author: Doyle, Chief Judge.

text:
    A16A0338.
    BABBITT v. THE STATE.
    (789 SE2d 205)
   Doyle, Chief Judge.

After a jury trial, Armand Babbitt was convicted of two counts of aggravated assault, possession of a firearm by a convicted felon, and possession of a firearm during the commission of a felony. The jury acquitted Babbitt of two counts of felony murder (one count predicated on aggravated assault and one count predicated on armed robbery) and of armed robbery Babbitt appeals, arguing that (1) the trial court erred by excluding his pre-trial statement but allowing its use for impeachment purposes; (2) the evidence was insufficient to support his conviction for aggravated assault because it is inconsistent with the jury’s acquittal on the charges of felony murder and armed robbery; and (3) the evidence was insufficient such that the trial court should have found that the guilty verdict was against the weight of evidence. For the reasons that follow, we affirm.

Viewed “in the light most favorable to the verdict,” the record shows that on June 4, 2010, Felipe Brito, who spoke little English, arranged to sell cocaine for $29,000 to some men with the assistance of Miguel Bautista as a translator. Bautista arranged to have the buyers (later discovered to be Tremain Davis, Babbitt, and a third man) meet him at a local TGI Fridays restaurant from which location the buyers followed him in their vehicle to an apartment complex where Brito lived.

When Bautista and the buyers arrived at the complex, Brito exited his apartment and waited at his truck where he had the drugs. Brito sat in the vehicle with the three men, and then signaled to Bautista when the transaction was complete. Bautista then took the drugs to the vehicle, but Babbitt’s co-defendant, Davis, forced Bau-tista into the back seat of the vehicle beside Brito. Davis got into the back seat beside Brito and Bautista, and Davis, Babbitt, and the third man demanded at gunpoint both the drugs and the money. At some point, two of the three buyers opened fire on Brito and Bautista, killing Brito and injuring Bautista as Bautista pushed Brito out of the vehicle.

Cell phone records obtained from that day show that Bautista made several calls to a number to which Babbitt also made multiple calls; on the day of the incident, Babbitt’s cell phone was using the cell tower located close to the apartment complex where the shooting occurred; and Babbitt was apprehended with Bautista’s cell phone number in his wallet.

The jury returned a guilty verdict as to the two counts of aggravated assault and two counts related to possession of a weapon. Babbitt thereafter filed a motion for new trial, which was denied by the trial court. This appeal followed.

1. Babbitt first argues that the trial court erred by excluding his pre-trial statement but allowing its use for impeachment purposes, which precluded him from presenting an alibi defense.

(a) After a hearing on Babbitt’s and the State’s motions in limine regarding Babbitt’s pre-trial statement to investigators, the trial court ruled that the statement was not admissible in the State’s case-in-chief because Babbitt had not been read his rights pursuant to Miranda v. Arizona. It is undisputed that Babbitt was provided no warnings prior to providing a statement to the district attorney’s office. Nevertheless, even if a statement cannot be admitted in order to establish guilt because it violates the prophylactic rule enunciated in Miranda, it is possible to admit such a statement for purposes of impeachment. In order for such statements to be admitted for impeachment purposes, the trial court first must ascertain whether the statements were voluntarily made, even if the procedural safeguards of Miranda or invocation of the defendant’s right to an attorney were violated.

In other words, confessions may be ruled inadmissible on the merits for either failure to follow procedural requirements, or on traditional pre-Miranda standards of volun-tariness. If inadmissible for procedural defects, with no indication of traditional involuntarines s, the confes sion may be used for impeachment. If inadmissible because not voluntarily made, a confession may not be used for impeachment.

OCGA § 24-8-824 renders a defendant’s confession inadmissible if it was induced “by the slightest hope of benefit. . . Thus, in order to determine whether Babbitt’s statement was voluntary for impeachment purposes, the trial court was required to determine whether Babbitt made it with a hope of benefit. After a hearing on the matter, the trial court found that Babbitt’s videotaped statement was admissible for impeachment purposes because it was voluntarily made without hope of benefit.

Babbitt contends that this finding was erroneous because he believed based on the assertions of his first trial counsel and the State that giving a statement would result in reduced or dismissed charges. The transcript of the hearing on the motion in limine addressing the admissibility of Babbitt’s statement shows that the investigating officer denied offering Babbitt hope of benefit, threatening him, coercing him, making promises to him, or discussing with him a plea deal of any kind; however he admitted that Babbitt was in custody and may have been handcuffed at the time.

Miriam Arnold-Johnson, one of Babbitt’s attorneys at the time, testified that she discussed the case with the assistant district attorney, Tana Brackin, and Arnold-Johnson was presenting Babbitt to speak with the State in order to move the case along “so that they could ascertain what it is he knew in order to be able to then make an offer.” Arnold-Johnson testified that because Babbitt was not Miran-dized, she had no red flags about the questioning, and

at that point we [were] proffering basically what he knew in an effort to try to see if we could, you know, negotiate a resolution. But there was always — and I believed from my discussions with Mr. Babbitt that we were doing that to reduce his sentence, to reduce his charge ....

Arnold-Johnson testified that she spoke with Babbitt about her negotiations with Brackin, explaining to him that if he could “fill in some of [the] gaps[,] then that would definitely help him out with whatever recommendation that they would be making if he were to enter a plea [to negotiate an offer to try to resolve it] .’’Arnold-Johnson and Babbitt’s other attorney were attempting to get him a ten-year sentence and to get rid of the murder charge based on their discussions with Brackin. Arnold-Johnson testified that although there was not a definitive plea on the table, it was her impression that this statement would not be used against him under any circumstances and that depending on what information Babbitt could provide, consideration as to charges and sentencing would be given, and Arnold-Johnson conveyed this to Babbitt.

Babbitt’s other attorney during the time of the interview largely testified to the same — that Babbitt was being interviewed in order to ascertain precisely what plea offer the State would make, such that the interview was being done specifically for the benefit of a plea offer and would not be used in court against him.

Brackin, who left the district attorney’s office a month after Babbitt’s interview took place, admitted that these things were discussed in “preliminary” negotiations for a plea deal, but there was no offer made. Brackin maintained that Babbitt’s attorneys, not the State, initiated the discussions. Brackin explained:

I mean this was just a preliminary part of the negotiation. The whole idea was, you know, this was a proffer, this was — he’s telling us what’s going on. And the idea was, you know, we’re going to go through, we’re going to check out some of the stuff that he was telling us was going on. He wanted to make a plea[,] and we said we’d get back, you know, with an offer. That’s the best of my recollection. Like I said, to my knowledge we didn’t make an offer but we told him we would get back with one, we told his attorneys at least we’d get back with one.

Brackin clarified on cross-examination that the “preliminary negotiations” essentially were done because the parties “were trying to come to an agreement on a plea. We were hoping for a plea.” Brackin testified to the following:

[Question]: What did you think in your own mind . . . was behind this person charged with murder . . . coming in to be interviewed by you . . . ?
[Brackin]: That he’s decided [his alibi is] not a valid defense [,] and he wants to enter a plea.
[Question]: To what?
[Brackin]: To something else. To something less than.
[Question]: Less than what?
[Brackin]: Less than what he’s charged with.
[Question]: Less than murder?
[Brackin]: Correct.

Brackin, however, testified that she never made a firm offer with a specific amount of time, and everyone involved in the case knew that she would be leaving and not handling the case. Brackin could not remember whether anyone had Mirandized, Babbitt prior to the interview, but she confirmed she had not; nevertheless, she testified she intended to use what he said against him at trial if it moved forward.

The supervising assistant district attorney, Stephen Fern, also stated that the State was involved in negotiations with Babbitt’s attorneys in order to help Babbitt avoid felony murder charges and a mandatory life sentence, although Fern stated that defense attorneys initiated those discussions. Fern testified that prior to the interview, the State and Babbitt had a pre-trial conference to discuss plea possibilities, which resulted in the interview. Fern testified that there

came to be an understanding that he may be sentenced to something in the range or neighborhood of 30 to 40 years with a number of years on top of that to serve, so maybe a 60, serve 30 or 40, whatever ranges that were bandied about during these conversations. Nothing was committed to by either side with regards to this case, and that was sort of the impetus if you will for [the interview].

“The‘slightest hope of benefit’in [former] OCGA § 24-3-50 means the hope of a lighter sentence.” In this case, the evidence shows that the trial court erred by determining that Babbitt did not make the statements in the interview without the slightest hope of benefit for a lighter sentence that was brought about by discussions with the State. There is no requirement that a specific plea or specific reduction are offered prior to statements being made by the defendant becoming subject to the hope-of-benefit rule. Although defense counsel may have approached the State initially, the testimony of Fern and Brackin confirms that the statement was made as part of plea negotiations and was not merely the product of the defendant’s own mind or a tactical decision of defense counsel. Accordingly, the trial court erred by allowing the statements for use as impeachment evidence.

(b) Babbitt contends that he was harmed by the trial court’s error because he was prevented from presenting his alibi defense for fear that his statement would be used to impeach the defense. We disagree. Any error on the part of the trial court was harmless because the evidence he would have presented in support of his alibi defense — family member’s testimony that he was with them in another county removing debris from a foreclosed home — could not counter Bautista’s identification of him as one of the gunmen; Babbitt’s possession of Bautista’s cell phone number; the cell phone records showing calls among his, Bautista’s, and a third phone number on the day of the incident; or evidence that his cell phone was used in close proximity to the cell phone tower serving the apartment complex. Accordingly, this enumeration presents no basis for reversal.

2. Babbitt also argues that the evidence was insufficient to support his conviction for aggravated assault because it is inconsistent with the jury’s acquittal on the charges of felony murder and armed robbery.

