author: Barnes, Presiding Judge. BLACKWELL, Judge,

text:
    A10A2352.
    JIMMY BRITT BUILDER, INC. et al. v. SUNTRUST BANK.
    (706 SE2d 665)
   Barnes, Presiding Judge.

Jimmy Britt Builder, Inc. and its principal, Jimmy O. Britt (collectively, “Jimmy Britt”), appeal from the trial court’s order confirming a foreclosure sale by SunTrust Bank. Jimmy Britt contends that the trial court erred in entering the confirmation order because (1) SunTrust’s appraiser used an “unsubstantiated and irrational discount” in valuing the property and (2) the court based its finding of true market value on an erroneous theory of law. Discerning no error, we affirm.

The record reflects that Jimmy Britt Builder, Inc. obtained a construction loan from SunTrust Bank for the development of two residential lots in the Stonewater Creek subdivision in Hoschton, Georgia (the “Property”). The loan was memorialized in a promissory note and secured by a deed to secure debt granting SunTrust a first priority security interest in the Property. When the loan went into default, SunTrust foreclosed on the Property under the power of sale contained in its deed to secure debt. SunTrust was the only bidder at the foreclosure sale and purchased the Property for $294,485. At the time of the foreclosure sale, the Property was only partially developed: one lot remained vacant, while the other lot contained an uncompleted house. All construction on the house had ceased approximately one year prior to the sale.

SunTrust brought the instant action to confirm the foreclosure sale. A confirmation hearing was conducted in which the primary issue considered by the trial court was the true market value of the Property. No issue existed with regard to the value of the vacant lot, as the parties agreed that the true market value was $30,000, and expert testimony at the hearing supported that value. The parties, however, presented conflicting expert testimony regarding the value of the lot containing the uncompleted house.

SunTrust’s expert, a real estate appraiser with over 13 years of experience who had performed thousands of appraisals over the course of his career, testified that the value of the uncompleted house was $264,485. According to the expert, the house was approximately 80 percent complete and was located in a “rather desolate” subdivision containing 60 vacant lots, 30 completed lots, a few partially completed lots, and a pool and tennis courts that were only partially completed. The uncompleted house also had been vandalized in that thieves had entered and stolen some of the copper pipes. To appraise the uncompleted house, the expert looked at the hypothetical value of the house if it were completed and arrived at a figure of $490,000. The expert then deducted from that figure the costs of completing the house based upon his consultation with two homebuilders. The expert also attempted “to figure out what [the] market is for the home, whether it’s a builder, whether it’s a personal buyer, . . . and the appeal to that market.” As a result of this inquiry, the expert discounted the value of the property by an additional 15 percent for “builder/buyer risk,” which he testified was necessary to take account of the risk involved in a homebuilder stepping in to purchase the house in its condition where another builder had only partially completed the construction. According to the expert, the 15 percent discount was an estimate that came from his conversations with the two homebuilders. After making these deductions from the hypothetical value of the house if completed, the expert arrived at his figure representing his opinion as to the true market value of the uncompleted house.

In contrast, Jimmy Britt’s expert, a real estate appraiser who likewise had extensive experience in the industry, testified that the hypothetical value of the house if it were completed would be $445,000. After speaking with Jimmy Britt, the expert determined that the house was 31 percent incomplete. He then deducted that percentage from the hypothetical value of the house if completed to arrive at a true market value of the uncompleted house of $307,000. Jimmy Britt’s expert did not apply a discount for builder/buyer risk as part of his calculation.

After hearing from the expert appraisers, the trial court concluded that the valuation of the uncompleted house by SunTrust’s expert was more reliable and accurate than that of Jimmy Britt’s expert. The trial court found that the 15 percent discount for builder/buyer risk was appropriate because a buyer would demand a downward adjustment to the price to take account of the risk of purchasing an uncompleted house where construction had ceased for many months and where the house had been abandoned and previously vandalized. Consequently, the trial court confirmed the foreclosure sale, resulting in this appeal.

1. Jimmy Britt contends that SunTrust presented insufficient evidence of the true market value of the uncompleted house because the 15 percent discount for builder/buyer risk was “unsubstantiated and irrational.” As such, Jimmy Britt argues that the trial court should have accorded no weight to the expert’s testimony and declined to confirm the foreclosure sale. We are unpersuaded.

