text:
    A13A0827.
    WADE v. ALLSTATE FIRE AND CASUALTY COMPANY.
    (751 SE2d 153)
   Miller, Judge.

This appeal arises from the grant of summary judgment to Allstate Fire and Casualty Company (“Allstate”) regarding an attempt by its insured, Bernard Wade, to collect underinsured motorist (“UM”) benefits following a multi-vehicle accident. Allstate moved for summary judgment on the basis that Wade did not exhaust the limits of the insurance coverage for all defendants, which Allstate argued was required by the UM provision in his insurance policy. We conclude that questions of fact remain as to whether Wade would be entitled to UM benefits in this case because it is unclear whether Wade has additional losses that have not been paid by a tortfeasor, whose liability limits have been exhausted. In particular, there has not been a full determination as to the extent of Wade’s damages and there has been no apportionment of fault as required by law. Therefore, questions remain as to whether Wade is entitled to UM benefits for uncovered losses. Accordingly, we reverse and remand.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). Ade novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

The undisputed facts of the record show that Bernard Wade was injured when he was involved in a multi-vehicle accident. Wade filed suit against the other drivers involved in the accident — Fred Bergh, Dale Froman, and James Bruce — alleging that their negligence caused his injuries. Wade also sued Froman’s employer (Triton Sprinkler Company, Inc.) under the theory of respondeat superior and Kathy Bruce, James’s mother, under the family purpose doctrine. Wade also served his insurer, Allstate, with a copy of his suit. At the time of the accident, Wade carried a motor vehicle insurance policy issued by Allstate, which provides uninsured motorist coverage in the amount of $25,000 to any one person and up to $50,000 to all persons eligible for coverage.

Wade subsequently reached a partial settlement with the Bruce defendants, through the payment of the full limits of their liability insurance policy in exchange for a limited liability release. Wade also settled his claims against Bergh and Froman, as well as Froman’s employer, for a total sum of $30,000, which was an amount less than the full amount of their respective liability policy coverages. Wade executed a general release with respect to Bergh, Froman, and Froman’s employer and dismissed these defendants with prejudice.

Allstate, as Wade’s UM carrier, consented to the dismissal of Bergh, Froman, and Froman’s employer, but it expressly noted that it did not waive any defenses regarding Wade’s claim for UM benefits. Allstate subsequently moved for summary judgment, contending that under the UM provision in Wade’s policy, it was not obligated to pay on Wade’s claim for UM benefits since he had not exhausted the limits of the insurance liability protection available to all named defendants. The trial court granted Allstate’s motion, finding that the UM provision clearly and unambiguously provided that Allstate was not obligated to pay benefits because Wade did not exhaust the limits of insurance for all defendants.

On appeal, Wade contends that the trial court erred in concluding that Allstate was not required to pay benefits because he had exhausted the limits at least with respect to one named defendant, and that Allstate’s UM liability could not be determined until the liability of all drivers had been apportioned. We agree.

Under Georgia law, insurance companies are generally free to set the terms of their policies as they see fit so long as they do not violate the law or judicially cognizable public policy. Thus, a carrier may agree to insure against certain risks while declining to insure against others. In construing an insurance policy, we begin, as with any contract, with the text of the contract itself. One of the most well-established rules of contract construction is that the contract must be construed as a whole, and the whole contract should be looked to in arriving at the construction of any part.
When faced with a conflict over coverage, a trial court must first determine, as a matter of law, whether the relevant policy language is ambiguous. A policy which is susceptible to two reasonable meanings is not ambiguous if the trial court can resolve the conflicting interpretations by applying the rules of contract construction. Where a term of a policy of insurance is susceptible to two or more reasonable constructions, and the resulting ambiguity cannot be resolved, the term will be strictly construed against the insurer as the drafter and in favor of the insured.

(Punctuation and footnotes omitted.) Murphy v. Ticor Title Ins. Co., 316 Ga. App. 97, 99-100 (1) (729 SE2d 21) (2012).

Here, the UM provision in Wade’s UM policy with Allstate provides that “[Allstate] will pay damages that an insured person... is legally entitled to recover from the owner or operator of an uninsured auto because of bodily injury or property damage sustained by the insured person.” The policy defines an uninsured auto as an underinsured motor vehicle. The policy contains an exhaustion requirement, which provides:

[Allstate is] not obligated to make any payment for bodily injury or property damage under this coverage which arises out of an accident involving the use of an underinsured motor vehicle until after the limits of liability for all liability protection in effect and applicable at the time of the accident have been exhausted by payment of judgments or settlements.

(Emphasis supplied.)

Nowhere in the policy is the term “applicable” defined. If a term is undefined in the insurance policy, we look to dictionaries to supply the commonly accepted meaning of the term. Alea London Ltd. v. Lee, 286 Ga. App. 390, 393 (1) (649 SE2d 542) (2007). The term “applicable” means “capable of or suitable for being applied.” See Merriam-Webster’s Online Dictionary, http://www.merriam-webster.com/ dictionary/applicable. In this case, however, there has been no determination as to which insurance coverage is capable of or suitable for being applied, because there has been no apportionment of damages, as mandated by OCGA § 51-12-33.

That statute pertinently provides:

Where an action is brought against more than one person for injury to person or property, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall after a reduction of damages pursuant to subsection (a) of this Code section, if any, apportion its award of damages among the persons who are liable according to the percentage of fault of each person. Damages apportioned by the trier of fact as provided in this Code section shall be the liability of each person against whom they are awarded, shall not be a joint liability among the persons liable, and shall not be subject to any right of contribution.

OCGA § 51-12-33 (b). Under OCGA § 51-12-33 (c), “[i]n assessing percentages of fault, the trier of fact shall consider the fault of all persons or entities who contributed to the alleged injury or damages, regardless of whether the person or entity was, or could have been, named as a party to the suit.” The purpose of the apportionment statute, OCGA § 51-12-33, is to ensure that each tortfeasor responsible for the plaintiff’s harm, including the plaintiff himself, be held responsible only for his or her respective share of the harm. See Couch v. Red Roof Inns, 291 Ga. 359, 365 (1) (729 SE2d 378) (2012).

Since a tortfeasor is not responsible to pay for the damages caused by another, it stands to reason that an individual tortfeasor’s liability insurance is not “applicable” to pay for any other tortfeasor’s damages. This interpretation is consistent with the language of the UM policy that “[Allstate] will pay damages that an insured person... is legally entitled to recover from the owner or operator of an uninsured auto because of bodily injury or property damage sustained by the insured person.” (Emphasis supplied.) This provision necessarily shows that Wade is entitled to UM benefits if there is an uninsured or underinsured motorist who is legally responsible for his damages. As applied in this case, if the evidence reveals that the limits of Bruce’s insurance coverage do not cover his apportioned share of Wade’s damages, Wade would be legally entitled to recover UM benefits.

That each tortfeasor’s insured coverage be evaluated in conjunction with his apportionment of fault squares with the intent of the UM statute.

[T]he purpose of uninsured motorist legislation is to require some provision for first-party insurance coverage to facilitate indemnification for injuries to a person who is legally entitled to recover damages from an uninsured motorist, and thereby to protect innocent victims from the negligence of irresponsible drivers. The Georgia uninsured motorist statute is designed to protect the insured as to his actual loss, within the limits of the policy or policies of which he is a beneficiary.

(Citations and punctuation omitted.) State Farm Mut. Auto. Ins. Co. v. Adams, 288 Ga. 315, 316-317 (702 SE2d 898) (2010).

As to Bruce, Wade has exhausted Bruce’s liability coverage and taken the appropriate measures to pursue UM benefits against Allstate. Under OCGA § 33-24-41.1, a party may satisfy the exhaustion requirement by accepting the limits of a tortfeasor’s insurance coverage and executing a limited release of the tortfeasor and its insurer, relieving them from all liability, but retaining the right to pursue his own insurer for other available coverage, including UM coverage. See Kent v. State Farm Mut. Auto. Ins. Co., 233 Ga. App. 564, 565 (1) (504 SE2d 710) (1998). Since Wade accepted the limits of Bruce’s liability insurance coverage and executed a limited-liability release under OCGA § 33-24-41.1, he is entitled to pursue UM benefits to the extent Bruce was underinsured. See Daniels v. Johnson, 270 Ga. 289, 290-291 (2) (509 SE2d 41) (1998) (plaintiff satisfied exhaustion requirements required by OCGA § 33-24-41.1 by settling for the limits of underinsured’s liability coverage, even though “deemer” provided additional coverage); compare Holland v. Cotton States Mut. Ins. Co., 285 Ga. App. 365, 366-367 (1) (646 SE2d 477) (2007) (plaintiff prevented from seeking UM benefits from her UM carrier because she settled with a liability carrier for less than the policy limits and, therefore, failed to exhaust available liability coverage).