As a general rule, a guilty verdict cannot be challenged on the ground that the jury’s verdict of guilt on one count of an indictment is inconsistent with an acquittal on another count. Such verdicts are deemed constitutionally tolerable because they may reflect an exercise of lenity by the jury that is not necessarily grounded in its view of the evidence.

“An exception to the inconsistent verdict rule exists when the appellate record makes transparent the jury’s reasoning why it found the defendant not guilty of one of the charges.” In this case, however, there were multiple shooters, and the fact that the jury acquitted Babbitt of felony murder and armed robbery does not “make transparent” their reasoning nor preclude Babbitt’s conviction for aggravated assault against Brito despite the jury’s acquittal of him for felony murder and armed robbery based on the shooting of Brito. “[Wjhile Georgia continues to recognize the rule against mutually exclusive verdicts, such rule applies to multiple guilty verdicts which cannot be logically reconciled; the rule is not implicated where, as here, verdicts of guilty and not guilty are returned.” The jury could have concluded that only Davis intended to rob Brito, and they could have determined that despite the instructions regarding conspiracy that Babbitt should not be held responsible for Brito’s murder, but that because Babbitt was firing a weapon he should be held responsible for the aggravated assault of Brito. Accordingly, this enumeration presents no basis for reversal.

Decided June 15, 2016

Reconsideration denied June 24, 2016

Arianne E. Mathé, for appellant.

3. Finally, Babbitt argues that the evidence was insufficient such that the trial court should have found that the guilty verdict was against the weight of evidence and granted a new trial. Based on the facts as stated above and our holdings in Divisions 1 and 2 supra, this enumeration is without merit. The evidence was sufficient to enable a rational trier of fact to find Babbitt guilty beyond a reasonable doubt of the crimes for which he was convicted.

Judgment affirmed.

Andrews, P. J., and Ray, J., concur.

Daniel J. Porter, District Attorney, Christopher M. Quinn, Jon W. Setzer, Michael P. DiOrio, Assistant District Attorneys, for appellee.

       OCGA § 16-5-21 (b) (2).

       OCGA § 16-11-131 (b).

       OCGA § 16-11-106 (b) (1).

        Davis v. State, 296 Ga. 126, 127 (1) (765 SE2d 336) (2014), citing Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

       The State tried Babbitt separately from his co-defendant, Davis. The Supreme Court of Georgia affirmed Davis’s conviction of felony murder and two counts of aggravated assault in Davis, 296 Ga. at 126.

       384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966).

       See Harris v. New York, 401 U. S. 222, 226 (91 SCt 643, 28 LE2d 1) (1971) (“The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances. We hold, therefore, that [the defendant’s] credibility was appropriately impeached by use of his earlier conflicting statements.”). See also Alexander v. State, 138 Ga. App. 618, 619-620 (2) (226 SE2d 807) (1976), citing Colbert v. State, 124 Ga. App. 283 (183 SE2d 476) (1971).

       See Green v. State, 154 Ga. App. 295, 297-298 (1) (B) (267 SE2d 898) (1980).

       (Punctuation omitted.) Id. at 298.

       Formerly OCGA § 24-3-50 (2012). This case was tried after January 1, 2013; therefore the new Evidence Code applies. See Ga. L. 2011, p. 99, §§ 2, 101/HB 24.

        State v. Ray, 272 Ga. 450 (2) (531 SE2d 705) (2000).

       See id. at 450-451 (2).

       See Gray v. State, 240 Ga. App. 716, 717-718 (1) (523 SE2d 626) (1999).

       (Citations omitted.) State v. Springer, 297 Ga. 376, 377 (1) (774 SE2d 106) (2015).

       (Punctuation omitted.) Smith v. State, 304 Ga. App. 708, 711 (3) (699 SE2d 742) (2010), overruled on other grounds by Reed v. State, 291 Ga. 10, 14 (3) (727 SE2d 112) (2012).

       Compare with Muttalib v. State, 335 Ga. App. 514, 516 (782 SE2d 300) (2016) (holding that judge’s remarks in the record as to why evidence did not support conviction for one charge made transparent his reasoning, which was inconsistent with his finding of guilt for another charge, thereby warranting reversal of the judgment of conviction as to that second charge).

        Artis v. State, 299 Ga. App. 287, 293 (5) (682 SE2d 375) (2009). Compare with Robinson v. State, 334 Ga. App. 646, 652 (2) (780 SE2d 86) (2015) (reversing judgment of conviction in second trial, which should have been barred based on jury’s acquittal of the defendant for crimes based on party-to-the-crime theory and the State’s failure to present an alternative theory to support the defendant’s conviction during the second trial for charges on which the initial jury failed to return a verdict).

       See Artis, 299 Ga. App. at 293 (5). See also Jackson, 443 U. S. at 319 (III) (B).


source: Caselaw Access Project

author: DOYLE, Chief Judge.

license: Public Domain

text:
    A16A0441.
    RAMIREZ-RAMIREZ v. STATE OF GEORGIA.
    (788 SE2d 68)
   DOYLE, Chief Judge.

This case arises from a forfeiture action filed by the State on September 25, 2014, pursuant to former OCGA § 16-13-49 against $2,670 U. S. Currency, a 2007 Chevrolet Silverado, a Highpoint .380 caliber handgun with magazine and ammunition, and real property at 7356 Merlin Way, River dale, Georgia. Juan Ramirez-Ramirez, the owner of the property, appeals from the trial court’s denial of his motion for new trial after it granted the State’s motion for default judgment, motion for judgment on the pleadings, and to strike Ramirez-Ramirez’s answer (“omnibus motion”). For the reasons that follow, we dismiss the appeal.

The record shows that after a drug seizure from Ramirez-Ramirez’s vehicle and home, the State filed the instant forfeiture action on September 25, 2014. Ramirez-Ramirez filed an answer to the forfeiture petition on November 3, 2014. On December 1, 2014, the State filed its omnibus motion. On December 23, Ramirez-Ramirez filed a response to the State’s motion, arguing that he had attempted to file a pro se answer to the petition during the 30-day period, but the answer was returned to him at the jail, and his attorney had not been able to get a notary to the jail in order to prepare a verification for the November 3 answer. Thereafter, on December 30, Ramirez-Ramirez amended his answer, which included a verification. On February 26, 2015, the State filed a motion to continue for good cause the 60-day statutory period in which to hold a hearing on its petition pursuant to former OCGA § 16-13-49 (o) (5), asking that the court grant a continuance until April 30 to hold a hearing.

On March 3, 2015, the trial court granted the continuance, extending the time to hold a hearing until April 30, 2015, and noted that its continuance was not a ruling on the sufficiency of Ramirez-Ramirez’s answer and that no hearing would be set until and unless it was deemed appropriate.

On April 14, 2015, the trial court entered an order granting the State’s omnibus motion in all respects, finding the answer and amended answer were legally insufficient, and that Ramirez-Ramirez had not timely moved to open default. Ramirez-Ramirez filed a motion for new trial on May 12, 2015, arguing that default should have been opened because he was not required to pay costs at that time; the trial court denied the motion. Ramirez-Ramirez filed a timely notice of appeal from the order denying the motion for new trial.

Former OCGA § 16-13-49 (o) (3) provides that “[a]n owner of or interest holder in the property may file an answer asserting a claim against the property in the [forfeiture] action in rem. Any such answer shall be filed within 30 days after the service of the summons and complaint[,]” and the answer must contain various items and be verified. In the event that no answer is filed within 30 days, OCGA § 16-13-49 (o) (4) states that “the court shall order the disposition of the seized property as provided for in this Code section.”

The State has filed a motion to dismiss this appeal, arguing that because Ramirez-Ramirez failed to file his answer within 30 days, Ramirez-Ramirez had no right to file a motion for new trial, and this Court does not have jurisdiction over the appeal. We agree.

The proper and timely filing of a notice of appeal is an absolute requirement to confer jurisdiction upon the appellate court. [Ramirez-Ramirez’s] notice of appeal was not filed within 30 days of the entry of [the order granting the omnibus motion,] and unless the motion for new trial was a proper vehicle to extend the time for filing the notice of appeal, the notice filed in this case was not timely filed and deprives this court of any jurisdiction to consider this case on the merits of the appeal.
Objections which go to the judgment only, and do not extend to the verdict, cannot properly be made grounds of a motion for new trial. A motion for new trial seeks to set aside the verdict. No new trial is necessary to correct a judgment or decree. If a judgment or decree is erroneous or illegal, direct exception should be taken to it at the proper time.

Decided May 17, 2016

Reconsideration denied June 24, 2016.

R. Edward Furr, Jr.; Akinyele Law Firm, AkintundeA. Akinyele, for appellant.

Tracy Graham Lawson, District Attorney, Elizabeth A. Baker, Tiffany B. Pleasant, Assistant District Attorneys, for appellee.

In this case, the trial court’s determination that Ramirez-Ramirez failed to file a timely sufficient answer to the forfeiture petition was a legal determination only, akin to an order on motion for summary judgment or declaratory judgment. Accordingly, a motion for new trial was not the appropriate vehicle for challenging the order granting the omnibus motion, and Ramirez-Ramirez should have filed a direct appeal of that order rather than a motion for new trial. His appeal is therefore untimely, and this Court lacks jurisdiction to review the merits of the underlying orders.

Appeal dismissed.

Andrews, P. J., and Ray, J., concur.

       This Code section was amended effective July 1, 2015, by Ga. L. 2015, p. 693, § 2-22/HB 233.

       (Citation and punctuation omitted.) Sands v. Lamar Properties, Inc., 159 Ga. App. 718, 719 (285 SE2d 24) (1981).

       (Punctuation omitted.) Id.

       See id. See also Bridges v. Elrod, 216 Ga. 102, 106 (2) (114 SE2d 874) (1960).


author: McMlLLIAN, Judge.

text:
    A16A0617.
    STEELE v. THE STATE.
    (788 SE2d 145)
   McMlLLIAN, Judge.

