss the charges against him on the ground that his constitutional right to a speedy trial had been violated. Following a hearing, the trial court entered a written order summarily denying the motion on May 10, 2013. However, the trial court certified its order for immediate review, and we granted Cawley’s application for interlocutory appeal. This appeal followed in which Cawley challenges the denial of his motion to dismiss on constitutional speedy trial grounds.

A speedy trial is guaranteed to a criminal defendant by the Sixth Amendment to the United States Constitution and the Georgia Constitution. See U. S. Const., Amend. VI; Ga. Const., Art. I, Sec. I, Par. XI (a). The framework for determining constitutional speedy trial claims requires the trial court to apply the two-tier analysis enunciated in Barker, 407 U. S. at 522-523 (II), and Doggett v. United States, 505 U. S. 647, 651 (112 SCt 2686, 120 LE2d 520) (1992). See State v. Porter, 288 Ga. 524, 525-526 (2) (a) (705 SE2d 636) (2011); Ruffin v. State, 284 Ga. 52, 55 (2) (663 SE2d 189) (2008).

Under the first tier, the court considers whether the delay is long enough to be presumptively prejudicial, and if so, then it considers under the second tier whether the delay constituted a speedy trial violation. In determining whether the delay violated the defendant’s speedy trial right, the court considers [four Barker factors:] (1) whether the delay is uncommonly long; (2) the reasons and responsibilities for the delay; (3) the defendant’s assertion of the right to a speedy trial; and (4) the prejudice to the defendant.

(Citations and punctuation omitted.) Watkins v. State, 315 Ga. App. 708, 708-709 (1) (727 SE2d 539) (2012). “Of these factors, no one is dispositive. Instead, a court must weigh all four factors, along with any other relevant circumstances, in a difficult and sensitive balancing process.” (Citations and punctuation omitted.) State v. Buckner, 292 Ga. 390, 393 (3) (738 SE2d 65) (2013). See Higgenbottom v. State, 288 Ga. 429, 430 (704 SE2d 786) (2011).

Decided October 25, 2013.

Robert L. Crowe, for appellant.

Maria S. Lugue II, Solicitor-General, for appellee.

The weighing of the Barker factors “is committed to the substantial discretion of the trial court, and its ultimate judgment is reviewed on appeal only for an abuse of that discretion.” (Citation and punctuation omitted.) Buckner, 292 Ga. at 393 (3). “It is imperative, therefore, that in cases implicating a defendant’s constitutional right to speedy trial, the trial court enter findings of fact and conclusions of law consistent with Barker. Absent such findings, there is no exercise of discretion for this Court to review.” Higgenbottom, 288 Ga. at 430-431. Accordingly, we have vacated and remanded cases where the trial court failed to enter written findings of fact and conclusions of law in accordance with Barker. See, e.g., Richardson v. State, 311 Ga. App. 369 (715 SE2d 774) (2011); Jackson v. State, 311 Ga. App. 342 (715 SE2d 761) (2011); Goddard v. State, 310 Ga. App. 2, 4-5 (2) (712 SE2d 528) (2011); Moore v. State, 309 Ga. App. 519, 520 (710 SE2d 692) (2011). See also Higgenbottom, 288 Ga. at 431.

Here, the trial court’s summary order contains no findings of fact or conclusions of law. “Because the trial court failed to enter such findings and conclusions, the order is vacated and the case is remanded for the entry of a proper order.” Moore, 309 Ga. App. at 520. Furthermore, “we note that the speedy trial clock is still ticking, and the trial court’s analysis on remand should take into account that the length of the pretrial delay continues to run until entry of a... written order applying the Barker-Doggett framework.” (Citations and punctuation omitted.) Richardson v. State, 318 Ga. App. 155, 164 (2) (e) (733 SE2d 444) (2012).

Judgment vacated and case remanded with direction.

Miller and Ray, JJ., concur.


author: Ray, Judge.

text:
    A13A0786.
    O’DELL v. MAHONEY et al.
    (750 SE2d 689)
   Ray, Judge.

Phillip O’Dell entered into a Purchase and Sale Agreement (“Purchase Agreement”) with Roland and Sandra Mahoney for the acquisition of a house in Savannah on January 18, 2005. The Purchase Agreement refers to and incorporates a Sellers’ Property Disclosure which contains representations regarding the condition of the property. Soon after closing, O’Dell began to experience problems both with the septic system and with flooding. Due to these problems, O’Dell filed suit against the following parties: the Mahoneys; Heather Ensign, the listing agent; and Ben Farmer Realty, Inc. (“BFR”), the real estate brokerage firm affiliated with Ensign. The trial court granted Ensign’s motion to dismiss on March 5, 2012, and BFR’s motion for summary judgment on April 17,2012. The case against the Mahoneys remained on the trial calendar, and a few days before trial, O’Dell entered into a settlement agreement with the Mahoneys. The trial court entered judgment in favor of O’Dell in accordance with the settlement agreement on October 30, 2012. O’Dell then filed a notice of appeal on November 13,2012, seeking to challenge the trial court’s orders of March 5 and April 17, 2012.

1. We first address the issue of whether we have jurisdiction in this case. It is well settled that this Court has a duty to inquire into its jurisdiction to review the errors enumerated on appeal. See Whiddon v. Stargell, 192 Ga. App. 826, 827 (386 SE2d 884) (1989). At the same time, this Court is also charged with avoiding the dismissal of an appeal and reaching the merits of a case when it is reasonable to do so. OCGA § 5-6-30. This Court dismissed the appeal for lack of jurisdiction in an order dated February 7, 2013. O’Dell filed a motion for reconsideration of that order, which we granted on April 4, 2013, while directing the parties to file supplemental briefs addressing whether this Court has jurisdiction. After conducting an inquiry into the matter, we find that we do have jurisdiction over the appeal.

Here, O’Dell is appealing from the trial court’s entry of a final judgment in his favor after he settled with the Mahoneys. However, his notice of appeal states that he is appealing only the trial court’s orders of March 5, 2012, and April 17, 2012, granting Ensign’s motion to dismiss and granting BFR’s motion for summary judgment, respectfully. At the time those orders were entered, neither constituted a final adjudication of the case because the Mahoneys remained as parties in the case. See OCGA § 9-11-54 (b). Accord Cherry v. Hersch, 193 Ga. App. 471 (388 SE2d 64) (1989). Accordingly, a direct appeal of these two orders could only be properly filed under two circumstances: either (1) an appeal within 30 days from the order granting summary judgment or (2) from an appealable decision or final judgment. Adams v. Moffatt, 204 Ga. App. 314, 316 (1) (419 SE2d 318) (1992).

The appellees argue that O’Dell’s conduct of entering into a settlement agreement with the Mahoneys procured or set into motion the judgment from which he now appeals and, thus, that O’Dell is without standing to pursue an appeal from the trial court’s final order entering judgment in his favor. In doing so, the appellees cite to the well-settled proposition that “at the appellate level, one cannot complain of a judgment, order, or ruling that his own procedure or conduct procured or aided in causing.” (Punctuation and footnote omitted.) Torres v. Elkin, 317 Ga. App. 135, 139 (1) (730 SE2d 518) (2012). Accord Waye v. Continental Special Risks, Inc., 289 Ga. App. 82, 84 (656 SE2d 150) (2007).

In Torres, the plaintiff filed a direct appeal after the trial court’s grant of his motions to dismiss the remaining defendants in his lawsuit and for entry of a final judgment. Torres, supra at 137-138. In his appeal from that order, the plaintiff challenged only the trial court’s earlier denial of his motion for partial summary judgment and the granting of a different defendant’s motion to enforce a settlement agreement. This Court held that although the plaintiff’s dismissal of the additional defendants was not a decision or judgment that the plaintiff could appeal, what the plaintiff could do after the entry of the final judgment was to appeal a final, appealable entry of judgment as to the settlement agreement that was necessarily included in the same order that voluntarily dismissed the remaining defendants. Thus, the plaintiff was not appealing that which his own conduct procured. Id. at 139-140 (1).

