author: DOYLE, Chief Judge.

text:
    A15A0881, A15A0882.
    OLYMPUS MEDIA, LLC et al. v. CITY OF DUNWOODY; and vice versa.
    (780 SE2d 108)
   DOYLE, Chief Judge.

Olympus Media, LLC, and Olympus officer Ray Moyers (collectively “Olympus”) filed a declaratory judgment action against the City of Dunwoody seeking to challenge the City’s authority to deny it a permit for an existing billboard and to clarify Olympus’s rights under sign permits issued pursuant to a consent order with DeKalb County. The City counterclaimed, challenging the lawful existence of the billboard. Following discovery, the parties each moved for summary judgment, and the trial court granted the City’s motion and denied Olympus’s motion, allowing Olympus the option to modify the existing billboard to conform with an earlier, unenhanced version of the billboard as built when the consent order was entered. In Case No. A15A0881, Olympus appeals, and in Case No. A15A0882, the City cross-appeals the trial court’s ruling that Olympus (or its predecessor) had not abandoned its rights to the billboard, thereby ruling that Olympus was not required to remove the billboard altogether. For the reasons that follow, we affirm in each case.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment asa matter of law. A de novo standard of review applies to an appeal from a grant 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 is largely undisputed and generally traces a long-running dispute over what type of billboard, if any, is allowed at a particular location. The record shows that in 2001, Action Outdoor Advertising JV, LLC (“Action”), applied to DeKalb County for permits to erect a number of billboards, including the one at issue in this case (the “disputed billboard”). The application proposed a static sign face measuring 10 feet by 50 feet. The County issued the permit, and, despite the permitted size, Action installed a sign face measuring 14 feet by 48 feet, some 172 square feet larger than the permit allowed.

In November 2001, the County revoked Action’s permit for the sign on the ground that the sign, both as permitted and as constructed, exceeded the size allowed by the County’s ordinance for a sign in that location. The County’s notice of violation explained that under a formula in the applicable County Code section, the maximum area for a sign in that location was calculated to be 132 square feet, based on the limited road frontage at that site. Action appealed the revocation to the Superior Court of DeKalb County, and in 2004, the court sustained the revocation and held that Action had no vested right in the revoked permit because it was issued in violation of the County’s zoning requirements. The superior court entered a final judgment that is undisturbed by appeal.

Meanwhile, the disputed billboard remained out of compliance as a static sign advertising the now-defunct 99X alternative rock FM radio station. Once the permit was revoked, rather than dismantling the sign, Action entered into discussions with the County to preserve the sign and resolve an ongoing dispute with the County over a number of existing and proposed billboards for which Action also had sought permits in 2001. During that time, in January 2006, Metro Brokers realty company began leasing the sign, and two physical changes were made to the sign: a “Metro Mike” cartoon character was added with a moving arm that extended beyond the edge of the sign face, and a 5-foot by 20-foot (100 square feet) electronic sign was added to the corner, usually displaying the number of houses on sale in the area.

In February 2008, the superior court entered a consent order to finalize the legal status of all of the unresolved billboard sites, including the disputed billboard. In the order, the court addressed existing billboards and proposed billboards in two different sections. First, the court ordered the removal of five existing billboards. Next, the court ordered the County to issue the necessary permits to allow Action to retain certain signs “as presently constructed.” That list included the billboard at issue in this litigation. As built at that time, the disputed billboard was composed of the Metro Brokers sign including the small electronic board.

The consent order also addressed thirty unbuilt billboard sites, and six of those signs were designated with an asterisk:

The signs to be erected at the locations designated as “*” may be used for digital (LED) electronic signs which shall strictly conform with applicable state and county ordinances, rules, regulations, and statutes. The sign located at 4368 (4362) N. Peachtree Road [the disputed billboard] presently is an electronic sign. DeKalb County will approve, execute [,] and deliver all necessary permit applications required by the Georgia Department of Transportation for LED displays and/or electronic signs as requested by Action Outdoor with respect to these locations.

“Digital (LED) electronic signs” feature whole-face LED boards that can change rapidly or display multiple messages in series. The disputed billboard was not designated with an asterisk.

Shortly after the consent order was entered, in 2008, Action applied for and received permits from the County and the Georgia Department of Transportation for the disputed billboard, allowing it to be an indirectly illuminated, electronic, multi-message sign. Relying on these permits, in October 2008, Action rebuilt the billboard so that it could accommodate a five-ton, full-face digital LED board. This redesign included dismantling the existing sign and support pole, installing a stronger pole, and installing new wiring. After completion of the upgrade, Action reinstalled the original, mostly static Metro Broker sign face.

In December 2008, the City of Dunwoody was incorporated, and it purported to adopt certain zoning ordinances. In February 2009, Action’s electrical contractor obtained a permit from the City to install certain new electrical equipment. The letter accompanying the permit stated the City’s belief at that time that the authority for the sign as proposed had been established by the consent order.

In September 2010, Action installed a full-face digital LED sign on the disputed billboard. Later that same month, Action sold the billboard to Olympus.

