author: Branch, Judge.

text:
    A15A1626.
    THE STATE v. THOMPSON.
    (780 SE2d 67)
   Branch, Judge.

Lauren Lynn Thompson brought a plea in bar concerning DUI and other charges against her on the ground that she had been deprived of her constitutional right to a speedy trial. On appeal from the trial court’s grant of that plea, the State argues that the grant was error because Thompson herself was substantially responsible for any delay in getting to trial and could not have suffered any prejudice as a result of the destruction of the blood sample taken at the scene. We agree with the second of these contentions, and also find that the trial court did not make sufficiently explicit findings of fact on the timeliness of Thompson’s assertion of her speedy trial right. We therefore vacate the trial court’s judgment and remand for reconsideration.

We examine Thompson’s constitutional speedy-trial claim under the four-part test established in Barker v. Wingo, 407 U. S. 514 (92 SCt 2182, 33 LE2d 101) (1972), “considering (1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of the right, and (4) the prejudice to the defendant. See Brown v. State, 264 Ga. 803, 804 (2) (450 SE2d 821) (1994).” Johnson v. State, 268 Ga. 416, 417 (2) (490 SE2d 91) (1997). “The factors should be considered together in a balancing test of the conduct of the prosecution and the defendant.” Nusser v. State, 275 Ga. App. 896, 897 (622 SE2d 105) (2005) (citations and punctuation omitted). “Absent an abuse of discretion, we must affirm the trial court’s balancing and weighing of the four Barker factors.” Id. However, when a trial court “ ‘has clearly erred in some of its findings of fact and/or has misapplied the law to some degree, the deference owed the trial court’s ultimate ruling is diminished.’ ” State v. Porter, 288 Ga. 524, 526 (2) (a) (705 SE2d 636) (2011), quoting Williams v. State, 277 Ga. 598, 601 (1) (e) (592 SE2d 848) (2004).

Viewed in favor of the trial court’s judgment, the record shows that on the early morning of December 12, 2012, Thompson was driving her car when she crossed over into the opposite lane, struck an embankment, and flipped over. The trooper responding to the scene accompanied Thompson to the hospital, where the trooper noted that Thompson had slow speech, constricted eye pupils, red and watery eyes, and smelled of alcohol. Thompson said that she did not remember what had happened, that she thought she had fallen asleep, and that she had been drinking bourbon and Coke while on prescribed doses of methadone. At the hospital, the trooper placed Thompson under arrest for DUI and read her the Georgia implied consent notice, including the portion of that notice informing Thompson that she was entitled to an independent test of her blood alcohol level. It is undisputed that Thompson agreed to give a blood sample and declined an independent test. Thompson’s appearance bond, issued on December 13, noted that she was facing charges including driving under the influence of drugs.

On February 2, 2013, Thompson appeared pro se in Franklin County Probate Court, demanded a jury trial, and moved that the case be transferred to Franklin County Superior Court. The probate court granted Thompson’s motion. On May 6, 2013, counsel appeared in the superior court and moved to transfer the case back to the probate court.

On August 21, 2013, Thompson was formally charged with the misdemeanors of driving under the influence of benzoylecgonine (a cocaine metabolite), methadone, and alcohol; driving with a suspended license; and failure to maintain lane. On September 26, Thompson filed a general demurrer to the accusation and an omnibus motion to suppress a wide range of evidence, some of which was not at issue in the case.

On October 2, 2013, Thompson wrote to the Georgia Bureau of Investigation that she had been told at the scene that she could obtain independent testing and asked that she now be allowed to do so on the basis of the blood sample already taken. Two weeks later, on October 16, the GBI wrote back that it had received the sample on September 13, 2013; that it would retain the sample for one year; that it was “the responsibility of any interested party to make the appropriate arrangements to re-test these specimens within that one-year period”; that it was Thompson’s responsibility to “contact an independent laboratory and arrange for them to pick up the specimen(s) either by lab courier or pre-paid parcel”; and that the GBI would “need a copy of [a] court order or [a] written authorization from the prosecuting agency” before it could release the sample for testing. On November 7, Thompson responded to the GBI, purportedly withdrawing her consent to having given the sample because she had never been told that she “had to go to court and get an order” to obtain an independent test. Thompson also noted that she “did not want anything to be destroyed” and sent a copy of her response to the trooper along with a note that “[y]ou told me I could have an independent test.”

Trial was scheduled for March 31, 2014. On March 12, the State amended the accusation to exclude the allegation that Thompson was under the influence of the cocaine metabolite. On March 31, the State announced that it was ready, but Thompson asked for a continuance, which the trial court granted. The case came up for a second calendar call on July 10. The State again announced that it was ready. Thompson also announced ready, but asked that the court rule on her original motion to suppress and her request for an independent blood test, both of which were heard the following day. After testimony from the trooper and the hospital phlebotomist, including that Thompson’s blood sample had revealed a blood alcohol concentration of 0.03 grams, or 0.05 grams below legal intoxication per se, the trial court ruled that “any samples of [Thompson’s] blood still in existence be preserved by the [Division] of Forensic Sciences” and that the Division “shall facilitate independent testing of [the] blood.” It is undisputed, however, that the blood sample had already been destroyed at the time the trial court issued its order. The trial court did not rule on Thompson’s motion to suppress.

Seven months later, on February 25, 2015, Thompson filed a demurrer and plea in bar in which she asserted for the first time that her constitutional right to a speedy trial had been violated. After a hearing on March 2, 2015, the trial court granted the motion on the grounds that (1) the length of the delay was presumptively prejudicial and weighed heavily against the State; (2) the fact that much of the delay was unexplained weighed against the State; (3) Thompson had not waived her speedy trial right by failing to assert it; and (4) Thompson had suffered “irreparable harm” as a result of the State’s delay in accusing her of driving under the combined influence of drugs and alcohol, during which the blood sample was destroyed. This appeal by the State followed.

1. Presumption of Prejudice. Thompson’s trial was delayed two years and two months from the date of her arrest to the disposition of her plea in bar. “[0]ne year” from arrest to disposition of a plea in bar “generally marks the point at which delay becomes presumptively prejudicial.” Porter, 288 Ga. at 526-527 (2) (b) (citations and punctuation omitted). “[0]nce the threshold of presumptive prejudice is satisfied, a presumption of prejudice always exists, although it increases in weight over time.” Id. at 531 (2) (c) (4) (citation omitted). Given the length of this delay, the trial court was authorized to presume prejudice to Thompson’s right to a speedy trial such that it was required to analyze the remaining three Barker factors, “with the length of the delay also factored into [its] consideration of prejudice.” Bass v. State, 275 Ga. App. 259, 260 (1) (620 SE2d 184) (2005), citing State v. Johnson, 274 Ga. 511, 512 (1) (555 SE2d 710) (2001).

2. Responsibility for the Delay. In considering the parties’ respective responsibilities for the 26-month delay between arrest and disposition of the plea in bar, the trial court noted the three months from arrest to initial appearance, the six months between jury trial demand and formal accusation, and the nine months between Thompson’s first request for an independent blood test and the issuance of the trial court’s order authorizing the test. Without noting whether Thompson herself caused any part of the delay, and thus without engaging in any weighing process, the trial court concluded that responsibility for the delay weighed against the State.

Thompson also caused some substantial delay, however, by filing a jury trial demand and then moving to transfer the case back to probate court and failing to obtain a ruling on that motion; by obtaining a continuance between February and July 2014; by filing two motions, including her request for an independent blood test, in July 2014 (the second occasion on which the State announced ready for trial); by failing to obtain a ruling on her motion to suppress; and by waiting some indeterminate period between the time she learned that the blood sample had been destroyed and the filing of her plea in bar. As we conclude in Division 4 below, Thompson’s motion for an independent blood test lacked merit. We also note that delay resulting from “negligence and workloads” is “weighed only lightly, or benignly, against the State.” Porter, 288 Ga. at 527 (2) (c) (2), citing Sweatman v. State, 287 Ga. 872, 875 (4) (700 SE2d 579) (2010). In light of our determination below that the trial court erred in failing to weigh Thompson’s delay in asserting her speedy trial right and in concluding that she suffered prejudice as a result of the destruction of the blood sample, we direct the trial court to recalculate whether this factor should continue to weigh against the State. See Porter, 288 Ga. at 534 (2) (e) (noting trial court’s miscalculation of responsibility for delay, and ordering that the trial court reconsider this and other Barker factors).

3. Assertion of the Speedy Trial Right. The trial court correctly noted that the speedy trial right is not absolutely waived for a failure to assert it. See Teasley v. State, 307 Ga. App. 153, 160 (2) (c) (704 SE2d 248) (2010). As we noted in that same case, however, the fact that the right cannot be waived outright “does not mean ... that the defendant has no responsibility to assert his right,” but rather that “the defendant’s assertion of or failure to assert his right to a speedy trial is one of the factors to be considered in an inquiry into the deprivation of the right.” Id. (citations, punctuation and footnote omitted).

The trial court noted that “[t]he [ajccused did not initially assert a speedy trial [demand].” There is no indication in the trial court’s order that it considered the delay in Thompson’s assertion of her speedy trial right in the balancing process mandated by Barker. Our Supreme Court has held it “imperative” that “in cases implicating a defendant’s constitutional right to speedy trial, the trial court enter findings of fact and conclusions of law consistent with Barker.” Porter, 288 Ga. at 533 (2) (e) (citations and punctuation omitted). In the absence of any findings by this trial court as to the weight to be given to Thompson’s delay in asserting her speedy trial right, “there is no exercise of discretion for this Court to review” such that this order must be “vacated and the case remanded for the entry of a proper order pursuant to Barker.” Id. (citation and punctuation omitted); see also Higgenbottom, 288 Ga. 429, 431 (704 SE2d 786) (2011).

4. Prejudice. “The prejudice created by the delay is the fourth and final factor in our analysis, in which we consider three interests: (i) preventing oppressive pretrial incarceration, (ii) minimizing anxiety and concern of the defendant, and (iii) limiting the possibility that the defense will be impaired.” Bass, 275 Ga. App. at 261 (4) (citation and punctuation omitted); see also Hughes v. State, 228 Ga. 593, 596 (1) (d) (187 SE2d 135) (1972) (“To sustain [a defendant’s] contention that there was a violation of his constitutional right to a speedy trial, not only must delay be shown, but that such delay was purposeful, oppressive, or prejudicial”) (citations and punctuation omitted).

