author: Mercier, Judge.

text:
    A16A0423.
    MURPHY v. FREEMAN et al.
    (787 SE2d 755)
   Mercier, Judge.

Nancy Murphy (Murphy) appeals the trial court’s grant of summary judgment and its order barring the parties and their counsel from directly contacting the trial court’s court reporter. Murphy argues that the trial court erred in granting Nan Freeman’s motion for summary judgment because issues of material fact remained, and that the trial court’s order barring either party from directly contacting its court reporter was in violation of numerous constitutional and statutory rights. Finding no error, we affirm.

“A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.” Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459, 459 (1) (486 SE2d 684) (1997) (citation omitted).

Viewed in this light, the record shows that this appeal arises out of a related child custody case filed against Murphy by her ex-husband (“John Murphy”) in April 2012. Murphy v. Murphy, 328 Ga. App. 767 (759 SE2d 909) (2014). Judge Quillian Baldwin, the trial judge in the child custody case, ordered both parents to undergo a full custody evaluation. Id. Murphy appealed that order and refused to comply with the court’s order for a custody evaluation, and a contempt order was entered against her. Murphy v. Murphy, 330 Ga. App. 169 (767 SE2d 789) (2014).

On April 1, 2014, Judge Baldwin ordered Murphy to submit to a psychological examination pursuant to OCGA § 9-11-35; the court had previously ordered such evaluations of both parents, but only John Murphy had complied. The order also specified that a compliance hearing would be scheduled for May 27, 2014. The court stated in its order that at the compliance hearing it would “consider[ ] the temporary custody of the children, if deemed necessary.” At the compliance hearing on May 27, 2014, the trial court determined that Murphy had failed to undergo the court-ordered psychological examination pursuant to its April 1 order. Accordingly, the trial court awarded temporary custody of the children to John Murphy at the May 27, 2014 hearing.

This appeal arises out of a lawsuit brought by Murphy against Nan Freeman, who was the court reporter at the May 27 compliance hearing, and Freeman Reporting, Inc., her court reporting business. After he awarded temporary custody of the children to John Murphy, Judge Baldwin stated that the hearing was over, and he stood to leave the bench. Counsel for Murphy objected and requested a certificate of immediate review. Judge Baldwin denied the requests. Subsequently, Freeman provided the transcript of the May 27, 2014 hearing, but omitted the objection and request for certificate of immediate review that were made after Judge Baldwin said the hearing was over. Counsel for Murphy contacted Freeman, and requested that she supplement the transcript with the additional statements made. Freeman then prepared and filed an addendum to the trial transcript.

On the same date counsel for Murphy requested that Freeman supplement the trial transcript with an addendum, her counsel also sent Freeman an Open Records Act request seeking, inter alia, the audio recording of the May 27, 2014 hearing. Freeman refused to produce the audio recording on the grounds that the recording was both the work product and the personal property of the court reporter. On June 16, 2014, counsel for Murphy sent Freeman an e-mail giving her notice of Murphy’s intention to file a lawsuit if the audio recording was not made available. On June 18, 2014, Freeman agreed to provide a sealed copy for the court record and an unsealed copy to be placed in the clerk’s office and made available for review by either party Additionally, on June 19, 2014, Judge Baldwin sent an e-mail to counsel for both parties informing them that Freeman would place an unsealed copy of the audio recording in the clerk’s office that would be reviewable in the courthouse by both parties.

On June 20, 2014, counsel for Murphy sent an e-mail to Judge Baldwin that, among other things, expressed counsel’s dissatisfaction with Judge Baldwin’s performance as a jurist, and the court’s refusal to grant Murphy “unrestricted use” of the audio recording. On June 23, 2014, counsel for Murphy e-mailed Judge Baldwin and stated that he “need[ed] to know immediately if Nan Freeman is going to provide copies of the requested audio tapes, unrestricted, as I have a Complaint ready to be filed Tuesday if she is not.” On June 25, Judge Baldwin responded by e-mail that the audio recording would be made available in the clerk’s office by June 27, 2014.

Despite the promised availability of the audio recording, on June 25, 2014, Murphy filed, in the Superior Court of Fulton County, a complaint against each member of the Board of Court Reporting of the Judicial Council of Georgia (the Board), along with Nan Freeman and Freeman Reporting, Inc. The complaint alleged a wide variety of constitutional violations against all defendants. Although not mentioned in the complaint, on June 24, 2014, the Board had rejected a related grievance filed by Murphy against Freeman.

The Attorney General’s Office represented the Board of Court Reporting, and Murphy subsequently moved to dismiss the complaint as to the Board and its members. The Superior Court of Fulton County granted the motion. After the Fulton County defendants had been dismissed from the action, Freeman moved to dismiss the case or, in the alternative, to transfer the case to Troup County for lack of personal jurisdiction in Fulton County The Fulton County court granted the motion, and the case was transferred to Troup County

Murphy’s initial complaint against Freeman alleged various separate constitutional violations. First, Murphy alleged that Freeman’s failure to produce the audio recording violated both the United States and Georgia Constitutions. Next, her complaint alleged that Freeman’s failure to provide to Murphy the recording of “one of the first temper tantrums of Judge Baldwin” deprived Murphy of her First Amendment right under the United States Constitution to “engage public opinion against the illegal conduct of Judge Baldwin.” Murphy further alleged statutory, equal protection, and due process violations, as well as a “first amendment protected right to have damages from Nan Freeman.”

On March 19, 2015, Freeman moved for summary judgment on Murphy’s constitutional claims, asserting the grounds of qualified immunity, lack of a private right of action, and mootness. On April 1, 2015, Murphy filed an amended complaint eliminating her constitutional claims and asserting new claims against Freeman. Murphy alleged that Freeman engaged in (1) fraud or negligent misrepresentation; (2) breach of contract; (3) conversion and unjust enrichment; and (4) negligence; and that Murphy should be awarded punitive damages. Additionally, Murphy filed over 300 pages of supplemental material in opposition to the motion for summary judgment.

At the hearing on the motion for summary judgment, Murphy declined to make an oral argument on the record. The trial court authorized both parties to file supplemental briefs, but Murphy elected not to do so. On July 14,2015, the trial court entered summary judgment in favor of Freeman on all of the claims.

It subsequently came to the trial court’s attention that counsel for Murphy had contacted the court reporter in the instant case (not Freeman) and requested a transcript as well as an audio recording of the summary judgment hearing. The trial court conducted a conference call with both parties on July 17, 2015, and thereafter entered an order. The order stated that the court reporter would provide both parties with a copy of the transcript of the summary judgment hearing, that neither the parties nor their counsel were to contact the court reporter, and that requests for any transcript or audio recording, amendment or supplement to the record, would be made in accordance with OCGA § 5-6-41 et seq. This appeal followed.

1. As a threshold matter, we first address the glaring deficiencies in Murphy’s appellate brief. “Any enumeration of error which is not supported in the brief by citation of authority or argument may be deemed abandoned.” Court of Appeals Rule 25 (c) (2). See also EZ Green Associates, LLC v. Georgia-Pacific Corp., 331 Ga. App. 183, 190 (3) (770 SE2d 273) (2015) (we need not address claim where appellant “did not develop a cogent argument or cite to any authority to support it[.]”). In Murphy’s brief, neither enumeration oferroris supportedby any pertinent citations to authority. The citations in the brief refer to cases that Murphy contends support her allegations of wrongdoing within the Coweta Judicial Circuit. However, none of the citations in her first enumeration of error points to any authority which would authorize us to reverse the Troup County trial court’s grant of summary judgment, which is the judgment on appeal here. In fact, in the ten-page discussion of her first enumeration of error, Murphy cites only four cases; one of the cases is a previous appeal in the underlying custody case, while another deals with the disqualification of a trial judge. The other two cases cited involve a trial judge’s authority to rule on a separate motion in a case when that judge has to first rule on a motion to recuse. In sum, none of the case law cited by Murphy in the “Argument and Citation of Authorities” section of her brief is relevant to her appeal.

In her second enumeration of error, Murphy cites a single case, but fails to explain how it supports her argument. The case cited by Murphy is Allan v. Jefferson Lakeside, L.P., 333 Ga. App. 222, 224 (1) (775 SE2d 763) (2015). In Allan, we held that the failure to file a transcript before a 30-day filing deadline was not the fault of the appellant, and thus did not warrant dismissal of the appeal. Id. at 225. In the instant case, the dismissal of an appeal for failure to timely file a transcript is not at issue. Murphy’s reliance on Allan is misplaced and erroneous.

Murphy’s brief features scant, unexplained citations to disparate cases that do not support her argument that the trial court erred when it granted summary judgment to Freeman. To characterize Murphy’s brief as poorly supported by legal authority would be accurate; to characterize the brief as cogent would be an untruth.

Furthermore, “[e] ach enumerated error shall be supported in the brief by specific reference to the record or transcript. In the absence of such reference, the Court will not search for or consider such enumeration.” Court of Appeals Rule 25 (c) (2) (i). Murphy fails to support either of her enumerations of error with accurate citations to the record or transcript. Thus, not only are both enumerations of error unsupported by relevant case law, they are replete with citations to the record that are not only unhelpful to our determination, but are wholly irrelevant to Murphy’s enumerations of error. Thus, these deficiencies render both of Murphy’s enumerations of error abandoned. See Court of Appeals Rule 25 (c) (2), supra.

