author: BARNES, Presiding Judge.

text:
    A11A1553.
    GREENWALD v. ODOM et al.
    (723 SE2d 305)
   BARNES, Presiding Judge.

This is a securities fraud action in which the trial court granted summary judgment in favor of three corporate officers of Verso Technologies, Inc., a now-defunct telecommunications company, on all of the claims brought against them by E. K. Greenwald in connection with his purchase of Verso stock and stock warrants in 2007. Greenwald appeals from the order granting summary judgment, contending that there are genuine issues of material fact over whether the defendants made actionable misrepresentations and omissions in connection with his purchase of the stock and stock warrants. For the reasons discussed below, the trial court did not err in granting summary judgment to the defendants on Greenwald’s claims pertaining to an alleged oral misrepresentation made about accounts payable and certain alleged omissions in the stock subscription materials. But the trial court erred in granting summary judgment to the defendants on Greenwald’s claims pertaining to alleged oral misrepresentations about a revenue forecast and about the future sale of one of Verso’s divisions. In light of this error, we vacate in part the trial court’s order granting summary judgment, and we remand for the trial court to determine two issues raised by the defendants but not ruled upon in the court below: whether Greenwald’s expert testimony regarding causation was admissible and, if so, whether it established a genuine issue of material fact on the issue of loss causation.

On appeal from the grant of summary judgment, we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmoving party. Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997). So viewed, the record shows that Verso Technologies, Inc., was a publicly traded telecommunications company that specialized in “providing next-generation network solutions to carriers, enterprises, governments and government related entities.” Verso had a history of operating losses and made efforts to raise additional capital through private stock subscriptions in the summer of 2007.

The Purchase Transaction. In August 2007, Greenwald purchased restricted stock and stock warrants in Verso through a private subscription for the price of $2,040,000 (the “Purchase Transaction”). At the time of the Purchase Transaction, Steven A. Odom was Verso’s chair and chief executive officer, Mark Dunaway was its chief operating officer, and Martin Kidder was its chief financial officer.

The Offering Documents. Before the Purchase Transaction, Kidder assisted in preparing a Confidential Information Memorandum, a Subscription Agreement, and a Subscriber Questionnaire (collectively, the “Offering Documents”) which he then furnished to Greenwald and other potential private investors. Section 9 of the Subscription Agreement provided:

This Subscription Agreement contains the entire agreement of the parties with respect to the matters set forth herein and there are no representations, covenants or other agreements except as stated or referred to herein or as are embodied in the Offering Documents. (Hereinafter, the “Merger Clause.”)

Notably, however, a separate section of the Subscription Agreement, entitled “Reliance,” stated:

The Company [Verso] has made available to the Subscriber [Greenwald] the opportunity to ask questions of, and receive answers from the Company with respect to the activities of the Company as described in the Offering Documents, and otherwise to obtain any additional information, to the extent that the Company possesses the information or could acquire it without unreasonable effort or expense, necessary to verify the accuracy of the information contained in the Offering Documents. The Subscriber... is entering into this Subscription Agreement relying solely on the facts and terms set forth in the Offering Documents or as contained in documents or answers to questions so furnished to the Subscriber, and neither the Company nor its representatives have made any other representations or provided any other information of any kind or nature, whether written or verbal, to induce the Subscriber to enter into this Subscription Agreement or in connection with the Subscriber’s investment in the Securities. (Hereinafter, the “Reliance Clause.”)

The Subscription Agreement also required Greenwald to expressly acknowledge certain risks. Among other things, the Subscription Agreement stated that the purchase of the securities was a speculative investment and involved a high degree of risk; that there was no market for the securities, currently or in the foreseeable future; that Verso’s operations were dependent on its ability to secure additional financing; and that there were “no existing arrangements with respect to such financing.”

Similarly, the Confidential Information Memorandum contained several pages articulating risks associated with the purchase. The risk factors included that Verso’s common stock might be delisted from NASDAQ; Verso might be unable to fund future growth; Verso had a history of losses and might not be profitable in the future; Verso’s need to invest in research and development could harm its operating results; Verso’s focus on emerging markets could make achievement of its sales goals more difficult; and Verso derived from channel distribution partners a substantial amount of its revenues, which might decline significantly if any major partner were to cancel or delay a purchase of Verso’s products.

Finally, the Confidential Information Memorandum incorporated by reference several financial documents, including Verso’s Form 10-K report to the Securities and Exchange Commission (“SEC”) for the year ending December 2006 and its Form 10-Q reports to the SEC for the quarters ending March 31, 2007 and June 30, 2007.

The August 20, 2007 Meetings. After receiving the Offering Documents, on August 20, 2007, Greenwald met separately with COO Dunaway and with CEO Odom to obtain additional information about Verso’s business prospects and the investment opportunity presented by the private offering. The two meetings were held in Atlanta at Verso’s offices. According to Greenwald, three material oral misrepresentations were made to him during the August 20, 2007 meetings: (a) a misrepresentation by Dunaway regarding a 2008 revenue forecast; (b) a misrepresentation by Odom regarding the future sale of Verso’s NetPerformer division in the fourth quarter of 2007; (c) and a misrepresentation by Odom regarding the aging status of Verso’s accounts payable. Each of these alleged misrepresentations will be discussed in turn.

(a) The 2008 Revenue Forecast. During Greenwald’s meeting with Dunaway, a 2008 revenue forecast was presented to Greenwald that was written on a whiteboard with information broken down quarter by quarter, customer by customer, and contract by contract. According to Greenwald, in response to his questions about the revenue forecast, Dunaway represented that it was based on “contracts in hand,” and that these existing contracts added up to $75 million in revenue for Verso that was “essentially baked in” even if no additional sales were made in 2008. Based on this representation, Greenwald believed that although Verso had never had a profitable quarter, it would be able to “get on [its] feet” and turn its financial situation around.

Deposition testimony, however, painted a different picture concerning what formed the basis for the 2008 revenue forecast presented to Greenwald. In his deposition, CFO Kidder testified that Verso’s revenue forecasts were prepared by Verso’s “finance group” under his supervision, with the forecast information then circulated to senior management, including Dunaway. Kidder testified that the revenue forecasts were not based “on contracts for sales in hand.” Rather, the forecasts were based merely on “pipeline information,” or “opportunities that are in play,” which encompassed “opportunities that the sales folks are pursuing . . . [that] are at various stages of completion and have various probabilities.”

(b) The Future Sale of NetPerformer. During his separate meeting with Odom, Greenwald expressed his concern over the fact that Verso had certain large long-term debt obligations coming due in 2008. Odom responded that Verso’s payment of these long-term debt obligations would be “taken care of” through the sale of Verso’s NetPerformer division in the fourth quarter of 2007 for the purchase price of $20 million to $25 million. According to Odom, the NetPer-former division was “state of the art.” He indicated that Verso was currently in negotiations with a specific unnamed buyer over the terms of the sale of the NetPerformer division, that the sale was “all but a done deal,” and that a second unnamed buyer was “standing in the wings” if for any reason the deal did not go through with the first buyer. Greenwald knew that if Verso did not address its long-term debt obligations it likely would go bankrupt, but he believed that Verso would meet its obligations based upon the representations of Odom regarding the imminent sale of the NetPerformer division.

Again, deposition testimony painted a different picture of the status of the future sale of the NetPerformer division. In his deposition, Odom testified that he did not believe that there were any negotiations with a specific buyer over the sale of the NetPer-former division in August 2007. Moreover, Odom testified that by no later than mid-August 2007, Verso had discovered significant hardware failures in the NetPerformer product such that additional re-engineering work would need to be done “to get NetPerformer back to where [he] thought it could be sold.”

(c) The Aging Status of Verso’s Accounts Payable. Also during his meeting with Odom, Greenwald inquired about the nature and size of Verso’s debt. Odom responded that other than the long-term debt obligations already disclosed to Greenwald, “there was nothing but the normal, daily, operational type debts, rent, payroll, accounts payable month-to-month.” But Greenwald testified by way of deposition that after the Purchase Transaction was completed, he learned from one of Verso’s board members that the company had significant outstanding accounts payable that were long overdue.

Verso’s Bankruptcy and the Ensuing Litigation. After his meetings with Dunaway and Odom, Greenwald executed an acknowledgment of the terms of the Offering Documents, and the Purchase Transaction was consummated in late August 2007. According to Greenwald, he would not have made the stock purchase without the representations made to him at the August 20, 2007 meetings, which led him to believe that Verso would be able to meet its outstanding long-term debts in the fourth quarter of 2007 and would have a solid base of sales revenue in the following year.

Instead, Verso failed to sell its NetPerformer division in the fourth quarter of 2007, and the projected revenues for 2008 did not materialize. In April 2008, Verso’s stock was delisted from NASDAQ, and Verso filed for bankruptcy. Verso’s assets were liquidated as part of the bankruptcy proceedings, and Greenwald lost his entire investment in the restricted stock and stock warrants. The restrictions on Greenwald ⅛ stock had never been lifted and the stock had never become tradeable on any public market before the bankruptcy.

Greenwald sued Odom, Kidder, and Dunaway for securities fraud under the former version of the Georgia Securities Act of 1974, common law fraud, and common law negligent misrepresentation in connection with the Purchase Transaction. He did not name Verso as a party to the lawsuit in light of its bankruptcy and subsequent liquidation.

In his complaint, Greenwald alleged that Dunaway made material misrepresentations about Verso’s projected 2008 revenue, and that Odom made material misrepresentations about the status of Verso’s negotiations over the sale of the NetPerformer division and about the current state of Verso’s debt, during the meetings he had with them on August 20, 2007. He further alleged that the Offering Documents omitted material information about Verso’s risk of losing its NASDAQ listing and about the imminent risk of Verso’s insolvency, and that Kidder could be held liable for these omissions because he had assisted in preparing those documents. According to Greenwald, he relied on these misrepresentations and omissions in his decision to participate in the Purchase Transaction.