We are unpersuaded by Allstate’s arguments that since Wade named several tortfeasors in his suit, all of their respective insurance coverages were required to be applied in this case and, therefore, Wade’s failure to exhaust the limits of all coverages precludes him from recovering UM benefits. Clearly, Wade’s failure to exhaust the policy coverages of the dismissed defendants — Bergh, Froman, and Froman’s employer — and his general release of claims against these individuals would preclude his ability to pursue UM benefits for his uncovered losses for which these defendants are deemed responsible. See Kent, supra, 233 Ga. App. at 565 (1) (holding that plaintiffs defeated their ability to recover damages from their UM carrier by dismissing the claims with prejudice against the defendant driver even though the plaintiffs executed a limited liability release); Rodgers v. St. Paul Fire & Marine Ins. Co., 228 Ga. App. 499, 501 (1) (492 SE2d 268) (1997) (a claimant who executed a general release after settling with the tortfeasor’s liability insurer could not then seek recovery from his UM insurer). Nevertheless, Wade’s settlement with these other defendants, who may be found to have little or no fault, does not preclude him from seeking UM benefits based on the possibility that Bruce is underinsured. OCGA § 51-12-33 (d) (1) specifically states: “Negligence or fault of a nonparty shall be considered if the plaintiff entered into a settlement agreement with the nonpartyf.]” (Emphasis supplied.) Moreover, the law favors compromise, and Allstate should not benefit from Wade’s good fortune in reaching settlements with defendants who may not be liable. See Broda v. Dziwura, 286 Ga. 507, 509 (689 SE2d 319) (2010).

To the extent Allstate relies upon Sanborn v. Farley, 192 Ga. App. 376, 377 (385 SE2d 6) (1989), to support its argument, that case does not resolve the issue. Unlike here, the issues of liability were fully resolved in Sanborn before the injured passenger sought UM benefits from her own insurance carrier and from the driver’s insurance carrier. Id. at 376. Additionally, Sanborn involved the method of calculating how much UM coverage in total was available under the “set-off” or “reduced” UM coverage that was the default coverage before 2009. Id. at 376-377. This Court held that under the “reduced” UM coverage, the proper method for determining UM exposure was to subtract the total liability coverage from the total uninsured motorist coverage. Id. at 377; see also OCGA § 33-7-11 (b) (1) (D) (ii) (II) (providing “reduced” coverage). The holding of Sanborn does not further Allstate’s argument, because the issue of how to calculate UM benefits in this case would not be under the “reduced” coverage method and, more importantly, is premature given that there has been no determination of fault among the parties. Moreover, in Sanborn, this Court specifically rejected the insured passenger’s argument which would have allowed her to collect UM benefits greater than the per-person, per-accident limits in her policy. See Sanborn, supra, 192 Ga. App. at 377. No matter the total amount of uncovered damages that Wade may have suffered, he would only be entitled to UM coverage up to the limits set forth in his policy.

Decided November 6, 2013.

Turkheimer & Hadden, John D. Hadden, Scott M. Williamson, for appellant.

Jeffrey F. Leasendale, for appellee.

Given the purpose of the UM statute to protect innocent victims from the negligence of drivers who are uninsured or underinsured, Allstate cannot be released from the case at this point because Wade may still have uncovered losses with respect to Bruce that could legally entitle him to UM benefits. Therefore, we remand for a factual determination of Wade’s damages and for an apportionment of fault, such that Wade is given the opportunity to establish Bruce’s share of harm. This resolution will determine whether Wade has any uncovered losses as to Bruce and, more pertinently, whether Wade can collect UM benefits from Allstate based upon any uncovered losses.

Judgment reversed and case remanded.

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

       Under the “added on” UM coverage that applies in this case, benefits are provided up to the limits of the injured claimant’s coverage for the amount that the claimant’s actual losses exceed the liability coverage on the tortfeasor’s motor vehicle, and it matters not that the available liability coverage on the tortfeasor’s motor vehicle is equal to or greater than the claimant’s UM coverage. OCGA § 33-7-11 (b) (1) (D) (ii) (I); see also Ga. Automobile Ins. Law § 32:3 (2013 ed.). Of course, the maximum UM coverage is dictated by the insurance policy, which in this case is limited to $25,000 per person up to maximum of $50,000 for all persons.

       If a factfinder were to find that these dismissed defendants’ proportion of Wade’s damages is greater than the amounts they paid to settle the claims against them, Wade would be barred from seeking additional recovery based upon his settlement and general release. See OCGA § 51-12-33 (f) (1), (2) (providing that assessments of percentages of fault of nonparties shall be used only in determination of the percentage of fault of named parties and findings of fault by nonparty shall not subject nonparty to liability in any action or be introduced as evidence of liability in any action).

       For policies issued, delivered or renewed on and after January 1, 2009 — the effective date of the 2008 amendment to the uninsured motorist statute — OCGA § 33-7-11 (b) (1) (D) (ii) requires that motor vehicle insurers must provide insureds the option of selecting either “added on” UM coverage or “reduced” UM coverage. See Ga. L. 2008, p. 1192, §§ 1, 5, effective January 1, 2009; Ga. Automobile Ins. Law § 32:3.


source: Caselaw Access Project

author: BARNES, Presiding Judge.

license: Public Domain

text:
    A13A0911.
    ELLIS v. THE STATE.
    (751 SE2d 129)
   BARNES, Presiding Judge.

Eugene Ellis appeals from the denial of his motion for new trial following his convictions for aggravated sexual battery, five counts of sexual battery, and six counts of sexual assault against a patient in a hospital. On appeal, Ellis contends that the evidence was insufficient to sustain his convictions, and that the trial court misinterpreted the definition of “supervisory authority” pursuant to OCGA § 16-6-5.1 in its instruction to the jury. Following our review, we affirm.

On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. An appellate court does not weigh the evidence or judge the credibility of the witnesses but only determines whether the evidence to convict is sufficient under the standard of Jackson v. Virginia, [443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979)]. Conflicts in the testimony of the witnesses . . . are a matter of credibility for the jury to resolve. So long as there is some competent evidence, even though contradicted, to support each element of the State’s case, the jury’s verdict will be upheld.

Reeves v. State, 244 Ga. App. 15, 17 (1) (a) (534 SE2d 179) (2000).

So viewed, the evidence demonstrates that on May 12, 2007, an officer with the City of Marietta Police Department responded to a call at Kennestone Hospital in response to an alleged sexual assault. The victim, A. S., who was from Illinois, was visiting family when she became ill and was admitted to the hospital. She told the officer that when Ellis, her respiratory therapist, had come into her room to check her breathing, he asked her to roll over, then “penetrated her vagina with his fingers.” A. S. testified that Ellis had then asked her if “it... was good” and that she did not respond but “started crying” and lay there “in shock.” After speaking with Ellis’ supervisor, the officer made a report of the incident and turned the case over to a detective. The detective later interviewed A. S. and Ellis, who denied the encounter, and based on her investigation, the detective closed the case for lack of evidence.

On June 21,2007, a different officer responded to a call from T. S., another patient at Kennestone Hospital. T. S. had been admitted to the hospital after an asthma attack, and she had been receiving breathing treatments during her week-long stay. That morning, Ellis came into her room to give her a breathing treatment. As part of the treatment, he beat on her back, then began massaging her back, side and bottom. T. S. told the officer that Ellis made her feel uncomfortable, and that he told her she had a “very nice body” and other things that “[got] him turned on.” Later that day, she told her mother about the incident, who then reported Ellis to a nurse. The nurse called Ellis to T. S.’s room, and Ellis told T. S. that there had been a misunderstanding. The officer talked with a hospital security officer, who told him that there was a similar incident on file involving Ellis.

The same detective who investigated the earlier complaint interviewed T. S. She told the detective that during her respiratory therapy, Ellis had massaged the sides of her breasts and her legs and had put his hands under her shorts, rubbed her “butt... [and] spread [her] butt cheeks.” Ellis also asked her if she “like[d] it.” T. S. testified that the only physical contact she normally had with other physical therapists was a “cupping percussive exercise” that involved patting her back. She testified that she had never experienced a respiratory therapist massaging her or touching her breast, vagina, inner thighs and buttocks as part of her therapy.