However, this Court feels compelled to point out that even if we did not deem her claims abandoned on these grounds, Murphy’s brief also fails to state any grounds whatsoever on which we might find any merit in her appeal. Murphy’s first enumeration of error is that the trial court erred by granting summary judgment to Freeman. However, Murphy fails to identify any genuine dispute of material fact that would merit reversal. Moreover, Murphy fails to identify the elements of the claims she asserted against Freeman, or what disputed facts would arguably create a triable issue. Thus, it is impossible for us to determine what facts might be material. Instead, she relies on nebulous statements about her right to a jury trial and cites to affidavits of her trial counsel. Generally, we have held that absent substantiating facts, self-serving and conclusory affidavits are insufficient to create genuine issues of material fact. See J. Kinson Cook of Ga., Inc. v. Heery/Mitchell, 284 Ga. App. 552, 559 (d) (644 SE2d 440) (2007). See also Foster v. Ramsey, 245 Ga. App. 118, 119 (1) (536 SE2d 550) (2000) (physical precedent only). Here, Murphy presented citations to self-serving conclusory affidavits by her counsel with absolutely no substantiating facts. Thus, it was not error for the trial court to grant summary judgment to Freeman, and therefore we affirm the trial court’s ruling.

Murphy’s second enumeration of error is that the trial court erred in ordering the parties and their counsel not to contact the court reporter. Murphy fails to explain how she was harmed by this order or what authority the trial court violated in giving such an order. Murphy relies on a single sentence in her brief that alleges she will be unable to obtain transcripts. However, the order does not prohibit her from obtaining transcripts; it merely prohibits direct contact with the court reporter and requires all parties to comply with OCGA § 5-6-41 et seq. in requesting any portion of the record. Under OCGA § 5-6-41 (d), “Where matters occur which were not reported, such as objections to oral argument, misconduct of the jury, or other like instances, the court, upon motion of either party, shall require that a transcript of these matters be made and included as a part of the record.” While OCGA § 5-6-41 (f) provides:

Where any party contends that the transcript or record does not truly or fully disclose what transpired in the trial court and the parties are unable to agree thereon, the trial court shall set the matter down for a hearing with notice to both parties and resolve the difference so as to make the record conform to the truth. . . .

The trial court’s order in no way prohibits Murphy from obtaining transcripts; it merely requires that appropriate motions be made and a hearing be held if any disagreement over the record might arise. Accordingly, the order prohibiting contact with the court reporter is affirmed.

2. Indeed, rather than providing this Court with cogent arguments supported by law and facts, Murphy and her counsel use Murphy’s appellate brief as a platform to promulgate ad hominem attacks on various officers of the court with whom she takes issue, in direct violation of Court of Appeals Rule 10. In fact, the record in this case is near overflowing with direct violations of Rule 10. By way of example, Murphy’s counsel accuses opposing counsel of illegally hand-picking Judge Baldwin to hear the underlying custody dispute; accuses Freeman of assisting Judge Baldwin in concealing his hand-selection of cases over which he wanted to preside; accuses Freeman of obtaining the assistance of Judge Baldwin in interfering with Murphy’s representation by counsel; accuses Judge Baldwin of advocating for Freeman and of illegal conduct; accuses Judge Baldwin of violating the Code of Judicial Conduct as well as further illegal activity; and accuses Judge Baldwin of being illegally selected by opposing counsel to preside over the custody dispute case (which is not the case at issue on appeal) after attending a political fundraiser. None of the allegations leveled by Murphy are supported by citations to the record or facts of any kind. And perhaps most telling and concerning to this Court, after numerous references to Judge Baldwin in Murphy’s brief, Murphy’s counsel states: “The conduct of Judge Baldwin is not at issue in this appeal.” This statement is true, and begs the question why counsel for Murphy submitted such an extensive discussion about the alleged wrongdoing of Judge Baldwin if Murphy admits that his alleged conduct is irrelevant. It is worth noting again that Judge Baldwin was not the judge in the case giving rise to the appeal.

Given a second bite at the apple by way of a reply brief, Murphy’s counsel continues his screed against Judge Baldwin and others. In Murphy’s reply brief, Murphy’s counsel accuses Freeman, Judge Baldwin, opposing counsel, and the entire Georgia Board of Court Reporting of taking part in “Groupthink.” Murphy’s counsel defines Groupthink as occurring “when a group makes faulty decisions because group pressures lead to a deterioration of ‘mental efficiency, reality testing, and moral judgment.’ Groups affected by [Gjroup-think ignore alternatives and tend to take irrational actions that dehumanize other groups.”

To that end, Murphy’s counsel accuses the “Groupthink” members of engaging in the following plot.

Freeman’s conduct was intended to benefit the judge-shopping, Groupthink parties, to the detriment of Michelle Murphy and the children. . . . [T]he Groupthink people who planned the take-down plot, had multiple deputy sheriffs waiting in the room near where the children were, and at least a half a dozen lawyers ... who made the trip to Newnan to view the take-down that the Groupthink participants had planned.

Murphy’s counsel also includes Judge Emory Palmer (the judge in the case giving rise to this appeal) in his accusations, alleging “Judge Emory Palmer, whose election was financed, in part, by John Murphy’s Groupthink lawyers with their direct contributions, fund-raising events and the bundlings of money, joined the Groupthink.” All of the foregoing statements by Murphy and her counsel are completely unsubstantiated in the record and are not even tangentially related to the issues on appeal.

Under Court of Appeals Rule 15, we may impose a penalty in cases where “the appellant could have no reasonable basis upon which to anticipate that this Court would reverse the trial court’s judgment.” Hardwick v. Williams, 272 Ga. App. 680, 683 (3) (613 SE2d 215) (2005). As we have detailed above, Murphy’s arguments are not only meritless, but frivolous, and as they relate to the decisions of the trial court in Troup County, they are nonexistent. Murphy could not have had a reasonable basis upon which to anticipate that we would reverse the trial court’s judgment in this case. We conclude that Murphy appealed this case solely for the purpose of making meritless and public attacks on those individuals involved with this case with whom she disagrees. Our conclusion is evidenced by the failure of Murphy’s counsel to make even the slightest attempt to use any relevant authority to argue in support of the enumerations of error she raised on appeal.

Furthermore, Court of Appeals Rule 10 is clear that “Personal remarks, whether oral or written, which are discourteous or disparaging to any judge, opposing counsel, or any court, are strictly forbidden.” As outlined above, both Murphy’s brief and reply brief contain numerous disparaging and discourteous personal remarks about opposing counsel, two different judges, the Coweta Judicial Circuit, in addition to Freeman, and the Georgia Board of Court Reporting. The fact that this is not the first time Murphy and her counsel have been warned against and sanctioned for this type of conduct makes the violations even more egregious. In Murphy, this Court strongly warned and sanctioned Murphy and her counsel as follows:

[W]e recognize that cases arise where counsel must show that the issue is not merely error but misconduct. In such cases counsel should take particular care to summarize and cite the record accurately and to use a tone that is respectful and appropriate to the seriousness of the issues. Such care and respect are wholly absent from Nancy Michelle Murphy’s brief.

See Murphy, 328 Ga. App. at 774 (4). It is abundantly clear that Murphy and her counsel either did not read that opinion, or in the alternative, completely ignored it, either of which is repugnant to the Rules of the Court and potentially repugnant to the Rules of Professional Conduct. Not only does Murphy’s brief contain numerous disparaging and discourteous comments about Judge Baldwin, the brief states clearly “[t]he conduct of Judge Baldwin is not at issue in this appeal.” We are left to conclude that the disparaging remarks about Judge Baldwin and others that are wholly unsubstantiated by the record were included in Murphy’s brief for no purpose other than to publicly criticize and spitefully belittle them, rather than obtain relief from this Court.

We will not countenance such behavior in any court of law in the State of Georgia. We do not and we will never “equate contempt with courage or insults with independence.” Sacher v. United States, 343 U. S. 1, 14 (72 SCt 451, 96 LE 717) (1952). Notably, newly admitted members of the State Bar of Georgia are asked to swear a creed. In it, they swear to opposing counsel the following: “I offer fairness, integrity, and civility. I will seek reconciliation and, if we fail, I will strive to make our dispute a dignified one.” State Bar Rules and Regulations, Part IX Professionalism, A Lawyer’s Creed. In the same creed, they swear “I offer respect, candor, and courtesy” to the courts. Id.

We feel compelled to remind counsel that Rule 3.1 of the Georgia Rules of Professional Conduct prohibits a lawyer when representing a client from filing a suit, asserting a position, conducting a defense, delaying a trial, “or tak[ing] other action on behalf of the client when the lawyer knows or when it is obvious that such action would serve merely to harass or maliciously injure another[.]” Rule 3.1 (a) of the Georgia Rules of Professional Conduct found in Bar Rule 4-102. We make no determination as to whether Farmer has violated Rule 3.1, but we would caution him that his conduct is at the very least pushing the limits of what is professionally acceptable.

Decided May 26, 2016

Millard C. Farmer, Jr., for appellant.

Kenneth L. Gordon, for appellees.

Additionally, after both parties had filed their briefs, Freeman filed a motion to dismiss the appeal as moot. Because we have decided the appeal on its merits, we deny that motion. However, we note that the motion alleged that counsel for Murphy undertook this appeal in violation of Georgia Rule of Professional Conduct 1.2 (a). Such a question is not appropriately before us and should only be addressed by the appropriate authorities.

We have already found that the briefs submitted by Murphy’s counsel violated both Rule 25 and Rule 10 of this Court. Aggravating these violations is the fact that within the last two years Farmer has previously been cited by this Court for violations of these same rules. See Murphy, 330 Ga. App. 169, 172-173 (4); Murphy, 328 Ga. App. 767, 774 (4). We cannot find that such a pattern of conduct on the part of counsel for Murphy is inadvertent or misguided. Instead, we find that the repeated violations of our rules by Farmer are wilful. Accordingly, under Court of Appeals Rule 15, Millard Farmer, counsel for Murphy, shall pay a penalty of $2,500. The penalty shall constitute a money judgment in favor of Freeman against Farmer, and the trial court is directed to enter judgment in such amount upon return of the remittitur in this case. Court of Appeals Rule 15 (c). We would also note that this is Mr. Farmer’s third sanction for this type of conduct before the Court. Any further filings of the same type of conduct thus far exhibited could result in further and harsher sanction by this Court.

Judgment affirmed.