It is true that “[a] trial court cannot confirm a foreclosure sale unless it is satisfied that the property so sold brought its true market value.” (Citation and punctuation omitted.) Statesboro Blues Dev. v. Farmers &c. Bank, 301 Ga. App. 851, 852 (690 SE2d 205) (2010). See OCGA § 44-14-161 (b). But

[v]alue on the date of sale is a factual question to be resolved by the trier of fact. In a proceeding for confirmation of a foreclosure sale of real property, the judge sits as a trier of fact, and his findings and conclusions have the effect of a jury verdict. Where the trial judge, sitting as the trier of the facts, hears the evidence, his finding based upon conflicting evidence is analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it.

(Citation omitted.) Greenwood Homes v. Regions Bank, 302 Ga. App. 591, 592 (692 SE2d 42) (2010). The question is not whether this Court would have found Jimmy Britt or SunTrust’s expert more reliable or accurate in the first instance, “but whether the record contains any evidence to support the findings of the trial court that the property brought its true market value at the foreclosure sale.” (Citation and punctuation omitted.) Id. at 596 (3). See Mundy Mill Dev. v. ACR Property Sues., 306 Ga. App. 730 (703 SE2d 137) (2010); Blue Marlin Dev. v. Branch Banking &c. Co., 302 Ga. App. 120, 122 (1) (690 SE2d 252) (2010).

Although Jimmy Britt questions the means by which SunTrust’s expert arrived at his opinion that the value of the uncompleted house should be discounted 15 percent for builder/buyer risk, the expert testified that his calculation was arrived at based on his consultation with two separate homebuilders. “It is axiomatic that an expert, in utilizing his expertise, may base his opinion as to value upon hearsay.” Hoover &c. Dev. Co. v. Fed. Deposit Ins. Corp., 149 Ga. App. 855, 856 (2) (256 SE2d 140) (1979). See also Boring v. State Bank &c. Co., 307 Ga. App. 93 (2) (704 SE2d 207) (2010). Moreover, it is also clear from the record that the expert arrived at his ultimate valuation after inspecting the uncompleted, vandalized home and assessing the condition of the surrounding subdivision. “An expert need not give reasons for an opinion. But, [where, as here,] the expert does give reasons, and it appears that the opinion is not based on sheer speculation, then this [C]ourt cannot second guess the methodology utilized to reach the opinion.” (Citation and punctuation omitted.) Statesboro Blues Dev., 301 Ga. App. at 853-854. See also Boring, 307 Ga. App. at 96 (2); Peachtree Mtg. Corp. v. First Nat. Bank of Atlanta, 143 Ga. App. 17, 19 (4) (237 SE2d 416) (1977).

Citing to Mallett v. Fulford, 142 Ga. App. 200, 201-202 (2) (235 SE2d 650) (1977), Jimmy Britt argues that the expert’s decision to apply the 15 percent discount lacked “qualitative support” because the expert did not sufficiently explain how he arrived at that specific numerical percentage. Jimmy Britt, however, relies upon the division of Mallet addressing the valuation testimony of the property owner, who was “not qualified as an expert.” Mallett, 142 Ga. App. at 201 (2). “An owner of property may not testify as to his opinion of the value of the property in a single or gross amount without giving his reasons therefor or else showing that he has had an opportunity for forming a correct opinion.” (Citation and punctuation omitted.) Id. See Washington v. Harrison, 299 Ga. App. 335, 340 (2) (682 SE2d 679) (2009). This is because “to express a competent opinion as to the value of an item, a non-expert must show that he has sufficient information upon which to base such an opinion.” (Citation and punctuation omitted.) Waldrop v. State, 231 Ga. App. 164, 165 (498 SE2d 337) (1998). In contrast, as previously noted, an expert witness is not required to explain the basis of his opinion, and we will not question the methodology utilized to reach the opinion unless based upon sheer speculation. See Boring, 307 Ga. App. at 96 (2); States-boro Blues Dev., 301 Ga. App. at 853-854; Peachtree Mtg. Corp., 143 Ga. App. at 19 (4). As such, Mallett, which applied the less deferential standard applicable to the valuation testimony of a lay witness, is inapposite.

Jimmy Britt further argues that the 15 percent discount was illogical because the expert had already incorporated the cost of completing the construction of the house into his appraisal. It is true that the expert included the labor, material, and permit costs associated with completing construction of the house in his valuation, and then incorporated an additional 15 percent discount for builder/buyer risk. But the expert testified that he included the additional discount into his calculations based upon his conversations with the two homebuilders, and he further testified that the uncompleted house was in a desolate, partially built subdivision and had been vandalized once before. This testimony supported the conclusion that there was a risk to stepping in to purchase the house in its condition, over and above the costs associated with the labor, materials, and permits needed for completing the construction. See The Hudson Trio, LLC v. Buckhead Community Bank, 304 Ga. App. 324, 328 (2) (696 SE2d 372) (2010) (tried court did not err in relying on appraiser’s deduction of 13.5 percent for risk and profit, arrived at after appraiser “spoke to investors, developers, and brokers”); Fayette Promenade v. Branch Banking &c. Co., 258 Ga. App. 323, 325-327 (574 SE2d 319) (2002) (trial court did not err in relying on appraiser’s deduction of 15 percent for risk and profit). In any event, whether the valuation methodology of SunTrust’s expert contained errors went to the weight and credibility of the expert’s testimony, matters properly left to the trial court as the trier of fact. See Chamblee Hotels v. Chesterfield Mtg. Investors, 287 Ga. App. 342, 344 (651 SE2d 447) (2007).

