author: PHIPPS, Presiding Judge.

text:
    A12A0130.
    SLAN v. THE STATE.
    (730 SE2d 565)
   PHIPPS, Presiding Judge.

Michael Sian was found guilty of robbery and simple battery. He was found not guilty of two counts of aggravated assault, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon. On appeal, Sian contends that the evidence was insufficient to support the convictions and that his trial counsel was ineffective. For the following reasons, we affirm.

1. In resolving Sian’s challenge to the sufficiency of the evidence, “we construe the evidence in the light most favorable to the verdict to determine whether it was sufficient to authorize a rational trier of fact to find [Sian] guilty . . . beyond a reasonable doubt.” “Weighing the evidence and determining witness credibility are beyond the purview of this Court.”

Viewed in this light, the evidence showed that on the night of January 15, 2010, Sian and Thomas Derocher went to the residence of Deanna Willis. When they arrived, Sian sat on a couch, and Derocher walked into the kitchen. Willis’s dog jumped on Sian, who pushed the dog off, stood up from the couch, and grabbed a jar of marijuana that was on a table. Willis then grabbed the marijuana from Sian. Sian pushed Willis down and grabbed the marijuana from her. Willis again grabbed the marijuana from Sian, who walked over to Willis’s “Xbox” and began to pull out cords.

Willis tried to stop Sian from pulling the cords out of the Xbox, but Sian kept pushing her down. Willis testified that eventually Sian “grabbed me by my throat, put me against this wall, held me there for a second, and threw me down by my arm and my neck onto this table (indicating) and held me there.” Willis “was screaming for Tom,” but he did not come. Willis testified that Sian “just held me there. And then from there, he just went back to the Xbox and I ran and got a knife,” from the kitchen. Sian ran out of Willis’s house, taking her Xbox and the marijuana.

Sian argues that the state’s main witnesses were not credible because two of them dealt drugs, used drugs, had short-term memory loss, and admittedly lied to the police; and a third witness accepted a plea deal to testify against Sian. But “the credibility of the witnesses .. . [was a] matter[ ] for the jury.” “[T]he testimony of a sole eyewitness is sufficient to support a conviction.” We will uphold a jury’s verdict “[a]s long as there is some competent evidence, even though contradicted, to support each fact necessary for the state’s case.”

Sian argues also that the evidence was insufficient to support his convictions because the police testified that he did not resist arrest, he did not have a gun on his person, the property taken was not found at either his residence or Derocher’s residence, and the jacket he allegedly wore the night of the incident was not tested for gun residue. But none of these facts was necessary to support Sian’s conviction for robbery or simple battery. The evidence was sufficient for the jury to find Sian guilty of robbery beyond a reasonable doubt. The evidence was also sufficient for the jury to find Sian guilty of simple battery beyond a reasonable doubt.

2. Sian contends that his trial counsel was ineffective in several respects.

[I]n order to prevail on such a claim of the ineffective assistance of counsel pursuant to Strickland v. Washington,[] a criminal defendant must demonstrate that his counsel’s performance was deficient and that, but for such deficiency, there is a reasonable probability that the outcome of the proceeding would have been different; on appeal, this Court is to accept the trial court’s factual findings and credibility determinations unless they are clearly erroneous, but is to independently apply the legal principles to the facts.

(a) Sian contends that his counsel was ineffective because he failed to file a motion to suppress clothing he wore when he was arrested. “Failure to file a motion to suppress is not ineffective assistance of counsel per se, and [Sian] must make a strong showing that the evidence would have been suppressed had his trial counsel filed a motion.”

After jury selection on the first day of trial, the prosecutor stated to the court that before trial, she had asked defense counsel whether he would agree to release from Sian’s “bin” clothing “from whenever Mr. Sian was arrested.” Trial counsel stated to the court that he had discussed the issue with Sian, who decided that the state “should go through the warrant procedure rather than to voluntarily give up his personal property. . . .” The prosecutor stated that just that day her office had obtained a search warrant for the items of clothing. Trial counsel reserved the right to object to the evidence if it was introduced at trial.

At the motion for new trial hearing, trial counsel testified that he had “wanted those clothes in.” Counsel stated that while

half of this case was the robbery... [t] he other half of the case was actually — ended up, in my mind at that time, was equally, if not more important, was the Aggravated Assault by a convicted felon with a firearm. Shooting a gun at these three or four guys over at the Co-Defendant’s mother’s house.

Evidently, counsel believed that there would be no gun residue on the clothes because he stated that he “was going to use that as a strategy that there was no such residue.” No gun was recovered in this case.

Accordingly, it is clear that trial counsel’s decision not to move to suppress evidence of the clothing was a reasonable and strategic one. “Such a strategic choice, made after thoughtful consideration, cannot support a claim of ineffective assistance of counsel.” “The decision of whether to file a motion to suppress is a matter of professional judgment, and we will not judge counsel’s trial strategy in hindsight.”

(b) Sian contends that his trial counsel was ineffective because he failed to adequately investigate Willis’s background.

On direct examination, Willis testified that she smoked marijuana. On cross-examination, defense counsel questioned Willis about statements she had made to a detective after he arrived at the crime scene.

Q. In fact, didn’t [the detective] have a theory that this was a drug deal went bad?
A. That was his theory. Yes, sir.
Q. And you wanted to dissuade him of that theory?
A. I wasn’t selling drugs, so yeah. Yes, sir.
Q. But you wanted to dissuade him that you had anything to do with drugs?
A. Yes, sir.
Q. You made statements such as look in my eyes. I don’t use drugs. I don’t allow drugs in my house, things like that, didn’t you?
A. I’m pretty sure I was pretty persistent, yes, sir. I didn’t want to get in trouble.
Q. Well, you had stated that you had been in trouble to him on a recorded statement. What kind of trouble was that?
A. Whenever I was eighteen I was pulled over and I got arrested for possession.
Q. Of...
A. Of a bowl.
Q. Less than an ounce?
A. Yes, sir.

After this testimony had been admitted, later in the trial, the prosecutor argued to the court that although she had not objected to its admission when it was entered, the testimony was improperly solicited by defense counsel because he did not have a good faith basis to ask the questions nor did he have a certified conviction, and that in any event, counsel should not have impeached Willis with her prior drug arrest because the crime was a misdemeanor. The prosecutor made a motion in limine to prohibit counsel from further cross-examining witnesses about prior arrests or convictions if he did not possess a certified conviction or a good faith basis to ask such questions. The trial court overruled the objection. The court ruled that the testimony was not improper because of Willis’s statement to the detective that she did not use marijuana and that “[i]f nothing else, the res gestae of the event itself is a basis for cross-examination as to virtually all aspects of that, not only that witness but any other witness that was there during the event.”

At the motion for new trial hearing, trial counsel testified that he had reviewed audiotapes of an interview Willis had with a detective. During the interview, Willis was reportedly asked “Do you still use... dope?” Willis reportedly replied, “No. I don’t.... I gave it up because I had a misdemeanor conviction.” Trial counsel testified that he conducted cross-examination of Willis with regard to her misdemeanor conviction, to show that she was a liar. Because Sian has failed to show that his trial counsel inadequately investigated Willis’s background or that further investigation would have yielded beneficial evidence, he has failed to carry his burden of showing prejudice from his counsel’s allegedly deficient performance.

(c) Sian contends that he received ineffective assistance because trial counsel did not object to testimony that he may have fired a weapon on the night of the charged incidents.

At trial, a witness testified that he believed that Sian had shot a gun on the night in question. When asked at the motion for new trial hearing why he did not object to the witness’s testimony, trial counsel testified that the witness, “on cross examination and on his direct examination,... actually helped us in a whole lot of the case. I didn’t want to bring more attention to this than absolutely necessary. This is a pure strategy point of view.” During cross-examination, trial counsel had elicited testimony from the witness that although on the night of the incident he thought he saw somebody shoot a gun, at trial he could not remember whether he had seen anybody shoot a gun that night; he did not see the face of the individual whom he thought was the shooter; he could not determine what, if anything, was in the individual’s hands; and simply did not “see enough to identify” the individual he saw running away after shots were fired.

“As a general rule, matters of reasonable trial tactics and strategy, whether wise or unwise, do not amount to ineffective assistance of counsel. A reviewing court evaluates trial counsel’s performance from counsel’s perspective at the time of trial.” “An attorney’s failure to object to such testimony may be seen as trial strategy, i.e., avoiding an objection that would draw the jury’s attention to the statement.” “Since [Sian] did not carry his burden of establishing that trial counsel’s action fell without the wide range of reasonable professional assistance, we see no error in the trial court’s determination that trial counsel was not ineffective.”

(d) Sian contends that his trial counsel’s lack of trial strategy is evidenced by trial counsel’s failure to move to bifurcate the possession of a firearm by a convicted felon charge from the rest of the charges.

At the motion for new trial hearing, trial counsel testified that Sian agreed with his strategy not to have a bifurcated trial. Counsel testified that Sian insisted on testifying and that they were prepared for Sian to testify and “say he never had a gun.” Counsel testified that “the only indicia of there having been a weapon was a .22 caliber casing that was green with corrosion. That certainly had not been fired that night.” Counsel testified that there was a “total lack of evidence” showing that Sian had fired a gun that night. Defense counsel and Sian were very concerned about the aggravated assault charges.

“Trial counsel’s decision not to move for a bifurcated trial was ... the result of his choice of trial tactics based on his conversations with [Sian].”

(e) Sian contends that he received ineffective assistance because trial counsel failed to adequately argue the motion for directed verdict. “Because we [held] in Division 1[] that the evidence satis-fie[d] the requirements of Jackson u. Virginia,[] this ground is insufficient as a matter of law.”

(f) Sian contends that he received ineffective assistance because trial counsel allowed him to testify at trial despite his prior convictions.

But the unrebutted testimony at the motion for new trial hearing showed that Sian had “insisted he was going to get on the stand.” “The decision whether or not to testify is a tactical one made by the defendant himself after consultation with counsel. The choice of whether to testify is ultimately a defendant’s. We will not second-guess tactical decisions made at trial,” in this regard.

(g) Sian contends that he received ineffective assistance because trial counsel did not perfect the record regarding the potential for the jury to see a “security device” on his leg if he took the witness stand to testify.