In October 2010, the City adopted a new sign ordinance and amended it in July 2011. Based on the amended ordinance, the City issued a citation to Olympus for the sign. Before the citation was resolved, Olympus sued the City in the present action, seeking a declaratory judgment clarifying its rights in the disputed billboard. The trial court ruled that the upgraded sign was not authorized by the consent order:

The Court finds that the replacement of the prior mostly static billboard with a full LED sign face does not comport with the Consent Order. Action Outdoor was allowed to retain the existing sign “as presently constructed[,]” and its vested rights encompassed continued “use and maintenance,” not complete replacement with a completely different sign face. All permits issued pursuant to the Consent Order were bound by its terms.
Having found that the full LED display is illegal, Olympus Media must either revert to the billboard that existed at the time of the Consent Order or remove the billboard entirely.... [With respect to the City’s counterclaim seeking removal altogether based on abandonment,] Action Outdoor and Olympus Media have not abandoned their right to maintain a billboard on the property. Nor does the Court agree with Olympus Media that the Court must determine the validity, applicability, and constitutionality of the City’s sign ordinance. The citation issued by the City is irrelevant. The full LED display violates the Consent Order. Olympus Media has a vested right in using and maintaining the sign as it existed in February 2008, and it has no right to challenge the City’s ordinances when it has not applied for and been denied a permit.
The City and Olympus now appeal.

Case No. A15A0881

1. Olympus first argues that the trial court erred by concluding that the consent order did not authorize the redesigned, full-face LED sign. We disagree.

A consent order is essentially a binding agreement of the parties that is sanctioned by a court, and it is subject to the rules governing the interpretation and enforcement of contracts. Accordingly, a consent order can be construed according to the general rules of contract construction. Furthermore, where the language of a contract is plain and unambiguous, no construction is required or permissible and the terms of the contract must be given an interpretation of ordinary significance.

“The construction of a contract is a question of law for the court, and we apply a de novo standard of review on appeal.”

As summarized above, the consent order in this case was crafted to address a dispute about a number of billboard sites — some existing, some not. The order required some existing signs to be removed, preserved others, and allowed certain new ones to be built. With respect to the disputed billboard, which was an existing sign, the consent order provided as follows: “DeKalb County shall issue sign, building[,] and electrical permits to Action Outdoor to allow it to retain the following existing signs as presently constructed,” including the disputed billboard. Given its plain meaning, this language shows an intent by the parties to preserve the status quo as to the disputed sign, allowing Action to maintain it “as presently constructed,” i.e., with the static sign face featuring a small electronic board (not a full-face LED multi-message board).

Olympus argues that language elsewhere in the consent order demonstrates an intent by the parties to allow a full-face digital LED sign board. It points to language in the following provision:

The signs to be erected at the locations designated as may be used for digital (LED) electronic signs... . The sign located at 4368 (4362) N. Peachtree Road presently is an electronic sign. DeKalb County will approve, execute [,] and deliver all necessary permit applications required by the Georgia Department of Transportation for LED displays and/or electronic signs as requested by Action Outdoor with respect to these locations.
Locations 29 and 30 may both be electronic digital signs if the sign located at 7625 Mall Parkway is removed. Otherwise, Action Outdoor may choose between Location 29 or Location 30 for one digital sign and may keep 7625 Mall Parkway as an existing sign.

Although the disputed sign was not designated with an asterisk (which was reserved for “digital (LED) electronic signs”), Olympus argues that the statement that the disputed billboard “presently is an electronic sign,” is an acknowledgment that it belongs in the same category and is therefore entitled to permitting for the same full-face digital LED application. But this runs counter to the fact that the consent order uses the term “digital (LED) electronic sign” to refer to the asterisk signs, and it uses a different term, “electronic sign,” to refer to the disputed billboard. It also runs counter to the fact that the disputed billboard lacks an asterisk. Further, the provision authorizes permits “for LED displays and/or electronic signs,” which shows that the terms “LED display” and “electronic sign” are different concepts. Last, Olympus’s construction conflicts with the premise that the disputed billboard was to be permitted “as presently constructed.” Thus, Olympus’s argument ignores the law’s preference for “the construction of the contract which would uphold the contract in whole and in every part, and would not construe one provision of the contract so as to defeat the plain import of another provision.”

In sum, the difference in nomenclature (“digital (LED) electronic sign” versus “electronic sign”) is a practical reflection of the fact that the sign, as built, had an electronic component, but it was not a full-face digital LED electronic sign. Nothing in the above language shows an intent in the consent order to change the nature of the disputed billboard as built. Accordingly, the trial court correctly concluded that the order did not authorize a conversion of the disputed billboard to a full-face digital LED sign.

2. Olympus next contends that even if the sign is determined to be out of compliance with the consent order, it should remain because (a) the City lacks standing, and (b) the City’s sign ordinances are invalid. As noted above, the trial court did not rule on these issues, instead concluding as follows:

[The court need not] determine the validity, applicability, and constitutionality of the City’s sign ordinance. The citation issued by the City is irrelevant. The full LED display violates the Consent Order. Olympus Media has a vested right in using and maintaining the sign as it existed in February 2008, and it has no right to challenge the City’s ordinances when it has not applied for and been denied a permit.

Assigning this as error, Olympus requests this Court to remand the case for determination of these issues.

In the present context, we are guided by the law of nonconforming uses.

Nonconforming uses are uses of structures which were existing prior to the enactment of an ordinance rendering them nonconforming. However, our courts have been very careful to distinguish between legal nonconforming uses and illegal nonconforming uses.[A] nonconforming use would not be protected unless it appeared that it was lawful at its inception.... [A] permit issued for either an illegal use or an illegal nonconforming use is void; it cannot be used as an excuse to continue the use in violation of a zoning ordinance, and it does not vest constitutional rights.

Applied here, this principle demonstrates that the permits issued pursuant to the consent order — which permits allowed a full-face digital LED sign — were void because they permitted a sign not authorized by the consent order (or other law). Accordingly, the trial court correctly held that Olympus cannot rely on those permits to defend the billboard in its present form. But, as noted in Division 1, the consent order remains undisturbed, and Olympus is entitled to rely on its rights as established in the consent order consistent with this opinion. These rulings render moot Olympus’s challenge to the validity of the City’s ordinance as applied to the disputed billboard.