Also in his complaint, Greenwald unconditionally tendered his Verso stock and stock warrants to the defendants in an effort to rescind the Purchase Transaction, and he sought the return of his purchase price. He requested punitive damages and attorney fees as well.

Summary Judgment. The defendants answered and, after discovery, filed a motion for summary judgment on the grounds that the alleged oral misrepresentations by Dunaway and Odom were generalized statements regarding future events that could not form the basis for a fraud claim and, in any event, Greenwald’s claims were barred by the Merger Clause in the Subscription Agreement. The defendants also argued that the Offering Documents were not materially misleading regarding the risk of NASDAQ delisting and Verso’s insolvency, and that Greenwald had presented insufficient evidence that the alleged misrepresentations and omissions proximately caused his economic loss. Additionally, the defendants moved to exclude the testimony of Greenwald’s expert, who, among other things, opined on matters relating to causation and damages.

The trial court granted the defendants’ motion for summary judgment. In its order, the trial court concluded that Greenwald could not have justifiably relied on the alleged oral misrepresentations regarding the 2008 revenue forecast and the sale of the NetPerformer division because they were merely predictions of future acts or events. The court further concluded that the alleged oral misrepresentation regarding the aging status of Verso’s accounts payable was immaterial as a matter of law in light of the disclosures made in Verso’s SEC filings and in the Offering Documents. Moreover, the trial court concluded that reliance upon any of the alleged oral misrepresentations was unjustified in light of the Merger Clause in the Subscription Agreement. As to the alleged omissions in the Offering Documents, the trial court concluded that the documents sufficiently disclosed the risks of NASDAQ delisting and insolvency and thus were not materially misleading. The trial court did not rule upon the issue of proximate cause or damages, and the court held that, in light of its summary judgment ruling, the issue of whether Greenwald’s expert testimony was admissible had been rendered moot and would not be addressed.

Greenwald now appeals from the trial court’s summary judgment order. On appeal from the grant of summary judgment, we conduct a de novo review of the law and the evidence. Richardson v. Phillips, 302 Ga. App. 305 (690 SE2d 918) (2010). “A party is entitled to summary judgment only if he can demonstrate that there is no dispute as to any material fact and that the party is entitled to judgment as a matter of law.” Sprint Transport Group v. China Shipping NA Agency, 302 Ga. App. 369, 370 (691 SE2d 265) (2010). See OCGA § 9-11-56 (c). In deciding whether a genuine issue of material fact exists, we “must view all evidence and inferences to be drawn from the evidence in the light most favorable to the nonmov-ing party, and all reasonable doubts must be resolved in the nonmov-ing party’s favor.” Id.

OCGA § 10-5-12 (a) (2) of the former Georgia Securities Act of 1974 provides in relevant part:

It shall be unlawful for any person ... [i]n connection with an offer to sell, sale, offer to purchase, or purchase of any security, directly or indirectly: (A) To employ a device, scheme, or artifice to defraud; (B) To make an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading; or (C) To engage in an act, practice, or course of business that operates or would operate as a fraud or deceit upon a person.

OCGA § 10-5-12 (a) (2) (2007).

We have held that “common law and securities fraud under former OCGA § 10-5-12 (a) require the same elements.” (Citation and punctuation omitted.) Griffin v. State Bank of Cochran, 312 Ga. App. 87, 93 (1) (b) (718 SE2d 35) (2011). And common law fraud requires proof

(l) that the defendant made the representations; (2) that at the time he knew they were false; (3) that he made them with the intention and purpose of deceiving the plaintiff; (4) that the plaintiff justifiably relied on such representations; and (5) that the plaintiff sustained the alleged loss and damage as the proximate result of their having been made.

(Punctuation and footnote omitted.) GCA Strategic Investment Fund v. Joseph Charles & Assocs., 245 Ga. App. 460, 463-464 (3) (537 SE2d 677) (2000). Similarly, negligent misrepresentation requires proof of “(1) the defendant’s negligent supply of false information to foreseeable persons, known or unknown; (2) such persons’ reasonable reliance upon that false information; and (3) economic injury proximately resulting from such reliance.” (Punctuation and footnote omitted.) Hendon Properties v. Cinema Dev., 275 Ga. App. 434, 439 (2) (620 SE2d 644) (2005). With this legal framework in mind, we turn to the enumerations of error raised by Greenwald on appeal.

1. Greenwald contends that the trial court erred in concluding that he could not have justifiably relied on the alleged oral misrepresentations regarding the 2008 revenue forecast and the future sale of the NetPerformer division in 2007 because they were merely predictions of future acts or events. We agree with Greenwald that the trial court erred.

Under Georgia law, it is well settled that

[m]ere opinions, predictions, and conjectures relating to future events cannot form the basis of a fraud claim. It is axiomatic that a false representation made by a defendant, to be actionable, must relate to an existing fact or a past event. Fraud cannot consist of mere broken promises, unfilled predictions or erroneous conjecture as to future events. Representations concerning expectations and hopes are not actionable.

(Citations and punctuation omitted.) Infrasource v. Hahn Yalena Corp., 272 Ga. App. 703, 707 (2) (613 SE2d 144) (2005). But “[a]n exception to this general rule exists where the promisor knows, at the time of the misrepresentation, that the future event will not take place.” Pacrim Assocs. v. Turner Home Entertainment, 235 Ga. App. 761, 767 (3) (510 SE2d 52) (1998). Furthermore, false representations of existing or current facts are actionable even if combined with promises as to future events. See Castleberry v. Wells, 183 Ga. 328, 335 (2) (188 SE 349) (1936) (misrepresentation concerning defendant’s financial solvency was actionable even if combined with promise of something to occur in the future); Golden Atlanta Site Dev. v. Nahai, 299 Ga. App. 646, 651 (2) (a) (683 SE2d 166) (2009) (defendants’ misrepresentations that their real estate development company owned the property, had the right to develop it, and had the right, power, and authority to enter into an investment contract with respect to that property were actionable statements of current fact even though combined with future promise that the defendants “planned to develop a shopping center on commercial property”); Bishop v. Greene, 62 Ga. App. 126, 129-130 (8 SE2d 448) (1940) (in connection with future promise, defendant made actionable misrepresentations concerning company’s financial worth, freedom from debt, and ownership of certain assets).

Here, the first representation at issue was Dunaway’s 2008 revenue forecast of $75 million. Interwoven with this forecast was the alleged misrepresentation that the projection was based on “contracts in hand.” As such, a jury could find that the forecast included an actionable false statement of an existing fact that was intended to induce Greenwald to enter into the Purchase Transaction. See Castleberry, 183 Ga. at 335 (2); Golden Atlanta Site Dev., 299 Ga. App. at 651 (2) (a); Bishop, 62 Ga. App. at 129-130.

The second representation at issue was Odom’s statement that there would be a sale of the NetPerformer division for $20 million to $25 million in the fourth quarter of 2007. Interwoven with this statement was the alleged misrepresentation that a sale currently was in discussion with a specific buyer. Again, a jury could find that the prediction regarding the future sale included an actionable false statement of a current or existing fact that was designed to induce Greenwald to enter into the Purchase Transaction. See Castleberry, 183 Ga. at 335 (2); Golden Atlanta Site Dev., 299 Ga. App. at 651 (2) (a); Bishop, 62 Ga. App. at 129-130. Moreover, Greenwald presented evidence from which a jury could find that when Odom made his statement regarding the future sale, he knew that NetPerformer was experiencing serious hardware failures that precluded a sale from actually occurring. Thus, a jury also could find that Odom knew, at the time of his representation regarding the sale of the NetPerformer division, that the future sale would not take place in the fourth quarter of 2007. See Pacrim Assocs., 235 Ga. App. at 767 (3).

Under these circumstances, the trial court erred in concluding that the two oral misrepresentations were not actionable because they were merely predictions of future acts or events. Nevertheless, the defendants contend that Greenwald could not have justifiably relied on the misrepresentations in light of the express warnings and risk factors set forth in the Offering Documents.

Their contention fails for two reasons. First, as explained infra in Division 4 (b), Greenwald was entitled to rely upon the oral representations made to him during the August 20, 2007 meetings pursuant to the express language of the Reliance Clause contained in the Subscription Agreement. Compare Novare Group v. Sarif, 290 Ga. 186, 190 (3) (718 SE2d 304) (2011) (reliance upon oral misrepresentations precluded by, among other things, comprehensive merger clause and express disclaimer in which purchasers affirmed that they were not relying upon any representations or statements of brokers). Second, general cautionary or risk-disclosing language contained in documents supplied as part of the sale of securities does not automatically neutralize specific misstatements or omissions of fact made to the purchaser. See, e.g., Findwhat Investor Group v. Findwhat.com, 658 F3d 1282, 1299 (II) (B) (1) (11th Cir. 2011); In re Westinghouse Securities Litigation, 90 F3d 696, 709-710 (III) (3d Cir. 1996); Gray v. First Winthrop Corp., 82 F3d 877, 884 (9th Cir. 1996). Compare Novare Group, 290 Ga. at 189 (2) (purchaser could not reasonably rely upon oral misrepresentation directly contradicted by the specific language of the parties’ written agreement).

