author: MERCIER, Judge.

text:
    A16A1753, A16A1754.
    FIELDS et al. v. TAYLOR et al.; and vice versa.
    (797 SE2d 127)
   MERCIER, Judge.

In Case No. A16A1753, Cheryl Fields, individually, and as the administrator of the estate of Laura Josey, William Josey, and Pamela Denney (collectively “Fields”), appeals the trial court’s grant of summary judgment to William Taylor, Jr.; Southeast Geriatrics, PC.; THI of Georgia at Shamrock, LLC d/b/a Shamrock Nursing and Rehabilitation Center; and John/Jane Does 1-6 (collectively “Taylor”). In Case No. A16A1754, Taylor appeals the trial court’s denial of his motion to exclude allegedly unreliable testimony given by Fields’s medical experts. As both appeals arise from the same underlying case, we will rule on both in one opinion for the purposes of judicial economy

In her appeal, Fields contends that the trial court erred in granting summary judgment to Taylor because she demonstrated that there were genuine issues of material fact to be decided by a jury at trial. We agree and reverse. In his cross-appeal, Taylor contends that the trial court erred in denying his motion to exclude Fields’s medical expert testimony because the experts based their opinions on unsworn and uncertified medical records, because they failed to consider sufficient facts and evidence to form reliable admissible opinions, and because they offered unreliable expert opinions that were not based on reliable principles and methods. Finding no error, we affirm.

The underlying action involves alleged medical errors that took place in 2010 that allegedly led to the death of Laura Josey Fields brought the underlying action individually, and as the administrator of Josey’s estate. The complaint alleged, inter alia, claims for wrongful death, pain and suffering, negligence per se, and punitive damages. Fields contended that the care given to Josey while she was a patient at Shamrock Nursing and Rehabilitation Center (which is no longer a party to the underlying litigation) fell below the applicable standard of care, and asa result of this breach of the standard of care, Josey died. After discovery was conducted, Taylor moved for summary judgment in January 2016. In March 2016, the Superior Court of Laurens County issued an order granting summary judgment to Taylor, finding that “the Plaintiffs have not shown proximate cause.” This appeal followed.

Case No. A16A1753

1. Fields argues that the trial court erred in granting summary judgment to Taylor because Fields demonstrated that genuine issues of material fact existed that should have been decided by a jury. We agree. In a claim for medical malpractice three essential elements must be present: “first, the duty of the doctor to his patient; second, the doctor’s breach of that duty through the failure to exercise the requisite degree of skill and care; and third, that this failure be the proximate cause of the injury sustained.” Miranda v. Fulton DeKalb Hosp. Auth., 284 Ga. App. 203, 205 (1) (644 SE2d 164) (2007) (punctuation and footnote omitted). See also OCGA § 51-1-27. The trial court ruled that Fields failed to establish a genuine issue of material fact as to the element of causation, and thus summary judgment was appropriate.

It is well established that on appeal of a grant of summary judgment, the appellate court must determine whether the trial court erred in concluding that no genuine issue of material fact remains and that the party was entitled to judgment as a matter of law. This requires a de novo review of the evidence.

Rubin v. Cello Corp., 235 Ga. App. 250 (510 SE2d 541) (1998) (citations omitted). Furthermore, “[sjummary judgment is appropriate when the court, viewing all the facts and evidence and reasonable inferences from those facts in a light most favorable to the non-movant, concludes that the evidence does not create a triable issue as to each essential element of the case.” Zeller v. Home Fed. Sav. & Loan Assn. of Atlanta, 220 Ga. App. 843 (471 SE2d 1) (1996) (citation omitted).

Viewed in this light, the facts show that Josey was treated at Shamrock Nursing and Rehabilitation Center from September 2010 to December 2010 and placed under the care of Taylor. Josey was admitted for a temporary duration because Fields, her daughter and primary caregiver, was unavailable for a period of time. Dr. John Fullerton noted in his expert affidavit (submitted on the behalf of Fields) that upon Josey’s admission, Shamrock was informed that Josey had been subject to an aggressive program to, inter alia, prevent pressure ulcers.

It is Fields’s position that while Josey was at Shamrock, Taylor failed to implement adequate treatment to prevent Josey from developing pressure ulcers. Fields argues that as a consequence of this failure to implement adequate treatment, Josey developed severe pressure ulcers, which ultimately led to her death. Because this case involves an appeal of a grant of summary judgment to Taylor, we must view the evidence in the light most favorable to Fields to determine whether triable issues of material fact exist. We conclude that they do.

The trial court made no mention of a breach of the standard of care by Taylor. However, in reviewing the record de novo we conclude that, at a minimum, Fields raised a genuine issue of material fact as to whether Taylor breached the applicable standard of care. Dr. Fullerton testified at his deposition that Taylor breached the standard of care in numerous ways including, but not limited to, failing to implement a proper wound care plan, failing to respond to concerns raised by other medical professionals regarding Josey, failing to ensure the performance of adequate assessments of Josey’s condition, and failing to follow applicable policies and procedures. Dr. Fullerton testified that Taylor was obligated by the standard of care to take part in the plan of care already implemented for Josey, and he failed to do so. Therefore, Fields established a genuine issue of material fact as to whether Taylor’s conduct fell below the relevant standard of care.

Thus, we are left to consider whether summary judgment was appropriate with respect to causation. Succinctly stated, Fields’s theory of negligence is that Taylor’s breach of the standard of care led to Josey developing severe pressure ulcers, and that in turn those ulcers caused her death. The record shows that Dr. Gerald Gowitt, the chief medical examiner for DeKalb County, testified with respect to Josey’s cause of death that “[w]e can discuss all these other potential causes of death . . . but my opinion is going to be rock solid that she’s septic from her ulcers,” and that sepsis resulting from ulcers caused her death. Dr. Gowitt’s opinion that the sepsis resulting from ulcers caused Josey’s death, and Dr. Fullerton’s opinion that it was Taylor’s breach of the standard of care that caused the ulcers to develop, appear to raise a genuine issue of material fact as to causation that should be determined by a jury. See Knight v. Roberts, 316 Ga. App. 599, 603 (1) (730 SE2d 78) (2012) (“To recover in a medical malpractice case, a plaintiff must show . . . that the purported violation or deviation from the proper standard of care is the proximate cause of the injury sustained. In other words, a plaintiff must prove that the defendants’ negligence was both the cause in fact and the proximate cause of his injury.” (citation omitted)). In fact, Dr. Fullerton also opined that “due to the various breaches in the standard of care by Dr. Taylor, I believe that that led to harm including [Josey’s] premature death.” Thus, viewed in the light most favorable to Fields, the evidence raised a triable issue of material fact as to causation.

Taylor argues, however, that Fields has failed to establish proximate cause because the record does not contain testimony linking the specific acts of Taylor to Josey’s injuries. Taylor fails to point to why he is due judgment as a matter of law, and instead argues that Fields failed to present testimony from a “ ‘proximate causation’ expert.” However, there is no requirement in Georgia law that plaintiffs use a “proximate causation expert,” and it is well established that “[c]ausation may be established by linking the testimony of several different, experts.” Walker u. Giles, 276 Ga. App. 632, 642 (1) (624 SE2d 191) (2005) (citation omitted). Dr. Fullerton opined that Taylor’s breach of the standard of care led to Josey developing ulcers, and that the ulcers became infected and she developed sepsis. Dr. Gowitt testified that the sepsis resulting from the ulcers was the cause of Josey’s death. Here, Fields has established that there is a genuine issue of material fact as to proximate cause by linking the testimony of her experts, and thus the issue of causation should properly be heard by a jury. “[I]t is . . . well settled that proximate cause is generally an issue for the jury” Id. at 643 (2) (citation omitted). Accordingly, the trial court erred when it granted summary judgment to Taylor.

Case No. A16A1754

2. In a related cross-appeal, Taylor argues that the trial court erred when it denied his motion to exclude medical expert testimony because the experts based their opinions on unsworn and uncertified medical records, the experts failed to consider sufficient facts and evidence to form reliable opinions, and the experts’ opinions were not the product of reliable principles and methods. When a trial court has conducted a hearing pursuant to OCGA § 24-7-702 (d) to determine the admissibility of an expert’s testimony, we review the trial court’s determination for an abuse of discretion. See Craigo u. Azizi, 301 Ga. App. 181, 183 (1) (687 SE2d 198) (2009); Hendrix v. Fulton DeKalb Hosp. Auth., 330 Ga. App. 833, 836 (769 SE2d 575) (2015) (physical precedent only).

(a) In his first enumeration of error, Taylor argues that the testimony of Fields’s experts should have been excluded because they failed to review certified medical records. Taylor relies on Padgett v. Baxley and Appling County Hosp. Auth., 321 Ga. App. 66, 70 (1) (741 SE2d 193) (2013), for the proposition that

[t]o be sufficient to controvert the defendant’s expert opinion and to create an issue of fact, the plaintiff’s expert must base his opinion on medical records which are sworn or certified copies, or upon his own personal knowledge; and he must state the particulars in which the defendant’s treatment of the plaintiff was negligent.

However, for the reasons that follow, our holding in Padgett does not support reversing the judgment of the trial court. The standard for the facts or data that an expert may rely upon to form an opinion can be found in OCGA § 24-7-703:

The facts or data in the particular proceeding upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, such facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Such facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.

Nothing in OCGA § 24-7-703 requires an expert to base her opinion on certified medical records. In Padgett and the cases preceding it, we considered expert affidavits submitted for the purposes of creating a genuine issue of material fact on summary judgment. See also Herndon v. Ajayi, 242 Ga. App. 193, 194 (1) (532 SE2d 108) (2000); Hailey v. Blalock, 209 Ga. App. 345 (433 SE2d 337) (1993); Johnson v. Srivastava, 199 Ga. App. 696 (405 SE2d725) (1991). Here, Taylor’s motion was to exclude the expert testimony of Fields’s experts because their opinions were based on uncertified and unsworn medical records. While this may have been appropriate grounds to exclude their expert affidavits for purposes of summary judgment, it is insufficient grounds on which to exclude their testimony See generally Padgett, supra.