With respect to whether the City properly challenges the permits that issued, we note that the case was initiated by Olympus’s declaratory judgment action filed against the City, and Olympus explicitly sought to defeat the City’s enforcement authority based on an alleged “absolute right” to continue to maintain the upgraded billboard as authorized by the permits issued pursuant to the consent order. Under this procedural posture, the City was entitled to challenge Olympus’s assertion in defense of the lawsuit brought against the City by Olympus.

Case No. A15AO882

3. In its cross-appeal, the City argues that the trial court erred by failing to rule that Olympus has no rights whatsoever in the billboard because Action abandoned them by dismantling the billboard and upgrading it to accommodate a full-face LED sign. The City relies in part on Tietjen v. Meldrim, a case in the context of abandonment of an easement, which provides as follows: “When . . . nonuse[ ] is accompanied by acts manifesting a clear intent to abandon, and which destroy the object for which the easements were created or the means of their enjoyment, an abandonment will take place. The evidence to establish a forfeiture of an easement by abandonment or nonuse[ ] must be decisive and unequivocal.” The City also cites Ansley House v. City of Atlanta, which involved the application of a one-year nonuse period written into a zoning ordinance to establish abandonment: “[Historically,] the term ‘abandonment’was construed to mean the intentional relinquishment of a known right to devote the property to a permitted nonconforming use, evidenced by an overt act or failure to act, sufficient to support the implication of such an intent.” Based on these principles, the City argues that Action abandoned the pre-existing use of the Metro Brokers billboard by dismantling it and upgrading it to accommodate a full-face digital LED sign board.

Decided November 19, 2015

Reconsiderations denied December l, 2015 —

Webb, Klase & Lemond, E. Adam Webb, Matthew C. Klase; Schreeder, Wheeler & Flint, David H. Flint, Mark W. Forsling, for appellants.

Kelly M. Hundley, for appellee.

We disagree. Nothing in the act of upgrading the disputed billboard evinces an intent to cease using the billboard for advertising, whether static, digital, or otherwise. If anything, Action’s conduct reflected an intent to enhance its use of the disputed billboard, not abandon it. Accordingly, the trial court correctly ruled that Action had not abandoned any rights it had in the disputed billboard.

Judgments affirmed.

Phipps, P. J., and Boggs, J., concur.

       Olympus has merged with Fairway Outdoor Advertising, LLC, which is a party to this appeal and is collectively referred to as “Olympus” as appropriate for purposes of this appeal.

       (Citation omitted.) Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

       The billboard is located at 4368 N. Peachtree Road, currently in the City of Dunwoody.

       See generally Corey Outdoor Advertising v. Bd. of Zoning Adjustments, 254 Ga. 221, 225-226 (4) (327 SE2d 178) (1985) (“Apermit issued for a use or structure which is forbidden by the ordinance is beyond the power of the officer to issue; consequently, it has no legal status, is invalid, and is itself entirely without power to clothe its holder with any legal rights thereunder. A permit for a use prohibited by a valid zoning ordinance, regulation, or restriction is void, of no effect, and subject to revocation. This is true although the permit has been issued under a mistake of fact. The expenditure of even substantial sums in reliance upon a permit found to he void is generally held not to raise an estoppel against its revocation or against enforcement of the ordinance found to be violated by the use or structures maintained pursuant to the permit.”) (citation and punctuation omitted; emphasis in original).

       Another type of multi-message board is mechanical, which typically displays pre-printed messages by rotating synchronized multi-faceted panels within the sign face.

       The parties refer to this procedure as making the billboard “watchfire ready.”

       Olympus disputes the validity of sign ordinances adopted prior to 2011, but the trial court did not rule on this issue.

       (Citations and punctuation omitted.) Corliss Capital v. Dally, 268 Ga. App. 594, 595 (602 SE2d 304) (2004).

       (Punctuation omitted.) Immel v. Immel, 298 Ga. App. 424 (680 SE2d 505) (2009).

        Ga. State Financing & Investment Comm. v. XL Speciality Ins. Co., 303 Ga. App. 540, 543-544 (1) (694 SE2d 193) (2010), citing OCGA § 13-2-2.

       (Citations and punctuation omitted.) Corey Outdoor Advertising, 254 Ga. at 226-227 (4), citing Ralston Purina Co. v. Acrey, 220 Ga. 788, 791 (142 SE2d 66) (1965); Troutman v. Aiken, 213 Ga. 55 (96 SE2d 585) (1957); Tucker v. City of Atlanta, 211 Ga. 157 (84 SE2d 362) (1954).

       Olympus does not identify any statutory or local law that would authorize the disputed hillboard. See, e.g., Flippen Alliance for Community Empowerment v. Brannan, 267 Ga. App. 134, 137 (2) (601 SE2d 106) (2004) (“[I]t is incumbent upon one seeking to use the property for a non-conforming use after the rezoning ordinance to show that his prior use of the property was legal and not unlawful.”), quoting Troutman, 213 Ga. at 56.

       See Corey Outdoor Advertising, 254 Ga. at 228 (4); Matheson v. DeKalb County, 257 Ga. 48, 49 (3) (354 SE2d 121) (1987); Flippen Alliance for Community Empowerment, 267 Ga. App. at 138 (2); DeKalb County v. DRS Investments, 260 Ga. App. 225, 228-229 (2) (581 SE2d 573) (2003). Compare Fulton County v. Action Outdoor Advertising, 289 Ga. 347, 349 (1) (711 SE2d 682) (2011) (holding that county and cities were correctly ordered to permit sign construction because “in the absence of any valid Fulton County sign ordinance [applicable to the signs at issue at the relevant time], there was no valid restriction on the construction of signs in Fulton County at the time the sign companies’ applications were filed, and the sign companies obtained vested rights upon filing of proper applications.”). Olympus does not dispute that a valid DeKalb County ordinance applied to the disputed billboard when it was built.