The warnings and risk factors disclosed in the Offering Documents were not specifically tailored to the representations concerning the 2008 revenue forecast or to the future sale of the NetPer-former division upon which Greenwald relied. Hence, a jury could find that the warnings and risk factors set forth in the Offering Documents were not sufficiently cautionary to warn against the dangers of relying on the particularized information supplied to Greenwald during the August 20, 2007 meetings. As we have emphasized, whether a party justifiably relied on an alleged misrepresentation is normally for the jury, see Potts v. UAP-GA AG CHEM, 256 Ga. App. 153, 156 (1) (567 SE2d 316) (2002), and we see no reason to deviate from that rule with respect to the misrepresentations at issue here.

2. Greenwald also contends that the trial court erred in concluding that the alleged oral misrepresentation regarding the aging status of Verso’s accounts payable was immaterial as a matter of law. We disagree with Greenwald.

Notably, Greenwald does not challenge the accuracy of the size of the accounts payable set forth in the consolidated balance sheets provided in Verso’s Form 10-K for 2006 or in the Form 10-Q reports for the quarters ending March 31, 2007 and June 30, 2007 that were incorporated by reference into the Confidential Information Memorandum. Rather, his contention is that the particular age of the accounts payable was not properly disclosed to him.

“An action for fraud cannot be sustained when based upon alleged misrepresentations which are immaterial[.]” (Citation and punctuation omitted.) Parrish v. Jackson W. Jones, P.C., 278 Ga. App. 645, 649 (2) (b) (629 SE2d 468) (2006). “[A] fact is material if its existence or nonexistence is a matter to which a reasonable man would attach importance in determining his choice or action in the transaction in question.” McKesson Corp. v. Green, 299 Ga. App. 91, 94 (1) (683 SE2d 336) (2009). See Floyd v. Morgan, 62 Ga. App. 711, 716 (9 SE2d 717) (1940). In the context of securities fraud, “a misrepresentation or omission is material if and only if there is a substantial likelihood that the disclosure of the omitted fact would have been viewed by the reasonable investor as having significantly altered the ‘total mix’ of information made available.” (Citation and punctuation omitted.) Florida State Conference of N.A.A.C.P. v. Browning, 522 F3d 1153, 1173 (V) (11th Cir. 2008). See Basic Inc. v. Levinson, 485 U. S. 224, 231-232 (II) (108 SC 978, 99 LE2d 194) (1988); Flexible Products Co. v. Ervast, 284 Ga. App. 178, 181 (2) (a) (643 SE2d 560) (2007).

Greenwald has failed to show that there is a substantial likelihood that disclosure of the specific age of a company’s accounts payable would have been viewed by a reasonable investor as having significantly altered the “total mix” of information made available, when the investor already had accurate information available to him about the current size of the company’s outstanding accounts payable. Consequently, the trial court did not err in concluding that Odom’s alleged failure to disclose the aging status of Verso’s accounts payable was immaterial as a matter of law. See Parrish, 278 Ga. App. at 649 (2) (b).

3. Greenwald further contends that the trial court erred in concluding that the alleged omissions in the Offering Documents were not materially misleading. In this respect, he argues that the Offering Documents failed to sufficiently disclose that Verso was at risk of losing its NASDAQ listing because of a failure to meet the minimum shareholder’s equity requirement or that Verso faced an imminent threat of insolvency. We are unpersuaded that the trial court erred in this regard.

In the section entitled “Risk Factors,” the Confidential Information Memorandum expressly warned in bold, italicized language: “The Common stock may be delisted from The Nasdaq Capital Market.” It went on to disclose that Verso’s common stock was currently quoted on NASDAQ, but that Verso was required to “satisfy certain minimum listing maintenance requirements to maintain such quotation, including a series of financial tests relating to shareholders equity . . . and maintaining a minimum bid price of $1.00 per share for the Common Stock.” The Confidential Information Memorandum also disclosed the existence of the only notice that Verso had received from NASDAQ concerning its failure to comply with the exchange’s listing requirements, which addressed Verso’s failure to maintain the minimum bid price for its common stock.

With respect to the risk of insolvency, the Subscription Agreement noted that the purchase of the securities was a speculative investment and involved a high degree of risk, and that Verso’s operations were dependent on its ability to secure additional financing and that there were “no existing arrangements with respect to such financing.” The Confidential Information Memorandum disclosed that “as of June 30, 2007, [Verso] had an accumulated deficit of approximately $361.2 million,” that Verso might be unable to fund future growth, and that Verso had a history of losses and might not be profitable in the future.

In light of these disclosures in the Offering Documents, Green-wald cannot show that there is a substantial likelihood that the disclosure of additional facts in the Offering Documents regarding NASDAQ delisting or the risk of insolvency would have been viewed by the reasonable investor as having significantly altered the “total mix” of information made available. In fact, Greenwald conceded in his deposition that, with respect to the Offering Documents, “I probably wouldn’t have said any more” regarding the degree of risk involved. The trial court was authorized to conclude that the alleged omissions in the Offering Documents were not materially misleading as a matter of law.

4. Greenwald contends that the trial court erred for two reasons in concluding that the Merger Clause in the Subscription Agreement barred him from relying upon the alleged oral misrepresentations made to him at the August 20, 2007 meetings. First, Greenwald argues that he elected to rescind the Subscription Agreement and thus is not bound by the Merger Clause. Second, he argues that he was entitled to rely upon the oral misrepresentations in light of the Reliance Clause in the Subscription Agreement. We will address the two arguments separately.

(a) We conclude that Greenwald was not entitled to rescind the Subscription Agreement because none of the defendants were parties to that agreement. Under the common law, the remedy of rescission is available only between parties who are in privity of contract. See Sofet v. Roberts, 185 Ga. App. 451, 452-453 (3) (364 SE2d 595) (1987). Consequently, no claim for common law rescission can lie in an action brought solely against corporate officers who were not parties to the contract sought to be rescinded. See Fletcher Cyclopedia of the Law of Corporations, § 5595. This follows from the principle that “[t]o effect a complete rescission, all the parties must be returned as nearly as possible to the status quo ante,” GCA Strategic Investment Fund, 245 Ga. App. at 463 (1), a result that is not possible when none of the defendants were among the contracting parties.

Nevertheless, Greenwald contends that he was entitled to rescind the Subscription Agreement against the defendants pursuant to the former Georgia Securities Act of 1974, OCGA § 10-5-14 (a) and (c) (2007). That statute provides in relevant part:

(a) Any person who violates subsection (a) of Code Section 10-5-12 [by committing securities fraud] shall be liable to the person buying such security; and such buyer may sue in any court of competent jurisdiction to recover the consideration paid in cash (or the fair value thereof at the time the consideration was paid if such consideration was not paid in cash) for the security with interest thereon from the date of payment down to the date of repayment. . . (less the amount of any income received thereon), together with all taxable court costs and reasonable attorney’s fees, upon the tender, where practicable, of the security at any time before the entry of judgment, or for damages if he no longer owns the security. . . .
(c) Every person who directly or indirectly controls a person liable under subsection (a), (b), or (h) of this Code section, every general partner, executive officer, or director of such person liable under subsection (a), (b), or (h) of this Code section, every person occupying a similar status or performing similar functions, and every dealer, limited dealer, salesman, or limited salesman who participates in any material way in the sale is liable jointly and severally with and to the same extent as the person whose liability arises under subsection (a), (b), or (h) of this Code section unless the person whose liability arises under this subsection sustains the burden of proof that he did not know and in the exercise of reasonable care could not have known of the existence of the facts by reason of which liability is alleged to exist. There is contribution as in the case of contract among several persons so liable.

OCGA § 10-5-14 (a), (c) (2007). Greenwald contends that these provisions authorize a buyer to tender back the security and recover the consideration paid for it without imposing any requirement that the person liable for the payment (either directly or jointly and severally) be a party to the contract or the seller or issuer of the security.

We agree with Greenwald’s reading of OCGA § 10-5-14 (2007) with respect to who can be held liable for paying back the consideration owed the purchaser, but it does not follow from that reading that the statute authorizes a complete rescission as understood by the common law. Subsection (a) of the statute does not use the word “rescission” or “rescind” and is silent as to the circumstances under which the underlying contractual agreements remain in force. Statutes, wherever possible, should be construed in connection and in harmony with the existing common law. See Balboa Ins. Co. v. Hunter, 165 Ga. App. 273, 275 (299 SE2d 91) (1983). Accordingly, we do not construe OCGA § 10-5-14 (2007) as abrogating the common law principle that a contract cannot be rescinded in an action brought solely against corporate officers who were not parties to the underlying contract.

(b) Because Greenwald was not authorized to rescind the Subscription Agreement against the defendants, the dispositive question is whether the Merger Clause barred reliance on the alleged oral misrepresentations, or whether Greenwald was entitled to rely on them based on the Reliance Clause. We conclude that under the express language of the Reliance Clause, Greenwald was authorized to rely upon the oral statements made to him at the August 20, 2007 meetings.

Under the applicable rules of contract construction, “[w]e should avoid any construction that renders portions of the contract language meaningless,” and “[w]hen a provision specifically addresses the issue in question, it prevails over any conflicting general language.” (Citations and punctuation omitted.) Tower Projects v. Marquis Tower, 267 Ga. App. 164, 166 (1) (598 SE2d 883) (2004). In the instant case, the Merger Clause is the more general provision, with the Reliance Clause more specifically addressing the situation where, as here, a subscriber had a question and answer session with Verso’s representatives “regarding the activities of [Verso] as described in the Offering Documents.” Consequently, the trial court erred in holding that the Reliance Clause did not authorize Green-wald to rely on the representations made to him at the August 20, 2007 meetings.

5. For the reasons discussed above, the trial court erred in concluding as a matter of law that Greenwald could not have justifiably relied upon the alleged oral misrepresentations about the 2008 revenue forecast and about the future sale of the NetPerformer division made to him at the August 20, 2007 meetings. The defendants argue, however, that the trial court should be affirmed under the “right for any reason” rule because Greenwald failed to come forward with sufficient evidence to establish loss causation with regard to these two misrepresentations.

