author: Phipps, Chief Judge.

text:
    A14A0080.
    MATHIS v. THE STATE.
    (761 SE2d 836)
   Phipps, Chief Judge.

Following a jury trial, Jonas Mathis was found guilty of armed robbery and aggravated assault. The trial court sentenced Mathis on both crimes. Mathis appeals, contending that the trial court erred by failing to merge the aggravated assault and armed robbery convictions, and by finding that trial counsel provided ineffective assistance. For the reasons that follow, we hold that the two offenses did merge, and thus the conviction and sentence for aggravated assault must be vacated and the case remanded for resentencing on that crime. We find no other grounds for reversal, however, and we otherwise affirm the judgment below.

Viewed in the light most favorable to support the verdict, the evidence showed the following. S. C. testified that he was at home on July 24, 2010 when, between 11:30 p.m. and 12:00 midnight, his friend Sarettia Mackey came to the door and asked him to come outside. S. C. walked outside, where he was struck in the head from behind; he believed the assailant used hands and fists to strike him. S. C. fell to the ground, and two men kicked him repeatedly as he lay on the ground; Mackey stood and watched. While S. C. was on the ground, one of the assailants struck him in the face with a car battery charger, and the assailants took from his pants pocket his wallet, which contained cash, and his cell phone. One assailant poured gasoline on S. C. while he was on the ground and said, “light him up.” S. C. begged them not to, and, when the men looked away, S. C. fled back into the house. The two male assailants and Mackey then left.

Mackey testified that earlier on the date of the incident she had been riding in Mathis’s vehicle with him and his brother, Brian Hurt. Mackey asked Mathis to drive her to S. C.’s house, which he did. The group later left S. C.’s house, and, a short time afterwards, Mathis told Mackey: “if you let me rob [S. C.], we can split the money.” The group returned to S. C.’s house, and Mackey asked S. C. to come outside; Mathis and Hurt stood at the side of the house. When S. C. came outside, Mathis approached, and, using his hands, struck S. C. repeatedly. S. C. fell to the ground. Mathis kicked him several times as he lay on the ground, saying “Give me the money, give me the money.” S. C. replied that he had no money. Mathis “went through all [S. C.’s] pockets.” Mackey added that, besides hitting S. C. with his fists and kicking him, Mathis grabbed a battery charger, hit S. C. in the face, grabbed a gasoline can and poured gasoline on him, and asked for a lighter. Mackey told Mathis to stop. “Then, after that, that’s when he had — that’s when he kept going through his pockets and we left.”

A witness (B. M.) testified that he had been incarcerated with Mathis in the Putnam County Sheriff’s Detention Center. Mathis, whom he had known most of his life, talked to B. M. at the detention center about the charges pending in this case. Mathis told B. M. that he had hit S. C. when S. C. “came out on the porch to talk to the girl,... and knocked him down”; when S. C. was down, Mathis struck him with a battery charger, poured gasoline on him, and took his wallet and cash. B. M. stated that he and Mathis had “[q]uite a few” conversations about the incident, and that the conversations occurred “either in the end of November or beginning of December” 2010.

1. Mathis contends that the trial court erred by failing to merge his conviction for aggravated assault into his conviction for armed robbery, asserting that “[t]here was no proof of a fact required by either count which the other count did not also require.” Whether offenses merge is a legal question, which we review de novo.

“[Mathis] is partly correct. Because aggravated assault does not require proof of any element that armed robbery does not, convictions for both offenses will merge — but only if the crimes are part of the same act or transaction.”

In determining whether the aggravated assault and armed robbery were part of the same act or transaction, we consider when the armed robbery began and when it concluded. The evidence as set forth above shows that the armed robbery began when the assailants, who had gone to S. C.’s home with the intent to rob him, used offensive weapons (here, hands, fists, feet and a battery charger) to take his property. These assaults immediately preceded or were contemporaneous with the taking of S. C.’s property. The armed robbery ended when, after demanding money and assaulting S. C., the perpetrators took the property (then left). The crimes were part of the same act or transaction. Consequently the aggravated assault conviction merged into the armed robbery conviction as a matter of fact. Therefore, the aggravated assault conviction and the sentence entered for it must be vacated and the case remanded to the trial court for resentencing. The armed robbery conviction is affirmed.

2. Mathis contends that the trial court erred by denying his motion for a new trial based on ineffective assistance of trial counsel.

To prevail on his ineffective assistance of trial counsel claim, [Mathis] must show that his trial counsel rendered constitutionally deficient performance and that actual prejudice of constitutional proportions resulted. Strickland v. Washington[. ] To show sufficient prejudice, [Mathis] must show that there is a reasonable probability (i.e., a probability sufficient to undermine confidence in the outcome) that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.

“The criminal defendant must overcome the strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct.”

As a general rule, matters of reasonable tactics and strategy, whether wise or unwise, do not amount to ineffective assistance of counsel. Matters of trial tactics, even if they appear in hindsight to be questionable, are grounds to find counsel ineffective only if the tactical decision is so patently unreasonable that no competent attorney would have chosen it.

Failure to satisfy either prong of the Strickland v. Washington standard is fatal to an ineffective assistance claim. “We accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” In order to evaluate Mathis’s ineffectiveness claims, we must examine the evidence presented at trial and at the hearing on the motion for new trial.

(a) Mathis challenges trial counsel’s failure to object to the testimony of B. M., because the state gave the defense written notice of its intent to call him as a witness only four days before trial, when OCGA § 17-16-8 (a) requires notice not later than ten days prior to trial.

Although the statute requires the prosecuting attorney to furnish to the defense not later than ten days prior to trial, the names and other identifying information of the State’s trial witnesses, the court may “for good cause” allow an exception to that requirement “in which event the defense shall be afforded an opportunity to interview such witnesses prior to the witnesses being called to testify.”

Trial counsel testified at the hearing on the motion for new trial that he had known, possibly weeks before trial, the substance of B. M.’s expected testimony, from conversations trial counsel had with the state’s attorney; that trial counsel had not interviewed B. M. before trial; that he was surprised at the detail of B. M.’s trial testimony, though he did not think that interviewing B. M. would have made much, if any, difference; and that hearing the testimony for the first time at trial did not make his cross-examination of B. M. any less effective. Indeed, trial counsel thoroughly cross-examined B. M. at trial, eliciting testimony about his criminal history (which included forgery charges) and psychiatric issues. And on cross-examination, B. M. admitted that he hoped that testifying for the state in Mathis’s case would help him in the criminal cases pending against him. Under the circumstances, Mathis has not shown a reasonable probability that the outcome of the trial would have been different had the state provided the witness’s name any sooner than it did.

(b) Mathis contends that trial counsel failed to investigate Mathis’s claim that he and B. M. were either not detained in the same facility or would not have had access to each other at the time of Mathis’s alleged confession to B. M. At the hearing on the motion for new trial, a jail administrator testified that Mathis and B. M. were in the same dormitory or cell block from October 30, 2010 through November 20, 2010. The administrator “[couldn’t] say they didn’t have contact [in December], but they were not in the same dormitory.” Thus, Mathis did not show that further investigation by counsel would have revealed testimony that would have been favorable to him, and that the failure to so investigate affected the outcome of the trial.

(c) Mathis contends that trial counsel failed to investigate and present Mathis’s alibi witnesses at trial. Mathis asserts that two individuals were willing to testify that he was elsewhere on the night in question, but that trial counsel either did not speak with them or failed to investigate their information after he spoke with them.

At the hearing on the motion for new trial, trial counsel testified that the purported alibi witnesses were members of Mathis’s family, that he had spoken with “[a]ll the people that [Mathis] identified might be helpful.” Trial counsel explained that he did not call them as witnesses because he believed that their testimony was not valuable (regarding the time of evening) or was not credible.

“The defense of alibi involves the impossibility of the accused’s presence at the scene of the offense at the time of its commission. The range of the evidence in respect to time and place must be such as reasonably to exclude the possibility of presence.” The expected testimony did not make Mathis’s presence at the scene impossible, or reasonably exclude the possibility of his presence. Mathis’s fiancée’s expected testimony was that he was “at home . . . the whole entire day with me, the kids, and the neighbor’s kids, because I had to work that day from 6:00 to 2:00”; Mathis’s sister’s expected testimony was that Mathis was “at home” that night, at “[a]bout 11:00,11:30”; notably, neither witness’s expected testimony included any information about the distance between “home” and the crime scene.

Trial counsel testified that he had made a strategic decision not to call the two alibi witnesses, based on how the trial was progressing and considering the alibi witnesses’ credibility and the quality of their expected testimony. “Judicial scrutiny must be ‘highly deferential’ to the strong presumption that counsel’s conduct might be considered sound trial strategy.” Trial counsel’s decision not to call these witnesses was strategic, and that strategy was reasonable under the circumstances.

Further, even if trial counsel’s performance was deficient because he failed to call these two individuals as alibi witnesses, Mathis did not show any resulting prejudice. The expected testimony would not have rebutted the overwhelming evidence connecting Mathis to the crimes, including Mackey’s and B. M.’s testimony that Mathis committed the crimes.

In assessing the prejudicial effect of counsel’s failure to call a witness (whether that failure resulted from a tactical decision, negligent oversight, or otherwise), a petitioner is required to make an affirmative showing that specifically demonstrates how counsel’s failure would have affected the outcome of his case.

There is no reasonable probability that the outcome of the trial would have been different had the expected testimony been presented.