       The City does not challenge the validity of the consent order itself.

       169 Ga. 678 (151 SE 349) (1930).

       (Punctuation omitted.) Id. at 699.

       260 Ga. 540 (397 SE2d 419) (1990).

       (Punctuation omitted.) Id. at 542.


source: Caselaw Access Project

author: McMillian, Judge.

license: Public Domain

text:
    A15A1559.
    NKN ENTERPRISES, LLC et al. v. BRANCH BANKING AND TRUST COMPANY et al.
    (780 SE2d 777)
   McMillian, Judge.

This is the second appeal arising from protracted litigation filed in multiple courts by appellants NKN Enterprises, LLC (“NKN”) and Barbara Billingsley (“Billingsley,” collectively “appellants”) in an attempt to forestall Branch Banking and Trust Company (“BB&T”) from foreclosing on certain real property pledged as security for several loans BB&T extended to NKN in 2007 and 2008. As more fully set forth below, we now affirm the trial court’s grant of appellees’ motion for judgment on the pleadings in this most recent attempt to thwart BB&T’s foreclosure efforts.

It is well settled that, [o]n motion for judgment on the pleadings, we treat all well-pled material allegations by the nonmovant as true and all denials by the movant as false. Although such motion is, by definition, limited to the pleadings, a trial court may also consider exhibits that have been incorporated into the pleadings. If, in reviewing these documents, there is a complete failure by the plaintiff to state a cause of action, then the defendant is entitled to judgment as a matter of law. ... Printis v. Bankers Life Ins. Co., 256 Ga. App. 266, 266 (568 SE2d 85) (2002).

Early v. MiMedx Group, Inc., 330 Ga. App. 652, 654 (768 SE2d 823) (2015). Trop, Inc. v. City of Brookhaven, 296 Ga. 85, 89 (2) (764 SE2d 398) (2014).

The record, including the appellate record from a prior appeal from similar proceedings filed in a different county and the verified pleadings and exhibits incorporated therein filed in this action, show that BB&T first initiated foreclosure proceedings in August 2011. The foreclosure was scheduled for October 4, 2011, but on October 3, 2011, NKN instituted bankruptcy proceedings. The bankruptcy proceedings were dismissed on August 24, 2012, but NKN filed a second bankruptcy petition on August 31, 2012. Those bankruptcy proceedings were dismissed in March 2013.

On August 27, 2013, BB&T again initiated foreclosure proceedings, and the sale of the property was scheduled for October 1, 2013. However, on August 30, 2013, appellants filed a complaint for damages and injunctive relief against appellees in the Superior Court of Fulton County (“Fulton County Action”) asserting, inter alia, claims for wrongful foreclosure, breach of contract, breach of the duty of good faith and fair dealing, and invasion of privacy. BB&T canceled the scheduled foreclosure and filed an answer and counterclaim, as well as discovery requests. Appellants failed to respond to appellees’ discovery requests, submit a status report, or attend a case management conference, and on January 6, 2014, the Fulton County trial court entered an order dismissing appellants’ complaint for want of prosecution.

Appellants filed a notice of appeal to this Court from the trial court’s order on January 13, 2014, and the case was docketed in this Court on May 15, 2014. Appellants failed to file a brief on appeal, and appellees filed a motion to dismiss on June 19, 2014. On that same date, appellants filed a motion to withdraw their appeal, which this Court granted by order dated June 23, 2014.

After the appeal was withdrawn, BB&T again instituted foreclosure proceedings on the subject properties, with the sale noticed for October 7, 2014. Four days before the scheduled foreclosure, on October 3, 2014, appellants filed the present lawsuit in the Superior Court of DeKalb County, reasserting verbatim many of the same claims made in the Fulton County lawsuit and adding additional claims, including claims for trespass and malicious eviction. Appel-lees filed an answer and counterclaim on November 3, 2014, and moved for judgment on the pleadings. Following a hearing, the trial court entered an extensive order granting appellees’ motion, based, inter alia, on specific findings that BB&T had the right to foreclose, the foreclosure was properly noticed and advertised, and that BB&T had the right to make reasonable entries upon the properties under the security deeds at issue and a writ of immediate access issued by the Superior Court of Fulton County. Appellants filed a notice of appeal from the trial court’s order on January 2, 2015, and the present appeal was docketed in this Court on April 6, 2015.

Tellingly, appellants’ brief on appeal consists primarily of a rote recitation of cases setting out the standard under which a motion for judgment on the pleadings is decided, particularly that the allegations of the nonmoving party must be taken as true and the allegations of the moving party as false. See Sherman v. Fulton County Bd. of Assessors, 288 Ga. 88, 90 (701 SE2d 472) (2010) (in deciding motion for judgment on the pleadings, “all allegations of the moving party which have been denied are taken as false”) (citation and punctuation omitted). However, these assertions ignore the equally well-founded proposition that the trial court is not required to accept or adopt a party’s legal conclusions, no matter how “well-pled” the facts. Trop, 296 Ga. at 87 (1) (trial court “is not required to accept the legal conclusions the non-party suggests that [his factual allegations] dictate”). Accordingly, even accepting appellants’ facts as true, we are not required to accept appellants’ erroneous conclusions of law based on these facts. Moreover, based on our independent review of the record, we find no error in the trial court’s grant of the motion for judgment on the pleadings.

Decided September 9, 2015

Reconsideration denied December l, 2015.