A jury convicted Calvin Sydney Steele III of one count of statutory rape and one count of child molestation. Steele appeals following the trial court’s denial of his motion for new trial, asserting that the trial court erred in admitting (1) his statement to police, (2) DNA evidence, and (3) evidence of his prior conviction for statutory rape. We affirm for the reasons set forth below.

Viewed in the light most favorable to the verdict, the evidence at trial showed that in or around August and September 2012, after engaging in communications of a sexual nature on Facebook with the 14-year-old victim, Steele had sexual intercourse with her in her bedroom while her parents were asleep in the residence. The two engaged in sexual intercourse on more than one occasion, even though the victim’s parents had told Steele, who was 24, that the victim was under the age of 16.

1. Steele first asserts that the trial court erred in admitting his statement to police into evidence because it failed to consider evidence that he had used drugs earlier in the day.

“In deciding the admissibility of a statement during a Jackson-Denno hearing, the trial court must consider the totality of the circumstances.” (Citation and punctuation omitted.) Norton v. State, 293 Ga. 332, 334 (2) (745 SE2d 630) (2013). The State has the burden to prove the voluntariness of a confession by a preponderance of the evidence. Currier v. State, 294 Ga. 392, 398 (3) (754 SE2d 17) (2014). After the trial court determines that the State has met its burden of demonstrating that a defendant’s statement was freely and voluntarily given in compliance with Jackson v. Denno, it may permit the statement to come into evidence. Wright v. State, 285 Ga. 428, 431-32 (2) (677 SE2d 82) (2009). On appeal, this Court will not disturb the trial court’s factual findings and credibility determinations unless they are clearly erroneous. Colton v. State, 296 Ga. 172, 178 (1) (766 SE2d 38) (2014).

At the Jackson-Denno hearing, Detective Tim Deal of the Catoosa County Sheriff’s Department testified that he conducted a custodial interview of Steele in connection with this case on the evening of September 19, 2012. At the time of the interview, Steele stated that he was 24 years old, he had obtained a GED, and his reading and writing ability was good. Before the interview began, Deal informed Steele of the nature of the charges against him and reviewed his Miranda rights. Deal testified that although Steele stated that he had smoked marijuana approximately nine hours earlier in the day, he told Deal that he did not feel that he was impaired by it at the time of the interview. Deal, who had been a paramedic as well as a police officer, said that based on his medical and law enforcement experience, Steele did not appear to be under the influence of any alcohol or drugs and appeared to understand his rights as they were read to him. Steele signed a written waiver of rights form, and he never indicated that he wanted an attorney or that he did not want to talk to police. Deal said that he neither threatened Steele nor made any promises or offers of benefit or reward.

Based on the evidence, the trial court found that Steele’s statement was admissible, and we cannot say that this finding was clear error. See, e.g., Watkins v. State, 289 Ga. 359, 363-64 (4) (711 SE2d 655) (2011) (no error in admitting defendant’s statement where detective who interviewed defendant and who had experience in dealing with people under the influence of alcohol or drugs testified that he saw no evidence that Watkins was under the influence of alcohol or drugs and that defendant understood each of these rights); Philmore v. State, 263 Ga. 67, 68 (2) (428 SE2d 329) (1993) (even assuming the defendant had used crack cocaine an hour before his police interview and was still under the drug’s influence, the trial court did not err in ruling that he gave a voluntary statement and knowingly and intelligently waived his rights); Borden v. State, 247 Ga. 477, 480 (3) (277 SE2d 9) (1981) (no clear error in admitting statement where detective testified that defendant was not in such a condition that he did not know what he was doing, and defendant said he understood his rights even though defendant claimed that on the night of the crime, he had drunk two cases of beer, taken nine valium tablets, and used about half a bag of marijuana).

2. Steele next asserts that the trial court also erred in admitting DNA evidence obtained from him pursuant to his consent. Steele filed a motion to suppress the DNA evidence, and following a hearing on the matter, the trial court denied the motion.

“A consent to search will normally be held voluntary if the totality of the circumstances fails to show that the officers used fear, intimidation, threat of physical punishment, or lengthy detention to obtain the consent.” (Citation and punctuation omitted.) Kendrick v. State, 335 Ga. App. 766, 769 (782 SE2d 842) (2016). The trial court may also consider as factors in its analysis “prolonged questioning!)] the accused’s age, level of education, intelligence [,] and advisement of constitutional rights; and the psychological impact of these factors on the accused.” (Citation and punctuation omitted.) Id.

Moreover, while knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent. Instead, the court should consider whether a reasonable person would feel free to decline the officers’ request to search or otherwise terminate the encounter.

(Citation and punctuation omitted.) Id. In reviewing the trial court’s ruling on a motion to suppress, this Court construes the evidence most favorably to uphold the trial court’s findings and judgment. Harris v. State, 298 Ga. 588, 590 (1) (783 SE2d 632) (2016).

So viewed, the evidence at the hearing showed that at approximately 9:45 p.m. on September 20, 2012, the day after Steele’s interview with police, Detective Daniel Thacker of the Catoosa County Sheriff’s Office obtained Steele’s consent to take a DNA sample. In the presence of another officer, Thacker read Steele a consent form that informed Steele that he had a constitutional right not to have a search conducted of his “blood, hair[,] or any body fluids” without a search warrant. Steele executed the consent form, acknowledging that although he was aware of that right, he nevertheless voluntarily consented to a search and granted permission for the officers to take bodily materials from his person for use as evidence in any criminal proceeding. He further acknowledged that his consent was voluntarily given without any threats or promises of any kind.

Steele’s attorney argued at the hearing and asserts on appeal that the DNA evidence should be suppressed because Steele’s consent was merely an acquiescence to authority as Steele had been in custody approximately 24 hours and the two officers involved made no attempt to conceal their identities as peace officers. He contends that under such circumstances, any reasonable person would have felt no alternative but to consent.

However, we find no error in the trial court’s denial of Steele’s motion to suppress the DNA evidence. The record contains no indication that the two officers present threatened or intimidated Steele into giving his consent or that they promised him a hope of benefit. Although Steele had been in custody around 24 hours at the time he gave his consent to search, he was specifically told that he had the right to refuse the search, and he signed a form indicating that despite his knowledge of his rights, he was voluntarily consenting to the search. See, e.g., State v. Reid, 337 Ga. App. 77 (786 SE2d 694) (2016) (consent voluntary where no evidence of promise or threat and defendant verbally agreed to submit to blood test and also executed a written consent that specifically indicated it was for the purpose of determining the presence of alcohol in her blood); Park v. State, 308 Ga. App. 648, 652 (1) (708 SE2d 614) (2011) (consent voluntary even where six to eight officers present and defendant handcuffed).

3. Steele further contends that the trial court erred in admitting evidence of his prior 2007 conviction based on his plea of guilty to a charge of misdemeanor statutory rape. Although he acknowledges that the circumstances involved in that conviction were similar to the facts in this case, he asserts that such similarity does not amount to relevance and that the evidence did not aid the State in presenting its case or the jury in considering the case in any proper way Under the new Evidence Code, which is applicable in this case, “[a] trial court’s decision to admit other acts evidence will be overturned only where there is a clear abuse of discretion.” State v. Jones, 297 Ga. 156, 159 (1) (773 SE2d 170) (2015).

Under the new Code, OCGA § 24-4-413 (a) provides that “[i]n a criminal proceeding in which the accused is accused of an offense of sexual assault, evidence of the accused’s commission of another offense of sexual assault shall be admissible and may be considered for its bearing on any matter to which it is relevant.” (Emphasis supplied.) The statute defines sexual assault to include the crime of statutory rape. OCGA § 24-4-413 (d). The language of this provision was intended to create a “rule of inclusion,” with a strong presumption in favor of admissibility as it provides that such evidence “shall be admissible.” See State v. Frost, 297 Ga. 296, 300-01 (773 SE2d 700) (2015) (OCGA § 24-4-417 applying to DUI cases is a “rule of inclusion,” with a stronger presumption of admissibility than OCGA § 24-4-404 (b) as it provides that such evidence “shall be admissible”); Ronald L. Carlson & Michael Scott Carlson, Carlson on Evidence 241 (3d ed. 2015) (Fed. R. of Evid. 413, which OCGA § 24-4-413 closely tracks, “create[s] presumptions in favor of admission of the defendant’s other sexual offenses in sex crimes prosecutions”).

The evidence showed that the prior conviction arose from an incident that occurred on July 7, 2006. In a statement to police in connection with that incident, Steele admitted that he had crept through the window of a trailer in the same trailer park at issue in this case and engaged in sexual conduct with a different 14-year-old girl while the girl’s father was at home. Steele was 18 years old at the time of this incident.

At the hearing on the admissibility of this evidence, the State indicated that it sought to introduce the evidence of the 2007 conviction for the purposes of intent, lustful disposition, and lack of mistake. And the jury was instructed that it could consider the other acts evidence only as it related to the issues of knowledge, intent, plan, preparation, motive, and opportunity The evidence of the prior crime was relevant to the issues of Steele’s knowledge, motive, preparation, and intent as it showed that Steele had previously engaged in sexual relations with an underage girl in the same trailer park and undergone criminal prosecution for such conduct. Given the strong statutory presumption of admissibility and especially in light of the close similarities between the two crimes at issue, we find no clear abuse of discretion by the trial court in determining that the evidence of the 2007 conviction was relevant and admissible at trial.

Decided June 24, 2016.

Steven A. Miller, for appellant.

Herbert E. Franklin, Jr., District Attorney, Alan C. Norton, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       The jury acquitted him on a separate charge of computer pornography.

       See Jackson v. Denno, 378 U.S. 368 (84 SCt 1774, 12 LE2d 908) (1964).

