text:
    A15A1383.
    PATRICK MALLOY COMMUNITIES, LLC et al. v. COMMUNITY & SOUTHERN BANK.
    (778 SE2d 242)
   BARNES, Presiding Judge.

Patrick Malloy Communities, LLC (“PMC”) and J. Patrick Malloy, Jr. (hereinafter the “appellants”) appeal the trial court’s grant of summary judgment in favor of Community & Southern Bank (“CSB”) on CSB’s claims for breach of a promissory note and guaranty. The appellants contend that CSB failed to prove, through competent evidence, that CSB had been assigned the rights to the note and guaranty by the Federal Deposit Insurance Corporation (“FDIC”), as receiver for the failed bank that previously held those debt instruments. Consequently, the appellants contend that CSB failed to demonstrate its status as the real party in interest with authority to enforce the note and guaranty. The appellants further argue that discrepancies between an affidavit submitted by CSB and a payment history for the loan account precluded the grant of summary judgment as to the amount of damages owed to CSB.

Because the uncontroverted, competent evidence of record demonstrates that CSB was the assignee of the note and guaranty, we affirm the trial court’s grant of summary judgment to CSB on its claim that the appellants were liable for breach of those debt instruments. However, because material discrepancies between the affidavit submitted by CSB and the payment history for the loan create a factual issue over the amount of unpaid principal, interest, and contractual attorney fees owed on the note and guaranty, we reverse the trial court’s grant of summary judgment to CSB as to the amount of damages.

“[S]ummary judgment is appropriate when the moving party can show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law.” (Punctuation and footnote omitted.) Citrus Tower Boulevard Imaging Center v. David S. Owens, MD, PC, 325 Ga. App. 1, 1-2 (752 SE2d 74) (2013). See OCGA § 9-11-56 (c). “On appeal from a trial court’s grant of summary judgment, we conduct a de novo review, construing all reasonable inferences in the light most favorable to the nonmoving party.” (Citation and punctuation omitted.) Bobick v. Community & Southern Bank, 321 Ga. App. 855, 856 (743 SE2d 518) (2013).

So viewed, the records shows that PMC was a residential real estate developer. On July 22, 2008, in connection with a loan for the purchase and development of a subdivision, PMC entered into a commercial promissory note with First National Bank of Georgia in the principal amount of $3,500,000, plus interest (the “Note”). Malloy, the sole manager and member of PMC, had previously signed an unlimited commercial guaranty in favor of West Georgia National Bank, which later merged into First National Bank (the “Guaranty”). Under the Guaranty, Malloy was obligated to repay all current or future debts owed by PMC to West Georgia National Bank and “its successors and assigns.” Following execution of the Note and Guaranty, the loan proceeds were released by First National Bank and properly disbursed.

In January 2010, First National Bank failed and was closed by the Office of the Comptroller of the Currency, and the FDIC was appointed as receiver. On January 29, 2010, the FDIC, acting as receiver, entered into a Purchase and Assumption Agreement under which it transferred assets of First National Bank to CSB, including “Loans” owed to or held by the failed bank (the “P&A Agreement”).

The FDIC as receiver later executed an “Assignment of Security Instruments and other Loan Documents” that was recorded in the deed book records of Cherokee County (the “Assignment Agreement”). Under the Assignment Agreement, the FDIC assigned and transferred to CSB all

rights, title, and interests in and to all those certain Mortgages, Security Deeds, Deeds to Secure Debt, Deeds of Trust, Assignments of Rents and Leases, UCC-1 financing statements, judgment liens, and all such other instruments and security agreements securing loans owned by First National Bank of Georgia and held of record by First National Bank of Georgia or any of its predecessors (including West Georgia National Bank which was merged into First National Bank of Georgia) as of January 29, 2010 ... and all modifications, extensions, amendments and renewals thereto (collectively, the “Security Instruments”) [,] TOGETHER with all of the underlying debts described in such Security Instruments.

The FDIC further assigned and transferred to CSB all

rights, title and interests in and to the promissory notes, loan documents and all other indebtedness secured by the Security Instruments, as evidenced by related promissory notes, any and all loan agreements, pledges, security agreements and UCC financing statements and all modifications, extensions, amendments and renewals to said documents and instruments together with any and all other loan documents, title policies and casualty insurance policies evidencing, securing or relating to any of the foregoing all of which have been delivered to . . . [CSB].

In accordance with the P&A Agreement and the Assignment Agreement, CSB came into possession of the Note and Guaranty.

PMC failed to pay all of the amounts due under the Note, and Malloy failed to meet his repayment obligations under the Guaranty. CSB then accelerated the amounts due and sent a notice of default to the appellants. When the appellants failed to cure the default, CSB sued them for breach of the Note and Guaranty, seeking to recover unpaid principal, interest, late fees, and attorney fees. The appellants answered and alleged, among other things, that CSB was not the real party in interest with authority to enforce the Note and Guaranty.

Following discovery, CSB moved for summary judgment. CSB argued that it had established its prima facie right to recover under the Note and Guaranty, and that the appellants had failed to come forward with any evidence in support of their affirmative defenses or to raise a question of fact challenging the bank’s right to recover unpaid principal, interest, and attorney fees. The appellants opposed the motion, arguing that CSB had not established that it was the assignee of the Note and Guaranty or proven the amount of damages it was owed under the loan documents. After conducting a hearing where the parties presented oral argument, the trial court granted summary judgment in favor of CSB on its claims for breach of the Note and Guaranty and awarded the amount of unpaid principal, interest, and contractual attorney fees sought by CSB in its motion. This appeal followed.

1. In two related enumerations of error, the appellants contend that CSB was not entitled to summary judgment because it failed to establish, through admissible evidence, that it had been assigned the Note and Guaranty by the FDIC as receiver for First National Bank, and thus failed to demonstrate its status as the real party in interest. We disagree.

“Every action shall be prosecuted in the name of the real party in interest.” OCGA § 9-11-17 (a). See Greenstein v. Bank of the Ozarks, 326 Ga. App. 648, 650 (2) (757 SE2d 254) (2014). And, under the law of contracts,

[t]he doctrine of privity of contract requires that only parties to a contract may bring suit to enforce it. A party may assign to another a contractual right to collect payment, including the right to sue to enforce the right, and the assignment must be in writing in order for the contractual right to be enforceable by the assignee.

(Citation and punctuation omitted.) Bobick, 321 Ga. App. at 859 (2).

In support of its motion for summary judgment, CSB submitted the amended affidavit of John Harvey, a CSB employee who was appointed as an attorney in fact by the FDIC, which authorized him to execute assignment documents that evidenced the sale and transfer of assets of First National, including all loans held by the failed bank, to CSB pursuant to the P&A Agreement. Harvey stated that the Note and Guaranty had been assigned and transferred to CSB by the FDIC, in its capacity as receiver, pursuant to the P&A Agreement and the Assignment Agreement. Attached as exhibits to the affidavit were the Limited Power of Attorney granted to Harvey by the FDIC as receiver, the P&A Agreement, and the Assignment Agreement.

CSB also submitted the affidavit of Patrick Dowling, a “Senior Workout Specialist for the Resolution Workout Group” with CSB who was familiar with CSB’s books and records and maintained its loan files related to the present case. Dowling stated that all the business records associated with the Note and Guaranty had been transferred and delivered to CSB by the FDIC, as receiver for First National Bank, and had been obtained and maintained by CSB as part of the regular course of its business. Dowling further stated that the originals of the Note and Guaranty, copies of which were attached to his affidavit, were currently in the possession of CSB.

Contending that CSB failed to prove through competent evidence that it was the assignee of the Note and Guaranty, the appellants maintain that the trial court should have disregarded the P&A Agreement and the Assignment Agreement because those documents constituted hearsay, and Harvey failed in his affidavit to lay a proper foundation for their admission under the business record exception to hearsay. See OCGA § 24-8-803 (6) (business record exception). We disagree.

“Admissibility of evidence on motion for summary judgment is governed by the rules relating to form and admissibility of evidence generally.” (Citation and punctuation omitted.) Maloof v. MARTA, 330 Ga. App. 763, 765 (1) (769 SE2d 174) (2015). “All hearsay evidence, unsupported conclusions, and the like, must be stricken or eliminated from consideration in a motion for summary judgment.” (Footnote omitted.) Liles v. Innerwork, Inc., 279 Ga. App. 352, 353 (1) (631 SE2d 408) (2006). We will not disturb a trial court’s ruling on the admissibility of an alleged hearsay document absent an abuse of discretion. Maloof, 330 Ga. App. at 765 (1).

The trial court did not abuse its discretion in considering the P&A Agreement and the Assignment Agreement because neither constituted hearsay. “ ‘Hearsay’ means a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” (Footnote omitted.) Blue v. Hemmans, 327 Ga. App. 353, 358 (1) (759 SE2d 72) (2014) (quoting OCGA § 24-8-801 (c)). But

[a] statement that has legal consequences independent of its truth or falsity is considered a “verbal act” and is not hearsay when those legal consequences are relevant or material to the case. The simplest example is an out-of-court statement establishing or defining the terms of a contract.

(Footnotes omitted.) Paul S. Milich, Georgia Rules of Evidence § 17:6 at 620-621 (2014-2015 ed.). See Danes v. Rogers, 324 Ga. App. 504, 507-508 (3) (751 SE2d 135) (2013); Hampton Island v. Asset Holding Co. 5, 320 Ga. App. 880, 882 (1) (a) (740 SE2d 859) (2013); Stubbs v. Dubois, 306 Ga. App. 171, 173 & n. 5 (702 SE2d 32) (2010). Because the P&A Agreement and the Assignment Agreement define the terms of the contractual relationship between the FDIC as receiver and CSB, the documents constitute “verbal acts” and are not hearsay. See id. The trial court thus committed no error in considering those documents.

The appellants also contend that the trial court erred in considering the statements made by Harvey in his affidavit regarding the FDIC’s assignment of the Note and Guaranty to CSB. The appellants emphasize that Harvey was not appointed as an attorney in fact for the FDIC until 2013, but the alleged assignment of the Note and Guaranty occurred in 2010. Because Harvey was not appointed as an attorney in fact for the FDIC until after the assignment, the appellants argue that he lacked personal knowledge of the assignment and that the trial court thus should have disregarded his statements regarding the assignment in his affidavit.