Taylor cites to the admissibility requirements in OCGA § 24-9-902 (11) in support of his contention that the testimony of Fields’s experts should be excluded. However, OCGA § 24-9-902 governs extrinsic evidence of authenticity as a condition precedent to admissibility. In particular, OCGA § 24-9-902 (11) states that records that would be admissible under OCGA § 24-8-803 (6) are admissible without extrinsic evidence of admissibility if they are certified. Put succinctly, the records reviewed by Fields’s experts would be inadmissible under the standard set out in OCGA § 24-9-902 (11). However, this statute in no way precludes their testimony

In the instant case, both of Fields’s experts were deposed by counsel for Taylor, and it was this testimony that created a genuine issue of material fact noted in our opinion in Case No. A16A1753. Had the only opposition to Taylor’s motion for summary judgment been based off of both experts’ affidavits, then Padgett may have controlled. Yet, because both experts provided sworn testimony which created a genuine issue of material fact for a jury, the question of the admissibility of their affidavits becomes moot. Therefore, while the medical records relied upon by Fields’s experts were uncertified and thus inadmissible, because they were facts and data of a type reasonably relied upon by experts in their field in forming opinions, their testimony is admissible and the trial court did not abuse its discretion by denying Taylor’s motion to exclude it. See Evans v. Dept, of Transp., 331 Ga. App. 313, 319 (2), n. 3 (771 SE2d20) (2015) (“We note that an expert properly may rely on inadmissible facts and data such as hearsay in reaching his opinion, if the facts or data are of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.”) (citation and punctuation omitted).

(b) In his second and third enumerations of error, Taylor argues that Fields’s experts failed to consider sufficient facts and evidence and failed to utilize reliable principles and methods to form their opinions.

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise, if:
(1) The testimony is based upon sufficient facts or data;
(2) The testimony is the product of reliable principles and methods; and
(3) The witness has applied the principles and methods reliably to the facts of the case which have been or will be admitted into evidence before the trier of fact.

OCGA § 24-7-702 (b). Taylor’s argument is that neither of Fields’s experts considered the deposition of Dr. Ray (Josey’s attending physician while in hospice care), the deposition testimony of Taylor, or the deposition of a nurse who provided hospice care to Josey Taylor fails to cite any relevant authority that establishes how either Dr. Fullerton or Dr. Gowitt failed to rely on sufficient facts or data or to utilize reliable principles and methods. Instead, Taylor lists what he asserts to be deficiencies in the bases for the opinions of both Dr. Fullerton and Dr. Gowitt. While these alleged deficiencies in the basis for each expert’s opinion do implicate the credibility of their opinions or testimony, it was within the trial court’s discretion to determine the admissibility of the testimony of both experts based on its review of the record. See Craigo, supra, and Hendrix, supra. Taylor fails to point out how the trial court abused its discretion or why the facts and data utilized by both Dr. Fullerton and Dr. Gowitt were insufficient.

Instead, Taylor cites Berk v. St. Vincent’s Hosp. and Med. Center, 380 FSupp.2d 334 (S.D. N.Y. 2005) to support his contention that the testimony of Dr. Fullerton and Dr. Gowitt should be excluded. This case is unavailing for several reasons. Initially, this is a federal case from the Southern District of New York and so is not binding precedent on this Court. Moreover, the facts in Berk are distinguishable from the instant case. In that case, while the proffered expert did fail to review several depositions, he also based his opinions on facts not supported by the evidence. Berk, supra at 353 (4) (b). In Berk there was “simply too great an analytical gap between the data and the opinion proffered” by the expert testimony for it to be admissible. Id. (citation omitted). Here, there is no such analytical gap between the data and the evidence proffered. Therefore, the trial court did not abuse its discretion in ruling both experts’ opinions admissible, and Berk does not support such a conclusion either.

Taylor next cites Hawkins v. OB-GYN Assoc., 290 Ga. App. 892 (660 SE2d 835) (2008), for the proposition that “[w]here an expert employs differential diagnosis to ‘rule out other potential causes’ for the injury at issue, he must also rule in the suspected cause, and do so using ‘scientifically valid methodology.’ ” Id. at 893 (1) (citation and punctuation omitted). This case is also unavailing. In Hawkins we ruled that a cause of injury assumed by an expert “was not only unsupported by any evidence, but was contrary to all the evidence of record.” Id. at 894 (1). Here, Dr. Gowitt did “rule in” the suspected cause, namely the sepsis caused by the pressure ulcers. Dr. Gowitt stated, with respect to ruling out another cause of death (namely aspiration pneumonia) he could “[n]ot rule it out [100] percent. But again, let me make this clear. We’re dealing in probabilities, what is the most probable cause of her death. . . . [M]y opinion is going to be rock solid that she’s septic from her ulcers.” Dr. Gowitt indicated that he reviewed various relevant medical records, Josey’s death certificate, and photographs and that he examined Josey, as well as reviewed the affidavits of both Fields and Dr. Fullerton. Dr. Gowitt then utilized his expertise to draw a conclusion. Taylor fails to show how this opinion was not rendered using a scientifically valid methodology Ultimately, Taylor’s argument that both Dr. Fullerton and Dr. Gowitt’s testimony should be excluded for failure to consider sufficient facts and evidence, and to use reliable methods, rests on unsupported assertions and conclusory statements. Accordingly, it was no abuse of discretion for the trial court to rule the testimony of both Dr. Fullerton and Dr. Gowitt was admissible.

Decided January 18, 2017

Reconsiderations denied March 14, 2017

Jonap & Associates, John W. Jonap, Jeffrey S. Jonap; Eric J. Hertz, for appellants.

Chambless, Higdon, Richardson, Katz & Griggs, David N. Nelson, for appellees.

Judgment affirmed in Case No. Al 6A1754. Judgment reversed in Case No. A16A1753.

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


source: Caselaw Access Project

author: Rickman, Judge.

license: Public Domain

text:
    A16A1919.
    RES-GA YPL, LLC v. ROWLAND et al.
    (798 SE2d 315)
   Rickman, Judge.

In this case alleging a violation of Georgia’s Uniform Fraudulent Transfers Act, RES-GA YPL, LLC (“YPL”), as creditor, sued J. H. Rowland III, as judgment debtor (the “Judgment Debtor”), as well as Marilyn Jones Rowland, Katherine Rowland Boudreau, Rowland Partners, L.P, Rowland Companies, Inc., andMJR Finance, LLC, as parties to various real estate transactions (appellees collectively referred to herein as the “Rowland Appellees”), seeking to set aside the transactions as fraudulent and requesting a declaratory judgment as to the superiority of its interest in certain real property. The trial court granted the Rowland Appellees’ motion to dismiss the action. YPL appeals, contending that the trial court erred in dismissing its lawsuit. For the reasons discussed below, we affirm in part and reverse in part the trial court’s ruling.

This Court conducts a de novo review of a trial court’s ruling on a motion to dismiss. See Dove v. Ty Cobb Healthcare Systems, 316 Ga. App. 7, 9 (729 SE2d 58) (2012).

In doing so, our role is to determine whether the allegations of the complaint, when construed in the light most favorable to the plaintiff, and with all doubts resolved in the plaintiff’s favor, disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts; however, we need not adopt a party’s legal conclusions based on these facts.

(Punctuation and footnotes omitted.) Id.

The facts underlying YPL’s complaint are somewhat complex. The pertinent background information and history of the parties necessary to put the allegations of the complaint into context are set forth below.

I. The Parties

YPL has a deficiency judgment against the Judgment Debtor in an amount greater than $2.1 million. Marilyn Jones Rowland (“M. Rowland”) is the Judgment Debtor’s mother, and Katherine Rowland Boudreau (“Boudreau”) is the Judgment Debtor’s sister. Rowland Partners, L.P (the “Limited Partnership”) is a limited partnership of which it is undisputed that, at all times relevant to this action, M. Rowland and Boudreau were officers, owners, members, affiliates, and/or partners; YPL alleges, although the Rowland Appellees deny, that the Judgment Debtor also held a position in the Limited Partnership. Rowland Companies, Inc. is the general partner of the Limited Partnership. MJR Finance, LLC is a limited liability company of which M. Rowland was, at all times relevant to this action, an officer, owner, member affiliate, and/or incorporator; YPL alleges, although the Rowland Appellees again deny, that the Judgment Debtor also held a position in the company

II. Pertinent Background

In March 2007, a nonparty limited liability company executed a promissory note to Alpha Bank and Trust, as lender, in order to obtain a loan totaling over $3.5 million (the “Note”). The Judgment Debtor executed a personal guaranty in which he guaranteed the repayment of the Note (the “Guaranty”). The Note was securedby a security deed that encumbered certain real property in Cobb County.

In 2008, Alpha Bank and Trust was declared insolvent, and the Federal Deposit Insurance Corporation (“FDIC”) was appointed receiver. The FDIC, as receiver, transferred and assigned the Note and the Guaranty to a nonparty limited liability company, which in turn assigned the Note and the Guaranty to YPL in 2011.

The Note went into default, and YPL foreclosed on the collateral. The foreclosure sale was confirmed, and YPL thereafter filed a lawsuit against the Judgment Debtor seeking to recover a money judgment for the deficiency remaining on the Note. YPL obtained the judgment against the Judgment Debtor on August 28, 2012, and the judgment was reduced to a writ of fieri facias that was recorded on February 12, 2013. Payment of the judgment remains unsatisfied.

III. The Transfers

The week following the entry of YPL’s judgment against the Judgment Debtor, several “corrective” deeds (collectively, the “Corrective Deeds”), executed on September 4, 2012 and filed in the Superior Court of Burke County the following day, purported to cure numerous “defective” deeds (collectively, the “Defective Deeds”) that the Rowland Appellees allege were signed in 2003 and that transferred four tracts of real property among and between them. These transfers (collectively, the “Transfers”) form the basis of YPL’s complaint and are set forth in detail below.

1. The Herndon Transfers. The first in the series of “corrective” deeds was executed by M. Rowland and entitled “Corrective Executor’s Deed.” It purported to “confirm” the conveyance of a 264-acre tract of real property (the “Herndon Tract”) from M. Rowland, in her capacity as executor of her late husband’s estate, as grantor, to herself (individually), the Judgment Debtor, and Boudreau, as grantees. Attached to the corrective deed was a defective deed purporting to make the same conveyance, which referenced the year 2003 in the opening paragraph and was allegedly signed by M. Rowland and her late husband. The defective deed was not otherwise dated, witnessed, or recorded.

The second “corrective” deed was entitled “Corrective Quitclaim Deed” and was executed by the Judgment Debtor and Boudreau, as grantors. It purported to “confirm” a conveyance of their shares of the Herndon Tract to the Limited Partnership, as grantee. As before, attached to the corrective deed was a defective deed referencing the year 2003, allegedly signed by the Judgment Debtor and Boudreau, purporting to make the same conveyance. That deed was not dated, witnessed, or recorded.

2. The Multi-Tract Transfers. The third “corrective” deed was a “Corrective Quitclaim Deed” executed by M. Rowland purporting to “confirm” the conveyance of three separate parcels of real property totaling over 1,882 acres (the “Multi-Tract Property”) from herself, as grantor, to the Judgment Debtor and Boudreau, as grantees. Again, attached to the corrective deed was a defective deed referencing the year 2003, allegedly signed by M. Rowland, purporting to make the same conveyance. That deed was not dated, witnessed, or recorded.