To establish common law fraud or negligent misrepresentation, a plaintiff must prove that the alleged misrepresentation or omission proximately caused his or her injury. See Holmes v. Grubman, 286 Ga. 636, 641 (2) (691 SE2d 196) (2010). Likewise, to establish securities fraud under OCGA § 10-5-12 (a) (2007), a plaintiff must establish that his or her injury was proximately caused by the alleged misstatement or omission. See Keogler v. Krasnoff, 268 Ga. App. 250, 254 (1) (601 SE2d 788) (2004). “Proximate cause is properly reserved for the jury and can only be appropriately addressed on summary judgment in plain and indisputable cases.” (Citation and punctuation omitted.) Schernekau v. McNabb, 220 Ga. App. 772, 773 (470 SE2d 296) (1996).

In the context of securities fraud, “be it statutory or based in the common law,” proximate cause requires a showing of “loss causation.” (Citation and punctuation omitted.) Holmes, 286 Ga. at 642 (2). See Dura Pharmaceuticals v. Broudo, 544 U. S. 336, 344 (125 SC 1627, 161 LE2d 577) (2005). “[L]oss causation describes the link between the defendant’s misconduct and the plaintiff’s economic loss.” (Citation and punctuation omitted.) Robbins v. Koger Properties, 116 F3d 1441, 1447 (VI) (11th Cir. 1997). This causal link is necessary because the securities laws are not intended to “provide investors with broad insurance against market losses, but to protect them against those economic losses that misrepresentations actually cause.” Dura Pharmaceuticals, 544 U. S. at 345 (II) (A).

Significantly, the way in which a plaintiff establishes “loss causation” can differ depending on the specific circumstances of the case at hand. In the context of misrepresentations or omissions concerning publicly traded securities, the plaintiff must prove “that the truth concealed by the defendant entered the marketplace, thereby precipitating a drop in the price of the security.” Holmes, 286 Ga. at 642 (2). And our Supreme Court has emphasized that the plaintiff in this circumstance must show that the revelation of the truth in the marketplace caused the price to drop, rather than the “tangle” of other factors that can affect price. Id. at 642-643 (2).

But the present case differs from the usual securities action involving the sale of publicly traded securities, and so “the factual predicates of loss causation fall into less of a rigid pattern.” McCabe v. Ernst & Young, LLP, 494 F3d 418, 426 (III) (A) (1) (3d Cir. 2007). See also Livid Holdings Ltd. v. Salomon Smith Barney, 416 F3d 940, 949 (II) (C), n. 2 (9th Cir. 2005). Specifically, Greenwald alleges that the fraudulent oral misrepresentations were made to him in personal communications with Verso executives in connection with a private sale of restricted securities, and that the securities never became unrestricted or tradeable on the public market before Verso went bankrupt. Hence, “unlike in a typical securities action where a plaintiff could recoup his purchase price by reselling shares before the misstatement or omission became publicly known, [Greenwald was], in effect, locked into the transaction from the time the [Purchase Transaction] closed until the shares were registered.” McCabe v. Ernst & Young, LLP, Civ. No. 01-5747, 2006 U. S. Dist. LEXIS 524, at *25-26 (I) (B) (D. N.J. Jan. 6, 2006), aff'd, 494 F3d 418 (3d Cir. 2007). Under these circumstances, where there was no marketplace for Greenwald’s stock, he should not be required to establish that the truth concealed by the defendants entered the marketplace and caused the stock price to drop.

Nevertheless, Greenwald still must establish loss causation; he must show that “the content of the alleged misstatements . . . caused the financial harm actually suffered by [him].” (Citation and punctuation omitted.) Livid Holdings Ltd., 416 F3d at 949 (II) (C). Here, Greenwald’s allegation essentially is that the defendants made fraudulent misrepresentations to him about the future business prospects of Verso that induced him to purchase the restricted stock and stock warrants. In this context, loss causation would be established by Greenwald demonstrating that the failure of those specific business prospects to materialize was a substantial factor in causing his subsequent economic loss. See McCabe, 494 F3d at 435 (III) (B) (2). See also EP Medsystems v. Echocath, Inc., 235 F3d 865, 868-869 (I), 884-885 (II) (E) (3d Cir. 2000).

The trial court did not evaluate the evidence in light of this loss causation test to determine if genuine issues of material fact existed. Rather, the trial court chose not to rule on the issue of loss causation in light of its other substantive summary judgment rulings, and the court declined to rule on the defendants’ separate motion to exclude the testimony of Greenwald’s expert who opined on the issue of causation, concluding that the motion was moot. Under these circumstances, we vacate in part the trial court’s summary judgment order and remand the case to the trial court to determine in the first instance whether Greenwald’s expert causation testimony was admissible and, if so, whether it established a genuine issue of material fact on the issue of loss causation. See, e.g., Strength v. Lovett, 311 Ga. App. 35, 44-45 (2) (b) (714 SE2d 723) (2011) (declining to address causation issue on appeal in part because it involved questions about the scope of expert testimony not fully resolved in the court below); McGonigal v. McGonigal, 294 Ga. App. 427, 430 (3) (669 SE2d 446) (2008) (not reaching merits of motion on appeal where trial court declined to rule on the motion on the ground that it was moot).

Decided February 9, 2012

Sims, Moss, Kline & Davis, Jerry L. Sims, for appellant.

Wornble, Carlyle, Sandridge & Rice, John G. Despriet, James Connelly, Mark A. Rogers, for appellees.

6. In sum, for the combined reasons set forth above, we vacate the trial court’s grant of summary judgment to the defendants on Greenwald’s statutory securities fraud and common law tort claims pertaining to the alleged oral misrepresentations about the 2008 revenue forecast and about the future sale of the NetPerformer division. We likewise vacate the trial court’s grant of summary judgment to the defendants on Greenwald’s claims for punitive damages and attorney fees tied to those two specific oral misrepresentations. Furthermore, with respect to those two oral misrepresentations, we remand for the trial court to determine whether Greenwald’s expert causation testimony was admissible and, if so, whether it established a genuine issue of material fact on the issue of loss causation. Lastly, we affirm the trial court’s grant of summary judgment to the defendants on Greenwald’s remaining statutory and common law claims predicated on all other alleged misrepresentations and omissions.

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

Adams and Blackwell, JJ., concur.

       Effective July 1, 2009, the Georgia Securities Act of 1974 was amended and became known as the “Georgia Uniform Securities Act of 2008.” See OCGA § 10-5-1; Ga. L. 2008, p. 381, § 1. Because the Purchase Transaction occurred before July 1, 2009, Greenwald relied upon the provisions of the former Georgia Securities Act of 1973 to support his securities fraud claims.

       In the trial court, Greenwald also argued that Dunaway falsely predicted that Verso’s revenue in the fourth quarter of 2007 would be at least $15 million and that Verso’s future earnings before interest, taxes, depreciation, and amortization would be neutral or positive. Greenwald failed to sufficiently tie these future financial predictions to a false statement of current fact about Verso. Accordingly, the trial court was authorized to rule, as a matter of law, that Greenwald was not justified in relying upon these mere projections and conjectures about Verso’s future financial performance. See Infrasource, 272 Ga. App. at 707 (2).

       This case is factually distinguishable from White County Bank v. Whelchel, 45 Ga. App. 229 (164 SE 66) (1932). In that case, we concluded that representations made by a bank’s principals regarding the collectibility of certain collateral securities and the future results of the operation of the bank were not actionable because they were “mere predictions.” In reaching this conclusion, we explained that the uncontroverted testimony of the bank’s principals showed that their predictions were nothing more than “expressions of their honest opinions.” Id. at 232. In contrast, there is evidence in the present case from which a jury could find that the oral representations about the 2008 revenue forecast and about the future sale of the NetPerformer division included statements of current fact that Dunaway and Odom

       We look to the federal law of securities fraud as persuasive authority when addressing securities fraud under Georgia law. See, e.g., Holmes v. Grubman, 286 Ga. 636, 641-642 (2) (691 SE2d 196) (2010); GCA Strategic Investment Fund, 245 Ga. App. at 464 (3).

       We have held that an agent of a contracting party can rely upon a merger clause contained in the contract to preclude claims against the agent for his or her alleged representations made before formation of the contract. See Tampa Bay Finance v. Nordeen, 272 Ga. App. 529, 534 (2) (612 SE2d 856) (2005); Yee v. Barnwell, 193 Ga. App. 820, 822-823 (1) (389 SE2d 392) (1989). Compare Textile Rubber &c. Co. v. Thermo-Flex Technologies, 308 Ga. App. 89, 97 (2) (b) (706 SE2d 728) (2011) (defendant could not rely upon disclaimer provision where he was “not simply acting as an agent” for the corporate defendant, but also served as a consultant and expert to the corporate plaintiff that relied upon his representations).

       In light of our decision in Division 4 (a), we need not address whether Greenwald followed the proper procedure for rescinding a contract. See, e.g., Novare Group, 290 Ga. at 188 (1).

       See Gilbert v. City of Jackson, 287 Ga. App. 326, 327 (1) (651 SE2d 461) (2007) (“A grant of summary judgment must be affirmed if right for any reason[.]”) (citation and punctuation omitted).

       We note that the loss causation requirement and proof of damages are distinct from one another. See Robbins, 116 F3d at 1447 (VI), n. 5. OCGA § 10-5-14 (a) (2007) establishes the damages framework for securities fraud claims under the former Georgia Securities Act of 1974. As the first sentence of OCGA § 10-5-14 (a) (2007) reflects, however, proof of a violation of OCGA § 10-5-12 (a) (2007) is a precondition to the application of that damages framework. And, as noted above, a plaintiff must prove proximate cause to establish a violation of OCGA § 10-5-12 (a) (2007), and proximate cause in this context means loss causation.