In the present case, O’Dell did not voluntarily dismiss the remaining defendants in his lawsuit for the sole reason of obtaining a directly appealable final order nor was he seeking to appeal the dismissal of said defendants. Rather, after the trial court entered a final judgment in favor of O’Dell as part of the settlement agreement between O’Dell and the Mahoneys, O’Dell sought to appeal the earlier actions granting a motion to dismiss and summary judgment to other defendants. We find that the Court does have jurisdiction to consider said appeal. See Torres, supra. For this Court to hold otherwise would likely discourage litigants to reach settlement agreements with the remaining defendants in an action. If the parties had not reached a settlement agreement and instead had proceeded to trial, O’Dell would have been able to directly appeal the trial court’s judgment resulting from the trial. OCGA § 5-6-34 (a) (1).

2. We now turn to the merits of the appeal. In a compound enumeration, O’Dell contends that the trial court erred in granting BFR’s motion for summary judgment because issues of fact existed as to O’Dell’s claims against BFR for vicarious liability and direct liability. Finding no reversible error, we affirm.

On appeal from the grant of a motion for summary judgment, we conduct a de novo review of the law and evidence, viewing the evidence in the light most favorable to the nonmovant, to determine whether a genuine issue of material fact exists and whether the moving party was entitled to judgment as a matter of law. Holbrook v. Stansell, 254 Ga. App. 553, 553-554 (562 SE2d 731) (2002).

So viewed, the record shows that in December 2004, the Mahoneys signed an Exclusive Listing Agreement with Ensign, a real estate agent affiliated with BFR, where Ensign was to act as the sole listing agent for the sale of their home. On January 18, 2005, O’Dell offered to purchase the home, and the offer was accepted on January 20, 2005. Several months after the closing, the home flooded and the septic tank malfunctioned, resulting in property damage to the home. O’Dell alleged that the Mahoneys had prior knowledge of the defects causing the property damage and that the following responses on the Sellers Property Disclosure Statement form (“Disclosure Statement”) were false:

6. DRAINAGE, FLOODING AND MOISTURE:

(a) Are you aware of any water leakage, accumulation, or dampness within the basement, crawl space or other parts of the main dwelling at or below grade? No.
(b) Are you aware of any repairs being made to control any water or dampness problems in the basement, crawl space, or other parts of the main dwelling at or below grade? No.

7. PLUMBING RELATED ITEMS:

(d) What type of sewage system? Septic Tank.
(g) Do you know of any past or present leaks, backups, or other similar problems relating to any of the plumbing, water and/or sewage related items? No.

After he experienced problems with flooding on his property and with his septic tank, O’Dell filed the present negligence action against the Mahoneys.

During discovery, Roland Mahoney testified during a deposition that the signature purporting to be his on the Disclosure Statement was not his. He further alleges that he was not consulted about the contents of the Disclosure Statement before it was given to O’Dell. Sandra Mahoney admitted to signing the disclosure form but stated that she did not review it before signing it and that she is uncertain who filled it out. Sandra Mahoney did not recall if her husband was present when the disclosure form was filled out and denies signing it on his behalf. Roland Mahoney agreed that the signature looked like his wife’s writing, but speculated that Ensign might have forged his signature.

O’Dell subsequently filed a motion to add Ensign and BFR as parties to the action. The trial court granted the motion, and O’Dell’s amended complaints allege negligence and negligent misrepresentation as to BFR and Ensign, and negligent hiring as to BFR. The trial court granted BFR’s motion for summary judgment and granted Ensign’s motion to dismiss.

(a) O’Dell first contends that the trial court erred in granting summary judgment to BFR on his claim that BFR was vicariously and directly liable for Ensign’s alleged negligence. Appellees argue, and the trial court agreed, that BFR was not liable for Ensign’s conduct because Ensign was an independent contractor and not an employee of BFR.

This Court has held that a real estate brokerage firm is not responsible for the alleged torts of its affiliated real estate agents who are independent contractors. Walker v. Johnson, 278 Ga. App. 806, 812 (3) (c) (630 SE2d 70) (2006), overruled on other grounds, Kleber v. City of Atlanta, 291 Ga. App. 146, 152 (1) (c) (661 SE2d 195) (2008). Accord Ross v. Ninety-Two West, Ltd., 201 Ga. App. 887, 891 (3) (412 SE2d 876) (1991). In doing so, this Court has reiterated the well-settled doctrine that a real estate brokerage firm, such as BFR, is generally

not responsible for torts committed by [its] employee when the latter exercises an independent business, and in it is not subject to the immediate direction and control of the employer. In determining whether the relationship of parties under a contract for performance of labor is that of employer and servant or that of employer and independent contractor, the chief test lies in whether the contract gives, or the employer assumes, the right to control the time, manner, and method of executing the work as distinguished from the right merely to require certain definite results in conforming to the contract.

(Footnote omitted.) Walker, supra.

In the present case, there is no evidence that anyone other than Ensign controlled the time, manner, or method in which she worked. Ensign provided deposition testimony that she had been affiliated with BFR for the past six years because, as a licensed real estate salesperson, she was required to affiliate her license with a real estate firm. There is no written employment agreement between Ensign and BFR. Ensign was not paid a salary, but instead was paid through commissions, and her checks were issued through BFR. She generated her own business, determined which houses to show on her own, worked out of her home, and determined her own business hours and method of work. This evidence “pierces any allegation that an employer-employee relationship exists which subjects [BFR] to liability for the alleged tortious acts of [Ensign].” Ross, supra at 881 (3) (finding an independent contractor relationship between a brokerage firm and a realtor existed when there was no evidence that the realtor had a supervisor who controlled the time, manner or method of executing his work, despite the fact that the brokerage firm provided the realtor with an office, a telephone, a secretary, business cards with the firm’s logo, and advertising services).

O’Dell attempts to create an issue of material fact by pointing to his own deposition testimony explaining that he had a real estate business license and had himself been associated with BFR for a period of six months. O’Dell explained that during his experience with the firm, Ben Farmer had reviewed all of his contracts. However, this argument is unavailing because O’Dell testified that he was unfamiliar with Ensign’s business arrangement with BFR.

O’Dell’s reliance upon Mark Six Realty Assocs., Inc. v. Drake, 219 Ga. App. 57 (463 SE2d 917) (1995), a case finding that a realtor was an employee of a brokerage firm, is misplaced as well. In Mark Six, the evidence presented showed that the realtor was “by no means a ‘typical’ real estate salesperson” because she was assigned to sell preconstruction lots in a certain subdivision as her sole and exclusive employment during specified business hours, the realtor was required to use certain procedures formulated by the broker when negotiating the sale of a lot within the subdivision, and she was subjected to quarterly reviews. Id. at 58-59 (1). None of those factors exist in the present employment situation between Ensign and BFR. Further, the Mark Six Court noted that “in a more typical business arrangement with a [r]ealtor or broker, a real estate salesperson clearly occupies the position of an independent contractor.” Id. at 58 (1).

O’Dell points to evidence that BFR provided the standard forms promulgated by the Georgia Association of Realtors to Ensign through a computer software program, and that once Ensign sold a home, she submitted her paperwork to BFR as evidence that Ensign was not an independent contractor. However, O’Dell has provided no evidence that the use of the forms or the submission of the paperwork was mandatory. This Court in Mark Six recognized that typically,

great care is taken by the realtor to refrain from exercising control over the manner in which individual salespersons conduct their work. No particular working hours are set. The salespersons exercise personal initiative to obtain “listings,” or the opportunity to sell existing houses, from individual owners. Duties that could be considered “control” by the realtor, such as attending sales meetings . . . are clearly designated as “optional.” Items such as form contracts, telephones, and office supplies are either paid for by the salesperson or provided as a convenience with no requirement that they be used.

