author: Dillard, Judge.

text:
    A12A1724, A12A1725.
    GOODY PRODUCTS, INC. v. DEVELOPMENT AUTHORITY OF THE CITY OF MANCHESTER; and vice versa.
    (740 SE2d 261)
   Dillard, Judge.

This appeal follows a jury trial in which Goody Products (“Goody”) was found liable to the Development Authority of the City of Manchester (“DAM”) for breach of a lease agreement and fraud, resulting in an award of $6,000,000 in damages. In Case No. A12A1724, Goody contends that (1) the trial court erred in denying its motion for directed verdict as to the fraud claim; (2) the trial court erroneously permitted the jury to interpret certain lease provisions; (3) the trial court erroneously charged the jury as to the measure of damages for breach of the lease and the measure of damages as to fraud; and (4) the $6,000,000 verdict is unsupported by the evidence. In Case No. A12A1725, DAM cross-appeals and contends that the trial court erred by (1) using a pre-trial motion in limine to address the sufficiency of its claim as to damages under OCGA § 51-9-1 and (2) ruling that its damages would be addressed by its breach-of-contract claim and, therefore, that it could not proceed with a tortious-interferencewith-property claim. For the reasons noted infra, we affirm the judgment below in Case No. A12A1724, and need not address the enumerations of error in Case No. A12A1725, which were contingent upon reversal in Case No. A12A1724.

Viewed in the light most favorable to the verdict, the evidence reflects that in the 1960s, Meriwether County leased a manufacturing facility to Goody, a manufacturer of hair-grooming products. Eventually, Goody built an addition to this leased-portion of the building, resulting in a unified eight-acre facility — half of which Goody leased and the other half of which it owned. In 2006, Goody decided to relocate its manufacturing operations and close the Meriwether County facility. And in February 2007, Meriwether County donated and deeded its portion of the facility to DAM. Thereafter, Goody and DAM entered into a sales contract for DAM to purchase Goody’s portion of the facility on July 18, 2007.

Prior to execution of the sales contract, and unbeknownst to DAM, in April 2007, a team of workers and one Goody representative spent weeks removing copper wiring, buss ducts, and switchgears— all components of the building’s electrical system — from the unified building. The removal of these components rendered the building’s fire alarm, sprinkler system, air conditioning, office lighting, and wall receptacles inoperable. In short: the eight-acre facility had no power or light, save that provided by a single lightbulb that was left hanging from a pole by an extension cord that ran down to a power substation.

Some eight months earlier, in September 2006, Goody conducted a public auction at the manufacturing facility, during which the components of the electrical system that were subsequently removed from the facility in April 2007 were sold. Goody’s director of real estate notified a DAM representative about the auction on August 18, 2006, telling her that Goody intended to auction “used equipment.” The DAM representative testified that it never occurred to her that “used equipment” would include “anything that was intrinsic to the functionality of the facility” — i.e., components of the building’s electrical system. As a result, DAM saw no need to have someone attend the auction because it was not in the market to purchase the sort of “used equipment” it understood Goody to be selling.

In September 2006 and March 2007, prior to removal of the electrical-system components, Goody granted DAM an option to purchase the Goody-owned portion of the facility for $750,000 and $500,000, respectively. It is undisputed that the facility was operational with all electrical components intact at these times and that the option contracts were for sale of the building “as is.” Thus, DAM’s representative testified that given the “as is” language of those contracts and the operational status of the facility when she visited in connection with these agreements, she understood that DAM would receive “a functional facility.”

Thereafter, in July 2007, after both option contracts had expired, DAM and Goody entered into the final sale agreement by which Goody would sell its portion of the facility to DAM for $500,000. Prior to the execution of this agreement, the DAM representative toured the facility again in May 2007 after Goody had ceased operations and the power was no longer on (the facility was toured by flashlight), but she testified that she was unaware that components of the electrical system had been removed the month before. But when the representative called the power company to change the account into DAM’s name in order to turn the power back on, she was informed that the facility was “missing the switchgear.” At trial, the representative explained that she initially did not understand the extent of what this “missing switchgear” meant to the functionality of the facility and had no reason to believe that it was a significant issue. Thus, when DAM signed the sales contract in July 2007, it was unaware that the entire electrical system had been removed, and the sales contract provided that the property included “all land and buildings and fixtures,” although it permitted Goody to remove machinery and equipment.

But the extent and severity of the electrical-system problems became apparent after Georgia Power called in an electrical contractor for assistance when the lights would not come on. The contractor walked around the building and quickly realized that all of the power-distribution components were missing from the facility, describing its current state as one appearing to have been ravaged by a tornado. As a result, DAM immediately spent $383,000 in order to install temporary lighting in the manufacturing portion of the facility.

With lighting temporarily restored, DAM enlisted two individuals who had previously worked for the company and performed the majority of Goody’s installation work in the relevant facility. And after one month of inspections and calculations, DAM received an estimate of what it would cost to restore the building to full electrical function by replacing each of the numerous removed components. The total amount, including a standard fifteen-percent markup, was $4,268,743.65 to install buss ducts, switchgears, and copper wiring— i.e., $2.8 million for the DAM-owned portion of the building and $1,468,743.65 for the Goody-owned portion of the building.

Thereafter, the dispute between the parties centered around Goody’s removal of the electrical-system components. DAM sued Goody for breach of the lease that controlled the DAM-owned portion of the building and for fraud with regard to the sale of the Goody-owned portion of the building. Ultimately, the jury returned a verdict in favor of DAM, finding that Goody breached the lease, engaged in fraud, and owed DAM $6,000,000 in damages. This consolidated appeal follows.

1. First, Goody contends that the trial court erroneously denied its motion for directed verdict as to DAM’s fraud claim because DAM could not assert that the claimed misrepresentations were inconsistent with the terms of the parties’ sales contract. We disagree.

Specifically, Goody argues that because DAM retained the benefits of the bargain of the sales contract, which contained a merger clause, it was estopped from asserting that it relied upon representations outside of those contained in the agreement. To that end, Goody contends that because the sales contract provided that “[a]ny fixtures attached to the property are included in the sale,” DAM could not successfully assert a claim for fraud because the relevant electrical equipment had been removed prior to execution of the agreement. According to Goody, DAM advanced its fraud claim “based upon representations in the two expired and void option contracts, which had nothing to do with the sale, and what DAM’s [ejxecutive [director thought was included in the sale,” which Goody contends ultimately had the effect of varying the unambiguous terms of the sales contract. In response, DAM contends that (1) the merger clause did not bar a claim for fraud because the claim was “based on intrinsic defects in the subject matter of the contract, namely that Goody had removed the electrical system from the facility,” and (2) the contract itself contained misrepresentations to the extent that the electrical equipment constituted fixtures.

In reviewing the denial of Goody’s motion for directed verdict, we note that a directed verdict is appropriate only if “there is no conflict in the evidence as to any material issue and the evidence introduced, construed most favorably to the party opposing the motion, demands a particular verdict.” And here, the trial court properly denied Goody’s motion. The expired option contracts were not used to vary the terms of the sales contract but were instead evidence from which the jury could determine that (1) there was an intrinsic defect at the time of sale and/or (2) the sales contract itself contained a misrepresentation. As DAM repeatedly argued, the option contracts and the circumstances surrounding them were evidence of DAM’s due diligence as to its inspections of the building prior to execution of the contract, which represented that fixtures would be included. And indeed, Goody’s director of real estate testified that his own expectation before signing the sales contract was that the DAM representative had toured the facility “on many occasions” and that she “understood the condition of the property.” Thus, the relevant evidence supported an inference that Goody passively concealed the removal of the electrical-system components and/or assisted the jury in evaluating DAM’s exercise of due diligence (or lack thereof) and the reasonableness of its subsequent understanding that the language of the sales contract encompassed all fixtures, including the components of a fully functional electrical system. Accordingly, the argument that the trial court erred in denying the motion for directed verdict is without merit.

2. Next, Goody contends that the trial court erred in charging the jury that its duties included construing provisions of the lease governing “fixtures.” Again, we disagree.

To begin with, we note that DAM contends that this enumeration of error has been waived, interpreting Goody’s argument on appeal as relating to the trial court’s charge — or instruction — to the jury in this regard. And to the extent Goody makes such an argument, we agree with DAM that Goody has waived appellate consideration of the relevant charge because Goody failed to object to same.

Nevertheless, our inquiry is not at an end. Although Goody’s specific argument in this enumeration of error is not entirely clear, it appears that Goody takes issue with the trial court’s decision to submit the issue to the jury.

In considering this argument, we begin by noting 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. And this review is guided by three fundamental principles of contract construction. First, if the agreement is unambiguous, “the court will look to the contract alone to find the intention of the parties.” But if the contract is ambiguous, “the existence or nonexistence of an ambiguity is a question of law for the court.” And finally, the issue of interpretation becomes a jury question only when there appears to be “an ambiguity in the contract which cannot be negated by the court’s application of the statutory rules of construction.”

Here, the lease that controlled the portion of the facility owned by DAM — and previously owned by Meriwether County — provided that the property was to be kept in “good order and repair” and that Goody was permitted to make “additions, improvements or alterations” that would “become a part of the Project”; however, the lease also provided that “machinery, equipment, furniture or fixtures” that Goody placed on the property could be removed under certain circumstances.