[WJhile a statement in an affidavit that it is based upon personal knowledge is generally sufficient to meet the requirement that affidavits be made upon such knowledge, if it appears that any portion of the affidavit was not made upon the affiant’s personal knowledge, or if it does not affirmatively appear that it was so made, that portion is to be disregarded in considering the affidavit in connection with the motion for summary judgment.

(Citation and punctuation omitted.) Greenstein, 326 Ga. App. at 651 (2). But even if the tffal court should have disregarded Harvey’s statements in his affidavit regarding the assignment for lack of personal knowledge, see Thomas v. State Bank & Trust Co., 330 Ga. App. 274, 276-277 (1) (765 SE2d 443) (2014) (physical precedent only), the error was harmless because the other competent evidence of record demonstrated that CSB was the assignee of the Note and Guaranty as a matter of law. See, e.g., Miller Grading Contractors v. Ga. Fed. Sav. & Loan Assn., 247 Ga. 730, 734 (3) (279 SE2d 442) (1981) (noting that, at summary judgment stage of the proceedings, “error which is harmless will not be cause for reversal”).

It is undisputed that First National Bank failed and that the FDIC was appointed as receiver for the failed bank with authority to transfer and assign its assets to another bank, including its loan portfolio. See 12 USC § 1821 (d) (2) (G) (i) (II) (granting FDIC power as receiver to “transfer any asset or liability of the institution in default (including assets and liabilities associated with any trust business) without any approval, assignment, or consent with respect to such transfer.”). And CSB submitted documents reflecting a complete chain of assignment for the transfer and assignment at issue, including the Note, the Guaranty, the P&A Agreement, which listed the FDIC as receiver for First National Bank and assigned “Loans” of First National Bank to CSB, and the recorded Assignment Agreement in which the FDIC as receiver for First National Bank assigned the promissory notes and all other loan-related documents of First National Bank to CSB. Furthermore, CSB submitted the affidavit of Dowling, CSB’s custodian of the loan files at issue, who stated that CSB had acquired the Note and Guaranty from the FDIC as receiver for First National Bank and currently had the original loan documents in its possession.

This combined evidence, which was uncontroverted by the appellants, established a valid assignment of the Note and Guaranty to CSB as a matter of law. See Bobick, 321 Ga. App. at 860 (2); Heritage Constr. Corp. v. State Bank & Trust Co., 316 Ga. App. 25, 27 (728 SE2d 703) (2012); Kensington Partners v. Beal Bank Nevada, 311 Ga. App. 196, 197 (1) (715 SE2d 491) (2011). Thus, even if the statements regarding the assignment in Harvey’s affidavit should have been disregarded, the trial court did not err in granting summary judgment to CSB on its claims for breach of the Note and Guaranty. See id. Compare Thomas, 330 Ga. App. at 276-278 (1) (reversing grant of summary judgment in favor of bank where affiant lacked personal knowledge of the assignment, and the bank failed to submit documents reflecting a complete chain of assignment for the note at issue, including the assignment agreement).

2. The appellants also argue that the trial court erred in granting summary judgment to CSB as to the amount of damages due under the Note and Guaranty. We agree.

‘Where a party sues for damages, it has the burden of proof of showing the amount of loss in a manner in which the trial judge can calculate the amount of the loss with a reasonable degree of certainty.” Nelson v. Hamilton State Bank, 331 Ga. App. 419, 421 (2) (771 SE2d 113) (2015), quoting Myers v. First Citizens Bank & Trust Co., 324 Ga. App. 293, 296 (2) (750 SE2d 378) (2013). Thus, in a suit to enforce a promissory note or guaranty, “the plaintiff has the burden of proving that the defendant is indebted to him and in a definite and correct amount.” (Citation and punctuation omitted.) Id.

To prove the amount of its damages, CSB relied upon the previously discussed affidavit of Dowling, a bank employee who was familiar with CSB’s books and records and maintained the relevant loan files. Dowling stated:

As of May 22, 2013, [the appellants] owe [CSB] the following amounts of $1,485,845.67 in principal and $315,943.20 in interest. The interest continues to accrue at the rate of $154.78 per day, additionally; [CSB] is entitled to recover fifteen percent of the outstanding principal and interest as attorneys’ fees, which equal [ ]$270,268.33.

To support his damages calculations, Dowling relied upon the terms of the Note and a payment history for the loan from July 11, 2006 to May 22, 2013, both of which were attached to his affidavit as exhibits.

However, a review of the payment history attached to Dowling’s affidavit reveals certain material discrepancies that are not explained. Specifically, Dowling in his affidavit states that interest accrues on the Note at the rate of $154.78 per day, but the payment history identifies the per diem interest rate as $163.68. Moreover, while Dowling states in his affidavit that the principal balance is $1,485,845.67 as of May 22, 2013, the payment history of that date states that the principal balance is $1,571,345.67.

While there may be an explanation for these discrepancies, CSB does not offer one, even though it bears the burden of proving its damages in a definite and certain amount. Nelson, 331 Ga. App. at 421 (2). And because the discrepancies are material to the amount of unpaid principal, interest, and contractual attorney fees (which are calculated as a percentage of the principal and interest) owed by the appellants, we conclude that material issues of fact exist as to the amount of damages. Consequently, the trial court’s grant of summary judgment to CSB as to the amount of damages owed under the Note and Guaranty must be reversed. See Thomason v. FIA Card Svcs., 330 Ga. App. 603, 605 (768 SE2d 785) (2015) (summary judgment inappropriate in light of inconsistencies between affidavit and the exhibits attached thereto); Circle K Stores v. T. O. H. Assoc., 318 Ga. App. 753, 759 (3) (734 SE2d 752) (2012) (discrepancies between figures shown on invoice and in lease created genuine issue of material fact over amount due under lease); Jackson v. Cavalry Portfolio Svcs., 314 Ga. App. 175, 177 (723 SE2d 475) (2012) (discrepancy between account statement and affidavit over the amount of unpaid balance that was due precluded grant of summary judgment to creditor).

Decided October 2, 2015.

Smith Conerly, Charles S. Conerly, David A. Luzum, for appellants.

Busch White Norton, Bryan E. Busch, Shane P. Stogner, Laura H. Mirmelli, Toqeer A. Chouhan, for appellee.

Judgment affirmed in part and reversed in part.

Ray and McMillian, JJ., concur.

       CSB sued PMC for breach of two additional promissory notes but did not move for summary judgment with respect to them.

       CSB did not move for summary judgment on its claim for unpaid late fees owed under the Note and Guaranty.

       Because CSB filed its motion for summary judgment in June 2013, Georgia’s revised Evidence Code applies to the evidentiary issues raised in this case. See Ga. L. 2011, p. 99, § 101 (revised Evidence Code “shall become effective on January 1, 2013, and shall apply to any motion made or hearing or trial commenced on or after such date”); Roberts v. Community & Southern Bank, 331 Ga. App. 364, 369 (2), n. 2 (771 SE2d 68) (2015).

       The appellants argue that CSB has not shown a complete chain of title because the Guaranty was executed by Malloy in favor of West Georgia National Bank rather than First National Bank. The appellants’ argument is without merit. The “lender” on the Guaranty is identified as West Georgia National Bank and “its successors and assigns,” and the Assignment Agreement expressly transferred and assigned to CSB all notes and other loan documents held by First National Bank “or any of its predecessors (including West Georgia National Bank which was merged into First National Bank of Georgia).”

         The Note indicates on its face that it was the renewal of a prior commercial note.

       Compare Lockwood v. Fed. Deposit Ins. Corp., 330 Ga. App. 513, 517-518(2) (b) (767 SE2d 829) (2014) (reference to “unapplied payments” and “unapplied credits” in payment records, without more, was insufficient to create genuine issue of material fact as to amount of unpaid principal, where bank records otherwise showed “a definite amount outstanding on the principal balance”); Bogart v. Wisconsin Institute for Torah Study, 321 Ga. App. 492, 495-496 (3) (739 SE2d 465) (2013) (summary judgment properly granted to creditor where the alleged inconsistencies in the pleadings and evidence were not material to the amount due on the account).


source: Caselaw Access Project

author: BARNES, Presiding Judge.

license: Public Domain

text:
    A15A1541, A16A0061.
    SMITH v. PEARCE (two cases).
    (778 SE2d 248)
   BARNES, Presiding Judge.

Melissa Kay Smith appeals the superior court’s order granting John Blake Pearce’s petition for legitimation and custody of the parties’ minor child, T. C. F. Smith also appeals the court’s denial of her motions to dismiss, its award of OCGA § 9-15-14 attorney fees to Pearce, and its order finding her in contempt for failing to pay those fees. For reasons that follow, we affirm the legitimation and custody ruling, but we vacate the attorney fee award and remand for further proceedings. We also vacate the contempt award.

“When reviewing a superior court’s custody ruling, we view the evidence in the light most favorablé to the trial court’s decision.” Strickland v. Strickland, 330 Ga. App. 879 (769 SE2d 607) (2015). So viewed, the record shows the following relevant facts.

Pearce and Smith dated in high school from 2005 to 2007, but broke up in college. Smith began dating Cole Fahey in 2009 and got engaged to him in November of that year. The engagement soon ended, however, and in December 2009 Smith visited Pearce and was intimate with him. Shortly thereafter, she reconciled with Fahey. In January 2010, Smith learned that she was pregnant, and she married Fahey the following month. T. C. F. was born in September 2010. Fahey is listed on T. C. F.’s birth certificate as the father, and he believed that he was, in fact, T. C. F.’s biological father.

In early 2011, Smith, Fahey, and T. C. F. moved to Florida because Fahey, who serves in the military, was stationed there. The relationship between Smith and Fahey grew rocky, culminating in a fight in June 2011 in which Fahey broke down a door and injured Smith’s leg. After the fight, Smith left Fahey because she was afraid for him to be around T. C. F., and she and the baby went to live with her mother. Smith reported the fight to Fahey’s commanding officer, who ordered Fahey to take anger management classes. Fahey later filed-for divorce in Florida.