The trial transcript showed that trial counsel raised the issue before the trial court, the trial court examined Sian before he testified, and the court found that the device was not visible. The court instructed that photographs be taken of Sian’s legs, and they were admitted as court exhibits. We note that no leg security device is visible from the photographs. Furthermore, at the motion for new trial hearing, trial counsel testified that Sian testified at trial from behind a podium and that counsel brought over to Sian exhibits about which Sian testified. Accordingly, Sian has failed to establish that trial counsel’s performance was deficient.

(h) Finally, Sian contends that he received ineffective assistance because trial counsel “did not make a record that all jurors be present during a discussion as to whether the court should go into the jury room” to respond to a question from the jury; did not request that the court instruct the jury to “remember the evidence collectively[,] not appearing to give additional weight to specific evidence or to open up the evidence again”; did not make a motion for the court to discuss “any jury foreman question with counsel and Appellant”; and did not object when the trial court read an Allen charge to the jury. These allegations of ineffective assistance are deemed abandoned because they are not supported by argument or by citations to authority as required by our Rule 25 (c) (2).

Concerning all of the instances in which Sian contends his trial counsel was ineffective,

since [Sian] did not carry his burden of establishing that trial counsel’s action fell without the wide range of reasonable professional assistance, we see no error in the trial court’s determination that trial counsel was not ineffective. Inasmuch as [Sian] failed to establish that any aspect of trial counsel’s performance was deficient and that the deficiency was prejudicial, the trial court did not err in concluding that [Sian] was not deprived of the effective assistance of counsel at trial.

Decided July 13, 2012.

Patrick G. Longhi, for appellant.

Garry T. Moss, District Attorney, Patricia G. Hull, Cliff Head, Assistant District Attorneys, for appellee.

Even if counsel’s performance were deficient in any of the respects alleged by Sian, he has “failed altogether to show prejudice and, therefore, has not established [his] claim of ineffective assistance.” “Simply, the burden under Strickland v. Washington[] has not been satisfied.”

Judgment affirmed.

Ellington, C. J., and Dillard, J., concur.

        Morgan v. State, 277 Ga. App. 670, 671-672 (1) (627 SE2d 413) (2006) (footnote omitted).

        Best v. State, 279 Ga. App. 309 (1) (630 SE2d 900) (2006).

        Brown v. State, 281 Ga. App. 463, 464 (636 SE2d 177) (2006) (punctuation and footnote omitted).

        Scott v. State, 288 Ga. App. 738, 739 (1) (a) (655 SE2d 326) (2007) (footnote omitted).

        Oliver v. State, 273 Ga. App. 754, 755 (1) (615 SE2d 846) (2005) (footnote omitted).

       See OCGA § 16-8-40; Bills v. State, 283 Ga. App. 660, 661-662 (1) (a) (642 SE2d 352) (2007) (robbery conviction affirmed where on appeal defendant claimed evidence was insufficient because the property taken was not found in his possession and the only evidence linking him to the crimes was the victim’s identification testimony); Brown, supra; Scott, supra.

        Bills, supra; McDonald v. State, 256 Ga. App. 369-370 (568 SE2d 588) (2002); see Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Brigman v. State, 282 Ga. App. 481, 484 (1) (639 SE2d 359) (2006) (evidence sufficient to support simple battery conviction where defendant pushed victim forcibly with his-fingers as she tried to stand).

       466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

        Johnson v. State, 290 Ga. 382, 383 (2) (721 SE2d 851) (2012) (citation omitted).

        Patterson v. State, 259 Ga. App. 630, 633 (4) (577 SE2d 850) (2003) (citation and punctuation omitted).

         Smith v. State, 269 Ga. App. 133, 143 (4) (d) (603 SE2d 445) (2004) (citation omitted).

        Hardy v. State, 301 Ga. App. 115, 116-117 (3) (686 SE2d 789) (2009) (citation and punctuation omitted.)

        See Banks v. State, 250 Ga. App. 728, 729-730 (2) (552 SE2d 903) (2001).

        Sillah v. State, 291 Ga. App. 848, 852 (3) (663 SE2d 274) (2008) (punctuation and footnote omitted).

        Rivers v. State, 271 Ga. 115, 118 (2) (b) (516 SE2d 525) (1999) (citation omitted).

       Id.

       OCGA§ 24-9-84.1 (a) (2) pertinently provides that, for the purpose of attacking the credibility of a defendant if the defendant testifies,
      [e] vidence that the defendant has been convicted of a crime shall be admitted if the crime was punishable by death or imprisonment of one year or more under the law under which the defendant was convicted if the court determines that the probative value of admitting the evidence substantially outweighs its prejudicial effect to the defendant^]
      OCGA § 24-9-84.1 (a) (3) pertinently provides that, for the purpose of attacking the credibility of a defendant if the defendant testifies, “[e]vidence that... the defendant has been convicted of a crime shall be admitted if it involved dishonesty or making a false statement,” and under this subsection, evidence of the prior crime is admissible without regard to the balancing test set forth in subsection (a) (2); see Childs v. State, 287 Ga. 488, 490 (3), n. 2 (696 SE2d 670) (2010).

        Harris v. State, 234 Ga. App. 126, 129 (3) (505 SE2d 49) (1998) (citation omitted).

       Supra.

       Supra.

        Wright v. State, 211 Ga. App. 474, 478 (5) (440 SE2d 27) (1993).

        Nichols v. State, 288 Ga. App. 118, 125 (3) (g) (653 SE2d 300) (2007) (punctuation and footnotes omitted).

       See Strickland v. Washington, supra.

       See Sevostiyanova v. State, 313 Ga. App. 729, 737-738 (11) (e) (722 SE2d 333) (2012); Gaither v. State, 312 Ga. App. 53, 60 (12) (717 SE2d 654) (2011) (defendant’s failure to make argument with respect to his contention that the trial court erred in refusing to charge on battery was deemed abandoned because defendant failed to make argument with respect to his contention, pursuant to Court of Appeals Rule 25 (c) (2)).

        Rivers, supra.

        Sevostiyanova, supra (footnote omitted).

       Supra.

        See Johnson, supra at 386 (2) (d); Schofield v. Holsey, 281 Ga. 809,812 (II), n. 1 (642 SE2d 56) (2007).


source: Caselaw Access Project

author: MlKELL, Presiding Judge.

license: Public Domain

text:
    A12A0135.
    ROESSER v. THE STATE.
    (730 SE2d 641)
   MlKELL, Presiding Judge.

Following the denial of his plea in bar asserting double jeopardy, Christopher Roesser appeals, contending that the trial court erred in ruling that he could be retried for voluntary manslaughter after the jury deadlocked on this charge. Roesser argues that because the jury acquitted him of the indicted offenses of malice murder, felony murder, and aggravated assault, the state is barred from further prosecution on the lesser included offense of voluntary manslaughter. We conclude that, in this case, a retrial on the voluntary manslaughter charge following a mistrial due to a hung jury does not violate the Double Jeopardy Clause of either the federal or state constitutions. Therefore, we affirm the ruling of the trial court.

“When an appellate court reviews a trial court’s decision on a plea in bar, we conduct a de novo review of the legal issues. Further, we must accept the trial court’s findings on disputed facts and witness credibility unless those findings are clearly erroneous.” The record shows that Roesser fatally shot the victim, Keith Price, in a parking lot on the evening of December 20, 2006. Roesser was indicted on charges of malice murder, felony murder, aggravated assault, and three counts of possession of a firearm during the commission of a felony. Following a jury trial, he was convicted on all the indicted counts. The trial court subsequently granted Roesser’s amended motion for new trial. In the second trial, Roesser’s sole defense was that he acted in self-defense in firing his weapon and fatally injuring Price. At the trial’s conclusion, the jury found him not guilty of malice murder, felony murder, aggravated assault, and one count of possession of a firearm during the commission of a felony (based on the aggravated assault charge); however, it was unable to reach a verdict on the other charges, including voluntary manslaughter, which had been charged at Roesser’s request as a lesser included offense of the murder charges.

At the second trial, the state presented the testimony of Roger Allen Epstein, among others. Epstein was present when the shooting occurred, and he drove Price to the hospital. He testified that he set up a meeting for December 20, 2006, between Roesser, whom he had known for years, and Price, a recent acquaintance. Epstein testified that Roesser and Price had never met before; and that he wanted to “hook them up with each other,” so Price could purchase marijuana from Roesser. Epstein drove Price to the meeting place, the parking lot of Roesser’s employer, to meet with Roesser. As soon as Roesser got in the back seat of the car, Price, who was in the front passenger seat, turned around and grabbed hold of him. Epstein heard Roesser say, You got it,” and Price released him. Roesser got out of the car, and Epstein heard a gunshot. Epstein started the engine at once and drove away. Once he realized that Price was injured, he drove straight to the hospital, where Price was pronounced dead. Epstein denied any discussion of a PlayStation 3; he denied seeing a gun or money; and he denied throwing anything out of the car.

Roesser took the stand on his own behalf and told a different version of the events. He testified that in December 2006 he wanted to buy a PlayStation 3 video game system as a Christmas gift for a child he knew. In order to avoid standing in line to purchase this popular item, he arranged to meet Epstein in order to buy one or more PlayStations from him at $900 each. On December 20, Roesser brought $2,000 cash to work with him, leaving the cash in the glove compartment of his car. That evening, Epstein called to say he was waiting in the parking lot. Roesser went to his car and retrieved the $2,000 cash, as well as his handgun. He testified that he needed the handgun for protection at night. As he approached Epstein’s vehicle, he saw Epstein in the driver’s seat and Price, whom he had never seen before, in the front passenger seat. Roesser testified that the moment he got into the back seat of the car, Price grabbed him by his shirt collar, pointed a gun at him, and demanded his money. Roesser testified that he believed at the time that Price’s weapon was real and that he feared for his life, so he produced the money and then opened the rear door in an attempt to escape. Price reached around to grab him again. Roesser testified, “I got out of the car and I tucked my head and fired my handgun one time.” Without pausing to see where the shot struck, he immediately fled over the báck fence, losing his eyeglasses in the process. Shortly afterward, he returned to his car and drove out of the parking lot, passing a police car. He did not stop, nor did he report the incident to police; instead, he drove to a friend’s home, where he was arrested six weeks later, in February 2007.