On July 26, 2007, L. F. contacted the same detective. She told the detective that in May 2006, she had been admitted to Kennestone for asthma and diabetes, and that while Ellis was performing a cupping percussive treatment he had touched her breasts and buttocks. She told the detective that she was shocked because Ellis had treated her before, but had never acted inappropriately. L. F. recalled that she was admitted to the hospital again in May or June 2007. She awoke to find Ellis in her room and when he started to perform a procedure on her, she told him to leave. Instead of leaving, Ellis tried to “shush” her, touched her breast, and “kept trying to touch [her].” She contacted the detective when she was released from the hospital.

1. Ellis first contends that the trial judge erred in charging the jury on supervisory authority. He argues that the trial court’s definition misinterpreted the statute and failed to provide the jury with appropriate guidelines necessary to reach its verdict. This enumeration is meritless.

The trial court charged the jury that “supervisory authority means the power to direct compliance,” using the language from Wilson v. State, 270 Ga. App. 311, 313 (2) (b) (605 SE2d 921) (2004). Ellis complains that the definition was incomplete because it did not define supervisory authority as “the power to direct and to enforce compliance” as set forth in Randolph v. State, 269 Ga. 147, 150 (496 SE2d 258) (1998).

We first note that Ellis did not except to the charge when it was given to him before the jury was charged and also responded that he had no exceptions after the charge was given. Therefore, we review this contention only for plain error. See State v. Kelly, 290 Ga. 29, 31 (1) (718 SE2d 232) (2011); OCGA § 17-8-58 (b). Thus, we must determine whether there is an error that has not been affirmatively waived, is clear and obvious, affects the defendant’s substantial rights, and “seriously affects the fairness, integrity or public reputation” of the judicial proceedings. Kelly, 290 Ga. at 33 (2) (a).

OCGA § 16-6-5.1 (b) (4) provides:

A person who has supervisory or disciplinary authority over another individual commits sexual assault when that person... [i] s an employee or agent of a hospital and engages in sexual contact with such other individual who the actor knew or should have known is a patient or is being detained in the same hospital [.]

In this case, Ellis was charged with having supervisory authority over the victims rather than both supervisory and disciplinary authority. The statute clearly contemplates two distinct types of authority. One may have disciplinary or supervisory authority, or as noted in Randolph, both types of authority. There, our Supreme Court defined “supervisory and disciplinary authority,” in the conjunctive, as “the power to direct and to enforce compliance.” Id. The Court also defined “supervisory . . . authority,” in the disjunctive, as “the power to direct. . . compliance.” Id.; see Wilson, 270 Ga. App. at 313 (2) (b).

Here, the trial court did not err in its charge by providing the jury with only the definition of supervisory authority set forth in Randolph and Wilson. Ellis was indicted for sexual assault against a patient in a hospital (OCGA § 16-6-5.1) for engaging in sexual contact while the victim was a patient in the hospital and while he had “supervisory authority” over the victims. Contrary to his assertions otherwise, the language in Randolph that defined disciplinary authority was not indicated in the case, and thus the trial court did not err in its charge. See State v. Johnson, 280 Ga. 511, 513 (630 SE2d 377) (2006) (a trial court is not required to give a charge that is not adjusted to the evidence).

2. In a related enumeration of error, Ellis contends that the trial court erred in denying his motion for directed verdict because the evidence was insufficient to show that he had supervisory authority over the patient-victims, as defined by Randolph, 269 Ga. at 150. He maintains that the evidence does not demonstrate that he had the power over the victims to “direct and enforce compliance,” and thus, his convictions pursuant to OCGA § 16-6-5.1 — Counts 10, 11, 12, 15, 16, 17 — cannot be sustained. Because Randolph is distinguishable for the reasons discussed in Division 1, the enumeration is meritless, as Ellis was not indicted based on his supervisory and disciplinary authority over the victims, only his supervisory authority.

3. Ellis also contends that regardless of the definition, there is also no evidence that as a respiratory therapist he had supervisory power over his patients and could then direct compliance from them. He asserts that the trial court erred in denying his motion for directed verdict on this basis. We do not agree.

The evidence demonstrated that Ellis had the requisite supervisory authority over the patients he treated sufficient to sustain his convictions under OCGA § 16-6-5.1 (b) (4). According to testimony from his supervisor, as a respiratory therapist, Ellis assessed the patients, decided what treatments would be used per certain protocols, and directed the patients while the treatments were performed. In performing his duties, he had them, among other things, blow into a tube, breathe through a mask, sit up, lean over, or turn onto their side. Unlike the defendant in Wilson, 270 Ga. App. at 313 (2) (b), who as a certified nursing assistant held no supervisory authority over the patients in performing his duties which consisted of cleaning up after incontinence and looking after their general needs, Ellis directly supervised the respiratory treatments based on the individual patient’s needs, physician’s orders, and protocol.

Moreover, although Ellis contends that the testimony of the victims was unreliable and inconsistent, as noted before, we do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt. Jackson, 443 U. S. 307; Groves v. State, 263 Ga. App. 828, 830 (2) (590 SE2d 136) (2003). The evidence in this case was sufficient to meet that standard.

4. We also find the evidence sufficient to sustain the remaining convictions for aggravated sexual battery and sexual battery. “It constitutes an act of aggravated sexual battery for a person to penetrate intentionally and without consent the sexual organ of another with his finger or other foreign object.” Hendrix v. State, 230 Ga.App. 604, 607(4) (497 SE2d 236) (1997); see also OCGA § 16-6-22.2 (b). A. S.’s testimony that Ellis put his finger inside her vagina supports the aggravated sexual battery conviction. Similarly, “a person commits the offense of sexual battery when he intentionally makes physical contact with the [genital area and the breasts of a female] without the consent of that person.” OCGA § 16-6-22.1 (a), (b). The evidence that he touched the breast, buttocks and genital area of the victims supported Ellis’ convictions for these charges.

Judgment affirmed.

Miller and Ray, JJ., concur.

Decided November 6, 2013

Joseph B. Shores, for appellant.

Patrick H. Head, District Attorney, Amelia G. Pray, D. Victor Reynolds, Assistant District Attorneys, for appellee.

       After a televised news report aired, two other women came forward with claims against Ellis, but he was acquitted of all charges related to those women.

       OCGA § 17-8-58 (b) provides:
      Failure to object in accordance with subsection (a) of this Code section shall preclude appellate review of such portion of the jury charge, unless such portion of the jury charge constitutes plain error which affects substantial rights of the parties. Such plain error may be considered on appeal even if it was not brought to the court’s attention as provided in subsection (a) of this Code section.


text:
    A13A1113.
    BRAZELL et al. v. J. K. BOATWRIGHT & COMPANY, P.C.
    (751 SE2d 133)
   BARNES, Presiding Judge.

Joseph Brazell and Joanne Brazell appeal from the order of the trial court entering a default judgment in favor of J. K. Boatwright and Company, P.C. (“Boatwright”) and awarding damages of $20,265 in principal and $15,793.88 in interest to Boatwright. On appeal, the Brazells contend that the trial court abused its discretion in granting Boatwright’s motion for default judgment and in denying their motion to open the default. Upon our review, we affirm.

Under OCGA § 9-11-55 (b), a prejudgment default may be opened on one of three grounds if four conditions are met. The three grounds are: (1) providential cause, (2) excusable neglect, and (3) proper case; the four conditions are: (1) showing made under oath, (2) offer to plead instanter, (3) announcement of ready to proceed with trial, and (4) setting up a meritorious defense. The question of whether to open a default on one of the three grounds noted above rests within the discretion of the trial judge. The sole function of an appellate court reviewing a trial court’s denial of a motion to open default is to determine whether all the conditions set forth in OCGA § 9-11-55 have been met and, if so, whether the trial court abused its discretion based on the facts peculiar to each case.

(Citations and punctuation omitted.) K-Mart Corp. v. Hackett, 237 Ga. App. 127, 128 (1) (514 SE2d 884) (1999).

The case arose from Boatwright’s October 14, 2011 suit to collect monies owed from West Georgia Collection Bureau, LLC, a purportedly administratively-dissolved company owned by the Brazells. The Brazells’ acknowledgment of service was filed on November 8, 2011, but the Brazells did not file their answer until December 19, 2011. In their answer, they asserted the affirmative defenses of laches and unclean hands. Boatwright filed a motion for default judgment on February 10, 2012, in which it asserted that the Brazells were in default as of December 9, 2011, the date their answer should have been filed pursuant to OCGA § 9-11-12 (a). It further asserted that, although the Brazells had later filed their answer, they had not paid court costs as required by OCGA § 9-11-55 (a) to permit opening of the default as a matter of right, and were in absolute default. On March 12, 2012, the Brazells filed a response to the motion for default judgment and a motion to open the default, in which they alleged that Boatwright had failed to serve West Georgia Collection Bureau as a necessary party, and that the delay in filing their answer was a result of ongoing settlement negotiations. The Brazells also tendered the court costs at that time.