Ellington, P. J., and Branch, J., concur.


source: Caselaw Access Project

author: MILLER, Presiding Judge.

license: Public Domain

text:
    A16A0489.
    J. SQUARED PLUMBING COMPANY, INC. v. CITY OF ATLANTA.
    (786 SE2d 894)
   MILLER, Presiding Judge.

J. Squared Plumbing Company, Inc., a subcontractor, provided labor, materials and services pursuant to the City of Atlanta’s Annual Contract for Clean Up Sewage Spills Inside Dwellings (hereinafter the “Project”). Scott and Sons Holdings, LLC, the general contractor, failed to pay J. Squared for its work on the Project. By the time that J. Squared sought to recover from First Seaford Surety, Inc., the surety who issued the required payment bond for J. Squared’s work, First Seaford (hereinafter the “Surety”) was insolvent. J. Squared then sued Scott and Sons and the City of Atlanta, seeking to recover $140,000 for its work on the Project. The trial court found that the City complied with the payment bond requirements set forth in OCGA § 36-91-91. Accordingly, the trial court granted the City’s motion for summary judgment, finding that J. Squared was limited to the exclusive remedy set forth in Georgia’s payment bond statutes — OCGA §§ 36-91-90 and 36-91-91. J. Squared appeals, contending that (1) the payment bond statutes do not bar it from recovering for the value of its work from the City, and (2) the City’s documents in support of its motion for summary judgment lacked an adequate foundation. For the reasons that follow, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. A de novo standard of review applies to an appeal from a [grant or] denial of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

(Citations and footnote omitted.) GEICO Gen. Ins. Co. v. Wright, 299 Ga. App. 280, 281 (682 SE2d 369) (2009).

So viewed, the evidence shows that in October 2011, the City entered into a contract with Scott and Sons for the purpose of cleaning up sewage spills in approximately 100 dwellings. With the City’s permission, Scott and Sons then subcontracted with J. Squared for the clean-up services (hereinafter the “Subcontract”). The City’s clean-up contract required Scott and Sons to maintain payment bonds for the duration of the contract. Scott and Sons obtained a $200,000 paymentbond (hereinafter the “Bond”) from the Surety, and the Bond states on its face that it was approved as to form by the Associate City Attorney, the City’s Chief Financial Officer, and the City’s Risk Management Analyst. In connection with the Bond, Scott and Sons provided the City with a notarized document which set forth the Surety’s bonding capacity — $2 million for a single bond and $5 million aggregate — and the City confirmed that the Surety was certified through the United States Department of the Treasury.

1. J. Squared contends that the payment bond statutes do not bar it from recovering for the value of its work from the City. We disagree.

Unlike subcontractors and materialmen on private improvement projects, subcontractors and materialmen on public works projects have no viable lien claim as an alternative remedy to proceeding against the general contractor. They do, however, have a comparable alternative statutory remedy in the form of an action on the general contractor’s payment bond.

(Citation and punctuation omitted.) McArthur Elec., Inc. v. Cobb County School Dist., 281 Ga. 773, 773-774 (642 SE2d 830) (2007). Payment bonds are required for all public works construction contracts with an estimated contract amount that is greater than $100,000. OCGA § 36-91-90. Furthermore, the required payment bonds

. . . shall be approved and filed with the treasurer or the person performing the duties usually performed by a treasurer of the obligee named therein. At the option of the governmental entity, if the surety named in the bond is other than a surety company authorized by law to do business in this state pursuant to a current certificate of authority to transact surety business by the Commissioner of Insurance, such bond shall not be approved and filed unless such surety is on the United States Department of Treasury’s list of approved bond sureties.

OCGA § 36-91-40 (a) (1). Moreover, required payment bonds “shallbe approved as to form and as to the solvency of the surety by an officer of the governmental entity negotiating the contract on behalf of the governmental entity.” OCGA § 36-91-40 (a) (2). Approval for payment bonds “shall be obtained prior to the execution of the contract.” Id.

If a payment bond ... is not taken in the manner and form required in this article, the corporation or body for which work is done under the contract shall be liable to all subcontractors and to all persons furnishing labor, skill, tools, machinery, or materials to the contractor or subcontractor thereunder for any loss resulting to them from such failure.

OCGA § 36-91-91; see also McArthur, supra, 281 Ga. at 774. When the City takes a payment bond that is in proper form, however, it is not required to make any further investigation into the propriety of the information presented on the face of the bond, and the subcontractor’s direct action remedy against the City “will be defeated notwithstanding the subsequent inefficacy of the bond[.]” DeKalb County v. J & A Pipeline Co., 263 Ga. 645, 649-650 (2) (437 SE2d 327) (1993); see also Bd. of Regents of the Univ. System of Ga. v. Brooks, 324 Ga. App. 15, 18 (1) (749 SE2d 23) (2013) (interpreting the Board of Regents’ duties under OCGA § 13-10-60, which provides nearly identical requirements for payment bonds on large public works contracts).

Here, the evidence clearly shows that the Bond was approved as to form, in accordance with the statutory requirements, by the Associate City Attorney, the City’s Chief Financial Officer, and the City’s Risk Analyst. Moreover, the City required the Surety to provide proof of its bonding capacity; the City confirmed that the Surety was certified through the United States Department of the Treasury; and both the Bond and the notarized document confirming the Surety’s bonding capacity, on their face, comport with the statutory requirements. Accordingly, the trial court properly granted summary judgment to the City after finding that the City took the payment bond in the statutorily required manner and form. Moreover, notwithstanding the Surety’s insolvency, the trial court properly found that J. Squared was limited to the exclusive remedy provided by the payment bond statutes.

2. J. Squared also contends that the affidavit of the City’s Risk Analyst was based on mere conclusions and not on the Analyst’s personal knowledge. We disagree.

Contrary to J. Squared’s contention, the affidavit states on its face that the facts, not mere conclusions, set forth therein were based on the Risk Analyst’s personal knowledge. “The personal knowledge requirement set forth in OCGA § 9-11-56 (e) is met where the contents of the [affidavit] indicate that material parts of it are statements within the personal knowledge of the affiant[.]” (Citation and punctuation omitted.) Logan v. American Bankers Life Assurance Co., 168 Ga. App. 647, 649 (1) (310 SE2d 263) (1983). Accordingly, we affirm the trial court’s grant of summary judgment to the City

Judgment affirmed.

McFadden and McMillian, JJ., concur.

Decided May 26, 2016.

C. Samuel Rael, for appellant.

Laura S. Burton, Daedrea D. Horne-Fenwick, Akua D. Coppock, for appellee.

       The trial court dismissed J. Squared’s complaint against Scott and Sons for want of prosecution, because J. Squared failed to perfect service against that defendant. Scott and Sons is not a party to this appeal.

       J. Squared also contends, for the first time on appeal, that the documents attached to the Risk Analyst’s affidavit were not properly admitted as business records, the documents were not sworn to or verified, and the City, in its motion for summary judgment, quoted extensively from a deposition that was not part of the record. This Court will not consider issues raised for the first time on appeal because the trial court has not had the opportunity to consider it. See Thompson v. Princell, 304 Ga. App. 256, 259 (a) (696 SE2d 91) (2010).


author: Dillard, Judge.

text:
    A16A0524.
    PATCH v. THE STATE.
    (786 SE2d 882)
   Dillard, Judge.

Phillip Preston Patch appeals his convictions for three counts of computer or electronic pornography and child exploitation, arguing that the evidence was insufficient to support his convictions, and that the trial court erred by admitting identification testimony of an investigating officer based solely on his observations of photographs and webcam videos that were unavailable to the jury. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the jury’s guilty verdict, the record shows that, in 2010, Stephen Land—who was, at that time, a corporal with the Gwinnett County Police Department’s Special Victims Unit—created an online profile of a young girl for use in his investigations of Internet crimes against children. Specifically, relevant to this case, Land created a Yahoo! account with the username “roxiechickl4,” which included a cartoon avatar of a young female to suggest that the user was a 14-year-old girl. Land also added images to the account of a 19 or 20-year-old female employee of the police department, who looked much younger than her age, and the profile indicated that her name was “Rhonda.” Next, Land used the account to log into an Internet chat room designated for users located in Georgia, and he waited for other users to initiate a one-on-one chat with him. In conducting his investigation, Land used software that recorded everything occurring on his screen while he was using the roxiechickl4 account.

On July 23, 2010, an individual with the username “heeeyyy _waitaminute” (the “suspect”) initiated a chat with Land, who was using the roxiechickl4 account, and subsequently, they had additional chats on August 16, 2010; September 20, 2010; and October 18, 2010. During the first conversation, the suspect initiated the interaction with Land by sending a message to roxiechickl4 that said, “hey girl,” and Land responded, “hey.” Early in the conversation, the suspect asked roxiechickl4 for her age, and Land responded that she was 14. And later, roxiechickl4 confirmed her age again when Land responded to a question by saying, “[b]ecause I’m 14.” The conversation continued, and eventually the suspect began asking roxiechickl4 what she was wearing, including whether she was wearing a “bra and panties.” The suspect also inquired into “what’s the most [she had] done with a guy,” and Land responded, “um, kissing and some touching, but not really” The sexual tenor of the conversation then began to escalate with the suspect asking, inter alia, if he could “touch [her] ass,” whether she was “wet at all,” whether she “wanted [him] inside where it’s wet,” “what size are [her] tits,” and whether she wanted his “cock.” After they had been messaging for a while, the suspect asked roxiechickl4 whether she wanted to watch him masturbate, and he sent her an invitation to view him on a webcam. Land accepted the invitation and was then able to view the suspect’s “naked penis.”