       As noted, the trial court granted summary judgment on all of Greenwald’s claims predicated solely upon its conclusion that none of the substantive fraud claims could succeed on the merits. Thus, to the extent the trial court’s order granted summary judgment on Greenwald’s claims for punitive damages and attorney fees, that ruling was likewise predicated solely on the court’s determination that all of the substantive fraud claims failed as a matter of law. See, e.g., J. Kinson Cook of Ga., Inc. v. Heery/Mitchell, 284 Ga. App. 552, 561 (g) (644 SE2d 440) (2007) (noting that claims for attorney fees, costs, and punitive damages are not recoverable where plaintiff cannot succeed on his or her substantive legal claims). It follows that because the trial court erred in granting summary judgment on Greenwald’s fraud claims pertaining to the 2008 revenue forecast and future sale of the NetPerformer division, the court likewise erred in granting summary judgment on the claims for punitive damages and attorney fees tied to those specific substantive claims. See Styles v. Mobil Oil Corp., 218 Ga. App. 48, 50 (3) (459 SE2d 578) (1995).


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A11A1576.
    LEE v. SUNTRUST BANK.
    (722 SE2d 884)
   Miller, Judge.

Bernice Lee appeals from the grant of summary judgment to SunTrust Bank regarding Lee’s apparent default on an equity line of credit. Lee contends that the trial court erred by: (1) finding that her sworn denials of her signature on the note were not sufficient to create a genuine issue of material fact; and (2) holding that she had the burden to overcome the presumption that the signature on the underlying promissory note was valid. We agree.

When reviewing a grant of a motion for summary judgment, we conduct a de novo review of the law and evidence, viewing the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the party opposing the motion. Gibson v. Symbion, Inc., 277 Ga. App. 721 (627 SE2d 84) (2006). Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c).

To defeat a motion for summary judgment, the respondent does not have to present conclusive proof to rebut the movant’s evidence; if the respondent produces or points to any specific evidence, even slight, in the record giving rise to a triable issue of material fact, then summary judgment must be denied.

(Citation, punctuation and footnote omitted.) Peach Blossom Dev. Co. v. Lowe Elec. Supply Co., 300 Ga. App. 268, 269 (684 SE2d 398) (2009).

So viewed, the record evidence shows that a $50,000 loan from SunTrust Bank, in the form of an equity line of credit, was executed in the names of Bernice Lee and her husband. Upon Lee’s failure to make repayment on the loan, SunTrust Bank filed the underlying suit against Lee and her husband. Lee answered, denying that she ever obtained a loan from SunTrust Bank, defaulted on the loan, or signed the note.

SunTrust Bank moved for summary judgment, arguing that the evidence established a prima facie case that it was entitled to enforce the note against Lee. In support, SunTrust Bank relied on the note, and an affidavit from its consumer finance officer, who attested to the parties’ contract, Lee’s default, and SunTrust Bank’s resulting damages. The consumer finance officer did not state in her affidavit, however, that she witnessed Lee sign the note. In her response to SunTrust Bank’s motion for summary judgment, Lee submitted an affidavit stating that she was not present when the note was executed, that she did not receive any proceeds from the loan, and that she did not sign any loan documents, or authorize anyone to sign on her behalf. Following a hearing, the trial court granted SunTrust Bank’s summary judgment motion, finding that Lee had the burden of presenting sufficient grounds to support the denial of the signature, and that her affidavit was inadequate in this respect. Consequently, the court found that SunTrust Bank was entitled to recover on the loan.

OCGA § 11-3-308 (a) provides:

In an action with respect to an instrument, the authenticity of and authority to make each signature on the instrument is admitted unless specifically denied in the pleadings. If the validity of a signature is denied in the pleadings, the burden of establishing the validity is on the person claiming validity, but the signature is presumed to be authentic and authorized unless the action is to enforce liability of the purported signer and the signer is dead or incompetent at the time of trial of the issue of validity of the signature. . . .

If the validity of the signatures is admitted or proved, a plaintiff producing the instrument is entitled to enforce the instrument against the defendant, unless the defendant establishes a defense. See OCGA § 11-3-308 (b); Newton v. Sibley, 273 Ga. App. 343 (615 SE2d 185) (2005). Here, Lee specifically denied in her answer the validity of the signature, which raised the defense of non est factum, created a factual question as to the authenticity of the signature, and kept the signature from being deemed admitted under OCGA § 11-3-308. OCGA § 11-3-308 (a); Southtrust Bank of Ga. v. Parker, 226 Ga. App. 292, 294 (1) (486 SE2d 402) (1997) (citing former version of OCGA § 11-3-308).

The purpose of the requirement of a specific denial in the pleadings is to give the plaintiff notice of the defendant’s claim of forgery or lack of authority as to the particular signature, and to afford the plaintiff an opportunity to investigate and obtain evidence.

Uniform Commercial Code § 3-308, cmt. 1. A party challenging the validity of the signature may rebut the presumption that it is valid by “produc(ing) other evidence separate from the sworn denial of execution of the signature in defense of the forgery, and there exist irregularities on the face of the negotiable instrument that would place a reasonable person on notice under a reasonable commercial standard.” (Citation and punctuation omitted.) Southtrust, supra, 226 Ga. at 294 (1). While the challenging party cannot rely solely upon sworn denials in her affidavit as conclusive proof of a forgery or unauthorized signature, the submission of such does create a factual dispute that must be decided at trial, with the plaintiff being entitled to a presumption that the signature is valid. See, e.g., Capital Color Printing, Inc. v. Ahern, 291 Ga. App. 101, 107-108 (2) (661 SE2d 578) (2008) (holding that the trial court erred by granting summary judgment to the defendant based on his affidavit stating that the signature on a credit application was a forgery, because it was for the jury to decide whether a third party signed the defendant’s name and, if so, whether the third party had the authority to do so); Southtrust, supra, 226 Ga. App. at 294-295 (1) (holding that the court erred by granting defendant’s motion for summary judgment because her affidavit, denying the validity of the signature, created issues of material fact); Gate City Furniture Co. v. Rumsey, 115 Ga. App. 753 (1) (156 SE2d 221) (1967) (holding that, even if the defendant specifically denies his authority in any of the pleadings, the plaintiff would still be entitled to go to trial with the presumption that the signature was authorized).

Here, Lee, as the nonmoving party to a summary judgment motion, was not required to present conclusive proof that the signature was invalid. See Peach Blossom, supra, 300 Ga. App. at 269. Rather, she had to only produce or point to any evidence that gave rise to a triable issue of material fact, which she did by submitting an affidavit attesting that the she did not sign the note. See id. at 271 (providing that an affidavit constitutes evidence sufficient to defeat a motion for summary judgment). Given that Lee’s sworn statements were unrefuted, and that she was not the movant on the motion for summary judgment, her affidavit had to be taken as true for purposes of deciding the motion. See id. Although SunTrust Bank would be entitled to a presumption that the signature was valid at trial, it was not entitled to summary judgment; rather, Lee’s affidavit created a disputed issue of material fact sufficient to defeat SunTrust Bank’s motion for summary judgment. Cf. Montgomery v. Barrow, 286 Ga. 896, 897-899 (1) (692 SE2d 351) (2010) (holding that, although the purchaser was entitled to a presumption of good faith attached to a purchase for value, the court erred in awarding purchaser summary judgment because there was some evidence in the record that created disputed issue as to that material fact). The trial court was not entitled to discount Lee’s affidavit, as it is inappropriate for a trial court to weigh evidence or determine its credibility when considering a motion for summary judgment. Peach Blossom, supra, 300 Ga. App. at 271; see also Montgomery, supra, 286 Ga. at 898 (1) (“[It] is the role of a jury to sort through the evidence, resolve conflicts, and make findings of fact based on the evidence it finds credible.”).

The trial court, however, granted summary judgment in favor of SunTrust Bank based upon its reliance on Virginia National Bank v. Holt, 216 Va. 500 (219 SE2d 881) (1975). In Virginia National Bank, the jury returned a verdict in favor of defendant, who denied the validity of the signature on a negotiable instrument, but the Virginia Supreme Court reversed the judgment because the defendant did not present sufficient evidence to overcome the presumption of validity. Id. at 501, 503. Beyond the defendant’s denial in her answer, the only other evidence consisted of hearsay testimony on cross-examination of a loan officer and the plaintiffs answers to the defendant’s interrogatories. Id. at 501-502. The court in Virginia National Bank concluded that the defendant could not overcome the presumption since an unauthorized signature may not be shown merely by demonstrating the plaintiffs apparent lack of evidence on that issue. Id. at 503. Lee, unlike the defendant in Virginia National Bank, presented an affidavit that was sufficient to place the authenticity of the signature at issue for trial. See Capital Color, supra, 291 Ga. App. at 107-108 (2); United States v. Varner, 13 F3d 1503, 1509 (III) (B) (11th Cir. 1994). For these reasons, we agree that the trial court erred in relying upon Virginia National Bank to grant summary judgment to SunTrust Bank. Cf. Rector &c. of Christ Church v. Bishop of the Episcopal Diocese of Ga., 305 Ga. App. 87, 99 (3) (699 SE2d 45) (2010) (recognizing that cases from foreign jurisdictions are not binding, and declining to adopt such cases as persuasive authority where they are factually distinguishable).

Accordingly, we reverse because the trial court erred in granting summary judgment to SunTrust Bank.

Decided February 9, 2012.