On July 11, 2012, a hearing was held on the motion. The transcript is not included with the record, but subsequently, on August 6, 2012, the Brazells filed an amended answer with a signed verification and a supplemental response to their motion to open the default. In their response, the Brazells maintained that their verified amended answer related back to the filing of the original pleading answer to OCGA § 9-11-15 (c), and that the failure to verify their original answer was an amendable defect.

On August 27, 2012, the trial court entered an order denying the Brazells’ motion to open the default judgment. The trial court held that it was without discretion to open the default because the Brazells had failed to comply with two of the four conditions precedent set forth in OCGA § 9-11-55 (b). Specifically, the court found that the Brazells’ “showing [was] not made under oath and the [Brazells] did not correctly announce ready for trial.” The trial court acknowledged that the Brazells had announced ready for trial in their motion to open default, but were not, in fact, ready because they had not replied to any of the discovery requests.

On appeal, although the Brazells contend that the trial court erred in denying their motion to open the default because, among other things, failure to verify pleadings is an amendable defect, they had acted with reasonable promptness, and alleged a meritorious defense, the Brazells have not demonstrated that the four conditions precedent were complied with as provided in OCGA § 9-11-55 (b). “While generally the opening of a default rests within the sound discretion of the trial court, compliance with the four conditions is a condition precedent; in its absence, the trial judge has no discretion to open the default.” (Citation and punctuation omitted.) Roberson v. Gnann, 235 Ga. App. 112, 115 (4) (508 SE2d 480) (1998).

Decided November 6, 2013.

David A. Fowler, for appellants.

Key, Gordy & Key, R. Michael Key, for appellee.

Pretermitting whether the trial court erred in finding that the Brazells announcement of ready to proceed was insufficient to show their actual readiness for trial because they had not completed discovery, the Brazells also failed to satisfy the first condition precedent of a showing made under oath. It is undisputed that the Brazells’ motion to open default was not made under oath. Moreover, although their amended answer was verified, in it they merely claimed that “they have good and meritorious defenses to the claims set forth in [Boatwright’s] Complaint.” A merely conclusory statement cannot constitute a showing under oath pursuant to OCGA § 9-11-55 (b). Stewart v. Turner, 229 Ga. App. 119, 121 (2) (493 SE2d 251) (1997); see Ragan v. Smith, 188 Ga. App. 770, 772 (3) (374 SE2d 559) (1988) (the “ ‘showing’ required by this Code section to be made ‘under oath’ includes the showing of a ‘meritorious defense’ ”).

In the absence of such a showing under oath, the trial court has no discretion to open the default. Ga. Kidney & Hypertension Specialists v. Fresenius USA Mktg., 291 Ga. App. 429, 431 (2) (662 SE2d 245) (2008), overruled on other grounds, Mayor & Aldermen of Savannah v. Batson-Cook Co., 291 Ga. 114, 119 (1) (728 SE2d 189) (2012); compare Boggs Rural Life Center v. IOS Capital, 255 Ga. App. 847, 848 (567 SE2d 94) (2002) (appellant met the first requirement of a showing under oath by filing the affidavit of one of its directors setting out the reasons for the default and its meritorious defense).

Accordingly, as the Brazells failed to meet all of the conditions precedent to the trial court’s exercise of its discretion to open the default, the trial court did not err in refusing to do so.

Judgment affirmed.

Miller and Ray, JJ., concur.


author: ANDREWS, Presiding Judge.

text:
    A13A1201.
    DANES v. ROGERS et al.
    (751 SE2d 135)
   ANDREWS, Presiding Judge.

Shawn Danes (“Danes”), as administrator of the estate of her husband William Danes (“William”), appeals from the trial court’s order granting Andee Rogers’s and Dan Rivers & Associates’ motion for summary judgment. Danes sued Rogers, an insurance agent, and her employer Dan Rivers & Associates (collectively “Rogers”) after her husband William was killed while working as a subcontractor on a Georgia DOT project. Danes claimed that her husband asked Rogers to procure workers’ compensation insurance coverage for him, but Rogers failed to do so before his death. Danes alleged negligence, contending that Rogers promised to procure coverage, but did not do so; breach of contract, alleging that Rogers did not procure insurance as she had agreed to do; and promissory estoppel, claiming that Rogers was estopped from claiming there was no coverage because she promised to procure workers’ compensation insurance for Danes that covered him personally.

Rogers responded that, although William requested workers’ compensation insurance for his business, he told her that he did not want to pay for coverage for himself. Rogers filed a motion for summary judgment contending that the evidence was undisputed that William told her that he did not want the policy to cover him personally because he could not afford it. The trial court granted the motion. For the reasons that follow, we affirm.

On appeal from a grant of a motion for summary judgment, we review the evidence de novo in the light most favorable to the nonmovant to determine whether a genuine issue of fact remains and whether the moving party is entitled to judgment as a matter of law. As the moving party, [Rogers] may do so by showing the court that the documents, affidavits, depositions, and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of the . . . case.

Burnside v. GEICO Gen. Ins. Co., 309 Ga. App. 897, 898 (714 SE2d 606) (2011).

Viewed in the light most favorable to Danes, the record shows that William was killed while working as a subcontractor for Reeves Construction Company on a project for the Georgia DOT. William was the only employee of his company, B&S Grading. In June 2007, William first applied with Rogers for workers’ compensation for the company. In that application, William rejected coverage for himself. William cancelled that policy in June 2008.

Rogers testified at her deposition that William called her in June 2009 and again requested workers’ compensation insurance. He also requested general liability and umbrella policies. Rogers procured the general liability and umbrella policies that William requested, but had not completed the application for the workers’ compensation policy at the time of his death. Rogers stated that William told her that he could not afford to be covered personally under the workers’ compensation policy, and that he “was struggling just to do any of it.” She stated that William said that he was concerned about the money and wanted to “keep it like it was, and let’s just do the minimum premium which would — which would be the exclusion.”

After William’s death, Reeves Construction called Rogers, requesting a certificate of insurance. Reeves did not tell Rogers that William had died. Rogers sent a certificate which listed a workers’ compensation policy. Under the workers’ compensation listing on the certificate is a question: “Any proprietor/partner/executive officer/member excluded? If yes, describe under Special Provisions below.” There is nothing indicated on the certificate. Rogers later wrote on the certificate of insurance “only Reeves” and “does not bind.”

Danes testified that her husband told her that one of the requirements of the job was to have a “million dollars worker’s compensation insurance.” She said that he told her it would cost thousands of dollars and she felt “sick” because they did not have any money. She also stated that William told her that he had to be “included on the workers’ comp policy.” An employee of Reeves Construction testified that Reeves’s contract required that William have workers’ compensation insurance that covered him personally and that he could not “opt out” of coverage.

The trial court held that the certificate of insurance sent to Reeves was silent as to whether William was to be an insured under the policy, and Rogers’s unrebutted testimony was that William did not request that he be personally insured on the policy. This appeal followed.

1. Danes claims that the trial court erred in granting Rogers’s motion for summary judgment on her claim of negligence.

The essential elements of a negligence claim are the existence of a legal duty; breach of that duty; a causal connection between the defendant’s conduct and the plaintiff’s injury; and damages. Thus, the threshold issue in a negligence action is whether and to what extent the defendant owes a legal duty to the plaintiff.

Boiler v. Robert W. Woodruff Arts Center, 311 Ga. App. 693, 695 (716 SE2d 713) (2011).

Here, Rogers testified at her deposition that William told her that he wanted the same workers’ compensation insurance coverage that he had before and that he could not afford personal coverage under the policy. The burden of production then shifted to Danes to come forward with evidence that creates a genuine dispute of fact on this issue. See OCGA § 9-11-56; Pfeiffer v. Ga. Dept. of Transp., 275 Ga. 827, 828-829 (573 SE2d 389) (2002) (“As we held in Lau’s Corp. v. Haskins, once a defendant points out that there is an absence of evidence to support the plaintiff’s case, the burden then shifts to the plaintiff, who must point to specific evidence giving rise to a triable issue.”).