(i) It is undisputed that the delay here was neither purposeful nor oppressive, and there is no evidence of bad faith on the State’s part. See Bass, 275 Ga. App. at 261-262 (4) (no bad faith found in destruction of a DUI blood sample).

(ii) “Anxiety and concern of the accused are always present to some extent, and thus absent some unusual showing are not likely to be determinative in [a] defendant’s favor.” Mullinax v. State, 273 Ga. 756, 759 (2) (545 SE2d 891) (2001) (citation and punctuation omitted). Thompson was incarcerated for only one day before posting bond, with the result that this factor cannot weigh in Thompson’s favor. See Bass, 275 Ga. App. at 261-262 (4) (no pretrial imprisonment meant that this factor could not weigh in a defendant’s favor).

(iii) The specific manner in which Thompson’s defense was impaired is “the most important component of the prejudice analysis.” Bass, 275 Ga. App. at 261 (4), citing Mullinax, 273 Ga. at 759 (2). The trial court concluded that Thompson was prejudiced by the State’s delay in charging her with driving under the influence of both alcohol and drugs and by the destruction of the blood sample she first requested in October 2013. We cannot agree.

Thompson was on notice that the State was considering charges that she was under the influence of both drugs and alcohol as early as December 2013. More importantly, Thompson has cited no authority supporting her proposition that her right to an independent chemical test of her blood survived her waiver of that right at the scene. OCGA § 40-6-392 (a) provides:

Upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person in violation of Code Section 40-6-391 [concerning DUI], evidence of the amount of alcohol or drug in a person’s blood, urine, breath, or other bodily substance at the alleged time, as determined by a chemical analysis of the person’s blood, urine, breath, or other bodily substance shall be admissible. . . .
(3) The person tested may have a physician or a qualified technician, chemist, registered nurse, or other qualified person of his own choosing administer a chemical test or tests in addition to any administered at the direction of a law enforcement officer. The justifiable failure or inability to obtain an additional test shall not preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer [.]
(4) Upon the request of the person who shall submit to a chemical test or tests at the request of a law enforcement officer, full information concerning the test or tests shall be made available to him or his attorney. The arresting officer at the time of arrest shall advise the person arrested of his rights to a chemical test or tests according to this Code section.

(Emphasis supplied.)

This Court has thus held that although an officer administering a chemical test under OCGA § 40-6-392 (a) (4) must “advise the testee that he is entitled to an independent test of his own choosing[,] [o]nce that duty is fulfilled by the officer, the statutory obligation is satisfied.” State v. Griffin, 204 Ga. App. 459, 461 (2) (419 SE2d 528) (1992) (citation and punctuation omitted; emphasis in original). As our Supreme Court has held, moreover, a defendant’s right to ask for an independent test at the time of arrest under OCGA § 40-6-392 (a) (3) “is not one of constitutional dimension but a ‘matter of grace’ bestowed by the Georgia legislature.” Padidham v. State, 291 Ga. 99, 101 (2) (728 SE2d 175) (2012), quoting South Dakota v. Neville, 459 U. S. 553, 565 (III) (103 SCt 916, 74 LE2d 748) (1983); see also Rodriguez v. State, 275 Ga. 283, 287-288 (3) (565 SE2d 458) (2002). As the Padidham Court went on to explain:

[T]he choice to submit or refuse to submit to the analysis of one’s blood, breath, urine or other bodily substance will not be an easy or pleasant one to make, but the criminal process often requires suspects and defendants to make difficult choices. DUI defendants . .. must determine, often under difficult and stressful circumstances, whether to request an independent test. That the choice may be difficult does not render it fundamentally unfair [.]

291 Ga. at 102-103 (2) (citations and punctuation omitted).

Here, Thompson admitted below that OCGA § 40-6-392 (a) (3), which specifically concerns independent tests, did not apply, presumably because her request came months after she waived any right she had to such a test. Thompson also asserted below that OCGA § 40-6-392 (a) (4) granted her the right to an independent test of her blood sample, but she has abandoned this argument on appeal, perhaps because that portion of the statute concerns only a state-administered test. See, e.g., Birdsall v. State, 254 Ga. App. 555, 558 (562 SE2d 841) (2002) (OCGA § 40-6-392 (a) (4) “specifies no deadline for requesting ‘full information,’ no timetable for supplying the information, and no penalty for the state’s failure to produce it”). Further, and although OCGA § 40-6-392 (a) (3) authorized Thompson to obtain an independent test of her blood sample, neither that nor any other statute granted her that right in perpetuity. On the contrary, “the facts show that [Thompson] was afforded the opportunity to obtain an independent test of [her] blood, and that is all that is required” by the statute. Griffin, 204 Ga. App. at 461 (2) (punctuation omitted; emphasis in original).

Thompson was also charged only with misdemeanors, as to which OCGA § 17-16-23 (b) provides: “In all criminal trials the defendant shall be entitled to have a complete copy of any written scientific reports in the possession of the prosecution which will be introduced in whole or in part against the defendant by the prosecution in its case-in-chief or in rebuttal.” Subsection (a) of the same statute includes “blood alcohol test results done by a law enforcement agency” in the category of discoverable “written scientific reports” (emphasis supplied); it does not include the biological samples on which such test results are based. See State v. Tan, 305 Ga. App. 55, 58 (699 SE2d 74) (2010) (trial court erred in granting defendant’s motion to suppress a breath test slip from an Intoxilyzer because the slip did not show any result and therefore did not constitute a “written scientific report” under OCGA § 17-16-23 (b)); Birdsall, 254 Ga. App. at 558 (printout from gas chromatograph was not a scientific report for purposes of OCGA § 17-16-23 (b)). Indeed, OCGA § 17-5-56 (a) provides that with exceptions not applicable here, “[bfiological samples collected directly from any person for use as reference materials for testing or collected for the purpose of drug or alcohol testing shall not be preserved” (Emphasis supplied.)

Finally, Thompson has failed to show that she was prejudiced as to any constitutional right by the destruction of the blood sample because she did not show that “ ‘the evidence [possessed] an exculpatory value that was apparent before it was destroyed[.]’ ” Clay v. State, 290 Ga. 822, 841 (5) (c) (725 SE2d 260) (2012), quoting Walker v. State, 264 Ga. 676, 680 (3) (449 SE2d 845) (1994). Specifically, and in light of both Thompson’s admission to have drunk bourbon in combination with her prescribed doses of methadone and the State blood test results confirming a blood alcohol level of 0.03, Thompson’s assertion that the destroyed blood sample would have exonerated her is mere speculation. This fourth Barker factor must therefore weigh in the State’s favor as a matter of law. See Glover v. State, 291 Ga. 152, 155 (3) (728 SE2d 221) (2012) (despite a ten-year delay in being brought to trial, a defendant had provided “no evidence of prejudice arising from the delay”) (citation and punctuation omitted).

5. Balancing Factors. When, as here, a trial court “ ‘has clearly erred in some of its findings of fact and/or has misapplied the law to some degree, the deference owed the trial court’s ultimate ruling is diminished.’ ” Porter, 288 Ga. at 533 (2) (e), quoting Williams, 277 Ga. at 601.

Decided November 18, 2015

D. Parks White, District Attorney, Brian J. Atkinson, Assistant District Attorney, for appellant.

The Sessions Law Firm, D. Benjamin Sessions; McDonald & Cody, Douglas W. McDonald, Sr., Samuel J. Sliger, for appellee.

As we have explained, the third and fourth Barker factors must weigh heavily against Thompson on remand. Nonetheless, we remain mindful of our Supreme Court’s admonition that “[i]f all four factors point in one direction, the result of weighing them together will be clear, but otherwise, under the circumstances of a particular case, any one factor may be weighty enough to tip the balance.” Porter, 288 Ga. at 532 (2) (d); see also Barker, 407 U. S. at 533 (IV) (“We regard none of the four factors... as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant.”). Here, we cannot say that the delay in bringing the case to trial was entirely attributable to Thompson as a matter of law. Because the trial court must recalculate whether this second Barker factor weighs in her favor, we vacate the trial court’s judgment and remand for a discretionary reconsideration, factual findings, and rebalancing of all four Barker factors consistent with this opinion. See Porter, 288 Ga. at 534.

Judgment vacated and case remanded with direction.

Andrews, P. J., and Miller, J., concur.

       See OCGA § 40-5-67.1 (b) (2), the implied consent notice for suspects age 21 and over, which reads in relevant part: “After first submitting to the required state tests, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances at your own expense and from qualified personnel of your own choosing.”

       The trial court did not rule on this motion before disposing of the plea in bar.

       See OCGA § 40-6-391 (a) (a person “shall not drive or be in actual physical control of any moving vehicle while ... (5) [t]he person’s alcohol concentration is 0.08 grams or more at any time within three hours after such driving or being in actual physical control from alcohol consumed before such driving or being in actual physical control endedf.]”

       For purposes of remand, we note that when considered in light of her July 2014 request for a ruling on her meritless motion for an independent blood test, Thompson’s statement of readiness in July 2014 “cannot be construed as an assertion of the right to a speedy trial.” Brannen v. State, 274 Ga. 454, 456 (553 SE2d 813) (2001) (objecting to continuance, stating readiness for trial, and suggesting witnesses should be held in contempt for failing to appear did not amount to an assertion of the speedy trial right) (citations omitted). The fact that Thompson failed to invoke her speedy trial right until well after the case was first called for trial, at which time she moved for a continuance, may also weigh “heavily” against her. See Porter, 288 Ga. at 528-529 (2) (c) (3) (noting that defendant did not assert his speedy trial right until after two trial dates had been set and continued at his counsel’s request, and that “an extended delay in asserting the right to a speedy trial should normally he weighed heavily against the defendant”) (emphasis in original); Brown v. State, 287 Ga. 892, 895 (1) (c) (700 SE2d 407) (2010) (holding that a defendant’s failure to assert the speedy-trial right weighed heavily against co-defendants who waited two and three years, respectively, to assert that right).