Lastly, Jimmy Britt argues that the 15 percent discount for builder/buyer risk was illogical because it “presumes that the buyer of the property would be a developer” and “in the current economic market, the buyer likely would be the end user [who] would not be seeking to make a profit and thus would not carry such a risk.” Jimmy Britt cites to no expert testimony or other evidence in the record to support his assertion that the buyer of an uncompleted house in a partially completed and desolate subdivision would likely be the “end user” (i.e., a private home buyer), and we have found none. Furthermore, attacks upon the underlying assumptions relied upon by an expert appraiser go to the weight and credibility of the testimony and are for the trial court to resolve. See Wilson v. Prudential Indus. Properties, 276 Ga. App. 180, 181 (1) (622 SE2d 890) (2005).

For these combined reasons, and in light of our deferential standard of review, we conclude that the trial court was entitled to rely upon the valuation of the Property by SunTrust’s expert, including the expert’s utilization of a 15 percent discount for builder/buyer risk in valuing the uncompleted house. It follows that the trial court was authorized to find that SunTrust’s winning bid at the foreclosure sale represented the true market value of the Property.

2. Jimmy Britt also maintains that the trial court applied an erroneous legal theory in confirming the foreclosure sale. Specifically, in its confirmation order, the trial court cited Peachtree Mtg. Corp., 143 Ga. App. at 18 (4), for the proposition that “[u]nder Georgia law[,] the price brought at public sale, after proper and lawful advertisement, is prima facie market value of the property sold at a mortgage foreclosure sale, absent anything to indicate that there was chilling of the bid, fraud or the like.” The trial court, however, did not expressly include the additional, qualifying language from Peachtree Mtg. Corp. that an applicant seeking confirmation of a foreclosure sale “may not rely solely on such a prima facie showing; he must introduce evidence showing the value of the property at the time of sale.” Id. Because the trial court’s order did not include this qualifying language, Jimmy Britt argues that the court proceeded under an erroneous legal theory in arriving at the true market value of the Property. We disagree.

The trial court is presumed to have followed the law, Davis v. Bushnell, 245 Ga. App. 221, 223 (537 SE2d 477) (2000), and the confirmation order, when read in its entirety, provides no basis for concluding that the trial court deviated from the law in this case. After citing to Peachtree Mtg. Corp., the trial court went on to discuss the competing expert appraisal testimony of the parties and to explain why the court credited the valuation testimony of Sun-Trust’s expert over that of Jimmy Britt’s expert. As such, it is clear from the order that the trial court did not permit SunTrust to rely solely upon the price obtained at the foreclosure sale to prove true market value. Furthermore, read as a whole, the trial court’s order shows that the court did not confirm the foreclosure sale based upon the theory that Jimmy Britt failed to rebut the prima facie establishment of true market value. Nor does the order reflect that the trial court shifted the burden to Jimmy Britt to prove true market value. Under these circumstances, Jimmy Britt has failed to demonstrate that the trial court applied an erroneous legal theory.

Judgment affirmed.

Blackwell and Dillard, JJ., concur fully and specially.

Decided January 27, 2011.

Webb, Tanner, Powell, Mertz & Wilson, Benjamin A. Joffe, for appellants.

Busch, Slipakoff & Schuh, Mathew A. Schuh, Michael P. Bain, for appellee.

BLACKWELL, Judge,

concurring fully and specially.

For the reasons set forth in my special concurrence in Boring v. State Bank &c. Co., 307 Ga. App. 93 (704 SE2d 207) (2010), I concur fully in the majority opinion.

I am authorized to state that Judge Dillard joins in this special concurrence.

       SunTrust also alleges in its complaint that Britt personally guaranteed repayment of the construction loan.

       On appeal, Jimmy Britt does not challenge the legality of the notice, advertisement, or other procedural aspects of the foreclosure sale.