       See Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d 694) (1966).

       Steele’s trial was held in July 2013, after the effective date of Georgia’s new Evidence Code. See Ga. L. 2011, p. 99, § 101 (new Code applies “to any motion made or hearing or trial commenced on or after” January 1, 2013).

       Although lustful disposition is not one of the purposes specifically set out in OCGA § 24-4-404 (b) for the admission of other acts, OCGA § 24-4-413 provides an exception to the general rule in sexual assault cases and allows the admission of propensity evidence. See United States v. Brimm, 608 F. App’x 795, 798 (I) (C) (11th Cir. 2015) (“Rules 413 and 414 [of the Federal Rules of Evidence, upon which OCGA §§ 24-4-413 and 24-4-414 are based,] permit the introduction of propensity evidence and thus contain exceptions to Rule 404 (b)’s general ban on propensity evidence in ‘sexual assault’ and ‘child molestation’ cases.”) (citations omitted); Carlson & Carlson, Carlson on Evidence, 240-41. Thus, the provisions of OCGA § 24-4-413 (a) supersede the provisions of OCGA § 24-4-404 (b) in sexual assault cases. Cf. Frost, 297 Ga. at 300-01 (OCGA § 24-4-417 provides a separate basis from OCGA § 24-4-404 (b) for the admission of other acts evidence in certain DUI cases); Dority v. State, 335 Ga. App. 83, 95 (3) (780 SE2d 129) (2015) (“OCGA § 24-4-414 (a) is the more specific statute regarding admission of prior acts of child molestation and is therefore controlling over OCGA § 24-4-404 (b).”).

       See OCGA § 24-4-401 (“ ‘relevant evidence’means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence”).

       Steele does not argue that the evidence of the 2007 conviction was more prejudicial than probative under OCGA § 24-4-403; therefore, we need not address the issue of whether that provision applies to evidence admissible under OCGA § 24-4-413 (a). See Frost, 297 Ga. at 301, n.6. Cf. Olds v. State, 299 Ga. 65 (786 SE2d 633) (2016) (addressing other acts evidenceadmitted under OCGA § 24-4-404 (b)).


author: MILLER, Presiding Judge.

text:
    A16A0071.
    HICKS v. THE STATE.
    (788 SE2d 502)
   MILLER, Presiding Judge.

Following a jury trial, Ernest Lee Hicks was convicted of aggravated assault (OCGA § 16-5-21 (a) (2) (2013)) and simple battery (OCGA § 16-5-23 (2013)) as a lesser included offense of the aggravated battery charge. Hicks appeals from the denial of his motion for new trial, contending that the trial court erred in (1) admitting his statements to police; (2) admitting evidence of the warrantless search of his residence; and (3) failing to merge his convictions. Hicks also contends that his trial counsel was constitutionally deficient for failing to object to venue for two separately indicted offenses. Upon review, we affirm Hicks’s convictions. For the reasons set forth below, however, we vacate Hicks’s sentence for simple battery and remand this case for resentencing.

Viewed in the light most favorable to Hicks’s convictions, the evidence shows that Hicks and the victim were involved in a romantic relationship and they lived together for a few months. Hicks had a history of violence and had previously hit the victim in the face and blackened her eye. The victim reported Hicks’s violence to police, obtained a temporary restraining order (“TRO”), and stayed away from Hicks for about six months.

In early December 2012, even though the TRO was still in effect, the victim returned to Hicks’s residence in Dade County for a few days with the understanding that they would just be friends. On the night of December 11, 2012, the victim gathered her belongings and told Hicks that she was leaving. When the victim started to walk out the door, Hicks, who was very intoxicated, pulled her back by the hair and started beating her with his fists.

Hicks knocked the victim down and choked her until she lost consciousness and started having seizures. Over the next several hours, Hicks beat and choked the victim, resulting in several broken bones in her face. Hicks also told the victim he had a gun, threatened to kill her, and told her that she was not leaving alive. The victim tried to get away from Hicks, but he would drag her back and continue beating her. Hicks also blocked the front door with a pallet or mattress, and he prevented the victim from using her phone to call for help. Eventually, Hicks took a handful of the victim’s prescription Klonopin and passed out. The victim then called 911.

Dade County Sheriff’s Officer McCloud received the 911 dispatch call shortly after 9:00 a.m. on December 12, 2012, and responded to the scene. Officer McCloud had previously served the TRO at Hicks’s residence and knew about the prior incident between Hicks and the victim. When Officer McCloud arrived at Hicks’s residence, he knocked on the door. Hicks heard the knock, pushed the victim back, and opened the door. After Hicks quickly slammed the door closed without saying anything, Officer McCloud radioed for backup and knocked a second time. The door then opened a second time, and the victim walked out of the residence. The victim’s face was bruised, she had black eyes, and she looked like she had been used as a punching bag. The victim told Officer McCloud what happened, and he called for an ambulance. Officer McCloud then walked the victim to his patrol car to wait for the ambulance because it was freezing outside.

Investigator Cole, who also knew Hicks, and who heard the 911 dispatch call, responded to the scene, spoke to Officer McCloud, and observed the victim’s injuries. After Investigator Cole arrived, Hicks finally came out of the residence, and Officer McCloud spoke to him. Hicks had what appeared to be blood on his hands, as well as blood stains on his shirt, and he smelled of alcohol.

Hicks asked Officer McCloud if he could go back into the residence to get a few things and lock up. Officer McCloud followed Hicks into the house to make sure no one else was inside. When they came back out, Officer McCloud asked Hicks about the stains on his clothing, and Hicks replied that the stains on his clothing were spaghetti sauce.

1. Hicks contends that the trial court erred in admitting his pre-Miranda statements to the officers. In his appellate brief, however, Hicks fails to include a single citation to the record, and he points to no specific incriminating statement that he made to the officers. “[Hicks] bears the burden of proving error affirmatively by the record. It is not the function of this court to cull the record on behalf of a party in search of instances of error.” (Citations and punctuation omitted.) Wade v. State, 305 Ga. App. 382, 383 (1) (700 SE2d 827) (2010).

The only “statement” Hicks challenged at his suppression hearing was his “spaghetti sauce” comment. On appeal, Hicks failed to argue, and we fail to see, the incriminating nature of this statement. Accordingly, Hicks has not shown that the trial court erred in denying his motion for new trial.

2. Hicks contends that the trial court erred in admitting testimony or evidence concerning a warrantless search of his residence. We discern no error because Hicks has failed to point to evidence showing that the officers searched his home, much less any evidence that was illegally obtained during such a search. Notably, the record shows that Officer McCloud only followed Hicks into the residence to make sure that no one was there after Hicks asked if he could go back inside to get a few things and lock up. Accordingly, this enumeration of error is meritless.

3. Hicks contends that the trial court should have merged his convictions for aggravated assault and simple battery, which was the lesser included offense of the aggravated battery charge. Under the circumstances of this case, we agree.

“Georgia law prohibits multiple convictions if one crime is included in the other.” (Citations and punctuation omitted.) Ledford v. State, 289 Ga. 70, 71 (1) (709 SE2d 239) (2011). In Drinkard v. Walker, 281 Ga. 211 (636 SE2d 530) (2006), the Supreme Court of Georgia set forth the required evidence test for determining whether convictions merge “because one of the crimes was established by proof of the same or less than all the facts that were required to establish the other crime.” (Punctuation omitted.) Id. at 216, n. 32; see also Regent v. State, 299 Ga. 172, 175 (787 SE2d 217) (2016); OCGA § 16-1-6. Moreover, under OCGA § 16-1-6 (2), one crime is included in the other where the only difference involves a “less serious injury or risk of injury to the same person ... or a lesser kind of culpability”

In this case, the aggravated assault charge required the State to prove that Hicks used his hands as deadly weapons to choke the victim and beat her about the head and face in a manner that was likely to cause or actually resulted in serious bodily harm. As charged, the aggravated battery count required the State to prove that Hicks seriously disfigured the victim’s body by striking her about the head and face. The jury, however, found Hicks guilty of the lesser included offense of simple battery, which only required proof that Hicks intentionally made physical contact with the victim or intentionally caused her harm when he struck her about the head and face. These two offenses — aggravated assault and simple battery — differ only with respect to the risk of, or seriousness of, injury to the victim. Accordingly, the simple battery merges under OCGA § 16-1-6 (2). See Regent, supra, 299 Ga. at 176 (aggravated assault as charged merged with aggravated battery because crimes differed only with regard to the risk of injury suffered by victim or seriousness of injury). Consequently, we must vacate Hicks’s conviction and sentence for simple battery and remand for resentencing.

4. Hicks contends that his trial counsel was constitutionally deficient for failing to object to venue with regard to two additional charges in a separate indictment — influencing a witness and aggravated stalking — which were consolidated for trial. The trial court granted Hicks’s motion for new trial with regard to these additional charges, and the State dismissed that indictment. Hicks argues that a proper objection from trial counsel would have immediately ended the trial in his favor, given the fact that the jury ultimately acquitted him of two charges — false imprisonment and hindering an emergency telephone call — and the jury found him guilty of only simple battery as a lesser included offense of aggravated battery. We do not agree.

Decided June 27, 2016.

W. Terry Hay good, Jr., for appellant.

Herbert E. Franklin, Jr., District Attorney, Leonard C. Gregor, Jr., Assistant District Attorney, for appellee.

“To establish an ineffective assistance of counsel claim, [Hicks] must show that the counsel’s performance was deficient and that the deficient performance prejudiced the defense.” (Citation and punctuation omitted.) Brooks v. State, 323 Ga. App. 681, 684 (2) (747 SE2d 688) (2013). Moreover, “[a] court need not address both the deficient performance and prejudice prongs of this test if the showing on one prong is insufficient.” (Citation and punctuation omitted.) Williams v. State, 307 Ga. App. 780 (706 SE2d 82) (2011).