Given the foregoing, DAM contends that because the facility contained a fully functioning electrical system when it was first leased to Goody, any changes Goody made to the electrical system were “improvements” that could not be removed. On the other hand, Goody argues that the relevant electrical components were “fixtures” that it had the right to remove under the plain terms of the contract. Nevertheless, DAM maintains that, reading the lease as a whole, “fixture” was intended to mean “trade fixture” but not “improvements.” And as to this issue, in response to Goody’s pre-trial motion in limine as to the measure of damages for breach of lease and then again when Goody moved for directed verdict at trial, the trial court determined that the lease agreement was sufficiently ambiguous so as to create an issue for the jury’s resolution, specifically as to whether the term “fixtures” referred to “trade fixtures” or also included permanent improvements to the property. In doing so, the trial court did not err.

To begin with, we do not agree with Goody that the ianguage of the lease is plain and unambiguous. Furthermore, applying the rules of OCGA § 13-2-2 to the relevant lease language, we are satisfied that the trial court did not err in submitting the issue to the jury. Section 3.1 (b) of the agreement specifies that

[t]he Company may, also at its own expense, make any additions, improvements or alterations to the Project that it may deem desirable for its business purposes, provided that such additions, improvements or alterations do not adversely
affect the operating unity of the Project or its character as a permissible undertaking under the Amendment and are located wholly within the boundary lines of the Leased Realty.

And Section 3.1 (d) provides that

[a]ll such additions, improvements and alterations, whether made by the Company or the County ... shall become a part of the Project; provided, however, that any machinery, equipment, furniture, or fixtures installed by the Company (not the County) on the Project without expense to the County and not constituting a part of the Leased Equipment maybe removed by the Company at any time. . . .

Accordingly, in light of these two provisions, we agree that the contract was ambiguous and that the issue of whether “fixtures” was intended to mean “trade fixtures” or whether it included permanent improvements was properly submitted to the jury for its consideration.

3. Goody next contends in two separate enumerations of error that the trial court erred in charging the jury (1) as to an improper measure of damages based on the jury’s resulting interpretation of the lease provision and (2) as to the measure of damages for fraud. Again, we disagree.

When we review an allegedly erroneous jury charge, we apply a “plain legal error” standard of review. And we will not overturn a trial court’s decision to give a particular jury charge “if there was any evidence presented at trial to support giving the charge.” In determining whether some evidence exists to support the instruction, we are not authorized “either to weigh existing evidence or to judge witness credibility as these matters are within the province of the jury.” Accordingly, a trial court does not err when “it charges the jury on a particular issue even when the evidence justifying the charge is slight.”

In the case sub judice, DAM asserts that Goody has waived appellate review of its enumerations of error related to jury charges by failing to comply with the requirements of OCGA § 5-5-24 when, after the jury was charged but before it returned its verdict, Goody told the trial court that it maintained its objections as previously stated. This contention is without merit.

Pursuant to OCGA § 5-5-24 (a), “in all civil cases, no party may complain of the giving or the failure to give an instruction to the jury unless he objects thereto before the jury returns its verdict, stating distinctly the matter to which he objects and the grounds of his objection.” In this respect, DAM is correct that objections made at charge conferences do not preserve charging issues for appellate review. But here, we are able to review the transcript of the charge conference. And the combined transcript evidence demonstrates that the trial judge “sufficiently understood the nature of [Goody’s] objections to enable him to rule intelligently on the specific point and that [Goody] reiterated [its] objections after the charge was given, albeit without repeating the specific factual or legal basis of the obj ection.”

With these guiding principles in mind, we will now address each of Goody’s enumerations of error in turn.

(a) First, Goody argues that as a direct result of the alleged error discussed supra in Division 2, the trial court departed “from the Lease’s measure of damages (‘good order and repair’) to the wholly different measure of ‘restoration’ damages.” Goody also argues that the trial court erred in instructing the jury that it was authorized to award legal interest from the point of breach until recovery because “there is no evidence in the record of damages at the time of the breach.” Thus, Goody ultimately contends that the “charge to the jury on damages on the breach of contract claim was contrary to applicable law[,] resulting in a windfall to DAM.”

The trial court instructed the jury as follows:

[DAM] alleges that [Goody] breached the terms of the lease agreement. The lease is a contract. If you find that [DAM] is entitled to recover under the terms of the lease, the damages recoverable are such as arise naturally and according to the usual course of things from the breach and such as the parties contemplated when the contract was made as the probable result of the breach.
The measure of damages for injury to the lease premises is the amount necessary to restore it to its condition before the injury.
The amount of damages as to the date of breach of the contract may be increased by the addition of legal interest from that time until the time of recovery.
Damages are given as pay or compensation for injury.
When one party is required to pay damages to another, the law seeks to ensure that the damages awarded are fair to both parties.
If you believe from a preponderance of the evidence that [DAM] is entitled to recover, you should award [DAM] such sums as you believe are reasonable and just in the case.

We discern no error in the trial court’s instruction to the jury as to damages for breach of the lease agreement. Indeed, because we held in Division 2, supra, that the trial court did not err in allowing the jury to construe the ambiguous lease provisions, as a result of the jury’s determination, it was not limited to the lease’s “good order and repair” measure of damages. Instead, the trial court properly instructed the jury as to the measure of damages for breach of contract. And the measure of damages for breach of contract is “the amount which will compensate the injured party for the loss which a fulfillment of the contract would have prevented or the breach of it entailed.” The injured party, as much as it is possible to do so with a monetary award, is to “be placed in the position he would have been in had the contract been performed.” As for breach-of-contract actions involving injury to real property, the general rule is that the measure of damages “is the diminution of the fair market value of the property and/or the cost of repair or restoration, but limited by the fair market value at the time of the breach or tort.” Finally, in breach-of-contract actions in all cases where an amount ascertained would be the damages at the time of the breach, “it may be increased by the addition of legal interest from that time until the recovery.”

Thus, the trial court properly instructed the jury as to the measure of damages for breach of the lease agreement which, as found by the jury, was committed by Goody’s removal of numerous electrical-system components from the leased premises. Moreover, DAM presented evidence that the cost of repairing or restoring the leased premises to its pre-injury condition amounted to $2.8 million for replacement of the components that were removed by Goody. Additionally, there was testimony that the damage caused to the building after the breach was not included in this total. And to the extent Goody contends that the measure of damages was unreasonable, it had “the burden to present any contradictory evidence challenging the reasonableness or proportionality” and, when appropriate, “evidence of an alternative measure of damages for the jury’s consideration.” Accordingly, the trial court did not err in its charge to the jury.

(b) Next, Goody argues that the trial court erred in charging the jury as to the measure of damages for fraud because there is “no evidence in this case at all that shows the difference between the value of the building Goody sold to DAM at the time of closing in August 2007 . . . and what its value would have been if the building contained the Electrical Equipment removed months prior to the Sales Contract.”

As to the measure of damages for fraud, the trial court instructed the jury, in pertinent part, as follows:

In this case, [DAM] contends that [Goody] has committed the tort of fraud. The measure of damages in an action for fraud and deceit is the actual loss sustained. If the contract is one [for] purchase and sale, the actual damages are the difference between the value of the thing sold at the time of delivery and what its value would have been if the representations made had been true. The defrauded party may show this difference in value by evidence of the reasonable cost of restoration.
Damages for fraud in a case such as this is [sic] the benefit of the bargain standard, that is, to award to the plaintiff that which it expected to receive had there been no fraud.

The trial court’s instructions to the jury were proper. In an action for fraud, the measure of damages is “the actual loss sustained, and if the contract is one of purchase and sale the actual damages are the difference between the value of the thing sold at the time of delivery and what its value would have been if the representations made had been true.” An alternative method of showing the difference in value is “to prove the reasonable cost of correcting the defect.” Overall, the measure of damages is “the same measure applied [when] a builder has failed to complete the building of a house according to [a] contract.” And, as a general rule, damages for defective construction are determined by “measuring the cost of repairing or restoring the damage, unless the cost of repair is disproportionate to the property’s probable loss of value.”

Accordingly, the trial court’s instructions were appropriate because the evidence supported the alternative method of calculation — i.e., the difference in value was shown by the reasonable cost of correcting the problem. Indeed, the instructions were supported by DAM’s evidence that it would cost $1,468,743.65 to restore the building’s electrical-system components that were removed from the premises, and there was also evidence that it cost $383,000 to restore temporary lighting to the manufacturing half of the building, which was primarily located in the Goody-owned portion. Thus, the trial court’s charge was supported by the evidence and not erroneous.

4. Finally, Goody contends that even if the trial court correctly instructed the jury as to the measure of damages for breach of the lease agreement and fraud, “there is no discernible path in the evidence to that amount [i.e., $6,000,000].” First, Goody contends that DAM should not have been permitted to include the $383,000 it cost to restore lighting to the facility temporarily to its amount of damages and second, that an award of legal interest was impermissible due to a lack of evidence of damages to the leased-portion of the facility at the time of breach. We disagree.

To begin with, the jury was authorized to conclude that the installation of temporary lighting was necessary for the restoration process, given that the combined eight-acre facility was, prior to such installation, lit by a single lightbulb hanging from a pole. Second, because DAM presented evidence as to the restoration costs of the leased-portion of the building as a result of Goody’s breach of contract ($2.8 million), the jury was authorized to award legal interest from the point of breach until the time of recovery over four years later. Accordingly, there was support for the jury’s award of $6,000,000 in damages based on DAM’s evidence that it cost $383,000 to restore temporary lighting and $4,268,743.65 to restore the missing electrical components ($1,468,743.65 for the Goody-owned portion and $2.8 million for the leased portion), and the fact that an award of legal interest was permissible as to the breach-of-lease claim.