Over the next few months, Land—still using the roxiechickl4 account—continued to have online conversations of a sexual nature with the suspect, and on at least two occasions, the suspect “masturbated] his naked, erect penis” on the webcam for the apparent 14-year-old girl to view. But Land was never able to see the suspect’s face on the webcam. Eventually, Land subpoenaed Yahoo! to produce any information it had on the heeeyyy_waitaminute account, including any IP addresses used and identifying information about the user. Yahool’s response revealed that the suspect’s account was associated with the name “Preston Patch” and an address in Lawrenceville, Georgia. Next, Land requested information from Patch’s Internet-service provider regarding the IP address that the suspect’s computer had used on the dates and times when heeeyyy_waitaminute chatted with roxiechickl4, and he discovered that the IP address was accessed from 1843 Guardian Way in Lawrenceville (the “Guardian Way residence”). Land also learned that Chris Stephens, Patch’s roommate, was the account holder for that address.

In addition to the foregoing investigative efforts, Land searched the police department’s internal records and located Patch’s driver’s license, as well as a photograph of him. Then, after confirming Patch’s address, Land applied for and obtained a search warrant for the Guardian Way residence. On November 18, 2010, Land executed the search warrant and seized Patch’s computer. The computer was thereafter sent to the police department’s computer forensics lab to be examined. And during the examination, the technician extracted files from Patch’s computer containing Land’s username, roxiechickl4.

Thereafter, Patch was charged, via indictment, with three counts of computer or electronic pornography and child exploitation. And following a jury trial, Patch was convicted on all counts. Patch then filed a motion for a new trial, which the trial court denied after a hearing. This appeal follows.

1. On appeal, Patch first argues that the evidence was insufficient to support his convictions. We disagree.

On appeal from a criminal conviction, we view the evidence “in the light most favorable to the jury’s verdict, and the defendant is no longer presumed innocent.” And when evaluating the sufficiency of the evidence, “we do not weigh the evidence or assess witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offenses beyond a reasonable doubt.” Finally, the jury’s verdict will be upheld so long as there is “some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case.” With these guiding principles in mind, we turn now to Patch’s specific challenge to the sufficiency of the evidence to support his convictions.

In relevant part, OCGA § 16-12-100.2 (d) (1) provides:

It shall be unlawful for any person intentionally or willfully to utilize a computer wireless service or Internet service, including, but not limited to, a local bulletin board service, Internet chat room, e-mail, instant messaging service, or other electronic device, to seduce, solicit, lure, or entice, or attempt to seduce, solicit, lure, or entice a child [or] another person believed by such person to be a child ... to commit any illegal act by, with, or against a child as described in . . . Code Section 16-6-4, relating to the offense of child molestation or aggravated child molestation; Code Section 16-6-5, relating to the offense of enticing a child for indecent purposes; or Code Section 16-6-8, relating to the offense of public indecency, or to engage in any conduct that by its nature is an unlawful sexual offense against a child.

And OCGA § 16-12-100.2 (b) (1) defines “child” to mean “any person under the age of 16 years.”

As to the indictment in this case, it alleged in three separate counts that Patch violated OCGA § 16-12-100.2 (d) (1) on July 23, 2010; August 16, 2010; and September 20, 2010, by

unlawfully intentionally us[ing] an Internet service and an Internet chat room and an electronic device, to attempt to seduce, solicit, lure and entice another person, to wit: Gwin-nett County Police Officer S. J. Land, who accused believed to be a child under the age of 16, to engage in unlawful sexual conduct, contrary to the laws of said State, the peace, good order[,] and dignity thereof.

On appeal, Patch does not contend that the State failed to prove any essential element of his charged offenses, but instead, he claims that there was insufficient evidence to establish that he was the perpetrator. Specifically, Patch contends that the only “visual identification evidence” was the testimony of Richard Peluso, a retired Cobb County police sergeant who investigated him in a similar case in 2008, and he argues that Peluso’s in-court identification of him in this case was inadmissible. Patch further asserts that, while there was evidence that his username was used in the chats with roxie-chickl4, no evidence established who was on the computer at the time of the chats, and even though “multiple people” had access to his computer, investigators never met or interviewed any of those individuals.

But here, even discounting Peluso’s in-court identification of Patch, there was ample evidence to support a jury finding that he was the perpetrator, including his own incriminating statements to police. It is well settled that circumstantial evidence of identity “may be sufficient to enable a rational trier of fact to find a defendant guilty beyond a reasonable doubt.” Moreover, circumstantial evidence of a defendant’s identity “need not exclude every conceivable inference or hypothesis—only those that are reasonable.” And importantly, to set aside the conviction, “it is not sufficient that the circumstantial evidence show that the act might by bare possibility have been done by somebody else.”

And here, in his pretrial interviews with Land, which were played for the jury, Patch admitted the following: (1) heeeyyy_waita-minute was his username, and he had used it for two or three years; (2) as far as he knows, no one else uses his account; (3) his roommate would not use his computer; (4) he was the person in the pictures that were sent to roxiechickl4; (5) he masturbates on his webcam two or three times a month; and (6) he chats with females online who are as young as 15 years old. More significantly, Patch expressly admitted that it was “safe to say” that he was the person chatting with roxiechickl4 on the relevant dates, that it was his penis shown on the webcam, and that no one else ever used his computer.

Although Patch changed his story at trial, denying that he committed the charged offenses and claiming that he was not using his computer at the relevant times, we will uphold the jury’s verdict so long as there is “some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case.” Moreover, at trial, rather than providing a specific, reasonable explanation for why some unidentified person would have been in his house using his computer and his Yahoo! account to message roxie-chickl4 on all three occasions, Patch merely testified to general circumstances that might make such a thing possible.

Indeed, Patch testified only that he was not using his heeeyyy _waitaminute account on the relevant dates and times, he usually left his computer on when he was not at home, he did not “hide” his usernames, his computer was not password protected, and the pictures he sent to roxiechickl4 were stored on his computer. However, such testimony is insufficient to reverse the jury’s verdict because it does nothing more than vaguely suggest a “bare possibility” that his charged offenses may have been committed by someone else. Moreover, the jury was entitled to disbelieve Patch’s trial testimony and credit his pretrial statements to Land, which essentially admitted that he sent the offending messages and images to roxiechickl4. In sum, the circumstantial evidence that, inter alia, Patch’s computer and Yahoo! account were used to chat with roxiechickl4 from his residence, combined with his own incriminating statements to Land, are sufficient to support a jury finding that he was the person who committed the charged offenses.

2. Next, Patch argues that the trial court erred in allowing Peluso to identify him in court as the person who Peluso saw in photographs and videos from his 2008 investigation of Patch involving a similar incident. Again, we disagree.

The State filed a pretrial notice of its intent to present evidence of a prior incident in 2008, when Patch was investigated in Cobb County for engaging in similar unlawful conduct with his heeeyyy _waitaminute account. In response, Patch filed a motion to exclude the similar-transaction evidence. The trial court then held a pretrial hearing on the motion, and ultimately, it denied Patch’s motion and ruled that evidence of the 2008 investigation was admissible.

As to the alleged similar transaction, Peluso, who was a retired Cobb County police officer, testified during the trial about his 2008 investigation. Similarly to Land, Peluso created an online profile of a 13-year-old girl on Yahoo! with the username “LoriChasel3,” and he uploaded pictures of a female colleague that were taken when she was 13 years old. At some point during the investigation, LoriChasel3 was contacted by Patch, who was using the username heeeyyy_waita-minute. When they began messaging, LoriChasel3 informed Patch of her location and that she was 13 years old. And as with roxiechickl4, Patch engaged in sexually explicit conversations with LoriChasel3, sent her pictures of himself, and invited her to view him via a webcam. But unlike Land, Peluso was able to see Patch’s face on the webcam, and during his testimony, he identified Patch as the individual who appeared in the pictures and on the webcam.

At this point, Patch objected to Peluso’s in-court identification of him, arguing that it was based on images or videos that he viewed years earlier, and never having seen Patch in person, Peluso had no ability to recognize Patch in court. In addition, Patch informed the court (and Peluso later confirmed) that the original images and videos from the 2008 case had been lost by Cobb County, and as a result, they were unavailable to show the jury. Patch further noted, and the State conceded, that Peluso initially misidentified a paralegal as Patch during a pretrial hearing in this case, before later identifying Patch as the perpetrator. Ultimately, after hearing arguments from the parties, the trial court overruled Patch’s objection, noting that he could cross-examine Peluso, and the jury could decide how much weight or credit to give Peluso’s identification testimony

On cross-examination, Peluso reiterated that Patch was the individual who appeared in the photographs and webcam videos during his 2008 investigation, but he explained that those images and videos were unavailable to present to the jury because the hard drive used in that investigation had “crashed.” Peluso further testified that, while his in-court identification of Patch was based on viewing those photographs and videos approximately seven years earlier in 2008 and 2009, he also recognized Patch from his driver’s license picture.

As previously mentioned, Patch argues that Peluso’s identification testimony was inadmissible because it was based on his viewing photographs and videos that were unavailable to the jury More specifically, Patch contends that such opinion evidence is improper because it tends only to establish a fact that average jurors could decide for themselves.

As a preliminary matter, we note that because this case was tried after January 1, 2013, our new Evidence Code applies. And OCGA § 24-10-1001 et seq., Georgia’s new “best evidence rule,” squarely addresses the situation at hand—i.e., the admissibility of secondary evidence of the contents of a recording or photograph that has been lost or destroyed. Generally, under OCGA § 24-10-1002, “[t]o prove the contents of a writing, recording, or photograph, the original writing, recording, or photograph shall be required.” However, OCGA § 24-10-1004 outlines several exceptions to this general rule. In relevant part, OCGA § 24-10-1004 provides that “[t]he original shall not be required and other evidence of the contents of a writing, recording, or photograph shall be admissible if. . . [a]ll originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith[.]”