       Compare OCGA § 17-16-4 (applicable only to felony offenses; see OCGA § 17-16-2 (a)).


source: Caselaw Access Project

author: ELLINGTON, Presiding Judge.

license: Public Domain

text:
    A15A1989.
    GULIA et al. v. NORTH ATLANTA BANK.
    (780 SE2d 74)
   ELLINGTON, Presiding Judge.

Mohinder Gulia, Nitin Gulia, and Sandeep Gulia appeal from the order of the Superior Court of Forsyth County denying their motion to set aside an order confirming a nonjudicial foreclosure sale. The Gulias contend that notice of the foreclosure hearing that they received was insufficient under OCGA § 44-14-161 (c). For the reasons explained below, we affirm.

The record shows the following undisputed facts. In January 2008, the Gulias each executed commercial guaranties to guarantee the payment of indebtedness owed by Shops @ Peachtree Parkway, LLC, in favor of North Atlanta Bank and secured by a deed to secure debt. The security deed contained a power of sale authorizing a nonjudicial foreclosure sale of the property in the event of default. The borrower defaulted, and the bank advertised the sale of the property in the appropriate legal paper for four consecutive weeks, December 9, 16, 23, and 30, 2009. The property was auctioned on January 5, 2010, and purchased by the bank.

The bank filed a verified application for confirmation and approval of the foreclosure sale in the Superior Court of Forsyth County on January 27, 2010. The application named as respondents the borrower, the Gulias, and two other guarantors of the debt. In the application, the bank asked the trial court to set a confirmation hearing and to “direct that notice of said hearing be given to Respondents at least five days prior to said hearing in such manner as shall comply with Georgia law.” The court issued a summons to each respondent and issued a Rule Nisi ordering the parties to appear for a hearing on the application on March 2, 2010.

On February 24, 2010, the respondents having not yet been served, the court issued a second Rule Nisi, ordering the parties to appear for a hearing on the application on May 4, 2010. On March 1, 2010, a sheriff’s deputy attempted service at 5670 Arrowind Road, NW, in Lilburn, which was listed on each of the guaranties as the guarantor’s address for notice. The deputy found Mohinder at home at that address and served him with the application, Rule Nisi, and summons. He executed returns of service showing personal service on Mohinder and notorious service on his sons, Nitin and Sandeep, “by leaving a copy of the action and summons at his most notorious place of abode in” Gwinnett County by placing the documents in the hands of “Mohinder Gulia (dad)” who was “domiciled at the residence of [Nitin and Sandeep].”

The hearing did not occur on May 4, 2010, and was reset twice more due to problems with serving the other two respondent guarantors with notice of the hearing. On August 27, 2010, the trial court issued a Rule Nisi, setting the confirmation hearing for October 12, 2010, and the bank served the Gulias with the Rule Nisi setting the October hearing via U. S. Mail at their Arrowind Road address. The Gulias did not appear at the October 12, 2010 hearing, and the trial court granted the bank’s application for confirmation of the foreclosure. The Gulias did not appeal the confirmation order.

Nearly four years later, on September 9, 2014, the Gulias filed their motion to set aside the confirmation order, pursuant to OCGA § 9-11-60 (d) (1), which provides that “[a] motion to set aside may be brought to set aside a judgment based upon . . . [l]ack of jurisdiction over the person[.]” Noting that none of the Gulias contended that he did not live at the Arrowind Road address, the trial court found that the March 1, 2010 service was sufficient as to each of the Gulias to initiate a valid confirmation proceeding under OCGA § 44-14-161. The trial court concluded that subsequent service by mail of the Rule Nisi resetting the confirmation hearing for October 12, 2010, was therefore sufficient. The trial court denied the Gulias’ motion to set aside the order confirming the foreclosure sale.

The Gulias contend that the confirmation statute requires that the trial court give the debtor notice of a confirmation hearing exclusively by means of personal service upon the debtor. They contend that the rule controlling this case was pronounced by the Supreme Court of Georgia in Vlass v. Security Pacific Nat. Bank, 263 Ga. 296, 298 (2) (430 SE2d 732) (1993), as follows: “All that is statutorily required is that the debtor be personally served with notice of the hearing on the creditor’s application at least five days prior thereto[,]” citing Henry v. Hiwassee Land Co., 246 Ga. 87 (269 SE2d 2) (1980). They argue that the March 1, 2010 service upon Mohinder constituted, “at best[,] notorious service” upon Nitin and Sandeep and failed to satisfy the personal service requirement of OCGA § 44-14-161 and that the subsequent first-class-mail services of notice were invalid. As a result, they argue, the trial court erred in denying their motion to set aside the confirmation order.

The Gulias’ reading of Vlass is misguided. The issue before the Court in VZass was whether the confirmation statute requires service of the pleading that initiates a confirmation proceeding, that is, the creditor’s application for confirmation, in addition to a notice of the time and place of the hearing on that application. 263 Ga. at 296 (The debtor argued that “service of [a creditor’s] application for confirmation in accordance with OCGA § 9-11-4 is a prerequisite to the initiation of a valid confirmation proceeding under OCGA § 44-14-161.”). The Court’s statement that “[a]ll that is statutorily required is that the debtor be personally served with notice of the hearing on the creditor’s application at least five days prior thereto” explained the Court’s holding that

[s]ince it is clear that an application for confirmation merely invokes the superior court’s supervisory authority over nonjudicial foreclosure sales under power and is not a “complaint” by which the creditor initiates a “civil action” against the debtor in the superior court, it necessarily follows that such an application need not be served on the debtor in accordance with OCGA § 9-11-4.

Vlass v. Security Pacific Nat. Bank, 263 Ga. at 297-298 (1).

Other cases have established that the notice requirement of OCGA § 44-14-161 (c) can be satisfied with less than personal service. See Belans v. Bank of America (“Belans I”), 303 Ga. App. 35, 37 (1) (692 SE2d 694) (2010). Without equating the giving of notice of a confirmation hearing to the respondents with the service of legal process upon a defendant in an ordinary civil case, our courts look to the methods of service provided in the Civil Practice Act for guidance in determining whether notice of a confirmation hearing is sufficient in a particular case. Winstar Dev., Inc. v. SunTrust Bank, 308 Ga. App. 655, 658 (1) (708 SE2d 604) (2011); Ameribank, N.A. v. Quattlebaum, 220 Ga. App. 345, 347 (2) (469 SE2d 462) (1996). Thus, notice of a confirmation hearing that is given to a corporate respondent is sufficient under the confirmation statute if it comports with OCGA § 9-11-4 (e) (1), that is, personal service upon an officer of the corporation or, if such service cannot be accomplished, service upon the Secretary of State. Winstar Dev., Inc. v. SunTrust Bank, 308 Ga. App. at 658 (1). And notice of a confirmation hearing to an individual respondent is sufficient if it comports with OCGA § 9-11-4 (e) (7), that is, service upon the individual personally, or by leaving copies thereof at the person’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein, or by delivering a copy of the summons and complaint to an agent authorized by appointment or by law to receive service of process. Id. See Henry v. Hiwassee Land Co., 246 Ga. at 88-89 (The notice required by the confirmation statute should be by one of the methods provided for personal service in former Ga. Code Ann. § 81A-104 [current OCGA § 9-11-4]; initial service of the confirmation application and Rule Nisi by certified mail was not adequate notice of the confirmation proceedings.). Notice of a confirmation hearing can even be sufficient if it comports with OCGA § 9-11-4 (f), that is, service by publication upon a person who resides outside the state cannot be found within the state, or conceals himself or herself to avoid service. Belans v. Bank of America (‘Belans V”), 309 Ga. App. 208, 209 (1) (709 SE2d 853) (2011); Belans I, 303 Ga. App. at 36-38 (1).

In this case, notice of the confirmation hearing was given to Nitin and Sandeep more than five days prior to the confirmation hearing, when the deputy left copies of the pleadings, including a Rule Nisi ordering them to appear at the confirmation hearing, at their dwelling house or usual place of abode with Mohinder, a person of suitable age and discretion then residing therein. This method of service was sufficient under OCGA § 44-14-161 to initiate a valid confirmation proceeding. Winstar Dev., Inc. v. SunTrust Bank, 308 Ga. App. at 658 (1). As the Gulias concede, once a debtor has received notice of a confirmation proceeding in compliance with OCGA § 44-14-161 (c), such that a valid confirmation proceeding is initiated, subsequent notices resetting the confirmation hearing to a later date may be served by mail in accordance with OCGA § 9-11-5 (b). Belans V, 309 Ga. App. at 210 (1). Accordingly, the trial court did not err in denying the Gulias’ motion to set aside the confirmation hearing on the basis that the notice was insufficient under OCGA § 44-14-161.

Judgment affirmed.

Dillard and McFadden, JJ., concur.

Decided November 18, 2015

Richard S. Alembik, for appellants.

Kitchens Kelly Gaines, Mitchell S. Rosen, for appellee.

       We granted the Gulias’ application for discretionary appeal pursuant to OCGA § 5-6-35 (a) (8).

       See footnote 3, infra.