(d) Mathis contends that trial counsel “failed to utilize clear impeachment evidence,” namely, S. C.’s testimony from a probation revocation hearing purportedly showing that S. C. had failed to identify Mathis in a photographic array. But at trial, when asked about the photographic array presented to him soon after the crimes occurred and whether he had been certain about the identity of the person who had hit him, S. C. testified that he had “recognized that face, more or less,” and had answered that he “cannot say” he was certain as to the person’s identity; S. C. explained that he had gotten only one “look” at the assailants during the incident, and that he had been “passing by really fast [when he fled] and . . . couldn’t remember.” S. C. was thoroughly cross-examined regarding the identifications. Mathis has failed to show prejudice from the failure to use the cited evidence at trial.

(e) Mathis complains that trial counsel was ineffective in that he failed to move for a directed verdict as to the armed robbery charge even though there was no competent evidence of an armed robbery. He contends that the evidence did not show that the battery charger was used before S. C.’s property was taken (i.e., to accomplish the theft).

Mathis was not entitled to a directed verdict on the armed robbery charge because the evidence, viewed in the light most favorable to the jury’s verdict, as set out in Division l, was sufficient to enable the jury to find that the perpetrators used offensive weapons either before or contemporaneous with the taking of S. C.’s property, and that Mathis was guilty beyond a reasonable doubt of armed robbery. Therefore, trial counsel was not ineffective for failing to move for a directed verdict on the armed robbery charge.

(f) Mathis complains of trial counsel’s failure: (i) to move to suppress the photographic array, and (ii) to object to improper comments by the state’s attorney during closing argument.

(i) Mathis contends that trial counsel “had notice of a potential problem” with the photographic array, but failed to investigate and move to suppress the evidence. But he makes no argument or showing as to why the array should have been suppressed. “As [Mathis] has failed to make a strong showing that such an objection or motion would have been successful, he has not shown prejudice.”

(ii) Mathis asserts that trial counsel should have objected to the prosecutor’s comment during closing argument that he was surprised by S. C.’s testimony that he did not remember looking at a photographic array to identify Mathis. According to Mathis, the comment “sent a strong message to the jury that there was a clear prior identification of Mr. Mathis by the victim,” when the evidence did not support such a message.

First, we do not agree with Mathis that the comment indicated that S. C. had made a clear prior identification. Second, the trial court instructed the jury to return a verdict based on the evidence, and instructed that closing arguments by the attorneys were not evidence. Thus, “we do not think the jury was impressed either way by [the prosecutor’s comment], and [we] find any error harmless.”

(g) Considering the combined effect of any assumed deficiencies set out above, and in light of the overwhelming evidence of Mathis’s guilt, there is no reasonable probability that, but for such assumed errors, the result of the trial would have been different. Accordingly, Mathis has not shown ineffective assistance of trial counsel.

Decided July 15, 2014 —

Vernon H. Smith, for appellant.

Fredric D. Bright, District Attorney, Dawn M. Baskin, Assistant District Attorney, for appellee.

Judgment affirmed in part and vacated in part, and case remanded for resentencing.

Ellington, P. J., and McMillian, J., concur.

       OCGA § 16-8-41 (a) (“A person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon[.]”).

       Former OCGA § 16-5-21 (a) (“Aperson, commits the offense of aggravated assault when he or she assaults:... (2) With a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury[.]”).

       Mathis challenges the sufficiency of the evidence in the context of trial counsel’s failure to move for a directed verdict on the armed robbery charge. See Division 2 (e), infra. See Smith v. State, 316 Ga. App. 175 (1) (728 SE2d 808) (2012) (“The standard of review for the denial of a motion for a directed verdict of acquittal is the same as for determining the sufficiency of the evidence to support a conviction: the evidence must be sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense. The evidence must be viewed in the light most favorable to support the verdict.”) (citations omitted); see generally Nelson v. State, 285 Ga. 838, 839 (2) (684 SE2d 613) (2009).

         Count 1 of the indictment charged Mathis as a party to the crime of armed robbery (with Hurt and Mackey), alleging that he, with the intent to commit theft, took property of value (to wit: a cell phone, billfold and U. S. currency) from the person of S. C., by use of an offensive weapon (to wit: a battery charger). Count 2 charged Mathis as a party to the crime of aggravated assault (with Hurt and Mackey), alleging that he made an assault upon S. C. with objects (to wit: hands, fists, feet and a battery charger) which, when used offensively against a person, are likely to or actually do result in serious bodily injury. (Mackey pled guilty prior to trial; Hurt was tried jointly with Mathis and found guilty only of robbery by force, as a lesser offense of armed robbery.).

        Haynes v. State, 322 Ga. App. 57, 60 (2) (743 SE2d 617) (2013).

        Thomas v. State, 289 Ga. 877, 880 (3) (717 SE2d 187) (2011) (citations and punctuation omitted).

        McGlasker v. State, 321 Ga. App. 614 (741 SE2d 303) (2013); see Bradley v. State, 292 Ga. 607, 610 (1) (c) (740 SE2d 100) (2013); Thomas, supra at 880-881 (3).

       See generally Long v. State, 287 Ga. 886, 889 (2) (700 SE2d 399) (2010) (“For purposes of armed robbery, the term ‘offensive weapon’ includes not only weapons which are offensive per se, such as firearms loaded with live ammunition, but also embraces other instrumentalities not normally considered to be offensive weapons in and of themselves but which may be found by a jury to be likely to produce death or great bodily injury depending on the manner and means of their use.”) (citations and punctuation omitted).

       See Tookes v. State, 310 Ga. App. 710, 711 (713 SE2d 882) (2011) (“The force or intimidation essential to robbery must either precede or be contemporaneous with, and not subsequent to, the taking.”) (citation and punctuation omitted).

       See Thomas, supra; Broyard v. State, 325 Ga. App. 794, 798 (1) (b) (755 SE2d 36) (2014); McGlasker, supra; Taylor v. State, 304 Ga. App. 395, 398-399 (1) (696 SE2d 686) (2010).

        Bradley, supra; see Sears v. State, 292 Ga. 64, 73-74 (6) (734 SE2d 345) (2012); Broyard, supra at 798; McGlasker, supra at 617 (2).

       466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984).

        Humphrey v. Riley, 291 Ga. 534, 536-537 (II) (731 SE2d 740) (2012) (citations and punctuation omitted).

        Robinson v. State, 277 Ga. 75, 76 (586 SE2d 313) (2003).

        Dyer v. State, 295 Ga. App. 495, 498 (1) (672 SE2d 462) (2009) (citations and punctuation omitted).

        Goodwin v. Cruz-Padillo, 265 Ga. 614, 615 (458 SE2d 623) (1995).

        Robinson, supra at 76 (citation and punctuation omitted).

        Leopold v. State, 324 Ga. App. 550, 551 (751 SE2d 184) (2013).

        Puga-Cerantes v. State, 281 Ga. 78, 79-80 (3) (635 SE2d 118) (2006) (citation and punctuation omitted).

       Regarding the reason for the delay in notice, at the hearing on the motion for new trial, in his examination of trial counsel, the state’s attorney suggested that B. M.’s identity had not been disclosed to the defense earlier because the state wanted to avoid endangering the witness. The record shows that B. M. was moved out of the Putnam County jail four days before trial.

       See Mann v. State, 276 Ga. App. 720, 723 (624 SE2d 208) (2005); see generally Puga-Cerantes, supra at 80 (3).

       See Grant v. State, 295 Ga. 126, 132 (5) (c) (757 SE2d 831) (2014).

       OCGA § 16-3-40.

       S. C. testified that Mackey arrived at his house between 11:30 p.m. and 12:00 midnight.

        Hargrove v. State, 291 Ga. 879, 881 (2) (734 SE2d 34) (2012) (citation and punctuation omitted).

       See id.; Lewis v. State, 294 Ga. 526, 529-530 (755 SE2d 156) (2014); Green v. State, 291 Ga. 287, 297-298 (10) (d) (728 SE2d 668) (2012).

        Goodwin, supra.

       See Lewis, supra; Hall v. State, 292 Ga. 701, 704-705 (4) (f) (743 SE2d 6) (2013); Green, supra.

       See Hall, supra at 705 (4) (g); Hargrove, supra at 882-883 (2) (b), (c).

       See Ibokes, supra.

       See id.

       Supra.

       See Tookes, supra.

       See Jimmerson v. State, 289 Ga. 364, 369 (2) (d) (711 SE2d 660) (2011); Nelson, supra; see generally Tookes, supra; Dulcio v. State, 292 Ga. 645, 655 (3) (j) (740 SE2d 574) (2013).

       See Hargrove, supra at 882 (2) (b); see generally Morris v. State, 322 Ga. App. 682, 686 (4) (a) (746 SE2d 162) (2013).

       The state’s attorney followed that remark with: “I can’t explain that to you. But I can explain this to you. This is a guy who was terrified and trying to be very careful.”

        Stubbs v. State, 315 Ga. App. 482, 485 (4) (727 SE2d 229) (2012) (citation and punctuation omitted).

       See Humphrey, supra at 536-537, 545 (II) (K).

       Id.


source: Caselaw Access Project

author: Branch, Judge.

license: Public Domain

text:
    A14A0190.
    ALEXANDER v. THE STATE.
    (761 SE2d 844)
   Branch, Judge.