Roesser’s eyeglasses and $2,000 in currency were found on the ground in the parking lot later that evening. Also found at the scene was a plastic “gun.” Kelly Fite, testifying for the defense as an expert in firearms and ballistics, explained that the plastic gun found at the scene was a replica of, and almost identical in appearance to, a Colt Delta Elite .380 pistol, a true firearm. Fite testified that “all soft-air guns are replica guns”; that replica guns which resemble real firearms are required to be manufactured with a red end cap over the muzzle, so that they can be distinguished from real firearms; but that the red muzzle cap on the plastic gun found at the scene had been removed.

At the end of the trial, the jury acquitted Roesser on the murder and aggravated assault charges but deadlocked on the voluntary manslaughter charge; and the trial court declared a mistrial as to that charge. The trial court denied Roesser’s plea in bar, and this appeal followed.

1. In his sole enumeration of error, Roesser asserts that a retrial on the voluntary manslaughter charge is prohibited by the Double Jeopardy Clause of the United States and Georgia Constitutions, and therefore that the trial court erred in denying his plea in bar. Roesser contends that in acquitting him of the murder charges, the jury necessarily determined that his conduct was justified because he acted in self-defense; and that, on retrial, the justification defense would be equally applicable to the voluntary manslaughter charge. Relying on Yeager v. United States, he argues that the collateral estoppel doctrine “embodied in the Fifth Amendment guarantee against double jeopardy” operates to prohibit his retrial on the mistried charge of voluntary manslaughter. Because our review of the record of prior proceedings in this case convinces us that, in acquitting him on the murder charges, the jury did not necessarily determine that Roesser acted in self-defense, we conclude that the doctrine of collateral estoppel does not apply in this case.

Roesser’s reliance on Yeager is misplaced. It is true that the Supreme Court in Yeager reiterated that “[i]n Ashe, we squarely held that the Double Jeopardy Clause precludes the Government from relitigating any issue that was necessarily decided by a jury’s acquittal in a prior trial.” Under the doctrine of collateral estoppel, or issue preclusion, “when an issue of ultimate fact has once been determined by a valid and final judgment of acquittal, it cannot again be litigated in a second trial for a separate offense.” However, the facts presented in Yeager are distinguishable from the facts in the case at bar. In Yeager, a case arising from the Enron scandal, the defendant was accused of multiple counts of federal securities law violations, which the Supreme Court grouped into “fraud counts” and “insider trading” counts. The jury acquitted him on the fraud counts but deadlocked as to the insider trading counts, and a mistrial was declared as to the hung counts. Yeager argued that “the jury’s acquittals [on the fraud counts] had necessarily decided that he did not possess material, nonpublic information” about the events at issue; and because on retrial the government would have to prove that he did possess such information, the “issue-preclusion component of the Double Jeopardy Clause barred a second trial of that issue.” The Supreme Court agreed, ruling that “if the possession of insider information was a critical issue of ultimate fact in all of the charges against [Yeager], a jury verdict that necessarily decided that issue in his favor protects him from prosecution for any charge for which that is an essential element.”

In contrast, in the case before us, the jury verdict did not necessarily decide the issue of justification in Roesser’s favor. We first address the jury’s verdict of acquittal of malice murder. OCGA § 16-5-1 (a) provides that “[a] person commits the offense of murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being.” “Express malice” means “that deliberate intention unlawfully to take the life of another human being which is manifested by external circumstances capable of proof”; malice “shall be implied where no considerable provocation appears and where all the circumstances of the killing show an abandoned and malignant heart.” Thus, in order to convict Roesser of “malice murder,” the jury would have been required to find beyond a reasonable doubt that he had the requisite intent — either express or implied malice. If the jury were unable to find that Roesser acted with either express or implied malice, it would be obliged to acquit on the malice murder charge. Thus, the jury would not have had to decide whether Roesser’s conduct was justified as self-defense.

The jury also acquitted Roesser of felony murder (predicated on the felony of aggravated assault) and aggravated assault with a deadly weapon. We note that the offense of voluntary manslaughter requires proof of an element not found in malice murder, felony murder, or aggravated assault, that is, that the accused acted under “a sudden, violent, and irresistible passion.” In Williams v. State, our Supreme Court effectively ruled that aggravated assault with a deadly weapon and voluntary manslaughter are mutually exclusive offenses. Thus, Roesser’s acquittal on the felony murder and aggravated assault charges does not change the double jeopardy analysis and would not bar retrial on the voluntary manslaughter charge.

Except as limited by the issue preclusion doctrine set forth in Yeager, which we have concluded does not apply in the case at bar, “a trial court’s declaration of a mistrial following a hung jury is not an event that terminates the original jeopardy to which the defendant was subjected.” Further, “under the double jeopardy provision in Georgia’s constitution, if a jury cannot agree upon a verdict in a criminal case, the trial judge may declare a mistrial, and the accused may then be tried a second time for the same offense.” In our view, the case at bar is controlled by this Court’s decision in State v. Archie, where we held that an “acquittal on the indicted offense of murder would not bar retrial on the lesser included unindicted offense of voluntary manslaughter using the same indictment, as long as the next jury does not know about the murder charge.”

Decided July 13, 2012

Brian Steel, for appellant.

We conclude that the doctrine of collateral estoppel (or issue preclusion) under the Double Jeopardy Clause does not operate to bar the state from retrying Roesser on the voluntary manslaughter charge.

2. An important factor distinguishing the case at bar from the United States Supreme Court decision in Yeager is the doctrine of intent. The defendant in Yeager was charged with violating a modern federal statute regulating the securities markets. Determining the requisite intent under such statutes has become “almost wholly mechanical.” By contrast, a conviction for violation of a statute regarding homicide requires precise consideration of carefully-defined degrees of specific intent. It is possible that the jury in Roesser’s case decided that the state had failed to prove the specific intent required for a murder conviction. A new jury might nonetheless find that the state has proved beyond a reasonable doubt the special mental attitude needed to establish voluntary manslaughter.

Judgment affirmed.

Miller and Blackwell, JJ., concur.

Daniel J. Porter, District Attorney, Wesley C. Ross, Assistant District Attorney, for appellee.

       “The denial of a plea of former jeopardy may be directly appealed without resort to the procedures for interlocutory appeal.” Baker v. State, 263 Ga. App. 462, 466 (2) (588 SE2d 288) (2003), citing Patterson v. State, 248 Ga. 875-876 (287 SE2d 7) (1982).

       Roesser originally appealed to the Supreme Court of Georgia, which concluded that its subject matter jurisdiction had not been invoked and transferred the case to this Court.

       The Double Jeopardy Clause of the Fifth Amendment provides: “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb,” and is applicable to the states through the Fourteenth Amendment. Benton v. Maryland, 395 U. S. 784,794 (III) (89 SC 2056, 23 LE2d 707) (1969). Art. I, Sec. I, Par. XVIII of the Georgia Constitution provides: “No person shall be put in jeopardy of life or liberty more than once for the same offense except when a new trial has been granted after conviction or in case of mistrial.”

       (Citations omitted.) State v. Bair, 303 Ga. App. 183 (692 SE2d 806) (2010).

       OCGA § 16-3-21 (a) (“A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to defend himself or herself or a third person against such other’s imminent use of unlawful force; however,... a person is justified in using force which is intended or likely to cause death or great bodily harm only if he or she reasonably believes that such force is necessary to prevent death or great bodily injury to himself or herself or a third person or to prevent the commission of a forcible felony”).

       Roesser introduced evidence that, in December 2006, a Sony PlayStation retailed for approximately $600, and people would wait in line in freezing weather for a chance to buy one.

       This item was described by a police investigator as a “plastic toy pistol” and by defendant’s expert, Kelly Fite, as “an air-soft pistol... a non-gun... a soft air gun [that] shoots six millimeter plastic pellets under spring pressure.” Fite did not define the term “air-soft.”

       The state stipulated to Fite’s qualification as an expert.

       The jury verdict form indicates that the jury was deadlocked at eleven (not guilty) to one (guilty) on the voluntary manslaughter charge.

       The jury was also unable to reach a verdict as to two counts of possession of a firearm during the commission of a felony (based on the charges of malice murder and felony murder, respectively). Because Roesser had been acquitted on the predicate felonies, the trial court ruled that the state was barred from retrying Roesser on those counts. This part of the trial court’s ruling is not at issue in this appeal.

       557 U. S. 110 (129 SC 2360, 174 LE2d 78) (2009).

       (Footnote omitted.) Ashe v. Swenson, 397 U. S. 436, 445 (90 SC 1189, 25 LE2d 469) (1970).

       See Yeager, supra at 120 (II) (to determine what issues a jury has necessarily decided in rendering a verdict, “courts should examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration”) (punctuation omitted), citing Ashe, supra at 444.

       Yeager, supra at 119 (II). See Ashe, supra at 443.

       The Supreme Court explained that “[c]urrently, the more descriptive term ‘issue preclusion’is often used in lieu of‘collateral estoppel.’ ” (Citation omitted.) Yeager, supra at 119 (II), n. 4.

       (Punctuation omitted.) Id. at 119 (II), citing Ashe, supra.

        Yeager, supra at 112 (I).

       Id. at 114 (I).

       Id. at 115 (I).

       Id.

       Id. at 123 (II).

       At the hearing on the plea in bar, Roesser adduced evidence from a former member of the jury to the effect that the juror’s decision to acquit on the murder charges was based on his acceptance of Roesser’s justification defense. This testimony, however, is irrelevant to the issue at hand. The issue before us is not whether the jury could have based its acquittals on Roesser’s justification defense. As made clear in Yeager, the issue is whether the jury necessarily based its decision on its acceptance of this defense. Id. at 119 (II).

       OCGA § 16-5-1 (b).

       Id.

       OCGA § 16-5-1 (c) (a person commits felony murder “when, in the commission of a felony, he causes the death of another human being irrespective of malice”).

       OCGA § 16-5-21 (a) (2).