Danes claimed that her husband told her that he had to be insured under the policy, but acknowledges that she was not involved in the business, stating “I didn’t know anything about it.” When asked if she had any personal knowledge of what her husband told anyone at Rivers & Associates about the type of policy he wanted, she replied, “No. I wasn’t there.” Accordingly, Danes’s testimony about what her husband said to Rogers constitutes speculation and conjecture which is insufficient to defeat Rogers’s motion for summary judgment. See Mitchell v. Austin, 261 Ga. App. 585, 587 (583 SE2d 249) (2003) (evidence to defeat summary judgment must be more than mere possibility or speculation). And, “[a] finding of fact which may be inferred but is not demanded by circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists.” Moore v. Camara, 317 Ga. App. 651, 653 (732 SE2d 319) (2012). Therefore, because Danes cannot show a breach of a legal duty by Rogers, the trial court properly granted summary judgment on her claim of negligence. See Boller, supra at 696.

2. Likewise, because Danes’s claims for breach of contract and promissory estoppel are also based on the allegation that William told Rogers that he wanted her to issue a policy that covered him personally, and because Danes has come forward with no evidence to support this contention, Rogers was entitled to summary judgment on these claims.

3. Danes also argues that the trial court erred in granting summary judgment on the basis of Rogers’s testimony, because that testimony was hearsay. The trial court held that the testimony was admissible as original evidence of the alleged contract and to explain conduct. See Hart v. Groves, 311 Ga. App. 587, 589 (716 SE2d 631) (2011) (alleged hearsay statement had a relevant nonhearsay use in that it was offered, not to prove the truth of the matter asserted, but to explain conduct—that after Hart received the e-mail, he contacted Groves’s uninsured motorist carrier to inquire about the additional coverage under her policy”).

Decided November 6, 2013.

Eugene D. Butt, for appellant.

Lokey, Mobley & Doyle, Kevin A. Doyle, Owen, Gleaton, Egan, Jones & Sweeney, Charles J. Cole, for appellees.

Further,

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

Stubbs v. Dubois, 306 Ga. App. 171, 173, n. 5 (702 SE2d 32) (2010), quoting Milich, Georgia Rules of Evidence (2nd ed.), § 17.6, pp. 352-353. See also State Farm Mut. Auto. Ins. Co. v. Drawdy, 217 Ga. App. 236, 237 (456 SE2d 745) (1995) (“State Farm’s argument that the . . . employee’s testimony as to out-of-court statements made by the State Farm agent constitutes inadmissible hearsay succumbs to the verbal act exception to the hearsay rule.”). Accordingly, there was no abuse of discretion in the trial court’s consideration of Rogers’s deposition testimony.

Judgment affirmed.

Dillard and McMillian, JJ., concur.

       Apparently it is not unusual for a business owner to exclude himself from coverage and save on premiums. If the company hires additional employees during the project, they wouldbe covered by the workers’ compensation policy.


author: Miller, Judge.

text:
    A13A1540.
    JOHNSON v. THE STATE.
    (751 SE2d 141)
   Miller, Judge.

Following a trial, a DeKalb County jury convicted Kelvin Johnson of kidnapping with bodily injury (OCGA § 16-5-40 (d) (4)), aggravated assault (OCGA § 16-5-21 (a) (2)) and one count of possession of a firearm during the commission of a crime (OCGA § 16-11-106 (b) (1)). Johnson appeals from the denial of his motion for new trial, contending that the trial court erred by denying his motion to suppress because the officer lacked reasonable suspicion to stop the vehicle in which he was riding as a passenger. For the reasons that follow, we affirm.

On appeal from a trial court’s ruling on a motion to suppress or motion in limine, we may consider all relevant and admissible evidence of record introduced at the motion hearing or during trial. While a trial court’s findings as to disputed facts will be reviewed to determine whether the ruling was clearly erroneous, where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.

(Citations and punctuation omitted.) Walker v. State, 314 Ga. App. 67 (1) (722 SE2d 887) (2012).

So viewed, the evidence shows that around midnight on November 1-2, 2010, Johnson and three other men went to the victim’s house. The victim knew one of the men, co-defendant Germaine Gaither, but did not know Johnson or the others. The victim agreed to go with Gaither to Aspen Woods, a nearby apartment complex, because he believed they were going to smoke some marijuana.

Upon arriving at the apartment complex, Gaither left the car and informed the others he would go speak to his contact so they could smoke marijuana. Gaither returned a few minutes later and informed everyone in the car that it was okay to get out. The men, including the victim and Johnson, exited the vehicle and walked toward the apartment building but did not enter.

After waiting a while to be let inside an apartment, Gaither said he needed to use an ATM. Johnson and the group walked back toward the car, with the victim in front of the others. The victim was then struck from behind and fell to the ground, where he was kicked and punched. The victim’s face was then covered with duct tape and his arms and legs were also bound with duct tape. The victim was carried to the car with a shotgun pressed against the back of his head and placed in the trunk.

Around the same time, an Aspen Woods resident looked out her window and saw two men standing by a small, silver or gray-colored, four-door vehicle, and one of the men appeared to be hiding an object along the side of his leg. The car was parked under an illuminated light pole. Based on the men’s furtive movements around the car, the resident initially believed the men were going to break into the vehicle. The resident called 911 and stayed on the phone with the 911 operator while she described her observations. The resident witnessed the men walking or hurrying between the apartment building and the car, and she stated that she believed the men were robbing somebody’s apartment and carrying items to the car. The resident then saw all four men, described as four black males wearing black clothing, get into the car and drive off and turn right out of the apartment complex onto Candler Road.

While the resident was talking to the 911 operator, a nearby police officer was dispatched to the location. Dispatch informed the officer of a possible burglary in progress involving four black males in black clothing in a silver vehicle. The officer parked his patrol car near the only exit/entrance to the apartment complex. Almost immediately thereafter, the officer observed a silver vehicle, which matched the description given by dispatch, approach his patrol car and turn right out of the apartment complex. As the car passed the officer, he observed that the occupants matched the description given by dispatch. The officer then followed the car to an intersection along Candler Road, where he and other responding officers conducted a stop. The stop occurred only a few minutes after the resident observed the four males get into the vehicle and leave the apartment complex.

One officer approached the stopped vehicle and spoke with the passenger at the driver side, asking if there were any weapons in the vehicle. The passenger answered in the affirmative, and the officer saw a shotgun in between the passenger’s legs. Johnson was taken out of the vehicle, searched and placed in a patrol car. Officers found several shotgun shells in Johnson’s front pocket. The officers removed the other men from the vehicle and searched the car, finding the shotgun, a rifle case, and a ski mask. During the search, the officers noticed a gap between the rear seat and the trunk and observed what appeared to be a person in the trunk. The trunk was opened, and the victim was discovered hog-tied with duct tape, bruised, and bleeding. The 911 caller, who had arrived at the scene within three minutes of placing the call, testified that the car and suspects matched her observations at the apartment complex.

On appeal, Johnson contends that the trial court erred in denying his motion to suppress because the resident’s 911 call was insufficient to provide reasonable articulable suspicion required for a stop. We disagree.

To establish reasonable suspicion to make an investigative stop, the totality of the circumstances must show that the officer had specific and articulable facts which, taken together with rational inferences from those facts provided a particularized and objective basis for suspecting the particular person stopped of criminal activity.

(Citation and punctuation omitted.) Johnson v. State, 313 Ga. App. 137, 138 (1) (720 SE2d 654) (2011). “Although the primary means by which officers acquire reasonable suspicion is personal observation, information acquired from an informant that exhibits a sufficient indicia of reliability can also be the basis for reasonable suspicion.” (Citation omitted.) Slocum v. State, 267 Ga. App. 337, 338 (599 SE2d 299) (2004).

Johnson argues that the police officers were required to corroborate the information given by the 911 caller because she was an “anonymous tipster.” Contrary to Johnson’s argument, however, the 911 caller was a concerned citizen who resided in the apartment complex and believed a burglary had occurred. “Information received from a concerned citizen is inherently more credible and reliable than that received from an anonymous tipster; indeed, it is deemed reliable.” (Footnote omitted.) Fleming v. State, 281 Ga. App. 207, 208-209 (2) (635 SE2d 823) (2006).

Moreover, regardless of the identity of the 911 caller, the officer who responded to the apartment complex received the information about the possible burglary from dispatch.