The fourth and final “corrective” deed was a “Corrective Quitclaim Deed” executed by the Judgment Debtor and Boudreau, as grantors, purporting to “confirm” the conveyance of the Multi-Tract Property to the Limited Partnership, as grantee. As with each of the others, attached to the corrective deed was a defective deed referencing 2003, allegedly signed by the Judgment Debtor and Boudreau, purporting to make the same conveyance. The deed was not dated, witnessed, or recorded.

3. The MJR Finance Security Deed. On December 21, 2012, the Limited Partnership, as grantor, purported to convey an interest in both the Herndon Tract and the Multi-Tract Property (collectively, “the Properties”) to MJR Finance, as grantee, via a security deed, in order to secure a note in the amount of $350,000 (the “MJR Finance Security Deed”). The MJR Finance Security Deed was recorded on December 26, 2012.

IV. The Trial Court Proceedings

On August 20, 2015, YPL filed the instant lawsuit seeking damages and to enforce its judgment by voiding the Transfers as violative of the Georgia Uniform Fraudulent Transfers Act, OCGA § 18-2-70 et seq. (2002) (“UFTA”). YPL also sought a declaratory judgment that it held an interest in the Properties superior to any alleged interest held by MJR Finance. Finally, YPL sought attorney fees and litigation costs pursuant to OCGA § 13-6-11.

The Rowland Appellees filed a motion to dismiss YPL’s complaint, asserting that YPL lacked standing under the UFTA to bring the action against the Judgment Debtor, failed to state a cause of action against M. Rowland, Boudreau, or Rowland Companies, was time-barred from pursuing its UFTA claim by the applicable statute of limitation, and was not an “interested party” with standing to seek a declaratory judgment. The trial court granted the motion “for the reasons stated in [the Rowland Appellees’] brief,” and this appeal follows.

V. Discussion

1. UFTA Claim. The UFTA provided:

A transfer made or obligation incurred by a debtor is fraudulent as to a creditor, whether the creditor’s claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation... [w]ith actual intent to hinder, delay, or defraud any creditor of the debtor [.]

OCGA § 18-2-74 (a) (1). When determining a debtor’s intent, consideration is given to, among other things, the factors set forth in OCGA § 18-2-74 (b), which are commonly referred to as the “badges of fraud.” See RES-GA Hightower, LLC v. Golshani, 334 Ga. App. 176, 178 (1) (a) (778 SE2d 805) (2015). The UFTA defines a “creditor” as “a person who has a claim,” a “debtor” as “a person who is liable on a claim,” and a “claim” as “a right to payment, whether or not the right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured.” OCGA § 18-2-71 (3), (4), (6). A transfer made with an actual intent to defraud creditors may be avoided if the recipient did not take the transfer in good faith and for reasonably equivalent value. See OCGA §§ 18-2-74 (a) (1); 18-2-77 (a) (1); 18-2-78 (a); Miller v. Lomax, 266 Ga. App. 93, 100 (3) (596 SE2d 232) (2004).

In its complaint, YPL alleged that the Judgment Debtor made the Transfers with the actual intent of hindering, delaying, or defrauding his creditors, and specifically alleged several “badges of fraud”: the Transfers were made to insiders, were made after the Judgment Debtor had a judgment against him, consisted of substantially all of the Judgment Debtor’s assets, were made without the Judgment Debtor’s receipt of consideration for a reasonably equivalent value of the assets transferred, were made when the Judgment Debtor was insolvent or he became insolvent as a result of the Transfers, and occurred shortly after a substantial debt was incurred. See OCGA § 18-2-74 (b). YPL further alleged that the Rowland Appellees knew or should have known that the Judgment Debtor was insolvent and that the Transfers were made with the intent to hinder, delay, or defraud the Judgment Debtor’s creditors.

A separate statute, OCGA § 44-12-24, prohibits the assignment of “[a] right of action . . . for injuries arising from fraud to the assignor.” Reading this statute in conjunction with the UFTA, this Court has previously held that assignees of debt who otherwise qualified as “creditors” with “claims” under the broad definitions of the UFTA were nevertheless precluded by OCGA § 44-12-24 from pursuing a fraudulent transfer claim. See Merrill Ranch Properties v. Austell, 336 Ga. App. 722, 731 (3) (784 SE2d 125) (2016); Golshani, 334 Ga. App. at 179-180 (1) (a).

(a) The Rowland Appellees contend that OCGA § 44-12-24, in conjunction with the holdings of Merrill Ranch Properties and Gol-shani, bar YPL, as assignee of the Note and the Guaranty, from pursuing an action under the UFTA.

Construing the complaint, as we must, in the light most favorable to YPL and resolving all doubts in its favor, neither the plain language of the statute nor this Court’s precedent deprive YPL of standing to file its claim. Rather, OCGA § 44-12-24 expressly prohibits the assignment of a right of action based in fraud. Consequently, in both Merrill Ranch Properties and Golshani, we held that an assignee of debt lacked standing under OCGA § 44-12-24 to pursue a fraudulent transfer claim otherwise belonging to a previous debt holder for conveyances made prior to the date of the debt assignment. See Merrill Ranch Properties, 336 Ga. App. at 731 (3) (summarizing Golshani as holding that “an assignee of debt is precluded [by OCGA § 44-12-24] from pursuing opre-assignment fraudulent transfer claim under the UFTA”) (citation omitted; emphasis supplied); Golshan i, 334 Ga. App. at 180 (1) (a) (holding that an assignee of the original creditor lacked standing to set aside as fraudulent a conveyance made before assignment of the debt).

In contrast, YPL alleges that the Transfers at issue here were made after YPL held the Note and the Guaranty. Thus, YPL does not seek a remedy for an injury stemming from fraud to a previous holder of the note, but rather for an injury that was committed directly against it. If true, although YPL is an assignee of debt, the right of action for fraudulent conveyance was not assigned, but is its own, removing this case from the ambit of both OCGA § 44-12-24 and our prior precedent.

The Rowland Appellees nevertheless maintain that the Defective Deeds attached to the later-recorded Corrective Deeds establish that the Judgment Debtor transferred the Properties to the Limited Partnership in 2003, prior to YPL’s acquisition of, and indeed the execution of, the Note and the Guaranty They argue that the only post-assignment conveyances were made from the Limited Partnership to MJR Finance and were not subject to being set aside.

To be sure, a determination that the Judgment Debtor conveyed his interests in the Properties to the Limited Partnership in 2003 and that the only post-assignment conveyances were those from the Limited Partnership to MJF Finance would be fatal to YPL’s UFTA claim. See OCGA § 44-12-24; Merrill Ranch Properties, 336 Ga. App. at 731 (3); Golshani, 334 Ga. App. at 179-180 (1) (a); see also Maxco, Inc. v. Volpe, 247 Ga. 212, 214 (1) (274 SE2d 561) (1981) (“A limited partner owns an interest in the legal entity but holds no title to the assets of the partnership.”).

Such a determination, however, cannot be made at this stage of the litigation. Although a deed that has been neither witnessed nor recorded may be sufficient to bind the parties and their privies to the deed itself, it is not admissible to prove title in the grantee without first laying the proper foundation. See Latham v. Fowler, 199 Ga. 648, 648 (34 SE2d 870) (1945) (“Where, in a suit for land, the right of the plaintiffs was predicated upon an alleged lost and unrecorded deed proof of the existence of a genuine original must have been established before secondary evidence relating thereto would have been admissible.”); Hoover v. Mobley, 198 Ga. 68, 73 (31 SE2d 9) (1944) (“The penalty for failure to execute the deed in the manner prescribed by the statute is a refusal to admit the same to record.”) (on motion for rehearing); see also Smith v. Forrester, 156 Ga. App. 79, 80 (1) (274 SE2d 101) (1980). On a motion to dismiss, the question before this Court is whether the allegations of the complaint, when construed in the light most favorable to YPL and with all doubts resolved in its favor, “disclose with certainty that [YPL] would not be entitled to relief under any state of provable facts.” (Punctuation and footnote omitted.) Dove, 316 Ga. App. at 9. With factual questions remaining as to the authenticity of the Defective Deeds, we cannot say that YPL lacks standing to pursue its UFTA claim based upon its status as an assignee of debt. Compare OCGA § 44-12-24; Merrill Ranch Properties, 336 Ga. App. at 731 (3); Golshani, 334 Ga. App. at 179-180 (1) (a).

(b) The Rowland Appellees assert that YPL failed to assert any viable claims against M. Rowland, Boudreau, and Rowland Companies, Inc. On this point, we agree.

YPL, as creditor, can seek relief under the UFTA against the Judgment Debtor, as well as any recipient of the Transfers made by the Judgment Debtor, i.e., the Limited Partnership. See OCGA §§ 18-2-77; 18-2-78. Neither M. Rowland, Boudreau, nor Rowland Companies, Inc., however, received any interest in the Properties from the Judgment Debtor that would render them subject to a UFTA claim by YPL. Because they are likewise not debtors of YPL as that term is defined under the UFTA, any transfers made by them are not subject to attack by YPL. See OCGA § 18-2-74 (a) (“A transfer made . . . by a debtor is fraudulent as to a creditor....”) (emphasis supplied); OCGA § 18-2-75 (a) (same); Merrill Ranch Properties, 336 Ga. App. at 727-731 (2) (holding that creditor lacked standing under the UFTA to set aside transfers made by nondebtors). It follows that the trial court did not err in granting the motion to dismiss as to M. Rowland, Boudreau, and Rowland Companies, Inc.

(c) YPL argues that the trial court erred in dismissing its UFTA claim to the extent that the court held that it was barred by the statute of limitation. Georgia law mandates that a claim challenging a transfer as fraudulent must be filed within four years of the date of the transfer, unless the transfer was made with an actual intent to defraud a creditor, in which case the claim may be filed “within one year after the transfer . . . was or could reasonably have been dis-coveredby the claimant” if later than four years. See OCGA § 18-2-79 (1),(2).

The Rowland Appellees assert, as they did in the trial court, that the four-year limitation period began to run in 2003, when the Defective Deeds were allegedly executed, and that the one year “discovery” period for intentional fraud began to run, at the latest, on September 5, 2012, the date on which the Corrective Deeds were recorded. They argue that YPL failed to exercise reasonable diligence in discovering the deeds during that period and, consequently, that its UFTA claim, filed in August 2015, is time barred.