Here, it is undisputed that the State sought to present “other evidence” (i.e., Peluso’s testimony) of the contents of video recordings and photographs that had been destroyed when a hard drive used in the 2008 investigation of Patch malfunctioned. Nevertheless, neither party has addressed (either below or on appeal) whether Peluso’s testimony was admissible under OCGA § 24-10-1004. Instead, both parties rely exclusively on Georgia cases published before the enactment of the new Evidence Code. And furthermore, the cases relied upon by the parties—in addition to being decisions decided under Georgia’s prior Evidence Code—are readily distinguishable from the instant case because they all address situations where, unlike this case, the photograph or video at issue was available at trial and viewed by the jury.

Nevertheless, even though Patch did not specifically object to Peluso’s identification testimony based on our new best-evidence rule in the trial court, Georgia’s new Evidence Code permits a court to take notice of “plain errors affecting substantial rights although such errors were not brought to the attention of the [trial] court.” And in this regard, the Supreme Court of Georgia has adopted the federal plain error standard of review, as articulated by the Supreme Court of the United States in Puckett v. United States. Under this four-pronged test,

there [first] must be an error or defect—some sort of deviation from a legal rule—that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error— discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.

In the case sub judice, Patch cannot satisfy the foregoing test to establish that the trial court plainly erred in admitting Peluso’s testimony under OCGA § 24-10-1004. Specifically, as to the first and second prongs of the plain-error analysis, Patch is unable to show that the trial court erred in admitting this evidence under the new Evidence Code, much less that a legal error was “clear or obvious, rather than subject to reasonable dispute.” Indeed, as previously noted, under OCGA § 24-10-1004 (1), an original recording or photograph is not required at trial and secondary evidence of its contents is admissible if “[a]ll originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith.” And here, it is undisputed that the relevant videos and photographs were destroyed when the hard drive used in Peluso’s 2008 investigation “crashed.” Moreover, there is no evidence (and Patch has not even alleged) that the State intentionally destroyed the videos and photographs in bad faith. As a result, Peluso’s testimony regarding the contents of the lost or destroyed photographs and video recordings was admissible under the plain language of OCGA § 24-10-1004 (l).

Finally, even assuming, arguendo, that Patch could satisfy the first two prongs of the plain-error test, he cannot comply with its third requirement of showing that the trial court’s admission of Peluso’s identification testimony affected the outcome of the trial because the evidence of Patch’s guilt in this case was overwhelming. Indeed, in addition to the circumstantial evidence that Patch’s Yahoo! account was used on his computer from his residence to message Land, Patch essentially confessed to the charged offenses in two separate interviews with law enforcement. Specifically, as previously noted, Patch admitted that (1) he hadbeen using the heeeyyy_waitaminute account for two or three years; (2) he did not know of anyone else who would use that account; and (3) his penis was depicted on the images that Land collected during his investigation. And ultimately, Patch agreed that it was “safe to say” he was the individual who was having the sexually explicit conversations with roxiechickl4 on the relevant dates and times. In light of this overwhelming evidence of Patch’s guilt, including his own incriminating statements, any error in allowing Peluso to identify Patch as the perpetrator in his 2008 investigation did not affect Patch’s substantial rights, which in the ordinary case means that it affected the outcome of the trial court proceedings.

Decided May 26, 2016.

Sharon L. Hopkins, for appellant.

Daniel J. Porter, District Attorney, Jon W. Setzer, Assistant District Attorney, for appellee.

Nevertheless, Patch contends that the alleged erroneous admission of Peluso’s identification testimony was prejudicial because Land never saw Patch’s face on the webcam during the instant investigation, and Peluso previously misidentified a paralegal as the perpetrator. In addition, Patch points out that he denied ever having chatted with “underage girls” at trial, and that he presented numerous character witnesses. What Patch apparently fails to appreciate, however, is that this evidence was presented to the jury, and it was for the jury to decide the credibility of the witnesses, as well as the weight given to their testimony.

For all of the foregoing reasons, we affirm Patch’s convictions.

Judgment affirmed.

Phipps, P. J., and Peterson, J., concur.

        See, e.g., New v. State, 327 Ga. App. 87, 88 (755 SE2d 568) (2014).

        New, 327 Ga. App. at 89 (punctuation omitted); see also Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

        New, 327 Ga. App. at 89 (punctuation omitted); accord Goolsby v. State, 299 Ga. App. 330, 330-31 (682 SE2d 671) (2009).

        New, 327 Ga. App. at 89 (punctuation omitted); accord Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001).

       Although Patch does not challenge the sufficiency of the evidence to prove each element of his offenses, we nevertheless find that the evidence was sufficient to support his convictions for computer or electronic pornography and child exploitation. See Jackson, 443 U. S. at 319 (III) (B); see also Bolton v. State, 310 Ga. App. 801, 805 (1) (714 SE2d 377) (2011) (holding that the evidence was sufficient to support a conviction for violating OCGA § 16-12-100.2 (d) (1) when the defendant used online services to solicit sex from an undercover police officer, who the defendant believed to be a 15-year-old girl); Logan v. State, 309 Ga. App. 95, 100 (2) (b) (709 SE2d 302) (2011) (holding that evidence was sufficient to support a conviction for violating OCGA § 16-12-100.2 (d) (1) when the defendant engaged in and initiated sexually explicit conversations with an undercover police officer posing online as a 14-year-old girl).

       Patch’s challenge to the admissibility of Peluso’s identification testimony is addressed in Division 2, infra.

        Minor v. State, 328 Ga. App. 128, 130-31 (1)(761 SE2d 538) (2014) (punctuation omitted); accord Wickerson v. State, 321 Ga. App. 844, 850 (1) (743 SE2d 509) (2013).

        Minor, 328 Ga. App. at 131 (1) (punctuation omitted); accord Wise v. State, 325 Ga. App. 377, 381 (2) (752 SE2d 628) (2013).

        Minor, 328 Ga.App. at 131 (1) (punctuation omitted); accord Jordan v. State, 320 Ga. App. 265, 269 (1) (a) (739 SE2d 743) (2013).

        New, 327 Ga. App. at 89 (punctuation omitted) (emphasis supplied); accord Johnson v. State, 296 Ga. 504, 505 (1) (769 SE2d 87) (2015).

        See supra footnote 9 and accompanying text; see also Bone v. State, 311 Ga. App. 390, 394 (2) (715 SE2d 789) (2011) (holding that there was sufficient evidence to support a conviction for possession of methamphetamine, even when the defendant contended that it was possible that the passenger in his car or a member of the general public placed the drugs in his vicinity); Norful v. State, 296 Ga. App. 387, 389 (674 SE2d 633) (2009) (holding that, although circumstantial, the evidence was sufficient to support a burglary conviction and the jury was authorized to disbelieve the defendant’s alternative hypothesis—that another person could have entered his apartment and hid the stolen property there—as unreasonable).

        See Wright v. State, 319 Ga. App. 723, 727 (1) (738 SE2d 310) (2013) (“[Decisions regarding credibility are uniquely the province of the jury, which was not required to believe the testimony of [the defendant’s] witnesses, nor to disbelieve that of the [SJtate’s witnesses. Where, as here, there was sufficient evidence, even though contradicted, to support each fact necessary to make out the [SJtate’s case, the jury’s verdicts will be upheld.”) (punctuation omitted)); McCord v. State, 302 Ga. App. 303, 304 (690 SE2d 923) (2010) (“A jury is not required to believe a defendant’s testimony, nor to disbelieve the [SJtate’s witnesses.” (punctuation omitted)).

        See Beaver v. State, 330 Ga. App. 496, 498-99 (1) (767 SE2d 503) (2014) (holding that there was sufficient evidence to support convictions for exploitation of children when defendant denied downloading child pornography, but evidence suggested only that it “may have been possible” for someone else to have gained access to his computer and downloaded the illegal files); Bolton, 310 Ga. App. at 805 (1) (holding that the evidence was sufficient to support a conviction for violating OCGA § 16-12-100.2 (d) (1) when the defendant used online services to solicit sex from an undercover police officer, whom the defendant believed to be a 15-year-old girl); Logan, 309 Ga. App. at 100 (2) (b) (holding that evidence was sufficient to support a conviction for violating OCGA § 16-12-100.2 (d) (1) when the defendant engaged and initiated sexually explicit conversations with an undercover police officer posing online as a 14-year-old girl); see also Wilcox v. State, 310 Ga. App. 382, 384 (713 SE2d 468) (2011) (explaining that “a conviction may be based on circumstantial evidence, and the proved facts need exclude only reasonable hypotheses—not bare possibilities that the crime could have been committed by someone else” (punctuation omitted)).

       Peluso’s testimony regarding his 2008 investigation of Patch was admitted as evidence of prior crimes, wrongs, or acts under OCGA § 24-4-404. We note that Patch does not challenge the court’s denial of his motion to suppress this evidence or argue that Peluso’s testimony, as a whole, was inadmissible. Instead, he merely contends, as he did below, that Peluso’s in-court identification of him was inadmissible.

       We note that Peluso ultimately never obtained a search warrant for Patch’s residence, and Patch was not interviewed or arrested as a result of the 2008 investigation.

        See Ga. L. 2011, pp. 99, 214, § 101 (providing that Georgia’s new Evidence Code applies “to any motion made or hearing or trial commenced on or after” January 1, 2013).

        See OCGA § 24-10-1004 (1).

       We note that, unlike OCGA § 24-10-1002, former OCGA § 24-5-4, Georgia’s prior best evidence rule, applied only to writings and would have been inapplicable to the photographs and video recordings at issue.here. See former OCGA § 24-5-4; Perkins v. State, 260 Ga. 292, 295 (7) (392 SE2d 872) (1990) (“The best evidence rule applies only to writings.”); see also OCGA § 24-10-1002 (“To prove the contents of a writing, recording, or photograph, the original writing, recording, or photograph shall be required.” (emphasis supplied)); Hooks v. State, 295 Ga. 835, 839 (3) n.4 (764 SE2d 409) (2014) (“The former best evidence rule was superseded in the new Evidence Code by the provisions of OCGA § 24-10-1001 et seq.”).