       See Ramchandani v. State Bank & Trust Co., 324 Ga. App. 235, 239-240 (1) (749 SE2d 797) (2013) (In order to challenge the validity of a confirmation order, the debtor can file a motion to set aside the judgment in the trial court that rendered the confirmation order, pursuant to OCGA § 9-11-60 (b) and (d). Where a creditor pursued a deficiency judgment against the debtors in a different county from the one that issued a confirmation order, the second trial court properly concluded that it lacked jurisdiction to consider the debtors’ motion to set aside the confirmation order.); Quattlebaum v. Ameribank, N.A., 227 Ga. App. 517, 518 (1) (489 SE2d 319) (1997) (physical precedent only) (Where the trial court set aside a portion of a confirmation order on the basis that the moving respondent had not been personally served with notice of the hearing, the trial court was then required to disregard its prior confirmation order and consider anew the issue of whether the encumbered property had sold at foreclosure for its fair market value.), aff’d, 269 Ga. 857 (505 SE2d 476) (1998); Rogers v. Fidelity Fed. Sav. & Loan Assn., 180 Ga. App. 330, 331 (349 SE2d 7) (1986) (Where the trial court entered a confirmation order and later determined that the debtors did not receive the requisite notice under OCGA § 44-14-161 (c), the trial court set aside the confirmation order. The effect of the set-aside order was to reinstate the case in the trial court, returning it to the posture it occupied prior to judgment. Once the deficiencies in service were rectified, the trial court could proceed with the confirmation proceedings.).
      Under Georgia law, when the defense of lack of personal jurisdiction due to defective service is raised by way of a motion to set aside the judgment, the trial court sits as the trier of fact. Our standard of review in this regard is the any evidence rule, and absent an abuse of discretion, we will not reverse a trial court’s refusal to set aside a judgment. However, where the facts are undisputed and the question is one of law, we review the ruling de novo.

        (Citations and punctuation omitted.) Hooks v. McCondichie Properties 1, LP, 330 Ga. App. 583, 584 (767 SE2d 517) (2015). See Winstar Dev., Inc. v. SunTrust Bank, 308 Ga. App. 655, 658 (1) (708 SE2d 604) (2011) (A defendant who challenges the sufficiency of service “bears the burden of showing improper service.”) (punctuation and footnote omitted).

       Although a confirmation proceeding under OCGA § 44-14-161 “is not an action in rem, because it does not adjudicate title,” (citation and punctuation omitted) Wall v. Fed. Land Bank of Columbia, 240 Ga. 236, 237 (1) (240 SE2d 76) (1977), a confirmation proceeding is not an ordinary civil case, either, because no personal judgment can be obtained against any debtor, nor does it establish the liability of any person with regard to the debt. Vlass v. Security Pacific Nat. Bank, 263 Ga. at 297 (1); Wall v. Fed. Land Bank of Columbia, 240 Ga. at 237 (1). See also Henry v. Hiwassee Land Co., 246 Ga. at 89 (Confirmation proceedings are unique judicial proceedings that “do not neatly fit into the customary classification of actions in personam or actions in rem.”) (citation omitted).


author: MCMILLIAN, Judge.

text:
    A15A0833.
    GONZALEZ v. THE STATE.
    (780 SE2d 383)
   MCMILLIAN, Judge.

Edgar Yuri Gonzalez appeals the trial court’s denial of his motion for new trial following his conviction on one count each of trafficking methamphetamine, possession of cocaine, possession of less than one ounce of marijuana, and driving on a suspended license. On appeal, Gonzalez argues that the trial court erred in refusing to hear his motion to suppress, which the court found to be untimely. Alternatively, if his motion was untimely, Gonzalez asserts that his trial counsel was ineffective in failing to file it in a timely manner. Finding no merit to either of these arguments, we affirm.

Viewed in the light most favorable to the verdict, the evidence at trial showed that on May 7, 2010, Detective Samuel Eaton of the Dalton Police Department was attempting to serve a search warrant at the house located at 1420 Classic Chase Drive in Whitfield County (the “Residence”), when he noticed a woman at the curb and children, who were visibly upset, approaching her. He observed one of these children leaving the Residence as she approached the woman. After Detective Eaton learned that the woman had called police to report a domestic disturbance, he saw a man leave the Residence and drive away at a high rate of speed in a blue Dodge pickup truck, which was towing a utility trailer containing lawn equipment. Detective Eaton attempted to follow the truck and also sent a description of the vehicle to dispatch.

Meanwhile, Sergeant Chris Brunson of the Whitfield County Sheriff’s Office had received a call on the domestic disturbance at the Residence. As he was en route to the scene, he received a report that the “subject” had left the Residence in a blue truck and detectives were following him. When Deputy Brunson spotted the truck, which Gonzalez was driving, he initiated a traffic stop to verify Gonzalez’s involvement in the domestic report. Deputy Brunson asked Gonzalez enough questions to verify that he was at the Residence and was involved in the domestic disturbance. During the stop, Deputy Brunson also ran Gonzalez’s license and discovered that it had been suspended. He then asked Gonzalez to step out of the car and placed him into custody.

Detective Eaton, who had arrived on the scene, read Gonzalez his rights. When the detective asked Gonzalez whether there was anything illegal in his truck, Gonzalez began to cry and told him that there were “six ounces” in a bag in his truck. A search of the truck resulted in the discovery of 115.46 grams of methamphetamine, 3.23 grams of cocaine, and less than one ounce of marijuana, resulting in the charges in this case.

On August 27, 2010, Gonzalez’s counsel filed a motion to suppress, which stated in its entirety:

MOTION TO SUPPRESS
COMES NOW the Defendant in the above-styled case, by and through the undersigned counsel, and moves this Honorable Court to suppress the following:
1. Any and all evidence illegally obtained and/or seized by the State.
2. Any and all evidence of pre-trial and in-court identification of the Defendant.
3. Any and all statements made by the Defendant.
In support of said Motion, the Defendant asserts that the above-referenced evidence was obtained in violation of the laws of the United States and the State of Georgia.
Defendant expressly reserves the right to amend and supplement this motion as new facts and information become available through the State’s responses to the Defendant’s discovery requests, or otherwise.
WHEREFORE, the Defendant respectfully requests that this Honorable Court conduct a full and complete hearing regarding this Motion to Suppress and order the suppression of any evidence seized, obtained, or acquired in violation of the laws of the United States and the State of Georgia.

Gonzalez waived formal arraignment and pled not guilty to the charges on September 3, 2010.

Subsequently, at a calendar call on October 22, 2010, ten days prior to Gonzalez’s trial, his counsel filed a motion to continue and tendered a more particularized motion to suppress. The State opposed the motion as untimely, noting that all the facts in the case had been developed through testimony presented at a July 23, 2010 probation revocation hearing for Gonzalez. Defense counsel explained, however, that she was waiting to determine whether a tape of the traffic stop existed before amending Gonzalez’s preliminary motion to suppress, and she had just learned the day before that there was no tape. The trial court found that Gonzalez’s preliminary motion was “pure boilerplate,” with “no factual allegations in it whatsoever,” and thus provided no “basis for rightful amendment.” And the trial court determined that any question regarding the existence of a tape of the traffic stop was “a matter for the determination of the defense about whether it [wanted] to file” an amended motion, but it “[did] not provide a basis for allowing an untimely motion.” Therefore, the trial court ruled that the amended motion to suppress would not be heard.

1. Gonzalez first contends that the trial court erred in refusing to hear his motion to suppress on the ground it was untimely. In its order denying Gonzalez’s motion for new trial on this ground, the trial court reiterated its reasons for refusing to hear Gonzalez’s motion to suppress, stating that the preliminary motion “was infirm for lack of specificity under OCGA § 17-5-30,” and the proposed amended motion was untimely under OCGA § 17-7-110.

Under OCGA § 17-7-110 and Uniform Superior Court Rule (“USCR”) 31.1, a motion to suppress must be filed within ten days of the date of arraignment unless the trial court extends the time for filing the motion. “The purpose of [this] time requirement ... is fundamental fairness to all parties and those who must attend trial. Failing to file a timely motion to suppress amounts to a waiver of even constitutional challenges.” (Citations omitted.) Hatcher v. State, 224 Ga. App. 747, 748-49 (1) (482 SE2d 443) (1997). Thus, “[w]hether the motion [to suppress] has merit is not an issue; the rule does not apply only to non-meritorious motions.” Id. at 749 (1). And where, as here, the defendant waives arraignment, “the ten-day period in which [the defendant] must file pretrial motions begins on the date that the waiver of arraignment is fil ed.” Bighams v. State, 296 Ga. 267, 270 (2), n. 4 (765 SE2d 917) (2014). Accordingly, because Gonzalez failed to move for and obtain an extension of time, the pretrial motions in this case should have been filed by September 13, 2010.

Moreover, OCGA § 17-5-30 (b) outlines the requirements for a motion to suppress. “The statutory provision mandates that a motion to suppress ‘be in writing and state facts showing that the search and seizure were unlawful.’. . . Compliance with OCGA § 17-5-30 (b) is required because evidence exclusion is an extreme sanction and one not favored in the law.” (Citations and punctuation omitted; emphasis supplied.) Young v. State, 282 Ga. 735, 735-36 (653 SE2d 725) (2007). Thus, “[a] 11 motions to suppress, whether based on statutory or non-statutory grounds must state facts and not merely conclusions.” (Citation and punctuation omitted.) Davis v. State, 203 Ga. App. 315, 316 (2) (416 SE2d 789) (1992).

Although Gonzalez’s original motion was timely, actually predating the waiver of arraignment, it failed to provide any factual statement, much less any factual support for the arguments he raised in his amended motion to suppress. Because the original motion did not meet the statutory requirements, it was subject to dismissal. See Davis, 203 Ga. App. at 316 (2).

Gonzalez’s proffered amendment of the motion to suppress, which was tendered more than one month after he waived arraignment, was untimely. “When a defendant files an untimely pre-trial motion, the trial court may dismiss the motion or entertain a request by the defendant to accept the late filing.” Taylor v. State, 326 Ga. App. 27, 30 (2) (755 SE2d 839) (2014). Therefore, the trial court had the discretion to determine whether Gonzalez was to be afforded an opportunity to file an untimely amendment to his legally defective preliminary motion, and we will not disturb the trial court’s ruling on appeal in the absence of an abuse of that discretion. State v. Mojica, 316 Ga. App. 619, 622-23 (2) (730 SE2d 94) (2012); Davis, 203 Ga. App. at 316-17 (3).

Here, the record indicates that Gonzalez had the benefit of testimony from the State’s witnesses regarding the issues in the case at the probation revocation hearing in July 2010. Even though Deputy Brunson apparently did not testify at the hearing, Gonzalez could have alleged the facts as he knew them in his preliminary motion to suppress. He also could have moved for an extension of time to file a more particularized motion at the time he filed the preliminary motion. If he later obtained a videotape that added new facts or contradicted the other evidence, he could have moved for leave to amend his motion based on any newly acquired evidence. Therefore, Gonzalez was not denied a meaningful opportunity to challenge the traffic stop; rather, he failed to take timely advantage of the opportunity to do so. Accordingly, we find no abuse of discretion by the trial court in refusing to hear the motion to suppress. See Hatcher, 224 Ga. App. at 749 (1); Davis, 203 Ga. App. at 317 (3).