Gary L. Britt, for appellant.

Stokes, Lazarus & Carmichael, William K. Carmichael, for appellee.

Judgment reversed.

Ellington, C. J., and Doyle, P. J., concur.

       SunTrust Bank argues that Lee’s appellate brief fails to comply with our Court’s procedural rules, and that we should affirm based on these deficiencies. Nevertheless, “[w]here[, as here,] the record is small and the issues are clearly framed and argued in an appellant’s brief, we often elect in our discretion to address the merits of the appellant’s enumerations,” (citation and punctuation omitted) Collins v. Newman, 237 Ga. App. 861 (1) (517 SE2d 100) (1999), as we have done in this case.

       SunTrust Bank, however, was unable to serve Lee’s husband with the lawsuit.

       SunTrust Bank argues on appeal that we should apply the “right for any reason” rule and affirm the trial court’s grant of summary judgment on the basis that Lee’s affidavit should have been stricken as untimely, her answer should have been stricken as a discovery sanction, and the trial court could have identified Lee’s signature on the note, which would have left no disputed issue of material fact. Since the trial court did not rule upon these pending issues, which require factual determinations and the exercise of the trial court’s discretion, we are unable to apply the rule. “Under [these] circumstances, we believe judicial economy is best served by merely reversing the judgment entered below and permitting the trial court, upon the return of the remittitur, to consider the remaining issues on their merits.” (Citation omitted.) Community Renewal and Redemption, LLC v. Nix, 279 Ga. 840, 842 (2) (621 SE2d 722) (2005).


text:
    A11A1640.
    WALKER v. THE STATE.
    (722 SE2d 887)
   BARNES, Presiding Judge.

Following a bench trial, Daniel Avery Walker was convicted of felony obstruction for head-butting a law enforcement officer. The trial court denied his motion for new trial. Walker appeals, contending that the trial court erred in denying his motion to suppress and that there was insufficient evidence to convict him. For the reasons discussed below, we affirm.

1. Walker moved to suppress all physical evidence, statements, and testimony resulting from his allegedly unlawful detention by a sheriffs deputy. “Because a motion to suppress under OCGA § 17-5-30 contemplates the suppression only of tangible physical evidence, [Walker] in effect proceeded under both a motion to suppress and a motion in limine.” Hamrick v. State, 198 Ga. App. 124 (1) (401 SE2d 25) (1990). On appeal from a trial court’s ruling on a motion to suppress or motion in limine, we may consider all relevant and admissible evidence of record introduced at the motion hearing or during trial. See State v. Brodie, 216 Ga. App. 198, 199 (1) (c) (453 SE2d 786) (1995).

While a trial court’s findings as to disputed facts will be reviewed to determine whether the ruling was clearly erroneous, “where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.” (Citation omitted.) Johnson v. State, 305 Ga. App. 635, 636 (700 SE2d 612) (2010). Furthermore, even if the trial court’s asserted ground for denying a motion to suppress or motion in limine is erroneous, we will affirm the ruling if it is “right for any reason.” See Jones v. State, 282 Ga. 784, 789 (1) (c) (653 SE2d 456) (2007); Walker v. State, 277 Ga. App. 485, 489 (3) (627 SE2d 54) (2006); Gaston v. State, 257 Ga. App. 480, 483-484 (2) (571 SE2d 477) (2002).

The record shows that on September 3, 2009, a sheriffs deputy received a phone call from a staff member at an apartment complex in Hall County. The staff member informed the deputy that the complex manager had received a complaint that a “male subject” had been involved in a “domestic disturbance” the previous night with the female resident of apartment 301 and that it had gotten “pretty ugly.” The male subject was not on the lease to apartment 301 but was currently there with the female resident. The staff member requested that the deputy accompany him to apartment 301, issue a written criminal trespass warning to the male subject, and ask the male subject to leave the premises.

Upon arriving at the complex, the deputy accompanied the staff member to apartment 301. Although the deputy was dressed in civilian clothes, he was wearing his badge and gun in plain view and was carrying a clipboard with the criminal trespass warning attached to it. The staff member knocked on the door to the apartment. When the female resident came to the door, the staff member introduced himself, identified the deputy as a law enforcement officer, and explained why they were there. The female resident at that point went back inside the apartment and woke up Walker, who came to the door. The staff member then explained to Walker that they were there regarding the domestic incident that had occurred the previous night, that the deputy was going to issue him a criminal trespass warning, and that he would need to leave the apartment complex. The deputy asked Walker for his identification so that he could fill out the criminal trespass warning.

Walker became “very upset.” He patted the outside of his pants as if looking for his identification but then went back inside the apartment. When he came back to the door, Walker without any provocation approached the deputy, raised his middle finger in the deputy’s face, told the deputy he was leaving, and said “F_k you. I’m not going to give you my ID. It’s my right.” As Walker attempted to “squeeze between the [deputy] and the doorjamb to get by the [deputy] to leave,” the deputy held onto Walker’s arm, asked again for his identification, and told him to calm down.

When the deputy took hold of his arm, Walker aggressively “latched” onto the deputy and began fighting with him, to the point that the deputy and Walker ended up on the ground “scuffling” with one another. The staff member from the apartment complex also attempted to assist the deputy in subduing Walker. Walker “was very upset, screaming, cussing, [and] making threats” that could be heard from outside the apartment building. The deputy told Walker that if he calmed down, he would let him up from the ground. Walker promised to calm down, and the deputy and staff member let him up.

Walker started walking to his car as he continued to curse at the deputy, who was following Walker and asking for his identification. When Walker got into his car and started the ignition, the deputy came over and placed one hand on the car door and one hand on the roof of the car so that Walker could not shut the door. The deputy told Walker that he still needed to see his identification. Walker responded by jumping out of the car and head-butting the deputy in the left eye. The deputy and Walker went to the ground and fought until the deputy and staff member from the apartment complex were able to get hold of Walker’s arms. Ultimately, the deputy was able to subdue and handcuff him.

Walker was charged with felony obstruction of an officer for head-butting the deputy. He filed a motion to suppress all evidence arising from when the sheriffs deputy first took hold of his arm as he attempted to squeeze by the deputy in the doorway and leave the apartment. According to Walker, the deputy unconstitutionally detained him at that point in their encounter, tainting all evidence gathered from that point onward. Because there was no physical evidence relied upon by the State to support the obstruction charge, Walker essentially sought to exclude all testimony about his conduct after his allegedly illegal detention began.

The trial court denied the motion, finding that the deputy’s temporary detention of Walker by holding onto his arm was supported by reasonable suspicion of criminal activity in light of the information communicated to the deputy that Walker had been involved in a domestic disturbance the previous night and could be located in a specific apartment. After the denial of his motion to suppress, Walker was convicted of felony obstruction in a bench trial. The trial court denied his motion for new trial, and this appeal followed.

United States Supreme Court holdings sculpt out, at least theoretically, three tiers of police-citizen encounters: (1) communication between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment, (2) brief seizures that must be supported by reasonable suspicion, and (3) full-scale arrests that must be supported by probable cause.

(Citations and punctuation omitted.) Peters v. State, 242 Ga. App. 816, 816-817 (1) (531 SE2d 386) (2000). “A police-citizen encounter remains consensual and does not implicate the Fourth Amendment so long as a reasonable person would feel free to disregard the police and go about his business.” (Citation and punctuation omitted.) Johnson v. State, 299 Ga. App. 474, 476 (682 SE2d 601) (2009). But once a reasonable person no longer believes that he is free to leave, the encounter becomes a second-tier detention requiring a showing of reasonable suspicion. Id. To meet the reasonable suspicion standard, the police must have, under the totality of the circumstances, “a particularized and objective basis for suspecting the person is involved in criminal activity.” (Citation and punctuation omitted.) Brown v. State, 301 Ga. App. 82, 84-85 (686 SE2d 793) (2009).

Walker contends that when the deputy first held onto his arm to prevent him from leaving the apartment, their encounter escalated to a second-tier detention requiring a showing of reasonable suspicion of criminal activity. Among other things, Walker argues that there was no showing of reasonable suspicion because the deputy only had a generalized suspicion that he had previously been involved in a “domestic disturbance” without any knowledge that it was criminal in nature rather than simply a heated verbal argument. See, e.g., Gattison v. State, 309 Ga. App. 382, 384-385 (711 SE2d 25) (2011) (heated verbal discussion insufficient to create reasonable suspicion of criminal activity). Walker also points out that the fact that the deputy wanted to complete the criminal trespass notice form and give it to him before he left the apartment complex did not provide an independent basis for temporarily detaining him, given that the criminal trespass statute, OCGA § 16-7-21 (b) (2), does not require that notice be provided in writing.

We agree with Walker that his encounter with the deputy escalated to a second-tier detention when the deputy held onto his arm in an attempt to prevent him from leaving the apartment before showing his identification. See White v. State, 267 Ga. App. 200, 202 (2) (598 SE2d 904) (2004); State v. Taylor, 226 Ga. App. 690, 691 (487 SE2d 454) (1997). It also may well be that, in light of the record before us, the deputy did not have sufficient particularized information communicated to him regarding the prior “domestic disturbance” involving Walker to create reasonable suspicion. Nevertheless, pretermitting whether Walker’s initial detention by the deputy was unlawful, we conclude that testimony about Walker’s conduct after that allegedly illegal detention was not “fruit of the poisonous tree.”