Even assuming that the reference to the year 2003 in the first paragraph of the otherwise undated Defective Deeds was sufficient to prove that the deeds were executed in 2003, those deeds, as we held in Division V (1) (a), cannot prove the passing of title for the purposes of the record without the Rowland Appellees first laying the proper foundation for their admission. See Latham, 199 Ga. at 648; Hoover, 198 Ga. at 73. Moreover, questions concerning a plaintiff’s diligence in discovering an alleged fraud are generally questions for a trier of fact. Merrill Ranch Properties, 336 Ga. App. at 733 (4). Regardless, the record does not establish as a matter of law that YPL’s UFTA claim is time barred and, consequently, the trial court erred in dismissing it on this ground. See Hickson v. Bryan, 75 Ga. 392, 393 (2) (b) (1885) (“Unless the facts from which fraud is inferred are undisputed, it is never a question of law, and the same rule applies where fraud and concealment are replied to a plea of the statute of limitations.”); Merrill Ranch Properties, 336 Ga. App. at 733 (4) (“[Ijssues concerning a plaintiff’s diligence usually must be resolved by the trier of fact. . .

2. Declaratory Judgment. Finally, YPL asserts that the trial court erred in dismissing its action for a declaratory judgment that its purported interest in the Properties is superior to any interest held by MJR Finance. The Rowland Appellees contend that YPL lacks standing to seek declaratory relief because its interest in the Properties is merely contingent, as opposed to an actual, legal interest.

Georgia’s Declaratory Judgments Act is meant “to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations.” OCGA § 9-4-1. The statute should be liberally construed, and “gives superior courts the power to declare rights and other legal relations of any interested party in ‘cases of actual controversy’ under OCGA § 9-4-2 (a) and ‘in any civil case in which it appears to the court that the ends of justice require that the declaration should be made’ [under OCGA § 9-4-2 (b)]." Walker v. Owens, 298 Ga. 516, 518 (783 SE2d 114) (2016); see Lapolla Indus. v. Hess, 325 Ga. App. 256, 257 (1) (750 SE2d 467) (2013) (“The declaratory judgment statute is liberally construed; applies where a legal judgment is sought that would control or direct future action; and requires under subsection (a) or (b) the presence in the declaratory action of a party with an interest in the controversy adverse to that of the petitioner.”). An “interested” party within the context of the statute is one who “has a protect[a]ble interest and asserts an adverse claim on an accrued statement of facts.” Hobgood v. Black, 144 Ga. App. 448, 449 (2) (241 SE2d 60) (1978).

Construed in the light most favorable to the complaint, YPL alleges that it has a legal interest in the Properties vis-á-vis its judgment, the writ of fieri facias, and the UFTA due to the alleged fraudulent nature of the Transfers. That disputed factual issues remain as to the actualization of YPL’s claimed interest does not foreclose on its standing to seek a declaratory judgment as to the priority of that interest for the purposes of a motion to dismiss. See generally Hobgood, 144 Ga. App. at 449 (2) (“The fact that the dispute in a declaratory judgment action turns upon questions of fact does not withdraw it from judicial cognizance. The legal consequences flow from the facts, and it is the province of the court to ascertain and find the facts in accordance with the rules prescribed in the Georgia Declaratory Judgments Act in order to determine the legal consequences.”) (citation and punctuation omitted); see also OCGA § 9-4-6 (“When a declaration of right or the granting of further relief based thereon involves the determination of issues of fact triable by a jury and jury trial is not waived, the issues shall be submitted to a jury. . . Calvary Independent Baptist Church v. City of Rome, 208 Ga. 312, 314 (3) (66 SE2d 726) (1951) (reversing the trial court’s dismissal of appellant’s declaratory action involving its ownership of real property). It follows that the trial court erred in dismissing YPL’s claim for declaratory judgment at this stage of the litigation.

Decided March 14, 2017.

Neel, Robinson & Stafford, Shawn D. Stafford, Emilie O. Denmark, Kate B. Klug, for appellant.

Ainsworth G. Dudley, Jr.; Jones & Walden, Leon S. Jones, Tyler W. Henderson, Cameron M. McCord, for appellees.

In sum, we affirm the trial court’s dismissal of the complaint as to M. Rowland, Boudreau, and Rowland Companies, Inc. We otherwise reverse.

Judgment affirmed in part and reversed in part.

Barnes, P. J., and Self, J., concur.

       The property description attached as an exhibit to the defective deed purportedly being “corrected” by the deed to the Multi-Tract Property is actually a legal description of the Herndon Tract. Because the parties do not dispute that the property involved in the second series of transfers was the Multi-Tract Property, we will assume that to be true for the purposes of this opinion.

       The UFTA has since been amended and is now called the Uniform Voidable Transactions Act. See Ga. L. 2015, p. 996, § 4A-1. The amendments, however, apply only to transfers made or obligations incurred on or after July 1, 2015 and only to a right of action accruing after July 1, 2015. See Ga. L. 2015, pp. 996, 1029, § 7-1. This case is governed by the statute as adopted in 2002.

       Copies of each of the deeds and other record documents discussed herein were attached as exhibits to YPL’s verified complaint and are thus properly considered for the purposes of the Rowland Appellees’ motion to dismiss. See Minnifield v. Wells Fargo Bank, 331 Ga. App. 512, 514(2) (771 SE2d 188) (2015) (“When considering a motion to dismiss for failure to state a claim, a trial court may consider exhibits attached to and incorporated into the complaint and answer.”) (citation omitted).

       The “badges of fraud” include whether:
      (1) The transfer or obligation was to an insider;
      (2) The debtor retained possession or control of the property transferred after the transfer;
      (3) The transfer or obligation was disclosed or concealed;
      (4) Before the transfer was made or obligation was incurred, the debtor had been sued or threatened with suit;
      (5) The transfer was of substantially all the debtor’s assets;
      (6) The debtor absconded;
      (7) The debtor removed or concealed assets;
      (8) The value of the consideration received by the debtor was reasonably equivalent to the value of the asset transferred or the amount of the obligation incurred;
      (9) The debtor was insolvent or became insolvent shortly after the transfer was made or the obligation was incurred;
      (10) The transfer occurred shortly before or shortly after a substantial debt was incurred; and

        (11) The debtor transferred the essential assets of the business to a lienor who transferred the assets to an insider of the debtor.
      OCGA § 18-2-74 (b).

       The 2015 amendments to the UFTA now define the term “creditor” as “a person who has a claim, regardless of when the person acquired the claim, together with any successors or assigns.” See Ga. L. 2015, p. 996, § 4A-1, eff. July 1, 2015.

       In the 2015 amendments to the UFTA, the Georgia General Assembly added OCGA § 18-2-74 (c), which now provides that “[i]f a creditor is a successor or assignee, a right of action [for fraudulent transfer under OCGA § 18-2-74 (a)] is automatically assigned to such successor or assignee.” See Ga. L. 2015, p. 996, § 4A-1, eff. July 1, 2015.

       But see OCGA § 14-9A-52 (a), (b) (“On due application toacourt of competent jurisdiction by any judgment creditor of a limited partner, the court may charge the interest of the indebted limited partner with payment of the unsatisfied amount of the judgment debt. . .. The interest may be redeemed with the separate property of any general partner, but may not be redeemed with partnership property.”); Nigri v. Lotz, 216 Ga. App. 204, 205 (2) (453 SE2d 780) (1995) (“The charging order remedy entitles the creditor to receive the profits and surplus of the limited partnership, which the limited partner would otherwise have been entitled to receive, up to the unsatisfied amount of the judgment debt, but gives no direct remedy against specific limited partnership property.”).

       Our holding under the UFTA renders it unnecessary for us to address YPL’s additional arguments regarding standing.

       We likewise reverse the trial court’s dismissal of the claim for recovery of attorney fees and expenses to the extent it is predicated upon the surviving claims of YPL’s complaint.


author: McFADDEN, Presiding Judge.

text:
    A16A2229.
    GIBBS v. THE STATE.
    (798 SE2d 308)
   McFADDEN, Presiding Judge.

Kevin S. Gibbs stands convicted of one count of aggravated assault on a peace officer, two counts of fleeing or attempting to elude a police officer, and one count of reckless driving. This is his second appeal. On the first, we remanded and directed that the trial court discharge his duty — imposed by the invocation of the general grounds in Gibbs’s motion for new trial — to declare not merely whether the evidence was sufficient to sustain the jury’s verdict, but whether his mind and conscience approved the verdict as rendered. Gibbs v. State, 334 Ga. App. XXVI (Oct. 6, 2015) (unpublished). Now that the trial court has discharged that duty and reaffirmed the denial of the motion for new trial, we address the merits of Gibbs’s other arguments.

Gibbs contends that his trial counsel was ineffective, but he has failed to show deficient performance. He contends that the trial court erred in admitting certain expert testimony, but that evidence did not invade the province of the jury. Finally he contends that certain of his offenses should have merged, and we agree. Our analysis of the merger issue requires us to disapprove one of our published opinions because it is irreconcilable with a subsequent opinion of our Supreme Court.

1. Facts.

In our earlier opinion, we found that the evidence showed that

at around 5:00 p.m. on February 12, 2013, Smyrna police officer Daniel Stuckey, while on uniformed patrol, drove to Jonquil Park after receiving information that two suspects, whom he had previously arrested on drug charges, were possibly, again, engaging in drug transactions there. As his patrol vehicle entered the park, Officer Stuckey saw that the only vehicle in the parking lot was a small gray Hyundai, which had backed into a parking space and was occupied by several individuals. Deciding that he would try to speak with the vehicle’s occupants, Officer Stuckey parked a few feet away, but at an angle that did not impede the Hyundai, and exited his patrol car.
As Officer Stuckey approached, Gibbs, the vehicle’s driver, stepped on the accelerator, and the Hyundai briefly lurched forward, striking Officer Stuckey’s legs. Despite being struck, Officer Stuckey maintained his balance. He then immediately drew his weapon and yelled at Gibbs to stop and to exit the vehicle. However, instead of complying, Gibbs began inching his vehicle toward the officer a second time. Officer Stuckey repeated his orders, but Gibbs, again, stepped on the accelerator. As Gibbs’s vehicle barreled toward him, Officer Stuckey dove out of the way while firing his weapon toward the driver-side window. The gunshot shattered the window’s glass and ultimately struck Gibbs in the upper part of his chest. Nevertheless, despite being shot, Gibbs did not stop, or even slow down, but rather sped away from the park.
After determining that he was not seriously injured, Officer Stuckey radioed dispatch about the incident, activated his patrol car’s emergency lights, and began pursuit. Upon exiting the park, Officer Stuckey spotted Gibbs’s vehicle and saw him pull over to allow his three passengers to get out before turning onto a divided four-lane road that was heavy with rush-hour traffic and wet from the rain that had started that afternoon. Once he reached the congested road, Gibbs began weaving through traffic, refusing to stop even after he rear-ended an SUV with enough force to [shear] off that vehicle’s driver-side rear wheel. Seconds later, Officer Stuckey caught up and performed a PIT maneuver, bumping Gibbs’s vehicle and causing it to hit the raised median dividing the road and come to a halt. Other officers quickly arrived on the scene, and one of those officers called an ambulance, which transported Gibbs to a local hospital where doctors treated his gunshot wound. Additionally, while still at the hospital, another Smyrna police officer informed Gibbs that he was under arrest.
Thereafter, the [s]tate charged Gibbs, via indictment, with one count of aggravated assault, one count of obstruction of a police officer, two counts of fleeing or attempting to elude a police officer, and one count of reckless driving. Gibbs was tried, and at the conclusion of his trial, the jury convicted him on all counts in the indictment.