(Citations omitted.) Id.

Accordingly, the trial court did not err in granting BFR’s motion for summary judgment as to O’Dell’s claims against it for vicarious liability for any alleged fraud by Ensign.

(b) O’Dell next contends that he should be permitted to maintain a cause of action against BFR for violating its duties under the Brokerage Relationships in Real Estate Transactions Act, OCGA § 10-6A-5 (“BRRETA”). Under this Act, a broker engaged by a seller must disclose to potential buyers

[a] 11 adverse material facts pertaining to the physical condition of the property and improvements located on such property including but not limited to material defects in the property, environmental contamination, and facts required by statute or regulation to be disclosed which are actually known by the broker which could not be discovered by a reasonably diligent inspection of the property by the buyer [.]

OCGA § 10-6A-5 (b) (1). Pretermitting whether BFR, the broker in this case, knew any adverse facts about the property’s propensity to flood or its faulty septic system, it is undisputed that O’Dell did not exercise diligence in determining the condition of the property because he did not conduct an inspection. This failure to inspect the property, which would have revealed the flooding and septic issues, is fatal to his claims. See Shaw v. Robertson, 307 Ga. App. 337, 341 (2) (705 SE2d 210) (2010) (because reasonably available government documents, records, and maps revealed that the property was in a flood zone and the buyer failed to make a diligent inspection of such records, buyer was unable to recover from the selling agent or broker based on any alleged failure on their part to disclose information under the BRRETA). Accord Peacock v. Kiser, 272 Ga. App. 83, 86 (2) (611 SE2d 747) (2005).

Further, O’Dell’s argument that BFR owes him a general duty of reasonable care under OCGA § 10-6A-5 (a) (3) is misplaced. OCGA § 10-6A-5 (a) (3) applies only to the responsibility of brokers who are engaged by sellers. This is not the situation in the present case, as the Mahoneys engaged Ensign to represent them, and not BFR.

3. O’Dell argues that the trial court erred in granting summary judgment to BFR on his claims for fraud. However, this enumeration is not properly before us as O’Dell did not raise fraud as a cause of action in any of his complaints and the trial court did not rule upon it in his motion for summary judgment. See Pfeiffer v. Ga. Dept. of Transp., 275 Ga. 827, 829 (2) (573 SE2d 389) (2002) (“absent special circumstances, an appellate court need not consider arguments raised for the first time on appeal”) (footnotes omitted).

4. O’Dell’s assertion that the trial court erred in granting summary judgment to BFR on his claim for negligent hiring and retention fails as this cause of action does not apply to independent contractors. See Mason v. Gracey, 189 Ga. App. 150, 154 (1) (c) (375 SE2d 283) (1988), disapproved on other grounds by Colquitt v. Rowland, 265 Ga. 905, 906 (2), n. 1 (463 SE2d 491) (1995).

5. The trial court dismissed all counts against Ensign on the ground that they were filed in violation of an automatic bankruptcy stay provided by 11 USC § 362. O’Dell enumerates this ruling as error. We affirm.

The relevant facts are as follows: Ensign filed a Chapter 13 bankruptcy proceeding on September 14,2007, two years after O’Dell purchased and closed on his property. O’Dell did not include Ensign as a party to this litigation until filing his first amended complaint on December 19, 2008. Ensign was served via residential service on January 13, 2009, and the trial court entered an order staying the matter as to Ensign because of the bankruptcy. On May 18, 2009, Ensign’s bankruptcy proceedings were dismissed, and on May 20, 2009, Ensign filed an answer and special appearance in the present case asserting, in relevant part, the affirmative defenses of insufficient service, insufficient service of process, and that the litigation was void ab initio due to her bankruptcy proceedings. On June 4, 2009, O’Dell made an unsuccessful attempt to serve Ensign, and Ensign filed a motion to dismiss. The trial court granted Ensign’s motion to dismiss, holding that O’Dell’s suit against her was void ab initio because the lawsuit was commenced in violation of the automatic bankruptcy stay.

Section 362 (a) of the Bankruptcy Code provides a very broad stay of actions where an individual debtor files a bankruptcy case. Section 362 (a) (1) stays the commencement or continuation of any judicial action “against the debtor that was or could have been commenced before [the bankruptcy case was filed] or to recover a claim against the debtor that arose before the commencement of the [bankruptcy case].” (Emphasis supplied.) Generally, “actions taken in violation of an automatic stay are void ab initio.” (Citations omitted.) McKeen v. Fed. Deposit Ins. Corp., 274 Ga. 46, 48 (549 SE2d 104) (2001).

In the present case, O’Dell’s cause of action accrued two years before Ensign filed for bankruptcy protection, but he did not file suit against her or perfect service or service of process upon her until over a year after her bankruptcy proceedings began. At the time of Ensign’s bankruptcy filing, there was no claim by O’Dell against Ensign and no reason for Ensign to name O’Dell as a creditor. Accordingly, because the “automatic stay is effective whether or not a party has actual notice of a bankruptcy case,” (footnote omitted) Odion v. Varon, 312 Ga. App. 242, 243 (1) (718 SE2d 23) (2011), and because O’Dell has cited no exception applicable in the present case, we find that the trial court did not err in finding that O’Dell’s action against Ensign was void ab initio and in granting Ensign’s motion to dismiss.

Decided October 28, 2013.

Savage, Turner, Pinson & Karsman, Brent J. Savage, Brent J. Savage, Jr., for appellant.

Weissman, Nowack, Curry & Wilco, Ned Blumenthal, Laura S. Morris, Thomas J. Mahoney, Jr., for appellees.

Relying on Schafer v. Wachovia Bank of Ga., N.A., 248 Ga. App. 466 (546 SE2d 846) (2001), O’Dell argues that the automatic stay does not bar his claims against Ensign because Ensign did not list him as a creditor in her bankruptcy petition and because he did not otherwise have notice of the bankruptcy petition. In Schafer, this Court stated in a footnote that “a creditor not listed in the bankruptcy petition and not subject to discharge in bankruptcy is not under the automatic stay, because they are outside the ambit of the bankruptcy petition.” Id. at 467 (1), n. 1 (citing In re Kristiniak, 208 B. R. 132 (E.D. Pa. 1997)). However, this statement mischaracterizes the cited authority, In re Kristiniak, supra, which does not stand for the proposition that all creditors who are omitted from a bankruptcy petition are exempt from the bankruptcy stay without petitioning the Bankruptcy Court for relief. Rather, in In re Kristiniak, the Bankruptcy Court held that a creditor who had been omitted from a Chapter 13 debtor’s schedule was, after filing a proper motion with the Bankruptcy Court, entitled to relief from an automatic stay when no proof of claim was filed in time to permit the creditor to participate in distribution to unsecured creditors. Id. In re Kristiniak does not hold, as Schafer indicates, that a bankruptcy stay is inapplicable to those creditors not listed on the bankruptcy petition. Accordingly, to the extent that Schafer holds that a creditor who was omitted from a bankruptcy petition need not petition to the Bankruptcy Court for relief from the automatic stay, but instead receives such relief automatically, it is overruled. Further, to the extent that this holding was restated in Jinks v. Eastman Enterprises, Inc., 317 Ga. App. 489, 491 (731 SE2d 378) (2012), that case is overruled in part.

Judgment affirmed.

Phipps, C. J., Andrews, P. J., Barnes, P. J., Ellington, P. J., Doyle, P. J., Dillard, McFadden, Boggs, Branch, and McMillian, JJ., concur. Miller, J., concurs in judgment only.