A dispatcher who reports a crime at a specified location gives police an articulable suspicion to investigate and detain individuals at the scene, particularly where police observations on arriving at the scene corroborate the dispatcher’s report. Even if the dispatcher’s information comes from a citizen or an unidentified informant, the investigatory detention is valid, for patrolling officers are not required to question dispatchers about the source of the information. Further, corroboration only solidifies the existence of an articulable suspicion.

(Citations and punctuation omitted.) Prather v. State, 279 Ga. App. 873, 874 (1) (633 SE2d 46) (2006).

Here, the evidence shows that the responding officer observed a silver vehicle turning right out of the complex at about the same time dispatch relayed the same information to him about the suspects’ movements. The officer also observed that the vehicle contained four black males wearing all black, which matched the description given by dispatch. The evidence also shows that at the time of the call, there was very little traffic on the roadway near the apartment complex. Based on the totality of these circumstances, the officers had the requisite articulable suspicion to justify the investigative stop. See Boone v. State, 282 Ga. App. 67, 70 (2) (637 SE2d 795) (2006) (officer had the requisite articulable suspicion necessary to conduct a traffic stop shortly after receiving a be-on-the-lookout (“BOLO”) describing the vehicle’s color, number of occupants, road and direction of travel); McNair v. State, 267 Ga. App. 872, 874 (1) (600 SE2d 830) (2004) (officer had an objective, reasonable suspicion of criminal activity to conduct a traffic stop of a car that matched description given in a BOLO alert and was traveling from the direction of the crime scene five minutes after the alert was issued).

Decided November 6, 2013.

Jimmonique R. S. Rodgers, Long D. Vo, for appellant.

Robert D. James, Jr., District Attorney, Leonora S. Grant, Assistant District Attorney, for appellee.

Accordingly, the trial court did not err in denying Johnson’s motion to suppress.

Judgment affirmed.

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

       Johnson also argues that the trial court erred in denying his motion to suppress because the officers effectively arrested him without probable cause when, after stopping the vehicle, they forcibly removed him from the vehicle and placed him in handcuffs and into a patrol vehicle. Johnson did not specifically raise this issue in his motion to suppress and, by adopting the arguments of his co-defendants, he indicated that he was only challenging the legal basis of the stop. As a result, Johnson has waived his challenge that his arrest was not supported by probable cause. See Young v. State, 282 Ga. 735,736-738 (653 SE2d 725) (2007); State v. Gomez, 266 Ga. App. 423, 425 (2) (597 SE2d 509) (2004). Even if it was not waived, Johnson’s claim is without merit. Officers may handcuff suspects during an investigatory stop without transforming the detention into a de facto arrest, when such action is reasonable under the circumstances to protect themselves. Gray v. State, 296 Ga. App. 878, 879-880 (1) (676 SE2d 36) (2009). The police officers’ actions were reasonable in this case because they were responding to a possible burglary and observed a shotgun in the stopped vehicle.


text:
    A13A1553.
    IN THE INTEREST OF A. M. et al., children.
    (751 SE2d 144)
   BARNES, Presiding Judge.

We granted the parents’ application for discretionary review of the juvenile court’s order denying their motion pursuant to OCGA § 15-11-40 to modify or vacate the order terminating their parental rights to their five minor children, A. M., A. M., D. M., E. M., and M. M., based on newly discovered evidence and changed circumstances. On appeal, the parents contend that their trial counsel was ineffective and the trial court failed to consider changes to the parents’ circumstances and newly discovered evidence. They also raise issues regarding the termination itself. Upon our review, we affirm.

1. We note at the outset that, although the parents filed an application for discretionary review, the juvenile court’s order denying their motion seeking modification under OCGA § 15-11-40 was a final judgment and thus directly appealable under OCGA §§ 5-6-34 (a) (1) and 15-11-3. See In the Interest of J. N. F., 306 Ga. App. 313, n. 1 (701 SE2d 925) (2010); In the Interest of J. L. K., 302 Ga. App. 844, 846-847(1) (691 SE2d 892) (2010); In the Interest of J. N., 302 Ga. App. 631, 632-634 (1) (691 SE2d 396) (2010). Accordingly, when, as here, a party files a discretionary application when an order may be appealed directly, we grant the application under OCGA § 5-6-35 (j).

2. This court previously vacated and remanded a November 2009 order by the juvenile court granting the motion of the Department of Family and Children Services (“the Department”) to cease family reunification efforts involving these parents and children. In the Interest of A. M., 306 Ga. App. 358 (702 SE2d 686) (2010). We determined in that opinion that, according to the evidence presented, the four oldest children, who were all younger than four years, were placed in shelter care in July 2008 after being referred to the Department based on health concerns, including malnutrition. Id. at 359. In September 2008, the juvenile court found that the children were deprived, based on their medical conditions. The fifth child, who was born in November 2008, was placed with the Department shortly after birth and found to be deprived in December 2008. Because neither deprivation order was appealed, the parents are bound by the juvenile court’s finding that the children were deprived at that time. In the Interest of C. J., 279 Ga. App. 213, 216 (1) (630 SE2d 836) (2006).

The juvenile court gave the Department legal custody for one year from the date they were removed from their parents, and in January 2009 the juvenile court entered an order incorporating case plans for all five children. In June 2009, the Department moved to extend custody and sought permission to cease its efforts to reunify the family. During the hearing on the nonreunification motion, the case manager testified about the children’s medical conditions. In the Interest of A. M., 306 Ga. App. at 359. For example, the twins have facial deformities and had frequent bouts of pneumonia and chest infections; one twin required a feeding tube and had seizures; two of the other children required feeding tubes because they could not swallow; and the youngest child had a brain shunt that required monitoring. Id. While the parents had met some of their case plan goals, the case manager thought they did not understand the children’s medical needs well enough to have unsupervised visits. Id. A contractor who provided “hands-on directional parenting” services working one-on-one with the parents testified that she thought the parents were unable to meet the demands of the children’s extreme special needs, and gave examples of why she thought so. Id. The foster mother described certain instances in which the parents’ behavior disturbed her, and the psychological evaluation contains a finding that the parents had little understanding about the care the children required. Id. at 360.

In our opinion issued on October 6, 2010, this court determined that clear and convincing evidence supported the juvenile court’s conclusion that reunification efforts would be detrimental to the children, because the parents were unable to meet their children’s medical needs and the children’s lives would be endangered without the appropriate level of medical care. In the Interest of A. M., 306 Ga. App. at 360 (2). We also found, however, that no evidence supported the juvenile court’s finding that the parents had “a medically verifiable deficiency of their mental health such as to render them incapable of providing adequately for the physical needs of the children,” which would also be a ground for terminating their parental rights. Id. at 362-364 (5). Therefore, the order granting the Department’s motion for nonreunification was vacated, the case was remanded to the juvenile court with direction to review and reissue its order consistent with its findings, and the parents were authorized to appeal the new ruling within 30 days. Id. at 365.

Upon review of the case, the juvenile court issued a modified order on October 15, 2009, based on the evidence previously considered and this court’s direction, again granting the Department’s motion to cease reunification services. The parents did not appeal that order. In December 2009 and again in September 2010, the Department petitioned the juvenile court to terminate the parents’ rights to the children based on their inability to meet the children’s extreme special needs. In November 2010, the Department filed an amended deprivation petition, and in February 2011, the juvenile court issued a judicial review order finding that the children should continue in their current placements.

Finally, on June 10, 2011, the juvenile court issued an order terminating the parents’ parental rights, finding that they would never be able to meet their children’s special needs. The court found that the children had a combined total of seventy-five medical appointments each month, that their care required three adults working full-time and a fourth adult part-time, and that the parents had no concrete plan to meet the children’s daily needs. The juvenile court noted that the children needed stability and permanence, and that the foster parents intended to adopt all five children if the termination petitions were granted. That order was not timely appealed.

Four months later, on October 12, 2011, the Department petitioned the court to review the adoption efforts for the children, who were doing well in adoptive placement as the Department awaited approval for adoption assistance. On October 14, 2011, the juvenile court appointed a guardian ad litem to represent the children and scheduled a hearing for November 2, 2011. That same day, the parents filed a motion for new trial and a motion for reconsideration, which the Department moved the court to dismiss. In December 2011, the parents filed an amended motion to modify or vacate the termination order based on newly discovered evidence and changed circumstances. The juvenile court conducted a hearing in February 2012 and issued an order denying the parents’ motion to modify the termination order, which is the order now on appeal.