Gibbs, 334 Ga. App. XXVI (citations and footnote omitted).

2. Effective assistance of counsel.

Gibbs argues that he received ineffective assistance of trial counsel in two respects: failure to impeach Officer Stuckey with a prior inconsistent statement and failure to properly object to admission of a medical record that placed his character in issue. Absent the combined effect of those trial counsel errors, he argues, the outcome of the trial would have been different,.

To establish ineffective assistance of counsel, Gibbs must satisfy a two-prong test. He

must show [both] that trial counsel’s performance [was deficient in that it] fell below a reasonable standard of conduct and that [it was prejudicial because] there existed a reasonable probability that the outcome of the case would have been different, had it not been for counsel’s deficient performance. If [Gibbs] fails to [prove] either prong of the [two-part] test, this relieves the reviewing court of the need to address the other prong.

Scott v. State, 290 Ga. 883, 889 (7) (725 SE2d 305) (2012) (citations and punctuation omitted). Gibbs’s arguments fail the deficient performance prong. So we do not address prejudice.

(a) Impeachment.

Gibbs argues that trial counsel was ineffective for failing to impeach Officer Stuckey with statements he made in a police department interview shortly after the incident that were inconsistent with his trial testimony At trial, Officer Stuckey testified that he drew his weapon after Gibbs hit him with his vehicle the first time. But in the police department interview, he never mentioned that Gibbs hit him twice. This inconsistency, Gibbs argues, could have persuaded the jury that Officer Stuckey wrongfully drew his gun immediately upon exiting his car — when his encounter with Gibbs was still only a first-tier encounter — and so that Gibbs had the right to resist or flee and to disregard Officer Stuckey’s orders to stop. He also argues that this alleged impeachment evidence would have aided the jury in judging Officer Stuckey’s credibility

We see no material contradiction. In his police department interview, Officer Stuckey testified that, as soon as he got out of his car, Gibbs drove toward him. Officer Stuckey explained that he “immediately drew on him because he was coming at [Officer Stuckey] ... At trial, Officer Stuckey testified that once he got out of his car, Gibbs’s car “rapidly accelerated toward [him].” He testified that Gibbs’s car hit him, and at that moment he “realized [his] weapon was drawn in [his] hand.” In describing this first contact, Officer Stuckey testified that he “kind of consider [edit] lucky, [that Gibbs] stopped at about the same time [he] was moving backwards, where [Gibbs] came into contact with [Officer Stuckey].” In other words, the vehicle braked as it made contact with Officer Stuckey’s body and the contact was minimal. In both his trial testimony and in his police department interview, Officer Stuckey said that he drew his gun when Gibbs immediately began driving toward him as soon as he exited the police car.

It is true that in his police department interview Officer Stuckey did not mention contact. But “[p]roof of a different but not inconsistent statement” does not raise an impeachment issue. Hopkins v. State, 167 Ga. App. 811, 814 (1) (307 SE2d 707) (1983). That Officer Stuckey’s trial testimony “merely included additional facts demonstrates no impeaching inconsistency with [his police department interview] . As the absence of the additional facts in a prior statement given by [Officer Stuckey] fails to amount to a contradiction of [his] trial testimony, there could be no impeachment...." Weathers v. State, 198 Ga. App. 871 (2) (403 SE2d 449) (1991) (citation and punctuation omitted). Since Officer Stuckey’s police department interview was not impeaching simply because it omitted the fact of the initial contact, trial counsel’s performance was not deficient for failing to use it to impeach Officer Stuckey.

Further, trial counsel did pursue alleged inconsistencies in Officer Stuckey’s testimony on cross-examination, even getting him to concede that he had a “loss of memory” as to certain things that occurred that day. So although Gibbs argues that

his trial counsel was deficient in failing to pursue specific avenues of impeachment using [Officer Stuckey’s police department interview], the degree to which an attorney chooses to cross-examine witnesses and the manner in which to attack their credibility fall within the ambit of trial tactics.. . . [W]e are unpersuaded that trial counsel’s failure to use the avenues of impeachment suggested by [Gibbs] fell outside the broad range of professional assistance.

Garrett v. State, 285 Ga. App. 282, 286 (5) (b) (645 SE2d 718) (2007) (citation and punctuation omitted).

(b) Medical record.

Gibbs argues that trial counsel failed to properly object to the admission of a medical record that placed Gibbs’s character in issue. Even if Gibbs preserved this issue for our review, he has not shown deficient performance because the objection still would have been without merit had counsel supported it with the arguments he now makes on appeal.

At trial, a nurse testified that when Gibbs was admitted to the hospital, he told her that he had smoked marijuana that day. Counsel objected — not because the testimony improperly placed Gibbs’s character in issue but because the nurse had not given Gibbs Miranda warnings. Miranda, of course, is not applicable to conversations between private citizens. Mitchell v. State, 282 Ga. 416, 421 (6) (f) (651 SE2d 49) (2007). So the trial court overruled the objection. Now Gibbs argues that trial counsel was ineffective for failing to base his objection on OCGA §§ 24-4-402 (relevance) and 24-4-404 (b) (other acts). He also argues that trial counsel should have objected on the ground that the testimony implicated Gibbs’s protected medical records.

The nurse’s testimony was not subject to an objection under OCGA § 24-4-404 (b) because it is intrinsic evidence.

[E]vidence is intrinsic to the charged offense, and thus does not fall within [OCGA § 24-4-]404 (b)’s ambit, if it (1) arose out of the same transaction or series of transactions as the charged offense; (2) is necessary to complete the story of the crime; or (3) is inextricably intertwined with the evidence regarding the charged offense.

Baughns v. State, 335 Ga. App. 600, 602-603 (1) (782 SE2d 494) (2016). Since the testimony was intrinsic evidence, OCGA § 24-4-404 (b) does not apply, and trial counsel was not deficient for failing to object under that statute. New counsel did not question trial counsel about medical records privacy rights or any other grounds for objecting to the nurse’s testimony Therefore, they are not preserved for review. Patel v. State, 279 Ga. 750, 754 (c) (620 SE2d 343) (2005).

3. Expert testimony.

Gibbs argues that the trial court erred by allowing a police expert witness to testify that Officer Stuckey’s use of force was proper and within policy. We find no error.

The trial court qualified Detective Ron Waddell of the city of Smyrna Police Department as an expert witness in the field of law enforcement procedures and the use of force in officer defense. Detective Waddell testified about the use-of-force continuum that guides police officers’ interactions with citizens. He testified that an officer is able to use deadly force when he believes he or someone else is in direct jeopardy of being seriously injured or killed. The testimony about which Gibbs complains occurred when the prosecutor posed a hypothetical to Detective Waddell as follows:

Q: Hypothetical situation, you are back to being on patrol, you’re not a detective anymore, let’s say. . . . You approach a vehicle.
A: Right.
Q: Okay. The vehicle comes at you, what’s the first thing you’re going to do?
A: Hopefully I can get out of the way, but —
Q: If you can’t get out of the way.
A: I’ve got to open fire. I have absolutely no choice but to do what I can to get that car — the driver to stop, and if that’s the only option I’ve got, that’s what I have to do.
Q: Would that fall within what you teach as a use-of-force continuum in officer defense?
A: Yes, absolutely.

This testimony is admissible because the application of the use-of-force continuum is not something with which the jurors ordinarily would be familiar. “Expert opinion testimony on issues to be decided by the jury, even the ultimate issue, [] is admissible where the conclusion of the expert is one which jurors would not ordinarily be able to draw for themselves; i.e., the conclusion is beyond the ken of the average layman.” Smith v. State, 247 Ga. 612, 619 (277 SE2d 678) (1981) (citation omitted). Whether the use-of-force continuum permits a police officer to shoot at a car coming toward him is beyond the ken of the average juror. See Samples v. City of Atlanta, 916 F2d 1548, 1551 (11th Cir. 1990).

The case upon which Gibbs primarily relies, Bly v. State, 283 Ga. 453 (660 SE2d 713) (2008), supports the admission of Detective Waddell’s testimony in this case. In Bly, the trial court improperly allowed a witness to baldly testify that the officer had acted appropriately in conducting the traffic stop. So our Supreme Court reversed Bly’s convictions for aggravated assault on a police officer and felony obstruction arising out of a traffic stop. The Bly court ruled that the witness was testifying about “a matter regarding which the jurors could have made an equally intelligent judgment of their own,” not the standard of conduct for a police officer. Id. at 458 (2) (citation and punctuation omitted). The court explained that

the question to [the witness] did not ask him to state the standard of conduct of a police officer during a traffic stop. Nor was it presented to [the witness] in a form asking him to assume that [the officer’s] version of the events was correct and, if so, whether those actions comported with the standard of conduct of a police officer during a traffic stop.

Id. at 456, n. 7. In Bly, unlike in the case before us today, “no evidence was introduced . . . regarding the elements and constituent factors that guided [the witness] to his conclusions.” Id. at 458 (2) (citation, punctuation and footnote omitted). The witness simply testified that, based on the officer’s version of events, the officer “acted appropriately as a police officer in the line of duty” Id. (punctuation omitted). Therefore, the witness’s opinion in Bly was not admissible as an expert opinion. Id. Here, on the other hand, Detective Waddell testified about the use-of-force continuum and answered a hypothetical, based on facts in evidence, that the use-of-force continuum would allow an officer to shoot at someone driving a vehicle toward him. He did not testify that Officer Stuckey “acted appropriately”

4. Merger.

Gibbs argues that the trial court should have merged his convictions for two counts of fleeing or attempting to elude a police officer because they are based on the same act of fleeing from a single police officer. We agree.

Much of the language of Counts 3 and 4 is identical: both charged Gibbs with

the offense of FLEEING OR ATTEMPTING TO ELUDE A POLICE OFFICER, OCGA § 40-6-395 (b) (5) (A), for that the said accused person, in the County of Cobb and State of Georgia, on or about the 12th day of February, 2013, being the driver of a vehicle, did willfully fail and refuse to bring his vehicle to a stop while fleeing and attempting to elude a pursuing police vehicle . . . after having been given an audible and a visual signal to bring his vehicle to a stop by Officer Daniel Stuckey, an officer who at the time of giving such signal was in a uniform prominently displaying the officer’s badge of office and the officer’s vehicle was appropriately marked showing it to be an official police vehicle, contrary to the laws of said State, the good order, peace and dignity thereof.