       In Cherry, this Court held that
      in a multiple-party case, an entry of a judgment as to one or more but fewer than all of the claims or parties is a final, appealable judgment under OCGA § 9-11-54 (b) only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment by the trial court.
      (Citations and punctuation omitted; emphasis in original.) Id. at 472 (1). The trial court in this instance has made no such ruling.

       The April 17, 2012, order granting BFR’s motion for summary judgment was directly appealable under OCGA § 9-11-56 (h) which provides that “[a]n order granting summary judgment on any issue or as to any party shall be subject to review by appeal.” (Emphasis supplied.) This Court has held that OCGA § 9-11-56 (h) “gives a losing party the right to a direct appeal from an order granting summary judgment on any issue or as to any party even though the judgment is not final under OCGA § 5-6-34 or 9-11-54 (b).” (Citations and punctuation omitted.) Whiddon, supra at 827. The March 5, 2012, order granting Ensign’s motion to dismiss was appealable only as an interlocutory appeal. See Mann Elec. Co. v. Webco Southern Corp., 194 Ga. App. 541, 542 (1) (390 SE2d 905) (1990).

       O’Dell’s contention that BFR could be held liable under OCGA § 51-2-5 (4) for Ensign’s violation of a duty imposed by statute, in this case, BRRETA, is similarly without merit.

       On October 16, 2009, O’Dell filed his second amended complaint, and Ensign was personally served. However, this second amended complaint was filed after the statute of limitations had expired. O’Dell makes no argument that the service of this second amended complaint relates back or otherwise was effective.

       Compare In re Katz, 203 B. R. 227, 235 (C) (E.D. Pa. 1996) (“A debtor has a duty to list all known potential obligations on the Schedules”) (citations omitted).

       See West v. Men’s Focus Health Centers of Ga., Inc., 251 Ga. App. 202 (553 SE2d 379) (2001) (as a general rule, actions taken in violation of an automatic stay are deemed void and without effect; however, the bankruptcy court is authorized under § 362 (d) of the Bankruptcy Code to “annul” an automatic stay).


author: ANDREWS, Presiding Judge.

text:
    A13A0961.
    GOWEN OIL COMPANY v. STREAT.
    (750 SE2d 708)
   ANDREWS, Presiding Judge.

Gowen Oil Company sued Jerry F. Streat claiming that, while Streat was working as a fuel pump calibration inspector for the Georgia Department of Agriculture (GDOA), Streat engaged in a conspiracy with fuel stations by accepting payments to inform the stations of the random dates on which GDOA planned to inspect their fuel pumps. Gowen alleged that this allowed the stations to improperly calibrate fuel pumps to dispense less fuel than was paid for by consumers and avoid detection during the GDOA inspections. Gowen sold fuel to the stations and claimed that, as a result of this fraudulent scheme, it suffered over $1,000,000 in damages to its business. Gowen’s suit sought to hold Streat individually liable in tort for its damages based on alleged actions he took while he was working as an employee of the GDOA. Streat moved for dismissal of the complaint pursuant to OCGA § 9-11-12 (b) (1) for lack of subject matter jurisdiction on the basis that, as an employee of the GDOA, he was immune from the suit under the Georgia Tort Claims Act (GTCA) set forth at OCGA § 50-21-20 et seq. Gowen appeals from the trial court’s order granting the dismissal motion. For the following reasons we affirm.

Gowen does not dispute that, when Streat took the above-alleged actions, he was acting within the scope of his official duties or employment with a department of the State of Georgia, the GDOA. The GTCA provides broad immunity from tort suits and liability to state officers and employees acting within the scope of their state employment. The GTCA “constitutes the exclusive remedy for any tort committed by a state officer or employee. A state officer or employee who commits a tort while acting within the scope of his or her official duties or employment is not subject to lawsuit or liability therefor.” OCGA § 50-21-25 (a). This means that state officers and employees (as defined in OCGA § 50-21-22 (7)) are immune from tort suits seeking to impose individual liability on them for any tort committed by them within the scope of state employment, including torts based on intentional wrongful conduct or actions taken with malice and intent to injure. Ridley v. Johns, 274 Ga. 241 (552 SE2d 853) (2001); Ferrell v. Young, 323 Ga. App. 338 (746 SE2d 167) (2013). This broad immunity from individual liability implements the legislative intent expressed in the GTCA that state officers and employees be free to act within the scope of their state employment without fear of lawsuits and loss of personal assets, and that “it is declared to be the public policy of this state that state officers and employees shall not be subject to lawsuit or liability arising from the performance or nonperformance of their official duties or functions.” OCGA § 50-21-21 (b).

Decided October 28, 2013

Savage, Turner, Pinckney & Madison, Brent J. Savage, Brent J. Savage, Jr., for appellant.

Samuel S. Olens, Attorney General, G. MichaelBanick, Sharon P. Horne, Assistant Attorneys General, for appellee.

We find no support in the GTCA for Gowen’s claim that Streat remained individually liable in tort for negligent ministerial acts or for acts performed with malice or intent to injure. Dollar v. Olmstead, 232 Ga. App. 520, 522-523 (502 SE2d 472) (1998); Minor v. Barwick, 264 Ga. App. 327, 336-337 (590 SE2d 754) (2003); Hardin v. Phillips, 249 Ga. App 541, 543-544 (547 SE2d 565) (2001). Regardless of whether Streat’s alleged actions, taken within the scope of his state employment, were ministerial or done with malice or intent to injure, under the provisions of the GTCA, Streat was immune from Gowen’s tort suit seeking to hold him individually liable.

Because the GTCA rendered Streat immune from the suit, the trial court correctly granted his motion under OCGA § 9-11-12 (b) (1) to dismiss the suit for lack of subject matter jurisdiction. Dept. of Transp. v. Dupree, 256 Ga. App. 668, 670-674 (570 SE2d 1) (2002).

Judgment affirmed.

Dillard and McMillian, JJ., concur.


text:
    A13A0969.
    STATE OF GEORGIA DEPARTMENT OF CORRECTIONS v. DEVELOPERS SURETY AND INDEMNITY COMPANY.
    (750 SE2d 697)
   Ray, Judge.

This case stems from a construction contract entered between the Georgia Department of Corrections (“GDOC”) and Lewis Walker Roofing (‘Walker Roofing”) for the purpose of re-roofing certain buildings at the Valdosta State Prison. After a nearly two-year-long delay in completing the project, GDOC declared the contract in default, and the payment and performance bonds issued by Developers Surety and Indemnity Company (“Developers Surety”) for the benefit of GDOC as obligee were invoked. Developers Surety then filed the present suit against GDOC, alleging that GDOC breached the construction contract it entered into with Walker Roofing. Developers Surety also sought a declaratory judgment that, as a result of GDOC’s breach of the construction contract, it had no obligation to perform its obligations under the payment and performance bond it issued to Walker Roofing on behalf of GDOC. GDOC filed a counterclaim for breach of contract. Both parties filed cross-motions for summary judgment. In its motion for summary judgment, GDOC argued that the doctrine of sovereign immunity barred Developers Surety’s claims against it. GDOC appeals from the trial court’s order granting Developers Surety’s summary judgment motion and denying GDOC’s summary judgment motion. Finding no error, we affirm .

On appeal from the grant or denial of a motion for summary judgment, “this Court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.” (Citation omitted.) Shekhawat v. Jones, 293 Ga. 468 (746 SE2d 89) (2013).

So viewed, the relevant evidence shows as follows. On April 25, 2008, GDOC posted an “Invitation to Bid” for a construction project that involved replacing the roofs on several buildings located at the Valdosta State Prison. On June 12, 2008, GDOC awarded the project to Walker Roofing. The construction contract between GDOC and Walker Roofing included two “no assignment” clauses prohibiting Walker Roofing from assigning its performance or right to payment under the contract.