When examining whether evidence is inadmissible as fruit of an illegal detention, we ask whether the evidence was obtained “by exploitation of [the prior] illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” (Punctuation omitted.) State v. Nesbitt, 305 Ga. App. 28, 36 (2) (c) (699 SE2d 368) (2010). And, significantly, a defendant’s commission of a new crime in the presence of law enforcement is an intervening act of free will that purges the taint of any prior illegality. See Lawson v. State, 299 Ga. App. 865, 869 (1) (684 SE2d 1) (2009); Reynolds v. State, 280 Ga. App. 712, 715-716 (1) (634 SE2d 842) (2006); Faulkner v. State, 277 Ga. App. 702, 705 (1) (627 SE2d 423) (2006); State v. Stilley, 261 Ga. App. 868, 870-871 (584 SE2d 9) (2003).

Walker’s violent reaction in response to the deputy merely taking hold of his arm at the doorway of the apartment constituted an intervening act that purged the taint of any illegal detention. While an individual is entitled to resist an unlawful arrest or detention, the individual is justified in using only such force as is necessary to prevent the arrest or detention, “i.e., force proportionate to the force being used in the unlawful detention.” (Citation and punctuation omitted.) Sosebee v. State, 169 Ga. App. 370 (1) (312 SE2d 853) (1983). See Dudley v. State, 264 Ga. App. 845, 846 (1) (b) (592 SE2d 489) (2003); Allen v. State, 237 Ga. App. 744, 745 (2) (516 SE2d 788) (1999); Brooks v. State, 144 Ga. App. 97, 100 (4) (240 SE2d 593) (1977).

The uncontroverted record shows that in response to the deputy simply holding onto his arm at the doorway of the apartment, Walker aggressively “latched” onto the deputy and began fighting him, to the point that the deputy and Walker ended up on the ground “scuffling” with one another, and the staff member from the apartment complex had to come to the assistance of the deputy. During the violent encounter, Walker “was very upset, screaming, cussing, [and] making threats” that could be heard from outside the apartment building.

Construed in favor of upholding the trial court’s ruling, Walker’s aggressive conduct toward the deputy was an unreasonable and disproportionate response to the allegedly unlawful detention, and thus constituted an intervening act that purged the taint flowing from any prior illegality. See O’Neal v. State, 311 Ga. App. 102, 103-104 (1) (714 SE2d 744) (2011) (even if pat-down was unlawful, defendant unreasonably resisted when he “aggressively grabbed” the officer’s arm, and so motion to suppress was properly denied); Lawson, 299 Ga. App. at 869 (1) (defendant’s unprovoked attack of officer who was standing at his door and asking for his identification constituted intervening act). See also Meadows v. State, 303 Ga. App. 40, 43 (1) (692 SE2d 708) (2010) (defendant’s elbowing of officer during pat-down was unreasonable resistance, even if detention and pat-down were unlawful); Dudley, 264 Ga. App. at 846 (1) (b) (defendant’s resistance to detention was unreasonable and disproportionate, where he jerked away and punched officer when the officer grabbed his left hand). It follows that the trial court did not err in admitting into evidence the officer’s testimony about Walker’s conduct after his allegedly unlawful detention at the doorway of the apartment, and, therefore, did not err in denying Walker’s motion to suppress.

2. Walker also contends that the evidence was insufficient to support his conviction for felony obstruction of an officer under OCGA § 16-10-24 (b). In this regard, Walker argues that his head-butting of the deputy, who prevented him from closing the door of his car and driving away, did not constitute obstruction because an individual cannot be convicted of that offense unless the officer is engaged in the lawful discharge of his official duties, see Green v. State, 240 Ga. App. 774, 775 (1) (525 SE2d 154) (1999), and an officer is not discharging his lawful duty when he detains an individual “without specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct.” (Footnote omitted.) Davis v. State, 308 Ga. App. 7, 12 (1) (c) (i) (706 SE2d 710) (2011).

We are unpersuaded. Once Walker used unreasonable and disproportionate force in responding to the officer holding onto his arm at the doorway of the apartment, the deputy was legally entitled to detain him. See Lawson, 299 Ga. App. at 869 (1) & n. 12. It is true that the deputy did not testify that his subjective reason for following Walker out to his car and preventing him from driving away from the apartment complex was because of Walker’s aggressive conduct toward him.

DeCided February 9, 2012.

Adam S. Levin, H. Bradford Morris, Jr., for appellant.

Lee Darragh, District Attorney, Shiv Sachdeva, Assistant District Attorney, for appellee.

Nevertheless, when analyzing whether a person has been unconstitutionally seized, we are not bound by the detaining officer’s subjective belief. Rather, the touchstone of any Fourth Amendment analysis is a determination of whether an officer’s conduct is reasonable based upon all of the objective facts. The circumstances presented here illustrate that the [deputy] ⅛ conduct was neither arbitrary nor harassing, but was reasonable in light of the objective facts available to him.

(Citations and punctuation omitted.) Johnson, 299 Ga. App. at 478. See Oglesby v. State, 311 Ga. App. 615, 617-618 (716 SE2d 742) (2011). Accordingly, the record supported a finding by the trial court in the bench trial that the deputy was engaged in the lawful discharge of his official duties when Walker head-butted him. We conclude that a rational trier of fact was authorized to find Walker guilty beyond a reasonable doubt of felony obstruction of an officer. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Adams and Blackwell, JJ., concur.

       The deputy also served as the “courtesy officer” for the complex.

       The purpose of the criminal trespass warning was to meet the notice requirement found in OCGA § 16-7-21 (b) (2) if the male subject at some point reentered the apartment complex after being asked to leave from the premises. That statutory subsection provides in relevant part:
      (b) A person commits the offense of criminal trespass when he or she knowingly and without authority:
      (2) Enters upon the land or premises of another person . . . after receiving, prior to such entry, notice from the owner, rightful occupant, or, upon proper identification, an authorized representative of the owner or rightful occupant that such entry is forbidden[.]
      While the criminal trespass statute does not require that the notice be given in writing, see, e.g., Wingfield v. State, 191 Ga. App. 800 (383 SE2d 180) (1989), it was the practice of the apartment complex to use a written notice form supplied by the county and to maintain copies of the signed forms for its records.

       The deputy was entitled to approach the apartment, knock on the door, speak with the occupants at the doorway, and request identification even if he did not have reasonable suspicion at that point, given that these actions did not go beyond a first-tier consensual encounter. See Galindo-Eriza v. State, 306 Ga. App. 19, 22 (1) (701 SE2d 516) (2010) (officer’s attempt to conduct “knock and talk” at residence constituted permissible first-tier encounter);
        State v. Ealum, 283 Ga. App. 799, 801, n. 2 (643 SE2d 262) (2007) (officers were legally entitled to approach home and speak with occupant at front steps, given that the officers “were merely taking the same route as would any guest or other caller”) (citation and punctuation omitted); Pickens v. State, 225 Ga. App. 792, 793-794 (1) (a) (484 SE2d 731) (1997) (police officer did not need articulable suspicion to knock on hotel room door and ask occupant for identification).

       At the bench trial, the apartment complex manager gave a more detailed description of the domestic incident, but there is nothing in the record reflecting that the other staff member who called the deputy and requested his assistance ever communicated this more detailed information to the deputy.

       The deputy was performing official duties even if he also served as the “courtesy officer” of the apartment complex. See, e.g., Duncan v. State, 163 Ga. App. 148, 148-149 (1) (294 SE2d 365) (1982).


author: MlKELL, Presiding Judge.

text:
    A11A1821.
    SMERECZYNSKY et al. v. THE STATE.
    (722 SE2d 892)
   MlKELL, Presiding Judge.

Donita C. Smereczynsky and Grant Smerecznysky appeal from the denial of their pleas in bar urged on the basis that they were denied their constitutional right to a speedy trial. For the reasons set forth below, we vacate the judgment and remand the case with direction.

The record and transcripts show that the offenses giving rise to the charges against the appellants occurred between October 23, 2001, and August 12, 2003. Appellants were arrested on June 17, 2004, and released on bond on the same day. They were then indicted on September 12, 2005, for the offenses of theft by taking and unauthorized use of a financial transaction card. The 2005 indictments were ultimately nolle prossed, and appellants were again indicted on December 5, 2006. Appellants entered a plea of not guilty to the indictments on January 19, 2007. The case has been on multiple trial calendars since March 24, 2008, and has been granted several continuances based upon the requests of both appellants and the state. Appellants filed a plea in bar asserting a violation of their constitutional rights to a speedy trial, which the trial court denied on November 12, 2010, and appellants filed the present appeal.

“An accused is guaranteed the right to a speedy trial by the Sixth Amendment to the Constitution of the United States and Art. I, Sec. I, Par. XI (a) of the 1983 Georgia Constitution.” As both of our appellate courts have recited, when considering a motion to dismiss on the grounds that an accused’s constitutional speedy trial right has been violated, the court applies the tests set forth in Barker v. Wingo and Doggett v. United States. An abuse of discretion standard of review applies.

1. Presumptive Prejudice. The threshold consideration in this inquiry is whether the interval between the date of arrest or other formal accusation to the date of trial or, in this instance, the date the defendant’s speedy trial motion was ruled upon, is sufficiently long enough to be considered presumptively prejudicial. If such a presumption is not warranted, the analysis need not go further because the accused’s speedy trial claim fails; if, however, the delay invokes the presumption of prejudice, then the analysis proceeds to the examination of all Barker v. Wingo factors. In this case, the state conceded both in the trial court and this court that the delay from the June 14, 2004, arrest until the plea in bar was denied on November 12, 2010, was presumptively prejudicial, triggering the balancing test of the second stage of the analysis.

2. The Barker-Doggett Balancing Test. The four factors this court must consider, and ultimately weigh, are: (1) whether the delay was uncommonly long, (2) whether the government or the accused is more to blame for the delay, (3) whether, in due course, the accused asserted the right to a speedy trial, and (4) whether the accused has suffered prejudice as a result of the delay.