Here, trial counsel made a strategic decision to consolidate the two indictments for trial because he felt that the second indictment — for aggravated stalking and influencing a witness — would provide the jury with context and paint a more complete picture for them. Additionally, with regard to venue for the crimes charged in the second indictment, trial counsel strategically decided to move for a directed verdict, rather than objecting to the issue of venue at trial. Matters of trial strategy do not support a claim of ineffective assistance. See Littlejohn v. State, 320 Ga. App. 197, 207 (5) (a) (ii) (739 SE2d 682) (2013). Moreover, the jury acquitted Hicks on two additional counts under the first indictment — false imprisonment and hindering an emergency telephone call — indicating that the jury was able to objectively consider the evidence presented at trial. See Wofford v. State, 329 Ga. App. 195, 205 (5) (a) (764 SE2d 437) (2014). Hicks has not shown that his trial counsel rendered constitutionally ineffective assistance. Consequently, we affirm Hicks’s convictions; however, we vacate Hicks’s sentence for simple battery and remand this case for resentencing.

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

McFadden and McMillian, JJ., concur.

       Hicks was acquitted of two additional charges — false imprisonment and hindering an emergency telephone call.

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

       Forensic testing showed that Hicks had the victim’s blood on his shirt.

        Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966).

       A person commits the offense of aggravated assault when he uses a deadly weapon or object — in this case his hands — which, when used offensively against a person, is likely to or actually results in serious bodily injury. OCGA § 16-5-21 (a) (2) (2013).

       A person commits the offense of simple battery when he intentionally makes physical contact with another person or intentionally causes harm to that person. OCGA § 16-5-23 (a).


text:
    A16A0346.
    WHITE et al. v. DEPARTMENT OF TRANSPORTATION et al.
    (788 SE2d 500)
   MILLER, Presiding Judge.

OnMay 2, 2013, Harry White (“Harry”) was killed when a branch from a diseased tree fell on his car as he was driving down Georgia Highway 113 in Carroll County Mark White (“White”), as the administrator of Harry’s estate, sued the Georgia Department of Transportation (“DOT”) under the Georgia Tort Claims Act (“GTCA”), OCGA § 50-21-20 et seq., as well as Tommy Baxter, the owner of the property adjacent to Highway 113 and the property on which the tree was located. The trial court granted the DOT’s motion to dismiss, finding that the DOT was immune from suit under OCGA § 50-21-24 (8). White now appeals, arguing that the trial court erred in finding the DOT immune because (1) negligent reliance on a DOT-owned right-of-way book would waive the State’s sovereign immunity, and (2) the DOT’s assertion before the accident that the tree was on state property resulted from a negligent or inadequate inspection of the right-of-way, waiving the State’s immunity. After review, we conclude that there was evidence presented in this case to enable the trial court to find that the claims against the DOT were barred by sovereign immunity, and under the any evidence rule, the trial court’s order will not be reversed absent an abuse of discretion. Finding no such abuse of discretion, we affirm the trial court’s order granting summary judgment to the DOT on sovereign immunity grounds. The claims against Baxter remain pending.

The Georgia Constitution authorizes the legislature to waive the state’s sovereign immunity Ga. Const. of 1983, Art. I, Sec. II, Par. IX (a) and (e). The GTCA, OCGA § 50-21-20 et seq., declares the public policy of this state to be “that the state shall only be liable in tort actions within the limitations” set out in the Act. OCGA § 50-21-21 (a). This waiver of sovereign immunity is subject to various exceptions. See OCGA § 50-21-24. At issue here is the exception for loss resulting from inadequate or negligent inspections of property not owned by the State. OCGA § 50-21-24 (8). That exception provides:

The state shall have no liability for losses resulting from... [ijnspection powers or functions, including failure to make an inspection or making an inadequate or negligent inspection of any property other than property owned by the state to determine whether the property complies with or violates any law, regulation, code, or ordinance or contains a hazard to health or safety[.J

OCGA § 50-21-24 (8).

Any suit brought to which an exception applies is subject to dismissal pursuant to OCGA § 9-11-12 (b) (1) for lack of subject matter jurisdiction. Moreover, the party seeking to benefit from the waiver of sovereign immunity has the burden of proof to establish waiver. We review the trial court’s pre-trial ruling on factual issues necessary to decide the OCGA § 9-11-12 (b) (1) motion under the any evidence rule. (Citation omitted.) Diamond v. Dept. of Transp., 326 Ga.App. 189, 190 (1) (756 SE2d 277) (2014); see also Dept. of Transp. v. Kovalcik, 328 Ga. App. 185, 186 (761 SE2d 584) (2014).

In this case, the evidence shows that Tommy Baxter owned the land adjacent to the relevant stretch of Highway 113, which he received as a gift from his parents. Sometime in 2011, Baxter contacted the DOT about two 70-foot sweet gum trees that were located near the end of his driveway and possibly within the DOT’s right-of-way. Baxter believed the trees were diseased due to a weak point in the trunk, and branches were hanging over the road. Baxter spoke with a DOT employee to express his concern that the leaning trees could fall into the roadway. DOT employee Kevin Law came out to inspect the trees and determine their location relative to the right-of-way. Law checked his right-of-way book, which estimated that the right-of-way was 50 feet in either direction of the centerline. Using his wheel measure, Law determined that the trees were 48 feet from the center line of the road, making them “just barely” inside what he thought was the DOT’s 50-foot right-of-way. Nevertheless, Law stated that the DOT would not provide preventative maintenance or remove them until the trees fell.

In June 2012, one of the trees fell into the road, striking a car. Fortunately, no one was injured. The debris from that incident was not removed following that accident. On May 2, 2013, Harry was driving down Highway 113 when the remainder of the tree fell, striking his car and killing him.

A title search subsequently showed that the deed transferring the property from the original owner to Baxter’s parents identified an 80-foot right-of-way (i.e., 40 feet each side from the center line). Robert Cagle, a land surveyor and DOT employee, confirmed that the deed specified an 80-foot right-of-way. Cagle further confirmed that the tree at issue was located 48.1 feet from the centerline of the road. Both the property description in Baxter’s security deed, and a prior survey conducted during the approval for a construction loan, however, showed a 100-foot right-of-way. Baxter also submitted an affidavit in which he stated that the survey found iron pins placed at the edges of the property. The iron pins were located more than 10 feet away from wood stakes marking the 40-foot right-of-way

1. White argues that the trial court erred by ignoring the DOT right-of-way book’s estimate that the right-of-way was 50 feet and that the DOT was negligent in inspecting its own property We disagree.

Here, the evidence showed that the initial deed identified a 40-foot right-of-way easement to the DOT. Cagle, the DOT employee and surveyor who measured the distance between the base of the diseased trees and the centerline of the roadway, determined that the tree was about 8.1 feet beyond that easement. Based on this evidence, the trial court concluded that the tree was not on the DOT’s right-of-way and, therefore, the DOT could not be liable for any negligent inspection of Baxter’s property or the refusal to remove the tree. Although other evidence indicated that the right-of-way might have been 50 feet, placing the tree inside the DOT’s right-of-way, the trial court rejected this evidence and, under the any evidence test, we are constrained to affirm the trial court’s factual findings that the right-of-way was 40 feet. Diamond, supra, 326 Ga. App. at 190 (1). Accordingly, in light of the trial court’s factual findings, the trial court did not err when it dismissed the claims against the DOT based on sovereign immunity.

2. White next argues that the State was not entitled to immunity because it negligently relied on a State-owned right-of-way book. In light of our conclusion in Division 1, we need not address this issue. The trial court’s order dismissing the complaint is affirmed.

Decided June 27, 2016

Cert, applied for.

Greer Tisinger, LLC, Jon L. Greer, for appellants.

Samuel S. Olens, Attorney General, Robert L. Bunner, Senior Assistant Attorney General; Downey & Cleveland, Sean L. Hynes, for appellees.

Judgment affirmed.

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

       Defendant Tommy Baxter testified that he considered it to be two trees that had split off from a single stump. By the time of the accident in this case, one portion of the tree had fallen, leaving one remaining tree.

       The State also moved for summary judgment, although the trial court’s order appears to conflate the two motions and thus we do not consider White’s enumeration of errors to waive a challenge to the grant of summary judgment.

       Law did not remember telling Baxter that the trees were in the DOT’s right-of-way, or that the DOT would not do anything until the trees fell. Law also did not remember the measurement showing that the trees were inside the right-of-way. Law further testified that he could not tell if the trees were diseased.

       The record does not show whether any DOT personnel conducted an investigation after the 2012 accident, and Baxter testified that he did not contact the DOT again at that time.


author: BARNES, Presiding Judge.

text:
    A16A0174, A16A0175.
    LEGACY ACADEMY, INC. et al. v. DOLES-SMITH ENTERPRISES, INC. et al.; and vice versa.
    (789 SE2d 194)
   BARNES, Presiding Judge.

These companion appeals from a jury verdict arise out of a dispute between a franchisor of daycare businesses and its franchisee. The franchisor was Legacy Academy, Inc., (“Legacy”) owned by Melissa and Franklin Turner (collectively, the “Legacy Parties”). The franchisee was originally GMI Smith, LLC, and later Doles-Smith Enterprises, Inc., both of which were owned by Michele Doles-Smith and Gary Smith (collectively, the “DSE Parties”). Alleging that false and misleading information had been provided to them when they entered into the franchise agreement, the DSE Parties sued the Legacy Parties and asserted multiple claims, including claims for negligent misrepresentation and negligence under OCGA § 51-1-6 for the breach of duties imposed by federal franchise regulations. The Legacy Parties answered, denying liability, and Legacy asserted counterclaims for lost royalties, lost advertising fees, and attorney fees.