As a prerequisite to contracting with GDOC, Walker Roofing was required to obtain payment and performance bonds that would assure its performance under the contract. Developers Surety issued payment and performance bonds to Walker Roofing. Walker Roofing and Developers Surety had previously signed a general agreement of indemnity in favor of Developers Surety that included a provision in which Walker Roofing assigned to Developers Surety the company’s right to payment under bonded contracts as security against any losses that Developers Surety might suffer under a bond. GDOC is not a party to the indemnity agreement. The bonds required Developers Surety, upon default of Walker Roofing, to “promptly remedy the default or defaults or to promptly perform the [cjontract in accordance with its terms and conditions.” It also required Developers Surety to give GDOC notice “within twenty-five (25) days after receipt of a declaration of default of the surety’s election either to remedy the default or defaults promptly or to perform the contract promptly.”

Walker Roofing began work at the Valdosta State Prison on December 1, 2008. Pursuant to its construction contract, Walker Roofing was required to complete its work within 150 consecutive calendar days; however, the work was not completed as of September 23, 2010, when GDOC declared Walker Roofing in default. The contract between Walker Roofing and GDOC states that Walker Roofing shall have access to work areas on weekdays between 7:30 a.m. and 5:00 p.m. However, Walker Roofing’s daily start time was delayed by at least thirty minutes and up to two-and-a-half hours because the workers experienced difficulties gaining access to the prison grounds. GDOC additionally required Walker Roofing to have their equipment properly secured and the roofers off the project site by 4:30 p.m., not 5:00 p.m. as per the contract. To exit the project site and secure their equipment by 4:30 p.m., however, the roofing crew had to stop work at 3:30 p.m. Work was further delayed because Walker Roofing was prohibited from accessing more than one roof at a time, GDOC assigned only one prison guard to monitor the roofing crew, and work was not permitted when the assigned guard was unavailable due to sickness or vacation time.

On September 23, 2010, GDOC issued a formal notice of default with respect to the performance of Walker Roofing, thus triggering Developers Surety’s obligations under the performance bond. Developers Surety did not notify GDOC within 25 days of receipt of GDOC’s notice of default regarding whether it would remedy the default or perform the contract. However, on January 12, 2011, approximately three months after the declaration of default, Developers Surety offered to GDOC that it “could enter into a contract with Skyline for the completion of the work on the Project (this process being sometime known as a ‘tender of completion contractors’).” GDOC then contracted with Skyline to complete the project. Prior to Walker Roofing’s default, Developers Surety had provided financial assistance to Walker Roofing under the payment and performance bonds in the amount of $577,118.60, and it additionally incurred $160,161.39 in costs and attorney fees arising from its investigation of its liability, if any, under the default.

On July 12, 2011, Developers Surety filed the present complaint against GDOC for breach of contract and for a declaratory judgment that it had no obligation under the payment and performance bond it issued to Walker Roofing on behalf of GDOC. The parties filed cross-motions for summary judgment. After a hearing, the trial court found that Developers Surety’s claims were not barred by sovereign immunity and that GDOC had breached the construction contract as a matter of law. Thus, it granted Developers Surety’s motion for summary judgment and denied GDOC’s motion for summary judgment. In the same order, the trial court entered a judgment in favor of Developers Surety in the amount of $577,118.60. GDOC appeals from that order.

1. GDOC contends that the trial court’s denial of its summary judgment motion was in error because Developers Surety was not a party to the construction contract between GDOC and Walker Roofing and, thus, that the State’s waiver of sovereign immunity for breach of contract did not apply to Developers Surety. We disagree.

“ [Sovereign immunity is a threshold issue that the trial court [is] required to address before reaching the merits of any other argument.” (Footnote omitted.) Albertson v. City of Jesup, 312 Ga. App. 246, 248 (1) (718 SE2d 4) (2011). It is axiomatic that “[t]he party seeking to benefit from the waiver of sovereign immunity bears the burden of proving such waiver.” (Citations omitted.) Bd. of Regents of the Univ. System of Ga. v. Doe, 278 Ga. App. 878, 881 (1) (630 SE2d 85) (2006). It is also well settled that “the sovereign cannot be sued in its own courts, or in any other court, without its consent and permission; but it may, if it thinks proper, waive this privilege, and permit itself to be made a defendant in a suit by individuals.” (Punctuation and footnotes omitted.) DeKalb County School Dist. v. Gold, 318 Ga. App. 633, 636 (1) (734 SE2d 466) (2012). The Georgia Constitution provides that, except as specifically provided therein, “[t]he sovereign immunity of the [S]tate and its departments and agencies can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.” Ga. Const. Art. I, Sec. II, Par. IX (e). One of the Constitution’s exceptions to the defense of sovereign immunity is for “any action ex contractu for the breach of any written contract... entered into by the [S]tate or its departments and agencies.” Id at (c).

GDOC contends that the waiver of the State’s sovereign immunity for contract actions does not apply in the present suit because Developers Surety was not a party to the construction contract between GDOC and Developers Surety. However, Developers Surety argues, and the trial court agreed, that GDOC waived sovereign immunity by entering into a contract with Walker Roofing and that the doctrine of equitable subrogation gave Developers Surety, as the surety, the ability to “step into the shoes” of Walker Roofing and file suit against GDOC once it incurred liability and paid the obligations of its principal under the bond. See Nova Casualty Co. v. United States, 69 Fed. Cl. 284, 296 (C) (1) (2006).

Under Georgia law, “[a] surety who has paid the debt of his principal shall be subrogated, both at law and in equity, to all rights of the creditor and, in a controversy with other creditors, shall rank in dignity the same as the creditor whose claim he paid.” OCGA § 10-7-56. The right of subrogation “is not founded upon contract, express or implied, but upon principles of equity and justice.” Argonaut Ins. Co. v. C&S Bank of Tifton, 140 Ga.App. 807, 811 (232 SE2d 135) (1976). Subrogation is a substitution of the parties, such that the substituted entity succeeds all rights of another. Cotton States Mut. Ins. Co. v. Citizens and Southern Nat. Bank, 168 Ga. App. 83, 86 (1) (308 SE2d 199) (1983).

Georgia courts have not yet addressed waiver of sovereign immunity in the context of equitable subrogation. Accordingly, we must decide whether Developers Surety, as subrogee, may rely on the State’s waiver of sovereign immunity for the breach of any contract entered into by a state agency after it steps into the shoes of Walker Roofing. In doing so, we find the reasoning set forth in the United States Court of Appeals for the Federal Circuit’s opinion, Ins. Co. of the West v. United States, 243 F3d 1367, 1367 (C.A. Fed., 2001), to be persuasive.

In Ins. Co. of the West, the surety of a contractor had financed the completion of a government contract after the contractor defaulted, and the surety then sued the government directly to recover the remaining funds. Id. at 1369 (I). In that case, the appellate court held that the federal government’s waiver of sovereign immunity under the Tucker Act for “any claim against the United States founded... upon any express or implied contract with the United States” was not limited to claims asserted by the original parties to the contract, but that the waiver of sovereign immunity applied to subrogees as well. Id. at 1372-1374 (IV). In doing so, the court reasoned that the language of the Tucker Act was not “limited to claims asserted by the original claimant,” but instead that the language of the act “contain [ed] an unequivocal expression waiving sovereign immunity as to claims, not particular claimants.” (Emphasis supplied.) Id. at 1373-1374 (IV). Thus, the Ins. Co. of the West court held that

waivers of sovereign immunity applicable to the original claimant are to be construed as extending to those who receive assignments, whether voluntary assignments or assignments by operation of law, where the statutory waiver of sovereign immunity is not expressly limited to waivers for claims asserted by the original claimant.