Moreover, although Goody argues that general damages cannot make up any portion of the verdict because the trial judge instructed DAM’s counsel during closing that DAM’s damages were limited to the cost of restoration, Goody ignores the fact that the trial court ultimately decided to instruct the jury as to general damages on DAM’s claim for fraud. And Goody entered no objection to this charge at either the charge conference or after the instruction was given, nor does Goody appeal this instruction. General damages are those which the law “presumes to flow from any tortious act,” and “they may be recovered without proof of any amount.” Additionally, general damages maybe awarded on a fraud claim. And here, there was evidence that would support an award of general damages on the fraud claim, including that the manufacturing facility had remained empty due to its condition and that DAM had lost opportunities to rent the facility.

Decided March 20, 2013

Schiff Hardin, Leah Ward Sears, Michael K. Wolensky, Kimberly R. Bourroughs, Drew D. Dropkin, for appellant.

As we have repeatedly emphasized, this Court will not interfere with the trial court’s approval of a verdict unless “it is so flagrantly excessive, in light of the evidence, as to show bias, prejudice, or gross mistake by the jury.” There being no such indication here, we will not reverse the entry of judgment upon the jury’s award.

For all of the foregoing reasons, the trial court’s judgment is affirmed.

5. As DAM’s cross-appeal is contingent upon our reversal of Case No. A12A1724, and we have affirmed the trial court’s judgment in that case, it is unnecessary that we address the enumerations of error raised in Case No. A12A1725, and accordingly, it is dismissed.

Judgment affirmed in Case No. A12A1724. Appeal dismissed in Case No. A12A1725.

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

Chambless, Higdon, Richardson, Katz & Griggs, Mary M. Katz, Bondurant, Mixson & Elmore, Michael B. Terry, Frank M. Lowrey TV, Timothy S. Rigsbee, Charles A. Gower, Teresa T Abell, Miranda J. Brash, for appellee.

        See Morehouse College, Inc. v. McGaha, 277 Ga. App. 529, 529 (627 SE2d 39) (2005).

       A buss duct serves as a conduit for power and is more convenient than a wiring conduit. A switchgear provides incoming power to a building by serving as a switchboard.

       The price was ultimately reduced to $500,000 due to funding issues.

       Additionally, a prospective manufacturing tenant toured the facility and learned of the considerable restoration work that would be required for it to become functional once again. This prospective tenant was “livid” at the state of the building, and, as a result, DAM contacted Goody’s director of real estate in September 2007 to inquire as to what had happened to the building and whether he was aware that all copper wiring had been stripped from the facility.

       DAM contends that Goody waived this enumeration of error, hut we are satisfied that Goody preserved this enumeration of error for review on appeal.

        See generally Donchi, Inc. v. Robdol, LLC, 283 Ga. App. 161, 163 (1) (a) (640 SE2d 719) (2007) (“In cases where the allegedly defrauded party affirms a contract which contains a merger [clause] or disclaimer provision and retains the benefits, he is estopped from asserting that he relied upon the other party’s misrepresentation and his action for fraud must fail.” (punctuation omitted)).

       We note that Goody does not appeal the trial court’s denial of its motion in limine, which sought to exclude admission of the option contracts.

        Wolff v. Middlebrooks, 256 Ga. App. 268, 270 (1) (568 SE2d 88) (2002) (punctuation omitted).

        See Browning v. Stocks, 265 Ga. App. 803, 803-04 (1) (595 SE2d 642) (2004) (when contract contained merger clause, “[i]n the absence of any claim that the fraud arose from representations which were part of the sales contract, the [appellees’] suit for damages was necessarily based on [the] claim that [the appellant] fraudulently induced them to enter into the sales contract by actively or passively concealing” damage).

        See Conway v. Romarion, 252 Ga. App. 528, 532 (2) (557 SE2d 54) (2001) (“[A merger clause] does not prevent a claim of fraud arising from representations in the contract itself.”).

       The director of real estate also testified that when he toured the facility with the DAM representative in March 2006, he did not tell her specifically that Goody was selling electrical equipment but instead that Goody was “selling everything in the facility.” He also testified that he informed her inside the switchgear room that “all would be sold” and that he offered to sell DAM Goody’s manufacturing equipment, but DAM represented that it was “only interested in the building.” The DAM representative denied that Goody’s director of real estate ever represented that components of the electrical system would be removed and sold.

        See Browning, 265 Ga. App. at 804 (1) (defining passive concealment as when “the seller who knows of the defect does nothing to prevent the buyer from discovering it but simply keeps quiet about it”); see also Batey v. Stone, 127 Ga.App. 81, 82 (192 SE2d 528) (1972) (“Concealment of material facts may amount to fraud when... the concealment is of intrinsic qualities of the article which the other party by the exercise of ordinary prudence and caution could not discover; and misrepresentation may be perpetuated by acts as well as words, and by artifices designed to mislead.” (citation omitted)); Southern v. Floyd, 89 Ga.App. 602, 602 (2) (80 SE2d 490) (1954) (same).

        See SCM Corp. v. Thermo Structural Prods., Inc., 153 Ga.App. 372, 373 (1) (A) (265 SE2d 598) (1980) (holding that, despite merger clause, evidence that buyer was unable to view manufacturing process in full because parts of the system were shut down on each visit “raised an issue as to whether appellants had prevented appellee from exercising its own judgment and had concealed and misrepresented a material defect relating to the panel processing operation”); see also Conway, 252 Ga. App. at 533 (3) (“The issue of whether a purchaser has acted with the requisite due diligence is generally a question for the jury.”).

        See OCGA § 5-5-24 (a).

       We do not find DAM’s assertion of waiver disingenuous because it appears from the plain language of Goody’s listed enumerations of error that Goody took issue with the instruction to the jury. And although Goody makes reference to arguments that it made at a pre-trial motion-in-limine hearing, as well as a vague reference to the court’s denial of a nondescript motion, Goody does not specify which motion’s denial it deems to be in error (i.e., whether it is the pre-trial motion in limine or the motion for directed verdict). Nevertheless, because Goody contends in its reply brief that the error “was not in the language of the instruction, but in the fact that it was given at all,” we will construe this enumeration of error forgivingly, so as to consider the trial court’s decision to submit the issue to the jury. See Lee v. Ga. Power Co., 296 Ga. App. 719, 723 (5) (675 SE2d 465) (2009).

        Mon Ami Int‘1, Inc. v. Gale, 264 Ga. App. 739, 740-41 (1) (592 SE2d 83) (2003).

        Id. at 741 (punctuation omitted).

        Id. (punctuation omitted).

        Id. (punctuation omitted).

       In addition to its argument that the contract was unambiguous, on appeal, Goody also asserts that the trial court never “attempt[ed] to construe the Lease or even suggest it was unable to do so” but instead “summarily gave the issue to the jury.” It appears from the record that the parties made extensive arguments as to the ambiguity or, as Goody argued, lack of ambiguity in the lease agreement during the motion-in-limine hearing concerning the measure of damages for breach of the lease. At the end of the relevant arguments, the court indicated that it would take the question of ambiguity under advisement. And later that day, the court e-mailed the parties to inform them that it found the lease provisions “sufficiently ambiguous, for purposes of this motion, so that a jury, under proper instruction, should decide whether ‘fixtures’ refers only to trade fixtures or includes permanent improvements to the property.” Thus, while Goody is correct that the trial court’s response to the issue of ambiguity does not reflect conclusions of law as to the application of the rules of construction, there is no indication that the trial court did not apply this analysis in the interim between its first consideration of the issue at the motion-in-limine hearing and its decision on the matter later that day. Cf. Camaron v. State, 246 Ga. App. 80, 82 (2) (539 SE2d 577) (2000) (holding that absent evidence in record that court failed to consider first offender treatment as required, appellate court would presume trial court acted correctly). Moreover, Goody makes no specific argument to support its contention that application of the rules of construction would resolve any purported ambiguity, as Goody appears to rely almost entirely upon its argument that the lease was not at all ambiguous. See Vadde v. Bank of Am., 301 Ga. App. 475, 478 (1) (a) (687 SE2d 880) (2009) (failure to provide cogent argument or citation of authority in support of alleged error resulted in waiver).

        See Stephens v. State, 305 Ga. App. 339, 343 (4) (699 SE2d 558) (2010).

        Bennett v. Moore, 312 Ga. App. 445, 455 (1) n.8 (718 SE2d 311) (2011) (punctuation omitted).

        Id. (punctuation omitted).

        Id. (punctuation omitted).

        See Tucker Nursing Ctr., Inc. v. Mosby, 303 Ga. App. 80, 87 (5) (692 SE2d 727) (2010); Hurst v. J.P. Colley Contractors, Inc., 167 Ga. App. 56, 57 (2) (306 SE2d 54) (1983).

        McDowell v. Hartzog, 292 Ga. 300, 301 (736 SE2d 395) (2013).

       Because this instruction was proper, it is of no consequence that DAM did not present evidence of the facility’s condition at the time of signing the lease compared to its condition at termination of the lease because the measure of damages was not limited to “good order and repair.”

        Oasis Goodtime Emporium I, Inc. v. Cambridge Capital Group, Inc., 234 Ga. App. 641, 645 (4) (507 SE2d 823) (1998).

        Id.

        Robert E. Canty Bldg. Contractors, Inc. v. Garrett Machine & Constr., Inc., 270 Ga. App. 871, 873 (1) (608 SE2d 280) (2004) (punctuation omitted).