Roberts Law, Grady A. Roberts III, for appellants.

Quirk & Quirk, Kevin E. Quirk, for appellees.

Although appellants make a more particularized argument that the copies of the judicial proceedings attached to appellees’ answer and counterclaim were uncertified and thus could not properly be considered as evidence by the trial court in ruling on the motion for judgment on the pleadings, there is no indication in the record, including appellants’ response to the motion for judgment on the pleadings, that appellants made this argument or raised this objection to the consideration of appellees’ exhibits below. Appellants “cannot fail to object to this defect before the trial court and then raise it now. By waiting to make this argument for the first time on appeal, [appellants have] waived it.” Tronitec, Inc. v. Shealy, 249 Ga. App. 442, 447 (4) (547 SE2d 749) (2001), overruled in part on other grounds in William Gen. Corp. v. Stone, 279 Ga. 428 (614 SE2d 758) (2005) (appellant waived argument that res judicata defense must be based on certified copies of prior proceedings by failing to raise it in the trial court). See also Jones v. State, 308 Ga. App. 99, 101 (2) (706 SE2d 593) (2011) (“the requirement that prior convictions be proved by certified copies thereof is really an application of the best evidence rule[, which] may be waived”) (citation and punctuation omitted). Based on the foregoing, the trial court’s order granting appellees’ motion for judgment on the pleadings is affirmed.

Judgment affirmed.

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

       Appellants also named Quirk and Quirk, LLC (“Quirk”), the law firm that represented BB&T in its foreclosure efforts, as a defendant in their most recent complaint. Quirk and BB&T will be referred to collectively as “appellees.”

       That case was filed in Fulton County and that appeal was docketed in this Court as Case No. A14A1700.

       Appellees attached the exhibits to their counterclaim, which they verified prior to the trial court issuing its ruling.

       Appellants did not raise this issue in their response to the motion for judgment on the pleadings, which, in any event, is similar to their brief on appeal in that it consists primarily of boilerplate argument. And although the trial court’s order recites that a hearing was held on the motion, and appellants acknowledge this in their brief on appeal, appellants specified in their notice of appeal that no transcripts were to be included in the appellate record.


author: Branch, Judge.

text:
    A15A0905.
    MORROW v. THE STATE.
    (778 SE2d 848)
   Branch, Judge.

Robert Leslie Morrow was tried by a Cherokee County jury and convicted of one count of sexual assault in violation of OCGA § 16-6-5.1 (b) (l). He now appeals from the denial of his motion for a new trial, asserting that because he was employed as a paraprofessional, and not a teacher, the statute did not apply to him and the trial court therefore erred in denying his motion to quash the indictment; that the evidence was insufficient to sustain his conviction because it failed to show either that he was a teacher or that he had supervisory or disciplinary authority over the alleged victim; and that the trial court erred in admitting similar transaction evidence as to his relationship with the alleged victim. Morrow also challenges that portion of his probated sentence which imposed a waiver of his Fourth Amendment rights. Finding that the State failed to prove that Morrow had supervisory or disciplinary authority over the victim, we agree that the statute did not apply to him and we therefore reverse his conviction.

On appeal from a criminal conviction, the defendant is no longer entitled to a presumption of innocence and we therefore construe the evidence in the light most favorable to the jury’s guilty verdict. Martinez v. State, 306 Ga. App. 512, 514 (702 SE2d 747) (2010). So viewed, the record shows that in December 2010, Morrow, who was then 27 years old, was employed as a paraprofessional at River Ridge High School, where he also served as a wrestling coach. Morrow was hired as a paraprofessional to attend to the needs of a specific, special-needs child, referred to by the parties as “Pablo.” Morrow accompanied Pablo to all of his classes, and during the victim’s freshman and sophomore years, she shared both homeroom and a math class with Pablo. The victim understood that Morrow’s job was different from that of a paraprofessional whose job it was to assist a classroom teacher. Specifically, the victim testified that a different paraprofessional assisted her math teacher during her sophomore year, and she characterized that paraprofessional as a “disciplinary figure. He would monitor the classroom when [the teacher] left the room.” By contrast, the victim knew that Morrow’s sole job was to sit with Pablo, whom the victim described as having “mental issues,” and ensure that Pablo did not disrupt the class. Morrow never disciplined or otherwise exercised any authority over the victim. When asked if she believed that Morrow had the authority to discipline her, the victim responded that she did not know.

During December 2010, the victim was placed in River Ridge’s in-school-suspension program (“ISS”) for eight days. At some point during that eight-day period, Pablo was also placed in ISS for a single day. Because his job required him to be with Pablo during school hours, Morrow accompanied Pablo to ISS. The victim, who was 16 years old at the time of the charged crime, acknowledged that prior to encountering Morrow in ISS, she had given Morrow her phone number by leaving a note on his car window. On the day that Morrow accompanied Pablo to ISS, the victim again gave Morrow her phone number, and he then sent her a text message so she would have his phone number. The two then began exchanging what the victim described as flirtatious text messages.

On the night of Saturday, December 11,2010, the victim attended the birthday party of a friend and fellow student. During that party, she and Morrow exchanged text messages. The victim first testified that she could not remember who initiated this exchange. When asked about Morrow’s statement to police, in which he claimed that the victim texted him from the party, told him she was bored, and wanted to meet, the victim responded that sending such a message “sounds like something I would have done at the time.”

Following the exchange of text messages with Morrow, the victim left the party and drove her car to meet Morrow in the parking lot of a nearby grocery store. The victim got into Morrow’s car and Morrow drove them to another parking lot where the couple had sexual contact and the victim performed oral sex on Morrow. Morrow then drove the victim back to her car, and she returned to the party.