2. Gonzalez alternatively asserts that his trial counsel was ineffective in failing to file his amended motion to suppress in a timely manner. He argues that the timely filing of the motion would have resulted in the suppression of the evidence because he asserts that Deputy Brunson lacked reasonable articulable suspicion to stop his truck.

To prevail on his claim of ineffective assistance of counsel, Gonzalez

must show counsel’s performance was deficient and that the deficient performance prejudiced him to the point that a reasonable probability exists that, but for counsel’s errors, the outcome of the trial would have been different. A strong presumption exists that counsel’s conduct falls within the broad range of professional conduct.

(Citations and punctuation omitted.) Pruitt v. State, 282 Ga. 30, 34 (4) (644 SE2d 837) (2007). See also Wright v. State, 291 Ga. 869, 870 (2) (734 SE2d 876) (2012). Because we find that a motion to suppress based on the validity of the traffic stop would have been meritless, we conclude that Gonzalez has failed to carry his burden of demonstrating that his trial counsel was ineffective. See Lockheart v. State, 284 Ga. 78, 80 (3) (663 SE2d 213) (2008) (where motion to suppress evidence would have been meritless, counsel’s failure to file such a motion did not amount to ineffective assistance); Quinn v. State, 268 Ga. 70, 72 (485 SE2d 483) (1997) (where suppression motion would not have been meritorious, defendant was not prejudiced under the second prong of test for ineffectiveness of counsel).

“When trial counsel’s failure to file a motion to suppress is the basis for a claim of ineffective assistance, the defendant must make a strong showing that the damaging evidence would have been suppressed had counsel made the motion.” (Citation and punctuation omitted.) Mastrogiovanni v. State, 324 Ga. App. 739, 742 (2) (751 SE2d 536) (2013). Gonzalez argued in support of his motion for new trial that the drug evidence in this case was subject to suppression because Deputy Brunson lacked reasonable articulable suspicion to initiate the traffic stop. However, in its order denying that motion, the trial court concluded that under the totality of the circumstances, Deputy Brunson, who already was en route to the scene of the disturbance, could rely on the dispatch report that police were pursuing a “suspect” in that disturbance to stop Gonzalez’s truck, which matched the description provided.

“For a traffic stop to be valid, an officer must identify specific and articulable facts that provide a reasonable suspicion that the individual being stopped is engaged in criminal activity.” Jones v. State, 291 Ga. 35, 38 (2) (727 SE2d 456) (2012). “This suspicion need not meet the standard of probable cause, but must be more than mere caprice or a hunch or an inclination. A founded suspicion is all that is necessary, some basis from which the court can determine that the detention was not arbitrary or harassing.” (Citation omitted.) State v. Melanson, 291 Ga. App. 853, 854 (663 SE2d 280) (2008). Therefore, we review the evidence to determine whether, considering the totality of the circumstances, specific and articulable facts exist to support such a suspicion. See Vansant v. State, 264 Ga. 319, 320 (2) (443 SE2d 474) (1994).

“It is well settled that police officers are authorized to use information received by radio dispatch as part of their basis for articulable suspicion to conduct a stop.” (Citation and punctuation omitted.) Melanson, 291 Ga. App. at 854. Therefore,

[reasonable suspicion need not be based on a responding officer’s knowledge alone, but may exist based on the “collective knowledge” of the police when there is reliable communication between an officer supplying the information and an officer acting on that information. In this regard, police are authorized to stop an individual based on a “be on the lookout” dispatch or even a radio transmission from another officer who observed facts raising a reasonable suspicion of criminal activity or a traffic violation.

(Citation and punctuation omitted.) McBurrows v. State, 325 Ga. App. 303, 306 (1) (a) (750 SE2d 436) (2013).

Construed most favorably to uphold the trial court’s ruling, the evidence here demonstrates that Detective Eaton determined that the woman outside the Residence had reported a domestic disturbance to police, and he observed visibly upset children leaving the Residence to speak with the woman. He also observed Gonzalez leave the Residence at a high rate of speed, proceeded to follow him, and identified him on the radio as the “suspect” in the domestic disturbance. Meanwhile, Deputy Brunson who had been dispatched to the report of the domestic disturbance observed a vehicle matching the description provided by Detective Eaton on the radio and initiated the stop to determine if the driver was involved in the reported incident.

As the trial court found, this case presents very similar facts to this Court’s prior decision in Jones v. State, 314 Ga. App. 107 (722 SE2d 918) (2012). In that case, police received a call from a neighbor about a domestic disturbance. While the officers were on the way to the scene, the neighbor called back to report that shots had been fired. Upon their arrival, the officers observed a truck pulling out of a driveway and radioed that “the Vehicle (is) pulling out of the driveway.’ ” Id. Another responding officer was in the neighborhood and saw a truck pulling out of a driveway from about 500 to 600 feet away. Although he did not verify that the truck was pulling out of the driveway at issue, he saw no other vehicles pulling out of driveways in the vicinity. Id. That officer initiated a stop of the truck, and after conducting field sobriety tests, arrested the driver for driving under the influence. Id. This Court held that based on the totality of the circumstances, “the stop was neither arbitrary nor harassing, but was based on a founded suspicion of criminal activity.” Id. at 110.

As in Jones, we find that the totality of circumstances in this case were sufficient to have created a reasonable suspicion that Gonzalez may have been involved in criminal activity. Although the present case did not involve any evidence of gunshots as Jones did, the nature of the domestic disturbance was serious enough that the children on the scene were crying and the woman involved felt compelled to call for police intervention. Thus, the officers had a founded suspicion of possible criminal activity. Accordingly, we find no evidence that the stop was based on mere hunch or caprice or was in any way arbitrary or harassing. See, e.g., Harvey v. State, 328 Ga. App. 94, 96 (761 SE2d 507) (2014) (reasonable articulable suspicion existed to support an investigatory stop, where officer was dispatched to investigate suspicious activity at a particular gas station and on a road near the gas station, she saw a group of men that included a man she believed matched the description given in the suspicious activity call); Brown v. State, 253 Ga. App. 741, 742-43 (1) (560 SE2d 316) (2002) (information received from dispatch of a citizen’s report of a suspected drunk driver provided sufficient articulable suspicion for officer to stop defendant’s vehicle where report contained specific information to identify the vehicle).

Accordingly, the trial court properly denied Gonzalez’s motion for new trial.

Judgment affirmed.

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

Decided November 19, 2015.

David J. Dunn, Jr., Sean J. Lowe, for appellant.

Herbert M. Poston, Jr., District Attorney, V. Keely Norman, Assistant District Attorney, for appellee.

       The State asserted that Detective Eaton had testified at the revocation hearing that he had no tape, and he did not know if Deputy Brunson had a tape.

       OCGA § 17-7-110 provides, in pertinent part, that “[a]ll pretrial motions, including demurrers and special pleas, shall be filed within ten days after the date of arraignment, unless the time for filing is extended by the court.” And under USCR 31.1, “[a]ll motions, demurrers, and special pleas shall be made and filed at or before the time set by law unless time therefor is extended by the judge in writing prior to trial.” See also Davis v. State, 272 Ga. 818, 819 (1) (537 SE2d 327) (2000) (“USCR 31.1 does not allow exceptions; its flexibility is provided by when and how an extension of time for filing may be granted.”).

         We note that the practice in many jurisdictions is to allow late amendments to a motion to suppress and thus the trial court would have acted well within its discretion to have allowed the particularized motion. But this Court sits to correct error, and we find no legal error in the denial of the motion to suppress as untimely.


author: Boggs, Judge.

text:
    A15A0855.
    AMERICAN ALTERNATIVE INSURANCE COMPANY v. BENNETT.
    (780 SE2d 686)
   Boggs, Judge.

In this insurance coverage case, American Alternative Insurance Company (“AAIC”) appeals from the trial court’s grant of partial summary judgment in favor of James Lawrence Bennett as well as the denial of its motion for summary judgment. For the reasons explained below, we reverse.

On appeal from the denial or grant of summary judgment, [the appellate court] must conduct a de novo review of the evidence to determine whether there exists a genuine issue of material fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

(Citation omitted.) Northwest Carpets v. First Nat. Bank, 280 Ga. 535, 538 (1) (630 SE2d 407) (2006). So viewed, the record shows that AAIC issued a Business Automobile Policy insuring Billy Scott and/or Billy Scott Logging, including uninsured motorist coverage which was in effect at the time of the collision. Bennett was an employee of Billy Scott Logging at the time of the incident.

On February 15, 2012, Bennett was traveling west on GA 32 in Brantley County while driving a Freightliner tractor-trailer truck. He was traveling alone, and the truck was empty at the time. A tractor-trailer hauling a load of logs approached him traveling in the opposite direction. It is undisputed that as the two tractor-trailers passed each other, “a log hanging off of the oncoming log truck struck plaintiff’s tractor, shattering the windshield and causing shattered glass to impact the plaintiff’s eyes and face.” It is further undisputed that there were no eyewitnesses to the incident, no part of the oncoming logging truck made any contact with Bennett’s truck, the logging truck did not stop, and the owner and driver of the logging truck have not been identified.

Bennett filed suit in Bacon County State Court against three John Does: the operator and the owner of the logging truck, as well as the employer of the operator of the logging truck. He served AAIC, his employer’s uninsured motorist carrier, and Southern General, his personal uninsured motorist carrier. AAIC and Bennett both filed motions for summary judgment, and the trial court granted Bennett’s motion for summary judgment and denied AAIC’s motion, finding as follows:

Whether an attached log is an integral part of the unknown log truck is a question of fact. There is an unopposed expert affidavit stating an attached log is an integral part of a log truck in evidence. As such, the undisputed facts establish the attached log was an integral part of the unknown log truck.