       OCGA § 13-6-13; see also OCGA § 7-4-2 (a) (1) (A) (“The legal rate of interest shall be 7 percent per annum simple interest where the rate percent is not established by written contract.”).

       The jury, finding that Goody breached the lease agreement, obviously agreed with DAM’s interpretation of the contract and determined that the electrical-system components became part of the project and were not subject to removal.

        John Thurmond & Assocs., Inc. v. Kennedy, 284 Ga. 469, 471 (1) (668 SE2d 666) (2008).

        Miner v. Harrison, 205 Ga. App. 523, 526 (3) (422 SE2d 899) (1992); accord Barnette v. Peace, 196 Ga. App. 440, 440-41 (395 SE2d 916) (1990).

        Barnette, 196 Ga. App. at 441; see also Miner, 205 Ga. App. at 526 (3).

        Windsor Forest, Inc. v. Rocker, 115 Ga. App. 317, 322 (2) (154 SE2d 627) (1967); accord Orkin Exterminating v. Bryan, 163 Ga. App. 804,805 (294 SE2d 683) (1982) (physical precedent only).

        Pollman v. Swan, 289 Ga. 767, 769 (2) (716 SE2d 191) (2011) (punctuation omitted); accord John Thurmond & Assocs., Inc., 284 Ga. at 470 (1).

       DAM again asserts that Goody has waived this enumeration of error, hut we are not convinced that the authorities cited by DAM support this contention and, thus, we decline to find waiver as to this enumeration of error.

        See John Thurmond & Assocs., Inc., 284 Ga. at 469 (1) (“Juries... are given wide latitude in determining the amount of damages to be awarded based on the unique facts of each case.”).

        See supra Division 3 (a).

        See OCGA § 13-6-13; see also Commercial & Military Sys. Co. v. Sudimat, C.A., 267 Ga. App. 32,39 (3) (599 SE2d 7) (2004). We also note that despite Goody’s argument that no interest could be awarded on the fraud claim, the record reflects that the trial court only instructed the jury as to its ability to award legal interest on the breach-of-lease claim.

       Specifically, prior to instructing the jury as to the measure of damages discussed in Division 3 (b), supra, the trial court instructed the jury as follows:
      Now, as to fraud. A tort, such as fraud, is the unlawful violation of a private legal right.
      General damages are those which the law presumes to flow from any tortious act and they may be recovered without proof of any specific amount to compensate the plaintiff for the injury done to it.

        See OCGA § 5-5-24 (a) (providing that “in all civil cases, no party may complain of the giving or the failure to give an instruction to the jury unless he objects thereto before the jury returns its verdict, stating distinctly the matter to which he objects and the grounds of his objection”).

       OCGA § 51-12-2 (a); see First S. Bank v. C & F Servs., Inc., 290 Ga. App. 304, 307 (2) (659 SE2d 707) (2008); see also M&M Mortgage Co. v. Grantville Mill, LLC, 302 Ga. App. 46, 49 (2) (690 SE2d 630) (2010); In re Estate of Zeigler, 295 Ga. App. 156, 159 (2) (b) (671 SE2d 218) (2008); Cavin v. Brown, 246 Ga. App. 40, 43 (2) (a) (538 SE2d 802) (2000).

        See First S. Bank, 290 Ga. App. at 307 (2) (holding that general damages “may he awarded on a fraud claim” (punctuation omitted)); see also M&M Mortgage Co., 302 Ga. App. at 49 (2) (“[E]vidence may be submitted from which the trier of fact may fairly estimate the amount of general damages that will reasonably compensate for the wrong done. Abroad range of general damages may flow from fraud.” (citation and punctuation omitted)); Cavin, 246 Ga. App. at 43 (2) (a) (“General damages awarded on a fraud claim may cover a broader range of damages than those awarded on contract claims.”).

        See M&M Mortgage Co., 302 Ga. App. at 49 (2) (finding support for award of general damages as to fraud when there was evidence of resulting difficulties in conducting business). Cf. Johnson v. GAPVT Motors, Inc., 292 Ga. App. 79, 83 (1) (663 SE2d 779) (2008) (holding that material issues of fact remained as to whether general damages resulted from alleged fraud, including inconvenience to the plaintiff-appellant).

        McGaha, 277 Ga. App. at 534 (2); see also OCGA § 51-12-12 (a) (“The question of damages is ordinarily one for the jury; and the court should not interfere with the jury’s verdict unless the damages awarded by the jury are clearly so inadequate or so excessive as to be inconsistent with the preponderance of the evidence in the case.”); Green v. Proffitt, 248 Ga. App. 477, 478 (1) (545 SE2d 623) (2001) (“The issue of damages is a matter for the jury, and a reviewing court should not interfere with the jury’s damages award unless it is so small or excessive that it justifies an inference of gross mistake or undue bias. Because the jury’s award is not so excessive as to justify an inference of gross mistake or bias, we will not interfere with it.” (footnote omitted)).


source: Caselaw Access Project

author: DOYLE, Presiding Judge.

license: Public Domain

text:
    A12A2055.
    HENDERSON et al. v. SUGARLOAF RESIDENTIAL PROPERTY OWNERS ASSOCIATION, INC.
    (740 SE2d 273)
   DOYLE, Presiding Judge.

Walter Terrell Henderson, Jr., and Selena Henderson, individually and as custodians for their children, filed suit against Sugarloaf Residential Property Owners Association, Inc. (“the Association”), seeking damages for breach of contract, injunctive relief, and litigation expenses, alleging that the Association breached their agreement by refusing to combine the two lots owned by the Hendersons. The parties filed cross-motions for summary judgment, and the trial court ruled in favor of the Association. For the reasons that follow, we reverse.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.” “ ‘On appeal from the grant or denial of a motion for summary judgment, we review the evidence de novo, and all reasonable conclusions and inferences drawn from the evidence are construed in the light most favorable to the nonmovant.’ ”

So viewed, the record shows that the Hendersons own two adjoining lots in Sugarloaf Country Club subdivision. They sought to combine the two lots, as permitted by the Declaration of Covenants, Conditions, and Restrictions for Sugarloaf Farms Residential (“Primary Declaration”) and the Master Declaration of Residential Covenants, Conditions, and Restrictions for a Portion of Sugarloaf (Sugarloaf Country Club) (“Master Declaration”).

Section 11 of Article IV of the Primary Declaration states:

Combination or Subdivision of Lots. Should the Residential Owner of a Lot own one or more adjacent Lot(s) and desire that two (2) or more of such Lots be considered as one Lot, then such Residential Owner may execute and record an instrument in the public real estate records in Gwinnett County, Georgia, declaring such Lots to be one Lot, and thereafter all such Lots shall be considered as one Lot for the purposes of this Declaration. No Lot shall be subdivided by sale, lease [,] or otherwise without the prior written consent of Declarant. Provided, however, Declarant reserves the right to change the size, boundaries [,] or dimensions of any Lot owned by Declarant for any reason.

Section 8.16 of Article VIII of the Master Declaration provides:

Combination or Subdivision off] Lots. Should the Owner of a Lot own an adjacent Lot(s) and desire that two (2) or more such Lots be considered as one Lot, then such Lots shall be considered as one Lot for the purposes of this Article VIII upon the recordation with the Clerk of the Superior Court of Gwinnett County, Georgia, of an instrument by such Owner expressing such intent (such instrument to refer specifically to this section in this Declaration and to identify the Lots to be considered as one Lot for purposes of this Article VIII, and a copy of such recorded instrument shall be promptly delivered by such Owner to the Architectural Control Committee) [;] and in each such case, Building Envelopes, setback lines, and easements reserved in this Master Declaration shall be adjusted accordingly by the Architectural Control Committee. No Lot shall be subdivided by sale, lease [,] or otherwise without the prior written consent of Declarant. Provided, however, Declarant reserves the right to change the size, boundaries [,] or dimensions of any Lot owned by Declarant for any reason. Notwithstanding anything to the contrary contained herein, if two (2) or more such Lots shall be considered as one Lot pursuant to this Section 8.16, the Master Association (or its designated third party agent, if applicable), may charge Assessments to the Owner based upon the original number of Lots prior to their combination.

On December 27, 2010, the Hendersons recorded a consolidated plat of their lots and recorded an instrument of lot combination with the Clerk of the Superior Court of Gwinnett County; the document did not, however, refer specifically to the relevant portion of the Master Declaration as required therein. The Hendersons delivered copies of both documents to the Association, along with a request that the Architectural Control Committee adjust the building envelopes, setback lines, and easements pursuant to the Declarations. On December 30,2010, Marvin Pastel, counsel for the Association, wrote to the Hendersons explaining that the document they recorded with the County “does not comport with the requirements of Article 8.16 of the Master Declaration and is ineffective for the purposes of combining the two lots.” Pastel advised therein that if the Hendersons wished to proceed with combining the two lots, they needed to execute and record an attached affidavit, which included, inter alia, (1) an acknowledgment that the lots would be combined, but would be considered as two distinct lots for all other purposes under the Declaration and would be assessed separately; and (2) an acknowledgment that if the Hendersons subsequently sought to subdivide the lots in the future, all terms and provisions of Article VIII of the Master Declaration would apply to the lots individually, and the Hendersons would be required to remove any improvements that violated the building envelopes, setback lines, and easements for the lots. On January 19, 2011, the Hendersons filed an amended instrument of lot combination in superior court that specifically referred to Article 8 of the Master Declaration.