On December 17, 2010, the victim withdrew from River Ridge and enrolled at a high school in Fulton County. In the weeks immediately following her withdrawal from River Ridge, the victim met Morrow on between two and four occasions and during at least one of those encounters the couple had sexual intercourse. Approximately six months after her encounters with Morrow, the victim told her mother about the couple’s sexual contact, and the mother took the victim to report the matter to local law enforcement authorities. Following a police investigation, Morrow was arrested and indicted under OCGA § 16-6-5.1 on one count of sexual assault. Prior to trial, Morrow moved to quash the indictment, arguing that because he was a paraprofessional, rather than a teacher, the statute under which he was indicted did not apply to him. Following a hearing, and relying on this Court’s decision in Hart v. State, 319 Ga. App. 749 (738 SE2d 331) (2013), the trial court denied the motion to quash. The lower court certified its order for immediate review, but this Court denied Morrow’s application for an interlocutory appeal. The case proceeded to a jury trial, at which Morrow was found guilty. Following his conviction, Morrow filed a motion for a new trial, which was denied. This appeal followed.

1. The statute under which Morrow was prosecuted provides:

(b) A person who has supervisory or disciplinary authority over another individual commits sexual assault when that person: (1) Is a teacher, principal, assistant principal, or other administrator of any school and engages in sexual contact with such other individual who the actor knew or should have known is enrolled at the same school; provided, however, that such contact shall not be prohibited when the actor is married to such other individual [.]

OCGA § 16-6-5.1 (b) (1).

To convict a person under this statutory provision, therefore, the State must prove both that the defendant was “a teacher, principal, assistant principal, or other administrator” of the school at which the victim enrolled and that the defendant had supervisory or disciplinary authority over the victim. See State v. Hammonds, 325 Ga. App. 815, 818 (755 SE2d 214) (2014) (to be guilty of sexual assault against a student enrolled at the school where he works, the defendant must have supervisory authority over that student); Whitehead v. State, 295 Ga. App. 562, 563 (1) (672 SE2d 517) (2009) (same); Groves v. State, 263 Ga. App. 828, 830 (2) (590 SE2d 136) (2003) (same). In this context, “supervisory and disciplinary authority” means that the teacher had the power either to direct the student in question, to require the student to comply with some form of directive (whether it be a school rule or an instruction from the defendant), or to take disciplinary action against the student for failure to comply with such a directive. See Randolph v. State, 269 Ga. 147, 150 (2) (496 SE2d 258) (1998).

On appeal, Morrow argues that even if he can be considered a teacher under OCGA § 16-6-5.1 (b) (1), the State failed to prove that he had supervisory or disciplinary authority over the victim. We agree. Although the victim testified that she viewed Morrow as “an authority figure,” the State introduced no evidence showing that Morrow had any kind of general supervisory or disciplinary authority over students at the school. Moreover, a showing that all teachers at a school, including the accused, have some kind of general authority over students in the school, is insufficient to demonstrate the supervisory or disciplinary authority required to convict a defendant under OCGA § 16-6-5.1. Rather, the statute requires the State to prove that the defendant had some kind of direct disciplinary or supervisory authority over the victim. See Hammonds, 325 Ga. App. at 818 (even assuming school secretary had some form of “supervisory and disciplinary authority over the students at the school in general,” the record failed to show that she had such authority over any of the three victims specifically). Compare Whitehead, 295 Ga. App. at 564 (1) (State proved that defendant had supervisory authority over victim where evidence showed that defendant served as the faculty advisor to the school’s Quiz Bowl team, the victim was a member of that team, and both the defendant and the victim testified that the defendant “was in charge of the students on the Quiz Bowl team at practices and at tournaments”); Groves, 263 Ga. App. at 828-829 (teacher had supervisory authority over both victims, where one victim was a student in his class and the other participated in a “teacher cadet” program supervised by the defendant).

Here, the State offered no evidence to show that Morrow had any kind of direct authority over the victim, either as a paraprofessional/ teacher or as a wrestling coach. There was no testimony or other evidence showing that Morrow had the authority to give directives to the victim, to enforce school rules against the victim, or even to refer the victim to administrators for discipline as a result of her violation of either the defendant’s directives or some other school rule or policy. Furthermore, the victim testified that she understood that Morrow’s job was to accompany Pablo to his classes and ensure that Pablo (as opposed to any other student) did not disrupt class. And when asked whether Morrow had any kind of authority over her specifically, the victim replied that she did not know.

Decided November 16, 2015

Reconsideration denied December 3, 2015

T. Bryan Lumpkin, for appellant.

Shannon G. Wallace, District Attorney, Wallace W. Rogers, Jr., Cliff Head, Assistant District Attorneys, for appellee.

Given the State’s failure to prove that Morrow had any supervisory or disciplinary authority over the victim, it failed to prove an essential element of the charged crime. Accordingly, we must reverse Morrow’s conviction.

2. In light of our holding in Division 1, we need not address Morrow’s remaining claims of error.

Judgment reversed.

Andrews, P. J., concurs. Miller, J., concurs in judgment only.

       As discussed more fully below, that statutory provision defines sexual assault as including sexual contact between a teacher and a student enrolled at the school where the teacher is employed and over whom the teacher has “supervisory or disciplinary authority.”

       The record shows that the victim was not a member of the wrestling team and that Morrow never served as her coach.

       The ISS program had its own teacher, and that teacher also served as the victim’s track coach.