Calvin Alexander brings this appeal from the denial of his timely-filed motion to withdraw his guilty plea. In his sole enumeration of error, Alexander argues that his lawyer’s failure to advise him, prior to the entry of his guilty plea, that he would be ineligible for parole constituted ineffective assistance and entitles him to withdraw that plea. Pursuant to the Supreme Court of Georgia’s decision in Williams v. Duffy, 270 Ga. 580, 581 (1) (513 SE2d 212) (1999), we find that Alexander’s counsel was effective, as a matter of law. Accordingly, for reasons explained more fully below, we affirm the order of the trial court.

The record shows that on March 14, 2011, Alexander entered a non-negotiated Alford plea in Fulton County Superior Court under which he pled guilty to three counts of aggravated child molestation, two counts of statutory rape, three counts of child molestation, and two counts of enticing a child for indecent purposes. At the plea hearing, Alexander stated that he was entering the plea because he believed doing so was in his best interest; that he understood he was entering a non-negotiated guilty plea with the sentence to be decided by the judge; that he had been advised of the maximum and minimum sentence he could receive for each charge; and that he understood that the State was asking for a sentence of 30 years, but that the judge did not have to honor that request.

The State had previously filed notice that it was seeking to have Alexander sentenced as a recidivist pursuant to OCGA § 17-10-7 (a), and at the plea hearing the State introduced evidence of Alexander’s two prior felony convictions. Following the introduction of this evidence, Alexander’s attorney acknowledged that under OCGA § 17-10-7 the trial court had no option but to sentence Alexander to the statutory maximum of thirty years on each count of aggravated child molestation, but asked that the court require only ten years of the sentence be served in incarceration and that sentences on all counts be imposed to run concurrently. The trial court then sentenced Alexander to 30 years on each of the aggravated child molestation charges with 15 years to be served in incarceration and the balance on probation; 15 years to serve on each of the statutory rape charges; and 15 years to serve on each of the child molestation charges, with all sentences to run concurrently.

After being sentenced, Alexander filed a motion to withdraw his guilty plea on the grounds that it had resulted from ineffective assistance of counsel, due to trial counsel’s failure to advise him that such a plea would render him ineligible for parole. The motion was heard by the same judge who presided at Alexander’s plea hearing and imposed his sentence. As Alexander’s lawyer’s statements at the plea hearing made clear, he was aware that Alexander was being sentenced under the recidivist statute and that Alexander would therefore be required to serve in incarceration whatever portion of the sentence the trial judge did not suspend or probate. At the motion hearing, however, the lawyer testified he did not have any recollection of having discussed with his client the fact that his client would not be eligible for parole if he pled guilty. Trial counsel also testified that Alexander had rejected an initial plea offer by the State and had elected to proceed to trial. After witnessing general voir dire of the jury panel, however, Alexander told his attorney that he wanted to enter a guilty plea. Trial counsel then discussed with Alexander the fact that they did not know what sentence the judge would impose, but that he suspected it would be a longer sentence than that proposed by the State in its initial plea offer.

Alexander also testified at the motion hearing and stated that he would not have entered a guilty plea had he known that he would be ineligible for parole. Alexander further testified, however, that he decided to plead guilty because he had doubts about whether his lawyer was prepared for trial and because the trial judge told him that if a jury found him guilty, she would sentence him to 60 years.

At the close of the hearing, the trial court denied Alexander’s motion to withdraw his guilty plea, and it subsequently entered a written order to that effect, finding that Alexander’s plea “was knowingly, voluntarily, and intelligently entered with the competent advice of counsel.” Alexander then filed this appeal.

Once a defendant has been sentenced he will be allowed to withdraw a guilty plea only where he “establishes that such withdrawal is necessary to correct a manifest injustice,” e.g., that the plea resulted from ineffective assistance of counsel or that it was not entered voluntarily and knowingly. Green v. State, 324 Ga. App. 133 (749 SE2d 419) (2013) (citations and punctuation omitted). In determining whether such a manifest injustice occurred “the trial court is the final arbiter of all factual issues raised by the evidence” and its decision on whether to allow the withdrawal of a guilty plea will not be disturbed absent a manifest abuse of discretion. Bailey v. State, 313 Ga. App. 824, 825 (723 SE2d 55) (2012) (citation and punctuation omitted). Where, as here, a defendant asserts that his guilty plea is invalid because it resulted from ineffective assistance of counsel, the trial court was required to apply the two-prong test set forth in Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984), under which a defendant must prove both that his trial counsel performed deficiently and that he suffered prejudice as a result of that performance. Id. A defendant’s ineffective assistance claim will fail where he cannot meet his burden of proof as to either prong of the Strickland test and under such circumstances we need not examine the other prong. Hargrove v. State, 291 Ga. 879, 881 (2) (734 SE2d 34) (2012).

We begin with the issue of whether Alexander’s trial counsel performed deficiently in advising Alexander with respect to his guilty plea. “To prove that the performance of his lawyer was deficient, [Alexander] must show that the lawyer performed his duties ... in an objectively unreasonable way, considering all the circumstances, and in the light of prevailing professional norms.” Washington v. State, 294 Ga. 560, 564-565 (3) (755 SE2d 160) (2014), citing Strickland, 466 U. S. at 687-688 (III) (A). The State argues that we must affirm the trial court’s order because, as a matter of law, the collateral consequences doctrine prevents Alexander from proving the deficient performance prong of Strickland. Alexander, however, argues that the collateral consequences doctrine applies only where a defendant’s motion to withdraw his guilty plea is based on a claim that the plea was neither knowing nor voluntary, and that it cannot apply where such a motion is based on a claim of ineffective assistance of counsel.

The collateral consequences doctrine stems from the rule that “[a] s a matter of constitutional due process, before a defendant pleads guilty, the trial court must advise him of the ‘direct’ consequences of entering the plea, but not of all the potential ‘collateral’ consequences, in order for the guilty plea to be considered knowing and voluntary.” Smith v. State, 287 Ga. 391, 394 (2) (a) (697 SE2d 177) (2010), citing Brady v. United States, 397 U. S. 742, 755 (90 SCt 1463, 25 LE2d 747) (1970). “Direct consequences may be described as those within the sentencing authority of the trial court, as opposed to the many other consequences to a defendant that may result from a criminal conviction.” Smith, 287 Ga. at 394 (2) (a) (citations omitted). Consequences over which the trial court has no control are considered collateral consequences. Id. The Supreme Court of Georgia has previously held that ineligibility for parole represents a collateral consequence of a guilty plea as “eligibility or ineligibility for parole is not a ‘consequence’ of a plea of guilty, but a matter of legislative grace or a consequence of the withholding of legislative grace” and therefore has “only a collateral effect” on a defendant’s sentence. Williams, 270 Ga. at 581 (1) (noting that parole ineligibility “in no way lengthen[s] the sentence itself, but condition [s] satisfaction of that sentence upon [a defendant’s] incarceration for the designated ... period” specified in the sentence of the court) (citations omitted).

As the foregoing demonstrates, the collateral consequences doctrine was originally formulated for application in those cases where a defendant seeks to withdraw his guilty plea based on an alleged violation of his Fifth Amendment right to due process, i.e., where the defendant’s motion to withdraw his guilty plea is based on a claim that the plea was neither knowing nor voluntary. See Smith, 287 Ga. at 394 (2) (a). Despite its origins, however, both the Supreme Court of Georgia and this Court have applied the doctrine in cases where a defendant was seeking to withdraw his guilty plea based on an alleged violation of his Sixth Amendment right to effective assistance of counsel. See Williams, 270 Ga. at 582 (1) (holding that trial counsel’s failure to inform a defendant entering a negotiated guilty plea that he would be ineligible for parole “does not constitute ineffective assistance of counsel,” because parole ineligibility was “a collateral consequence of the negotiated sentence”); Toro v. State, 319 Ga. App. 39, 46 (3) (c) (735 SE2d 80) (2012) (same); Hall v. State, 313 Ga. App. 670, 673 (2) (722 SE2d 392) (2012) (same). It is these cases on which the State relies to support its argument that Alexander cannot prove the deficient performance prong of his ineffective assistance claim.

Alexander, however, argues that the United States Supreme Court decision in Padilla v. Kentucky, 559 U. S. 356 (130 SCt 1473, 176 LE2d 284) (2010), requires us to hold that trial counsel’s failure to inform a client of the collateral consequences of a guilty plea constitutes deficient performance. Specifically, Alexander argues that Padilla held that the collateral consequences doctrine could not apply to cases where a defendant’s motion to withdraw his guilty plea is premised on a claim of ineffective assistance of counsel, rather than on a claim that the plea was not entered knowingly and voluntarily. And because Alexander’s trial counsel admitted that he could not remember discussing with Alexander the impact a guilty plea would have had on his parole eligibility, Alexander reasons that the trial court erred when it denied his motion to withdraw that plea. We find that Alexander’s argument as to the inapplicability of the collateral consequences doctrine to an ineffective assistance of counsel claim has significant support in the law.

In Padilla, the Supreme Court noted that it had “never applied a distinction between direct and collateral consequences to define the scope of constitutionally ‘reasonable professional assistance’required under Strickland.” 559 U. S. at 365 (II). Rather, the Court made clear that the test for whether counsel is constitutionally effective is whether counsel’s performance was “ ‘reasonableness under prevailing professional norms.’ ” Id. at 366 (III) (quoting Strickland, 466 U. S. at 688 (III) (A)). After analyzing the impact of deportation on criminal defendants who were otherwise legal residents of this country, the Padilla court concluded that “[t]he weight of prevailing professional norms supports the view that counsel must advise her client regarding the risk of deportation” associated with a guilty plea and that a failure to do so constitutes deficient performance. Id. at 367 (III) (citations omitted). In reaching this conclusion, however, the Padilla court expressly declined to decide whether the collateral consequences doctrine is inapplicable in all cases where a defendant is seeking to withdraw his guilty plea based on alleged violation of his Sixth Amendment right to effective counsel. 559 U. S. at 365 (II) (whether a court should never distinguish between direct and collateral consequences when analyzing a Sixth Amendment claim “is a question we need not consider in this case because of the unique nature of deportation”).