On June 17, 2011, the Hendersons sued the Association, seeking damages for breach of contract, injunctive relief, and litigation expenses, essentially alleging that the Association’s requirement that they sign the proposed affidavit before the lots would be combined was a violation of the Declarations. On November 4, 2011, the Association advised the Hendersons that it considered the Hendersons’ two lots “as one lot” but that it would continue to charge them two assessments as permitted in the Master Declaration.

The parties filed cross-motions for summary judgment, and the trial court ruled in favor of the Association. In summary, the trial court concluded that the Association’s requirement that the Hendersons execute an affidavit that comports with the relevant provisions of the Master Declaration was consistent with the Association’s rights therein and did not constitute a breach of contract. The trial court also concluded that the Hendersons failed to articulate actual damages suffered as a result of the Association’s alleged breach, other than their claim for attorney fees, and the Hendersons’ claim for injunctive relief was moot. Finally, the trial court found that the Hendersons’ claim for expenses of litigation under OCGA § 13-6-11 failed as a matter of law based on their failure to establish that the Association acted in bad faith.

1. The Hendersons contend that the trial court erred by granting summary judgment to the Association on their breach of contract claim. We agree.

By recording a consolidated plat of their lots and an instrument of lot combination with the Superior Court of Gwinnett County, the Hendersons fully complied with the Primary and Master Declarations. As a result, pursuant to the mandatory language contained in the Declarations, the two lots were thereafter considered one lot. Pursuant to the Master Declaration, the Association had the right to charge separate assessments on each lot, even after consolidation. Nothing in the Declarations, however, permitted the Association to make consolidation of the lots conditional upon the Hendersons’ execution of an affidavit acknowledging that the lots would be permanently assessed separately. Given the Association’s continued insistence that the Hendersons execute such an affidavit before recognizing consolidation, the trial court erred by granting summary judgment to the Association on the Hendersons’ breach of contract claim.

2. The Hendersons contend that the trial court erred by granting summary judgment on their claim for injunctive relief on the ground that it was moot.

The Master Declaration provides that once lots have been combined and a copy of the recorded combination instrument has been delivered to the Architectural Control Committee (the “ACC”) of the Association, “[bjuilding envelopes, setback lines, and easements . . . shall be adjusted accordingly by the Architectural Control Committee.”

Here, although it failed to do so initially, on November 4, 2011, after the lawsuit was filed, the Association acknowledged the consolidation of the Hendersons’ lots. The Association admits on appeal, however, that it has not yet adjusted the setback lines on the Hendersons’ plans, claiming that it is unable to do so until the Hendersons resubmit their plans. Pretermitting whether the Association’s obligation to adjust the setbacks is contingent upon the Hendersons’ resubmission of their plans, the trial court erred by granting summary judgment to the Association on the Hendersons’ claim for injunctive relief on the basis that it was moot.

3. In their final enumeration, the Hendersons argue that the trial court erred by granting summary judgment to the Association on the Hendersons’ claim for attorney fees and expenses of litigation under OCGA § 13-6-11. We agree.

OCGA § 13-6-11 authorizes a jury to award plaintiffs the expenses of litigation “where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff [s] unnecessary trouble and expense.”

Attorney fees may be awarded under the statute where there is bad faith in defendant’s carrying out the provisions of the contract. Where there is at least some evidence to support a claim for attorney fees under OCGA § 13-6-11, the trial judge is bound to submit the issue to the jury.

Here, the Association improperly conditioned the combination of the Hendersons’ lots on their execution of an unnecessary affidavit. After the Hendersons sued the Association, although it eventually conceded that it considered the lots combined, the Association has refused to adjust the setback lines unless and until the Hendersons resubmit their plans. Given this evidence, the trial court erred by granting summary judgment to the Association on the Hendersons’ claim for attorney fees and litigation expenses under OCGA § 13-6-11.

Judgment reversed.

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

Decided March 20, 2013.

Elarbee, Thompson, Sapp & Wilson, Sean M. Libby, Alisa P. Cleek, for appellants.

Friedman, Dever & Merlin, Hayes M. Dever, Winter, Capriola & Zenner, Marvin P. Pastel II, Eric B. Coleman, Kenneth Sisco, for appellee.

       (Citation omitted.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

        Duke Galish, LLC v. Manton, 308 Ga. App. 316 (707 SE2d 555) (2011).

       The Association filed a counterclaim for declaratory judgment, “to avoid any misunderstanding,” on the issue of the Hendersons’ continuing obligation to pay assessments for each lot. The trial court dismissed the counterclaim as unripe. That order is not at issue on appeal.

       The trial court also granted summary judgment to the Association on the Hendersons’ claim for attorney fees under the Declarations. The Hendersons do not challenge that ruling on appeal.

       The Association does not argue on appeal that the Hendersons failed to show damages resulting from the breach of contract. Pretermitting the sufficiency of the Hendersons’ evidence of actual damages, they are entitled to recover nominal damages under the contract. See OCGA § 13-6-6 (“In every case of breach of contract the injured party has a right to damages, but if there has been no actual damage, the injured party may recover nominal damages sufficient to cover the costs of bringing the action.”); Fowler’s Holdings, LLLP v. CLP Family Investments, 318 Ga. App. 73, 73-74 (1) (a) (732 SE2d 777) (2012); Hooker v. Roberson, 316 Ga. App. 345, 346 (2) (729 SE2d 484) (2012).

       (Footnote omitted; emphasis supplied.) Redfearn v. Huntcliff Homes Assn., 243 Ga. App. 222, 226 (3) (531 SE2d 376) (2000). See also Toncee, Inc. v. Thomas, 219 Ga. App. 539, 542 (3) (466 SE2d 27) (1995) (Whether to award litigation expenses under OCGA § 13-6-11 “is a question for the jury and an award will be upheld if any evidence is presented to support the award. A recovery for stubborn litigiousness or for causing the plaintiff [s] unnecessary trouble and expense is authorized where the evidence reveals no bona fide controversy or dispute with regard to the defendant’s liability. Whether or not a bona fide controversy exists is normally for the jury to decide.”) (citations and punctuation omitted).

       See Redfearn, 243 Ga. App. at 226 (3). The Association’s argument that “a valid express contractual provision for fees preempts [OCGA] § 13-6-11” is without merit. Benchmark Builders v. Schultz, 289 Ga. 329, 330 (2) (711 SE2d639) (2011), cited by the Association, states: “ ‘Where the contract provides for an award of fees, the legal principles governing an award under OCGA § 13-6-11... are inapplicable.’” This holding does not support the Association’s argument, but instead merely reiterates that the principles governing an award under OCGA § 13-6-11 do not apply to a contractual fee award.


text:
    A12A2168.
    FLOYD COUNTY v. SCOTT et al.
    (740 SE2d 277)
   DOYLE, Presiding Judge.

George and Carol Scott sued Floyd County (“the County”), alleging a variety of claims based on the County’s installation of drain pipe and drainage tie-in on nearby property, which work resulted in repeated flooding on their property. The trial court granted summary judgment to the County on each of the Scotts’ claims, with the exception of their nuisance claim. In this interlocutory appeal, the County argues (1) that the Scotts’ nuisance claim is barred by the statute of limitation; (2) that the trial court erred by determining that a reasonable juror could find that the County created a nuisance; and (3) that the Scotts’ ante litem notice to the County was insufficient. We reverse, for the reasons that follow.

In order to prevail on a motion for summary judgment under OCGA § 9-11-56, the moving party must show that there exists no genuine issue of material fact, and that the undisputed facts, viewed in the light most favorable to the nonmoving party, demand judgment as a matter of law. Moreover, on appeal from the denial or grant of summary judgment, the appellate court is to conduct a de novo review of the evidence to determine whether there exists a genuine issue of material fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

So viewed, the record shows that the Scotts owned property in a residential subdivision in Rome, Georgia, next door to Geoffrey and Kimberly Wright; both properties bordered East Camelia Road. For decades, water in the subdivision naturally flowed either through a ditch under East Camelia Road or, during heavy rain events, across the road; it then flowed through a wide drainage ditch in the Wrights’ side and back yards, across undeveloped property adjoining both the Wrights’ and Scotts’ properties, and into a nearby agricultural pond.

In 1999, in an effort to allow them to use their back yard, the Wrights installed an underground pipe, which extended from their property line, ran under their back yard, and ended and drained at the property line between the Wrights’ and Scotts’ properties. In 2002, the Scotts purchased the undeveloped property adjoining their property and the Wrights’ property. In August 2003, the County installed an additional pipe under East Camelia Road, adjacent to the pre-existing pipe under the road for the purpose of diverting more water under the road, instead of over it. The County also constructed a drainage tie-in, which connected the two pipes to the Wrights’ pipe (hereinafter, we collectively refer to the installation of the additional pipe and the drainage tie-in as “the 2003 work”).

In February 2011, the Scotts sued the County and the Wrights for damages allegedly arising out of flooding of the undeveloped property that the Scotts acquired in 2002. In their complaint, the Scotts alleged that “[b]eginning with the first significant rainfall event following the Wrights’ construction of the underground drainage culvert and Floyd County’s tie [-in] into the underground drainage culvert,” the Scotts observed increased water from the Wrights’ property flowing onto the Scotts’ property, resulting in “extensive flooding.” Consistent with these allegations, Carol Scott testified at deposition that she knew “there was water” on the undeveloped property before 2009 when it rained, “but it got really bad in 2009. That is when my trees started falling, earth, roots, and all.” The day after Carol’s deposition, the Scotts amended their complaint specifically denying that they experienced flooding on their property prior to 2009, in contradiction to their original complaint and Carol’s testimony. Instead, the Scotts based their nuisance claim on allegations that the harm to their property began in 2009, when trees began falling because their root structures were rotted by the flooding caused by the 2003 work.