Regarding the parents’ challenge to the termination order, the juvenile court has continuing jurisdiction over its orders and can subsequently modify or vacate them. OCGA § 15-11-40 (b); In the Interest of B. S. H., 236 Ga. App. 879, 880-881 (514 SE2d 70) (1999), overruled in part on other grounds by In the Interest of J. N., 302 Ga. App. at 634 (1). However, “[a] motion under [OCGA § 15-11-40] ... is not one of the three types of motions which will automatically extend the time for filing a notice of appeal on the underlying judgment.” In the Interest of H. A. M., 201 Ga. App. 49 (410 SE2d 319) (1991). And even motions that extend the time of appeal must be filed before the 30-day limit has passed, and in this case the parents filed their motion long after the time to appeal had passed. OCGA § 5-6-38 (a). Thus, in this case, “we may only consider the correctness of the order denying the motion to modify and vacate the underlying judgment, but not the merits of that judgment.” In the Interest of H. A. M., 201 Ga. App. at 50. With that being so, we cannot consider the merits of the June 10, 2011 order terminating the parents’ parental rights because the parents neither timely appealed that order nor filed a motion within 30 days that would extend the time to appeal.

3. The parents contend that in denying their motion to modify or vacate the termination order, the juvenile court failed to consider newly discovered evidence and significant changes in the parents’ circumstances which had occurred subsequent to the termination hearing. They maintain that evidence of several offers of assistance from organizations to help them gain legal residency status and to help them care for their children was evidence of both changed circumstances and newly discovered evidence that would affect their ability to attain certain case goals.

“An order of the court shall be set aside if [ ]... [n] ewly discovered evidence so requires.” OCGA § 15-11-40 (a) (3). Furthermore, “[a]n order of the court may also be changed, modified, or vacated on the ground that changed circumstances so require in the best interest of the child.” OCGA § 15-11-40 (b). The parents had the burden to prove by a preponderance of the evidence that newly discovered evidence or changed circumstances merit modification considering the best interest of the children pursuant to OCGA § 15-11-40. In the Interest of J. N., 302 Ga. App. at 636-637. “We review a juvenile court’s ruling on whether the movant met his or her burden only for an abuse of discretion. There can be no abuse of discretion if there was any evidence to support the ruling of the juvenile court.” (Citations omitted.) In the Interest of J. N. F., 306 Ga. App. at 315.

At the hearing on the motion to modify or vacate the termination order, a diplomat from the parents’ native country testified that the Consulate was coordinating efforts to support the family, including efforts to expedite the parents’ application process for legal residency status, and had acquired letters of support from other organizations. However, he also admitted that the Consulate had “provided support to the... family since the beginning of this case” and had paid for legal services for the family since 2009.

As noted above, we must affirm the juvenile court’s ruling absent an abuse of discretion. In the Interest of J. N. F., 306 Ga. App. at 315. In its order denying the motion, the juvenile court pointed out that evidence about the parents’ residency status had been admitted at the termination hearing and was neither “newly discovered” nor a “change in circumstances that established] that it would be in the best interest of the children to change, modify, or vacate the order of termination” as required by OCGA § 15-11-40. The court further found that the father’s eligibility for legal residency status did not change the fact that termination of parental rights was appropriate because of the children’s “extreme special needs which require extraordinary, specialized care, and ... the parents’ low levels of functioning.”

Given that there was evidence to support the juvenile court’s ruling, we cannot find that the court abused its discretion.

4. The parents also contend that a language barrier existed at the time of the termination hearing and during critical times in their case, including their two psychological evaluations, because they did not have a translator who spoke their Guatemalan dialect of Mam. However, the testimony at the hearing on their motion demonstrated that the couple had always used a Spanish interpreter and had never complained about the interpreter’s services, expressed any confusion to the court, or requested an interpreter who spoke the Mam dialect. Further, in their previous appeal of the juvenile court’s November 2009 nonreunification order, the parents asserted only that the Department should have provided them with a Spanish-speaking parental aide, not that the Department should have provided them with a Mam-speaking parental aide. This court held that the Department did not fail to meet its duties under the case plan. In the Interest of A. M., 306 Ga. App. at 362 (4). Thus, the juvenile court didnot abuse its discretion in denying the parents’ motion to modify or set aside the termination order on this ground.

Decided November 6, 2013.

Richard K. Murray, for appellants.

5. Although the parents also complain that their trial counsel was ineffective at the termination hearing, that certain psychological examinations supporting the termination were not included in the record, and that the evidence was insufficient to support the termination, as noted in Division 2, we may only consider the correctness of the order denying the motion to modify or vacate the underlying judgment, not the merits of that judgment.

That the parents maintain an ineffectiveness ground for their trial counsel’s failure to pursue the appeal of their termination order does not demand a different result. In raising such a claim, the parents are essentially requesting that the juvenile court grant them an out-of-time appeal of the underlying termination order. In In the Interest of S. M. B., 319 Ga. App. 125 (735 SE2d 122) (2012), the father made a similar claim, and we held that the juvenile court did not have jurisdiction to grant the father an extension of time to appeal his termination order. We held that

for an out-of-time appeal to be available on the grounds of ineffective assistance of counsel, the defendant must necessarily have had the right to file a direct appeal. The father did not have the right to file a direct appeal in this case, and so no out-of-time appeal is available on ineffective assistance grounds.

(Citation omitted.) Id. at 127.

Judgment affirmed.

Miller and Ray, JJ., concur.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Calandra A. Harps, Assistant Attorney General, Bruce A. Kling, for appellee.

       OCGA § 5-6-35 (j) provides, in relevant part:
      When an appeal in a case enumerated in subsection (a) of Code Section 5-6-34, but not in subsection (a) of this Code section, is initiated by filing an otherwise timely application for permission to appeal pursuant to subsection (b) of this Code section without also filing a timely notice of appeal, the appellate court shall have jurisdiction to decide the case and shall grant the application. . . .

       We recognize that “[t]here is no judicial determination which has more drastic significance than that of permanently severing a natural parent-child relationship. It must be scrutinized deliberately and exercised most cautiously.” McCormick v. Dept. of Human Resources, 161 Ga. App. 163, 164 (288 SE2d 120) (1982). However, due to the procedural posture of this case we cannot reach the merits of the termination order itself.

       Effective until January 1, 2014. Ga. L. 2013, p. 294, § 1/HB 242.


text:
    A13A2262.
    GARCIA-MALDONADO v. THE STATE.
    (751 SE2d 149)
   BARNES, Presiding Judge.

Following a joint trial, a jury found the appellant, Agustin Garcia-Maldonado, and his two co-defendants, Lucio Flores and Fedrico Venegas Lopez, guilty of trafficking in methamphetamine. Flores and Lopez also were found guilty of possession of a firearm during the commission of a felony. In Flores v. State, 308 Ga. App. 368 (707 SE2d 578) (2011), we affirmed Flores’ convictions but reversed Lopez’s convictions for lack of sufficient evidence. Garcia-Maldonado now appeals from the denial of his motion for new trial, contending that the evidence was insufficient to support his drug trafficking conviction. Upon our review, we affirm.

Following a criminal conviction, we construe the evidence in the light most favorable to the jury’s verdict. Sidner v. State, 304 Ga. App. 373, 374 (696 SE2d 398) (2010). “We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citation and punctuation omitted.) Id. See Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

As set forth in our opinion in Flores, when viewed in the light most favorable to the prosecution, the record in this case shows that on June 20, 2008,

police officers arrested an individual for allegedly trafficking in methamphetamine [and] then, the same day, sought his assistance as a confidential informant in other investigations. With an officer present, the confidential informant engaged in a telephone conversation via speaker phone with what sounded to the officer to be a Spanish-speaking male. After the conversation ended, the confidential informant, the officer and two other officers drove the confidential informant’s vehicle and an unmarked police vehicle to a motel, where the officers began a surveillance of the motel parking lot; the surveillance lasted about an hour. During the surveillance, the confidential informant engaged in another phone conversation with what sounded to an officer to be a Spanish-speaking male. After that phone call concluded, a green vehicle entered the parking lot. The driver of that vehicle, Garcia-Maldonad[o], parked it and remained inside.
Three to four minutes later, a black vehicle entered the parking lot and drove in front of the room where the informant was standing, approximately 150 feet away from the green vehicle. When the informant approached the black vehicle and made contact with its occupants, officers moved in and pulled the occupants out of both vehicles.
Flores was the driver of the black vehicle, and Lopez was the passenger. Officers found a handgun on the driver’s side floorboard, and a handgun on Lopez’s person. They found no drugs in the black vehicle.
In the green vehicle, in a container under the driver’s seat, officers found 446.74 grams[, or approximately one pound,] of methamphetamine. Garcia-Maldonad[o] told one of the officers at the scene that the vehicle was not his, that he did not know what was in the vehicle, and that he was being paid to drive the vehicle. Police established that both vehicles were registered in names other than the defendants’ names. At trial, all three defendants used interpreters to translate what was being said in the proceedings from English to Spanish and vice versa.
[Flores and Lopez did not testify. In contrast,] GarciaMaldonad[o] testified that Flores had agreed to lend him [$500] if he did Flores a “favor,” which was to drive the vehicle. As Flores had instructed, Garcia-Maldonad[o] met him at a gas station to get the vehicle. There, Flores gave Garcia-Maldonad[o] keys to the vehicle, instructed him on where to drive and park, and then led him to the motel. Garcia-Maldonad[o] added that “sometimes they were behind me and sometimes they were in front of me,” and that he was able to arrive before Flores because he “got ahead of them” and knew where he “needed to go.”
A police officer with experience and specialized training in narcotics investigations testified that with an “advance [d] drug dealer, which is anything more than an ounce” of drugs, there is usually a second car, so that the dealers and the drugs are not in the same car. “[T]hey don’t want to mix both of them together, be taken down and . . . lose everything.”