Those counts differ in that Count 3 specified that, while committing this act, Gibbs “did, at Spring Street at Glenroy Drive, collide with a Buick Enclave, a vehicle”; while Count 4 specified that while committing this act, Gibbs “while fleeing in traffic conditions, to wit: wet road and heavy traffic, . . . placed the general public at risk of receiving serious injuries.”

“[Wjhether a course of conduct can result in multiple violations of the same statute . . . requires a determination of the ‘unit of prosecution,’ or the precise act or conduct that is being criminalized under the statute. Accordingly, the starting point must be the statute itself.” Smith v. State, 290 Ga. 768, 773 (3) (723 SE2d 915) (2012) (citations and punctuation omitted; emphasis in original). OCGA § 40-6-395 (a) provides:

It shall be unlawful for any driver of a vehicle willfully to fail or refuse to bring his or her vehicle to a stop or otherwise to flee or attempt to elude a pursuing police vehicle or police officer when given a visual or an audible signal to bring the vehicle to a stop. The signal given by the police officer may be by hand, voice, emergency light, or siren. The officer giving such signal shall be in uniform prominently displaying his or her badge of office, and his or her vehicle shall be appropriately marked showing it to be an official police vehicle.

Subsection (b) (5) (A) of the statute provides:

Any person violating the provisions of subsection (a) of this Code section who, while fleeing or attempting to elude a pursuing police vehicle or police officer:
(i) Operates his or her vehicle in excess of 20 miles an hour above the posted speed limit;
(ii) Strikes or collides with another vehicle or a pedestrian;
(iii) Flees in traffic conditions which place the general public at risk of receiving serious injuries;
(iv) Commits a violation of paragraph (5) of subsection (a) of Code Section 40-6-391; or
(v) Leaves the state
shall be guilty of a felony punishable by a fine of $5,000.00 or imprisonment for not less than one year nor more than five years or both.

In Smith, supra, the Supreme Court defined the unit of prosecution in OCGA § 40-6-395:

Based on the plain language of the statute, the act or conduct that is prohibited by OCGA § 40-6-395 is the “willful[ ] fail[ure] or refus[al] to bring [one’s] vehicle to a stop or otherwise to flee or attempt to elude a pursuing police vehicle or police officer when given a visual or an audible signal to bring the vehicle to a stop.” (Emphasis supplied.) Thus, it is the act of fleeing from an individual police vehicle or police officer after being given a proper visual or audible signal to stop from that individual police vehicle or officer, and not just the act of fleeing itself, that forms the proper “unit of prosecution” under OCGA § 40-6-395.

Smith, 290 Ga. at 774 (3) (citations omitted; emphasis in original). So the provisions of subsection (b) (5) (A) — the basis of the language that distinguishes Counts 3 and 4 — do “not create . . . separate and independent offense [s] but instead fall[ ] within the category of other legislative directions as to punishment.. .State v. Phillips, 206 Ga. App. 421, 422 (425 SE2d 412) (1992) (citation and punctuation omitted). See also Hinton v. State, 297 Ga. App. 565, 566 (1) (b) (677 SE2d 752) (2009) (“OCGA § 40-6-395 (b) (5) (A) provides for enhanced felony punishment^]”). Because both Counts 3 and 4 charged Gibbs with fleeing from Officer Stuckey after having been given a proper signal to stop from Officer Stuckey, the unit of prosecution under both counts is the same and the counts merged. See Nolley v. State, 335 Ga. App. 539, 547 (2) (782 SE2d 446) (2016) (“The [s]tate’s indictment charging violation of one offense in two counts ... was multiplicitous, andresultedin [defendant] being punished twice for a single offense.”). Compare Smith, 290 Ga. at 774 (3) (finding no merger required for five counts of attempting to elude a police officer where defendant led police on a chase “after being given clear signals by five separate pol-icevehicles to stop” because unit of prosecution under OCGA § 40-6-395 was act of fleeing from an individual police vehicle or officer after being given the signal to stop by that vehicle or officer).

The state relies on Michael v. State, 281 Ga. App. 289 (635 SE2d 790) (2006), to support its argument that the convictions do not merge. We did hold in that case that two convictions for fleeing or attempting to elude factually did not merge because

the first count of eluding an officer by exceeding the posted speed limit by at least 30 mph occurred as the officer was chasing the truck down the local road and clocked the vehicle as exceeding 100 mph in a 55-mph zone. This crime was therefore separate and complete prior to the truck’s driver running the red light and endangering the crossing vehicle in his efforts to elude police, which was the basis for the second count of eluding an officer.

Id. at 293-294 (5). But when we decided Michael, we did not have the benefit of Smith, 290 Ga. at 768, which made clear that when determining whether a course of conduct can result in multiple violations of a single statute, the proper focus is the unit of prosecution and that the unit of prosecution under OCGA § 40-6-395 is the act of fleeing from an individual police vehicle or police officer after being given a proper visual or audible signal to stop from that individual police vehicle or officer. To the extent that Michael, 281 Ga. App. 289, holds otherwise, it is disapproved.

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

Doyle, C. J., Barnes, P. J., Ellington, P. J., Dillard, P J., Andrews, Ray, Branch, McMillian, Rickman, Mercier, Reese, Self, and Bethel, JJ., concur. Miller, P. J., concurs in Divisions 1, 2 (a), 3 and 4, and in judgment only as to Division 2 (b).

Decided March 14, 2017

Forrest K. Shealy, for appellant.

D. Victor Reynolds, District Attorney, Michael S. Carlson, Amelia G. Pray, Assistant District Attorneys, for appellee.

       We cite Smith v. State, 247 Ga. 612 (277 SE2d 678) (1981), even though it was decided under the former Evidence Code because “the evidentiary requirements relating to the admissibility of expert opinion testimony in a criminal case under the new Evidence Code (OCGA § 24-7-707) are nearly identical to those that applied under the former Evidence Code (OCGA § 24-9-67).” Mosby v. State, 300 Ga. 450, 453 (2), n. 2 (796 SE2d 277) (2017) (citation omitted). But the rule about opinions on ultimate issues has changed: it has become even less favorable to Gibbs’s argument. See OCGA § 24-7-704.


author: BARNES, Presiding Judge. McFADDEN, Presiding Judge,

text:
    A16A2209.
    A16A2210.
    A16A2211.
    A16A2212.
    A16A2213.
    In the Interest of J. H., a child. In the Interest of A. L., a child. In the Interest of T. L., a child. In the Interest of J. C., a child. In the Interest of K. S., a child.
    (797 SE2d 185)
   BARNES, Presiding Judge.

In these related cases, the juvenile defendants filed direct appeals from the juvenile court’s orders transferring their delinquency cases to superior court for prosecution. Because the juvenile proceedings in these cases commenced after January 1, 2014, we conclude that OCGA § 15-11-564 of Georgia’s new Juvenile Code required that the defendants comply with this court’s interlocutory appeal procedures. Accordingly, given that the defendants failed to follow those procedures, we dismiss these appeals for lack of jurisdiction.

The record reflects that after a series of car break-ins, the State filed delinquency petitions in the Juvenile Court of Douglas County alleging that five juvenile defendants (J. H., A. L., T. L., J. C., and K. S.) had committed acts in July 2015 which, if committed by an adult, would have constituted 32 counts of entering an automobile with the intent to commit a theft, one count of criminal gang activity, and one count of theft by taking. The delinquency petitions were originally filed in September 2015 and were later amended.

The State filed motions to transfer the delinquency cases to the Superior Court of Douglas County for prosecution. After conducting hearings on the State’s motions, the juvenile court entered orders transferring the delinquency cases to superior court. The juvenile defendants then filed these direct appeals from the juvenile court’s transfer orders.

The State contends that the juvenile defendants’ appeals must be dismissed because they were required to proceed by interlocutory application rather than by direct appeal in light of OCGA § 15-11-564, which was enacted as part of Georgia’s new Juvenile Code. That statute provides:

(a) The decision of the court regarding transfer of the case shall only be an interlocutory judgment which either a child or the prosecuting attorney, or both, have the right to have reviewed by the Court of Appeals.
(b) The pendency of an interlocutory appeal shall stay criminal proceedings in superior court. A child transferred for trial as an adult in superior court shall be detained only in those places authorized for the preadjudication detention of a child as set forth in Code Section 15-11-504.

(Emphasis supplied.) Based on the language of OCGA § 15-11-564 and the legal context in which it was enacted, we agree with the State that the juvenile defendants were required to follow this court’s interlocutory appeal procedures.

“When we consider the meaning of a statute, we must presume that the General Assembly meant what it said and said what it meant.” (Citation and punctuation omitted.) Deal v. Coleman, 294 Ga. 170, 172 (1) (a) (751 SE2d 337) (2013).

And where [the General Assembly] borrows terms of art in which are accumulated the legal tradition and meaning of [years] of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed.

Morissette v. United States, 342 U. S. 246, 263 (I) (72 SCt 240, 96 LE 288) (1952). See Johnson v. Bradstreet Co., 87 Ga. 79, 82 (13 SE 250) (1891) (“Where a statute uses a word which is well-known and has a definite sense at common law, or in the written law, without defining it, it will be restricted to that sense, unless it appears that it was not so intended.”) (citation and punctuation omitted).

“In our search for the meaning of a particular statutory provision, we look not only to the words of that provision, but we consider its legal context as well.” (Citation and punctuation omitted.) Fed. Deposit Ins. Corp. v. Loudermilk, 295 Ga. 579, 588 (2) (761 SE2d 332) (2014). To that end, we presume that our legislature enacts statutes “with full knowledge of [the] existing law, including court decisions.” (Citation omitted.) Dove v. Dove, 285 Ga. 647, 649 (4) (680 SE2d 839) (2009).

Mindful of these principles, we turn to OCGA § 15-11-564, and, in particular, the General Assembly’s use of the word “interlocutory” in that statute. The legal term “interlocutory” means “interim or temporary; not constituting a final resolution of the whole controversy” Black’s Law Dictionary (10th ed. 2014). See In re Motion of Atlanta Journal-Constitution, 269 Ga. 589, 589 (502 SE2d 720) (1998) (per curiam) (citing Black’s Law Dictionary and defining “interlocutory” as “interim” or “not final”). And Georgia courts have routinely held that a party seeking appellate review of an order viewed as interlocutory must follow the interlocutory appeal procedures in OCGA § 5-6-34 (b). See Cherry v. Coast House, 257 Ga. 403, 404 (2) (359 SE2d 904) (1987) (“[W]hen the order appealed from is an interlocutory order, the appellate court does not acquire jurisdiction unless the procedure of OCGA § 5-6-34 (b) for interlocutory appeal is followed.”). See also Gray v. Springs, 224 Ga. App. 427 (481 SE2d 3) (1997); Griffith v. Ga. Bd. of Dentistry, 175 Ga. App. 533 (333 SE2d 647) (1985). Accordingly, in light of the common legal understanding of the word “interlocutory” and its implications for appellate review, we conclude that by referring in OCGA § 15-11-564 to a transfer order as “only ... an interlocutory judgment” and as resulting in an “interlocutory appeal,” the General Assembly intended for a party seeking appeal of an order transferring a delinquency case from juvenile court to superior court to follow the interlocutory appeal procedures in cases where the new Juvenile Code applies.