However, it is important to note that these four factors do not constitute an exhaustive list, “have no talismanic qualities[,] and must be considered together with such other circumstances as may be relevant.” Because the second stage of the constitutional speedy trial analysis is context-sensitive and “requires courts to engage in a difficult and sensitive balancing process,” speedy trial cases must be approached “on an ad hoc basis.”

(a) Length of Delay. The first factor in the Barker-Doggett analysis requires “consideration of the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim.” The trial court in this case did not evaluate this factor under an analysis separate from the threshold inquiry. However, this Court has held in similar cases that “inasmuch as the trial court has effectively weighed this factor in appellant’s favor, it did not abuse its discretion.” Accordingly, we find no abuse of discretion.

(b) Reasons for the Delay. “Some amount of pretrial delay is unavoidable, and even quite extended intervals between arrest or indictment and trial are sometimes both necessary and reasonable.” Although “[a] deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government,” there is no evidence that the state intentionally delayed the trial to impair the defense in this case.

The trial court found that both parties were responsible for the delay and so this factor weighed neither for nor against the state. The right to a speedy trial in this case attached at the time of the appellants’ arrest on June 17, 2004. Appellants were indicted in 2005 and then again in 2006, but did not enter a plea of not guilty until January 19, 2007. After being on several trial calendars, both parties consented to a continuance from the October 27, 2008, trial calendar due to conflicts of counsel. The case was again called to trial on December 8, 2008, but was continued on the state’s request after the trial court granted appellants’ motion to disqualify a special prosecutor who had been appointed a few days prior. Appellants obtained additional continuances so that they could attend their child’s ear surgery and because, after a psychiatric evaluation, the trial court found Donita Smereczynsky unable to assist at trial from January 2010 until May 2010. Additionally, the state requested a continuance from the July 2010 trial calendar.

Because both parties contributed to the delay, we find that the trial court did not abuse its discretion when it found that both parties were equally responsible for the delay in this case.

(c) Whether Defendants Asserted the Right to a Speedy Trial. Because defendants may benefit by delaying trial, they have a responsibility to assert their right to a speedy trial and a failure to do so may weigh heavily against them.

The trial court weighed this factor against appellants, noting that they did not assert their right to a speedy trial until they filed their plea in bar motions on June 13, 2010 and June 19, 2010. Although appellants never filed a statutory demand for speedy trial pursuant to OCGA § 17-7-170, they argue that they effectively asserted their right to a speedy trial on December 8, 2008, by announcing ready for trial on that date and objecting to the trial court granting a continuance. However, “such actions cannot be construed as an assertion of the right to a speedy trial under our analysis.” Accordingly, the trial court did not abuse its discretion in weighing this consideration against appellants in the Barker-Doggett balancing process.

(d) Whether the Accused Suffered Prejudice as a Result of the Delay. The fourth and final factor is the inquiry into the prejudice to the defendant. The concept of “prejudice” in this context is not limited to consideration of the likely effect the pretrial delay had or might have on the ultimate outcome of the trial. Rather, the constitutional right to a speedy trial is designed to protect three interests, and it is those three interests we evaluate in examining the prejudice component: (a) preventing oppressive pre-trial incarceration; (b) minimizing anxiety and concern of the accused; and (c) limiting the possibility of the impairment of the defense.

(i) Preventing Oppressive Pre-trial Incarceration. In this case, there is no claim of oppressive pre-trial incarceration, as appellants were out on bond while awaiting trial.

(ii) Minimizing Anxiety and Concern of the Defendant. When addressing the interest of minimizing the anxiety and concern of the accused, a court must remember that anxiety and concern “[are] always present to some extent, and thus absent some unusual showing, [this factor] is not likely to be determinative in defendant’s favor.” Here, Grant Smereczynsky has not presented any evidence of actual anxiety. However, Donita Smereczynsky has provided evidence that this trial was a contributing factor in the anxiety and stress she suffered. Other stressors in her life during this time period also included cases in two other counties and bankruptcy court, as well as an ill child. Accordingly, we find that the trial court did not abuse its discretion in weighting this factor only slightly in favor of Donita Smereczynsky because her mental health issues were not related solely to this case.

(iii) Limiting the Possibility That the Defense Will Be Impaired. This final consideration is the most important prejudice component of the speedy trial equation. The state concedes that given the length of the delay, there is a presumption of actual prejudice in this case. However, this presumptive prejudice “may be reduced or even eliminated if the [s]tate can show that the defense has not, in fact, been substantially impaired.” The state rebuts this presumption of prejudice by arguing that the appellants’ case has improved with the passage of time because Timothy Oden, originally one of the state’s key witnesses, recanted his prior statements and will now testify in favor of appellants.

Decided February 9, 2012.

Banks & Stubbs, Rafe Banks III, Fox, Chandler, Homans, Hicks & McKinnon, Graham McKinnon IV, George E. Butler II, for appellants.

In analyzing this factor, however, the trial court erroneously placed upon the appellants the burden of proving actual prejudice to their legal defense. Finding that appellants did not meet this burden, this trial court weighted this factor against them. “Although the passage of time is not alone sufficient to sustain a speedy trial claim, greater pretrial delays simultaneously increase the degree of prejudice presumed and decrease the expectation that the defendant can demonstrate tangible prejudice to his or her ability to present a defense.” In the present case, the extraordinary six-year delay raised the presumption of actual prejudice and appellants’ “failure to make a particularized showing of . . . [their] decreased ability to present a defense at trial must not be weighed heavily against [them].” To the extent that the trial court found to the contrary, it was in error.

3. Balancing of the Factors. A trial court’s findings of fact and weighing of those facts in a speedy trial claim generally are reviewed under an abuse of discretion standard. However, “where the trial court has clearly erred in some of its findings of fact and/or has misapplied the law to some degree, the deference owed the trial court’s ultimate ruling is diminished.” As our Supreme Court has noted

it is imperative 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 [c]ourt to review, and the trial court’s order must be vacated and the case remanded for the entry of a proper order pursuant to Barker.

As explained above, the trial court here erred by requiring appellants to prove that they suffered actual prejudice. Accordingly, we vacate the trial court’s order and remand the case for entry of a proper order consistent with this opinion.

Judgment vacated and case remanded with direction.

Dillard and Boggs, JJ., concur.

Penny A. Penn, District Attorney, Sandra A. Partridge, Assistant District Attorney, for appellee.

       (Citation omitted.) Thomas v. State, 296 Ga. App. 231, 234 (2) (674 SE2d 96) (2009).

       407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972).

       505 U. S. 647 (112 SC 2686, 120 LE2d 520) (1992).

        State v. Porter, 288 Ga. 524, 526 (2) (a) (705 SE2d 636) (2011).

       The constitutional right to a speedy trial attaches “at the time of arrest or indictment, whichever is earlier.” Thomas, supra (citation omitted).

        Porter, supra at 526 (2) (b) (“Where a trial has not occurred, the delay should be calculated from the date of arrest or other formal accusation to the date on which defendant’s speedy trial motion was granted or denied . . . rather than any initial date set for the trial”) (citation omitted).

        Ruffin v. State, 284 Ga. 52, 55 (2) (663 SE2d 189) (2008).

        Meder v. State, 305 Ga. App. 702 (a) (700 SE2d 706) (2010) (a delay approaching one year raises a threshold presumption of prejudice).

        Ruffin, supra at 56 (2) (b).

       (Citation and punctuation omitted.) Porter, supra at 526 (2) (a).

       (Citations and punctuation omitted.) Teasley v. State, 307 Ga. App. 153, 158 (2) (704 SE2d 248) (2010).

       Id.

       (Citation and punctuation omitted.) Id. at 158 (2) (a).

       “It is important that trial courts not limit their consideration of the lengthiness of the pretrial delay to the threshold question of presumptive prejudice and remember to count it again as one of four criteria to be weighed in the balancing process at the second stage of the Barker-Doggett analysis.” Simmons v. State, 304 Ga. App. 39, 41 (2) (a) (696 SE2d 75) (2010) (footnote omitted).

       (Punctuation and footnote omitted.) Harrison v. State, 311 Ga. App. 787, 790 (3) (a) (717 SE2d 303) (2011).

       (Footnote omitted.) Ruffin, supra at 59 (2) (b) (ii).

       (Footnote omitted.) Barker, supra at 531 (IV).

        Thomas, supra.

       See Nusser v. State, 275 Ga. App. 896, 898 (622 SE2d 105) (2005).

       (Citation omitted.) Brannen v. State, 274 Ga. 454, 456 (553 SE2d 813) (2001) (defendant announcing ready for trial and objecting to a continuance cannot be construed as an assertion of the right to a speedy trial). Accord Grizzard v. State, 301 Ga. App. 613, 616 (2) (c) (688 SE2d 402) (2009) (merely appearing for trial does not invoke the right to a speedy trial).

        State v. White, 282 Ga. 859, 862 (2) (d) (655 SE2d 575) (2008).

       (Citation and punctuation omitted.) Boseman v. State, 263 Ga. 730, 733 (1) (d) (438 SE2d 626) (1994).

        Ingram v. State, 280 Ga. App. 467, 470 (1) (d) (634 SE2d 430) (2006).

        Grizzard, supra at 617 (2) (d) (“[A] delay exceeding five years entitles a defendant to a presumption of actual prejudice”) (citations and punctuation omitted).

        Porter at 532 (2) (d).

       (Citations omitted.) Williams v. State, 277 Ga. 598, 601 (1) (d) (592 SE2d 848) (2004).

       Id.

       (Citation and punctuation omitted.) Porter, supra at 533 (2) (e).

       (Citation and punctuation omitted.) Id.