Shortly after Padilla was decided, the Supreme Court of Georgia considered whether a trial court’s failure to inform a criminal defendant of the risk of deportation resulting from his guilty plea violated the defendant’s Fifth Amendment rights, thereby invalidating the plea. Smith, 287 Ga. 391-392. The Smith court applied the collateral consequences doctrine and concluded that the trial court’s failure to inform the defendant of the deportation risk did not render his guilty plea unknowing or involuntary. The court reasoned:

[D] espite its discussion of the importance of deportation risks to some defendants, in the end the [United States] Supreme Court [in Padilla] did not extend the direct consequences doctrine to that issue, or reject the basic distinction between direct and collateral consequences in determining whether a defendant’s guilty plea was knowingly and voluntarily entered. In the absence of such a binding directive to do so, we decline to do so either.

287 Ga. at 397 (2) (c) (emphasis in original). In reaching this conclusion, however, the Supreme Court of Georgia appeared to disapprove the application of the collateral consequences doctrine to a defendant’s claim that he received ineffective assistance of counsel with respect to his guilty plea. In discussing Padilla, the court explained:

Direct and collateral consequences relate to the trial court’s duty to ensure that guilty pleas are knowingly and voluntarily entered as a matter of Fifth Amendment due process, while ineffective assistance of counsel relates to the defense lawyer’s duty pursuant to the Sixth Amendment. See Williams[,] 270 Ga. at 583 ... (Fletcher, P. J., dissenting) (noting that “defense counsel’s obligation to his client in entering a guilty plea is not defined by a trial court’s duties in accepting a guilty plea,” and “[w]hile the two concepts are interrelated, the more logical approach is to recognize that a defendant’s sixth amendment claim of ineffective assistance of counsel is separate from a due process claim that a plea was not knowingly and voluntarily made”).
Padilla confirms this analytical distinction. The U. S. Supreme Court specifically declined to rely on the direct versus collateral consequences doctrine in determining the ineffective assistance claim presented, instead applying Strickland’s familiar evaluation of whether counsel acted reasonably in light of the prevailing professional norms for criminal defense lawyers. This approach clarifies that defense counsel may be ineffective in relation to a guilty plea due to professional duties for the representation of their individual clients that set a standard different — and higher — than those traditionally imposed on trial courts conducting plea hearings for defendants about whom the judges often know very little. This makes both analytical and practical sense.

Id. See also Taylor v. State, 304 Ga. App. 878, 882-883 (1) (698 SE2d 384) (2010) (applying Padilla “to conclude that even if registration as a sex offender is a collateral consequence of a guilty plea, the failure to advise a client that his guilty plea will require registration is constitutionally deficient performance”).

Despite the language in Smith that appeared to disapprove the application of the collateral consequences doctrine to an ineffective assistance claim, however, that decision did not expressly overrule Williams v. Duffy, 270 Ga. 580. And given that Smith’s discussion of the applicability (or inapplicability) of the collateral consequences doctrine to a claimed Sixth Amendment violation was not central to the holding of that case, we are not at liberty to construe Smith as invalidating Williams. See Zepp v. Brannen, 283 Ga. 395, 397 (658 SE2d 567) (2008) (statements in an opinion “concerning some rule of law or legal proposition not necessarily involved nor essential to determination of the case in hand” are nonbinding dicta) (citation and punctuation omitted). Moreover, in the absence of a decision from our Supreme Court overruling Williams, we remain bound by its holding that trial counsel’s failure to inform a defendant that his guilty plea would render him ineligible for parole cannot constitute constitutionally deficient performance, as a matter of law. See Pak v. Ga. Dept. of Behavioral Health & Developmental Disabilities, 317 Ga. App. 486, 488-489 (731 SE2d 384) (2012) (“this Court has no authority to overrule or modify a decision made by the Supreme Court of Georgia, as ‘(t)he decisions of the Supreme Court shall bind all other courts as precedents’ ”), quoting Ga. Const, of 1983, Art. VI, Sec. VI, Par. VI. See also Cargile v. State, 194 Ga. 20, 22 (1) (20 SE2d 416) (1942) (the constitutional provision that decisions of the Supreme Court shall bind the Court of Appeals as precedents is applicable in all cases). Accordingly, we are constrained to apply Wiliams and find that because parole ineligibility is a collateral consequence of a guilty plea, Alexander cannot prove that his trial counsel performed deficiently by failing to discuss that consequence with him. We therefore affirm the trial court’s order denying Alexander’s motion to withdraw his guilty plea.

Decided July 15, 2014 —

Kenneth D. Kondritzer, for appellant.

Paul L. Howard, Jr., District Attorney, Lenny I. Krick, Assistant District Attorney, for appellee.

Judgment affirmed. Barnes,

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

       Alexander pled guilty pursuant to North Carolina v. Alford, 400 U. S. 25 (91 SCt 160, 27 LE2d 162) (1970), and thereby pled guilty without admitting his guilt. See Wyman v. State, 267 Ga. App. 118 (598 SE2d 855) (2004) (Alford “allows a guilty plea despite a claim of innocence where there is strong evidence of guilt that negates the claim of innocence and provides a factual basis for the guilty plea”).

       OCGA § 16-6-4 (c).

       OCGA § 16-6-3 (a).

       OCGA § 16-6-4 (a) (1).

       OCGA§ 16-6-5 (a). The State elected to nolle prosse one count of aggravated child molestation and one count of enticing a child for indecent purposes.

       These included a 1991 conviction for theft of U. S. mail, and a 1998 conviction on four counts of possession of a firearm by a convicted felon. There was also some discussion about the fact that Alexander had been convicted in 2007 for possession of cocaine, but the State apparently did not introduce a certified copy of that conviction, as none appears in the record.

       OCGA § 17-10-7 (a) provides that where a defendant who has been previously convicted of a felony is convicted of a subsequent felony, that defendant “shall be sentenced to undergo the longest period of time prescribed for the punishment of the subsequent offense of which he or she stands convicted, provided that, unless otherwise provided by law, the trial judge may, in his or her discretion, probate or suspend the maximum sentence prescribed for the offense.” The crimes at issue occurred between January 2005 and June 2006, and at that time the statutory maximum sentence for aggravated child molestation was 30 years. See OCGA § 16-6-4 (d) (1) (2005).

       The court merged the charges of enticing a child for indecent purposes with the charges of aggravated child molestation.

       Alexander also argued below that because he was not made aware of his ineligibility for parole, his plea was not entered knowingly and voluntarily. Alexander has not pursued this argument on appeal.

       Trial counsel further testified at the new trial hearing that at the time he represented Alexander, he understood that persons convicted of aggravated child molestation are ineligible for parole and must instead serve the entire sentence imposed by the trial court. At the time of Alexander’s crimes, however, the law required only that a person convicted of aggravated child molestation serve a minimum of ten years in prison. See OCGA § 17-10-6.1 (2005) (defining aggravated child molestation as a serious violent felony and providing that any person convicted of that crime “shall be sentenced to a mandatory minimum term of imprisonment of ten years and no portion of the mandatory minimum sentence imposed shall be suspended, stayed, probated, deferred, or withheld by the sentencing court and shall not be reduced by any form of pardon, parole, or commutation of sentence by the State Board of Pardons and Paroles”) (emphasis supplied). Given that the trial court sentencedAlexander to the statutory maximum of 30 years on each of the aggravated child molestation charges and required him to serve 15 years in incarceration with the remainder on probation, it appears that his ineligibility for parole results from the fact that he was sentenced as a recidivist, and not from the fact that he was convicted of aggravated child molestation. See OCGA § 17-10-7 (a). The trial judge’s statements at the hearing on Alexander’s motion support this conclusion.

       It appears from the record that the State’s plea offer would have required a ten-year period of incarceration.

       In this case, the trial court’s order found that counsel had provided competent advice to Alexander and did not address the prejudice prong of Strickland.

       To be clear, we view Smith as holding that the distinction between direct and collateral consequences remains relevant to the determination of whether a defendant’s guilty plea was entered knowingly and voluntarily and that the impact such a plea would have on a non-citizen defendant’s resident status constitutes a collateral consequence.

       Notably, in Williams the Supreme Court expressly overruled Hutchison v. State, 230 Ga. App. 143 (495 SE2d 618) (1998), in which a panel of this Court held “that [trial] counsel’s failure to advise [the defendant] of parole ineligibility under OCGA § 17-10-6.1” constituted deficient performance under Strickland and that this Sixth Amendment violation authorized the withdrawal of the defendant’s guilty plea. 270 Ga. at 582 (1).


author: McFADDEN, Judge.

text:
    A14A0388.
    WARD v. PRE-ENGINEER SYSTEMS et al.
    (761 SE2d 850)
   McFADDEN, Judge.

John Ward appeals from a superior court order reversing the decision of the State Board of Workers’ Compensation granting his request for nurse case management services. The court concluded that Ward was not entitled to such services because they were not an authorized workers’ compensation benefit at the time of his injury. We reverse.