When the enactment of OCGA § 15-11-564 is viewed in the specific context of our longstanding jurisprudence addressing the appellate review of transfer orders, it becomes even more clear that the General Assembly intended for appeals in this context to proceed now by interlocutory application. The general rule has long been that a trial court order transferring a case from one court to another court is interlocutory in nature and thus is not directly appealable as a final judgment under OCGA § 5-6-34 (a) (1). See In the Interest of W. L., 335 Ga. App. 561, 562-563 (782 SE2d 464) (2016); Mauer v. Parker Fibernet, LLC, 306 Ga. App. 160, 161 (701 SE2d599) (2010); Griffith, 175 Ga. App. at 533. For many years, however, Georgia courts have applied an exception to this general rule in cases where a juvenile court transfers a delinquency case to superior court for criminal prosecution. In that specific context, in cases predating the new Juvenile Code, Georgia courts held that an order transferring a delinquency case from juvenile court to superior court should be treated as a final order directly appealable under OCGA § 5-6-34 (a) (1). See Fulton County Dept. of Family & Children Svcs. v. Perkins, 244 Ga. 237, 239 (259 SE2d 427) (1978); In the Interest of R. W., 299 Ga. App. 505, 505, n. 1 (683 SE2d 80) (2009); Rivers v. State, 229 Ga. App. 12, 13 (1) (493 SE2d 2) (1997); Rocha v. State, 234 Ga. App. 48, 50 (1) (506 SE2d 192) (1998); J. T. M. v. State of Ga., 142 Ga. App. 635, 636 (1) (236 SE2d 764) (1977).

Against this legal background, the General Assembly enacted OCGA § 15-ll-564aspartofthenew Juvenile Code, referring therein to an order transferring a delinquency case from juvenile court to superior court as “only.. .an interlocutory judgment.” OCGA § 15-11-564 (a). We must presume that the legislature was aware of the legal background and that its use of this specific phraseology “was a matter of considered choice.” (Citation and punctuation omitted.) Anderson Anesthesia v. Anderson, 333 Ga. App. 437, 439 (776 SE2d 647) (2015). Consequently, when viewed in the context of our case law regarding transfer orders, the General Assembly’s adoption of OCGA § 15-11-564 reflects that in cases where the new Juvenile Code applies, orders transferring delinquency cases from juvenile court to superior court should now be treated like other types of transfer cases — i.e., as interlocutory orders subject to review by application under OCGA § 5-6-34 (b) — and no longer as an exception to the general rule.

In concluding that this court’s interlocutory appeal procedures must be followed in the context of juvenile court transfer orders, we also note that OCGA § 15-11-564 (a) provides that an interlocutory transfer order entered by the juvenile court is one which “either a child or the prosecuting attorney, or both, have the right to have reviewed by the Court of Appeals.” It is well established law that “[ajppeals by the State in criminal cases are construed strictly against the State,” and that the State may not appeal an issue in a criminal case or juvenile delinquency matter, whether by direct or discretionary appeal, unless expressly authorized by statute. State v. Cash, 298 Ga. 90, 91 (1) (a) (779 SE2d 603) (2015). See OCGA § 5-7-1 (listing statutory grounds upon which State can appeal in criminal and juvenile delinquency cases). Given this well established law relating to appeals by the State, the General Assembly clearly included the above-quoted language in OCGA § 15-11-564 (a) to enable the prosecution, like the child, to challenge a juvenile court’s transfer ruling through this Court’s interlocutory appeal procedures. See generally Zaldiuar v. Prickett, 297 Ga. 589, 591 (1) (774 SE2d 688) (2015) (when construing statutes, courts may consider “the other law . . . that forms the legal background of the statutory provision in question”) (citations omitted). To construe the quoted statutory language more broadly as creating a right of the parties to direct appeal would conflict with the other references in the statute to a juvenile court transfer order as “only ... an interlocutory judgment” and as resulting in an “interlocutory appeal,” and we must avoid constructions of a statute that would render the language internally inconsistent. See City of LaGrange v. Ga. Public Svc. Comm., 296 Ga. App. 615, 621 (2) (675 SE2d 525) (2009) (language of a statute should be construed, whenever possible, in a manner that renders it “consistent and harmonious”) (citation omitted).

In summary, in cases like the present ones in which OCGA § 15-11-564 of the new Juvenile Code applies, a party seeking appellate review of an order transferring a delinquency case from juvenile court to superior court must follow this court’s interlocutory appeal procedures found in OCGA § 5-6-34 (b), including obtaining a certificate of immediate review from the juvenile court and then filing an application with this court seeking permission to appeal from the transfer order. But the juvenile defendants in these related cases failed to follow those procedures. “When the order appealed from is an interlocutory order, the appellate court does not acquire jurisdiction unless the procedure . . . for interlocutory appeal is followed.” (Citation and punctuation omitted.) Settendown Public Utility u. Water- scape Utility, 324 Ga. App. 652, 653 (751 SE2d 463) (2013). The juvenile defendants’ appeals therefore are dismissed for lack of jurisdiction.

Appeals dismissed.

Doyle, C. J., Miller, P. J., Ellington, P. J., Dillard, P J., Andrews, Bran ch, McMillian, Mercier, Reese, Self and Bethel, JJ., concur. Ray and Rickman, JJ., concur in judgment only. McFadden, P. J., dissents.

McFADDEN, Presiding Judge,

dissenting.

The statute before us expressly grants a right to review by this court. It provides, “either a child or the prosecuting attorney, or both, have the right to have [transfer orders] reviewed by the Court of Appeals.” OCGA § 15-11-564 (a).

For that reason I respectfully dissent from the majority’s holding thatOCGA§ 15-11-564 invokes the procedure set out at OCGA § 5-6-34 (b), which the appellate courts call the interlocutory appeal procedure. That procedure does not afford a right to review by an appellate court. Appellate review under that procedure is available only by the grace of the trial court. It is conditioned on the trial court’s grant of a certificate of immediate review. OCGA § 5-6-34 (b). And the appellate courts “will not review the discretion vested in the trial court in granting or refusing a certificate for immediate review of interlocutory rulings.” Houser v. State, 234 Ga. 209, 212 (7) (214 SE2d 893) (1975).

I agree that we must consider whether the General Assembly’s use of the word “interlocutory” in OCGA § 15-11-564 is an invocation of the procedure set out at OCGA § 5-6-34 (b). But I would hold that it is not.

If the General Assembly had meant to overturn the case law on which appellants relied in bringing this appeal, it would have done so expressly — not by implication. As a well-regarded treatise notes, “A fair construction ordinarily disfavors implied change.’’Antonin Scalia and Bryan A. Garner, Reading Law, § 52, p. 318 (2012). Onthatpoint, Georgia law is in full accord with that treatise.

“All statutes are presumed to be enacted by the legislature with full knowledge of the existing condition of the law and with reference to it. They are therefore to be construed in connection and in harmony with the existing law, . . . and their meaning and effect is to be determined in connection, not only with the common law and the constitution, but also with reference to other statutes and the decisions of the courts.” Thornton v. Anderson, 207 Ga. 714, 718 (64 SE2d 186) (1951). “[S]tatutes are not understood to effect a change in the common law beyond that which is clearly indicated by express terms or by necessary implication.” Sears v. Minchew, 212 Ga. 417, 420 (2) (93 SE2d 746) (1956).

Avnet, Inc. v. Wyle Labs., 263 Ga. 615, 619-20 (2) (437 SE2d 302) (1993).

The inference that the statute implicitly overturned that case law is further weakened by the fact that nowhere else in the Code does the General Assembly rely on the word “interlocutory” to invoke the OCGA § 5-6-34 (b) procedure. The word “interlocutory” appears in only two places in the Appellate Practice Act (the “Act”). Neither involves the OCGA § 5-6-34 (b) procedure. On the contrary, OCGA § 5-6-34 (a) (4) grants a right to direct appeal from “judgments or orders granting or refusing applications for receivers or for interlocutory or final injunctions.”

The other place the Act uses “interlocutory” is subsection (b) of OCGA § 5-6-35, the statute setting out the discretionary appeal procedure. (The Act does not use the expression “discretionary appeal procedure” either.) Subsection (b) addresses appeals under OCGA § 5-6-35 from interlocutory judgments: “The application shall specify the order or judgment being appealed and, if the order or judgment is interlocutory, the application shall set forth, in addition to the enumeration of errors to be urged, the need for interlocutory appellate review.” OCGA § 5-6-35 (b). The legislature appears to have had in mind non-final orders for which an immediate appeal is authorized but which are subject to the discretionary appeal procedure — for example, appeals from partial grants of summary judgment in divorce cases. See OCGA §§ 9-11-56 (h); 5-6-35 (a) (2).

In OCGA § 9-11-56 (h), by the way, the word “interlocutory” is conspicuous by its absence. Subsection (h) notes that denials of summary judgment (in contrast to grants and partial grants) are subject to “review by direct appeal in accordance with subsection (b) of Code Section 5-6-34.”

The phrase “interlocutory appeal” does appear in subsection (c) of OCGA § 5-7-1, the statute specifying when the state can appeal. But after using that expression, the General Assembly specifies, “as provided in Code Section 5-6-34.”

The inference that the General Assembly’s use of “interlocutory” is an invocation of OCGA § 5-6-34 (b) is still further weakened by another consideration. The express intent of OCGA § 15-11-564 is to extend to the state an appeal right previously afforded only to the child. The rule superseded by OCGA § 15-11-564 was “[a]n order transferring a case from juvenile to superior court pursuant to OCGA § 15-11-39 is a final order and directly appealable.” Rivers v. State, 229 Ga. App. 12, 13 (1) (493 SE2d 2) (1997). Careful legislators might have seen a double jeopardy argument lurking in the phrase “final order” and declared transfer orders interlocutory in order to cut off that argument.

Decided February 21, 2017

Reconsiderations denied March 15, 2017

Altman Law Firm, Carolyn J. Altman, for appellant (case no. A16A2209).

Ernest C. Crosby, for appellant (case no. A16A2210).

The Bishop Law Group, Thinel Bishop, for appellant (case no. A16A2211).

Christy E. Draper, for appellant (case no. A16A2212).

James J. Anagnostakis, for appellant (case no. A16A2213).