       OCGA § 16-5-2 (a) (a person commits voluntary manslaughter “when he causes the death of another human being under circumstances which would otherwise be murder and if he acts solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person”) (emphasis supplied).

       288 Ga. 7 (700 SE2d 564) (2010).

       Id. at 9 (2).

       (Punctuation omitted.) Rower v. State, 267 Ga. 46 (472 SE2d 297) (1996), citing Richardson v. United States, 468 U. S. 317, 326 (104 SC 3081, 82 LE2d 242) (1984). See generally Blueford v. Arkansas,_U. S._(132 SC 2044,182 LE2d 937) (2012) (“The Double Jeopardy Clause protects against being tried twice for the same offense. The Clause does not, however, bar a second trial if the first ended in a mistrial”) (182 LE2d at 940). The Blueford
        decision, though instructive, does not directly apply to the case at hand, because it involved a jurisdiction (Arkansas) which applied a “single-verdict” rule and did not allow for partial verdicts, as Georgia does. Id. at 942 (I).

       (Citation and punctuation omitted.) Rower, supra.

       2 30 Ga. App. 253 (495 SE2d 581) (1998).

       (Citation omitted.) Id. at 255. See generally Patmon v. State, 303 Ga. App. 151, 152 (693 SE2d 120) (2010) (after defendant’s convictions for armed robbery and aggravated assault were overturned, retrial on these counts was not barred by jury’s acquittal on murder, kidnapping with bodily injury, and other counts, because in acquittal, jury did not necessarily determine any fact central to issues involved in re-prosecution on convicted counts) (id. at 151, 152-153).

       Supra.

       See id. at 113 (I), n. 1.

       Wm. J. Stuntz, The Collapse of American Criminal Justice (The Belknap Press of Harvard University Press, Cambridge, Mass., 2011), 303.

       Stuntz, supra at 260-262, 303.


author: Ellington, Chief Judge.

text:
    A12A0169, A12A0170.
    NICHOLSON HILLS DEVELOPMENT, LLC et al. v. BRANCH BANKING & TRUST COMPANY; and vice versa.
    (730 SE2d 572)
   Ellington, Chief Judge.

This case arises from an application for confirmation of a nonjudicial foreclosure sale filed by Branch Banking & Trust Company (“BB&T”) against real property serving as collateral for a loan in favor of Nicholson Hills Development, LLC and R. Millard Bowen, as guarantor (collectively, “Nicholson Hills”). Nicholson Hills objected to the confirmation on two grounds: (1) that BB&T failed to meet the statutory prerequisites of OCGA § 44-14-162 (a), requiring it to advertise the sale in both, as opposed to just one, of the counties occupied by the real property at issue, and (2) that the sale failed to bring the true market value of the property. Following a limited hearing, which by stipulation of the parties consisted of oral argument related only to the adequacy of the advertisement, the trial court held that the plain language of OCGA § 44-14-162 (a) required BB&T to advertise the foreclosure in both counties. It thereafter denied the application to confirm the foreclosure sale and sua sponte ordered the property to be resold pursuant to OCGA § 44-14-161 (c). The parties cross-appealed, with BB&T challenging the trial court’s interpretation of OCGA § 44-14-162 (a) and Nicholson Hills challenging the trial court’s ordering of a resale without first conducting an evidentiary hearing. For the reasons set forth below, we affirm in part, vacate in part, and remand this case for additional proceedings consistent with this opinion.

The following facts are undisputed. In February 2005, Nicholson Hills executed a promissory note with BB&T in a principal amount exceeding $5,631,250 (the “Note”). The Note was secured via security deed by a large tract of real property located in both Forsyth and Dawson counties (the “Property”). Ultimately, Nicholson Hills defaulted on the Note, and BB&T commenced foreclosure proceedings pursuant to the power of sale contained in the security deed. For four consecutive weeks, BB&T advertised the sale in the legal organ of Forsyth County, but did not advertise the sale in Dawson County. In July 2008, BB&T conducted the foreclosure sale in Forsyth County, was itself the highest bidder, and purchased the property for $3,340,000.

Also in July 2008, BB&T filed its report of foreclosure sale and application for confirmation. Nicholson Hills filed an answer in which it denied “that the foreclosure sale was advertised and conducted as required by law” and further denied that the Property sold for its true market value.

After the parties conducted discovery, the trial court held a hearing on BB&T’s application for confirmation in March 2011. At the commencement of the hearing, the parties agreed that the sole issue before the trial court for the purposes of that hearing was the legal question of whether the advertisement comported with the statutory requirements, and the transcript makes clear that both the parties and the trial court anticipated that any remaining evidentiary issues after the trial court’s legal ruling would be addressed at a subsequent evidentiary hearing.

Several months after the initial hearing, the trial court issued an order in which it concluded that the advertisement was legally deficient under the plain language of OCGA § 44-14-162 (a) and, therefore, denied BB&T’s application for confirmation. In the same order, the trial court ordered a resale of the Property pursuant to OCGA § 44-14-161 (c), although it had not yet concluded its eviden-tiary hearing on the issues reserved. The instant cross-appeals followed.

1. In Case No. A12A0170, BB&T contends that the trial court erred in interpreting OCGA § 44-14-162 (a) to require that it advertise the foreclosure sale in both Forsyth and Dawson counties, and consequently erred in holding the advertisement legally deficient. We disagree and affirm this portion of the trial court’s order.

OCGA § 44-14-162 provides, in relevant part, that

[n]o sale of real estate under powers contained in mortgages, deeds, or other lien contracts shall be valid unless the sale shall be advertised and conducted at the time and place and in the usual manner of the sheriffs sales in the county in which such real estate or a part thereof is located[.]

In construing this statute,

our goal is to determine its legislative purpose. In this regard, a court must first focus on the statute’s text. In order to discern the meaning of the words of a statute, the reader must look at the context in which the statute was written, remembering at all times that the meaning of a sentence may be more than that of the separate words, as a melody is more than the notes. If the words of a statute, however, are plain and capable of having but one meaning, and do not produce any absurd, impractical, or contradictory results, then this Court is bound to follow the meaning of those words. If, on the other hand, the words of the statute are ambiguous, then this Court must construe the statute, keeping in mind the purpose of the statute and “the old law, the evil, and the remedy.” OCGA § 1-3-1 (a).

(Citations and punctuation omitted.) Adventure Outdoors v. Bloomberg, 307 Ga. App. 356, 358-359 (1) (705 SE2d 241) (2010). The interpretation of a statute presents a question of law, which we review de novo. Id. at 358 (1).

Examining the text alone, it is plain that the statute addresses two requirements for a valid foreclosure sale: (1) the manner of advertising and (2) the conduct of the sale. That portion of the statute pertaining to advertising requires that “the sale shall be advertised ... in the county in which such real estate or a part thereof is locatedf.j” This language is not ambiguous. It means that the sale shall be advertised in every county where any part of the property to be sold is located. Further, considering that many loans, especially those for large commercial developments, are secured by multiple properties located in more than one county or situated across county lines, it would be nonsensical to read this statute any other way. However, to the extent one might find the use of the singular word “county” (as opposed to the plural word “counties”) ambiguous, one must keep in mind the purpose of the confirmation statute.

When the Georgia General Assembly originally enacted the confirmation statute in 1935,

our country was emerging from a disastrous depression during which many mortgagors had not only lost their property through foreclosure but were forced to bankrupt against deficiency judgments after foreclosure sales in which mortgagees usually acquired the property at nominal or depressed bids.

Thus, the confirmation process, which is a condition precedent to an action for deficiency judgment, was intended “to protect a debtor from a deficiency judgment when the involuntary sale brings less than the true market value.” The law requires that, following an application for confirmation of a foreclosure sale under power of sale, the trial court hold a hearing to “require evidence” of the property’s true market value and to “pass upon the legality of the notice, advertisement, and regularity of the sale.” The trial court’s primary duty at a hearing “is a judicial ascertainment that the property brought at least its true market value on the foreclosure sale.” And, “[a] primary object of the advertisement is to attract buyers who will compete against one another so as to yield the highest price [,]”

Given the clear legislative purpose of the statute, we agree with the trial court that a sale of real property under a power of sale made pursuant to OCGA § 44-14-162 (a) must be advertised in every county where the property or any portion of it is located. To hold otherwise ignores the legislative purpose of the advertisement requirement, which is to attract potential bidders to compete against one another in order to yield the highest price for the property. Accordingly, we affirm the trial court’s judgment in Case No. A12A0170 in which it held that BB&T’s advertisement failed to comport with the statutory requirements of OCGA § 44-14-162 (a) and therefore denied BB&T’s application for confirmation.

2. In Case No. A12A0169, Nicholson Hills, in three related claims of error, contends that the trial court erred in sua sponte ordering a resale of the Property without first conducting an evidentiary hearing to give it an opportunity to defend against the same. To this end, Nicholson Hills contends that it will be harmed by the resale because the true market value of the Property has declined since the 2008 foreclosure sale, leaving Nicholson Hills subject to a greater deficiency judgment.

Atrial court’s denial of an application for confirmation precludes a creditor from seeking a deficiency judgment against a debtor. Nevertheless, OCGA § 44-14-161 (c) vests the trial court with “considerable discretion” to order the subject property resold “for good cause shown.” The issue of resale is before the court in every confirmation proceeding, whether or not it has been specifically pled, but only so long as “the [debtor] is afforded the opportunity to defend against... a resale.” Further, it is clear that “there is no presumption in favor of resale and there is no entitlement to a resale.” Rather, the burden of proof lies with the creditor to show “good cause” for a resale.

Following its initial hearing solely on the issue of the sufficiency of BB&T’s advertisement, the trial court denied the confirmation petition and directed that the Property be resold. However, by agreement of the parties and with the express consent of the trial court, the remaining issues relevant to the confirmation proceeding had been reserved for a later hearing. Thus, when the court ordered the resale, it had neither heard argument nor received any evidence related to the other aspects of the foreclosure sale or the desired outcome of the confirmation proceeding. Under these circumstances, and even assuming a stipulation as to the true market value of the Property by Nicholson Hills, we cannot say BB&T met its burden of proving good cause for the resale, nor can we conclude that Nicholson Hills had the opportunity to defend against the same. Accordingly, without commenting on the merits of whether a resale is warranted, we vacate the trial court’s judgment in Case No. A12A0169 and remand this case to the trial court to conduct additional proceedings on the issues remaining, including whether good cause exists for a resale of the property.