In 1973, Ward was injured when he fell approximately 40 feet while working on a construction site. He suffered various injuries from the fall, including a traumatic brain injury that has resulted in ongoing cognitive impairment. The employer, Pre-Engineer Systems, and its insurer have paid for various workers’ compensation benefits arising from the fall. Among other things, Ward received rehabilitation services from 1999 to 2009, when those services were suspended. In 2011, Ward filed a request to reinstate the rehabilitation services. The request was denied in an administrative order, and Ward appealed, seeking a hearing before an administrative law judge.

At the outset of the evidentiary hearing, the administrative law judge noted that Ward was seeking services in the form of nurse case management and that the employer argued that there was no legal authority to award those services at the time of the injury in 1973. Ward presented evidence of his complex medical needs and his declining cognitive abilities, which has resulted in his wife being appointed as his permanent guardian. The administrative law judge found that the evidence clearly and overwhelmingly demonstrated that Ward has had many difficulties with his medical treatment and “is entitled to the designation of a rehab supplier/nurse case manager to assist the employee with medical treatment in this claim.” In reaching this conclusion, the administrative law judge, among other things, rejected the employer’s argument that Ward is not entitled to such services because they were not listed as a benefit at the time of the injury in 1973, and “were not granted as a workers’ compensation benefit until 1975.”

The employer appealed the decision to the Appellate Division of the State Board of Workers’ Compensation, which upheld the award and adopted the administrative law judge’s findings and conclusions as its own. The employer then appealed to the superior court, which reversed the board’s decision, concluding that Ward “is not entitled to receive nurse case management services, because this service was not available under the workers’ compensation laws in Georgia on the date of the Claimant’s work related accident in 1973.” We granted Ward’s application for discretionary review, and this appeal followed.

Ward asserts that the superior court erred in holding that he is not entitled to nurse case management services on the ground that such benefit was not available at the time of his 1973 accident. We agree.

Workers’ compensation benefits may be
retroactively applied in those cases which involve preexisting compensable on-the-job injuries, since to do so would not render compensable an injury which would not otherwise be compensable but would, at most, merely expand the scope of treatment required to be provided for an injury the compensability of which is not in question.

Interchange Village v. Clark, 185 Ga. App. 97, 99 (2) (363 SE2d 350) (1987) (citations, punctuation and emphasis omitted).

An ongoing workers’ compensation case provides a unique context for retroactivity analysis, .. . since once an employer’s obligation to pay for a work-related injury is established, the case may continue for decades. During this time the Board will be promulgating and changing rules which define and redefine the scope of the employer’s obligations and the worker’s rights with respect to medical care; and it would not make sense to freeze those obligations and rights as they were at the time of the injury when the need for medical care continues. Accordingly, workers’ compensation statutes and rules which do not render compensable an injury which would not otherwise be compensable, but which merely affect the scope of treatment required, will be applied to ongoing cases where the injury preceded the effective date of the law.

Chatham County Dept. of Family & Children Svcs. v. Williams, 221 Ga. App. 366, 366-367 (1) (471 SE2d 316) (1996).

In this case, it is undisputed that Ward suffered a compensable work-related injury in 1973. Thus, even assuming that the employer was correct in claiming that the rehabilitation/nurse case management service awarded by the board was not an available benefit until after the date of the injury, such an award did not render compensable an otherwise non-compensable injury, and instead merely affected the scope of the benefit allowed in this ongoing workers’ compensation case. See Interchange, supra at 99-100 (2) (employee entitled to in-home attendant care even though such a benefit was not available at the time of the injury); Hopson v. Hickman, 182 Ga. App. 865, 867 (1) (357 SE2d 280) (1987) (affirming award of attendant nurse care per retroactive application of OCGA § 34-9-200 (a) benefits provision for medical and other treatment, items and services). Accordingly, the superior court erred in reversing the appellate division’s decision on the ground that nurse case management services were not an available workers’ compensation benefit on the date of the accident.

Decided July 15, 2014 —

Stow, Garvin & Glenn, Nancy Glenn, for appellant.

Swift, Currie, McGhee & Hiers, Timothy C. Lemke, for appellees.

Judgment reversed.

Andrews, P. J., and Ray, J., concur.

       We note that in the record two similar, but different, names for the employer appear. For purposes of this opinion, we use the same name used on the notice of appeal and listed on the hoard’s decision.


author: Dillard, Judge.

text:
    A14A0425.
    ROGERS v. WOODRUFF.
    (761 SE2d 852)
   Dillard, Judge.

In this interlocutory appeal, J anice D. Rogers challenges the trial court’s denial of her motion for summary judgment on Cory Wood-ruff’s personal-injury claims related to an incident that occurred at Rogers’s home when a deck railing gave way and Woodruff fell to the concrete below, resulting in serious injuries. On appeal, Rogers argues that the trial court erred in denying her motion for summary judgment. For the reasons set forth infra, we agree and reverse.

Viewed in the light most favorable to Woodruff, the nonmovant, the record reflects that on the night of July 20, 2008, Woodruff was a social guest at the home of Janice Rogers. More specifically, Woodruff, who was then a college student at the University of West Georgia, was visiting with Rogers’s daughter, Kelly, also a student, at Kelly’s apartment located above her parents’ detached garage. It is undisputed that Janice Rogers purchased the property in 2006, and the stairway and deck leading up to the apartment over the detached garage were built in 1996 by the property’s previous owner, who was a residential builder and who swore by affidavit that the county inspected the improvements not long after construction.

Earlier on the day in question, Woodruff and Kelly visited her parents who were away from home, camping overnight at a lake. But after this visit, Woodruff and Kelly went back to her apartment and got ready to go out to a bar in nearby downtown Carrollton. Along with another friend, Deanna Echols, Woodruff and Kelly made their way to the bar, where they danced and consumed alcoholic beverages until approximately 2:30 a.m. The amount of alcohol that Woodruff consumed both before and after arriving at the bar is hotly disputed, with Woodruff claiming that he imbibed only two drinks at the bar and nothing before and others testifying that Woodruff consumed multiple alcoholic beverages at the bar, including up to four shots of liquor, and that he consumed liquor at the apartment before heading out for the evening.

What is undisputed is that while at the bar, the trio of friends ran into Devan Hayes, whom Woodruff and Kelly knew from school and who was working as a bouncer that night. And although Kelly considered Woodruff a close friend, Woodruff had deeper feelings for Kelly and became visibly upset over the course of the evening as she increasingly directed her attention toward Hayes. Indeed, at one point after 2:00 a.m., an emotionally distraught Woodruff telephoned his father from the bar’s parking lot because he was so grieved by the situation (particularly because Woodruff believed Hayes had treated girls poorly in the past).

Not long after this call, Kelly, Echols, and Hayes found Woodruff in the parking lot and, before heading back to the apartment, Kelly invited Hayes to join them there after he was done working. It is again highly disputed as to how much alcohol Woodruff consumed upon returning to the apartment, with Woodruff denying that he had anything alcoholic to drink, and Kelly, Echols, and Hayes (who arrived at 3:30 a.m.) all testifying that Woodruff, although already highly intoxicated, continued to imbibe multiple shots and mixed drinks. The tenor between Hayes and Woodruff at this point is also disputed, with Kelly and Echols contending that Woodruff was an out-of-control drunk who was openly hostile toward Hayes, and both Hayes and Woodruff contending that the two were on much more congenial terms.

Nevertheless, although the atmosphere surrounding the decision to do so is disputed, it is undisputed that Hayes and Woodruff went outside of the apartment after 4:00 a.m. According to Woodruff, he wanted to discuss how Hayes should treat Kelly. And because Kelly’s apartment was located above her parents’ garage, it was accessible only by an exterior stairway with a somewhat spacious deck landing at the top entrance to the abode. Hayes and Woodruff were on this landing when the incident causing Woodruff’s injuries occurred, while Kelly and Echols remained inside the apartment.

According to Kelly and Echols, Woodruff and Hayes were outside only briefly before the women heard loud voices, saw and heard Hayes get slammed up against the door, and then heard another loud sound that, upon exiting the apartment, they surmised must have been Woodruff falling through the deck railing to the ground below. Woodruff, on the other hand, testified that while he could recall nothing after he hit the ground, the fall occurred after he leaned up against the railing. He also flatly denied fighting with Hayes. As for Hayes, he testified that Woodruff fell after stumbling backwards and falling into the railing, but he too denied fighting.

Woodruff was seriously injured as a result of the fall and subsequently filed suit against Kelly Rogers’s parents, Janice and Darryl. During the course of discovery, Woodruff deposed an expert in construction, who testified that his examination of the deck and railing revealed that the railing violated building-code requirements for minimum height and load capacity. The Rogers eventually filed a motion for summary judgment, which the trial court denied as to Janice but granted as to Darryl because the evidence established that Janice (hereinafter “Rogers”) was the sole owner of the property where the incident occurred. Specifically, the trial court found that genuine issues of material fact existed as to whether Rogers breached a duty owed to Woodruff by failing to have the deck inspected when there was evidence that the deck was not built to code. We granted Rogers’s application for interlocutory appeal, which we now consider.

At the outset, we note that on appeal from the denial of a motion for summary judgment, we view the evidence de novo in the light most favorable to the nonmoving party. Of course, summary judgment is appropriate when “there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.” With this guiding principle in mind, we turn now to Rogers’s enumerations of error on appeal.

Rogers contends that the trial court erroneously identified the standard of care owed to Woodruff, a licensee, when the deck railing was a static condition and, accordingly, misapplied the law to the facts.