Meanwhile, before moving to Florida with Fahey, Smith had contacted Pearce “trying to get back together.” Smith introduced Pearce to T. C. F. and said that she wished Pearce — rather than Fahey — had fathered the baby. After moving to Florida, Smith regularly called Pearce, and after leaving Fahey, she once again sought him out. Although Smith was still married to Fahey, she once again became intimate with Pearce, telling him that she and Fahey were separated and that he had abused her.

In September 2011, at Smith’s urging, Pearce took a drug-store paternity test, which showed with 99.99% certainty that he was T. C. F.’s biological father. Pearce eagerly accepted T. C. F. as his son, and both Smith and Pearce told their families and friends the news. Pearce leased a townhouse in Sandy Springs, and Smith and T. C. F. moved in with him in what Smith described as an effort to have “a nice, happy, normal family.” Pearce assisted with childcare and paid the rent, utilities, and food expenses, as well as half of T. C. F.’s preschool tuition.

Smith and Fahey’s divorce became final in March 2012. During the course of the proceedings, Fahey had taken a paternity test that ruled him out as T. C. F.’s biological father. Accordingly, the Florida circuit court’s divorce judgment provided as follows:

There was one child born during the marriage, [T. C. F.], born September 10, 2010, age 1 year. Genetic testing has revealed that the Husband is not the biological father of the minor child. The Wife states that John Pierce [sic] is the biological father of the minor child. By stipulation of the parties, the Husband, Cole D. Fahey, shall have no parental rights or responsibilities regarding the minor child, [T. C. F.].

Smith claims that her relationship with Pearce began deteriorating in March 2012 and that he raped her in June 2012, but she did not report the alleged rape to the police or anyone else. Afterward, Smith continued to live with Pearce, texted him that she loved him, and proceeded with a previously-booked cruise she had bought for Pearce as a Father’s Day present. She and Pearce discussed him legitimating T. C. F., and although Smith claimed to support that process, she did not cooperate with completing the necessary paperwork.

Smith began seeing Fahey again surreptitiously. In October 2012, she told Pearce she was spending the weekend with college friends, but instead she traveled to Mississippi to attend a military ball with Fahey. Pearce cared for T. C. F. while Smith was away. Smith alleges that when she returned from the trip, T. C. F. told her, “Dada kiss my pee-pee.” Smith claims that she immediately confronted Pearce, who failed to allay her concerns. Pearce denies that the incident occurred or that Smith confronted him about it. Smith did not report T. C. F.’s alleged statement to the police, Georgia’s Department of Family and Children Services (“DFCS”), or anyone else until eight months later. After the alleged touching, she continued to live with Pearce and to leave T. C. F. alone with him.

In November 2012, Pearce hired a lawyer and filed this petition for legitimation and custody. Later that month, he moved out of the townhouse because he had learned that Smith was seeing Fahey again and he and Smith were not getting along well. Pearce moved into a house nearby and set up one of the bedrooms for T. C. F. Smith told Pearce that she would get an apartment in Atlanta, and the two agreed to separate on good terms and share parenting time. At one point, Smith texted Pearce, “[I]t’s important for you to be in [T. C. F.’s] life regularly.” But in early December 2012, after Smith learned that Pearce had hired a lawyer, she e-mailed him that he could have no contact with her or T. C. F. until she, too, had retained counsel. Then, unbeknownst to Pearce, Smith withdrew T. C. F. from preschool, quit her job, left Atlanta, and moved back to her mother’s house with T. C. F. Four weeks later — again without telling Pearce — Smith remarried Fahey.

For the next 18 months, Pearce did not know where Smith and T. C. F. were. He sent her multiple e-mail and text messages asking about T. C. F, but she did not respond. He called the police and DFCS, to no avail. The sheriff’s department was unable to serve Smith with the summons and complaint, so Pearce hired private investigators and special process servers, who also were unable to find Smith and T. C. F. Smith entered a limited appearance in this case and moved to dismiss the petition, but the superior court denied her motion, finding that she had purposely evaded service, and authorized Pearce to serve her by publication. Smith appealed that ruling to this Court, but we dismissed the appeal as premature. See Smith v. Pearce, Case No. A14A0298, decided August 7, 2014. Smith later filed another motion to dismiss in the superior court, this time arguing lack of subject matter jurisdiction, but the court also denied that motion.

In April 2013, Smith, Fahey, and T. C. F. moved to Florida for Fahey’s job. That July, Smith reported T. C. F.’s alleged November 2012 molestation outcry to a family therapist, who found nothing to substantiate the molestation allegations. Nonetheless, as a mandatory reporter, the therapist contacted Florida’s Child Protective Services, which investigated but found no indication that T. C. F. had been molested. The Florida agency also contacted DFCS, which apparently conducted its own investigation and likewise found no evidence of molestation.

In January 2014, Pearce married a woman with a young daughter, whom Pearce has since adopted. The family lives in a comfortable home, and Pearce has a stable job. Both Pearce and his wife want T. C. F. to join their family.

Beginning in February 2014, the case proceeded to a bench trial that spanned four days over a seven-month period. During the trial, the superior court entered interim orders permitting Pearce to have contact with T. C. F. for the first time in 18 months. Pearce began communicating regularly with the boy through Skype and Facetime, and he traveled several times to Virginia, where Smith and Fahey now live, for visitation, which initially was supervised at Smith’s demand and Pearce’s expense. During their first Facetime interaction, although T. C. F. immediately recognized Pearce and seemed happy to speak with him, T. C. F. repeatedly told Pearce, “You’re shit”; in a later visit, he called Pearce stupid. In addition, Pearce testified that Smith and Fahey tried to undermine his relationship with T. C. F. by cutting communications short, sending him to planned visits exhausted and hungry, telling him that Pearce or the police would take him away from Smith and Fahey, and forbidding him from hugging Mrs. Pearce.

In April 2014, before his first in-person visits with T. C. F, Pearce submitted to court-ordered psychological and psychosexual evaluations. After multiple days of interviews and testing, paid for largely by Pearce, the psychosexual evaluator concluded that there was no evidence that Pearce was sexually interested in children or had molested T. C. F. The psychologist described Pearce as a “well-functioning individual” with no clinical disorders and “many characteristics that are likely to produce positive parenting including his intellect, his ability to earn an income and provide stability, his obvious concern and caring for his son, and his desire to be a parent.” Despite these reports, however, Smith testified that she still has concerns about T. C. F. being alone with Pearce. She apparently has enlisted other criminal and social services agencies to undertake further investigation, and she plans to take T. C. F. to a hospital that specializes in testing for sexual abuse in young children.

Following the bench trial, the superior court entered an order declaring T. C. F. to be Pearce’s legitimate child, ordering his surname to be changed to Pearce, and awarding Smith and Pearce joint legal custody of the boy, with Pearce having primary physical custody. The court found that Pearce was a loving father who appeared “sincerely hungry for the company of his child and for a chance to bond in a normal fashion with him” and who also would “foster a loving relationship between [T. C. F] and the Mother.” The court stopped short of declaring that Smith had fabricated the rape and molestation allegations, but found her “two year crusade” about the alleged molestation to be “disturbing.” The court further found that Smith had essentially used Pearce when it was convenient for her, then pushed him away with a “lack of appreciation for the seriousness of this matter and the amount of pain she had caused [him].” Finally, the court worried that if Smith remained the primary custodial parent, Pearce “will never be allowed to bond with and parent the child with all he has to give and the child will suffer tremendously from such a loss.” Later, the court entered a separate order awarding Pearce $68,500 in attorney fees, plus expenses, under OCGA § 9-15-14. The court ruled that Smith had engaged in various actions for delay and harassment and had unnecessarily prolonged and expanded the litigation.

Smith filed a motion to set aside the legitimation and custody order, arguing that although legitimizing T. C. F. as Pearce’s child was “the right thing to do,” the evidence did not support the court’s custody ruling. She also filed a motion for new trial, arguing that the court failed to consider the “best interest” factors under OCGA § 19-9-3 (a) (3) in issuing its custody award. The superior court denied both motions, and in Case No. A15A1541, Smith appeals the court’s legitimation, custody, and fee order, as well as its prior orders denying her motions to dismiss.

When Smith failed to pay the ordered attorney fees, Pearce filed a petition to cite her for contempt. Following a hearing, the superior court granted the petition, directing Smith to make payments at specified intervals or face incarceration. In Case No. A16A0061, Smith appeals the contempt order.

Case No. A15A1541

1. Smith argues that the superior court erred by denying her motion to dismiss for lack of subject matter jurisdiction. She maintains that legitimating T. C. F. first requires terminating Fahey’s parental rights — something only a juvenile court can do. We disagree.

While superior courts have subject matter jurisdiction over legitimation petitions, see Allifi v. Raider, 323 Ga. App. 510, 511 (1) (746 SE2d 763) (2013), juvenile courts have exclusive jurisdiction over termination of parental rights, except in adoption cases. See OCGA § 15-11-10 (3) (D). In Brine v. Shipp, 291 Ga. 376 (729 SE2d 393) (2012), our Supreme Court noted that “the biological father’s petition to legitimate a child who was born in wedlock is in essence a petition to terminate the parental rights of the legal father.” Id. at 379 (3). Accordingly, the court held: “When... a biological father’s petition to legitimate a child born in wedlock can only be granted by first terminating the legal father’s parental rights, ... the superior court does not have jurisdiction over the termination decision.” Id. at 380 (3). Smith argues that Brine controls and requires reversal of the superior court’s legitimation and custody ruling.

But as Pearce points out, T. C. F. had no legal father when this legitimation and custody action was filed. A “legal father” is a man who

[w]as married to the biological mother of [a] child at the time the child was conceived or was born, unless such paternity was disproved by a final order pursuant to Article 3 of [Chapter 7 of this title] ;[] .. . and who has not surrendered or had terminated his rights to his child.

(Emphasis supplied.) OCGA § 19-7-21.1 (a) (2) (B); see also Baker v. Lankford, 306 Ga. App. 327, 329 (1) (702 SE2d 666) (2010). In the judgment finalizing Smith and Fahey’s divorce, which was entered eight months before Pearce filed this lawsuit, the Florida court ordered that, by stipulation of the parties, Fahey had “no parental rights or responsibilities” regarding T. C. F. In light of this stipulation to the surrender of his parental rights, Fahey was no longer T. C. F.’s legal father, and he therefore had no parental rights for the superior court to terminate in this action. Accordingly, Brine does not apply here, and the superior court did not exceed its subject matter jurisdiction by legitimating T. C. F.