Decided July 13, 2012.

Smith, Gilliam, Williams & Miles, Steven P. Gilliam, Roger B. Hatcher, Jr., for appellants.

Greenberg Traurig, Sean A. Gordon, for appellee.

Judgment affirmed in Case No. A12A0170. Judgment vacated and case remanded in Case No. A12A0169.

Phipps, P. J., concurs. Dillard, J., concurs in judgment only.

       The security deed is not contained in the appellate record; however, the parties do not dispute its existence or that it contained a power of sale authorizing the foreclosure sale.

       Although BB&T’s initial report of foreclosure sale and application for confirmation indicated that the Property was located exclusively in Forsyth County, after Nicholson Hills answered and raised its defenses, BB&T filed an amended pleading which accurately reflected that the Property was located in both Forsyth and Dawson counties.

       Nicholson Hills stipulated that, “for the purposes of [the initial] hearing,” it would not challenge whether the foreclosure sale brought the true market value of the Property. The court noted at the conclusion of the initial hearing that, after it ruled on the advertising question, then the case would “go forward.” It is not clear from the record, however, the intended scope and duration of the parties’ stipulation. The trial court’s order suggests that it had considered Nicholson Hills’s objection to true market value ongoing.

       The pertinent language of OCGA § 44-14-162, as well as that of OCGA § 44-14-161, discussed infra, was originally adopted in a single statute. See Ga. L. 1935, pp. 381-382, § 2.

        Thompson v. Maslia, 127 Ga. App. 758, 762 (2) (195 SE2d 238) (1972).

        Damil, Inc. v. First Nat. Bank of Dalton, 165 Ga. App. 678, 679 (302 SE2d 600) (1983); accord Adams v. Gwinnett Commercial Bank, 140 Ga. App. 233, 234 (2) (230 SE2d 324) (1976); see also Jones v. Hamilton Mtg. Corp., 140 Ga. App. 490, 491 (231 SE2d491) (1976) (“[T]he duty of the court is to test the fairness of the technical procedure of the actual sale and to insure that the sale has brought at least the true market value of the property.”).

       OCGA § 44-14-161 (b), (c).

       (Punctuation omitted.) Guthrie v. Bank South, Douglas, 195 Ga. App. 123, 125 (3) (393 SE2d 60) (1990); see also OCGA § 44-14-161 (c) (“[A]t the hearing!,] the court shall also pass upon the legality of the notice, advertisement, and regularity of the sale.”).

       (Punctuation omitted.) Dan Woodley Communities v. SunTrust Bank, 310 Ga. App. 656, 657 (714 SE2d 145) (2011).

       See OCGA § 44-14-161 (a) (“When any real estate is sold on foreclosure, without legal process, and under powers contained in security deeds, mortgages, or other lien contracts and at the sale the real estate does not bring the amount of the debt secured by the deed, mortgage, or contract, no action may be taken to obtain a deficiency judgment unless the person instituting the foreclosure proceedings shall, within 30 days after the sale, report the sale to the judge of the superior court of the county in which the land is located for confirmation and approval and shall obtain an order of confirmation and approval thereon.”).

       (Punctuation omitted.) Resolution Trust Corp. v. Morrow Auto Center, 216 Ga. App. 226, 227 (2) (454 SE2d 138) (1995).

       OCGA § 44-14-161 (c) (“The court may order a resale of the property for good cause shown.”).

       (Punctuation omitted.) Homes of Tomorrow v. Fed. Deposit Ins. Corp., 149 Ga. App. 321, 323 (3) (254 SE2d 475) (1979); accord Adorns, 140 Ga. App. at 234 (2).

        Resolution Trust Corp., 216 Ga. App. at 228 (2).

       Id.

       BB&T’s argument that the trial court did, in fact, hold an evidentiary hearing is belied by the record. Although BB&T did, at some point, offer an exhibit binder to the trial court, neither the binder nor the documents it contained were ever tendered into the record, and BB&T expressly acknowledged at the time that, “[i]f we have to present evidence [after the initial hearing], we . . . can use the same material.”

       See Wheeler v. Coastal Bank, 182 Ga. App. 112, 114 (1) (354 SE2d 694) (1987) (recognizing that, although “the trial court has considerable discretion in the conduct of a confirmation hearing and in determining the relief to be afforded[,] ... the finding of the trial court, as the trier of fact, must be supported by some evidence.”); see generally Gutherie v. Ford Equip. Leasing Co., 206 Ga. App. 258, 261-262 (2) (424 SE2d 889) (1992) (remanding case for consideration of resale after holding that creditor failed to prove property sold for true market value); Govt. Nat. Mtg. Assn. v. Belue, 201 Ga. App. 661, 662 (2) (411 SE2d 894) (1991) (holding that trial court did not abuse its discretion in refusing to order a resale based upon evidence that the market value of other properties in the development had declined subsequent to the foreclosure sale).


text:
    A12A0178.
    WILCHER v. WAY ACCEPTANCE COMPANY et al.
    (730 SE2d 577)
   PHIPPS, Presiding Judge.

In this second appearance of this case before this court, the primary issue again is whether the trial court erred in dismissing the complaint for failure to add an indispensable party. As before, the record does not support the dismissal; we therefore reverse the dismissal and remand the case for proceedings not inconsistent with this opinion.

In 2008, Jay Wilcher and his brother Sonny Wilcher, both pro se, filed a complaint against Way Acceptance Company, Duston Tapley, and Kathy Williams for wrongful foreclosure. The Wilcher brothers claimed that their land had been used as collateral for a loan that they did not authorize and of which they had no knowledge; they alleged that the defendants had knowingly allowed the loan to be obtained using a forged document and then wrongfully foreclosed on their property when the loan was not paid.

After a period of discovery, the defendants filed two motions. In one, they sought to dismiss Jay Wilcher as a party plaintiff because he had no interest in the property that was the subject of the foreclosure. In the other motion, the defendants sought to dismiss the complaint on the ground that it failed to include as plaintiffs indispensable parties. After a hearing, the court granted the motion to dismiss Jay Wilcher as a party plaintiff. With respect to the remaining motion, the trial court found that there were three indispensable parties — namely, “Lucille Fountain, Jerome Jones and Jewell Lomax (and/or her heirs at law)” — who were other owners of legal title to the property but had not been added to the action. The three named individuals were the Wilcher brothers’ siblings. The court ordered Sonny Wilcher to add these parties within 30 days or suffer dismissal of the action.

Within the prescribed 30-day window, Sonny Wilcher filed an amended complaint adding as plaintiffs the three parties identified by the court. However, that complaint was signed only by Sonny Wilcher as “attorney-pro se,” who was not an attorney licensed to practice law within the State of Georgia. Consequently, the court dismissed the case on the ground that the necessary parties had not been added as ordered by the court.

That dismissal was at issue in the first appearance of this case before this court. In Wilcher v. Way Acceptance Co., we determined that “because the amended complaint was not signed by at least one attorney or by each party acting pro se, it contained a defect which could be cured by amendment.” Accordingly, we held:

Although here the trial court’s order stated it was dismissing the case for failure to add the indispensable parties, it in fact ordered the case dismissed because of the defect in Wilcher’s amended complaint: the absence of the proper signatures. This was error. We therefore reverse the dismissal of the complaint and remand this case with direction that the trial court grant Wilcher and the indispensable parties a reasonable opportunity to amend the defect in the amended complaint.

On remand, an amended complaint was filed and signed by four pro se plaintiffs: Lucille (Fountain) Entzminger, Jerome Jones, Sonny Wilcher, and Jay Wilcher. While Jay Wilcher previously had been dismissed from the case for lack of standing, the amended complaint alleged that he had since acquired an interest in the subject property from an heir of his sibling Jewell Lomax (who had been named by the trial court as an indispensable party).

The defendants again attacked the action on procedural grounds, filing another motion to dismiss the complaint for failure to join an indispensable party. At a hearing thereon held May 19, 2011, defense counsel acknowledged that Jay Wilcher had apparently received quitclaim deeds from the only two children of his deceased sibling, Jewell Lomax. But defense counsel further cited evidence that Jewell Lomax had been survived also by her spouse — who was still living. Defense counsel argued that Jewell Lomax’s surviving spouse, who had not been added as a party plaintiff, retained an interest in the subject real property and was therefore an indispensable party.

Jay Wilcher, who appeared pro se at the hearing, disagreed with defense counsel’s claim that Jewell Lomax’s surviving spouse held an interest in the foreclosed property and that he was therefore an indispensable party. A colloquy ensued, during which the trial court agreed with defense counsel that “[a] spouse is an heir at law, under the Georgia statute” and that an interest in the subject real property “very well could” have passed to Jewell Lomax’s surviving spouse. Thus, the trial court told Jay Wilcher that, within two weeks, he could either add Jewell Lomax’s surviving spouse as a party or the surviving spouse could “transfer [ ] his interest to you.” The colloquy continued:

DEFENSE COUNSEL: In my opinion, they’re going to have some proof of probate in Ms. Lomax’s estate, which hasn’t been done. And they’re going to have to have something from her husband ■— I don’t think they’re going to get that in two weeks. There is just no way.
THE COURT: You do need something definitive about her probate.
JAY WILCHER: Well, she died intestate. She may not have a probate or will like that. Well have to — I don’t know what we can do about something like that. If you transfer the interest out of the property that’s probably the only — it will take more than two weeks if you’re talking about a probate. It would take at least 30 days, I would assumed]
DEFENSE COUNSEL: It would take more than that.
JAY WILCHER: Yeah.
THE COURT: All right. I’m going to give him two weeks to take some definitive action that is going to resolve the Lomax issue. All right.