Brian K. Fortner, District Attorney, Kristi W. Wilson, Assistant District Attorney, for appellee.

The inference that the General Assembly invoked OCGA § 5-6-34 (b) is weakened even more by the fact that transfer orders in this context are very different, from other transfer orders. Unlike, for example, transfers from one superior court to another, the transfer of a delinquency case from a superior court to a juvenile court changes the nature of the case. The “central purpose” of a delinquency proceeding is “rehabilitation and treatment of the child and not punishment.” In re L.C., 273 Ga. 886, 887 (1) (548 SE2d 335) (2001); see also OCGA § 15-11-470. But upon transfer to superior court, the delinquency petition is dismissed, OCGA § 15-11-566, and the case proceeds as a felony prosecution. See OCGA § 15-11-561 (a) (3).

All of this does not absolutely foreclose an inference that the legislature intended to invoke the procedure set out at OCGA § 5-6-34 (b). But particularly in light of all of this, such an inference must give way to the proposition that when the General Assembly expressly granted “the right to . . . review[ ] in the Court of Appeals,” OCGA § 15-11-564 (a), it meant what it said and said what it meant.

       In 2013, the General Assembly adopted a new Juvenile Code that significantly revised Georgia law relating to juvenile proceedings. See Ga. L. 2013, pp. 294, 295, § 1-1. The new Juvenile Code became effective on January 1, 2014 and applies “to all offenses which occur and juvenile proceedings commenced on or after such date.” Id. at p. 514, § 5-1.

       In cases in which the new Juvenile Code does not apply because of when the juvenile court proceedings commenced, a party seeking appellate review of the transfer order may still file a direct appeal based on our prior precedent in this area. See In the Interest of M. J., 326 Ga. App. 574, 576 (757 SE2d 184) (2014).

        In the Interest of J. M. S., 334 Ga. App. 142 (778 SE2d 391) (2015) involved the direct appeal of an order transferring a delinquency case from juvenile court to superior court and was decided under Georgia’s new Juvenile Code. See id. at 144, n. 3. The application of OCGA § 15-11-564 was not raised by the parties or addressed in the opinion, but the court in a footnote quoted a case that predated the new Juvenile Code, In the Interest of R. W., 299 Ga. App. at 505, n. 1, for the proposition that “[a]n order transferring a case from juvenile to superior court is a final order that is directly appealable.” In the Interest of J. M. S., 334 Ga. App. at 142, n. 1. Consequently, In the Interest ofJ. M. S. is overruled to the limited extent that it can be construed as standing for the proposition that an order transferring a delinquency case from juvenile court to superior court can be directly appealed in cases where the new Juvenile Code applies.
      In the recent cases of Eidson v. Croutch, 337 Ga. App. 542, 544 (788 SE2d 129) (2016), and In the Interest of W.L., 335 Ga. App. 561, 562-563 (782 SE2d 464) (2016), we referenced, in obiter dicta, case law addressing the appealability of juvenile court transfer orders that predated the new Juvenile Code. Eidson and In the Interest of W. L. did not involve the transfer of a delinquency case from juvenile court to superior court, and neither case discussed the appealability of such transfer orders under the new Juvenile Code. “Issues merely lurking in the record, neither brought to the court’s attention nor expressly ruled upon, have not been decided so as to constitute precedent.” (Citation omitted.) Eady v. Capitol Indent. Corp., 232 Ga. App. 711, 713 (502 SE2d 514) (1998). Hence, Eidson and In the In terest ofW. L. do not affect or control the outcome in the present case.


author: MILLER, Presiding Judge. McMlLLIAN, Judge,

text:
    A16A0990.
    WILLIAMS v. WILLIS.
    (798 SE2d 323)
   MILLER, Presiding Judge.

Frederick L. Willis III sued Michael W. Williams in Georgia in 1990, alleging fraudulent and negligent misrepresentation arising from a joint real estate venture in Atlanta. In 1992, Willis raised nearly identical claims against Williams in a South Carolina suit, arising from the same real estate venture. Willis obtained a judgment against Williams in the South Carolina action in 1993 (hereinafter, the “South Carolina Judgment”). Several months later, Willis obtained a judgment against Williams in the Georgia suit (hereinafter the “Georgia Judgment”). In 2015, Williams filed an emergency motion to set aside the Georgia Judgment. Williams now appeals from the denial of that motion, contending that the Georgia Judgment is void under OCGA § 9-12-16. For the reasons that follow, we find that the Georgia Judgment is not void. Rather the Georgia Judgment was merely voidable, and Williams is bound by the Georgia Judgment because he failed to have it timely set aside. Consequently, we affirm the denial of Williams’s emergency motion to set aside the Georgia Judgment.

In so holding, we emphasize that, rather than sleeping on his rights, Williams could have had the duplicative Georgia Judgment set aside if he had brought a motion to set aside, pursuant to OCGA § 9-11-60, within three years after the judgment was entered.

Under OCGA § 9-12-16, a judgment of a court having no jurisdiction of the person or the subject matter or which is void for any other cause is a mere nullity and may be so held in any court when it becomes material to the interest of the parties to consider it. A void judgment is one that has a defect apparent on its face. Where jurisdiction exists both of the subject matter and of the parties, as well as jurisdiction to make the particular order in question, an order is not void, but voidable, however erroneous or irregular it may be.

(Citation and punctuation omitted.) Kothari v. Tessfaye, 318 Ga. App. 289, 294 (1) (a) (733 SE2d 815) (2012). The determination of whether the Georgia Judgment is void or voidable is a question of law which this Court reviews de novo. Artson, LLC v. Hudson, 322 Ga. App. 859, 860 (747 SE2d 68) (2013).

Here, the limited record shows that Willis, a South Carolina resident, filed suit against Williams, a Georgia resident, in the State Court of DeKalb County, Georgia, in April 1990, raising claims arising from his investment in an Atlanta real estate venture. In his Georgia complaint, Willis alleged that he sustained more than $500,000 in damages caused by Williams’s intentional and fraudulent misrepresentations, fraudulent concealment, and breaches of fiduciary duty arising from Willis’s purchase of shares in a limited partnership. Williams answered the Georgia complaint in April 1991.

In January 1992, Willis filed a state court suit against Williams in South Carolina raising similar claims for fraud, negligent misrepresentation, and civil conspiracy. These claims also apparently arose from Willis’s purchase of shares in the same limited partnership. On November 22, 1993, the South Carolina trial court entered a final judgment in favor of Willis on his claims and awarded Willis more than $980,000 in damages and prejudgment interest.

On July 5, 1994 — after providing notice to Williams — the State Court of DeKalb County held a bench trial on Willis’s claims arising from his Georgia complaint. That same day, the State Court of DeKalb County entered judgment in favor of Willis on his claims and awarded Willis more than $1 million in damages, including $250,000 in punitive damages.

More than 20 years later, in September 2015, Willis apparently initiated Illinois collection proceedings by domesticating the Georgia Judgment in the Superior Court of Cook County, Illinois. In response to this action, Williams filed an emergency motion to set aside the Georgia Judgment. At the hearing on Williams’s emergency motion, Willis conceded that the South Carolina Judgment expired as a matter of law in 2003 and therefore is no longer enforceable. The trial court denied Williams’s emergency motion, and this appeal ensued.

On appeal, Williams contends that the South Carolina Judgment was conclusive as to the issues between the parties, and therefore the Georgia Judgment is duplicative and void under OCGA § 9-12-16. We disagree.

It is well established that a trial court has no jurisdiction to change or modify a judgment outside the term of court in which the judgment was entered. . . . And, while a judgment which is void for lack of jurisdiction may be attacked at any time, all other motions to set aside a judgment must be brought within three years after the judgment was entered.

(Citations and punctuation omitted.) De La Reza v. Osprey Capital, 287 Ga. App. 196, 197 (1) (651 SE2d 97) (2007); see also OCGA § 9-11-60 (f).

OCGA § 9-12-16 does not apply [where] there is no issue regarding the trial court’s original jurisdiction and [where] the judgment at issue is not a void judgment. A void judgment is one that has a defect apparent on its face. Where jurisdiction exists both of the subject matter and of the parties, as well as jurisdiction to make the particular order in question, an order is not void, but voidable, however erroneous or irregular it may be.

(Citations and punctuation omitted.) Id. at 198 (1). Thus, the question before this Court is whether the Georgia Judgment was void or merely voidable.

Here, Williams does not argue, and nothing in the record shows, that the trial court which entered the Georgia Judgment at issue on appeal in this case lacked jurisdiction over the parties or the subject matter of this action. Notably, there is no evidence in the record that the South Carolina Judgment was domesticated in Georgia under the Uniform Enforcement of Foreign Judgments Law, either prior to entry of the Georgia Judgment or at any time. Accordingly, this is not a case in which the trial court first domesticated an out-of-state judgment and then entered a duplicative judgment in Georgia. Compare Arrowhead Alternator v. CIT Communications Finance Corp., 268 Ga. App. 464, 465-466 (602 SE2d 231) (2004) (duplicative Georgia judgment was void ab initio and a nullity because it was issued after New Jersey judgment was domesticated in Georgia). Moreover, Williams does not contend that the trial court in this case lacked jurisdiction over the parties or the subject matter of this action, and he cites to nothing in the Appellate Record that would support such a ruling.

In the absence of evidence that the trial court lacked jurisdiction over the subject matter or the parties, the Georgia Judgment is not void. Rather, the Georgia Judgment was merely voidable, and OCGA § 9-12-16 does not apply to this case. De La Reza, supra, 287 Ga. App. at 198 (1); State Auto Mut. Ins. Co. v. Relocation & Corporate Housing Svcs., 287 Ga. App. 575, 578 (4) (651 SE2d 829) (2007). Although the Georgia Judgment is duplicative of the South Carolina Judgment, the Georgia Judgment is no longer voidable because Williams failed to timely move to set the judgment aside within three years pursuant to OCGA § 9-11-60. Consequently, we have no choice but to find that the Georgia Judgment stands, and Williams is bound by that judgment. See De La Reza, supra, 287 Ga. App. at 198 (1); State Auto, supra, 287 Ga. App. at 578 (4). Accordingly, we affirm the denial of Williams’s emergency motion to set aside the Georgia Judgment.

Judgment affirmed.

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

Decided March 15, 2017.

Friedman, Dever & Merlin, H. Michael Deuer, Katherine T. Parvis, Genevieve H. Dame, for appellant.

Davis, Matthews & Quigley, Ron L. Quigley, Mina A. Elmanka-bady, for appellee.

McMlLLIAN, Judge,

concurring in judgment only.

While I concur with the result reached by the majority in this case, I do not agree with all that is said. Accordingly, I concur in the judgment only, and as a result, the majority’s opinion is not binding precedent. See Court of Appeals Rule 33 (a).

       OCGA § 9-12-130 et seq.