(Footnote omitted.) Flores, 308 Ga. App. at 369-370 (1).

On appeal, Garcia-Maldonado contends that the evidence was insufficient to support his conviction for trafficking in methamphetamine. He argues that the State failed to prove that he knowingly-possessed the methamphetamine found underneath the driver’s seat of the green vehicle which he drove to the motel, and that his mere presence in the vehicle and spatial proximity to the drugs was insufficient to support a finding that he was in constructive possession of the contraband. We disagree.

“Any person who knowingly . . . has possession of 28 grams or more of methamphetamine ... commits the felony offense of trafficking in methamphetamine.” OCGA § 16-13-31 (e) (2008). “It is not necessary that a defendant have actual and exclusive possession of the contraband; possession may be joint and constructive.” Osorio v. State, 323 Ga. App. 843, 844 (1) (748 SE2d 483) (2013). “Aperson who, though not in actual possession, knowingly has both the power and intention at a given time to exercise dominion or control over a thing is then in constructive possession of it,” and if two or more persons “shared . . . constructive possession of a thing, possession is joint.” (Citation and punctuation omitted.) Cochran v. State, 300 Ga. App. 92, 94 (1) (a) (684 SE2d 136) (2009). So long as there is “slight evidence of access, power, and intention to exercise control or dominion over the [contraband], the question of fact regarding [joint] constructive possession remains within the domain of the trier of fact.” Evans v. State, 185 Ga. App. 805, 806 (366 SE2d 165) (1988).

Applying these principles, we conclude that the jury was authorized to find that Garcia-Maldonado was in joint constructive possession of the methamphetamine found under the seat of the vehicle he was driving. The evidence showed that Garcia-Maldonado met Flores in the parking lot of a gas station shortly before the drug transaction, where he was given the keys to the green vehicle containing approximately one pound of methamphetamine and was instructed where to drive and park; that he arrived at the scene of the drug transaction first, parked the green vehicle, and appeared to wait for the second vehicle; that he was the driver and sole occupant of the green vehicle in which the drugs were stashed; and that, by his own admission, he had been offered a large sum of money to drive the green vehicle to the motel. This combined evidence, particularly in conjunction with the experienced officer’s testimony that large drug transactions often involve the use of two cars by drug dealers, was sufficient to authorize Garcia-Maldonado’s drug trafficking conviction. See, e.g., Aguilera v. State, 320 Ga. App. 707, 713 (2) (740 SE2d 644) (2013) (affirming conviction for trafficking in cocaine where there was evidence from which jury could infer that defendant, who was the driver of the vehicle containing the cocaine, had knowingly ferried the drugs necessary for the drug transaction). See generally Floyd v. State, 207 Ga. App. 275, 282 (2) (b) (427 SE2d 605) (1993) (“It is a reasonable inference that, as the driver, [the defendant] was in control of the vehicle and had knowledge of its contents.”).

Garcia-Maldonado, however, contends that the circumstantial evidence supported the reasonable alternative hypothesis that he did not knowingly transport the methamphetamine. See former OCGA § 24-4-6 (“To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.”). According to Garcia-Maldonado, the evidence supported the alternative hypothesis that he believed he was simply delivering the green vehicle to the motel as a favor for Flores in return for receiving a $500 loan. Again, we are unpersuaded.

“Whether or not in a given case circumstances are sufficient to exclude every reasonable hypothesis save the guilt of the accused is primarily a question for determination by the jury.” (Citation and emphasis omitted.) Howard v. State, 291 Ga. App. 386, 388 (662 SE2d 203) (2008). Based on the evidence previously discussed, the jury was entitled to reject as unreasonable Garcia-Maldonado’s alternative hypothesis that he believed he was simply delivering a vehicle to the motel. In this regard, the jury could have found that given the high street value of the methamphetamine in the green vehicle, Garcia-Maldonado would not have been permitted to drive the vehicle alone to the motel unless he was a trusted accomplice. See Arellano v. State, 289 Ga. App. 148, 150 (1) (a) (656 SE2d 264) (2008) (significant street value of methamphetamine found in vehicle undermined any claim by defendant driver that he did not knowingly possess the methamphetamine). Furthermore, the jury could have found that Garcia-Maldonado’s testimony that Flores agreed to provide him $500 for merely driving the green vehicle to the motel strained credulity and instead reflected that Garcia-Maldonado knew that he was being compensated for assisting in a high-stakes drug transaction.

Decided November 6, 2013.

Brown & Gill, Angela B. Dillon, for appellant.

James L. Wright III, District Attorney, Sandra G. Rivers, Assistant District Attorney, for appellee.

Alternatively, “the knowledge element of a violation of a criminal statute can be proved by demonstrating either actual knowledge or deliberate ignorance of criminal activity.” (Citations and punctuation omitted.) Able v. State, 312 Ga. App. 252, 258 (3) (718 SE2d 96) (2011). Under the concept of “deliberate ignorance,” the requisite knowledge can be shown where a defendant “has his suspicions aroused but then deliberately omits to make further enquiries [ ] because he wishes to remain in ignorance.” (Citation and footnote omitted.) Perez-Castillo v. State, 257 Ga. App. 633, 634 (572 SE2d 657) (2002). See also Huckabee v. State, 287 Ga. 728, 734 (6) (b), n. 7 (699 SE2d 531) (2010) (charge on deliberate ignorance appropriate “when the facts support the inference that the defendant was aware of a high probability of the existence of the fact in question and purposely contrived to avoid learning all of the facts in order to have a defense in the event of a subsequent prosecution”) (citations and punctuation omitted). Here, in light of the evidence previously discussed, the jury was authorized to find that Garcia-Maldonado acted with deliberate ignorance to the extent that he drove the green vehicle without question to the motel in return for a promise of $500.

For these combined reasons, we conclude that a rational jury was entitled to find Garcia-Maldonado guilty beyond a reasonable doubt of trafficking in methamphetamine. Jackson, 443 U. S. 307. Accordingly, there was sufficient evidence to support the verdict, and the trial court did not err in denying Garcia-Maldonado’s motion for new trial.

Judgment affirmed.

Miller and Ray, JJ., concur.

       The General Assembly amended subsection (e) of OCGA § 16-13-31, effective July 1, 2013, see Ga. L. 2013, p. 222, § 4/HB 349, to omit the word “knowingly,” but that amendment does not apply in the present case because the underlying offense occurred in 2008. See id. § 21 (“This Act shall become effective on July 1, 2013, and shall apply to offenses which occur on or after that date. Any offense occurring before July 1, 2013, shall be governed by the statute in effect at the time of such offense.”).

       In Flores, 308 Ga. App. at 373 (4), we held that there was insufficient evidence to convict Lopez of trafficking in methamphetamine. As we explained, “[t]he evidence showed nothing more than Lopez’s presence in the [black] vehicle [driven by] Flores,” and there was no other evidence showing any “meaningful connection between Lopez and the drugs.” Id. But the evidence against Lopez was far weaker than the evidence against Garcia-Maldonado, who, among other things, was the driver and sole occupant of the green vehicle containing the drugs, as discussed above.

       Because the present case was tried in June 2009, the new Georgia Evidence Code does not apply. See Ga. L. 2011, p. 99, § 101 (“This Act shall become effective on January 1, 2013, and shall apply to any motion made or hearing or trial commenced on or after such date.”).