Following a trial, the jury returned a verdict in favor of the DSE Parties on their claims for negligent misrepresentation and negligence and in favor of Legacy on its counterclaims for lost royalties and lost advertising fees. The jury returned a verdict in favor of the DSE Parties on Legacy’s counterclaim for attorney fees. The parties now appeal from the final judgment entered on the jury verdict, challenging the trial court’s rulings on their motions for directed verdict and judgment notwithstanding the verdict (“j.n.o.v.”) made during the course of the proceedings.

In Case No. A16A0174, the Legacy Parties contend that the trial court erred in denying their motions for directed verdict and j.n.o.v. on the DSE Parties’ claims for negligent misrepresentation and negligence under OCGA § 51-1-6. Additionally, Legacy contends that the trial court erred in denying its motion for directed verdict on its counterclaim for attorney fees. As explained below, because the DSE Parties failed to prove that they suffered any out-of-pocket economic damages as a result of the alleged misrepresentations, the trial court erred in denying the Legacy Parties’ motions for directed verdict and j.n.o.v. on the DSE Parties’ claims for negligent misrepresentation and negligence. In contrast, the trial court committed no error in denying Legacy’s motion for directed verdict on its counterclaim for attorney fees.

In Case No. A16A0175, the DSE Parties cross-appeal from the judgment, contending that the trial court erred in denying their motions for directed verdict and j.n.o.v. on Legacy’s counterclaims for lost royalties and lost advertising fees. For the reasons discussed below, the trial court committed no error in denying the DSE Parties’ motions for directed verdict and j.n.o.v. on these counterclaims.

“On appeal from the denial of a motion for a directed verdict or for j.n.o.v., we construe the evidence in the light most favorable to the party opposing the motion, and the standard of review is whether there is any evidence to support the jury’s verdict.” (Citation and punctuation omitted.) Redmon v. Daniel, 335 Ga. App. 159, 160 (779 SE2d 778) (2015). So viewed, the evidence shows that in 2006, the Smiths spoke with several potential franchisors, including Legacy, about purchasing a daycare center franchise to operate in South Fulton County. As part of those discussions, the Turners, who owned and operated Legacy, provided the Smiths with a Franchise Offering Circular (the “Offering Circular”) for prospective Legacy daycare franchisees in September 2006. Among other things, the Offering Circular contained disclosures about the litigation history of Legacy and a “Three Year Pro-Forma Statement of Cash Flows” that included projections of potential gross revenues and net profits for a Legacy daycare franchise in its first three years of operation.

After reviewing the Offering Circular, the Smiths decided to purchase a Legacy daycare franchise and formed GMI Smith, LLC (“GMI”), for that purpose. On November 6, 2006, GMI entered into a franchise agreement with Legacy that incorporated the representations made in the Offering Circular. Under the terms of the franchise agreement, GMI paid an initial franchise fee of $40,000 to Legacy GMI also agreed to pay Legacy five percent of its gross monthly revenue as royalty fees and one percent of its gross monthly revenue as advertising fees over the term of the franchise agreement, which was twenty-five years with the possibility of renewal. Pursuant to the franchise agreement, the Smiths personally guaranteed the prompt payment and performance of GMI’s financial obligations to Legacy

There were no existing Legacy daycare franchises in Fulton County, and the franchise agreement provided that the construction and development of GMI’s daycare center would be performed by Legacy’s affiliate owned by Mr. Turner, Commercial Contractors Enterprises, Inc. To that end, GMI agreed to pay $2,650,000 to Commercial Contractors for the purchase of the land for the daycare center and its construction and furnishing with equipment. The construction agreement was financed with two bank loans. The Smiths also incurred an additional $200,000 in personal loan obligations on their home and other family property to pay the interest on the two bank loans until the daycare center became operational.

The daycare center opened for business in June 2008. By that time, the franchise agreement had been amended to substitute a second company formed by the Smiths, Doles-Smith Enterprises, Inc. (“DSE”), as the franchisee. GMI continued to own the land where the daycare center was located, while DSE took over the operations of the daycare business. DSE struggled financially in its daycare operations and suffered net losses in 2009, 2010, and 2011. As a result of its financial troubles, DSE stopped paying Legacy monthly royalties and advertising fees after March 2011.

In late 2011 and early 2012, the Smiths learned of problems between Legacy and its other franchisees and became concerned that the Offering Circular had contained inaccurate information. Ultimately, in August 2012, DSE sent a letter to Legacy stating that DSE was terminating the parties’ franchise relationship upon discovering false and misleading information in the Offering Circular. DSE removed all indicia of Legacy affiliation from the daycare center and continued its daycare operations under a different name. After terminating its relationship with Legacy and changing its director and curriculum, DSE made a net profit in 2012.

Contending that false information had been provided to them when they entered into the franchise agreement, the DSE Parties filed this lawsuit against the Legacy Parties. In their complaint, as amended, the DSE Parties alleged that the representations in the Offering Circular about Legacy’s litigation history and the projected cash flow of its franchises were materially false and misleading and violated the Federal Trade Commission’s “Disclosure Requirements and Prohibitions Concerning Franchising and Business Opportunity Ventures Rule,” 16 CFR § 436.1 et seq. (the “FTC Franchise Rule”), which had been in effect when the franchise agreement was signed in November 2006. Based on the alleged misrepresentations in the Offering Circular, the DSE Parties asserted, among other things, claims for negligent misrepresentation and for negligence under OCGA § 51-1-6 for the breach of duties imposed by the FTC Franchise Rule. The DSE Parties also asserted a claim for rescission but later withdrew it.

The Legacy Parties answered, denying liability for any alleged misrepresentations. Additionally, Legacy asserted counterclaims against DSE and the Smiths for breach of the franchise agreement, seeking recovery of lost royalties and advertising fees, and for attorney fees.

A jury trial was conducted on the parties’ claims and counterclaims over several days in February 2015. After hearing all of the evidence, the jury found in favor of the DSE Parties on their claims for negligent misrepresentation (awarding $350,000 in damages) and negligence under OCGA § 51-1-6 (awarding $40,000 in damages). The jury found in favor of Legacy on its breach-of-contract counterclaim for lost royalties and lost advertising fees (awarding $46,300 in damages). The jury declined to award attorney fees to Legacy. The trial court entered final judgment on the jury’s verdict, resulting in these appeals in which the parties challenge the trial court’s denial of their motions for directed verdict and j.n.o.v. on their various claims and counterclaims.

Case No. A16A0174

1. The Legacy Parties contend that the trial court erred in denying their motions for directed verdict and j.n.o.v. on the DSE Parties’ negligent misrepresentation claim because the DSE Parties failed to prove any out-of-pocket economic damages proximately resulting from the alleged misrepresentations contained in the Offering Circular. We agree.

Proof of “actual economic loss proximately resulting from the defendants’ negligent misrepresentation” is an essential element of a negligent misrepresentation claim. (Citation and punctuation omitted.) Newitt v. First Union Nat. Bank, 270 Ga. App. 538, 547 (5) (607 SE2d 188) (2004). Thus, absent evidence that the plaintiff suffered actual economic damage as a proximate result of the alleged misrepresentation, the claim fails as a matter of law. Id.

The Restatement (Second) of Torts § 552B addresses economic damages for negligent misrepresentation and adopts an out-of-pocket standard of recovery:

The damages recoverable for a negligent misrepresentation are those necessary to compensate the plaintiff for the pecuniary loss to him of which the misrepresentation is a legal cause, including (a) the difference between the value of what he has received in the transaction and its purchase price or other value given for it; and (b) pecuniary loss suffered otherwise as a consequence of the plaintiff’s reliance upon the representation.

Subsection (a) of Restatement § 552B provides an out-of-pocket measure of direct damages, while subsection (b) allows for additional consequential damages proven by the plaintiff. See Atlando Holdings v. BDO Seidman, 290 Ga. App. 665, 666 (660 SE2d 463) (2008).

Our Supreme Court has adopted Restatement § 552B as the proper measure of economic damages in negligent misrepresentation cases. See BDO Seidman v. Mindis Acquisition Corp., 276 Ga. 311, 311-312 (1) (578 SE2d 400) (2003). As the Supreme Court noted in BDO Seidman , “[t]he out-of-pocket measure of damages is consistent with Georgia’s general measure of damages in negligence cases, which seeks to place the injured party in the same place it would have been had there been no injury or breach of duty.” Id. at 312.

Notably, as they concede on appeal, the DSE Parties did not introduce any evidence at trial, expert or otherwise, of the difference between the purchase price that they paid for the Legacy franchise and the value of the franchise actually sold to them in light of the alleged misrepresentations in the Offering Circular. In other words, the DSE Parties presented no evidence of any out-of-pocket direct damages resulting from the Legacy Parties’ alleged misrepresentations (i.e., damages under subsection (a) of Restatement § 552B). Instead, they sought only to prove consequential damages proximately resulting from the alleged misrepresentations (i.e., damages under subsection (b) of Restatement § 552B).

On appeal, the DSE Parties argue that the following evidence established their consequential damages under subsection (b) of Restatement § 552B: (a) testimony that the Smiths paid the initial $40,000 franchise fee to Legacy and incurred $200,000 in personal debt obligations to pay the interest on GMI’s two bank loans until the daycare center became operational; (b) testimony that the Smiths lost their life savings in keeping the daycare center operational; and (c) testimony that the Smiths paid $48,000 for a second bus for the daycare center and that Mrs. Doles-Smith gave up more lucrative employment to manage the daycare business. We will address these categories of alleged consequential damages each in turn.

(a) At trial, Mr. Smith testified that the Smiths paid the $40,000 franchise fee to Legacy when they signed the franchise agreement on behalf of GMI. Mr. Smith also testified that the Smiths took out $200,000 in personal loans on their home and other family property to pay the interest on the two bank loans for the purchase transaction until the daycare center was open for business. The $40,000 franchise fee and $200,000 in personal debt obligations, however, were not recoverable as consequential damages for the alleged negligent misrepresentations contained in the Offering Circular.