2. Smith contends that the superior court should have granted her motion to dismiss for insufficient service of process. First, she asserts that service by publication was not authorized because there was no competent evidence that she had evaded personal service. The record, however, is replete with evidence of evasion and concealment: Smith left town abruptly without telling Pearce where she and T. C. F. were going and ignored his repeated e-mails and text messages asking where she and the boy were, and neither the sheriff’s department nor any of the multiple investigators that Pearce hired were able to locate them. In light of this evidence, the superior court was authorized to allow service by publication. See Hutcheson v. Elizabeth Brennan Antiques & Interiors, 317 Ga. App. 123, 126-127 (1) (730 SE2d 514) (2012) (trial court did not err in ordering service by publication based on evidence that defendant was evading personal service).

Smith also contends that, assuming service by publication was permissible, Pearce failed to effect it properly. “Service must be properly published as set forth in OCGA § 9-11-4 (f) (1) (C).” Ragan v. Mallow, 319 Ga. App. 443, 446 (2) (744 SE2d 337) (2012). That statute provides in relevant part:

When the court orders service by publication, the clerk shall cause the publication to be made in the paper in which sheriff’s advertisements are printed, four times within the ensuing 60 days, publications to be at least seven days apart. The party obtaining the order shall, at the time of filing, deposit the cost of publication. The published notice shall contain the name of the parties plaintiff and defendant, with a caption setting forth the court, the character of the action, the date the action was filed, the date of the order for service by publication, and a notice directed and addressed to the party to be thus served, commanding him or her to file with the clerk and serve upon the plaintiff’s attorney an answer within 60 days of the date of the order for service by publication and shall bear teste in the name of the judge and shall be signed by the clerk of the court. . . .

OCGA § 9-11-4 (f) (1) (C). Smith maintains that Pearce failed to follow this statute exactly because, according to his lawyer’s certificate of compliance, the lawyer — rather than the clerk of the superior court — mailed the publication notice to the Fulton County Daily Report.

Smith relies upon Jahanbin v. Rafieishad, 292 Ga. 806 (741 SE2d 648) (2013), in which the Supreme Court ruled that a plaintiff failed to comply with the statutory requirements for serving a person in a foreign country because the plaintiff, instead of the clerk of court, completed the registered mail receipt and accomplished the mailing to the defendant in Iran. See OCGA § 9-11-4 (f) (3) (B) (iii) (II) (providing for service upon a person in a foreign country by “[a]ny form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the party to be served”). The court held:

The plain language of this provision requires the clerk of court to be the person who addresses and dispatches the mail containing the summons, thus ensuring that an officer of the court disinterested in the proceedings is able to verify both the contents of the mailing and the address to which it is sent.

Jahanbin, 292 Ga. at 807 (1). Smith argues that Jahanbin prohibits an attorney from doing the clerk’s job of mailing out a publication notice. We disagree with this analysis.

Unlike the statutory provision for service upon a person in a foreign country, the provision for service by publication provides only that the clerk must “cause the publication to be made”; it neither specifies the manner in which the clerk must cause the publication to be made nor requires the clerk to accomplish the task personally. See OCGA § 9-11-4 (f) (1) (C). In any event, the rationale for Jahanbin’s holding — the need for a disinterested party to verify a registered mailing to a foreign country — is not present here, where publication in a readily-accessible domestic newspaper may be easily substantiated. Smith’s challenges to the sufficiency of service are without merit.

3. Smith maintains that the superior court erred by denying her motion to set aside the judgment “[f]or all of the reasons provided” in the motion. In the motion, Smith argued that the factual findings in the court’s legitimation and custody order were “based on fiction” and “fail[ed] to portray the actual evidence in this case.” This was a bitter, protracted custody battle in which the parties presented sharply divergent accounts of the events. “We are mindful that the Solomonic task of making custody decisions lies squarely upon the shoulders of the judge who can see and hear the parties and their witnesses, observe their demeanor and attitudes, and assess their credibility.” (Citation and punctuation omitted.) Bankston v. Warbington, 332 Ga. App. 29, 29-30 (771 SE2d 726) (2015). We will not disturb the superior court’s exercise of discretion if there is any evidence to support its decision. Arthur v. Arthur, 293 Ga. 63, 64 (1) (743 SE2d 420) (2013); King v. King, 284 Ga. 364, 365 (667 SE2d 30) (2008). Our review of the record, summarized above, shows that the court’s ruling in this case was supported by evidence in the record. Thus, the court did not err by denying Smith’s motion to set aside.

4. Smith argues that the superior court erred by failing to consider all factors relevant to custody decisions under OCGA § 19-9-3 (a) (3). That statute provides that “[i]n determining the best interests of the child, the judge may consider any relevant factor, including but not limited to” a list of 17 such factors. By the plain language of the statute, the list is suggestive only, and the superior court need not mechanically analyze every enumerated factor, regardless of its relevance. See Bankston, 332 Ga. App. at 33 (1). The legitimation and custody order shows that the court considered a broad range of factors, including Pearce’s love for T. C. F., financial and residential stability, and commitment to his family; the strong bond between Pearce and T. C. F; and Smith’s relational and residential instability, relentless and unproven allegations of rape and molestation, and withholding of T. C. F. from Pearce. Accordingly, this enumeration of error is without merit.

5. Finally, Smith contends that Pearce was not entitled to attorney fees under OCGA § 9-15-14, and that even if he was, the amount awarded was not related to any sanctionable conduct. Although we find no abuse of discretion in the superior court’s determination that a fee award was justified, we agree that the award must be properly apportioned.

(a) Under OCGA § 9-15-14 (b), the trial court may award
reasonable and necessary attorney fees upon a finding that an action or any part thereof lacked substantial justification, was interposed for delay or harassment, or an attorney or party unnecessarily expanded the proceeding by other improper conduct. The damages authorized by [OCGA] § 9-15-14 are intended not merely to punish or deter litigation abuses but also to recompense litigants who are forced to expend their resources in contending with abusive litigation. An award of fees under OCGA § 9-15-14 (b) is discretionary and the standard of review is abuse of discretion.

(Citations and punctuation omitted.) Abt v. Abt, 289 Ga. 166, 167 (709 SE2d 806) (2011).

The superior court found that Smith unnecessarily prolonged the proceedings, expanded the litigation, harassed Pearce, and increased his litigation costs by (1) insisting that Pearce submit to a paternity test even though he had already done so and she had stipulated in her divorce action that he was the father; (2) playing “games” to evade service and filing multiple unsuccessful motions to dismiss based upon lack of service; (3) hiding T. C. F. from Pearce for 18 months and then insisting upon supervised visitation; (4) seeking a psychological evaluation of Pearce two weeks before the original trial date; and (5) making dubious allegations that Pearce had sexually molested T. C. F and refusing to back down even after psychological and psychosexual evaluations, as well as multiple official investigations, cleared him of suspicion. Our review of the record, as summarized above, shows that there was ample evidence to support these findings. Accordingly, the superior court did not abuse its discretion by awarding fees to Pearce under OCGA § 9-15-14 (b). See Abt, 289 Ga. at 167; Taylor v. Taylor, 282 Ga. 113, 115 (3) (646 SE2d 238) (2007) (evidence of husband’s conduct during litigation justified fee award for unnecessarily expanding litigation and harassing wife); Wrightson v. Wrightson, 266 Ga. 493, 496-497 (5) (467 SE2d 578) (1996) (similar).

(b) An award of attorney fees under OCGA § 9-15-14, however, must be limited “to those fees incurred because of the sanctionable conduct.” Brewer v. Paulk, 296 Ga. App. 26, 31 (2) (673 SE2d 545) (2009). Pearce sought $86,050.17 in attorney fees, and his motion attached itemized billing statements from his lawyers. Ultimately, the superior court awarded him $68,500 in attorney fees, but it did not indicate how it apportioned this award to fees that were generated in relation to Smith’s sanctionable conduct. See Fedina v. Larichev, 322 Ga. App. 76, 81 (5) (744 SE2d 72) (2013). Moreover, counsel’s bills included time spent on Smith’s appeal to this Court in Case No. A14A0298, but “[a]ttorney fees incurred in connection with appellate proceedings are not recoverable under OCGA § 9-15-14.” Kautter v. Kautter, 286 Ga. 16, 19 (4) (c) (685 SE2d 266) (2009).

Decided October 2, 2015

Anthony M. Zezima, for appellant.

Elovitz/O’Nan, Rachel A. Elovitz, Gillian F. O’Nan; Ebel Family Law, Deborah Ebel, for appellee.

The trial court’s award of $[68,500] may have been reasonable, but the trial court’s order, on its face[,] fails to show the complex decision making process necessarily involved in reaching a particular dollar figure and fails to articulate why the amount awarded was $[68,500] as opposed to any other amount. Accordingly, we must vacate the award and remand for appropriate factfinding with respect to the amount of attorney fees to be assessed.

(Citation and punctuation omitted.) Fedina, 322 Ga. App. at 81 (5).

Case No. A16A0061

6. Smith appeals the superior court’s order finding her in contempt for failing to pay the ordered attorney fees and expenses. Because we vacate the attorney fee award for the reasons discussed in Division 5 (b), we also vacate the related contempt order.

Judgment affirmed in part and vacated in part, and case remanded with direction in Case No. A15A1541. Judgment vacated in Case No. A16A0061.

Ray and McMillian, JJ., concur.

       Earlier, Smith had moved for a court order compelling Pearce to submit to a psychosexual evaluation, but the court denied her motion without prejudice. Smith later filed an amended motion for an evaluation, to which Pearce consented so that he could see T. C. F.

       The evaluator noted that Smith’s delay in reporting the alleged “pee pee” incident was suspicious because “[a] fit mother has to report that kind of information.”

       These expenses included reimbursement for the visitation supervision, special process servers and private investigators, and psychological and psychosexual evaluations.

       Smith filed an application for discretionary appeal, which we granted. See Case No. A15A0453, decided July 7, 2015.