Thereafter, AAIC and Bennett filed a stipulation as to damages only, reserving AAIC’s right to appeal the grant of summary judgment, and the trial court issued a final judgment in the case. AAIC now appeals.

AAIC asserts that the trial court erred when it determined that AAIC was liable for uninsured motorist coverage in this case, because no actual physical contact between the trucks occurred and no eyewitness was present to corroborate Bennett’s account of the incident. We agree.

OCGA § 33-7-11 (b) (2) provides:

. . . [I]n order for the insured to recover under the endorsement where the owner or operator of any motor vehicle which causes bodily injury or property damage to the insured is unknown, actual physical contact shall have occurred between the motor vehicle owned or operated by the unknown person and the person or property of the insured. Such physical contact shall not be required if the description by the claimant of how the occurrence occurred is corroborated by an eyewitness to the occurrence other than the claimant.

The clear language of the statute mandates that unless the occurrence is corroborated by an eyewitness — which is not the case here — “actual physical contact” must occur “between the motor vehicle owned or operated by the unknown person and the person or property of the insured.” See Yates v. Doe, 190 Ga. App. 367 (378 SE2d 739) (1989) (without evidence of contact between vehicles or firsthand testimony corroborating appellant’s claim of how unknown vehicle caused accident, as required by OCGA § 33-7-11 (b) (2), trial court properly granted summary judgment to uninsured motorist carrier).

To circumvent his inability to meet the clear statutory requirement, Bennett relies on State Farm Fire & Cas. Co. v. Guest, 203 Ga. App. 711 (417 SE2d 419) (1992) (physical precedent only), in which two judges of this Court relied on a Michigan case to find that OCGA § 33-7-11 (b) (2)’s “actual physical contact” requirement can be met by showing that the insured’s vehicle made contact with an “integral part” of an unknown vehicle. Id. at 712-713. There, the insured struck a tire and rim assembly lying in the road. Two judges concluded that because a tire and rim assembly is an “integral part” of a motor vehicle, the insured had a claim under her uninsured motorist endorsement.

We first note that because one judge in Guest focused on the sufficiency of corroborating eyewitness testimony and two judges decided the case on the alternative basis of actual physical contact, the case is nonprecedential and therefore not binding on this Court. See Court of Appeals Rule 33 (a); Bituminous Ins. Co. v. Coker, 314 Ga. App. 30, 36, n. 4 (722 SE2d 879) (2012). Moreover, no Georgia case has ever followed the nonprecedential statement made in Guest, and this Court repeatedly has declined to extend coverage to those situations not involving actual physical contact or eyewitness testimony. See Hohman v. State Farm Fire &c. Ins. Co., 283 Ga. App. 430 (641 SE2d 650) (2007) (negligently secured ladder falling from unknown vehicle did not meet physical contact requirement); Torstenson v. Doe, 257 Ga. App. 389, 390 (1) (571 SE2d 432) (2002) (metal object that flew from truck and struck windshield of van did not satisfy “actual physical contact” requirement); Murphy v. Ga. Gen. Ins. Co., 208 Ga. App. 501, 502 (431 SE2d 147) (1993) (pipe allegedly falling from bed of unknown truck and striking windshield of insured vehicle did not meet physical contact requirement); Scott v. Allstate Ins. Co., 200 Ga. App. 296 (407 SE2d 492) (1991) (box allegedly falling off truck and causing collision insufficient to avoid summary judgment absent eyewitness corroboration).

Bennett’s reliance on Guest is misplaced, primarily because Guest is nonprecedential. In any event, this case is factually distinguishable from Guest. Unlike the tire and rim assembly in Guest, Bennett alleged in his complaint that his truck was struck by “a log being carried as cargo on the log truck.” Clearly, the log was cargo carried by the truck; it was not a component or “integral part” of the unknown truck. The fact that the log may have been tied down or attached to the back of the truck is irrelevant. Metal pipes may be tied down and attached to the back of a truck, but as we have previously held, a pipe resting in a truck bed “is not such an integral part or component of a vehicle so as to be deemed a ‘vehicle.’ ” Corouthers v. Doe, 244 Ga. App. 491, 493-494 (1) (536 SE2d 165) (2000). In addition, the fact that logs were being transported by a logging truck in this case does not change the outcome or make the logs an integral part of the truck. The word “integral” is generally and most commonly understood to mean “essential to completeness.” Webster’s Third New International Dictionary of the English Language Unabridged 1173 (1976). A cargo load of logs is not essential to the completeness of the tractor-trailer. In fact, Bennett testified that he was operating an empty logging truck at the time of the incident.

Decided November 19, 2015.

The trial court’s reliance on the affidavit of the law enforcement officer likewise is misplaced. In his affidavit, the officer made the unsupported and conclusory assertion, “When the log is securely attached to the trailer by the chain or strap it is an integral part of the vehicle traveling on the public road.” “But [ujltimate or conclusory facts and conclusions of law . . . cannot be utilized on a summary judgment motion.” (Citation and punctuation omitted.) Dickson v. Dickson, 238 Ga. 672, 674 (4) (235 SE2d 479) (1977); Cantera v. Am. Heritage Life Ins. Co., 274 Ga. App. 307, 311 (617 SE2d 259) (2005) (conclusory assertion of ultimate fact insufficient to support summary judgment); Johnson v. Crews, 165 Ga. App. 43, 44-45 (299 SE2d 99) (1983). “[Affidavits containing mere legal conclusions and allegations present no issue of fact on a motion for summary judgment. Indeed, such legal conclusions are to be disregarded in considering the affidavit in connection with the motion for summary judgment.” (Citations and punctuation omitted.) Crouch v. Bent Tree Community, 310 Ga. App. 319, 322 (3) (713 SE2d 402) (2011). Whether the term “integral part of a vehicle” includes cargo carried by the vehicle is a question of law, which we answer in the negative. The officer’s conclusory opinion as to what constitutes an “integral part” of the vehicle therefore does not create an issue of fact, and the lower court erred in basing its grant of summary judgment on the officer’s conclusion. The trial court’s order granting summary judgment to Bennett and denying summary judgment to AAIC is reversed.

Judgment reversed.

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

Mozley, Finlayson & hoggins, Robert M. Finlayson II, Allison E. Maloney, for appellant.

Gibson & Associates, Adrienne J. Gibson, Douglas h. Gibson, Kenneth A, Taft, for appellee.

       The court entered a consent order of dismissal as to Southern General after Southern General reached a settlement agreement with Bennett.


author: Doyle, Chief Judge.

text:
    A15A0960.
    KEY SAFETY SYSTEMS, INC. v. BRUNER et al.
    (780 SE2d 389)
   Doyle, Chief Judge.

This appeal arises out of the death of Penney Louise Bruner after the Jeep Wrangler automobile in which she was riding in the front passenger seat was involved in a rollover crash, ejecting her despite her wearing the seat belt, which was designed, constructed, and integrated into the Jeep by Key Safety Systems, Inc. (“Key”). William A. Bruner, Individually and as Personal Representative of the Estate of Ms. Bruner (collectively “the plaintiff”), filed suit against Key and various other private and governmental entities, alleging claims of failure to warn, failure to recall/retrofit, strict products liability, and negligence regarding the seat belt restraint system installed in the passenger side of the Jeep. The jury awarded over $4.6 million to the plaintiff, apportioning 80 percent fault to Key and 20 percent to the driver, Mr. and Ms. Bruner’s daughter, Amanda. Key filed a motion for new trial, motion for judgment notwithstanding the verdict, and a revised motion for new trial, which motions were denied by the trial court.

Key appeals, arguing that the trial court erred by (1) denying its motions for directed verdict and for judgment notwithstanding the verdict as to the plaintiff’s failure to warn claim; (2) admitting expert testimony regarding certain seat belt retractor mechanism testing over its objection at the hearing on the motion in limine and at trial; and (3) allowing the jury to view the video of that same test over its objection at the hearing on the motion in limine and at trial. For the reasons that follow, we affirm.

The standard for [a] directed verdict is as follows: [If] there is no conflict in the evidence as to any material issue, and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed. The appellate review standard of a trial court’s denial of a directed verdict motion is the any evidence standard. In considering a ruling on a motion for directed verdict, the evidence must be construed most favorably to the party opposing the motion.

Viewed in this light, the record shows that Mr. Bruner owned three vehicles at the time of the instant events, the 2003 Jeep in question, as well as a 2000 Volkswagen Beetle and a Ford F-150 pickup truck. Mr. Bruner testified that among his family of two adults and two driver-aged children, all four were allowed to operate the Jeep, but he was the main driver. His daughter, Amanda, was 17 at the time of the events but driving on a learner’s permit.

On September 23, 2007, Amanda and Ms. Bruner were involved in a rollover accident in the Jeep. Amanda was driving, while Ms. Bruner rode in the passenger seat, and although both were wearing their seat belts, Ms. Bruner was ejected from the vehicle, sustaining severe injuries, including having portions of body tissue around her lower abdomen and upper legs torn off by the lap portion of the seat belt. Ms. Bruner survived for a short time after the accident, telling witnesses that she was confused about why she was ejected because she had been wearing her seat belt. Ms. Bruner eventually succumbed to her injuries.

Mr. Bruner testified that Ms. Bruner was “fanatical” about proper seat belt usage, which made it surprising to him that the police at the scene initially reported that she was unbelted. He testified that in the event of a rollover, he “expected [the seat belts] to keep you in the seat” and if he had known that there was a chance of ejection, he would not have purchased the vehicle. Mr. Bruner testified that he was not warned that properly belted occupants could be ejected from the vehicle, but if a warning had appeared on the belt, he would have read it. Mr. Bruner could not recall whether he “as part of the accident” read the Jeep’s owner’s manual, nor could he recall what other vehicles he was considering at the time he bought the Jeep.

Steven Meyer, a mechanical engineer, testified regarding the seat belt retractor mechanism and its behavior during a rollover accident. After speaking generally about the variety of tests he had performed on various types of restraint systems, Meyer turned to the restraint system in question and his hypothesis of the accident. Meyer explained that the latch plate at the top portion of the shoulder belt became loose at various points during the rollover, which allowed slack to form in the lap belt, which then allowed Ms. Bruner to be ejected from the vehicle. In arriving at his conclusion that the seat belt restraint system was defective, he examined the belt in question and compared it to his existing knowledge gleaned from previous investigations.