       In Hart, the Court found that the term “teacher,” as used in OCGA § 16-6-5.1 (b) (1) included a paraprofessional who had supervisory and disciplinary authority over students. 319 Ga. App. at 750. In reaching this conclusion, the Court acknowledged the rule that the words of statutes must be given their ordinary and logical meaning, and concluded that “[t]he ordinary, logical, and common meaning of the term ‘teacher’ would include a paraprofessional who taught in a high school classroom.” Id. (punctuation omitted). To hold otherwise, the Court reasoned, “would contravene the legislature’s intention to criminalize sexual activity between a school administrator or a school employee who teaches and a student at the school.” We have some concerns about the reasoning employed in Hart because the Court expressly acknowledged, but then declined to apply, the rule that “courts must generally refrain from expanding the scope of penal statutes by implication.” 319 Ga. App. at 750, citing Wood v. State, 219 Ga. 509, 513 (134 SE2d 8) (1963) (holding that a statute criminalizing certain conduct by an officer of the State did not apply to municipal officers). See also Fleet Finance, Inc. of Ga. v. Jones, 263 Ga. 228, 231 (3) (430 SE2d 352) (1993) (criminal statutes “must be construed strictly against criminal liability and, if [a statute] is susceptible to more than one reasonable interpretation, the interpretation most favorable to the party facing criminal liability must be adopted”); State v. Hammonds, 325 Ga. App. 815, 817-818 (755 SE2d 214) (2014) (declining to find that a school secretary was an “administrator” under OCGA § 16-6-5.1 (b) (1)). The instant case, however, does not require us to consider whether Hart was correctly decided, as we are reversing Morrow’s conviction on other grounds.


author: BARNES, Presiding Judge.

text:
    A15A0998.
    ANDERSON v. THE STATE.
    (778 SE2d 826)
   BARNES, Presiding Judge.

Following a jury trial, Lyle Vincent Anderson was found guilty of first degree forgery and sentenced to four years, with six months to be served in confinement. Attorney Anderson, representing himself, now appeals from the denial of his motion for new trial and appears to contend that the trial court erred in denying his motion for new trial because trial counsel was ineffective, and erred in denying his motion to “avoid costs, fines, etc.” Following our review, we affirm.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.” Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165) (2004). We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citation omitted.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

The relevant facts as shown in the unpublished opinion affirming a directed verdict and other orders against Anderson in a related civil action are as follows:

[Teresa] Watson hired Anderson to represent her in a libel action. Anderson prepared a retainer agreement, but that agreement was never signed. It was disputed whether Anderson and Watson orally agreed that Anderson would be paid on an hourly basis or on a contingent fee basis. Anderson alleged that [Paul] Ware orally guaranteed Watson’s obligation for the payment of attorney fees for his services. When Anderson did not receive payment for his legal services, he filed a verified complaint against Ware and Watson. Ware answered and counterclaimed for attorney fees pursuant to OCGA § 13-6-11. Ware then moved for partial summary judgment on Anderson’s guaranty claim which motion the trial court granted on the ground that any oral guaranty was unenforceable under the statute of frauds. Following the ruling on Ware’s motion for partial summary judgment, the trial court entered a pretrial order setting the remaining claims for jury trial. At trial, following the presentation of Anderson’s case, the trial court entered a directed verdict in favor of Watson and Ware on Anderson’s claim for attorney fees based on services he claimed he provided to Watson.

Anderson v. Ware, 313 Ga. App. XXIII (January 20, 2012) (unpublished).

At the civil trial, Anderson had introduced into evidence a business card containing handwritten language and Ware’s signature that Anderson claimed evinced the terms of the agreement to pay legal fees. Ware testified that he did not have an agreement with Anderson and had not signed the card, and he presented expert testimony that the signature on the card was a forgery.

Subsequent to the disposition of the civil case, criminal charges were brought against Anderson, and he was charged with two counts of forgery. After a jury trial, at which Ware and the expert again testified that the signature on the card did not belong to Ware, Anderson was found guilty of one count of forgery in the first degree and sentenced to four years, with six months to serve.

1. We first note that the State’s contention that Anderson’s notice of appeal was untimely filed is incorrect. While the notice of appeal was filed 31 days after entry of the last order appealed from, the 30th day fell on a Sunday. The filing therefore was timely. See OCGA §§ 1-4-1 (a) (2); 1-3-1 (d) (3); In re Estate of Dasher, 259 Ga. App. 201, 203 (576 SE2d 559) (2002).

2. We next note as an initial matter that Anderson’s brief does not conform to the rules of this Court. It is virtually impossible to ascertain from the format of his brief exactly what happened below and the “material facts relevant to the appeal” as directed by Court of Appeals Rule 25 (a). Part One of his brief, which should contain a statement of the proceedings below and relevant material facts, consists of 30 independent statements that appear to be a combination of arguments and facts. It is difficult to glean from these statements what occurred below and what is relevant to Anderson’s enumerated errors. Likewise, he appears to enumerate three errors on appeal that have little or nothing to do with the thirty-seven statements he next outlines in the “Arguments and Statements of Authorities” section of his brief. See Rule 25 (c) (1). While recognizing Anderson’s pro se status, we also note that Anderson is an attorney, and as such, should be especially cognizant that

the rules of this court are not intended to provide an obstacle for the unwary or the pro se appellant. Briefs that do not conform to the rules regarding enumerations of error, structure of briefs, argument, or citation of authorities, as [Anderson’s] fails to do, are not merely an inconvenience or grounds for refusing to consider a party’s contentions. Such briefs hinder this court in determining the substance and basis of an appellant’s contentions both in fact and in law and may well prejudice an appellant’s appeal regardless of the amount of leniency shown. Nevertheless, we will address [Anderson’s] arguments, insofar as we are able to ascertain them from his brief.

Salazar v. State, 256 Ga. App. 50 (567 SE2d 706) (2002).