Despite having thus granted, on May 19, Jay Wilcher at least two options that would “resolve the Lomax issue,” the trial court entered an order on June 2, 2011 stating that the plaintiffs, “by June 2, 2011, shall have Jewell Lomax added as a party, or a duly appointed representative of her estate, or all of her proven heirs at law, or the case shall be subject to dismissal.” Then on June 9, 2011, the court entered the order contested in this appeal. That order stated:

The Court having entered an Order directing the Plaintiffs to have Jewell Lomax, or a duly appointed representative of her estate, or all of her proven heirs at law, added as a party, by June 2, 2011, and it appearing that Plaintiffs have failed to do so, the within-captioned case is hereby dismissed.

Jay Wilcher filed a barrage of motions, some with attached documents, many of which motions maintained that Jewell Lomax’s surviving spouse was not an indispensable party. One document purported on its face to be a quitclaim deed — which had been executed on May 24, 2011, then filed on June 1, 2011 amongst the county real estate records — transferring from Jewell Lomax’s surviving spouse to Jay Wilcher the former’s interest in the subject real property. These motions, however, were not ruled upon before Jay Wilcher filed his notice of appeal challenging, as stated above, the second dismissal of the (amended) complaint.

1. Wilcher (hereinafter, referring to Jay Wilcher) contends that the trial court erred by dismissing the complaint for failure to add an indispensable party. He points out that, at the May 19 hearing, the trial court granted him two weeks to complete a transfer of Jewell Lomax’s surviving spouse’s interest, if any, to one of the plaintiffs; he asserts that he thereafter complied, by procuring a quitclaim deed from Jewell Lomax’s surviving spouse transferring to himself (Wilcher) any interest the spouse may have had; Wilcher complains that the trial court nevertheless dismissed the complaint for failure to comply with the June 2 order. Wilcher complains that the June 2 order strayed from the direction given by the court at the May 19 hearing, which included the option of adding the spouse as a party, as well as the option of having the spouse’s interest transferred to one of the plaintiffs. Additionally, Wilcher argues that Jewell Lomax’s surviving spouse was not an indispensable party and that the trial court thus erred in ordering that the spouse be added as a party and erred by dismissing the complaint essentially on the ground that Jewell Lomax’s spouse was not added.

“Ordinarily, it is error to dismiss a... complaint for failure to join an indispensable party.” “Rather, the party should be joined so the case can be considered on the merits.” OCGA § 9-11-19, governing joinder of (indispensable) parties, provides in subsection (a):

A person who is subject to service of process shall be joined as a party in the action if:
(1) In his absence complete relief cannot be afforded among those who are already parties; or
(2) He claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may:
(A) As a practical matter impair or impede his ability to protect that interest; or
(B) Leave any of the persons who are already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.

“When a person or entity described in OCGA § 9-11-19 (a) cannot be made a party, OCGA § 9-11-19 (b) states ‘the court shall determine whether in equity and good conscience the action should proceed among the parties before it or should be dismissed, the absent person being thus regarded as indispensable.’ ” Subsection (b) further lists five factors to be considered by the court in making that decision:

(1) To what extent a judgment rendered in the person’s absence might be prejudicial to him or to those already parties;
(2) The extent to which, by protective provisions in the judgment, by the shaping of relief, or by other measures, the prejudice can be lessened or avoided;
(3) Whether a judgment rendered in the person’s absence will be adequate;
(4) Whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder; and
(5) Whether and by whom prejudice might have been avoided or may, in the future, be avoided.

Accordingly, “[dismissal of a complaint on [the ground of failure to add an indispensable party] is proper only after a finding that the party is, in fact, indispensable, and a showing that the plaintiff failed to join the party after being given an opportunity to do so.” “In determining if a party is indispensable, it is essential to consider whether relief can be afforded the plaintiff [s] without the presence of the other party, and whether the case can be decided on its merits without prejudicing the rights of the other party.” “If there are no ‘compelling reasons’ for joinder of the third parties, then they are not indispensable to the action, and it is not necessary to join them as parties ... for a just adjudication of the merits of the action between the original parties.”

In this action, four siblings — Jay Wilcher, Sonny Wilcher, Lucille Fountain, and Jerome Jones — banded together to set aside an alleged wrongful foreclosure by the defendants upon real property that belonged to either them or their family members. Although the trial court agreed with defense counsel at the May 19 hearing that an interest in the subject property may have passed to Lomax’s surviving spouse, it does not necessarily follow that, for purposes of setting aside the contested foreclosure, he was an indispensable party to the action under OCGA § 9-11-19.

Indeed, at the May 19 hearing on the defendants’ motion to dismiss for failure to add an indispensable party, the trial court granted Jay Wilcher two weeks to “take some definitive action that is going to resolve the Lomax issue,” including the option of having the surviving spouse “transfer! ] his interest to [Jay Wilcher].” Despite having granted Jay Wilcher such broad latitude, precisely two weeks later, the trial court entered the summary order subjecting the case to dismissal unless the plaintiffs — by the same date the order was entered (June 2) — add as a party “Jewell Lomax ... , or a duly appointed representative of her estate, or all of her proven heirs at law.” But nothing in the record indicates that during the two intervening weeks, between the date of the hearing and June 2, the trial court conducted another hearing or otherwise considered additional evidence to make a determination regarding whether Wilcher had taken some action expressly directed by the court at the hearing. Nor does the record establish that, after the expiration of that two-week period, the trial court conducted a hearing or otherwise considered additional evidence regarding whether Jewell Lomax’s surviving spouse held any legal interest in the property that was the subject of the foreclosure. Moreover, nothing in the record "establishes that, even with the four plaintiffs who were already in the case, at least one of the three identified in the trial court’s June 2 order — (i) “Jewell Lomax”; (ii) “a duly appointed representative of her estate”; or (iii) “all of her proven heirs at law” — was in fact indispensable under OCGA § 9-11-19 for purposes of contesting the underlying foreclosure.

Nevertheless, the trial court dismissed the complaint. “Even if it is not feasible to join a party described in OCGA § 9-11-19 (a), the court may in some circumstances allow the action to proceed without that party.” While OCGA § 9-11-19 (b) lists the salient factors to be considered prior to dismissing a complaint for failure to add an indispensable party, nothing in the record indicates that the trial court took them into account. Notably, the trial court stated in its June 9 order only that dismissal was warranted because the plaintiffs had failed to comply with its June 2 order.

Hence, the record reveals that the trial court granted the defendants’ motion to dismiss for failure to add an indispensable party, without engaging in the analysis required pursuant to OCGA § 9-11-19. Because the dismissal was therefore not authorized, we reverse the dismissal and remand the case for proceedings not inconsistent with this opinion.

2. Wilcher alternatively contends that the dismissal order should be declared void and ordered vacated, asserting that the defendants’ lawyer was also a judge in the same circuit as the presiding judge, which circumstance required the trial judge to recuse herself as contemplated by Canon Two of the Code of Judicial Conduct.

“Canon Two of the Code of Judicial Conduct mandates that judges avoid not only actual impropriety, but that they avoid even the appearance of impropriety.” “The test for the appearance of impropriety is whether the situation would create in reasonable minds a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired.” In Smith v. Guest Pond Club, cited by Wilcher, the Supreme Court of Georgia observed that “our Judicial Qualifications Commission has opined that a judge of a particular court should never preside over a matter involving another judge from the same circuit:”

Simply stated, the public must believe in the absolute integrity and impartiality of its judges. Consequently, even without a showing of actual bias, prejudice or unfairness, and regardless of the merits or timeliness of a Motion to Recuse, this Commission concludes that it is inappropriate for any trial court judge to preside in any action wherein one of the parties holds a judicial office on the same or any other court which sits in the same circuit.

The Court then determined that these principles applied in Smith, where counsel for one of the parties was also a judge on the same court as the presiding judge. The Court concluded that the trial judge had “potentially brought the impartiality and unbiased nature of the judicial office into question, something that th[e] Court will not countenance.” Having determined that the trial court erred by denying the motion to recuse the judge and that the judge should not have presided over or ruled upon the matter, the Court held that “the orders entered by [the judge] in this case must be declared void and ordered vacated.”

We do not reach the issue of whether the trial judge erred by not recusing herself. Not only is the challenged dismissal order reversed, but Wilcher did not file the recusal motion until after he filed his notice of appeal contesting the dismissal order.

3. Wilcher contends that the trial court erred by not ruling on various other motions filed by the plaintiffs. He cites a motion to stay the order to dismiss and a motion to vacate the dismissal order; he also cites a motion to vacate the June 2 order to add Jewell Lomax’s spouse as a plaintiff and “a motion for a hearing on the motion to vacate the dismissal order,” on the ground that he filed on June 1 a quitclaim deed transferring the interest of Jewell Lomax’s surviving spouse to him. Given that the dismissal order is reversed and the case is remanded for further proceedings not inconsistent with this opinion, this contention is moot.

Decided July 13, 2012.

Jay Wilcher, pro se.

Bryant & Cook, Malcolm F. Bryant, Jr., D. Duston Tapley, Jr., for appellees.

4. Wilcher contends that the trial court erred by not granting his motion to set aside the alleged foreclosure of his property. The trial court dismissed the action without having reached the propriety of the foreclosure. Therefore, we do not reach it here.

5. Finally, we turn to Way Acceptance Company’s motion to impose sanctions against Wilcher under this court’s Rule 15 (b), asserting that this appeal is frivolous. Because this appeal has not been shown to be frivolous, said motion is hereby denied.

Judgment reversed and case remanded.

McFadden and Dillard, JJ., concur.

       See Wilcher v. Way Acceptance Co., 305 Ga. App. 868 (700 SE2d 876) (2010).

       See id. at 868.

       See id. at 868-869.

       See id. at 869.

       See id.

       See id.

       See id.

       See id.

       See id.

       See id.

       See id. at 870 (2), n. 1.

       Id. at 870 (2).

       Supra.

       Id. at 870 (2) (citations omitted).

       Id. at 870-871 (2).

       (Emphasis supplied.)

       (Emphasis supplied.)

       (Emphasis supplied.)

        Dismuke v. Stynchcombe, 237 Ga. 420, 421 (4) (228 SE2d 817) (1976); see Dixon v. Cole, 277 Ga. 353, 354 (1) (589 SE2d 94) (2003).

        Dixon, supra (citation and punctuation omitted).

       Id. at 355 (1), quoting OCGA § 9-11-19 (b).

        Dixon, supra.