       OCGA § 24-10-1004 (1) (emphasis supplied); see also Ronald L. Carlson and Michael Scott Carlson, Carlson on Evidence, p. 800 (4th ed. 2016) (“Once an adequate excuse is established for nonproduction of the original, the federal rule recognizes no degrees of secondary evidence [,] and [s]ome courts take a broad view of the sort of secondary evidence which may be used.”) (citation and punctuation omitted).

       Our Supreme Court has emphasized that, when a provision of the new Evidence Code has been adopted from the Federal Rules of Evidence, we must consider the meaning of that provision by looking to “the decisions of the federal appeals courts construing and applying the Federal Rules, especially the decisions of the Eleventh Circuit.” Frost v. State, 297 Ga. 296, 299 (773 SE2d 700) (2015).

       Even though Georgia’s state judicial system is now in its fourth year under the new Evidence Code, many parties continue to argue evidentiary issues in cases tried after January 1, 2013 without any reference to this code or acknowledgment of the substantially altered jurisprudential landscape. We take this opportunity to remind our highly capable trial courts and lawyers of the importance of relying upon the new Evidence Code, as well as its accompanying case law, in addressing evidentiary issues arising after the new code’s effective date. See Stratacos v. State, 293 Ga. 401, 408 (2) (b) n.10 (748 SE2d 828) (2013) (“[I]t is always risky for courts to rely on a precedent interpreting a statute or other legal text without first examining whether the legal text on which the precedent was based has been revised and then considering the effect of any such change .... And we add that courts relying on old precedents regarding evidentiary issues should be particularly attuned to this risk in light of Georgia’s new Evidence Code.”).

        See Owens v. State, 317 Ga. App. 821, 824 (1) (733 SE2d 16) (2012) (holding that identification testimony regarding a video or photograph that was viewed by the jury “should be admitted for the jury’s consideration only if there is some basis for concluding that the witness is more likely to correctly identify the defendant from the video or photograph than is the jury, as when the witness is familiar with the defendant’s appearance around the time a surveillance [video or] photograph was taken and the defendant’s appearance has changed prior to trial, or when the witness knows about some other distinctive but presently inaccessible characteristic of the defendant’s appearance” (punctuation omitted)); Grimes v. State, 291 Ga. App. 585, 590-91 (2) (662 SE2d 346) (2008) (same); Mitchell v. State, 283 Ga. App. 456, 458-59 (641 SE2d 674) (2007) (same); see also Wadlington v. State, 302 Ga. App. 559, 561 (1) (692 SE2d 28) (2010) (“[I]t is well-established that a witness cannot identify a person depicted in a video as being the defendant if it is within the ability of the jurors to decide this issue for themselves.”). Because the foregoing cases are inapposite to the issue before us, it is not necessary for us to consider whether they have any continuing precedential utility or validity following the enactment of the new Evidence Code. But as the Magic 8 Ball often notes, “Outlook Not So Good.” See OCGA § 24-7-701 (a); see also Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 588 (II) (A) (113 SCt 2786, 125 LE2d 469) (1993) (noting the forgiving thrust of the federal rules of evidence and their “general approach of relaxing the traditional barriers to opinion testimony”) (citation and punctuation omitted); Ronald L. Carlson and Michael Scott Carlson, Carlson on Evidence, p. 417 (4th ed. 2016) (“Federal Evidence Rule 701, newly embraced in Georgia as part of the 2013 Evidence Code, permits a wide range of opinions by lay witnesses.”).

       OCGA § 24-1-103 (d); see Gates v. State, 298 Ga. 324, 326 (3) (781 SE2d 772) (2016) (explaining that, under the new Evidence Code, evidentiary rulings are subject to plain-error review when a defendant did not object to such rulings at trial).

       556 U.S. 129(129 SCt 1423, 173 LE2d 266) (2009); see Gates, 298 Ga. at 326 (3) (noting that the Supreme Court of Georgia has adopted the four-pronged plain-error standard as set forth in Puckett).

        Gates, 298 Ga. at 327 (3) (punctuation omitted), quoting State v. Kelly, 290 Ga. 29, 33 (2) (a) (718 SE2d 232) (2011); see Puckett, 556 U.S. at 135 (II).

       We reiterate that Patch does not argue on appeal that the trial court erred in admitting Peluso’s testimony under OCGA § 24-10-1004, and we note that it is his burden to show plain error. See Howell v. State, 330 Ga. App. 668, 673 (2) (769 SE2d 98) (2015) (“In order to reverse on the basis of plain error in this case, [the defendant] must satisfy the burden of establishing all of the following elements: that the charge (or the failure to charge) was erroneous; that the error was obvious; and that the error likely affected the outcome of his trial.”). Nevertheless, we exercise the discretion afforded us by OCGA § 24-1-103 (d) to review the trial court’s eviden-tiary ruling for plain error. See supra note 23 and accompanying text.

        Gates, 298 Ga. at 327 (3) (punctuation omitted).

       OCGA § 24-10-1004 (1); see United States v. Flanders, 752 F3d 1317, 1336 (V) (11th Cir. 2014) (holding that a transcript of an audio recording of a defendant’s statement was admissible when the recording had been inadvertently destroyed and there was no evidence of bad faith); United States v. Ross, 33 F3d 1507, 1513 (II) (A) (11th Cir. 1994) (“Once the terms of Rule 1004 are satisfied, the party seeking to prove the contents of the recording—here, the government— may do so by any kind of secondary evidence.” (emphasis supplied)); see also United States v. McKenzie, 505 F. App’x 843, 846 (11th Cir. 2013) (holding that the best-evidence rule did not bar a police officer’s identification testimony that was based on his monitoring of a live video feed that was unavailable to the jury); United States v. Dadamuratov, 340 F. App’x 540, 547 (II) (B) (11th Cir. 2009) (holding that a transcript of destroyed recordings was admissible under OCGA § 24-10-1004 (1) when the destruction of the recordings was accidental and not in bad faith).

        See United States v. Gamory, 635 F3d 480, 494-95 (B) (11th Cir. 2011) (noting that the plain error “prejudice inquiry” (prong three) is similar to the harmless-error analysis and holding that, in light of the overwhelming evidence of the defendant’s guilt, he could not show that the judgment was “substantially swayed by the error”); United States v. Turner, 474 F3d 1265, 1278 (III) (11th Cir. 2007) (holding that the appellant failed to satisfy the third prong of the plain-error analysis when “independent of the challenged testimony, the government presented overwhelming evidence in support of [his] convictions”); see also Carter v. State, 326 Ga. App. 144, 149 (3) (756 SE2d 232) (2014) (holding that the trial court’s error in allowing a detective to identify the defendant in surveillance footage that was also available to the jury was harmless in light of the overwhelming evidence of his guilt, including, inter alia, that the clothing recovered by police matched the items worn by the defendant in the video and that the defendant’s cell phone records (similarly to records of Patch’s Internet use) placed him in the area of the robbery at the time when it occurred); Rogers v. State, 294 Ga. App. 195, 198-99 (3) (670 SE2d 106) (2008) (holding that trial court’s error in allowing a law-enforcement officer to identify the defendant on a videotape that was available to the jury was harmless in light of the overwhelming evidence of his guilt, including that he identified himself and his co-defendant in the same videotape).

        See supra footnotes 3 and 12 and accompanying text.


author: PHIPPS, Presiding Judge.

text:
    A16A0243.
    PASS v. FORESTAR GA REAL ESTATE GROUP, INC.
    (787 SE2d 250)
   PHIPPS, Presiding Judge.

Forestar GA Real Estate Group, Inc. (“Forestar”) sued Linda Pass, individually and as representative of her father’s estate, to prevent her from blocking a roadway leading to Forestar’s property in Jackson County (“the Forestar tract”). The trial court granted summary judgment to Forestar, permanently enjoining Pass from obstructing the road. Pass appeals, arguing, among other things, that questions of fact remain as to whether the roadway and Forestar’s access had been abandoned. We agree and reverse.

Summary judgment is appropriate when no genuine issues of material fact remain and the moving party is entitled to judgment as a matter of law. On appeal from the grant of summary judgment, we review the trial court’s ruling de novo, construing the evidence in the light most favorable to the nonmoving party. So viewed, the record shows that the Forestar tract abuts property owned by the estate of Pass’s father, Halton Ed Davis, who died in 1999 (“the Davis tract”). Pass is the executrix of her father’s will and the sole heir to his estate.

In 1953, Forestar’s predecessor-in-interest, Hoyt Howington, sued Davis for access to the Forestar tract. According to the 1953 complaint, Davis had improperly blocked a public road that ran through the Davis tract and provided access to the Forestar tract. Davis answered, denying that a public road or access existed on his property A jury, however, declared “the road in dispute a public road,” and Davis was enjoined from interfering with public use of the road traversing his land.

Despite the outcome of the 1953 lawsuit, Davis and his family continued to deny that a public road existed on the Davis tract, and Pass testified at a preliminary hearing in the case at issue here that the claimed route, which crossed difficult, terrain filled with tree stumps and fallen trees, was not passable. She also presented evidence that the road had been blocked for over 40 years, that no one had used it to reach the Forestar tract during this period, and that Forestar had accessed its property via another route. At least part of the road on the Davis tract, however, was paved and marked with double yellow lines down the center. Moreover, several property surveys identified the road as “Davis Road” or “County Road.”

Forestar obtained title to the Forestar tract in 2006. Two years later, Pass erected a gate across the paved portion of the road as it entered the Davis tract to stop people from dumping trash in the area. In 2011, a Forestar employee attempted to access the road through the gate, but it was locked. The employee cut the lock, then wrote to Pass, referencing Forestar’s access rights. When he returned to the property sometime later, he discovered that the gate had been secured with a new lock and that a “no trespassing” sign had been posted.