Meyer described the restraint system in question as having a ball and cup crash sensor, which was designed to sense when the vehicle was in an accident and lock the seat belt retractor from allowing any movement of the belt; he compared the device in the passenger side to other crash sensors, such as the web sensor or locking latch plate, which operated differently than the ball and cup.

During his testimony, Meyer referred to a video of the internal workings of a seat belt retractor mechanism like the one installed in the plaintiff’s Jeep. The video included a closeup of the mechanism showing when it detached from the belt, allegedly allowing slack to form in the belt, and in the corner of the screen the front of a Jeep Cherokee rolling to show the angle of the vehicle during the detachment of the restraint from the belt. Meyer repeatedly explained that this was not designed to be a simulation of the exact events of the crash in question, but merely a visual depiction of how the restraint system operates under rollover forces; he explained how it would vary given different rates or directions of rotation.

At the close of evidence, Key argued that the trial court should grant a directed verdict on the plaintiff’s claim of failure to warn because (1) the plaintiff had failed to show causation via evidence showing what product he would have purchased instead of the Jeep had he been warned; (2) the plaintiff had not produced evidence of an appropriate warning; and (3) the plaintiff had not produced evidence that Chrysler would have allowed Key to add a warning to the product.

After the verdict, Key filed its revised motion for new trial, arguing, among other things, that the trial court erred by allowing the plaintiff’s expert to present the retractor rotation test and that the trial court improperly allowed the failure to warn claim to go to the jury because there was insufficient evidence to support the claim. The trial court denied the motion, and this appeal followed.

1. Key first argues that the trial court erred by denying its motions for a directed verdict and for judgment notwithstanding the verdict on the plaintiff’s failure to warn claim because there was insufficient evidence to establish a claim.

[If] a duty to warn arises, as it does in this case, this duty may be breached by (1) failing to adequately communicate the warning to the ultimate user or (2) failing to provide an adequate warning of the product’s potential risks. While failure to read instructions or printed warnings will prevent a plaintiff from recovering on a claim grounded on failure to provide adequate warning of the product’s potential risk, failure to read a warning does not bar recovery when the plaintiff is challenging the adequacy of the efforts of the manufacturer or seller to communicate the dangers of the product to the buyer or user. Failure to communicate an adequate warning involves such questions, as are here at issue, as to location and presentation of the warning.

Moreover, “such suits are grounded on either a strict liability or negligence theory, [and] proximate cause is a necessary element of the plaintiff’s case.” Questions of adequacy of a warning and proximate cause resulting from a complete lack of warning or an inadequate warning are “peculiarly questions for the jury.”

Key contends that the trial court should have granted its motions because the plaintiff failed to present sufficient proof of proximate cause. Key argues that there was insufficient proof that a warning would have avoided injury, i.e., that the plaintiff would have purchased a different vehicle. In support of this argument, Key cites evidence it presented at trial that (1) no other vehicle sold at that time had a different restraint mechanism such as a locking latch plate; and (2) vehicles with web sensors sold in the United States at that time were not set to be triggered during a rollover crash. Key also contends that Mr. Bruner’s testimony that he would have purchased a different car had an adequate warning been provided is too speculative to support his claim.

As an initial matter, the fact that alternative belting mechanisms may or may not have been produced at that time is beside the point. Mr. Bruner could have selected any number of different vehicles that would have been less likely to have a rollover occur than the Jeep had he been appropriately apprised of the risk of ejection despite proper belting. The defendant cites to no prior precedent requiring a plaintiff alleging a failure to warn claim to provide evidence of the particular alternate products he would have chosen had an “adequate” warning been included, and we decline to adopt such a requirement at this time.

Despite Key’s argument that Mr. Bruner’s testimony is insufficient, such testimony has been upheld as legally sufficient to create a question of fact. Moreover, in addition to Mr. Bruner’s testimony, the plaintiff also presented testimony of a witness at the scene of the accident who heard Ms. Bruner’s dying declarations as she tried to grasp why she had been ejected from the vehicle when she had been properly belted. Coupled with Mr. Bruner’s testimony that Ms. Bruner was emphatic about seat belt usage, this testimony authorized a finding that Ms. Bruner did not understand that a risk still existed for ejection when an occupant of a vehicle is properly belted or that an adequate warning by Key would have prevented the harm.

To the extent that Key argues that Chrysler’s warning in its owner’s manual was adequate and thus, Key had no additional duty to warn, Key failed to raise this issue at trial. Accordingly, this argument presents nothing for this Court to review on appeal. And even assuming that this issue was before us, the argument made by Key is one of adequacy, which would be a fact question for the jury. To the extent that Key argues that its duty to warn was nullified because Chrysler would have prevented it from adding a warning, it is without moment. Key’s duty is determined as a matter of law and not as a matter of Chrysler’s rules.

2. In two enumerations of error Key contends that the trial court erred by admitting Meyer’s testimony about and video of simulations regarding the effect of certain rotational forces on the seat belt retractor mechanism over Key’s objection at the hearing on the motion in limine and at trial.

Models, maps, sketches, and diagrams (as distinguished from duplicates) are by their nature generally not confusable with real evidence, and are admissible simply on the basis of testimony that they are substantially accurate representations of what the witness is endeavoring to describe. Some discretionary control in the trial court is generally deemed appropriate, however, since exhibits of this kind, due to inaccuracies, variations of scale, etc., may on occasion be more misleading than helpful. Nevertheless, when the trial court has exercised its discretion to admit, it will only rarely be found in error, at least if potentially misleading inaccuracies have been pointed out by witnesses for the proponent, or could have been exposed upon cross-examination.

Decided November 19, 2015

Swift, Currie, McGhee & Hiers, C. Bradford Marsh, Ashley W. Broach; Bondurant, Mixson & Elmore, Frank M. Lowrey IV, for appellant.

In this instance, the simulation in question was not produced in order to recreate the exact accident, which Meyer testified was not possible; instead, it was produced in order to explain certain scientific principles, which Key’s expert agreed it did. The hypothesized accident variables, such as vehicle roll rate and angle of the seat belt retractor at impact, which Key contends the video failed to reproduce, were thoroughly explained to the jury during Meyer’s testimony and the testimony of Key’s expert.

Use of a videotape by an expert to illustrate the expert’s testimony is generally permissible. Here, [Meyer] created a model to explicate certain [principles of physics] and taped a demonstration of those principles in action. The transcript indicates that the video [ ] was used for demonstrative purposes only, and contrary to [Key’s] claim, the record does not reflect its admission in evidence. There was no error.

Judgment affirmed.

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

Cowsert & Avery, Craig C. Avery; Webb, Tanner, Powell, Mertz & Wilson, Anthony O. L. Powell; Robin F Clark; Anderson, Tate & Carr, Melody A. Glouton; Beasley, Allen, Crow, Methvin, Portis & Miles, Christopher D. Glover, for appellees.

       DaimlerChrysler AG (“Chrysler”), which manufactured the Jeep, was not a party to the litigation.

       (Citations and punctuation omitted.) Wilson Foods Corp. v. Turner, 218 Ga. App. 74 (1) (460 SE2d 532) (1995).

       Investigators never determined what caused the Jeep to leave the roadway.

         (Citations and punctuation omitted.) Wilson Foods, 218 Ga. App. at 75 (1).

       Id.

       Id.

       See Morris v. Harley Davidson Motor Co., Case No. 3:09-CV-74 (III) *10 (M.D. Ga., Jul. 7, 2010); Thomas v. Hubtex Maschinenbau GmbH & Co. KG, Case No. 7:06-CV-81 (II) (4) *31-34 (M.D. Ga., Sept. 23, 2008) (denying motion for summary judgment as to failure to warn claim because a fact question existed as to proximate cause based on the employer’s testimony that it communicated product warnings to employees and that plaintiff was a safe employee).

       See, e.g., Sherman v. Dev. Auth. of Fulton County, 320 Ga. App. 689, 695-696(4) (740 SE2d 663) (2013) (“The law in Georgia is that because the appellate courts are for correction of errors of law, issues which have not been ruled on by the trial court may not be raised on appeal.”) (punctuation omitted).

       See Camden Oil Co. v. Jackson, 270 Ga. App. 837, 841-843 (1) (b) (609 SE2d 356) (2004) (failure to adequately communicate a warning is not defeated by a plaintiff’s failure to read existing warnings); Thornton v. E.I. Du Pont De Nemours & Co., 22 F3d 284, 289 (III) (b) (1994) (“The general rule in Georgia is that the adequacy of the warning is an issue for the jury. Whether adequate efforts were made to communicate a warning to the ultimate user and whether the warning if communicated was adequate are uniformly held questions for the jury.”); Beam v. Omark Industries, Inc., 143 Ga. App. 142, 145 (1) (237 SE2d 607) (1977).

       See Giordano v. Ford Motor Co., 165 Ga. App. 644, 644-645 (1) (299 SE2d 897) (1983).

       (Punctuation omitted.) J. B. Hunt Transp., Inc. v. Brown, 236 Ga. App. 634, 636 (1) (b) (512 SE2d 34) (1999), quoting 2 McCormick on Evidence, § 213, pp. 12-13.

       (Footnote omitted.) Cottrell, Inc. v. Williams, 266 Ga. App. 357, 363-364 (2) (b) (596 SE2d 789) (2004).


author: PHIPPS, Presiding Judge.

text:
    A15A0978.
    PRABNARONG v. OUDOMHACK.
    (780 SE2d 393)
   PHIPPS, Presiding Judge.

In this appeal, we review the question of whether a Georgia trial court properly exercised emergency jurisdiction when it, in contravention of an order issued by a court in the state of Washington awarding physical custody of a minor child to the child’s father, awarded temporary custody of the child to the child’s maternal uncle after the death of the child’s mother (who had been the primary custodial parent and had resided with the child in Georgia at the time of her death). Because there was no basis for the trial court’s exercise of emergency jurisdiction, we reverse.