3. In his first enumerated error, Anderson contends “[t] wo errors are alleged: (a) Denial of Motion for New Trial... (b) Denial of Motion to Avoid Costs, Fines, etc.” There is no further discussion in the “Argument and Citation of Authorities” section of the brief related to the alleged denial of the “motion to avoid costs, fines, etc.” Accordingly, this error is deemed abandoned. See Court of Appeals Rule 25 (c) (2) (“Any enumeration of error which is not supported in the brief by citation of authority or argument may be deemed abandoned.”); Smith v. State, 278 Ga. App. 315, 323 (9) (628 SE2d 722) (2006).

It appears that part (a) of the first enumeration, the denial of his motion for new trial, is related to an ineffectiveness claim because Anderson’s second enumerated error states: “Preliminary discussion of errors above: given the r(hearsals [sic] of [trial counsel’s] errors of omission, Part One through ¶ 11, followed by his errors of commission at ¶ 12 through the end, ... it was erroneous to deny the Motion.”

At the motion for new trial hearing, which was held over a two-day period, trial counsel, who had over twenty-two years of experience, had represented thousands of criminal defendants, and had conducted at least twenty-five forgery cases, testified that he was retained shortly before trial. He further testified that his trial strategy was to show that the State did not establish that Anderson had the requisite intent to commit a forgery by merely possessing the card with the suspect signature, but that his strategy ultimately had failed.

In evaluating claims of ineffective assistance of counsel, we apply the two-pronged test established in Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984). Under this test, the appellant first must show that counsel’s performance was deficient and, second, that he was prejudiced by counsel’s deficient performance. Strickland, 466 U. S. at 687 (III); see also Ashmid v. State, 316 Ga. App. 550, 556 (3) (730 SE2d 37) (2012). Moreover, “there is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance, and that any challenged action by trial counsel might be considered sound trial strategy.” (Punctuation and footnote omitted.) Ashmid, 316 Ga. App. at 556 (3). In addressing the second prong, we ask “whether there exists a reasonable probability that, but for his counsel’s errors, the jury would have had reasonable doubt regarding appellant’s guilt, that is, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Punctuation and footnote omitted.) Id. We need not address both prongs of the test if Anderson has made an insufficient showing on either one. See Burger v. State, 323 Ga. App. 787, 788 (748 SE2d 462) (2013). Further, “[t]rial tactics and strategy, no matter how mistaken in hindsight, are almost never adequate grounds for finding trial counsel ineffective unless they are so patently unreasonable that no competent attorney would have chosen them.” (Citation and punctuation omitted.) Crumity v. State, 321 Ga. App. 768, 771 (2) (743 SE2d 455) (2013).

The thirty-seven statements in the argument and citations division of Anderson’s brief include points of law, factual assertions, and alleged errors and do not at all correlate to the three enumerated errors he raised, and we are therefore handicapped in determining what Anderson claims are instances in which his trial counsel was ineffective. “As we have reiterated time and time again, this Court will not cull the record [or brief] in search of error on behalf of a party.” (Citation, punctuation and footnote omitted.) Arnold v. State, 262 Ga. App. 61 (1) (584 SE2d 662) (2003); see also Court of Appeals Rule 25 (c) (1) (“The sequence of arguments in the briefs shall follow the order of the enumeration of errors, and shall be numbered accordingly”). Anderson further states that his contentions include “various matters that were not put into the record due to ethical lapses and/or incompetence of former counsel.” In that regard, even if we could distinguish the errors that were not put into the record, “[e]rror must appear from the record sent to this court by the clerk of the trial court. The burden is on the party alleging error to show it affirmatively by the record.” (Punctuation and footnote omitted.) Steele v. Atlanta Maternal-Fetal Medicine, 283 Ga. App. 274, 277-278 (3) (641 SE2d 257) (2007). See Hutto v. State, 320 Ga. App. 235, 239-240 (3) (739 SE2d 722) (2013) (“[T]his Court may not address issues on appeal which were not addressed by the trial court, because this Court is a court for the correction of errors and it does not consider matters which were not raised and ruled on by the trial court. Without a ruling by the trial court on this particular issue, there is nothing for this Court to review on appeal.”) (punctuation and footnote omitted).

Regarding all of the remaining claims of ineffectiveness, as noted earlier, we need not address both prongs of the Strickland ineffectiveness test if Anderson has made an insufficient showing on either one. See Burger, 323 Ga. App. at 788. Despite his claims of counsel’s error, given the overwhelming evidence in this case, Anderson has not shown that there “exists a reasonable probability that, but for his counsel’s errors, the jury would have had a reasonable doubt regarding appellant’s guilt, that is, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Punctuation and footnote omitted.) Ashmid, 316 Ga. App. at 556 (3).

Accordingly, we affirm the trial court’s denial of Anderson’s motion for new trial.

Judgment affirmed.

Ray and McMillian, JJ., concur.

Decided October 20, 2015

Reconsideration denied December 3, 2015 —

Lyle Vincent Anderson, pro se.

Leigh E. Patterson, District Attorney, Randall C. Schonder, Assistant District Attorney, for appellee.

       One of the forgery counts was nolle prossed.

       Enumeration 3 does not appear to be a claim of error, but instead appears to relate to the first enumerated error and states as follows:
      Methodological footnotes: first, (b) may become moot if (a) new trial is granted, the trial court being noticed that waiver of probation fees was granted independent of its rulings; second, such issues are partly addressed in Pauper’s Affidavit, incorporated herein by reference, to avoid costs in this Court, the unreasonableness of trial court’s ruling ought to accour (sic) for that later knowledge of theft of all Appellant’s monies, by his trial attorney and former translator.