Forestar filed suit in 2012, asserting that Pass had illegally blocked access to Davis Road. The company sought injunctive relief, as well as damages for intentional interference with the enjoyment of property Following discovery, Forestar moved for partial summary judgment on its injunctive relief claim. The trial court granted Forestar’s motion, finding as a matter of law that a public road existed across the Davis tract and that Forestar had the right to access its property via the road. It thus permanently restrained and enjoined Pass from obstructing Forestar’s access.

On appeal, Pass argues that the trial court erred in granting summary judgment to F orestar because questions of fact remain as to abandonment. We agree. As a result of the 1953 lawsuit, Davis Road was declared to be a public roadway, and at least some evidence shows that it was designated as a county road. Members of the public have a right to use public roads, which cannot be blocked or obstructed by private parties. But a county road can be abandoned. And once a county properly abandons a road, “the rights of the public in and to the section of road as a public road shall cease.”

Construed favorably to Pass, the record shows that the roadway at issue had not been used for many years and was impassable. As Forestar notes, mere nonuse “does not work a forfeiture of the right to the use of a public road.” Pass’s abandonment claim, however, does not rest solely on nonuse. She also presented evidence that, in 2012, Jackson County officials abandoned a portion of the roadway traversing the Davis tract pursuant to the abandonment requirements in OCGA § 32-7-2 (b). We recognize that Jackson County issued a Certificate of Abandonment with respect to the road after Forestar commenced this lawsuit. But the evidence raises a question of fact as to whether, at the time of the trial court’s summary judgment ruling, the road had been abandoned, ending the public’s right to access and use it.

In granting summary judgment, the trial court found that even if the county had abandoned the road and terminated the public’s right to use it, Forestar still had “private rights of ingress and egress” across the road to the Forestar tract. It is true that parties owning land contiguous to a public roadway enjoy special rights not shared by all members of the public. In particular, such landowners have an easement of access to their property via the roadway, which “includes the right of ingress, egress, and regress.” An easement, however, “may be lost by abandonment or forfeited by nonuse if the abandonment or nonuse continues for a term sufficient to raise the presumption of release or abandonment.” The “term of nonuse” necessary to raise this presumption “generally follows the prescriptive period,” which is “seven years’ uninterrupted use through improved lands and 20 years’ use through wild lands.”

Pass offered evidence that the roadway crossing the Davis tract had not been used as a public road in over 40 years, during which time it had been continuously blocked and Forestar had accessed its property through another route. Regardless of whether the appropriate “term of nonuse” is seven or twenty years, this evidence created a jury question as to abandonment of any private access easement flowing from the roadway. The trial court, therefore, erred in granting summary judgment to Forestar.

Judgment reversed.

Dillard and Peterson, JJ., concur.

Decided May 27, 2016

Baker & Slider, John H. Baker, D. Jason Slider, for appellant.

Flint, Connolly & Walker, Douglas H. Flint, John F. Connolly, for appellee.

       Pass initially filed her appeal in the Supreme Court of Georgia, which transferred the case to this court.

       OCGA § 9-11-56 (c).

        Houston v. Flory, 329 Ga. App. 882, 883 (766 SE2d 227) (2014).

       Pass also filed a motion for summary judgment, which the trial court denied. That ruling is not enumerated as error in this appeal.

         See Barham v. Grant, 185 Ga. 601, 604 (5) (196 SE 43) (1938) (notingthat members of the public have a common right to use and enjoy a public highway); Lovell v. Rea, 278 Ga. App. 740, 745 (5) (629 SE2d 459) (2006) (trial court properly enjoined landowner from blocking access to public road); see also OCGA § 16-11-43 (“A person who, without authority of law, purposely or recklessly obstructs any highway, street, sidewalk, or other public passage in such a way as to render it impassable without unreasonable inconvenience or hazard and fails or refuses to remove the obstruction after receiving a reasonable official request or the order of a peace officer that he do so, is guilty of a misdemeanor.”).

       OCGA § 32-7-1.

       OCGA § 32-7-2 (b) (1).

        Doby v. Brown, 232 Ga. 42 (205 SE2d 299) (1974) (citation omitted). See also Garner v. Young, 214 Ga. 109, 110 (3) (103 SE2d 302) (1958) (“The mere non-use of a dedicated street is insufficient to show abandonment.”) (citations omitted).

       See OCGA § 32-7-2 (b) (1).

        Barham, supra at 604 (5).

       Id. at 605 (5).

       OCGA § 44-9-6.

        Albenberg v. Szalay, 332 Ga. App. 665, 669-670 (5) (774 SE2d 730) (2015) (citations and punctuation omitted).

       See Duffy Street S.R.O. v. Mobley, 266 Ga. 849-850 (1) (471 SE2d 507) (1996) (jury authorized to find that access easement had been abandoned where evidence showed that no one other than trespassers had used the easement for over 20 years and the predecessor-in-title to the party claiming the easement had erected a fence across the access point); Albenberg, supra at 670 (5) (presumption of abandonment raised where evidence showed that alleged holder of access easement over improved land had not used the easement in over seven years).

       See Moxley v. Adams, 190 Ga. 164, 165 (2) (8 SE2d 525) (1940) (“[W]here the testimony is in dispute as to the facts, the question as to any abandonment is for the jury, in applying to the evidence the law charged by the judge.”) (citations omitted).


author: McMlLLIAN, Judge.

text:
    A16A0368.
    HOBBS v. GREAT EXPRESSIONS DENTAL CENTERS OF GEORGIA, P.C.
    (786 SE2d 897)
   McMlLLIAN, Judge.

Terry E. Hobbs, Sr., appeals following the dismissal of his complaint for failure to file an expert affidavit pursuant to OCGA § 9-11-9.1. We now affirm in part and reverse in part as more fully set forth below.

We review a trial court’s ruling on a motion to dismiss de novo, viewing all well-pled allegations in the complaint as true. Fortson v. Freeman, 313 Ga. App. 326, 326 (721 SE2d 607) (2011). The record shows that Hobbs filed a verified complaint against appellee Great Expressions Dental Centers of Georgia, PC. (“Great Expressions”) asserting claims for breach of contract, fraud, breach of covenant of good faith and fair dealing, punitive damages, and attorney fees. Hobbs supported his claims by detailed allegations concerning the failure of Great Expressions’ dentists to properly perform and complete implant and related dental procedures. Great Expressions answered and moved to dismiss Hobbs’ complaint, arguing that Hobbs’ claims sounded in professional negligence and therefore required an expert affidavit pursuant to OCGA § 9-11-9.1. The trial court granted Great Expressions’ motion based solely on Hobbs’ failure to comply with OCGA § 9-11-9.1.

On appeal, Hobbs argues that the trial court erred because his complaint does not assert a claim for professional malpractice and instead is based on Great Expressions’ failure to “live up to its end of the bargain” by failing to provide Hobbs the services he paid for. However, the gist of Hobbs’ breach of contract claim is that Great Expressions’ dentists provided sub-standard care by negligently performing and failing to complete the services for which he paid. As our appellate courts have explained before, the expert affidavit requirement contained in OCGA § 9-11-9.1 (a) applies to “any action for damages alleging professional malpractice,” based on the failure to perform professional services in accordance with the applicable standard of care, including breach of contract claims. Fortson, 313 Ga. App. at 328 (although complaint stated various causes of action, expert affidavit required because substance of complaint raised only claim for professional negligence); Hodge v. Jennings Mill, Ltd., 215 Ga. App. 507, 509 (451 SE2d 66) (1994) (trial court erred by denying motion to dismiss breach of contract claim “to the extent it sounded in malpractice”); Crawford v. Johnson, 227 Ga. App. 548, 551 (2) (a) (489 SE2d 552) (1997) (Regardless of nomenclature, claim asserted by a plaintiff that is predicated on allegations “that the defendant-professional ... rendered negligent professional services” falls within the ambit of OCGA § 9-11-9.1 (a).). Accordingly, the trial court did not err by dismissing Hobbs’ breach of contract claim based on his failure to support this claim with the expert affidavit required by OCGA § 9-11-9.1.

Hobbs also argues that an expert affidavit is not required to support a fraud claim. Hobbs is correct that our appellate courts have repeatedly held that it is unnecessary to file an expert affidavit with a complaint asserting claims for intentional misconduct or acts against a professional, including claims for fraud and misrepresentation. Labovitz v. Hopkinson, 271 Ga. 330, 334 (3) (519 SE2d 672) (1999); Walker v. Wallis, 289 Ga. App. 676, 678 (658 SE2d 217) (2008); Murrah v. Fender, 282 Ga. App. 634, 635 (1) (639 SE2d 595) (2006); Hodge, 215 Ga. App. at 509. As to his fraud claim, Hobbs alleged in part that Great Expressions “made intentional misrepresentations ... in an attempt to deceive Plaintiff into continuing to patronize Great Expressions . . . after sub-standard service had been provided to Plaintiff,” and that such “misrepresentations were intended to deceive the Plaintiff of the services provided and believe that Great Expressions . . . was not responsible for the issues with the substandard service that had been provided.” Thus, Hobbs alleged that Great Expressions engaged in intentional conduct designed to deceive him while he was a patient there. Accordingly, Hobbs was not required to file an expert affidavit to support his fraud claim, and the trial court erred by dismissing his fraud claim based on this failure.

Decided May 27, 2016.

Weener & Nathan, Philip H. Weener, Devin B. Phillips, Zain N. Kapadia, for appellant.

Owen, Gleaton, Egan, Jones & Sweeney, M. B. Satcher III, for appellee.

Judgment affirmed in part and reversed in part.

Miller, P. J., and McFadden, J., concur.

       Hobbs also filed a claim for breach of covenant of good faith and fair dealing but does not challenge the dismissal of that claim. Accordingly, we do not reach this issue.