The County and the Wrights filed motions for summary judgment. Following oral argument, the trial court granted summary judgment to the Wrights. The trial court also granted partial summary judgment to the County, concluding that the Scotts’ nuisance claim remained viable and was not barred by the statute of limitation. The trial court ruled that a jury must decide “whether the 2003 work by the County in rerouting the storm water under Camelia Road and into a pipe that ultimately spilled the water out onto [the Scotts’] property increased the quantity or flow of the water causing damage to” the Scotts’ land.

1. The County argues that the Scotts’ nuisance claim is barred by the statute of limitation. We agree.

OCGA § 9-3-30 (a) establishes a four-year statute of limitation for actions for trespass upon or damage to realty. “Generally, whether a nuisance is deemed to be continuing or permanent in nature determines the manner in which the statute of limitations will be applied.” Here, the trial court found that the alleged nuisance was permanent and was not an abatable nuisance such that every continuance of the nuisance gave rise to a fresh cause of action, and the parties do not challenge this ruling.

A nuisance, permanent and continuing in its character, the destruction or damage being at once complete upon the completion of the act by which the nuisance is created, gives but one right of action, which accrues immediately upon the creation of the nuisance, and against which the statute of limitations begins, from that time, to run.

In cases of permanent nuisance, “a plaintiff is allowed only one cause of action to recover damages for past and future harm. The statute of limitation begins to run against such a claim upon the creation of the nuisance once some portion of the harm becomes observable.”

Thus, as applied to this case,

the [Scotts’] action would be barred because they did not file their lawsuit until [eight] years after the [County’s 2003 work] became operational — unless some new harm that was not previously observable occurred within the four years preceding the filing of their cause of action in [2011].

For this purpose, a change in degree of harm does not restart the limitation period. “If a plaintiff could sue a public utility each time the harm resulting from a permanent nuisance changed by degree, the rule requiring a plaintiff to bring one lawsuit for past and future damages within the applicable statute of limitation would be meaningless.”

The Scotts allege that “the discharge of water from Floyd County’s drainage tie [-in] into the Wrights’ underground drainage pipe has caused flooding and water damage to the Scott[s’ p]roperty.” The Scotts admitted in their initial complaint that they observed extensive flooding on their property “[beginning with the first significant rainfall event” following the 2003 work. Although they subsequently amended their complaint to deny that the property experienced flooding prior to 2009, their original admission can be construed as an admission against interest. This admission, combined with Carol’s deposition testimony that she observed water on the property before 2009 and her affidavit containing the explanation from the county employee that the trees were damaged by standing water, we conclude that the Scotts’ claim accrued long before they discovered trees falling on their property in 2009 and more than four years before they filed their initial complaint in 2011. The trial court erred by denying the County’s motion for summary judgment in its entirety.

Decided March 20, 2013

Womack, Gottlieb & Rodham, Ronald R. Womack, Steven M. Rodham, Smith, Shaw & Maddox, Thomas H. Manning, for appellant.

Bryan Cave, Curtis J. Romig, Julia L. Fenwick, for appellees.

2. Based on our holding in Division 1, we need not address the County’s remaining enumerations.

Judgment reversed.

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

       (Punctuation omitted.) City of Columbus v. Cielinski, 319 Ga. App. 289, 290-291 (734 SE2d 922) (2012).

       The Scotts also submitted Carol’s affidavit, in which she avers that a Floyd County Extension Office employee inspected the property at issue and informed her “that the trees were falling because they were rotten and waterlogged, due to the flooding and standing water on the [p]roperty” and that clearing the trees from the property would “dry up the standing water." (Emphasis supplied.)

       In the amended complaint, the Scotts alleged continuing nuisance and trespass claims against both the County and the Wrights, as well as negligence and inverse condemnation claims against the County.

       The grant of summary judgment to the Wrights is not at issue in this appeal.

       Although arising out of an alleged nuisance, the Scotts’ claim is technically one for inverse condemnation. “A county may be liable for damages if it creates a condition on private property, such as a nuisance, that amounts to inverse condemnation or a taking without compensation.” (Punctuation omitted.) Stanfield v. Glynn County, 280 Ga. 785, 786 (1) (631 SE2d 374) (2006). The parties do not contend, however, that this is relevant to the statute of limitation analysis.

       Specifically, the trial court found:
      [T]he water has always flowed across the Scott[s’] property. The water continued to flow across their property after [the County] did its work in 2003. There was no way an increase in flow (if there had been such) could be observed by the Plaintiffs. The harm in this case did not become observable until the trees started falling and Mrs. Scott had someone come look at them in 2009.

       (Punctuation omitted.) Oglethorpe Power Corp. v. Forrister, 289 Ga. 331, 333 (2) (711 SE2d 641) (2011).

       (Punctuation omitted.) City of Atlanta v. Kleber, 285 Ga. 413, 416 (1) (677 SE2d 134) (2009).

       (Emphasis supplied.) Oglethorpe Power Corp., 289 Ga. at 333 (2), quoting Restatement (Second) of Torts § 899, cmt. d (“In some cases, however, in which the defendant has done an act that may have a permanent injurious effect, hut when the effect is problematical and no harm is observable, the statute does not begin to run until some portion of the harm becomes observable.”).

        Oglethorpe Power Corp., 289 Ga. at 336 (3).

       Id. at 337 (3).

        See R.D. Stallion Carpets v. Dorsett Indus., 244 Ga.App. 719, 724 (536 SE2d 523) (2000).

       The Scotts’ apparent contention that the damage to the trees constituted “new harm” is without merit. The purported harm to their property was the increased flooding, which then allegedly resulted in damage to the trees.

       See Oglethorpe Power Corp., 289 Ga. at 336 (3).


author: Doyle, Presiding Judge.

text:
    A12A2240.
    HENDERSON v. THE STATE.
    (740 SE2d 280)
   Doyle, Presiding Judge.

Following a jury trial, Charles Ralph Henderson was convicted on four counts of sexual exploitation of children in violation of OCGA § 16-12-100 (b) (8). The trial court denied Henderson’s subsequent motion for new trial, and he appeals, alleging that (1) the State failed to prove beyond a reasonable doubt his knowledge of the ages of the children depicted in the materials; (2) the failure to list the ages of the children in the indictment constitutes a nonamendable defect; (3) the trial court erred by denying his motion to suppress; (4) the trial court erred by improperly commenting on the evidence; (5) the trial court erred by empaneling a juror that Henderson lawfully struck; (6) trial counsel was ineffective; (7) the trial court erred by admitting similar transaction evidence; and (8) the trial court erred by failing to instruct the jury on his sole defense of accident. We affirm, for the reasons that follow.

[O]n appeal from a criminal conviction, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility, and the evidence is viewed in the light most favorable to support the verdict, with the defendant no longer benefitting from a presumption of innocence.

So viewed, the evidence shows that the Georgia Bureau of Investigation (“GBI”) Internet Crimes Against Children Task Force uses automated programs to identify internet protocol (“IP”) addresses of computer users in peer-to-peer networks who are sharing files containing child pornography. In September 2009, the Task Force identified a Rome, Georgia IP address as sharing multiple files of suspected child pornography. GBI Agent Jeffrey Brown obtained a subpoena from Comcast, the cable provider for the IP address, and the cable provider responded that the IP address was assigned to Henderson. Agent Brown then obtained a search warrant for Henderson’s home. During the search, officers found several DVDs in Henderson’s bedroom and living room, some of which were labeled “XXX.” The GBI also seized Henderson’s desktop computer, where subsequent computer analysis revealed numerous movie files depicting images of children engaged in sexual acts with adults, including sodomy and masturbation.

Henderson was arrested and charged with four counts of sexual exploitation of children. At trial, the jury viewed portions of the movie files and DVDs. Police officers familiar with some of the movie files and the ages of the children contained therein testified that one of the movies depicted a four or five-year-old female, while another depicted a female approximately five to nine years old. A police officer testified that the DVDs found in Henderson’s home, some of which contained sexually explicit images of children, had been burned onto the DVDs from a computer using specific software, and Henderson’s computer contained DVD burning software.

At trial, Henderson testified that he “didn’t try to get” the child pornography, but in fact “punched in on something else,” admitting that he “watch[ed] porno, but it wasn’t nothing about any young’uns.” According to Henderson, when he tried to delete the child pornography, “[i]t would not delete from that page,‘but it was going somewhere else, because [he] found it later.” He admitted that he downloaded some of the images onto DVDs to show to a friend who could help him delete the images from his computer, explaining that the friend “don’t believe nothing I tell him unless I show it to him.” Henderson testified that he labeled the DVDs as “XXX” to keep them separate from his other DVDs.

The arresting officer testified at trial that Henderson admitted to him that his computer contained images of child pornography, but Henderson insisted he was not aware that such possession was illegal. Henderson also admitted to the officer that he downloaded movie files containing images of child pornography and that he used various search terms, including bestiality, to find the material.

Henderson was convicted on all four counts, and the trial court denied his subsequent motion for new trial. This appeal followed.

1. Henderson enumerates that the State failed to prove beyond a reasonable doubt his knowledge of the ages of the children depicted in the movies. This enumeration is without merit.