       OCGA § 9-11-19 (b).

        Wilcher, supra at 870 (2) (citation and punctuation omitted; emphasis supplied).

        Stendahl v. Cobb County, 284 Ga. 525, 528 (2) (668 SE2d 723) (2008) (citations and punctuation omitted).

       Id. (citation and punctuation omitted).

       Evidence showed that the property had belonged to the plaintiffs’ mother, who then had deeded the property to four of her children: Sonny Wilcher, Lucille Fountain, Jerome Jones, and Jewell Lomax.

       See, e.g, Stendahl, supra at 528-529 (2) (the property owners were not indispensable parties to a lawsuit seeking reversal of the grant of a rezoning application, where the case could have been decided on its merits without prejudicing the rights of the owners since the rezoning applicant was a party and presented a thorough case on behalf of itself and, ultimately, the owner; therefore, the trial court erred in dismissing the complaint for failure to join the property owners as indispensable parties); Judd v. Valdosta/Lowndes County Zoning Bd. of Appeals, 147 Ga. App. 128, 130 (2) (248 SE2d 196) (1978) (where applicant to whom a special exception was granted was named as a defendant in the appeal in superior court from the zoning board of appeals’ action, the property owner was not an indispensable party and thus the trial court erred in dismissing the appeal for failure to join an indispensable party).

       (Emphasis supplied.)

       See Pirkle v. Turner, 281 Ga. 846, 849-850 (5) (642 SE2d 849) (2007) (trial court correctly denied appellant’s motion to add individuals as indispensable parties under OCGA § 9-11-19, where the individuals had no legal interest in the disputed property at the time appellants sought to add them); see generally Dime Savings Bank &c. v. Sandy Springs Assoc., 261 Ga. 485, 486 (1) (405 SE2d 491) (1991) (court of equity cannot decree cancellation of deed unless parties to the deed, or their representatives, are made parties to the action).

       (Emphasis supplied.)

       See generally Stendahl, supra; Pirkle, supra; Halta v. Bailey, 219 Ga. App. 178-180 (1) (464 SE2d 614) (1995) (grantor of stock and initial grantee of stock were not indispensable parties in fraudulent conveyance action brought by grantor’s ex-wife against grantor’s girlfriend who was in possession of stock, where defendant’s ability to present evidence of her defense was not affected by whether or not entities were parties to the action); Judd, supra.

        Altama Delta Corp. v. Howell, 225 Ga. App. 78, 81 (3) (483 SE2d 127) (1997) (citing OCGA § 9-11-19 (b)).

        Dixon, supra.

       See generally OFC Capital v. Schmidtlein Electrical, 289 Ga. App. 143, 144 (656 SE2d 272) (2008) (remanding case where record failed to show that trial court considered whether dismissal was proper for failure to add indispensable party).

        Smith v. Guest Pond Club, 277 Ga. 143, 145 (2) (586 SE2d 623) (2003) (punctuation and footnote omitted).

        In the Matter of: Inquiry Concerning a Judge No. 97-61, 269 Ga. 425 (499 SE2d 319) (1998) (citing Commentary to Canon Two of the Code of Judicial Conduct).

       Supra.

       Id. at 146 (2).

       Id. (punctuation and footnote omitted).

       Id.

       Id. at 146-147 (2).

       Id. at 147 (2).

       See Division 1, supra.

       See Wilcher, supra at 871 (5) (where recusal issue was not raised in the trial court, claim was not properly before appellate court). Cf. Propst v. Morgan, 288 Ga. 862, 864 (708 SE2d 291) (2011) (holding that, in those rare cases in which an appeal is dismissed under OCGA § 5-6-48 (c) by a trial judge who previously denied a recusal motion, an appellate court should consider the merits of the recusal motion before considering the merits of the trial judge’s dismissal ruling, noting further that a trial judge’s dismissal of an appeal under OCGA § 5-6-48 (c) requires a significant exercise of discretion based on findings of fact).

       See Division 1, supra.

       See Wilcher, supra at 871 (4).

       See generally Ga. Dept. of Natural Resources v. Coweta County, 261 Ga. 484 (405 SE2d 470) (1991) (issues not ruled on by the trial court may not be raised on appeal).

       The panel of the Court ruling on a case, with or without motion, may by majority vote impose a penalty not to exceed $2,500.00 against any party and/or party’s counsel in any civil case in which there is a direct appeal, application for discretionary appeal, application for interlocutory appeal, or motion which is determined to be frivolous.


author: Adams, Judge.

text:
    A12A0313, A12A0314.
    SMITH et al. v. CISCO et al. (two cases).
    (730 SE2d 583)
   Adams, Judge.

In 2008, the district attorney for the Brunswick Judicial Circuit (the State) initiated in personam and in rem forfeiture proceedings in the Superior Court of Camden County under the Georgia Racketeer Influenced and Corrupt Organizations (RICO) Act, OCGA § 16-14-1 et seq. In its complaint, the State sought forfeiture of both cash and property that had been used or acquired in a pump rigging scheme allegedly devised by the in personam defendants, who were owners and operators of three fuel plazas (the in rem defendants) located along 1-95 in south Georgia, which caused customers to pay for a greater quantity or quality of fuel than was actually dispensed at the pumps. See also Cisco v. State of Ga., 285 Ga. 656 (680 SE2d 831) (2009).

Based on these same underlying facts, former customers Jonathon Smith, Streamline Logistics, LLC, Betty Padgett, and B & L Express, Inc., appellants herein, filed a class action in federal district court, seeking to recover five million dollars in compensatory damages as well as punitive damages, expenses of litigation and attorney fees based on claims of fraud, negligent misrepresentation, negligence, money had and received, unjust enrichment, and violations of Georgia’s Uniform Deceptive Trade Practices Act. These same parties also filed a motion to intervene, individually and on behalf of others similarly situated, in the state forfeiture proceedings and the trial court granted their motion pursuant to OCGA § 16-14-6 (d). Additionally, two oil jobbers or suppliers, Gowen Oil Company and Som-mers Oil Company (hereinafter oil jobbers), also were allowed to intervene in the state forfeiture proceedings and they also filed claims of interest in these proceedings.

In April 2010, Fairley Cisco, one of the named defendants, died, and shortly thereafter, the “Cisco defendants,” which included Fair-ley’s daughters Aletha and Tammy and the corporations they controlled, entered into a settlement agreement with the State and an order of partial distribution was entered which incorporated the terms of that agreement. Pursuant to the agreement and order, $2,750,000 was forfeited to the State, and with the State’s consent, the forfeiture claims against the remaining funds which had been seized from the Cisco defendants or Fairley Cisco (Cisco Funds) were dismissed with prejudice, and those funds were disbursed either to or for the benefit of the Ciscos. Further, the order and agreement provided that any property belonging to Fairley Cisco remaining with the receiver was to be released and returned to be held in trust until it could be distributed to his heirs or beneficiaries, and any and all forfeiture claims which had been made against Fairley Cisco, his estate, or any property belonging thereto were dismissed with prejudice.

The rights of both the appellants and the oil jobber intervenors were also specifically addressed in the settlement agreement and order of partial disposition. Concerning the oil jobbers, the settlement agreement provided as follows:

It is anticipated and understood that the Cisco Defendants will, following the execution of the attached order, consummate a settlement agreement with Gowen Oil Company and Sommers Oil Company. It is further understood that, as part of that settlement, Gowen Oil Company and Sommers Oil Company will each release any claims that they may have against the Cisco Defendants, the estate of Fairley Cisco, the Receiver, and/or any funds forfeited by the Cisco Defendants. Additionally, Gowen Oil Company and Sommers Oil Company will each dismiss with prejudice all claims that they have asserted in this action.

Thus, pursuant to the settlement agreement, the oil jobbers’ claims would be satisfied by the Cisco defendants instead of being paid out of the forfeited funds.

The trial court also made a specific finding regarding appellants:

Those intervenors only have a right in this action to seek recovery of some or all of the assets actually forfeited to the State, and those parties have no independent right to seek forfeiture. Inasmuch as the right to seek a forfeiture is vested entirely in the State, this Court finds that the inter-venors have no standing to object to the total amount of the forfeiture obtained or accepted by the State. Likewise, the remaining defendants in this case have no standing to complain of or object to the amount of the forfeiture as to the Cisco defendants. For these reasons and in the interest of judicial economy, this Court finds and declares that a hearing regarding this forfeiture and the amount thereof is unnecessary. Furthermore, as noted above, the intervenors in this action will be given an opportunity to present their claims against the property hereby forfeited.

Further, the order of partial disposition provided that the forfeited property would be distributed in accordance with OCGA §§ 16-14-6 (d) and 16-14-7 (k) and (1) to any injured person who intervened, and that any intervenors would be provided an opportunity to be heard and to present evidence and argument prior to the distribution of the funds.

A few days later, appellants filed their opposition and objections to the order of disposition, arguing, inter alia, that the trial court was without authority to take any action concerning the property belonging to Fairley Cisco until a proper substitution of party had been made, that the consent order made no provision for the distribution of the funds to defrauded purchasers and that they had not been afforded an opportunity to “voice” their concerns prior to the execution of the order.

Approximately ten days later, the trial court entered an order setting a hearing on the procedure to be used for the submission and adjudication of claims to the forfeited funds, specifically providing that “[a]ll persons and parties having an interest in the claims submission and adjudication process may appear and be heard.” Shortly thereafter, appellants filed a motion to vacate any order which had been entered after Fairley Cisco’s death, and to stay the proceedings until a substitution of party had been made.

Appellants also had sought to recuse the trial judge, and that motion was granted and the case reassigned to another judge in March 2011. On April 21, 2011, that newly assigned judge entered an order denying appellants’ motion to vacate those orders which had been entered after Fairley Cisco’s death, reasoning that the partial disposition order had been entered with the consent of the State and the remaining defendants, and that the State had released any interest in the property of the estate of Fairley Cisco, thus ensuring that neither Fairley Cisco nor his estate was subject to any further forfeiture claims. On that same day, the court also entered an order finding that, because the right of intervention under OCGA § 16-14-6 is limited to making a claim for actual losses suffered, appellants only had standing to object to those pleadings or orders that specifically addressed their claims for actual losses. The court then adopted and approved the order of partial disposition entered on May 27, 2010.