       Great Expressions also argues that Hobbs’ fraud claim should be dismissed because, by asking for a refund, Hobbs cannot show that he justifiably relied on any alleged misrepresentation. However, Great Expressions did not raise this contention in its motion to dismiss and reply brief in the trial court, and the trial court dismissed the complaint based solely on a failure to comply with OCGA § 9-11-9.1. Accordingly, we will not engage in a right for any reason analysis of this issue. Pfeiffer v. Ga. Dept. of Transp., 275 Ga. 827 (573 SE2d 389) (2002) (even in the context of de novo review, we do not apply the right for any reason rule to uphold an order of the trial court based on a ground not raised below).


author: MERCIER, Judge.

text:
    A16A0479.
    LOVELESS v. STATE OF GEORGIA.
    (786 SE2d 899)
   MERCIER, Judge.

In February 2015, the State of Georgia filed pursuant to OCGA § 16-13-49 (2014) a civil in rem complaint to condemn two amounts of cash (and other personal property) that law enforcement officers had allegedly found in close proximity to methamphetamine and marijuana during a search of Gary Loveless, his vehicle, and a room in an extended stay hotel.

Loveless filed an answer and amended answer to the complaint (collectively, “Answer”), claiming ownership of one of the amounts of cash ($12,231) and demanding its immediate return; denying allegations that the cash was found in close proximity to the drugs and that the cash had been used for, was intended to be used for, or constituted proceeds from illegal drug activity; contending that the officers had obtained the property in violation of his Fourth Amendment rights; and, stating that he was facing drug charges in a related criminal matter, asserting his rights under the Fifth Amendment (against self-incrimination) and under OCGA § 24-5-506 (a) (prohibiting a person charged in a criminal proceeding from being compelled to give evidence for or against himself). Loveless also contended that “answering the statutory requirements of OCGA § 16-13-49 (o) may” provide the State with evidence to be used against him, and that he was an innocent owner of the cash. See OCGA § 16-13-49 (e).

The State filed motions to strike Loveless’s Answer and for default judgment, asserting that the Answer did not comply with OCGA § 16-13-49 (o). After conducting hearings on the State’s motions, the trial court found that the Answer had failed to meet the requirements of OCGA § 16-13-49 (o) (3), in that Loveless had not included therein information as to the nature and extent of his interest in the cash, the date of the transfer, the identity of the transferor, and the circumstances of his acquiring an interest in the cash. The court found that Loveless “ha[d] instead chosen to assert a blanket right against self-incrimination in not meeting the requirements of [that statute],” and it noted that he had “never requested a stay of the forfeiture proceedings pending the outcome of his criminal prosecution.” Loveless appeals the court’s order granting the State’s motions to strike the Answer and for default judgment condemning and forfeiting the property.

1. Loveless contends that the trial court erred by striking his Answer, because “the answer involved disputed facts and substantial questions of law dealing with alleged unconstitutional seizure and specific assertion of statutory privilege.” This contention is without merit.

The trial court’s ruling on a motion to strike is reviewed for abuse of discretion. However, we conduct a de novo review of the trial court’s application of the law to undisputed facts, owe no deference whatsoever to the trial court’s conclusions of law, and are free to apply anew the legal principles to the facts.

Crimley v. State of Ga., 330 Ga. App. 639, 641 (768 SE2d 813) (2015) (citation and punctuation omitted).

“In a civil in rem forfeiture action, a claimant’s answer must be in strict compliance with the special pleading requirements of OCGA § 16-13-49 (o) (3).”Arreola-Soto v. State of Ga., 314 Ga. App. 165, 166 (1) (723 SE2d 482) (2012); see Sanders v. State of Ga., 259 Ga. App. 422, 425 (2) (577 SE2d 94) (2003) (a forfeiture action under OCGA § 16-13-49 is a civil proceeding). Where the answer does not contain those requisite facts to support the claimant’s ownership assertions, it does not comply with the statute’s specific pleading requirements. State of Ga. v. Alford, 264 Ga. 243, 245 (2) (444 SE2d 76) (1994). The pleading requirements of OCGA § 16-13-49 (o) (3) must be followed, and“[t]he failure to timely file an answer in strict compliance with the specific pleading requirements of the forfeiture statute results in dismissal” of the answer. Jones v. State of Ga., 241 Ga. App. 768, 769 (2) (527 SE2d 611) (2000); see Jett v. State of Ga., 230 Ga. App. 655, 657 (3) (498 SE2d 274) (1998) (physical precedent only).

Under OCGA § 16-13-49 (o) (3) (D) (2014), the answer filed by an owner of property which asserts a claim against the property “must set forth: . . . [t]he date, identity of transferor, and circumstances of the claimant’s acquisition of the interest in the property...Loveless did not include in his Answer the date of the transfer of the cash, the identity of the transferor, or the circumstances of his acquiring the cash. He thus failed to satisfy the specific statutory pleading requirements regarding factual information that must be included in claims or answers filed by those claiming interests in seized property Accordingly, the court did not err by striking Loveless’s Answer as legally insufficient and by entering a default judgment of forfeiture. See Dearing v. State of Ga., 243 Ga. App. 198, 200, 203 (2) (532 SE2d 751) (2000); Jones, supra.

We find unconvincing Loveless’s argument that the privilege set out in the Fifth Amendment and in OCGA § 24-5-506 overrides the clear and well-settled requirement that, to be sufficient, an answer in a civil forfeiture proceeding must include the information requested in OCGA § 16-13-49 (o) (3). Loveless cites no Georgia cases on point that support his argument. We point out that

there is no blanket Fifth Amendment right to refuse to answer questions in noncriminal proceedings. The privilege must be specifically claimed on a particular question and the matter submitted to the court for its determination as to the validity of the claim.... The questions must at the very least be considered on an individual basis and answered accordingly

Tennesco, Inc. v. Berger, 144 Ga. App. 45, 48 (240 SE2d 586) (1977) (citations and punctuation omitted). Loveless did not consider each question on an individual basis and specifically claim privilege on each question. Instead, he “elect[ed] his rights . . . against self-incrimination as well as ... to be free from being compelled to give evidence for or against himself,” adding that

answering the statutory requirement of OCGA § 16-13-49 (o) may provide the State a colorable claim of association with others who may have been involved in activities unknown to respondent.. . which . . . may provide the State a claim of association with what the state has now charged as criminal activity.

Notably, there is considerable authority that in a civil forfeiture action, the court may as a matter of law draw inferences from a property claimant’s invocation of the right against self-incrimination, and such inferences may constitute admissions unfavorable to him. Land v. State of Ga., 265 Ga. App. 859 (595 SE2d 540) (2004); Sanders, supra at 425-426 (2) (regarding Fifth Amendment); Simpson v. Simpson, 233 Ga. 17, 19-20 (209 SE2d 611) (1974) (permitting unfavorable inference to be drawn in civil cases from a privileged refusal to testify, where witness claims privilege embodied in Georgia statutes — such as former Ga. Code § 38-1205, which provided that no party shall be required to testify as to certain matters; the court’s analysis was not limited to cases in which a party asserts a privilege not to answer questions that have a direct tendency to incriminate him, but also included cases in which a party asserts a privilege from “answering any question which may form a link in the chain”).

The burden is on the individual claiming the privilege “to state the general reason for his refusal to answer and to specifically establish that a real danger of incrimination existed with respect to each question.” Jett, supra at 656 (2), citing Petty v. Chrysler Credit Corp., 169 Ga. App. 418 (312 SE2d 874) (1984) (citations and punctuation omitted). Loveless did not meet that burden. The trial court may strike an answer when it fails to comply with the requirements of OCGA § 16-13-49 (o) (3). Holmes v. State of Ga., 270 Ga. App. 882 (1) (608 SE2d 325) (2004).

Further, Loveless was not compelled to give evidence for or against himself in order to answer the forfeiture petition, inasmuch as he could have requested a stay of the forfeiture proceeding while the criminal case was pending, but did not do so. See OCGA § 16-13-49 (w); Clemons v. State, 257 Ga. App. 96, 103 (3) (574 SE2d 535) (2002).

Loveless also complains that the trial court erred by striking his Answer when he had raised therein a sufficient defense, namely that the search and seizure occurred in violation of the Fourth Amendment. However, the Answer did not include those factual disclosures that the statute required. See Arreola-Soto, supra. In the absence of a legally sufficient answer, the trial court was without authority to consider the suppression issue. See Jones, supra at 770 (4); Tuggle v. State of Ga., 224 Ga. App. 353, 355-356 (3) (480 SE2d 353) (1997).

The Answer filed was insufficient, and the court did not err by striking it. See Jones, supra; Edwards v. State of Ga., 290 Ga. App. 467 (659 SE2d 852) (2008); Howard v. State of Ga., 223 Ga. App. 323, 325 (477 SE2d 605) (1996) (failure to comply with the strict pleading requirements of OCGA § 16-13-49 (o) (3) when answering an in rem forfeiture petition is equivalent to filing no answer at all). Upon striking the answer, the court was authorized to order the disposition of the seized property See OCGA § 16-13-49 (o) (4); Owens v. State of Ga., 241 Ga. App. 140 (3) (525 SE2d 150) (1999).

Decided May 27, 2016.

Forrest K. Shealy, for appellant.

D. Victor Reynolds, District Attorney, A. Jason Saliba, Amelia G. Pray, Assistant District Attorneys, for appellee.

2. Loveless contends that the trial court erred by not granting his motion to dismiss the condemnation complaint when no hearing was held within 60 days after the complaint was served. See OCGA § 16-13-49 (o) (5). However, the 60-day hearing requirement applies only where a sufficient answer was filed. See Owens, supra; see Alford, supra. Where, as here, the Answer did not strictly comply with the special pleading requirements of OCGA § 16-13-49 (o) (3), the 60-day hearing requirement was not applicable. See Owens, supra; Portee v. State of Ga., 277 Ga. App. 536, 538-539 (3) (627 SE2d 63) (2006).

Judgment affirmed.

Ellington, P. J., and Branch, J., concur.

       OCGA § 16-13-49 (2014) was repealed and replaced effective July 1, 2015. The forfeiture proceeding in this case, filed in February 2015, is thus governed by the 2014 version of the statute.