       OCGA § 19-7-40 et seq. concern proceedings for the determination of paternity.

       Indeed, the superior court did not purport to terminate Fahey’s parental rights. Compare Brine, supra (reversing superior court order that not only granted biological father’s legitimation petition, hut also explicitly terminated legal father’s parental rights); Chandler v. Rohner, 323 Ga. App. 713 (747 SE2d 870) (2013) (superior court could not take “additional step of terminating [biological father’s] parental rights” in order denying his legitimation petition).

       And because a legitimation petition may include custody claims, OCGA § 19-7-22 (f.l), the superior court also had subject matter jurisdiction to award custody of T. C. F. to Pearce.

       We reject Smith’s argument that the superior court improperly awarded fees to Pearce’s attorney, rather than to Pearce. Although the order specified that the fees were “payable by the Mother to the Father’s attorney,” the award plainly was made “to the Father.” “It follows that there was no error.” In re Singleton, 323 Ga. App. 396, 407 (7) (744 SE2d 912) (2013).


author: MCFADDEN, Judge.

text:
    A15A1571.
    JONES v. DEUTSCHE BANK NATIONAL TRUST COMPANY et al.
    (776 SE2d 829)
   MCFADDEN, Judge.

Royce L. Jones filed this appeal from the trial court’s dismissal of an earlier notice of appeal. Jones argues only the merits of the case; he does not argue that the trial court erred in dismissing his first notice of appeal. Because Jones does not challenge the dismissal, and we cannot reach his enumerations of error regarding the merits of the case, we affirm.

Jones brought this action asserting wrongful foreclosure and numerous other claims against Deutsche Bank National Trust Company as trustee for Soundview Home Loan Trust 2007-2, Ocwen Loan Servicing, LLC, and foreclosure attorneys McCurdy & Candler, LLC. Deutsche Bank and Ocwen moved to dismiss Jones’s complaint, and McCurdy & Candler moved for judgment on the pleadings. The trial court granted both motions. Jones timely filed a notice of appeal. The trial court dismissed that notice of appeal because of Jones’s delay in paying the cost bill for the appellate record. Jones then filed the instant appeal.

“A trial court’s ruling on whether an appeal is subject to dismissal will be reversed only for an abuse of discretion.” Ashley v. JP Morgan Chase Bank, 327 Ga. App. 232, 235 (1) (758 SE2d 135) (2014). In his brief Jones does not attempt to persuade us that the trial court abused her discretion in dismissing his first notice of appeal; he does not challenge that ruling at all. Instead he argues the merits of his dismissed appeal.

Jones is not entitled to be heard on the merits of that appeal. “Only if the [trial] court’s dismissal of the notice of appeal” is overturned can any questions regarding the merits of the case be raised on appeal. Hatfield v. Great American Management & Investment, 258 Ga. 640 (373 SE2d 367) (1988). Because Jones does not challenge the trial court’s dismissal of his first notice of appeal and, in any event, the dismissal was not an abuse of discretion, we do not address Jones’s enumerations of error regarding the merits of the case. See ACCC Ins. Co. v. Pizza Hut of America, 314 Ga. App. 655, 660 (725 SE2d 767) (2012).

Jones does address the dismissal issue in his reply brief. But that is too late. “Once an error has been abandoned in an initial brief, it cannot be resurrected by supplying argument and citation of authority in a reply brief.” Befekadu v. Addis Intl. Money Transfer, 332 Ga. App. 103, 108-109 (2) (772 SE2d 785) (2015) (citations omitted).

Decided September 10, 2015

Reconsideration denied October 5, 2015.

Roberts Law, Grady A. Roberts III, for appellant.

Baker, Donelson, Bearman, Caldwell & Berkowitz, Joshua N. Tropper, Sabrina L. Atkins; Macey, Wilensky & Hennings, Todd H. Surden, for appellees.

The arguments in his reply brief are, in any case, entirely without merit. They consist of unsupported assertions that the clerk of the trial court is to blame for the delay in preparing the appellate record. “We cannot consider factual assertions in briefs that are not supported by the record.” Bennett v. Quick, 305 Ga. App. 415, 417 (699 SE2d 539) (2010) (citation and punctuation omitted).

And our review of the record confirms that there was no abuse of discretion by the trial court in dismissing Jones’s appeal. It was within the trial court’s discretion to dismiss Jones’s appeal because she found Jones’s delay in paying the cost bill to be unreasonable and inexcusable.

[A] trial court may order the appeal dismissed where there has been an unreasonable delay in the transmission of the record to the appellate court, and it is seen that the delay was inexcusable and was caused by the failure of a party to pay costs in the trial court or file an affidavit of indigence.

OCGA § 5-6-48 (c). “A delay in excess of 30 days is prima facie unreasonable and inexcusable, but this presumption is subject to rebuttal if the party comes forward with evidence to show that the delay was neither unreasonable nor inexcusable.” Kelly v. Dawson County, 282 Ga. 189 (646 SE2d 53) (2007) (citation and punctuation omitted). Here, the trial court found that Jones tendered payment for the cost bill 42 days after it was delivered to him.

Judgment affirmed.

Ellington, P. J., and Dillard, J., concur.

       Although Jones has abandoned the only issue he is entitled to raise in this appeal, that failure does not deprive us of jurisdiction. Deutsche Bank’s motion to dismiss is therefore denied. See OCGA § 5-6-48 (b).


author: Dillard, Judge.

text:
    A15A1413.
    WINTERBOER v. FLOYD HEALTHCARE MANAGEMENT, INC.
    (778 SE2d 354)
   Dillard, Judge.

Janice Winterboer appeals the trial court’s denial of her motion for summary judgment and its grant of summary judgment to Floyd Healthcare Management, Inc. d/b/a Floyd Medical Center (“Floyd Medical Center”) on the latter’s complaint as to unpaid medical bills for treatment of Winterboer’s now-deceased adult son, Joshua, after she signed Joshua’s hospital-registration consent forms. Winterboer contends, inter alia, that she signed the forms in a representative capacity and not as a personal guarantor. We agree that the trial court erred in granting summary judgment to Floyd Medical Center and in denying Winterboer’s motion and, accordingly, we reverse.

Viewed in the light most favorable to Winterboer, the nonmovant, the record reflects that her adult son, Joshua, was severely incapacitated after a motor-vehicle accident that occurred when he was a toddler. Although Joshua had no guardian or conservator, and although Winterboer did not have financial or medical power of attorney for Joshua, she provided full-time care for her son until his death in December 2014. Winterboer paid for Joshua’s medical and living expenses using trust funds that were received as part of an annuity following the accident and a legal settlement.

On April 25, 2011, and June 22, 2011, Winterboer took Joshua to Floyd Medical Center for emergency medical treatment when he was in respiratory distress and, at some point in the process of his admission, she signed registration consent forms for his treatment. But when the medical bills associated with these extended hospital visits went unpaid, Floyd Medical Center filed suit against both Joshua and Winterboer, contending that Winterboer personally guaranteed payment of her son’s bills when she signed the registration consent forms.

Subsequently, Winterboer and Joshua moved for summary judgment, and the trial court denied their motions. Floyd Medical Center then filed for summary judgment in November 2014. But before the trial court could rule upon this motion, Joshua passed away in December 2014. Joshua’s counsel then filed a suggestion of death, and Floyd Medical Center consented to dismissing its action against him. Nevertheless, the action against Winterboer continued, and she responded and again moved for summary judgment in January 2015.

Following a hearing on Floyd Medical Center’s motion for summary judgment, the trial court granted the motion, again denied summary judgment as to Winterboer by adopting the reasoning of the earlier denial, and awarded Floyd Medical Center $243,204.96 for the unpaid medical bills associated with Joshua’s hospital visits in April and June 2011. This appeal by Winterboer follows.

1. Winterboer first argues that the trial court erred in granting summary judgment to Floyd Medical Center and denying her motion when she signed the registration consent forms in a representative capacity and not a personal capacity. We agree.

The forms Winterboer signed in April and June 2011, entitled “Registration Consent,” are identical. At the top of the form in all capital letters appears the following paragraph:

I, the patient, hereby request that I receive treatment/ care during this hospital admission, emergency [department] or outpatient visit. I understand that if I am to be provided a series of ongoing services based on my physician’s orders, that my consent and authorization will be acquired only once for all services provided in the series. I voluntarily make and execute the following authorizations, consents, assignment, certification and requests.

From there, centered upon the page and appearing in bold, all-capital font, the form contains a header for the “patient’s authorization and consent for medical and surgical treatment, anesthesia, x-ray examination, consent to search, physical restraints, disposal of tissues, and other related matters.” The two paragraphs that follow in small, standard font then detail and provide the patient’s authorization for those things, speaking in terms of what “I,” the patient, consents to by signing the document.

Next, centered on the page and appearing in bold, all-capital font, the form contains a header for the “patient’s assignment of insurance benefits for hospital/physician services, guarantee of account, and authorization for release of medical information.” It is the paragraph that appears beneath this header in small, standard font that contains the language at issue in this appeal. The entire paragraph provides as follows:

I hereby irrevocably transfer and assign to the Hospital, EDP and all other physicians all insurance benefits otherwise payable to me but not to exceed the Hospital’s or EDP’s or all other physicians regular charges rendered to me for this period of hospitalization. I authorize my insurance carrier, third party payor or managed care organization to pay such benefits directly to the Hospital, EDP and all other physicians in my behalf. I understand that I am financially responsible to the Hospital, EDP and all other physicians for charges not paid under the assignment. In the event that in addition to hospital, EDP and all other physicians’ benefits, I am entitled to any insurance or other benefits covering other physician services, I hereby assign said benefits to the physicians rendering care or treatment to me during this stay or outpatient visits, to be applied to my bill from such physician. For and in consideration of services rendered by the Hospital, EDP, or other physicians to the below named patient, the undersigned jointly and severally if more than one) guarantees payment of all charges incurred for said patient in accordance with the policy of payment of such bills. I understand that I am financially responsible to the Hospital for charges not paid under the assignment. I further authorize any holder of medical information or records concerning me to release such information or records to my insurance carrier, third party payor, managed care organization or to any other insurance carrier, including worker’s compensation carriers, against which I have made, or shall hereafter make, a claim. I further understand that it may be necessary to contact my past or present employer(s) in regards to this claim. I permit a copy of this authorization to be used in place of the original.