A person commits the offense of sexual exploitation of children when he “knowingly ... possess [es] or controls] any material which depicts a minor or a portion of a minor’s body engaged in any sexually explicit conduct.” The statute defines a minor as a person under the age of 18 years. “It is axiomatic that the [S]tate bore the burden of establishing each element of this crime, and thus the [S]tate was required to prove that the persons depicted in the photographs were under 18 years of age.”

The jury viewed DVDs of the movie files found on Henderson’s computer and in his home, which depicted small children, who as the trial court concluded, were “clearly prepubescent.” Therefore, the jury was authorized to conclude that the children depicted in the movies were under the age of 18.

2. Henderson contends that the trial court erred by denying his motion in arrest of judgment because the indictment was fatally defective and subject to an arrest of judgment because it did not allege that the materials depicted sexually explicit activity by persons under the age of 18. Pretermitting the merit of this argument, Henderson’s motion was untimely, and we cannot consider this enumeration.

“A motion in arrest of judgment is a post-trial means by which a defendant may challenge an indictment as one would do in a general demurrer. However, a motion in arrest of judgment must be filed within the term of court in which the judgment was rendered.” Here, the verdict was entered on May 17, 2011, and the final disposition was entered on June 29,2011. Henderson did not file his motion in arrest of judgment until July 14, 2011. The Floyd County terms of court begin on the second Monday in January, March, July, and September, and on the first Monday in May and November. “Accordingly, we cannot address the merit of [Henderson’s] motion in arrest of judgment because it was not timely filed.”

3. Henderson argues that the trial court erred by denying his motion to suppress because the subpoena offered in support of the search warrant was improper. This enumeration presents no basis for reversal.

OCGA § 35-3-4.1 (a) (1) provides:

In any investigation [regarding the sexual exploitation of children] involving the use of a computer or an electronic device..., the director, assistant director, or deputy director for investigations shall be authorized to issue a subpoena, with the consent of the Attorney General, to compel the production of electronic communication service or remote communication service records or other information pertaining to a subscriber or customer of such service, exclusive of contents of communications.

Pretermitting whether Henderson has standing to challenge the GBI’s subpoena to Comcast, his internet service provider, GBI Agent Brown testified regarding the procedure he employs for securing a subpoena for an internet provider in such a case: Brown drafts the subpoena, including therein the IP address in question, “forwards it to [his] supervisor, who will forward it to the Deputy Director or Assistant Director or Director for approval. From there it goes to the [Attorney [G]eneral’s office [,] and they send back a confirmation.” According to Agent Brown, the consent of the Attorney General’s office in this case was reflected in a letter signed by an assistant attorney general on September 23, 2009. Thus, the trial court did not err by denying Henderson’s motion to suppress (and subsequent motion for new trial) based on an allegedly improper subpoena.

4. During trial, at the conclusion of Agent Brown’s direct examination, the trial court reviewed the evidence that had been admitted until that point, noting that one of the exhibits was “[two] DVDs located in the defendant’s house in the bedroom,” while another exhibit consisted of “[six] DVDs located at the defendant’s house in the [living room].” Henderson contends that these statements constituted improper commentary of the evidence prohibited by OCGA § 17-8-57 because possession and knowledge are essential elements of the charged crimes. We disagree.

OCGA § 17-8-57 provides:

It is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused. Should any judge violate this Code section, the violation shall be held by the Supreme Court or Court of Appeals to be error and the decision in the case reversed, and a new trial granted in the court below with such directions as the Supreme Court or Court of Appeals may lawfully give.

In this case, “the context of the trial court’s references shows that they generally were made for the purposes of administering the trial and clarifying which exhibit was associated with which [evidence] ,” The trial court’s statements were not an expression of the trial court’s opinion regarding whether Henderson knowingly possessed materials depicting sexually explicit images of children.

Under these circumstances, we find no error because OCGA § 17-8-57 does not prohibit the trial judge from taking such measures as necessary to ensure the orderly administration of the trial, and the court may even propound questions to a witness to clarify testimony when necessary in order to enforce its duty to ensure a fair trial.

Furthermore, we note that the fact that the DVDs were located in Henderson’s home was not a contested issue, and in fact, Henderson admitted that he possessed the DVDs. Accordingly, this enumeration is without merit.

5. Henderson contends that the trial court erred by empaneling a juror that he lawfully struck following the State’s Batson claim that he used peremptory strikes to exclude prospective jurors solely based on their gender. We disagree.

“The Equal Protection Clause of the United States Constitution prohibits discrimination in jury selection on the basis of gender as well as race. The three-part test utilized to review claims of race discrimination under Batson ... is also applied to analyze gender discrimination claims.” Under the test,

the opponent of a peremptory challenge must make out a prima facie case of discrimination. The proponent of the strike is then required to set forth a gender-neutral, case-related, clear and reasonably specific explanation for the exercise of his strikes. At this point, the proponent of the strike need not proffer an explanation that is persuasive or even plausible — all that is required is an explanation that is facially gender-neutral. The third step of the process requires the trial court to determine whether, considering the totality of the circumstances, the opponent of the strikes has shown that the proponent was motivated by discriminatory intent in the exercise of his strikes. The opponent of the strikes may carry his burden of persuasion by showing that similarly situated opposite sex jurors were not struck or that the proponent’s gender-neutral reason for a strike is so implausible or fantastic that it renders the explanation pretextual.

The trial court’s finding on whether the opponent of the strike has met his burden of persuasion is entitled to great deference, and we will the affirm the findings on appeal unless clearly erroneous.

Here, the State challenged Henderson’s use of eight of his nine peremptory challenges to strike women. As a result, the trial court found that the State had made a prima facie showing of gender discrimination, and it required Henderson to provide reasons for his strikes. With respect to one of the female jurors, R. H., Henderson’s trial counsel explained that “my assistant says that I was supposed to have taken her, and I struck her based on some gut feeling I had. So it didn’t have anything to do with her being a woman, we were supposed to have kept her. It may be a mistake[,] so we don’t object to her staying on.” The trial court accepted Henderson’s gender-neutral explanations for six of his remaining seven peremptory strikes of women.

With regard to the seventh, L. C., trial counsel explained that “I thought I recognized [L. C.] as being a former bailiff here at the [cjourt. And I struck her because bailiffs see everything and hear everything. But if she’s not, I’ve just made a mistake. But that’s still neutral as far as sex is concerned.” The Court then asked for the State’s response, and the prosecutor conceded that the prospective juror “may have been a bailiff at one point in time,” but argued that trial counsel’s explanation was not credible. The trial court then upheld the State’s challenge as to L. C., and Henderson challenges that ruling on appeal.

We agree that Henderson’s explanation of his basis for striking L. C. was facially gender-neutral, and therefore, Henderson satisfied the second prong of the Batson analysis. But, “although a trial judge must accept a facially [gender]-neutral explanation for purposes of determining whether the proponent has satisfied his burden of production at stage two, this does not mean that the judge is bound to believe such explanation at stage three.” “The trial court observed first-hand ... [trial counsel’s] demeanor as he explained the reasons for the peremptory strikes before finding, at step three of the Batson analysis,” that the State established discriminatory intent on the part of trial counsel in striking L. C.

A trial court’s determination of a [Batson] challenge rests largely on assessing the attorney’s credibility and state of mind and therefore lies peculiarly within the province of the trial judge. Accordingly, where, as here, [gender]-neutral reasons are given, the ultimate inquiry for the trial court is not whether counsel’s reasons are suspect, or weak, or irrational, but whether counsel is telling the truth in his or her assertion that the challenge is not [gender]-based.

Giving great deference to the trial court’s ultimate finding and considering the totality of the circumstances, including the number of Henderson’s strikes against females, trial counsel’s inability to articulate a gender-neutral basis for the strike against R. H., and that counsel was unsure about whether L. C. was in fact a bailiff, Henderson has not established clear error in the trial court’s finding that the strike was pretextual.

6. Next, Henderson alleges that trial counsel was ineffective.

In order to prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. Strickland v. Washington,[] The criminal defendant must overcome the strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct. As the appellate court, we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.

(a) Henderson contends that trial counsel was ineffective by failing to object to the trial court’s improper comment on the evidence. “As discussed in Division [4] above, the trial judge’s comments did not amount to a violation of OCGA § 17-8-57. Thus, there would have been no merit to trial counsel’s objection, and failure to raise a nonmeritorious objection does not constitute ineffective assistance of counsel.”

(b) Henderson argues that trial counsel was ineffective by failing to object to similar transaction evidence. As discussed in Division 7, infra, the trial court concluded that no similar transaction evidence was admitted at trial, and Henderson has failed to provide a record citation for the admission of such evidence. Thus, this argument provides no basis for reversal.

7. Henderson contends that the trial court erred by permitting the State to introduce similar transaction evidence for which the State failed to provide proper notice under Uniform Superior Court Rule 31.3 (B) and without first holding a hearing pursuant to Williams v. State.

In the order denying the motion for new trial, the trial court stated: “The [cjourt is unaware of any similar transaction evidence introduced during the course of the trial. The [c]ourt restricted the evidence to that relevant to the [cjounts alleged in the indictment.” On appeal, Henderson contends that the trial court admitted “evidence of multiple similar transactions over prior objection,” but he fails to provide a citation to the record for the admission of any such evidence or to show that he objected thereto. “[Gjiven his failure to support such claim of error by reference to the record, [Henderson] has abandoned the same on appeal.”

8. Finally, Henderson argues that the trial court erred by failing to instruct the jury on the defense of accident. Henderson did not request the charge at trial and did not object to the court’s failure to include a charge on accident before the jury began deliberations. Accordingly, pursuant to the Supreme Court of Georgia’s “recent decision in State v. Kelly[ ] and OCGA § 17-8-58 (b), we review this enumeration of error only to determine whether the court’s failure to include a specific instruction on transferred intent or transferred justification constitutes plain error.”