On April 27, 2011, the court approved the proposed method and form that was to be used to notify persons who had potential claims to the forfeited funds. Although appellants had never sought to be certified as a class under state law, the trial court entered an order on May 10, 2011 declining to certify appellants as a class or to allow the federal class action plaintiffs to intervene as a class, although the court allowed the class members to submit individual claims under the procedure that had been established for that purpose.

The trial court subsequently issued certificates of immediate review from these orders, and appellants filed applications for interlocutory review in this Court, which we granted. Appellants then timely filed their notices of appeal, as amended, and these cases were docketed in this Court as Case Nos. A12A0313 andA12A0314, which we have consolidated for review. As more fully set forth below, we now affirm.

Case No. A12A0313

1. Appellants first argue that the trial court erred by determining that they lacked standing to contest the settlement agreement and order of partial distribution, arguing that they had the right to protect their claims to the forfeited property, which they argue “necessarily includes the right to challenge which property was forfeited.” Therefore, appellants reason, they should have been allowed to participate in the negotiations and court proceedings leading up to the final adjudication of forfeiture. Moreover, appellants argue that once they were allowed to intervene, they enjoyed the same rights as any other intervenor under the Civil Practice Act which, pursuant to OCGA § 16-14-7, governs these proceedings and thus “for all intents and purposes” they should be accorded the same status as the “original parties,” to these proceedings. Further, they argue that the specific statutory framework surrounding RICO forfeiture proceedings demonstrates that they were granted the right to intervene to protect their claims against the forfeited property, including the right to challenge the State’s unilateral designation of what property was subject to forfeiture.

We do not agree with appellants’ characterization of their role in these proceedings. Pursuant to OCGA § 16-14-7 (d), “[a] RICO forfeiture proceeding shall be instituted by complaint and prosecuted by the district attorney of the county in which the property is located or seized.” Further subsection (a) provides, in relevant part, that the specified property “is subject to forfeiture to the state.” (Emphasis supplied.) Thus, it is the State, and only the State, acting through the appropriate district attorney, that has the right to institute and prosecute forfeiture proceedings, and the property is specifically forfeited to the State, not to the injured or aggrieved person or persons. As our Supreme Court has explained, “A RICO forfeiture proceeding is not an available avenue for Georgia’s aggrieved citizens but is a proceeding that can only be initiated by the State pursuant to OCGA § 16-14-7.” Cisco, 285 Ga. at 660-661. Thus, while it is true that OCGA § 16-14-6 (d) allows an injured person to intervene and to make a claim to the forfeited property and that claim is superior to that of the State, there is nothing in the statute that gives injured persons the right to dictate to the State which property should be forfeited to the State. Thus, contrary to their assertion otherwise, we discern nothing in the statute that prevents the State from making a “unilateral decision” concerning which property it will pursue in the forfeiture proceedings. Based on the foregoing, the trial court did not err by finding that appellants lacked standing to participate in the State’s decision-making process or negotiations concerning which property should be forfeited.

2. Appellants also argue that the trial court should have vacated any order, including the order of partial disposition, that was entered after Fairley Cisco’s death because a substitution of parties had not been made at the time those orders were entered and hence those orders were void. But the State dismissed all its claims against the property that had belonged to Fairley Cisco, and we know of no law that prohibits the State from instituting and then abandoning civil RICO forfeiture claims prior to the property actually being forfeited to the State. And, as stated in Division 1, appellants lacked standing to object to the State’s decisions concerning which property was subject to forfeiture. Further, appellants cite no law that would prevent a disposition concerning the remaining property or any law that mandates that the State cannot settle as to the remaining in rem forfeiture claims.

While the death of a party does not abate a pending action where the cause of action survives ... nevertheless the effect of the death is to suspend the action as to the decedent until someone is substituted for the decedent as a party to the proceedings. (Cits.) Until someone is properly substituted as a party after the action is thus suspended, further proceedings in the case are void as to the decedent.

(Punctuation omitted.) Allen v. Cloudburst Mfg. Co., 162 Ga.App. 188 (290 SE2d 529) (1982). See also McCarley v. McCarley, 246 Ga. App. 171, 172 (539 SE2d 871) (2000) (“Until substitution is made, the proceedings are void as to the deceased party.”). Thus, we find this argument also to be unavailing.

Case No. A12A0314

In this appeal, appellants enumerate two errors, first that the trial court erred by ruling that the federal class action plaintiffs, as a class, could not make claims against the forfeited funds. Appellants also contend that the trial court erred in determining that the procedures that were established to notify potential claimants of their right to collect against the forfeited funds were adequate. However, appellants have not set out their arguments in support of these enumerations to correspond to their separately enumerated errors, as required by the rules of this Court, and it is with some difficulty that we have attempted to discern appellants’ arguments in support of their enumerations, which appear to be scattered throughout their brief. Further, our ability to cogently decipher their arguments has also been hampered by the fact that their brief in this appeal in part appears to address the errors enumerated in Case No. A12A0313, not the issues raised in this appeal. But appellants do present some argument in support of the errors they enumerate in this appeal, and we will endeavor to address those contentions.

3. We turn first to whether the trial court erred by not allowing the class action plaintiffs to intervene as a class, instead limiting their right to intervene to an assertion of their individual claims. As more fully set forth below, we find no error.

Appellants sought to intervene in this case “[i]ndividually and on behalf of others similarly situated,” and in the order granting the motion to intervene, the trial court noted that appellants were plaintiffs in the related federal class action. However, at the time the intervention order was entered, appellants had not been certified as a class in the federal class action or any other case, and thus, contrary to the assertion in their brief, they had not been allowed to intervene as a class by the original judge in the forfeiture proceedings. Moreover, it is undisputed that appellants never sought a separate class certification under state law in the forfeiture proceeding, and they enumerate no error as to the trial court’s order declining to certify the class under state law.

Further, appellants have cited no authority supporting their contention that a federally certified class in a federal class action case should be considered to be an “injured person,” as that term is used in OCGA § 16-14-6 (d), in proceedings instituted under a state RICO forfeiture provision. Lastly, although appellants argue that “[t]he Trial Court and State are effectively attempting to administer a class action through a civil forfeiture case,” it appears to us that it is appellants who are trying to use the property or funds forfeited in this State RICO proceeding as a recovery “superfund” for their federal class action claims. Thus, based on the foregoing, we believe that the trial court properly allowed only the individual members of the class to assert their claims against the forfeited funds or property.

4. Lastly, appellants contend that the procedure the trial court approved to notify potential claimants was too limited in geographic scope. Although appellants state that this order was “again issued without motion” the order certainly was not issued without notice, as the record discloses that the trial court entered an order on June 10, 2010 that provided that a hearing would be held on June 21, 2010, to establish the procedures for identifying and notifying potential claimants, and specifically gave “[a]ll persons and parties having an interest in the claims submission and adjudication process” an opportunity to appear and be heard. And in fact appellants’ attorney appeared at the hearing on these issues, but voiced no objection to the procedure adopted to notify potential claimants mentioning only that a notice procedure had already been submitted in the federal action and that the advertising there “would be, I know, probably more extensive than maybe the Court here would . . . direct.” Further, appellants have not shown in the record where they later objected to the notice procedure, and we will not search this 25-volume record in an attempt to determine if they ever took any action to raise this issue before the trial court, secure a ruling on this issue, or otherwise preserve it for appellate review.

Because these assertions were neither raised nor ruled on in the court below, they present nothing for review. See City of Gainesville v. Dodd, 275 Ga. 834, 838 (573 SE2d 369) (2002). (“The tenet that the appellate courts do not rule on issues not ruled on by the trial court preserves the appellate courts’ jurisdiction and delineates the proper roles of the courts at the trial and appellate levels. The primary role of the appellate courts, and, in general, their jurisdiction, is properly preserved only when there is a ruling below.”)

Decided July 13, 2012

Savage, Turner, Pinson & Karsman, Brent J. Savage, Kathryn H. Pinckney, for appellants.

Jacquelyn L. Johnson, District Attorney, Brown, Readdick, Bum-gartner, Carter, Strickland & Watkins, Terry L. Readdick, Steven G. Blackerby, Clark & Williams, Nathan T. Williams, Andrew J. Ekono-mou, for appellees.

Covington v. Johnson, 284 Ga. 426 (667 SE2d 618) (2008). Accordingly, appellants will not now be heard to complain about the procedure established for notifying potential claimants.

Judgments affirmed.

Doyle, P. J., and Andrews, J., concur.

       In Cisco v. State of Ga., 285 Ga. 656, 657 (680 SE2d 831) (2009), our Supreme Court declared OCGA § 16-14-7 (m), which provided for in personam RICO forfeitures, unconstitutional.

       Of this amount, $400,000 was deemed to be administrative funds for the payment of fees and expenses instead of forfeited funds.

       First we note that although appellants do not directly take issue with the rationale the trial court stated as a basis for its ruling - that intervention under OCGA § 16-14-6 (d) is “limited to making a claim for actual losses suffered as a result of conduct in violation of the RICO statutes [,]” we agree with the State that appellants are, in fact, attempting to use OCGA § 16-14-6 (d) to create a “ ‘superfund’ from which successful private plaintiffs might satisfy.. .judgments [obtainedby other civil remedies] if they couldobtain them.” And although other subsections of OCGA § 16-14-6 provide for additional remedies that may be pursued directly by injured or aggrieved persons, those are separate from the right of an injured person to make a claim against property forfeited to the State.

       Pursuant to Court of Appeals Rule 25 (o) (1), “[t]he sequence of arguments in the briefs shall follow the order of the enumeration of errors, and shall be numbered accordingly.”

         The claim form used in the RICO proceeding provided that only actual damages incurred as the result of the pumping scheme could be recovered against the funds.

         Although the court instructed appellants’ attorneys to file motions to intervene on behalf of all potentially injured persons whom they represented, it does not appear such motions were filed.

       Further we take this opportunity to remind counsel that proper citation to the appellate record includes citation to the volume or part of the record or transcript and the page numbers that appear on the appellate record or transcript. Court of Appeals Rule 25 (a) (1).