It is undisputed that Woodruff was visiting Rogers’s property as a social guest and, therefore, he was a licensee under Georgia law. A property owner incurs liability for breaching a duty to a licensee “only for wilfully or wantonly allowing a dangerous static condition ... to cause his injuries.” And “wanton conduct” has been described as “that which is so reckless or so charged with indifference to the consequences as to be the equivalent in spirit to actual intent to do harm or inflict injury.” Furthermore, a property owner has no duty to a licensee to keep his or her premises up to any standard of safety, “except that [it] must not contain pitfalls, mantraps, and things of that type.”

Here, the deck and railing did not amount to a mantrap or pitfall, the doctrine of which is “rested upon the theory that the owner is expecting a trespasser or a licensee and has prepared the premises to do him injury.” Indeed, a mantrap or pitfall is a “contrivance so dangerous in character as to imply a disregard of consequences or a willingness to inflict injury”* — for example, a vending machine booby-trapped with dynamite to discourage theft. Rogers argues that the deck and railing in the case sub judice constituted a static condition, which is “one that does not change and is dangerous only if someone fails to see it and walks into it.” The trial court did determine that the deck’s railing was a static condition; however, the court also determined that there was evidence that the railing in question was defective. And relying upon our decision in Hicks v. Walker, the trial court denied Janice Rogers’s motion for summary judgment.

Like the trial court, we also find that the deck amounted to a static condition; however, as in Hicks, the alleged cause of the injury—underlying defective construction—is more akin to a hidden peril. Nevertheless, we conclude that the trial court erred in denying summary judgment by relying upon Hicks.

In Hicks, we noted the general duty that a property owner owes to a licensee (i.e., not to wilfully or wantonly injure a licensee) and then quoted the well-established principle that it is “usually wilful or wanton not to exercise ordinary care to prevent injuring a person who is actually known to be, or may reasonably be expected to be, within the range of [a dangerous act being done or] a hidden peril on one’s premises.” Additionally, we emphasized that a property owner is subject to liability for physical harm caused to a licensee by a condition on the property owner’s land if, but only if,

(a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to licensees, and should expect that they will not discover or realize the danger, and (b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved.

Regrettably, in Hicks, we neglected to mention the third requirement, which is that “(c) the licensees do not know or have reason to know of the condition and the risk involved.”

The facts in Hicks involved a two-year-old child who was injured in a deck collapse during a barbeque hosted by the property owners. And although there was no evidence that the property owners had actual knowledge of the deck’s dangerous condition, we held that genuine issues of material fact existed as to whether the owners had constructive knowledge of such defects and whether they exercised ordinary care. Indeed, the facts established that the property owners’ son had recently built the deck, the deck was not built in accordance with codes in force at the time of construction, and the deck would not have passed an inspection. Thus, under the facts of Hicks, genuine issues of material fact remained as to whether the owners failed to exercise ordinary care to protect the injured child-licensee from the hidden peril of the defective deck because there was evidence by which a jury could have determined that the property owners should have known of the deck’s condition.

In stark contrast, here, the undisputed evidence shows that although one person testified that he had previously noticed that the stairway railing was wobbly, neither Kelly Rogers nor her parents were aware of any problem with the stairway or deck railing. And Woodruff himself testified that he saw no visible problem with the railing. Accordingly, there was no evidence of actual knowledge. Additionally, there was no evidence by which a jury could find constructive knowledge. Indeed, although Woodruff presented expert testimony to establish that the deck railing did not meet building-code standards in 2008, the expert witness did not know when the deck was built. Instead, the undisputed evidence showed that the deck was built by a prior owner of the property in 1996 and that the county inspected the improvement at that time. And there was no evidence to show that the deck did not meet applicable building-code standards when it was constructed in 1996 and inspected by the county.

Thus, because the undisputed evidence established that the deck and railing in question were built by a previous property owner ten years prior to Rogers’s purchase of the property and that the county inspected the improvement soon after its construction, we find the facts in the case sub judice wholly inapposite to those at issue in Hicks v. Waiter. Accordingly, because there is no evidence by which Rogers could be said to have superior knowledge of the deck railing’s allegedly dangerous condition, the trial court erred in denying her motion for summary judgment.

Judgment reversed.

Doyle, P. J., and Miller, J., concur in judgment only.

Decided July 15, 2014.

Beck, Owen & Murray, Charles D. Jones, for appellant.

Commander Pound Butler, Scott C. Commander, Lori E. Jolly, for appellee.

        See, e.g., Cmty. Marketplace Props., LLC v. SunTrust Bank, 303 Ga. App. 403, 404 (693 SE2d 602) (2010).

       We note in passing that it is undisputed that following Woodruff’s fall, Hayes immediately and heroically rendered aid to Woodruff until paramedics arrived, perhaps saving Woodruff’s life.

       Woodruff also filed suit against Devan Hayes, but he is not a party to this appeal.

         See, e.g., Cmty. Marketplace Props., LLC, 303 Ga. App. at 404 (“We apply a de novo standard of appellate review and view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.” (punctuation omitted)).

        Id. (punctuation omitted).

        See Thompson v. Oursler, 318 Ga. App. 377, 378 (733 SE2d 359) (2012) (“Georgia has adopted the rule that a social guest is not an invitee but is a licensee.” (punctuation omitted)); see also OCGA § 51-3-2 (a) (defining the characteristics of a “licensee”); Trulove v. Jones, 271 Ga. App. 681, 681 (1) (610 SE2d 649) (2005) (noting that a social guest is a licensee).

        Thompson, 318 Ga. App. at 378; see also OCGA § 51-3-2 (b) (“The owner of the premises is liable to a licensee only for willful or wanton injury.”); Trulove, 271 Ga. App. at 681 (1) (“[Appellant] was a social guest or licensee on the premises, and as such [Appellee] can only be liable for wilful or wanton injury.”).

        Trulove, 271 Ga. App. at 681 (1) (punctuation omitted).

        Id. at 682 (1) (punctuation omitted).

        Frank Mayes & Assoc., Inc. v. Massood, 238 Ga. App. 416, 418-19 (2) (518 SE2d 903) (1999) (punctuation omitted); accord Mansfield v. Colwell Constr. Co., 242 Ga. App. 669, 672 (530 SE2d 793) (2000).

        Massood, 238 Ga. App. at 419 (2) (punctuation omitted); see also Mansfield, 242 Ga. App. at 672 (“Examples of a mantrap include a spring gun or a trap or a dangerous condition hidden with sufficient cover to obscure it or to render it unobservable to one who approaches it.” (punctuation omitted)).

        McKinsey v. Wade, 136 Ga. App. 109, 111 (5) (220 SE2d 30) (1975).

        Bullard v. Marriott Int'l, Inc., 293 Ga. App. 679, 681 (2) (667 SE2d 909) (2008) (punctuation omitted).

       262 Ga. App. 216 (585 SE2d 83) (2003).

        See Thompson, 318 Ga. App. at 378 (deck was a static condition); Trulove, 271 Ga. App. at 682 (1) (deck with missing railing was a static condition); Davis v. Scott, 232 Ga. App. 493, 493 (502 SE2d 332) (1998) (stairway was a static condition).

        See Bragg v. Missroon, 186 Ga. App. 803, 804-05 (368 SE2d 564) (1988) (affirming denial of motion for summary judgment when decedent was electrocuted while ascending ladder on dock beside boathouse equipped with electrical door with wiring defects).

       262 Ga. App. at 218.

        Id.; accord Thompson, 318 Ga. App. at 378.

        Hicks, 262 Ga. App. at 218; accord Thompson, 318 Ga. App. at 378; Bragg, 186 Ga. App. at 804.

        Thompson, 318 Ga. App. at 378 (punctuation omitted); accord Bragg, 186 Ga. App. at 804. In Hicks, we also invoked the principle that “[ajfter the presence of a licensee is known, exactly the same acts of caution may be required of the owner to satisfy the legal duty as would be necessary if the licensee were invited,” 262 Ga. App. at 218, before citing duties ordinarily owed by property owners to invitees, not licensees, see id. at 218 & n.12 (citing Freyer v. Silver, 234 Ga. App. 243, 245 (2) (507 SE2d 7) (1998), for the proposition that “[i]n cases of defective construction, the owner is presumed to have notice of the danger”); id. at 218 & n. 13 (citing Freyer, 234 Ga. App. at 245 (2), for the proposition that an “owner’s duty to exercise ordinary care includes inspecting the premises to discover possible dangerous conditions of which the owner does not have actual knowledge, and taking reasonable precautions to protect invitees from dangers foreseeable from the use of the premises”); id. at 218 & n. 15 (citing Long Leaf Indus. v. Mitchell, 252 Ga. App. 343, 346-47 (3) (a) (556 SE2d 242) (2001), for the proposition that “evidence of nonconformity with code standards may be proof of a landowner’s superior knowledge of a defect under OCGA § 51-3-1,” which Code section applies to invitees). But see Bryant v. Rucker, 121 Ga. App. 395, 409 (2) (173 SE2d 875) (1970) (“As to a licensee the owner or occupier is under no duty to inspect the premises.”). As will be clear from our discussion infra, the use of this precedent in Hicks was entirely unnecessary to the holding in that case—i.e., that under the unique facts of Hicks, there was evidence by which the jury could find that the property owners had constructive knowledge of the deck’s defects. Accordingly, any reference to these duties in Hicks is dicta and of no precedential utility. See Hoesch Am., Inc. v. Dai Yang Metal Co., 217 Ga. App. 845, 847 (1) (459 SE2d 187) (1995) (indicating that the term “dicta” refers to language in a judicial opinion that is “unnecessary to the holding of the case”).