After this paragraph, the form contains two more centered, bold, all-capitalized headers for “patient’s Medicare certification, authorization to release information, and payment request” and “Medigap and medical assistance,” each followed by a paragraph in small, standard font detailing the patient’s authorizations and certifications related to those headers.

Finally, at the bottom of the form are three lines for signatures or other information, each line describing in all-capitalized font what information is to be provided. The first line is for the “signature of the patient.” The second line is for the “signature of person acting for patient.” And the third line provides an area for the person “acting for [the] patient” to describe his or her “relationship to patient” and the date.

Below the three signature lines are three boxes that may be checked. The first box is to indicate that “[i]t is impractical for the patient to execute the document because patient’s mental or physical condition is such that patient should not be asked to transact business.” The second box is to indicate that “[t]he patient is a minor.” And the third box is to indicate the signor’s acknowledgment that he or she has “received smoking cessation information from the hospital.” Additionally, in the bottom right-hand corner of the form is a small area entitled “patient identification,” and below this, applied by a typed sticker, are, inter alia, the patient’s name, the patient’s age and gender, the name of the attending physician, and the date.

In this matter, there are slight differences in the way Winterboer signed the form in April 2011 and the manner in which she signed the form in June 2011. On the April 2011 form, there is no patient name listed on the “signature of patient” line, but Winterboer signed her name on the line for “signature of person acting for patient” and identified herself as the patient’s “mother” on the line for “relationship to patient.” She also checked the box indicating that it was “impractical for the patient to execute the document because patient’s mental or physical condition is such that patient should not be asked to transact business.” And the “patient identification” area on this form lists “Winterboer, Joshua David” as the patient.

On the June 2011 form, Winterboer signed her name on the “signature of patient” line and wrote in her son’s name, Joshua Winterboer, on the line for the “signature of person acting for patient” before identifying herself as the patient’s “mother” on the line for “relationship to patient.” She also not only checked that it was “impractical for the patient to execute the document because patient’s mental or physical condition is such that patient should not be asked to transact business” but also that “[t]he patient is a minor.” Despite these obvious scrivener errors, the “patient identification” area lists “Winterboer, Joshua David” as the 30-year-old patient.

Based upon Winterboer’s completion of these forms and the language emphasized supra, Floyd Medical Center maintains that Winterboer personally guaranteed payment of her son’s medical bills. The trial court agreed, once again determining that Winterboer, “in signing the form, obligated her son to be responsible for the payment and obligated herself as well.” But we disagree that Winterboer was rendered personally liable for payment of the associated bills simply because she signed the forms in a representative capacity on behalf of her son.

At the outset, we note that the issue of contract construction is “usually a question of law for the court to resolve and, as such, it is subject to de novo review.” In this respect, there are three steps involved in the construction of a contract. First, the court must decide whether “the language of the contract is clear and unambiguous.” And if there is no ambiguity, the contract is enforced “according to its plain terms, and the contract alone is looked to for meaning.” Of course, a contract is unambiguous when it is “capable of only one reasonable interpretation.” In the second step, if the contract is ambiguous in some respect, “the rules of contract construction must be applied by the court to resolve the ambiguity.” Finally, if ambiguity remains after applying the rules of construction, “the issue of what the ambiguous language means and what the parties intended must be resolved by a jury.”

As noted supra, the form at issue includes the following sentence buried in the middle of a paragraph that is under a header that highlights, inter alia, the patient’s guarantee of account:

For and in consideration of services rendered by the Hospital, EDP, or other physicians to the below named patient, the undersigned jointly and severally if more than one) guarantees payment of all charges incurred for said patient in accordance with the policy of payment of such bills. I understand that I am financially responsible to the Hospital for charges not paid under the assignment.

Notwithstanding this language, which broadly applies to “the undersigned,” the form contains signature lines for the patient and for a “person acting for [the] patient.” The form then permits additional information to describe who is signing on behalf of the patient and why that person is doing so by providing a line for the person’s “relationship to [the] patient” and boxes to be checked if “[i]t is impractical for the patient to execute the document because [the] patient’s mental or physical condition is such that [the] patient should not be asked to transact business” and/or if “[t]he patient is a minor.”

These conflicting portions of the form — the language broadly associated with guaranteeing payment and the lines and boxes associated with who is signing the form and why — render the contract ambiguous. Nevertheless, we are mindful that “[t]he construction which will uphold a contract in whole and in every part is to be preferred, and the whole contract should be looked to in arriving at the construction of any part[.]” Thus, here, the broad guarantee language must be read in pari materia with the signature lines and the check-boxes that provide additional information relevant to the unique circumstances that surround the signing of the form at a given time. Additionally, it is a cardinal rule of contract construction that when “the construction of a contract is doubtful, the construction that goes most strongly against the drafter of the agreement is to be preferred.”

In the case sub judice, Winterboer left a checkmark to indicate that she was signing the form because it was impractical for the patient, her adult son, “to execute the document because [the] patient’s mental or physical condition [was] such that [the] patient should not be asked to transact business.” Additionally, the signature line provides that a signatory other than the patient is “acting for the patient.” Thus, it is clear that Winterboer intended to sign — and did sign — the form in a representative capacity because these latter portions of the form limit the otherwise broad guarantee provision.

And here, because Winterboer signed the form on behalf of her adult son as his agent, not in a personal capacity, she did not render herself personally liable for any unpaid medical bills. Accordingly, the trial court erred in granting summary judgment to Floyd Medical Center and in denying summary judgment to Winterboer.

Decided October 6, 2015.

Evans & Rhodes, Tracy L. Rhodes, for appellant.

McRae, Stegall, Peek, Harman, Smith & Manning, Jason B. Sanker, for appellee.

2. Because we have reversed on Winterboer’s first enumeration of error, we need not address her remaining enumerations, which are that the form does not satisfy the Statute of Frauds, and that the form is a contract of adhesion with a personal-guaranty provision that is unconscionable and void as against public policy.

For all of the foregoing reasons, we reverse the trial court’s grant of summary judgment to Floyd Medical Center and its denial of summary judgment to Winterboer.

Judgment reversed.

McFadden, J., concurs. Ellington, P. J., concurs in judgment only.

        See, e.g., Blake v. KES, Inc., 329 Ga. App. 742, 742 (766 SE2d 138) (2014) (“On appeal from the grant of summary judgment this Court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.” (punctuation omitted)).

       It is not entirely clear from the record why the medical bills were never paid, but there is a suggestion by Winterboer’s counsel in the summary-judgment-hearing transcript that the total amount for the bills exceeded the maximum amount that could be withdrawn from Joshua’s trust fund in a given month. Winterboer also testified in her deposition that she attempted to free up funds from another source but was thwarted by her ex-husband. According to Winterboer, after all of this transpired, Joshua was placed on Medicaid and, to her knowledge, all subsequent hospital bills were covered by that source.

        We also note that Floyd Medical Center’s complaint originally sought to collect unpaid medical bills for a third hospital visit as well, but the signor on those forms was Joshua’s cousin, not Winterboer. Nevertheless, Floyd Medical Center did not pursue a claim against the cousin, only Joshua and Winterboer, and the claim for unpaid bills associated with this third visit was eventually abandoned by Floyd Medical Center’s dismissal of its claim against Joshua because it conceded at the summary-judgment hearing that it was not seeking to recover those funds from Winterboer.

       We have supplied emphasis to the most pertinent language, but have otherwise copied the language of the paragraph exactly as it appears, including grammatical and typographical errors that are original to the form.

       It is not pertinent to the issues on appeal, but we note that this third box was checked on both forms.

        Atlanta Emergency Servs., LLC v. Clark, 328 Ga. App. 9, 11 (1) (761 SE2d 437) (2014); see also Bd. of Comm’rs of Crisp Cty. v. City Comm’rs of the City of Cordele, 315 Ga. App. 696, 699 (727 SE2d 524) (2012).

        See Atlanta Emergency Servs., 328 Ga. App. at 11 (1); Bd. of Comm’rs of Crisp Cty., 315 Ga. App. at 699.

        Atlanta Emergency Servs., 328 Ga. App. at 11-12 (1) (punctuation omitted); accord Bd. of Comm’rs of Crisp Cty., 315 Ga. App. at 699.

        Atlanta Emergency Servs., 328 Ga. App. at 12 (1) (punctuation omitted); accord Bd. of Comm’rs of Crisp Cty., 315 Ga. App. at 699; see also OCGA § 13-2-3 (“The cardinal rule of construction is to ascertain the intention of the parties. If that intention is clear and it contravenes no rule of law and sufficient words are used to arrive at the intention, it shall be enforced irrespective of all technical or arbitrary rules of construction.”).

        Atlanta Emergency Servs., 328 Ga. App. at 12 (1) (punctuation omitted); accord Stefano Arts v. Sui, 301 Ga. App. 857, 860 (1) (690 SE2d 197) (2010).

        Atlanta Emergency Servs., 328 Ga. App. at 12 (1) (punctuation omitted); accord Bd. of Comm’rs of Crisp Cty., 315 Ga. App. at 699.

        Atlanta Emergency Servs., 328 Ga. App. at 12 (1) (punctuation omitted); accord Bd. of Comm’rs of Crisp Cty., 315 Ga. App. at 699.

       Typographical errors in original.

       Emphasis supplied.

        Cf. Bd. of Trustees of N. Kan. City. Mem. Hosp. v. Conway, 675 SW2d 36, 36-39 (I) (Mo. Ct. App. 1984) (holding that wife made an “unambiguous, unqualified promise... to pay for the hospital services rendered to” her husband when she signed a document that was separate from the patient’s registration form, which she did not sign and which listed her husband as the “person responsible for this account,” and when the separate document was entitled “Guarantee of Account” and provided “I will pay any unpaid balance on dismissal” and “I agree to be responsible for hospital services rendered to this patient”).

       OCGA § 13-2-2 (4); see also Paul v. Paul, 235 Ga. 382, 384 (219 SE2d 736) (1975) (“Every other rule is subservient to this one. The fundamental rule, the rule which swallows up almost all others in construing a paper, is to give it that meaning which will best carry into effect the intent of the parties. This is the object of the rules of interpretation, to discover the true intent of the parties, and in doing this we are to take the whole of (the instrument) together, and to consider this with the surrounding circumstances.” (punctuation omitted)).