The pertinent facts of this appeal are undisputed. The mother of the minor child, V. P., and the child’s father, Sirichai Prabnarong, were divorced by decree entered in a Washington court on December 20,2005. Pursuant to a parenting plan the court incorporated into the divorce decree, the mother was awarded primary physical custody of V. P., and later moved with V. P. to Georgia. The mother remarried and had another child. V. P. resided in Georgia for nine years before her mother died on October 15, 2014; she lived with her mother and stepfather. V. P.’s maternal grandparents and uncle resided nearby in Georgia. After the divorce (and before the mother’s death), the father had continued to live in Washington, and had exercised visitation with V. P. during the child’s summer breaks from school.

In November 2014, after V. P.’s mother died, V. P.’s father obtained from the same Washington court that had issued the divorce decree and parenting plan an order awarding him primary physical . custody of V. P. Days later, V. P.’s maternal uncle filed in the Superior Court of Gwinnett County a motion for an emergency hearing, and a petition requesting that the divorce decree and parenting plan that had been entered in Washington in 2005 be registered in Georgia, and that the Georgia court modify the parenting plan by ordering that he be awarded joint legal and primary physical custody of V. P, “with [V. P.’s father] continuing to have summer parenting time as has been the case since 2005.” The uncle asserted in his petition that V. P.’s father “has threatened to mistreat [V. P.] by removing her from everything she knows, including her stepfather, younger sister, aunts, uncles, maternal grandparents, friends, teachers and classmates.” The uncle presented as an exhibit to his petition an “Affidavit of Election of [V. P.]” wherein then 13-year-old V. P. expressed her desire to “visit with [her father], but stay in Georgia.” V. P. averred that she elected to live with her stepfather and uncle on a permanent basis, and she acknowledged that her uncle was asking the court to order that he be her permanent custodian, and that her father have visitation rights. V. P. attached to her affidavit two handwritten documents — one entitled, “Why I want to stay in GA,” and the other entitled, “Why I don’t want to stay in WA.”

V. P.’s father responded to the uncle’s petition by filing in the Gwinnett action a pleading entitled, “Registration of Foreign Judgment . . . and Motion to Enforce.” He sought to register the custody order he had obtained from the Washington court after V. P.’s mother had died, which order awarded him primary physical custody of V. P.

After a hearing on the matter, the Gwinnett court entered an order which provided that the Washington divorce decree “is hereby made the Order of this Court.” In the same Gwinnett order, the court recognized the November 12, 2014 Washington order that the father had presented for registration, which order awarded primary physical custody of V. P. to her father; and the court stated that “[i]t is undisputed that upon the Mother’s death, legal custody of the Child is with the [Father].” Nonetheless, the court found that it had emergency jurisdiction pursuant to OCGA § 19-9-64 (a) “based upon the Affidavit of Election of [V. P] and the handwritten attachments thereto, that [V. P] has been subjected to or threatened with mistreatment or abuse.” The court then ordered that V. P. “shall remain in the physical custody and care of the [uncle] pending transfer of the case to the Juvenile Court of Gwinnett County and appointment of a guardian to determine the proper permanent physical custodian of [V. P.].”

Upon the father’s appeal of that order, he enumerates two errors. First, he contends that “[t]he trial court erred by not enforcing the foreign judgment of child custody [he had] registered with the Gwinnett County Court.” But, as the Gwinnett court recognized the Washington order which placed primary custody of V. P. with her father, the pertinent issue appears to be, as the father contends in his second enumerated error, whether “[t]he trial court erred by exercising temporary emergency jurisdiction . . . where the circumstances and well-being of the child did not demand immediate action.”

“Jurisdiction is a question of law to which appellate courts apply a de novo standard of review.” “Except as otherwise provided in Code Section 19-9-64, a court of this state may not modify a child custody determination made by a court of another state,” unless certain circumstances exist that are not pertinent here. Pursuant to OCGA § 19-9-64 (a),

[a] court of this state has temporary emergency jurisdiction [to modify a child custody determination made by a court of another state] if the child is present in this state and... it is necessary in an emergency to protect the child because the child ... is subjected to or threatened with mistreatment or abuse.

The handwritten documents V. P. attached to her affidavit provided the following. In the document entitled, “Why I want to stay in GA,” V. P. stated that she desired to remain in Georgia because she felt safe here, she needed to “be there for” her younger sister, she loved the school she attended, she made good grades in school, and she knew everybody at school. V. P. expressed concern that the credits she was earning for high-school-level courses would not transfer to any school she would attend in Washington.

In the document entitled, “Why I don’t want to stay in WA,” V. P. stated that she did not want to reside in Washington because it was not safe there. She stated that “once when [she] was about 6 or 7 years old,” her father permitted someone she did not know to supervise her. V. P. stated that on another occasion, her father had left her at a public swimming pool in the sole care and custody of a cousin; V. P. did not state the age of that cousin. And finally, V. P. stated that sometimes she feared her stepbrother because he kept guns and knives, and he smoked in his room and drank.

In Rozier v. Berto, this court held that there was no true emergency which required the Georgia court to exercise emergency jurisdiction pursuant to OCGA § 19-9-64 (a) for the protection of the child, where the child was in the physical custody of the noncustodial parent who sought the temporary order pursuant to OCGA § 19-9-64 (a), and that parent’s version of the facts (that the child was filthy, improperly clothed, and generally neglected in the custodial parent’s care) did not present an “immediate danger” to the child. In Jackson v. Sanomi, the Supreme Court of Georgia, citing Rozier, held that the non-custodial mother’s allegations that her child feared returning to the foreign country where the child resided with his father (the custodial parent) because of ongoing violence there did not meet the requisite criteria pursuant to OCGA § 19-9-64 (a) and the Georgia trial court was not authorized to exercise temporary emergency jurisdiction to contravene an order entered by a foreign state that had awarded physical custody of the child to the father.

And in Anderson v. Deas, where a mother sought to invoke the jurisdiction of a Georgia court pursuant to OCGA § 19-9-64 (a), this court held that the trial court was fully authorized to decline to exercise emergency jurisdiction, on the ground that the child was in no “immediate danger” because she continued to be in the custody of the parent who sought the temporary order pursuant to OCGA § 19-9-64 (a), and that “there was no true emergency which required the Georgia court to exercise jurisdiction for the protection of the child.” The mother in Anderson had alleged that the father had been threatening to kill the mother and harm the. child, and that during a subsequent phone conversation, the father screamed at the child and threatened to beat the child the next time he saw her.

In this case, there was no true emergency which required the Georgia court to exercise jurisdiction for the protection of V. P. The child, who was 13 years old at the commencement of this (Georgia) custody case, was in the physical custody of her uncle who was petitioning for a change of custody, and was in no immediate danger under any version of the facts alleged in her affidavit and attachments, i.e., alleged neglect by her father when she was six or seven years old and fear of her stepbrother because he kept weapons and he smoked and drank. Nor are we persuaded that, as the uncle asserts, certain consequences of V. P. going to live with her father in Washington — that she would no longer live with her stepfather or half-sister, or near her maternal relatives and friends in Georgia — amounted to an act of mistreatment or abuse by V. P.’s father and were sufficient to invoke the trial court’s emergency jurisdiction pursuant to OCGA § 19-9-64 (a).

Decided November 19, 2015.

Pearson Law Group, Romero T. Pearson, for appellant.

Margaret G. Washburn, Eric A. Ballinger, for appellee.

“The general rule is that the court where the parent with legal custody resides has the exclusive right to award change of custody.” Given that the Georgia court recognized the Washington order which awarded the father legal custody of V. P. and that V. P.’s allegations of neglect by her father and fear of her stepbrother arose from acts that had allegedly occurred and circumstances that had allegedly existed in Washington, the uncle’s claims should be presented in Washington.

Notably, the order from which the father appeals runs afoul of another statutory requirement. If a previous child custody determination exists, as in this case, “the temporary order must specify a period that the court considers adequate to allow the person seeking the temporary order to obtain an order from the court maintaining continuing jurisdiction over the custody of the child[ ] .” “The order issued in this state remains in effect until an order is obtained from the other state within the period specified or the period expires.” Here, the trial court failed to specify in its order any period of time within which the uncle must obtain an order from the Washington court.

Judgment reversed.

Doyle, C. J., and Boggs, J., concur.

       V. P. was born on June 12, 2001.

       See OCGA § 19-9-86 (b) (“A court of this state shall recognize and enforce, but may not modify, except in accordance with Part 2 of this article, a registered child custody determination of a court of another state”).

        In the Interest of M. M., 315 Ga. App. 673, 674 (1) (727 SE2d 279) (2012) (footnote omitted); see generally Zinkhan v. Bruce, 305 Ga. App. 510, 511 (699 SE2d 833) (2010) (“Since the superior court’s decision as to whether it had subject matter jurisdiction to consider the . . . petition for custody was based on an application of law to undisputed facts, we apply a de novo standard of review.”) (citation and punctuation omitted).

       OCGA § 19-9-63.

       230 Ga. App. 427 (496 SE2d 544) (1998).

       Id. at 429.

       292 Ga. 888 (742 SE2d 717) (2013).

       Id. at 890.

       273 Ga. App. 770 (615 SE2d 859) (2005).

       Id. at 771 (1) (a).

       Id. (punctuation and footnote omitted).

       Id. at 770.

       See generally Jackson, supra; Anderson, supra at 770-771; Rozier, supra.

        Matthews v. Matthews, 238 Ga. 201 (232 SE2d 76) (1977) (citations omitted); see Chatman v. Palmer, 328 Ga. App. 222, 224 (1) (761 SE2d 616) (2014); OCGA § 19-9-23 (a).

       See generally Rozier, supra at 429 (although father contended that his child may have been neglected by the mother who was the custodial parent, such neglect, if it existed, arose and was discovered by the father in the state where the mother lived with the child, and the father could have presented his claims in that state).

        Taylor v. Curl, 298 Ga. App. 45, 46 (679 SE2d 80) (2009) (citation and punctuation omitted; emphasis supplied). See OCGA § 19-9-64 (c).

       OCGA § 19-9-64 (c).