Id. at 1373 (IV).

Similar to the federal government’s waiver of sovereign immunity under the Tucker Act, the language of the Constitution of Georgia does not limit the waiver of the State’s sovereign immunity for breach of contract actions to particular claimants. Rather, our Constitution provides that “[t]he state’s defense of sovereign immunity is hereby waived as to any action ex contractu for the breach of any written contract . . . entered into by the state or its departments and agencies.” (Emphasis supplied.) Ga. Const. Art. I, Sec. II, Par. IX (c). Accordingly, we find that Developers Surety, a subrogee stepping into the shoes of Walker Roofing, may rely upon the waiver of sovereign immunity that applied to the government contractor. See also Nova Cas. Co., supra at 293-295 (B), 296 (C) (1). Thus, we find no error in the trial court’s denial of GDOC’s motion for summary judgment on sovereign immunity grounds.

2. GDOC next contends that the anti-assignment clauses contained in the construction contract rendered any assignment by Walker Roofing to Developers Surety ineffectual and, thus, that the trial court’s grant of summary judgment to Developers Surety was in error. We disagree.

The construction contract between GDOC and Walker Roofing contained two anti-assignment clauses, which provide that: “[tjhis Agreement and the proceeds of this Agreement may not be assigned nor may the performance thereunder be assigned, except with the prior written consent of the [GDOC],” and that “[n]either party to the contract shall assign the contract or sublet it as a whole nor shall the Contractor assign any moneys due or to become due to him hereunder.” GDOC argues that these anti-assignment clauses prohibited Walker Roofing from assigning its rights under the construction contract to Developers Surety. However, in its order, the trial court held that the anti-assignment clauses contained in the construction contract were unenforceable because “the Uniform Commercial Code [‘UCC’] at OCGA § 11-9-406 . . . nullifies these [a]nti-[assignment provisions.”

GDOC argues that OCGA § 11-9-406 (d), the UCC provision prohibiting no-assignment clauses in contracts, does not apply in the present case because the construction contract between GDOC and Walker Roofing was not a “secured transaction” as defined by OCGA § 11-9-109 (a). Alternatively, GDOC argues that even if the underlying construction contract could be found to be a “secured transaction,” OCGA § 11-9-109 (d) (16) states that “[t]his article does not apply to... [a] security interest created by or affecting property of this state or any governmental unit of this state in any public finance transaction. . . .” However, these arguments are unavailing.

We agree with Developers Surety’s contention that its security interest was not in the construction contract or the personal property or fixtures of the State, as GDOC argues, but rather that, under the indemnity agreement, Developers Surety had a security interest in accounts comprised of the amounts payable to Walker Roofing pursuant to any contract subsequently bonded by Developers Surety. OCGA § 11-9-406 (d) (1) renders any restriction on the assignment of accounts unenforceable. That subsection provides that “a term in an agreement between an account debtor and an assignor . . . shall be ineffective to the extent that it... [prohibits, restricts, or requires the consent of the account debtor ... to the assignment or transfer of... the account, chattel paper, [or] payment intangible____” An “account” is defined as a “right to payment of a monetary obligation, whether or not earned by performance . . . for services rendered or to be rendered.” OCGA § 11-9-102 (a) (2). An “account debtor” is “a person obligated on an account.” OCGA § 11-9-102 (a) (3). In the present scenario, the “account” is the right to receive payment from GDOC under the construction contract; GDOC, as the entity obligated to pay money due on the account, is the “account debtor.” Thus, the security interest in the accounts owed by GDOC to Walker Roofing is covered by the UCC, and to the extent that the anti-assignment clauses of the construction contract could be construed to prohibit Walker Roofing from assigning its right to these accounts to Developers Surety, we find that they are unenforceable as a matter of law under OCGA § 11-9-406 (d) (1).

3. GDOC next contends that the trial court erred by granting Developers Surety’s summary judgment motion and finding that GDOC “materially breached the [construction contract] by imposing restrictions on [Walker Roofing’s] access to the project site that were contrary to the terms of the [construction contract].” We disagree.

The trial court’s finding that GDOC breached the construction contract was based largely upon matters deemed admitted after GDOC failed to submit a timely response to Developers Surety’s request for admissions, and the trial court denied GDOC’s motion to withdraw the admissions. See OCGA § 9-11-36 (a) (2) (“Each matter of which an admission is requested ... is admitted unless, within 30 days after service of the request or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection....”). On appeal, GDOC does not argue that the trial court erred in denying its motion to withdraw admissions. Rather, GDOC argues that its actions “were permitted under the terms of the Construction Contract” and, thus, that the trial court’s grant of summary judgment was in error. Developers Surety, on the other hand, contends that the facts deemed admitted support the trial court’s grant of summary judgment in its favor.

In order “[t]o affirm a grant of summary judgment, it must affirmatively appear from the record that no question of material fact exists and [that] the moving party is entitled to judgment as a matter oflaw.” (Citation omitted.) Crown Ford v. Crawford, 221 Ga. App. 881, 882 (473 SE2d 554) (1996). In the case at bar, the trial court’s grant of summary judgment was based on facts deemed admitted as a consequence of GDOC’s failure to respond timely to requests for admission. A party’s failure to respond timely to requests for admission conclusively establishes as a matter of law each of the matters addressed in the requests. See OCGA § 9-11-36 (b). “This is true even if the requested admissions require opinions or conclusions oflaw, so long as the legal conclusions relate to the facts of the case.” (Citation and punctuation omitted.) Robinson v. Global Resources, Inc., 300 Ga. App. 139, 140 (684 SE2d 104) (2009). Among the matters deemed admitted by GDOC as a matter oflaw are the following statements: “[a]t no point during the work period was [Walker Roofing] allowed access to the work as provided in the contract documents”; “the contract documents do not state that the contractor will be limited to access only one roof at a time”; “the contract documents do not state that security for the work will be provided by only one guard at a time . . . and [Walker Roofing] was not allowed to work when the assigned guard was unavailable due to sickness or vacation time”; Walker Roofing “experienced gate interferences and delays that prevented access to prison grounds”; and that GDOC “materially breached their contract with [Walker Roofing].” Because these “admissions covered all the essential claims presented in [Developers Surety’s] verified complaint, the trial court did not err in granting summary judgment to [Developers Surety] on the issue[s] of [breach of contract and declaratory judgment].” See Turner v. Mize, 280 Ga. App. 256, 259 (2) (633 SE2d 641) (2006).

Decided October 28, 2013

4. GDOC contends the trial court erred in dismissing GDOC’s counterclaim asserting breach of the performance bond by Developers Surety because it did not comply with the terms of the performance bond. We disagree.

The performance bond issued by Developers Surety required it to give GDOC notice “within twenty-five (25) days after receipt of a declaration of default of the [s]urety’s election to either remedy the default or defaults promptly or to perform the contract promptly.” Although GDOC issued its formal notice of default on September 23, 2010, Developers Surety did not respond until nearly three months later when it offered on January 12, 2011, that “GDOC could enter into a contract with Skyline for completion of work on the [p]roject.” GDOC’s counterclaim sought damages for breach of this provision of the performance bond claiming that it had “sustained substantial damages, including but not limited to delay damages, the cost of repairing or replacing deficient work, completion and remediation costs, extended personnel costs, and other damages to be demonstrated at trial.”

The trial court dismissed GDOC’s counterclaim for breach of this provision of the performance bond, holding that the fact that GDOC breached its contract with Walker Roofing “as a matter of law[ ] precluded] GDOC’s counterclaim from going forward.” In support of this conclusion, the trial court cited to OCGA § 10-7-2 for the rule that the liability of a surety on a bond is secondary to that of its principal. Thus, the trial court reasoned, “if [Walker Roofing] is not liable to GDOC, then [Developers Surety] cannot be liable to GDOC.”