       262 Ga. App. at 216-17.

        Id. at 219.

        Id.

        Hicks, 262 Ga. App. at 217-18. Specifically, as to the allegedly defective construction, the facts showed that
      the deck failed at the point at which the deck was attached to the house, and the deck had been attached to the house with carpentry nails, though the codes required the use of hex bolts; contrary to code requirements, no flashing was used to protect the wood from water damage, and the wood was damaged as a result; the support posts were set on top of cinder blocks instead of being set into a foundation sufficient to support the weight load of the deck; and the posts were improperly “toe-nailed” into the deck.

        Id. at 217.

        Cf. Chisholm v. Fulton Supply Co., 184 Ga. App. 378, 380 (1) (361 SE2d 540) (1987) (“Appellant’s allegations as to a defect in the steps because of their construction is not supported by Atlanta’s adoption of its Building Code in 1983 when the building was built in 1922. The stairs were legal as a nonconforming use.” (punctuation omitted)); Ray v. Gallant-Belk Co. of Elberton, 147 Ga. App. 580, 581 (2) (249 SE2d 635) (1978) (“The stairs in question had been built over forty years previously and did not meet the standards of the Southern Building Code, which the City of Elberton had adopted by ordinance. They were consequently legal as a nonconforming use.”).

       262 Ga. App. 216.

        Compare Bragg, 186 Ga. App. at 805 (affirming denial of motion for summary judgment when evidence established that defects in wiring of electrical door for boathouse were “apparent and stood out” and “visibly defective,” creating genuine question of material fact “as to whether appellants should have known of the hazards created by the defects in wiring at their boat dock”), with Barksdale v. Nuwar, 203 Ga. App. 184, 184-85 (416 SE2d 546) (1992) (affirming grant of motion for summary judgment when evidence established that deck collapsed due to allegedly defective construction, but homeowner had no actual knowledge of defects and there was no evidence of constructive knowledge when deck was professionally built, homeowner personally inspected the deck, and deck appeared to be well constructed).

        See Jordan v. Bennett, 312 Ga. App. 838, 841 (1) (720 SE2d 301) (2011) (reversing denial of motion for summary judgment in case concerning licensee’s fall off of outdoor deck, and holding that “[b] ecause there [was] no evidence... that [appellant] wilfully or wantonly injured [appellee] or that he knowingly exposed her to a dangerous activity, hidden peril, pitfall, or mantrap, there [was] no evidence that [appellant] breached his duty of care to [appellee] such that he has any liability for her injuries”); Ruffin v. Ruffin, 159 Ga. App. 830, 830-31 (285 SE2d 261) (1981) (affirming grant of summary judgment to property owner on claim for injuries arising out of minor’s fall through rotten board on dock when plaintiff alleged, inter alia, that board was a hidden peril, but there was no evidence of actual knowledge or evidence to support a jury finding of constructive knowledge).


author: McFadden, Judge.

text:
    A14A0592, A14A0593.
    MARVIN HEWATT ENTERPRISES, INC. v. BUTLER CAPITAL CORPORATION; and vice versa.
    (761 SE2d 857)
   McFadden, Judge.

This dispute between a secured lender and a landlord arose after the entity that had borrowed from the former and rented from the latter in order to operate a convenience store went out of business. The lender and landlord had entered into a written agreement with one another. Under the terms of that agreement the lender had certain rights and the landlord certain duties upon termination of the lease. As to the lender’s claim of breach of that agreement, the central question is whether a termination occurred. We find the evidence — which establishes without dispute that the landlord facilitated a sale of the business to another of its tenants — sufficient to send that question to a jury. We likewise find the evidence of that facilitation sufficient to authorize a finding that the landlord participated in an exercise of dominion or control over the secured property inconsistent with the lender’s rights and therefore sufficient to send the lender’s conversion claim to a jury. But the landlord was entitled to summary judgment on the claim founded on the equitable theory of unjust enrichment because the parties had a contract. As to the counterclaim, we find no abuse of discretion in the trial court’s denial of the lender’s motions for discovery sanctions and to strike an affidavit.

Case No. A14A0S92

1. Facts.

A trial court may grant summary judgment when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. OCGA § 9-11-56 (c). “We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant.” Citifinancial Svcs. v. Varner, 320 Ga. App. 170 (739 SE2d 477) (2013) (citation omitted).

Viewed in the light most favorable to the lender, Butler Capital Corporation, as the nonmovant, the record shows that the landlord, Marvin Hewatt Enterprises, is the owner of a commercial property on which sits a convenience store/gas station. In 1999, the landlord entered into a multi-year lease of the property, and in 2007, Hamilton Mill Food & Gas, Inc. (hereinafter “the tenant”) assumed that lease. At that time, the tenant borrowed $250,000 from the lender and gave the lender a security interest in the store’s assets as collateral for the loan. In connection with that loan transaction, the lender and the landlord negotiated the landlord agreement at issue in these appeals. The landlord agreement provided, among other things, that upon termination of the lease, the lender would have the option of stepping into the tenant’s shoes:

That Landlord hereby agrees that, if the Lease is terminated for any reason,... the Landlord shall enter into a new lease of the Premises with the Lender at the option of the Lender. All provisions of the new lease between Landlord and Lender... shall be commensurate with those provisions of the Lease as if the Lease were not then terminated.

In April 2011, the tenant informed the landlord that it “wanted out” of the convenience store, and the landlord agreed to “let [it] go.” As part of that agreement, the tenant paid all of the rent it owed the landlord through April 2011. Not wanting the store to stop operating, the landlord instructed the tenant of another of its properties (the “successor tenant”) to “buy” and take over the store. The successor tenant met with the tenant’s owners at the store; an employee of the landlord and an outside auditor also were present. The auditor estimated the value of the inventory, and the successor tenant gave the tenant’s owners a check to buy the inventory. The successor tenant began operating the store under a monthly oral lease with the landlord.

In July 2011, the tenant defaulted on its loan with the lender, and the lender learned that the tenant was no longer operating the store. The lender then demanded money damages from the landlord. In an October 2011 letter, the landlord’s counsel responded that the tenant had “unilaterally abandoned” the premises and it offered to let the lender assume the lease, “provided all damages from the Tenant’s breach have been cured.” The lender rejected the offer and filed this action.

2. Breach of contract.

The landlord argues that the trial court erred in denying its motion for summary judgment on the lender’s breach of contract claim. The lender bases that claim on its contention that the events in April 2011 constituted a termination of the landlord’s lease with the tenant, triggering the requirement in the landlord agreement that the landlord give the lender the option of entering into a new lease. Although the landlord argues that, as a matter of law, the lease was not terminated, a fact question exists on this point that precludes summary judgment on the breach of contract claim.

As to whether the lease was terminated, our first question is whether the tenant surrendered the premises or abandoned the lease.

In landlord-tenant law, surrender exists when the tenant voluntarily gives up possession of the premises prior to the full term of the lease and the landlord accepts possession with intent that the lease be terminated. It differs from “abandonment,” as applied to leased premises, inasmuch as the latter is simply an act on the part of the lessee alone[.]

Black’s Law Dictionary, p. 1444 (6th ed. 1990). “To show a surrender, a mutual agreement between lessor and lessee that the lease is terminated must be clearly proved.” Circle K Stores v. T. O. H. Assocs., 318 Ga. App. 753, 757 (2) (734 SE2d 752) (2012) (citation omitted); accord Black’s Law Dictionary, supra, p. 1444. In addition,

[i]t has long been the rule in Georgia that a surrender of a lease by operation of law may arise from any condition of facts voluntarily assumed by the parties and incompatible with the continued existence of the relation of landlord and tenant between them. Where a landlord exercises a control over the premises inconsistent with the tenant’s right of occupation, he thereby discharges the tenant from liability for future rent, and a cancellation or rescission of the contract is thus effected by agreement of the parties, express or implied.

Savannah Yacht Corp. v. Thunderbolt Marine, 297 Ga. App. 104, 111 (2) (676 SE2d 728) (2009) (citations and punctuation omitted). Accordingly, a surrender, whether express or by operation of law, constitutes a termination of the lease.

Alternatively, if a tenant abandons a premises without the landlord’s agreement, the landlord has the option of terminating the lease. Meek v. Mallory and Evans, Inc., 318 Ga. App. 407, 410 (2) (734 SE2d 109) (2012); Lawson v. Crawford, 220 Ga. App. 447, 448 (469 SE2d 507) (1996). The landlord also may “obtain[ ] another tenant while holding the original tenant liable for any deficiency that may occur, or ... permit[ ] the premises to remain vacant while collecting the agreed-upon rent from the original tenant.” Lawson, 220 Ga. App. at 448 (citation and punctuation omitted).

The evidence viewed most favorably to the lender shows that the tenant asked to surrender the lease and that, in response, the landlord immediately found another tenant, entered into a lease with that successor tenant under different terms than its lease with the tenant, facilitated the transfer of the store’s assets from the tenant to the successor tenant, and did not seek to hold the tenant liable for any deficiencies in rent. The landlord’s corporate representative (see OCGA § 9-11-30 (b) (6)) testified that the tenant does not owe it any money. A factfinder could conclude from these actions that the landlord agreed to the tenant’s surrender of the lease and intended to terminate the lease. Even if the tenant’s departure was an abandonment, a factfinder still could conclude that the landlord opted to terminate the lease, in light of its decision to re-let the premises without seeking to recover a deficiency in rent from the tenant. Compare Sirdah v. North Springs Assocs., 304 Ga. App. 348, 351 (1) (696 SE2d 391) (2010) (where landlord expressly told abandoning tenant that it was not terminating leases, and proceeded to sue tenant for breach, landlord’s acceptance of key from tenant did not show intent to terminate).