        Reichman v. Southern Ear, Nose & Throat Surgeons, P.C., 266 Ga. App. 696, 699-700 (1) (598 SE2d 12) (2004); see also OCGA § 13-2-2 (5) (“If the construction is doubtful, that which goes most strongly against the party executing the instrument or undertaking the obligation is generally to he preferred!.]”); Hertz Equip. Rental Corp. v. Evans, 260 Ga. 532, 533 (397 SE2d 692) (1990) (citing to OCGA § 13-2-2 (5) for the proposition that “if a contract is capable of being construed two ways, it will be construed against the preparer and in favor of the non-preparer”).

        See OCGA § 10-6-53 (“The form in which the agent acts is immaterial; if the principal’s name is disclosed and the agent professes to act for him, it will be held to he the act of the principal.”); Dover v. Burns, 186 Ga. 19, 21-22, 29 (3) (196 SE 785) (1938) (holding that attorney’s brothers-in-law were not rendered personally liable in settlement of attorney’s accounts when the agreement described the brothers-in-law as “agents of” the attorney); Tiller v. Spradley, 39 Ga. 35, 35-38 (1869) (holding that note promising to pay “for cotton seed for J.’s plantation” and signed, “S., Agent for J.,” was the note of J., who was alone personally liable). Cf. OCGA § 31-9-2 (a) (6) (B) (“In addition to such other persons as may be authorized and empowered, any one of the following persons is authorized and empowered to consent, either orally or otherwise, to any surgical or medical treatment or procedures not prohibited by law which may be suggested, recommended, prescribed, or directed by a duly licensed physician:... Upon the inability of any adult to consent for himself or herself and in the absence of any person to consent under paragraphs (1.1) through (5) of this subsection, the following persons in the following order of priority:. . . Any parent for his or her adult child[.]”).


author: Miller, Judge.

text:
    A15A0860.
    EVANS v. THE STATE.
    (778 SE2d 360)
   Miller, Judge.

Following a bench trial, Douglas Evans was found guilty of one count of child molestation (OCGA § 16-6-4 (a)) and one count of sexual exploitation of children (OCGA § 16-12-100 (b)). In sentencing Evans, the trial court refused to deviate from the mandatory minimum sentence for child molestation under OCGA § 17-10-6.2 (c) (1) (C) because the trial court found that Evans’s conviction for sexual exploitation of children was a “relevant similar transaction.” Evans appeals, contending that the trial court erred in considering the sexual exploitation offense as a “relevant similar transaction” because it was charged in the same indictment as the child molestation count. For the reasons that follow, we affirm.

The interpretation of OCGA § 17-10-6.2 (c) (1) (C) is a question of law, which we review de novo. See Jenkins v. State, 284 Ga. 642, 645 (2) (670 SE2d 425) (2008).

Although our decision is based on the language of the statute, the evidence from Evans’s trial, when viewed in a light most favorable to the verdict, shows that around 2005 or 2006, the then four- or five-year-old victim and her mother met Evans at church, and they became friendly with him since he was involved with the church’s youth group. The victim referred to Evans as “Moose.” Eventually, the victim began to stay overnight at Evans’s house once a week.

At these overnight stays, Evans instructed the victim to take a bath. After drying her off, Evans directed the victim to lie on his bed, whereupon he rubbed lotion on her bottom, back and legs. On one occasion, Evans attempted to rub lotion on the victim’s vagina, but the victim smacked his hand away and told him, “no.” Evans also kissed the victim on her head, lips, and bottom.

In 2009, when the victim was eight years old, she told her teacher that “Moose” had kissed her and that he had rubbed lotion on her bottom and vagina. The teacher reported the incident to the school counselor and the principal.

Following the victim’s disclosure, a police officer conducted a forensic interview where the victim recounted what Evans had done and revealed that Evans had also taken pictures of her. Police officers then obtained and executed a search warrant to search electronic storage devices at Evans’s home. The police officers uncovered electronic media containing images of young children involved in sexual activities, including semi-nude photographs of the victim.

Following the presentation of evidence, the trial court found Evans guilty of child molestation and sexual exploitation of children. At sentencing, Evans’s counsel argued that the court should not impose a lengthy prison sentence. The trial court found that it was not allowed to sentence Evans to less than five years to serve for the child molestation conviction because his sexual exploitation of children conviction was a “relevant similar transaction” that precluded a deviation under OCGA § 17-10-6.2 (c) (1) (C). The trial court sentenced Evans to twenty years with five years to serve on the child molestation charge and five years to serve concurrently for the sexual exploitation conviction.

On appeal, Evans contends that the trial court erred in finding that the sexual exploitation of children conviction was a relevant similar transaction for purposes of OCGA § 17-10-6.2 (c) (1) (C) because two charges joined for trial are not similar transactions as a matter of law and the legislature intended for “relevant similar transactions” to be limited to independent, extrinsic acts separate from the tried offenses. We disagree.

Under OCGA § 17-10-6.2, if a defendant is convicted of a sexual offense, which includes the offenses of child molestation and sexual exploitation of children, the trial court must impose a sentence that includes a minimum time to be served in prison. See OCGA § 17-10-6.2 (a) (5), (10), and (b). The trial court is prohibited from probating, suspending, staying, deferring, or withholding any of the mandatory term of imprisonment stated for any of the specified offenses. OCGA § 17-10-6.2 (b). If all of the criteria listed in OCGA § 17-10-6.2 (c) (1) have been met, the trial court has the discretion to deviate from the mandatory minimum prison sentence. See OCGA § 17-10-6.2 (c) (1) (A)-(F); Hedden v. State, 288 Ga. 871, 874 (708 SE2d 287) (2011). The pertinent factor in this case is that “[t]he court has not found evidence of a relevant similar transaction.” OCGA § 17-10-6.2 (c) (1) (C). Thus, the possibility of a reduced prison sentence is foreclosed if the trial court has “found evidence of a relevant similar transaction.” Id.

The phrase “relevant similar transaction” is not defined by OCGA § 17-10-6.2. However, “[i]n all interpretations of statutes, the courts shall look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy.” OCGA § 1-3-1 (a). In determining the legislature’s intent, we must first begin with the text of the statute. See Fair v. State, 288 Ga. 244, 252 (2) (702 SE2d 420) (2010). “[W]here the literal text of a statute is plain and does not lead to absurd or impracticable consequences, we apply the statute as written without further inquiry.” (Citation omitted.) Spivey v. State, 274 Ga. App. 834, 835 (1) (619 SE2d 346) (2005).

Here, although “relevant similar transaction” is undefined, the legislature’s intent is clear. The legislature unambiguously considers the offenses of sexual exploitation of children and child molestation to be relevant similar transactions because they are both defined as “sexual offenses” for OCGA § 17-10-6.2 purposes.

Moreover, the legislature enacted OCGA § 17-10-6.2 in 2006. See Ga. L. 2006, pp. 379, 395-396, § 21. Long before the statute’s enactment, it was well established that, at sentencing, the trial court could consider any evidence that was properly admitted during the guilt-innocence phase of the trial. See Blake v. State, 273 Ga. 447, 450 (4) (542 SE2d 492) (2001); cf. Ingram v. State, 262 Ga. App. 304, 308 (4) (c) (585 SE2d 211) (2003) (“[Sentencing courts are authorized to consider in aggravation any lawful evidence which tends to show the motive of the defendant, his lack of remorse, his general moral character, and his predisposition to commit other crimes.”) (footnote omitted). Given the existing state of the law when the legislature enacted OCGA § 17-10-6.2, we presume that the legislature would allow the trial court, at sentencing, to consider all evidence introduced at the defendant’s trial, including evidence of another indicted sexual offense, in determining whether there was evidence of a relevant similar transaction. See Fair, supra, 288 Ga. at 252 (2) (“[I]n interpreting a statute, we must presume that the General Assembly had full knowledge of the existing state of the law and enacted the statute with reference to it.”) (citation and punctuation omitted).

Evans cites to Algren v. State, 330 Ga. App. 1, 5-6 (2) (764 SE2d 611) (2014), and OCGA § 24-4-404 to support his contention that the phrase “similar transaction” has generally been understood to mean independent, extrinsic acts. Evans fails to appreciate that the body of law he relies upon governs the admissibility and limited purpose of evidence of similar transactions in the guilt-innocence phase, not evidence used at the sentencing phase. Thus, while OCGA § 24-4-404 governs the general admissibility of evidence of extrinsic acts, OCGA § 17-10-6.2 specifically governs the sentencing of sexual offenses, and “[f]or purposes of statutory interpretation, a specific statute will prevail over a general statute, absent any indication of a contrary legislative intent.” (Citation omitted.) Vines v. State, 269 Ga. 438, 440 (499 SE2d 630) (1998).

Moreover,

[sjtatutes should be read according to the natural and most obvious import of the language, without resorting to subtle and forced constructions, for the purpose of either limiting or extending their operation, and this principle is particularly compelling when interpreting criminal statutes.

(Citation and punctuation omitted.) State v. Johnson, 269 Ga. 370, 371 (1) (499 SE2d 56) (1998). Accordingly, this Court must read OCGA § 17-10-6.2 in conjunction with OCGA § 24-4-414 which provides that in a criminal proceeding in which the defendant is accused of a child molestation offense, evidence of the defendant’s commission of another offense of child molestation, the definition of which includes the offense of sexual exploitation of children, shall be admissible and may be considered for its bearing on any matter to which it is relevant. Given this language, Evans forces a construction of OCGA § 17-10-6.2 that would lead to absurd consequences. In this case, the trial court denied Evans’s motion to sever the child molestation count from the two counts of sexual exploitation of children. Had the trial court granted Evans’s motion, there would be no question that the evidence underlying his sexual exploitation of children would be admissible as a similar transaction in the trial on the child molestation count. See OCGA § 24-4-414. Since severance of the similar sexual offenses was not required, it seems implausible that the legislature would allow a defendant convicted of more than one sexual offense to be eligible for a downward deviation from the mandatory minimum sentence simply because the offenses were tried together, rather than severed from one another.