OCGA § 10-7-2 provides that “[t]he obligation of the surety is accessory to that of his principal; and, if the latter from any cause becomes extinct, the former shall cease of course, even though it is in judgment. . . .” Since Developers Surety had no liability to GDOC under the bond, as we have found herein, then any delay of Developers Surety in giving notice to GDOC that it should proceed to hire Skyline to finish the job could not be the basis of any claim by GDOC against it. See McWhirter Material Handling Co. v. Ga. Paper Stock Co., 118 Ga. App. 582, 584 (2) (164 SE2d 852) (1968) (finding that a surety could not be held liable when its principal was found to be not liable). Accordingly, we find that the trial court’s dismissal of GDOC’s counterclaim was not in error.

Judgment affirmed.

Barnes, P. J., and Miller, J., concur.

Samuel S. Olens, Attorney General, Denise E. Whiting-Pack, Assistant Attorney General, Helen H. P. Taylor, for appellant.

Thompson & Slagle, Jefferson B. Slagle, Joseph H. Wolenski III, for appellee.

       The trial court based the amount of damages it awarded on an affidavit by Gary Perkins, a representative of Developers Surety. The trial court admitted the affidavit over GDOC’s objections and held that the Perkins affidavit was sufficient to establish Developers Surety’s damages as a matter of law because GDOC provided no affidavit or other evidence raising a question of material fact as to damages. GDOC does not challenge the amount of damages awarded on appeal.

       In making this argument, GDOC cites to case law discussing the elements of a contract and determining whether or not a written contract with a State agency exists. See Kennedy v. Ga. Dept. of Human Resources Child Support Enforcement, 286 Ga. App. 222, 224 (1) (648 SE2d 727) (2007); Bd. of Regents of the Univ. System of Ga. v. Tyson, 261 Ga. 368, 369-370 (1) (404 SE2d 557) (1991). In the present case, there is no dispute that a written contract between GDOC and Walker Roofing exists.

       28 USC § 1491 (a) (1).

       If the rule were otherwise, what rational business would agree to issue a payment or performance bond to benefit the State government? Under the rule proposed by the GDOC, if a dispute arose under such a bond, only the government or the government contractor would have a right of action. The business issuing the bond would not.


text:
    A13A1165.
    ISENHOWER v. THE STATE.
    (750 SE2d 703)
   Ray, Judge.

After a jury trial, Karen White Isenhower was convicted of loitering upon school premises (OCGA § 20-2-1180) and criminal trespass (OCGA § 16-7-21 (b)). She appeals, arguing that the evidence is insufficient to sustain her conviction for loitering upon school premises, that she received ineffective assistance of counsel, and that the trial judge erred in refusing to give a requested jury charge and in improperly commenting on the evidence. For the reasons that follow, we reverse Isenhower’s conviction for loitering upon school premises and affirm her conviction for criminal trespass.

We view the evidence in the light most favorable to the verdict. Jackson v. Virginia, 443 U. S. 307, 319 (III) (99 SCt 2781, 61 LE2d 560) (1979). So viewed, the evidence shows that Isenhower, a Heard County Commissioner, was also the mother of a student at Heard County High School. As a commissioner, she had filed complaints with Benjamin Hyatt, the superintendent of the Heard County schools, and with other entities, which alleged that Heard County High School engaged in improper child labor, as well as improper asbestos removal and disposal. After a Department of Labor investigation found no child labor violations, Hyatt sent Isenhower a letter stating that all her allegations were incorrect and that no action would be taken.

Isenhower came to the high school’s main office on May 1, 2009, looking for the principal, Russell Sowell, and for State School Superintendent Kathy Cox, who was there to tour a new school building that was under construction. Isenhower wanted to talk with Cox about the child labor and asbestos disposal issues. The school was not issuing visitor passes on this day, and Isenhower did not have an appointment to see Cox. The receptionist told Isenhower that she did not know where Cox and Sowell were. She testified that she did not tell Isenhower that visitors were not allowed that day. Isenhower then left the old school building and went to the building that was under construction, where she found Cox, Sowell, and the school superintendent, Hyatt, on the third floor. Sowell asked her to leave, and she did.

Sowell then called the assistant principal, Christopher Edwards, to report an “unauthorized visitor” — Isenhower — in the building. Edwards found her on the second floor of the new building. He told her that she was not supposed to be there and that she needed to leave. She told him that she was supposed to be there and did not need to leave. It is undisputed that when he again told her to leave, she did so. As she crossed the parking lot with Edwards, he told a police officer who had been called because of Isenhower’s presence that she needed to leave. The officer told Isenhower to leave. She then left campus in her vehicle, which she moved across the street to a nearby restaurant, where she remained until Cox left.

Because of the above-described events, Isenhower was charged and convicted under OCGA § 20-2-1180 and was sentenced to 12-months probation and 200 hours of community service.

1. Isenhower contends that the evidence was insufficient to sustain her conviction under OCGA § 20-2-1180. The indictment under which Isenhower was charged and convicted on this count states that she “did willfully fail to remove herself from [school] premises after being requested to do so by Assistant Principal Chris Edwards.”

OCGA § 20-2-1180, in pertinent part, provides that

(a) It shall be unlawful for any person to remain upon the premises or within the school safety zone... of any public or private school in this state ... when that person does not have a legitimate cause or need to be present thereon. Each principal or designee of each public or private school in this state shall have the authority to exercise such control over the buildings and grounds upon which a school is located so as to prohibit any person who does not have a legitimate need or cause to be present thereon from loitering upon such premises. . . .
(b) Any person who: (1) [ijs present upon the premises or within the school safety zone of any public or private school in this state and willfully fails to remove himself or herself from such premises after the principal or designee of such school requests him or her to do so; or (2) [f jails to check in at the designated location ... shall be guilty of a misdemeanor of a high and aggravated nature.

(Emphasis supplied.)

It is undisputed that Isenhower was present on school premises on the date listed in the indictment, and Sowell, the principal, testified that she checked in at the school’s front office. Isenhower contends that the State failed to carry its burden of showing that she “ ‘willfully failfed] to remove’ herself from the school premises once asked to do so.” We agree.

Viewed appropriately, Jackson, supra, the State has failed to prove its case. The statute at issue here, OCGA § 20-2-1180, has rarely been cited by our appellate courts and has never been substantively construed. See, e.g., Walker v. State, 323 Ga. App. 558 (1) (747 SE2d 51) (2013) (Branch, J., dissenting); In the Interest of M. P., 279 Ga. App. 344, 346 (2) (631 SE2d 383) (2006). Thus, in construing OCGA § 20-2-1180, “we apply the fundamental rules of statutory construction that require us to construe the statute according to its terms, to give words their plain and ordinary meaning.” (Citation and punctuation omitted.) Doe v. State, 290 Ga. 667, 668 (725 SE2d 234) (2012). “To determine the legislative intent of a statute, we begin with the literal text; where the literal text of a statute is plain and does not lead to absurd or impracticable consequences, we apply the statute as written without further inquiry.” (Citation omitted.) Hill v. State, 309 Ga. App. 531, 533 (710 SE2d 667) (2011).

Here, the literal text of the statute is plain, and we must apply it as written. In pertinent part, OCGA § 20-2-1180 (a) provides that “[i]t shall be unlawful for any person to remain upon the premises” and gives the principal or a designee, absent the defendant’s legitimate need or cause to be present, the authority to prevent “loitering upon such premises.” (Emphasis supplied).

Edwards estimated that from the time he first spoke with Isenhower on the second floor and walked out of the building with her, two to four minutes had elapsed. He testified that his conversation with Isenhower and her conversation with the police officer took place only seconds apart, and then she left.