Consequential damages are defined as “[l]osses that do not flow directly and immediately from the injurious act but that result indirectly from the act.” Black’s Law Dictionary (10th ed. 2014). See OCGA § 51-12-3 (distinguishing direct from consequential tort damages). Thus, “[cjonsequential damages are losses ‘not inherent in the nature of the transaction.’ ” Standard Chartered PLC v. Price Waterhouse, 945 P2d 317, 347 (Ariz. Ct. App. 1996), quoting Restatement (Second) of Torts § 549 cmt. a. Rather, consequential damages are additional expenditures incurred by a plaintiff in reliance on a misrepresentation that otherwise would not have been incurred as part of the underlying transaction. See id.; Clearview Concrete Products Corp. v. S. Charles Gherardi, Inc., 88 AD2d 461, 468 (N.Y. App. Div. 1982).

Here, in seeking to recover the $40,000 franchise fee and $200,000 in personal debt obligations, the DSE Parties were attempting to recover part of the purchase price that they paid for the Legacy daycare franchise and part of the costs of funding the purchase transaction. But the purchase price and costs of funding the purchase were expenditures inherent in the underlying purchase transaction rather than additional, indirect expenditures incurred as a consequence of the alleged misrepresentations in the Offering Circular. Accordingly, the $40,000 franchise fee and $200,000 in personal debt obligations were not recoverable as consequential damages as a matter of law. See Standard Chartered PLC, 945 P2d at 347-348 (costs of funding the underlying purchase were not consequential damages that were recoverable as part of a negligent misrepresentation claim).

Indeed, awarding consequential damages in the amount of the purchase price and other costs inherent in the underlying purchase of a franchise “would be tantamount to putting [a franchisee] into the position [it] would be in if the transaction with [the franchisor] had never taken place.” Massey, Inc. v. Moe’s Southwest Grill, No. 1:07-CV-0741-RWS, 2015 WL 438513, at *22 (N.D. Ga. Feb. 3, 2015). Restoring the parties to their original status, including return of the purchase price, is the goal of rescission. See Eller v. McMillan, 174 Ga. 729, 732 (163 SE 910) (1932) (“When a contract is rescinded, the parties are not to be left where the rescission finds them. The original status must be restored, or an equivalent therefor must be provided in the contract or furnished by the law.”); Mitchell v. Backus Cadillac-Pontiac, Inc., 274 Ga. App. 330, 334 (1) (b) (618 SE2d 87) (2005) (“If a purchaser has promptly restored the subject of the contract to the seller, or offered to do so, his action is one for rescission at law and he is entitled to recover as restitution the purchase price actually paid by him.”).

However, the DSE Parties withdrew their claim for rescission, and they cannot now pursue a remedy in the nature of a rescission of that agreement through the guise of consequential damages. See Massey, Inc., 2015 WL 438513, at *22 (damages for lost investment could not be recovered for alleged misrepresentation by franchisor, where franchisee had not properly rescinded the franchise agreement, and awarding those damages to franchisee would in essence be a rescission). The $40,000 franchise fee and $200,000 in personal debt obligations therefore do not represent consequential damages and could not support the jury’s award of damages on the DSE Parties’ negligent misrepresentation claim.

(b) Mr. Smith testified that the Smiths “depleted [their] savings” and liquidated their stock and retirement accounts to pay for operational losses sustained by the daycare center over the years. Mr. Smith was unable to specify in any greater detail the amount of savings lost, and the DSE Parties did not offer any evidence further demonstrating how the loss of the Smiths’ savings was tied to the alleged misrepresentations in the Offering Circular.

“Where a party sues for damages, he has the burden of proof of showing the amount of loss in a manner in which the jury . . . can calculate the amount of the loss with a reasonable degree of certainty.” (Citation and punctuation omitted.) Tucker Nursing Center v. Mosby, 303 Ga. App. 80, 82 (1) (692 SE2d 727) (2010). Damages cannot be left to “speculation, conjecture, and guesswork.” (Citations and punctuation omitted.) Hospital Auth. of Charlton County v. Bryant, 157 Ga. App. 330, 331 (2) (277 SE2d 322) (1981). Mr. Smith’s testimony regarding the loss of the Smiths’ savings was simply too vague and would have required the jury to resort to speculation and guesswork in awarding damages. His testimony thus did not provide a basis for the recovery of consequential damages in this case.

(c) Mr. Smith testified that the Smiths paid $48,000 for a second bus for the daycare center and that Mrs. Doles-Smith gave up outside employment in which she made approximately $60,000 in salary in 2006 and approximately $100,000 in salary in 2007 to work at the daycare for a minimal salary But the DSE Parties presented no evidence that the $48,000 bus expense or Mrs. Doles-Smith’s lost salary were a consequence of the Smiths’ reliance on the alleged misrepresentations in the Offering Circular. Rather, Mr. Smith testified that the Smiths paid $48,000 for a second bus because the Smiths had committed the daycare center to providing before- and after-school pickup of children at several elementary schools, and Legacy would not provide funds to purchase a second bus. Mr. Smith further testified that Mrs. Doles-Smith left her prior lucrative jobs to work at the daycare because the Smiths believed that Legacy required at least one of the franchisee owners to work on-site and because working at a daycare center was Mrs. Smith’s “dream” job. This testimony makes clear that neither the bus expense nor lost salary proximately resulted from the alleged misrepresentations in the Offering Circular and thus could not be recovered as consequential damages under subsection (b) of Restatement § 552B.

The DSE Parties argue, however, that the jury could have found that the Legacy Parties misrepresented the number of buses the franchise would receive and misrepresented that one of the franchise owners would have to work at the franchise location, and that these separate negligent misrepresentations, apart from the Offering Circular, could have provided an alternative basis for the jury to award damages based on the bus expense and lost salary. We are unpersuaded.

The DSE Parties’ complaint as amended did not base the negligent misrepresentation claim on any alleged misrepresentations regarding the number of daycare center buses or a franchisee work requirement. While pleadings may be deemed amended to conform to the evidence presented at trial, see OCGA § 9-11-15 (b), the evidence did not support an award of damages predicated on the DSE Parties’ alternative theory of negligent misrepresentation.

The Offering Circular expressly stated that franchisees might incur between $1,500 and $80,000 in expenses for “vehicles” and were “not required to participate personally in the direct operation of [their] Legacy Academy for Children Development Center.” And the franchise agreement, which incorporated the representations in the Offering Circular, contained an “Entire Agreement” clause:

Franchisees acknowledge that this agreement and the other documents and agreements contemplated herein, constitute the entire agreement of the parties with respect to the matters contained herein. This Agreement terminates and supersedes any prior agreement between the parties concerning the same subject matter.

“An entire agreement clause operates as a disclaimer, establishing that the written agreement completely and comprehensively represents all the parties’ agreement,” and thus purchasers like the DSE Parties are “barred from claiming that [they] relied on an alleged misrepresentation not contained within the agreement.” (Citation and punctuation omitted.) Savage v. KGE Assoc. Ltd. Partnership, 260 Ga. App. 770, 776 (2) (a) (580 SE2d 591) (2003). Hence, the DSE Parties could not show that they reasonably relied on any alleged misrepresentation that they would receive a second bus from Legacy or that Mrs. Doles-Smith had to work at the franchise location, and could not recover any damages predicated on those misrepresentations.

For these combined reasons, the DSE Parties failed to prove that they sustained any economic damages, direct or consequential, based on the alleged negligent misrepresentations made by the Legacy Parties. The trial court therefore erred in denying the Legacy Parties’ motions for directed verdict and j.n.o.v. on the DSE Parties’ negligent misrepresentation claim.

2. The Legacy Parties also contend that the trial court erred in denying their motions for directed verdict and j.n.o.v. on the DSE Parties’ negligence claim under OCGA § 51-1-6 for the violation of duties imposed by the FTC Franchise Rule because the DSE Parties failed to prove any economic damages. The DSE Parties concede that the measure of damages for their negligence claim under OCGA § 51-1-6 is the same standard applicable to their negligent misrepresentation claim. Consequently, for the same reasons discussed supra in Division 1, the DSE Parties failed as a matter of law to establish any economic damages to support their claim for negligence under OCGA § 51-1-6, and thus the trial court should have granted the Legacy Parties’ motions for directed verdict and j.n.o.v. on this claim as well.

3. Legacy contends that the trial court erred in denying its motion for directed verdict on its counterclaim for contractual attorney fees against DSE and the Smiths. According to Legacy, the franchise agreement entitled it to reasonable attorney fees in collecting unpaid royalties and advertising fees from DSE and the Smiths, and Legacy’s two attorneys stated in their place at trial that their fees were $12,500 and $19,670, respectively. Based on its counsel’s statements, Legacy maintains that the trial court should have directed a verdict in its favor on its attorney fees counterclaim in the amount of $32,170 ($12,500 + $19,670). We do not agree.

The determination of the reasonableness and value of attorney fees is for the trier of fact. See SKB Indus. v. Insite, 250 Ga. App. 574, 579 (5) (551 SE2d 380) (2001); Tab Sales v. D & D Distrib., 153 Ga. App. 779, 780 (2) (266 SE2d 558) (1980). And the trier of fact is not bound to the opinion of an attorney regarding the reasonableness and value of his own fees. See Medical Office Mgmt. v. Hardee, 303 Ga. App. 60, 67 (2) (b) (693 SE2d 103) (2010). It follows that the trial court committed no error in declining to direct a verdict in the amount of $32,170 on Legacy’s counterclaim against DSE and the Smiths for contractual attorney fees.