Decided October 7, 2015

Bowers & Roch, Donald R. Roch II, for appellant.

Shannon G. Wallace, District Attorney, Jay G. Wall, Cliff Head, Assistant District Attorneys, for appellee.

In light of the foregoing, we conclude that the phrase “relevant similar transaction” under OCGA § 17-10-6.2 (c) (1) (C) includes a conviction for a sexual offense charged within the same indictment as the offense for which a deviation from the mandatory minimum sentence is considered. Accordingly, we affirm the trial court’s judgment.

Judgment affirmed.

Andrews, P. J., and Branch, J., concur.

       Evans was acquitted of another count of sexual exploitation of children.

        Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

       See Stewart v. State, 277 Ga. 138, 140 (587 SE2d 602) (2003) (“[Severance is not mandatory when evidence of one offense is admissible upon the trial of another offense”) (citation and emphasis omitted); Dickerson v. State, 304 Ga. App. 762, 764-765 (1) (697 SE2d 874) (2010) (where trial court found that sexual exploitation charge would have been admissible as similar transaction evidence to the child molestation charge, trial court did not err in refusing to sever charges).


author: MCMlLLIAN, Judge.

text:
    A15A1595.
    VILLEGAS v. THE STATE.
    (778 SE2d 363)
   MCMlLLIAN, Judge.

Jose Humberto Villegas appeals the trial court’s denial of his motion for new trial after a jury convicted him on one count of burglary. On appeal, Villegas argues that the evidence was insufficient to support the verdict and that his trial counsel provided ineffective assistance by failing to request a jury charge on the lesser included offense of criminal trespass. Finding no error, we affirm.

Viewed in the light most favorable to the verdict, the evidence shows that on January 19, 2010, Claudia Flores was alone at her mother’s house with her infant son when she heard a knock on the door. After Flores looked through a window and saw a man she did not recognize at the door, she took her son into her mother’s bedroom. The evidence showed that a television and a stereo were clearly visible inside the house through the window on the side of the door.

The man at the door then knocked hard on the window two to three times and kicked in the door. Flores immediately came out of her mother’s bedroom with her infant in her arms and asked the man what he was doing there. He stepped back, as if he was not expecting anyone to be in the house. The man told Flores that he was looking for someone named “Juan” who owed him money. Flores told the man that no one named Juan lived there and he should leave. The man said that he had just spoken with Juan 15 minutes earlier, and he had given the man Flores’s address. When Flores said she was going to call the police, the man took off running. Flores identified Villegas at trial as the man who kicked in her door. Flores also testified that she saw another man standing outside by a tree. After Villegas kicked in the door revealing Flores inside, this other man also started running.

Investigator Scarbrough of the Gwinnett County Police Department was in the area of Flores’s residence at the time, and he responded to the report of the incident, which included a description of two young, bald men, one wearing a blue jacket and both wearing blue pants. On his way to the residence, Scarbrough stopped a vehicle containing two men matching the description. The two men appeared very nervous, and Scarbrough took them with him to Flores’s residence. She identified one of the two men as the man she saw standing by the tree, and he was arrested at that time.

Flores also told Scarbrough that after she saw Villegas in her house, she recognized him as someone named “Slap,” whom she often saw around the neighborhood. She did not know his real name. Scarbrough determined that Villegas went by the name “Slap,” and he prepared a photo lineup with photographs of six individuals including Villegas, which he showed to Flores the next day. She identified Villegas from the lineup as the man who had kicked in her door.

Flores’s mother testified that she had never met Villegas and had never given him permission to enter her home.

1. Villegas asserts that the evidence was insufficient to support his burglary conviction because it failed to eliminate the reasonable hypothesis that he kicked in the door in search of “Juan,” and not with the intent to commit a theft.

The indictment against Villegas alleged that he entered the Flores residence without authority and with the intent to commit a theft. We note that

[bjurglary does not require a completed theft, but merely the intent to commit a theft. The presence or lack of criminal intent is for the jury to decide based on the facts and circumstances proven at trial. An intent to steal may be inferred when the evidence shows an unlawful entry into the building of another where valuable goods are stored or kept inside.

(Citations and punctuation omitted.) Sermons v. State, 294 Ga. App. 293, 294 (669 SE2d 210) (2008). See also Westmoreland v. State, 281 Ga. App. 497, 499-500 (2) (636 SE2d 692) (2006); Wilson v. State, 261 Ga. App. 576, 577 (1) (583 SE2d 243) (2003).

In support of his argument, Villegas relies upon former OCGA § 24-4-6, which stated, “[t]o warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” However, this legal principle applies only when the State’s case against the defendant is “wholly circumstantial.” Walker v. State, 295 Ga. 688, 691 (2) (763 SE2d 704) (2014). In this case, the prosecution presented both direct and circumstantial evidence against Villegas. Flores’s testimony describing the events of the day and identifying Villegas as the man who kicked in her door provided direct evidence of his participation in the crime. Therefore, the rule set forth in former OCGA § 24-4-6 does not apply. But even if the rule applied in this case,

[wjhether an alternative hypothesis raised by the defendant is reasonable is a question committed principally to the jury, and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of the guilt of the accused, we will not disturb that finding unless it is insupportable as a matter of law.

(Citation and punctuation omitted.) Black v. State, 296 Ga. 658, 660 (1) (769 SE2d 898) (2015). Thus, only the jury was authorized to weigh the evidence, and it was not required to believe Villegas’s statement to Flores explaining his presence in her home. See Gibbs v. State, 295 Ga. 92, 95 (1) (757 SE2d 842) (2014); Hayes v. State, 268 Ga. 809, 811 (1) (493 SE2d 169) (1997). And we find that the evidence that valuables were clearly visible through the window of the house, that Villegas forcibly entered the home after attempting to ascertain whether anyone was home, and that he fled when Flores said she was calling the police was sufficient for the jury to find beyond a reasonable doubt that he committed the offense of burglary.

2. Villegas next contends that he received ineffective assistance of counsel because his trial attorney failed to request a jury charge on the lesser included offense of criminal trespass.

In order to succeed on his claim of ineffective assistance, [Villegas] must prove both that his trial counsel’s performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. If an appellant fails to meet his or her burden of proving either prong of [this] test, the reviewing court does not have to examine the other prong. In reviewing the trial court’s decision, we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.

(Citations and punctuation omitted.) Lamar v. State, 297 Ga. 89, 91-92 (3) (772 SE2d 636) (2015). See also Strickland v. Washington, 466 U.S. 668 (104 SCt 2052, 80 LE2d 674) (1984). Moreover, “[t]rial tactics and strategy, however mistaken they may appear with hindsight, are almost never adequate grounds for finding trial counsel ineffective unless they are so patently unreasonable that no competent attorney would have chosen them.” (Citation and punctuation omitted.) Horne v. State, 333 Ga. App. 353, 357 (2) (773 SE2d 467) (2015).

At the hearing on Villegas’s motion for new trial, his trial attorney testified that he was aware that criminal trespass was a lesser included offense of burglary under the facts of this case, but he pursued a defense of mistaken identity at trial based on Villegas’s claim that he was not present when the crime was committed. Villegas consistently claimed that he was not there and, in fact, said that he was out of state at the time. The attorney initially filed a notice of an alibi defense and had identified alibi witnesses, but he was unable to bring them to Georgia from Texas for the trial, preventing the pursuit of that defense. Counsel testified that instead he emphasized at trial that police had stopped a vehicle in the vicinity with two other men matching the victim’s description of the perpetrators. He also highlighted the fact that Villegas could not be tied to the vehicle in which the two men were riding. He also questioned Flores about inconsistencies in her identification of the man who kicked in her door. Thus, counsel focused his defense on pointing out the weaknesses and inconsistencies in the State’s case.

Decided October 7, 2015

G. Richard Stepp, for appellant.

Daniel J. Porter, District Attorney, Lisa M. Pappas, Assistant District Attorney, for appellee.

And although counsel did not request a charge on criminal trespass or specifically discuss the issue with Villegas, he discussed with Villegas the issue of whether he would be willing to plead guilty to burglary with credit for time served or criminal trespass if the State had offered it. Villegas said that he would not enter a plea as to anything in connection with this incident. Villegas testified, however, that his trial attorney never mentioned the term “lesser included offense” or suggested that the jury might convict him of only a misdemeanor if given the alternative. He stated that he would have liked for the jury to have had that option.

Based upon our review of the record, we agree with the trial court’s conclusion that “[cjounsel’s decision to forgo a request to charge on criminal trespass, but rather go for an ‘all-or-nothing’ strategy is not so patently unreasonable that no competent attorney would have made that decision.” See Ingram v. State, 317 Ga. App. 606, 607-08 (2) (732 SE2d 456) (2012) (counsel’s failure to request jury charge on misdemeanor obstruction of an officer in trial on a charge of felony obstruction and to instead pursue “all-or-nothing” defense was reasonable strategic decision); Leonard v. State, 279 Ga. App. 192, 194-95 (2) (b) (630 SE2d 804) (2006) (failure to request a charge on lesser included offense of battery in connection with aggravated assault charge based on an all-or-nothing defense was not patently unreasonable); Rudnitskas v. State, 291 Ga. App. 685, 689 (3) (d) (662 SE2d 729) (2008) (failure to request charge on criminal trespass charge in burglary trial not deficient performance where charge would have conflicted with theory of defense); Benefield v. State, 253 Ga. App. 14, 15 (3) (a) (557 SE2d 476) (2001) (decision to pursue “all-or-nothing” defense instead of a defense that would present criminal trespass as an option for the jury is a matter of trial strategy not amounting to ineffective assistance).

Accordingly, we find that the trial court properly denied Villegas’s motion for new trial.

Judgment affirmed.

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

        Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

       She testified that the man at the door was turned to the side, partially obscuring her view of the man’s face.

       Police later verified that no one named “Juan” lived at that address.

       Villegas’s trial occurred in June 2012 when Georgia’s old Evidence Code was still in effect. See Ga. L. 2011, pp. 99, 214, § 101 (new Code applies “to any motion made or hearing or trial commenced on or after” January 1,2013). Former OCGA § 24-4-6 appears in the new Evidence Code as OCGA § 24-14-6.