Because we must construe statutes so as to avoid absurd results, Hill, supra at 533, it is logical that upon being asked to leave by Edwards, Isenhower could not simply vanish into thin air, “disapparating” like a character in one of J. K. Rowling’s “Harry Potter” novels. (Isenhower was, after all, at Heard County High School, not Hogwarts.) Rather, before running afoul of the statute and violating its prohibition on any willful failure to remove herself, OCGA § 20-2-1180 (b) (1), Isenhower first had to be given some reasonable amount of time to remove herself from the second floor of the building, reach her vehicle in the parking lot below, and drive off the school grounds. See generally Pressley v. State, 269 Ga. App. 143, 145 (1) (c) (603 SE2d 699) (2004) (in the context of criminal trespass, OCGA § 16-7-21 (b), to sustain a conviction, the person charged must be given a “reasonable amount of time” to leave and must fail to do so); Hall v. State, 322 Ga. App. 313, 316 (3) (744 SE2d 833) (2013) (in the context of loitering, OCGA § 16-11-36, courts have considered the length of time a defendant was present on the premises as a factor in determining guilt) and Hubbard v. State, 311 Ga. App. 671, 673 (1) (716 SE2d 777) (2011) (same).

The undisputed testimony shows that Isenhower spent approximately two to four minutes walking from the second floor of the building to the parking lot. No testimony indicates that she intentionally delayed in driving off school premises, nor does any testimony show that she resisted leaving.

While, on appeal, we neither weigh the evidence nor determine witness credibility, we do determine whether any rational jury could have found the essential elements of the crime beyond a reasonable doubt. Jackson, supra. Here, no rational jury could find that Isenhower remained or loitered upon the premises to such an extent that she willfully or intentionally failed to remove herself in violation of the statute. Isenhower’s conviction pursuant to OCGA § 20-2-1180 must be reversed.

2. Isenhower also was convicted of criminal trespass for her entry onto school grounds on February 3, 2010, pursuant to OCGA § 16-7-21 (b) (3), which provides that “[a] person commits the offense of criminal trespass when he or she knowingly and without authority: . . . Remains upon the land or premises of another person . . . after receiving notice ... to depart.” She was sentenced to 12 months of probation and 200 hours of community service for this offense.

Isenhower argues that the trial court erred in failing to instruct the jury on justification as to this charge. She bases her argument on appeal on OCGA § 16-3-20 (6), which provides that “[t]he fact that a person’s conduct is justified is a defense to prosecution for any crime based on that conduct. The defense of justification can be claimed:... In all other instances which stand upon the same footing of reason and justice as those enumerated in this article.”

Viewed appropriately, Jackson, supra, the evidence is undisputed that Isenhower was on campus on February 3, 2010, despite previously having been banned via an August 2009 letter that stated that she “should not be on campus or at any school sponsored event unless you have advance written authorization from the Superintendent of Schools or his designee.” No testimony was presented that Isenhower was given such written authorization. Rather, Isenhower argues that her presence on campus was justified because school administrators had verbally agreed to meet with her and her son at the school, and because the purpose of the meeting was to discuss her son’s welfare. School officials testified that although they had met with Isenhower off-campus on February 2, 2010, they had not invited her to attend any on-campus meeting on February 3, 2010.

At trial, Isenhower’s counsel orally requested a jury charge on justification, which the trial court denied. Generally, where no written request for a jury charge has been filed, the failure to give that charge is not error. “The trial court must charge the jury on the defendant’s sole defense, even without a written request, if there is some evidence to support the charge.” (Punctuation and footnote omitted.) Jones v. State, 315 Ga. App. 688, 689 (727 SE2d 512) (2012). Thus, the question before us is whether the affirmative defense of justification that Isenhower wished to assert was authorized by the evidence. This is a question of law. Brower v. State, 298 Ga. App. 699, 702 (1) (680 SE2d 859) (2009). “With a legal affirmative defense, the accused admits the elements of the crime, but seeks to justify, excuse, or mitigate by showing no criminal intent[.]” (Citation and punctuation omitted.) Id.

In her argument, Isenhower relies on Tarvestad v. State, 261 Ga. 605 (409 SE2d 513) (1991), in which our Supreme Court found that the defendant was justified in driving without a license because he was taking his pregnant wife to the doctor after the doctor had told him to do so and had instructed that his wife not drive. Id. at 606. Our Supreme Court reasoned that the trial court erred by not charging the jury on the defendant’s sole defense of justification because the evidence indicated that a jury could have found that the defendant’s driving without a license stood on “ ‘the same footing of reason and justice’ ” as other provisions of the justification statute. Id., quoting OCGA § 16-3-20 (6). Those other provisions, at OCGA § 16-3-20 (2), (3), and (4), permit a justification defense for “a government employee’s reasonable fulfillment of his duties, a parent’s reasonable discipline of a child, and a person’s reasonable conduct in performing a citizen’s arrest.” Tarvestad, supra.

However, in a later case in which our Supreme Court denied certiorari, this Court determined that in cases where the high court found that a justification charge was appropriate, a

common thread in all of the examples noted by the Supreme Court is that the actor had a duty to act in regard to others. . . . We find it highly unlikely that, absent an immediate need for action, a justification charge would be authorized. A premise underlying all the defenses specified in OCGA § 16-3-20 is that the defendant faced circumstances created by external events that demanded prompt, if not immediate, action.

(Citations omitted; emphasis supplied.) Brower, supra at 705 (1). See Jones, supra at 690-691 (no justification charge required where defendant knew his lane would end and sped up in order to merge, but did not testify that he accelerated to 103 miles per hour because he had no safer option); Moon v. State, 244 Ga. App. 443, 444 (1), 446 (3) (535 SE2d 771) (2000) (no justification charge required where, in a non-emergency situation, a drug addict undergoing physical symptoms of withdrawal stole a truck so he could get to a clinic for medication, when he instead could have asked bystanders for help or called 911); Odum v. State, 220 Ga. App. 263, 263-264 (469 SE2d 394) (1996) (no justification charge required where defendant’s own actions, in a non-urgent situation, led him to be one of three unlicensed occupants of a car when he chose to drive that car to a police roadblock).

Here, Isenhower was banned from campus through her own actions, and no evidence indicates that her need to advocate for her son’s welfare was so immediate that she was prevented from double-checking with school authorities to ensure that she had permission to be on campus, particularly given the ban’s requirement that she have written permission. Thus, “[ejven though [Isenhower] asserts that justification was [her] sole defense, it is not error to refuse a justification charge when there is no evidence to support it.” (Citations omitted.) Brower, supra at 706 (1).

3. Isenhower contends that she received ineffective assistance of counsel because her trial lawyer failed to call certain witnesses and to conduct full interviews relevant to her conviction for remaining upon school premises pursuant to OCGA § 20-2-1180. She also contends that the trial court improperly commented that the evidence did not support her justification defense in regards to the charge of remaining upon school premises pursuant to OCGA § 20-2-1180. Because we found the evidence insufficient to sustain her conviction on this count in Division 1, supra, we need not reach these enumerations of error.

Judgment affirmed in part and reversed in part.

Barnes, P. J., and Miller, J., concur.

Decided October 28, 2013.

Brandon A. Bullard, Rachel E. Gordon, for appellant.

Peter J. Skandalakis, District Attorney, Timothy M. Marlow, Assistant District Attorney, for appellee.

       The jury acquitted Isenhower of another count of criminal trespass, and she received a directed verdict on two additional counts of loitering upon school premises.

       Isenhower also alleges error as to the trial court’s refusal to charge the jury on justificationin connection with the loiteringupon school premises charge under OCGA § 20-2-1180. Because in Division 1, supra, we found the evidence insufficient to sustain that conviction, we need not address her contention of error on this point.