Case No. A16A0175

4. The DSE Parties contend that the trial court erred in denying their motions for directed verdict and j.n.o.v. on Legacy’s breach-of-contract counterclaim seeking to recover lost royalties. According to the DSE Parties, Legacy failed to come forward with sufficient evidence of its lost profits from royalties to allow the jury to calculate damages without resorting to speculation and guesswork. We disagree.

A franchisor’s claim for lost royalties is treated in the same manner as a claim for lost profits. Legacy Academy v. JLK, Inc., 330 Ga. App. 397, 402 (2) (765 SE2d 472) (2014). The rule for recovery of lost profits is well established:

Ordinarily, anticipated profits are too speculative to be recovered, but where the business has been established, has made profits and there are definite, certain and reasonable data for their ascertainment, and such profits were in the contemplation of the parties at the time of the contract, they may be recovered even though they can not be computed with exact mathematical certainty. Nonetheless, to recover lost profits one must show the probable gain with great specificity as well as expenses incurred in realizing such profits. In short, the gross amount minus expenses equals the amount of recovery.

(Citation, punctuation and footnote omitted.) KAR Printing v. Pierce, 276 Ga. App. 511, 511-512 (623 SE2d 704) (2005).

On appeal, the DSE Parties do not dispute that Legacy presented sufficient evidence of its lost gross revenue resulting from the unpaid royalty fees through December 2014. The DSE Parties instead contend that Legacy failed to come forward with sufficient evidence of its expenses and avoided costs to allow the jury to calculate lost profits from royalties with sufficient specificity We are unpersuaded.

At trial, Legacy’s owners, the Turners, testified that Legacy saved no expenses other than a $49 per month web hosting fee and $35 per month in gasoline reimbursement once DSE stopped operating as a Legacy daycare franchise. Mrs. Turner explained that Legacy’s other expenses remained fixed even after DSE terminated its franchise because Legacy still paid the same salaried staff at its central office to support its franchises, still paid for the same group meetings with its franchisees, and still paid to develop and market its “product” even if one of its franchises ceased operations. Mrs. Turner also explained that with respect to a particular franchise, almost all of Legacy’s expenses are “front loaded” and are incurred when the franchise first becomes operational because at that point Legacy provides the franchisee with its “complete package of how to do business as a childcare center” that the franchisee then implements.

Our standard of review requires us “to construe the evidence with every inference and presumption in favor of upholding the verdict, even where the evidence is in conflict,” and “so long as there is some evidence to support the jury’s verdict, it must be upheld on appeal.” Turnage v. Kasper, 307 Ga. App. 172, 178-179 (1) (704 SE2d 842) (2010). Applying that standard, we conclude that the Turners’ testimony provided at least some evidence of avoided costs and expenses and authorized the jury, as the trier of fact, to calculate the amount of lost profits from royalties with reasonable certainty

It is true, as the DSE Parties emphasize, that the jury heard essentially the same evidence as to lost royalties that the trial court did in JLK, where we upheld the trial court’s decision not to award future lost royalties to Legacy in a case involving the same contractual royalty fees provision at issue here. 330 Ga. App. at 402-405 (2). While JLK involved a similar dispute between Legacy and one of its franchisees over lost royalties, JLK is clearly distinguishable from the present case in light of its procedural posture. The trial court in JLK conducted a bench trial, and the court, sitting as the trier of fact, determined that Legacy had failed to sufficiently prove its lost profits from royalties. Id. at 397-398. Thus, the issue on appeal in JLK was whether the trial court’s factual finding as to damages should be affirmed or whether, as Legacy argued, Legacy had established its lost profits for unpaid royalties as a matter of law. In affirming the trial court, we concluded that Legacy “arguably” had failed to prove its lost profits from royalties with reasonable certainty and that, based on the standard of review following a bench trial, there was some evidence to support the trial court’s damages determination. Id. at 405 (2).

Given its different, procedural posture, JLK does not affect the outcome here, where the jury, as the trier of fact, reached a different factual determination regarding damages for lost royalties that was supported by some evidence in the record, a determination that we must accord proper deference. The trial court therefore committed no error in denying the DSE Parties’ motions for directed verdict and j.n.o.v. on Legacy’s counterclaim for lost royalty fees.

5. The DSE Parties also contend that the trial court erred in denying their motions for directed verdict and j.n.o.v. on Legacy’s breach-of-contract counterclaim seeking to recover lost advertising fees. Again, we are unpersuaded.

The franchise agreement provided that franchisees must pay one percent of their gross monthly revenue to Legacy as an advertising fee. At trial, Mrs. Turner testified that the advertising fee paid by its franchisees is used for “general advertising” of the Legacy brand rather than “school-specific advertising.” She further testified that 100 percent of the advertising fees that Legacy collects are used for advertising and marketing expenses and that Legacy derives no profit from the advertising fees.

On appeal, the DSE Parties argue that Legacy could not recover as damages the entire amount of the monthly advertising fee owed under the franchise agreement. According to the DSE Parties, Legacy could only recover some lesser amount representing the diminished value to Legacy’s brand caused by the loss of the fees. Given that Legacy did not present any evidence from which the jury could calculate the diminution in value to Legacy’s brand caused by the loss of the fees, the DSE Parties maintain that they were entitled to a directed verdict or j.n.o.v. on this counterclaim because Legacy failed to prove any recoverable damages. We disagree in light of our decision in JLK, where, in addition to addressing Legacy’s lost royalty fees, we addressed Legacy’s lost advertising fees.

In JLK, we reviewed the same advertising fees provision in Legacy’s franchise agreements at issue here and determined that “the advertising fees require a different, analysis than the royalty fees.” 330 Ga. App. at 405 (3). We explained that “the purpose and expectation of the advertising fee was not an immediate profit to Legacy, but rather an overall enhancement of the Legacy brand per se.” Id. Quoting 24 Williston on Contracts, § 64:2 (4th ed., 2014), we then concluded that

the best measure of the value of the broken promise is the value assigned to it by the parties themselves. Basing damages on an amount equal to what the promisor and especially, the promisee, believed the promise to be worth, reflects better than any other measure the loss caused by the breach. Damages based on protection of the promisee’s expectation interest are not only the most accurate means of measuring loss following a breach of contract but also the most typical measure of recovery granted.

(Punctuation omitted.) JLK, 330 Ga. App. at 405-406 (3).

Under the terms of the franchise agreement, the parties assigned a value to the advertising fee of one percent of a franchisee’s gross monthly revenue, and, based on our reasoning in JLK, that figure could be used to measure the value of DSE’s broken promise to pay monthly advertising fees under the circumstances of this case. Thus, contrary to the DSE Parties’ position, Legacy was not required to calculate how much the loss of the fees diminished its brand, but instead could rely on the value assigned to the fees by the parties themselves — one percent of DSE’s gross monthly revenue — as a basis for its damages. Consequently, the trial court committed no error in denying the DSE Parties’ motions for directed verdict and j.n.o.v. on Legacy’s counterclaim to recover lost advertising fees.

Decided June 9, 2016

Reconsideration denied June 28, 2016.

Gregory, Doyle, Calhoun & Rogers, Charles L. Bachman, Jr., for appellants.

Ichter Kresky & Associates, Cary Ichter, William D. Davis, for appellees.

In summary, in Case No. A16A0174, we conclude that the trial court should have granted the Legacy Parties’ motions for directed verdict and j.n.o.v. on the DSE Parties’ claims for negligent misrepresentation and negligence under OCGA § 51-1-6. In contrast, the trial court committed no error in denying Legacy’s motion for directed verdict on its counterclaim for attorney fees. The final judgment therefore is reversed to the extent that judgment was entered in favor of the DSE Parties on their claims for negligent misrepresentation and negligence, and the case is remanded for reentry of a judgment consistent with this opinion. In Case No. A16A0175, we conclude that the trial court committed no error in denying the DSE Parties’ motions for directed verdict and j.n.o.v. on Legacy’s counterclaims for lost royalties and lost advertising fees, and the judgment is affirmed in that case.

Judgment affirmed in part and reversed in part, and case remanded with direction in Case No. Al 6A0174. Judgment affirmed in Case No. A16A0175.

Boggs and Rickman, JJ., concur.

       Commercial Contractors also was a defendant and a counterclaim-plaintiff in this case, but it is not a party to these appeals.

       The FTC Franchise Rule was amended in 2007. See 72 F. R. 15544, March 30, 2007.

       We note that the DSE Parties could not base their damages simply on the difference between the net-profit projections for a generic Legacy franchise in its first three years of operation that were contained in the Offering Circular and what DSE actually earned during that time period. Awarding damages on that basis would have essentially converted what was a projection of potential cash flow into a guarantee of future cash flow. Furthermore, an award of damages based on the difference between the value of projected earnings and subsequent actual earnings clearly would not be a recovery under the out-of-pocket standard of recovery as defined in subsection (a) of Restatement § 552B.

       Comments a to f of Restatement § 549 are applicable, where relevant, to Restatement § 552B. See Restatement § 552B cmt. a (“The rule stated in this Section applies, as the measure of damages for negligent misrepresentation, the rule of out-of-pocket loss that is stated as to fraudulent misrepresentations in Subsection (1) of § 549. Comments a to f under § 549 are therefore applicable to this Section, so far as they are pertinent.”).

       Given our conclusion in Divisions 1 and 2 that the DSE Parties could not succeed on their claims for negligent misrepresentation and negligence under OCGA § 51-1-6 based on their failure to prove economic damages, we need not address the Legacy Parties’ alternative argument that these claims were barred by the applicable statute of limitation.

       Legacy sought lost royalties through December 2014 rather than for the entire remaining portion of the 25-year term of the franchise agreement.

       As previously noted, the franchise agreement required franchisees to pay Legacy five percent of their gross monthly revenue as royalty fees.

       As with the royalty fees, Legacy sought payment of lost advertising fees through December 2014.