Notwithstanding the existence of fact questions regarding whether it intended to terminate the lease, the landlord argues that it is entitled to summary judgment because the lease permitted it to terminate the tenant’s possession of the premises without terminating the lease. But the paragraph to which the landlord points, titled “Default by Tenant,” applies only if one of three conditions is met: if the tenant fails to pay rent, if it otherwise defaults on the lease, or if it files or has filed against it certain specified proceedings. Whether any of these conditions existed in April 2011 is in dispute. The landlord’s corporate representative testified that the tenant was current on its rent at that time. Although the landlord appears to take the position that the tenant’s departure was a breach of the lease, there is evidence that the landlord agreed to the departure. Moreover, the landlord did not give the tenant notice of any other defaults under the lease, as required by the “Default by Tenant” paragraph. Finally, the landlord has not alleged that any of the proceedings specified in that paragraph had been filed. For these reasons, the record does not show that, as a matter of law, the landlord was entitled to terminate the tenant’s possession without terminating the lease.

The landlord also argues that it is entitled to summary judgment because the lender turned down its belated offer for the lender to assume the lease. It is undisputed, however, that the landlord did not give the lender the option of entering into a new lease in April 2011, and by the time it made its offer in October 2011, a third party — the successor tenant — had taken over the business and sold some of the collateral subject to the lender’s security interest. Moreover, the October 2011 offer was conditional. Under these circumstances, the trial court did not err in denying summary judgment to the landlord on the breach of contract claim.

3. Conversion.

The landlord argues that it was entitled to summary judgment on the lender’s claim for conversion of the store assets in which it had a security interest. We disagree.

A secured creditor such as the lender
has a right of action for conversion if property subject to its security interest is disposed of without the creditor’s authorization. The elements of such a claim include the showing of a valid security interest in the debtor’s property, disposition of that property, absence of the creditor’s authorization for the disposition, and resulting damage to the creditor. An exercise of dominion or control over secured property which is inconsistent with the rights of the secured party is conversion, and this law applies to both the buyer and seller [of the collateral].

All Business Corp. v. Choi, 280 Ga. App. 618, 622 (2) (634 SE2d 400) (2006) (citations and punctuation omitted).

We agree that the evidence does not show that the landlord itself exercised dominion or control over the store assets in which the lender had a security interest. It is undisputed that the landlord was neither the buyer nor the seller of that property; instead, the tenant sold the property to and received payment directly from the successor tenant. And there is no evidence that the landlord acted, as an agent, on behalf of the tenant, as a principal, in the transaction. See generally Deere & Co. v. Miller-Godley Auction Co., 249 Ga. App. 797, 799 (1) (a) (549 SE2d 762) (2001) (an “agent... is liable if he assists in a conversion because he stands in the shoes of his principal”).

Nevertheless, the landlord is not entitled to summary judgment on the conversion claim. The lender also alleged in that claim that the landlord conspired with others to convert the secured property. A plaintiff may recover damages based on civil conspiracy by showing

that two or more persons combined either to do some act which is a tort, or else to do some lawful act by methods which constitute a tort. The conspiracy of itself furnishes no cause of action. The gist of the action is not the conspiracy alleged, but the tort committed against the plaintiff and the resultant damage. The essential element of the alleged conspiracy is proof of a common design establishing that two or more persons in any manner, either positively or tacitly, arrive at a mutual understanding as to how they will accomplish an unlawful design. After the conspiracy is formed, members of the conspiracy are jointly and severally liable for acts of co-conspirators done in furtherance of the conspiracy.

McIntee v. Deramus, 313 Ga. App. 653, 656 (722 SE2d 377) (2012) (citations and punctuation omitted). See also Parrish v. Jackson W. Jones, P.C., 278 Ga. App. 645, 649 (3) (629 SE2d 468) (2006). Compare OCGA § 16-4-8 (establishing criminal conspiracy as distinct offense).

A factfinder could conclude from the evidence in this case that the landlord and either or both the tenant and the successor tenant conspired to convert the lender’s secured property. There is evidence that the landlord procured the successor tenant for the specific purpose of buying the store assets from the tenant and in fact directed the successor tenant to buy the property. The landlord’s corporate representative admitted that the landlord was “involved] in getting [the successor tenant] there,” and the employee of the landlord who was present at the sale testified that he was there “to make sure [the tenant and the successor tenant] agreed on the inventory.” This evidence supports a finding that the landlord arrived at a mutual understanding with the tenant and/or the successor tenant as to how to dispose of the property in which the lender had a secured interest, without the lender’s authorization. Accordingly, we affirm the denial of summary judgment to the landlord on the conversion claim.

4. Unjust enrichment.

We agree with the landlord, however, that it was entitled to summary judgment on the lender’s claim for unjust enrichment. “The theory of unjust enrichment is basically an equitable doctrine that the benefitted party equitably ought to either return or compensate for the conferred benefits when there was no legal contract to pay.” Bedsole v. Action Outdoor Advertising JV, 325 Ga. App. 194, 200 (3) (750 SE2d 445) (2013) (citation and punctuation omitted). The doctrine applies when, as a matter of fact, there is no legal contract. Tuvim v. United Jewish Communities, 285 Ga. 632, 635 (2) (680 SE2d 827) (2009); Parks v. Thompson Builders, 296 Ga. App. 704, 706 (3) (675 SE2d 583) (2009); Ades v. Werther, 256 Ga. App. 8, 10 (1) (567 SE2d 340) (2002). “Where there is an express contract, there can be no recovery based upon an unjust enrichment theory.” Han v. Han, 295 Ga. App. 1, 4 (3) (a) (670 SE2d 842) (2008) (citation and punctuation omitted).

There is no dispute that the lender and the landlord had an express, legal contract addressing the landlord’s obligations to the lender. Consequently, as a matter of law the remedy of unjust enrichment is not available to the lender, and it cannot elect that remedy as an alternative to breach of contract, as it seeks to do. Compare Ades, 256 Ga. App. at 10 (1) (where existence of contract is jury question, plaintiff’s alternative claim for unjust enrichment can survive summary judgment). The trial court erred in denying summary judgment on this claim.

5. Attorney fees and punitive damages.

The landlord argues that the trial court erred in denying it summary judgment on the lender’s claims for attorney fees and punitive damages. We disagree. The landlord’s argument is that these claims fall with the lender’s primary claims. But as explained above, it is not entitled to summary judgment on the breach of contract and conversion claims.

Case No. A14A0593

6. Discovery sanctions.

The lender moved for the trial court to strike the landlord’s answer and enter judgment against it because some of the landlord’s discovery responses were false. The landlord acknowledged that certain of its initial discovery responses were incorrect and explained that its error arose out of the similarity of the names of the subject property and another of its properties. The trial court accepted that explanation and denied the motion.

We find no error. Trial courts
have broad discretion in controlling discovery, including imposition of sanctions, and appellate courts will not reverse a trial court’s decision on such matters unless there has been a clear abuse of discretion. This is because trial judges, through their direct involvement with the case, the parties, and the attorneys, and their familiarity with the actions of the parties in the conduct of discovery in similar cases that are properly brought to their attention, are in the best position to evaluate the parties’ conduct and to determine the appropriate level of sanctions.

Resource Life Ins. Co. v. Buckner, 304 Ga. App. 719, 734 (698 SE2d 19) (2010) (citations and punctuation omitted). The trial court was authorized to accept the landlord’s explanation. See Ford Motor Co. v. Conley, 294 Ga. 530, 547 (3) (a) (4) (757 SE2d 20) (2014) (trial court, through its direct supervision of discovery proceedings, has ability to assess conduct, demeanor, and credibility of parties and their counsel).

Decided July 15, 2014.

Mahaffey Pickens Tucker, Gerald Davidson, Jr., Andrew D. Standi, Mills & Hoopes, Steven M. Mills, Timothy S. Walls, for appellant.

Stephen H. DeBaun, for appellee.

7. Motion to strike affidavit.

The lender also moved to strike the affidavit of the landlord’s corporate representative based on discrepancies between the witness’s affidavit testimony and his later deposition testimony. The trial court denied the motion, stating that she had “given [the affidavit] proper consideration.”

We find no error. Notwithstanding the lender’s objections to the affidavit, the trial court was authorized to consider the admissible portions of the affidavit in ruling on the motion for summary judgment. Vickers v. Chrysler Credit Corp., 158 Ga. App. 434, 440 (4) (280 SE2d 842) (1981). The record does not show that the trial court abused her discretion in that regard. See Elrod v. Sunflower Meadows Dev., 322 Ga. App. 666, 669 (2) (745 SE2d 846) (2013) (“We review a trial court’s decision on a motion to strike for abuse of discretion.”) (citation omitted).

Judgment affirmed in part and reversed in part in Case No. Al 4A0592. Judgment affirmed in Case No. Al4A0593.

Andrews, P. J., concurs. Ray, J., concurs fully in Divisions 4, 6 and 7, and in judgment only in Divisions 1, 2, 3, and 5.

       We express no opinions regarding any rights the lender may have as to replacement inventory and any duties that the successor tenant may owe the lender. Those issues are not before us.