Kelly sets forth the four-prong test for determining the existence of plain error in jury instructions:

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

Here, pretermitting whether the first, second, or fourth prongs were satisfied, Henderson failed to satisfy the third.

“It is a fundamental rule in Georgia that jury instructions must be read and considered as a whole in determining whether the charge contained error.” The trial court instructed the jury that the State bore the burden of proving “every material allegation of the indictment and every essential element of the crime charged beyond a reasonable doubt” and that “the burden of proof never shifts to the defendant to introduce evidence or to prove innocence.” The court further instructed that a conviction for the sexual exploitation of children as charged in the indictment required proof that the defendant “knowingly” possessed or controlled material depicting a minor or a portion of a minor’s body engaged in any sexually explicit conduct. The trial court also defined the concept of “intent” for the jury:

Decided March 20, 2013.

Intent is an essential element of any crime and must be proved by the [S]tate beyond a reasonable doubt. Intent may be shown in many ways provided you, the jury, believe that it existed from the proven facts before you. It may be inferred from the proven circumstances or by acts and conduct, or it may be, in your discretion, inferred when it is the natural and necessary consequence of the act. Whether or not you draw such an inference is a matter solely within your discretion. The defendant will not be presumed to have acted with criminal intent, but you may find such intention, or the absence of it, upon a consideration of the words, conduct, demeanor, motive, and other circumstances connected with the act for which the accused is being prosecuted.

Considering the jury charges as a whole, we conclude that the trial court’s instruction adequately covered the defense of accident.

It is clear that the jury was fully informed that it had to find that [Henderson] acted intentionally, rather than accidentally, in [possessing or controlling the materials]. Thus, having found [Henderson] guilty of the charged offenses, the jury must have chosen to disbelieve [Henderson’s] testimony and reject any contention that [his actions were] the result of accident.

Given the charge as a whole, coupled with Agent Brown’s testimony that Henderson installed software on his computer to access a peer-to-peer network and Henderson’s admission that he deliberately burned several of the video files to DVDs, Henderson has failed to demonstrate that the trial court’s failure to give an unrequested charge on accident affected the verdict. Accordingly, the trial court did not err by denying Henderson’s motion for new trial on this basis.

Judgment affirmed.

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

Albert C. Palmour, Jr., Steven A. Miller, for appellant.

Leigh E. Patterson, District Attorney, Harold W. Goldin, Jr., Assistant District Attorney, for appellee.

       We note that the State’s brief has been largely unhelpful in addressing Henderson’s enumerations. Henderson’s brief contains eight separate enumerations and is thirty-one pages; the State’s brief is four pages and contains several conclusory arguments lacking any meaningful analysis (i.e., simply that “[t]here was no basis for [Henderson’s] [ineffective [a] ssistance of [c]ounsel claim”). “ ‘We do not believe that this “argument” satisfactorily discharges the State’s duty to file a response brief in all criminal appeals, as required by Court of Appeals Rule 13.’ ” Brennan v. State, 247 Ga. App. 515, n. 1 (544 SE2d 210) (2001).

        Dickerson v. State, 304 Ga. App. 762, 765 (2) (697 SE2d 874) (2010).

       Henderson lived alone.

       Henderson also argues in this enumeration that the State failed to prove the “sexually explicit conduct” element of OCGA § 16-12-100 (a) (1). Subsection (a) (1) defines the term “minor.” We presume that Henderson meant to refer to OCGA § 16-12-100 (a) (4), which defines "sexually explicit conduct” as, inter alia, sexual intercourse, masturbation, and lewd exhibition of the genitals. Henderson cannot, however, “ ‘use [his] brief to expand [his] enumeration of errors by arguing the incorrectness of a trial court ruling not mentioned in the enumeration of the errors.’ ” Salinas v. State, 313 Ga. App. 720, 724, n. 2 (722 SE2d 432) (2012). We therefore decline to address this argument. We nevertheless note that the jury watched the DVDs of the movies and movie files, which contained images of children’s genitalia, as well as sodomy, sexual intercourse, and masturbation.

       OCGA §16-12-100 (b)(8).

       See OCGA § 16-12-100 (a) (1).

        Abernathy v. State, 278 Ga. App. 574, 577 (1) (630 SE2d 421) (2006).

       See Day v. State, 293 Ga. App. 543, 544 (667 SE2d 392) (2008) (holding that the factfinder could deduce that the victim was under 16 years of age “by its observation of her childlike demeanor and prepubescent body in the videotaped interview”); Abernathy, 278 Ga. App. at 578 (1) (“where the individual in the photograph is a prepubescent child who is unquestionably under 18 years of age, no expert testimony is necessary”).

       We note, however, that the indictment specifically alleged that Henderson knowingly possessed materials containing sexually explicit images of minors. See Berry v. State, 281 Ga. App. 424, 425 (636 SE2d 150) (2006) (“Knowing that the child is a minor, i.e., under age 18, is an element of the crime.”) (emphasis supplied).

       (Citations and punctuation omitted.) Swanson v. State, 309 Ga. App. 381,382 (708 SE2d 307) (2011).

       See OCGA § 15-6-3 (33).

       (Punctuation omitted.) Swanson, 309 Ga. App. at 382.

       Henderson argues that the letter “did not specify ‘a subscriber or customer of such service’ as is . . . required by law.” This argument is unpersuasive given Agent Brown’s testimony that the Attorney General’s office gave consent for the subpoena in this case. Regardless, Henderson does not provide a citation to the record for the letter, and we have been unable to locate it in the record. Therefore, we cannot consider this argument. “[Henderson] bears the burden of proving error affirmatively by the record. It is not the function of this [C] ourt to cull the record on behalf of a party in search of instances of error.” (Citations and punctuation omitted.) Wade v. State, 305 Ga. App. 382, 383 (1) (700 SE2d 827) (2010).

        Foster v. State, 314 Ga. App. 642, 643 (1) (a) (725 SE2d 777) (2012).

       See id.

       (Punctuation omitted.) Id. at 643-644 (1) (a), quoting Moore v. State, 301 Ga. App. 220, 223 (1) (687 SE2d 259) (2009).

       See Foster, 314 Ga. App. at 644 (1) (a).

        Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986).

       (Footnotes omitted.) Sheets v. State, 244 Ga. App. 304 (1) (535 SE2d 312) (2000), citing J. E. B. v. Alabama, 511 U. S. 127, 143 (IV) (114 SC 1419, 128 LE2d 89) (1994).

       (Punctuation and footnotes omitted.) Sheets, 244 Ga. App. at 305 (1). See Toomer v. State, 292 Ga. 49, 52 (2) (a) (734 SE2d 333) (2012).

       See Toomer, 292 Ga. at 58 (2) (d).

       See Toomer, 292 Ga. at 54-55 (2) (b); Sheets, 244 Ga. App. at 305-306 (1).

       (Punctuation omitted; emphasis in original.) Broum v. State, 307 Ga. App. 797, 800 (1) (706 SE2d 170) (2011).

        Toomer, 292 Ga. at 57-58 (2) (d).

       (Punctuation and footnote omitted; emphasis supplied.) Brown, 307 Ga. App. at 800 (1).

       According to the trial court’s order denying Henderson’s motion for new trial, trial counsel did not ask L. C. during voir dire whether she had been employed as a bailiff. Because “voir dire was not transcribed, we must assume the trial court’s finding was correct.” See Sheets, 244 Ga. App. at 305 (1).

       See Brown, 307 Ga. App. at 800-801 (1); Sheets, 244 Ga. App. at 305-306 (1).

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

       (Punctuation omitted.) Boynton v. State, 317 Ga. App. 446, 450 (2) (730 SE2d 738) (2012).

        Smith v. State, 317 Ga. App. 801, 805-806 (3) (a) (732 SE2d 840) (2012).

       Henderson points to testimony regarding one of the children depicted in a movie file and the circumstances regarding the eventual arrest of that child’s father, but this testimony does not constitute similar transaction evidence.

       See Watson v. State, 289 Ga. 39, 46 (12) (d) (709 SE2d 2) (2011) (“Because [the defendant] has not supported his specific contention of ineffective assistance with any evidence of record, and because it is not our job to cull the record on behalf of a party to find error, [the defendant’s] contention is without merit.”) (citation and punctuation omitted).

       261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991).

        Dryden v. State, 292 Ga. App. 467, 470 (5) (665 SE2d 341) (2008), reversed on other grounds by Dryden v. State, 285 Ga. 281, 284 (676 SE2d 175) (2009). See also Court of Appeals Rule 25 (c) (2) (i) (“In the absence of such reference, [this] Court will not search for or consider such enumeration.”).

       2 90 Ga. 29 (718 SE2d 232) (2011).

        Allen v. State, 290 Ga. 743, 744-745 (3) (723 SE2d 684) (2012).

       (Punctuation and emphasis omitted.) Kelly, 290 Ga. at 33 (2) (a), citing and adopting the holding in Puckett v. United States, 556 U. S. 129,135 (II) (129 SC 1423,173 LE2d 266) (2009).

       (Punctuation omitted.) Fincher v. State, 289 Ga. App. 64, 66 (1) (656 SE2d 216) (2007).

       Id. at 67 (1).

       See id.; Grubbs v. State, 167 Ga. App. 365, 367 (2) (306 SE2d 334) (1983).