       Jimmy Britt did not move to exclude the testimony of SunTrust’s expert; did not object at the confirmation hearing to the admissibility of the expert’s testimony; and did not move to strike the expert’s testimony regarding the valuation of the uncompleted house. As Jimmy Britt concedes, the only issue before this Court is the sufficiency of the valuation evidence.

       True market value is “the price that the property will bring when it is offered for sale by one who is not obligated, but has the desire to sell it, and is bought by one who wishes to buy it, but is not under a necessity to do so.” (Punctuation and footnote omitted.) REL and Assocs. v. Fed. Deposit Ins. Corp., 304 Ga. App. 33, 34 (1) (695 SE2d 370) (2010).


source: Caselaw Access Project

author: Ellington, Chief Judge.

license: Public Domain

text:
    A11A0227.
    LONG v. THE STATE.
    (705 SE2d 889)
   Ellington, Chief Judge.

An Athens-Clarke County jury found Anthony Long guilty beyond a reasonable doubt of burglary, OCGA § 16-7-1. Following the denial of his motion for a new trial, Long appeals, contending that the evidence was insufficient and that the trial court erred in admitting evidence of similar transactions, in denying his motion for a mistrial, and in denying his motion for a new trial on the basis of ineffective assistance of counsel. For the reasons explained below, we affirm.

1. Long contends that there was no evidence that he had any intent to commit a felony or theft when he entered the victims’ residence and, therefore, that the evidence was insufficient to convict him of burglary. On appeal from a criminal conviction, the appellate court

view[s] the evidence in the light most favorable to the verdict[,] and an appellant no longer enjoys the presumption of innocence. [The appellate court] determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), and does not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, [the appellate court] must uphold the jury’s verdict.

(Citations omitted.) Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004).

Viewed in the light most favorable to the verdict, the record shows the following. In March 2004, four male University of Georgia students lived at 858 Hill Street in Athens. The house contained many items of value, including a large television, a DVD player, video-game consoles, stereo equipment, and computers. On the afternoon of March 19, 2004, Long parked his bicycle against the house, knocked on the front door and received no answer, walked to the back entrance, removed his shoes, and entered the house. Long walked through the kitchen and the den, where one of the students was asleep on the couch, toward the front door. Another one of the students arrived home from class, entered through the back door, and found Long inside, apparently in the process of locking the front door. The student who had just returned gave Long a few dollars to get him to leave. The victims recognized Long, whom they knew as “Anthony,” from times he had stopped by and asked for money or odd jobs. At trial, the victim who had been sleeping when Long entered and the victim who returned from class both testified that Long did not have their permission to be in the house and that they were frightened by his unauthorized entry. The other two victims, who were away from the house at the time, also testified that Long did not have their permission to be in the house that day.

At trial, the State also offered evidence that, on June 2, 2003, Long was at 190 Wynburn Avenue in Athens asking the male college students who lived there for money, as he had several times before, and that, the following day, the students discovered that a DVD player, a pair of sunglasses, and other items were missing. The day after the students reported the theft, an investigator recovered the sunglasses from Long. One of the students identified Long in a photographic lineup as the person who had been at their house the day before the theft. In addition, the State presented evidence that, on June 6, 2003, a male college student returned to his residence at 195 South Finley Street in Athens after a few days absence when he discovered Long inside without his permission. The victim’s food and alcohol had been consumed, his more valuable personal property had been gathered into one room, and two bicycles were missing. The student positively identified Long in a photographic lineup and in court as the person he had found in his house that day. The three properties, 858 Hill Street, 190 Wynburn Avenue, and 195 South Finley Street, are located within approximately one mile of each other.

Long testified that he went to 858 Hill Street on the date of the alleged burglary to visit a friend named “Matt” who lived there and to ask for work and that he entered only after he heard someone inside say, “Come in.” He testified that his friend’s room was on the first floor, near the front door, and that he had just walked to that room and found that “Matt” was not there when the other student arrived home. Long denied having any intent to commit a theft. In rebuttal, the State called one of the victims, who was known as “Matt”; he testified that he was not friends with Long, that he had never welcomed Long into his home, and that his room was on the second floor, not on the first floor near the front door, as Long claimed.

Whether a person who is accused of burglary entered another’s residence or other building with the intent to commit a theft

is a matter for the jury to say, under the facts and circumstances proved. As a general rule the state must, of necessity, rely on circumstantial evidence in proving intent. And the fact that the defendant may have failed in accomplishing his apparent purpose does not render a finding of burglary improper.

(Citation and punctuation omitted.) Nelson v. State, 277 Ga. App. 92, 95 (1) (a) (625 SE2d 465) (2005). In particular, “[a] jury may infer that a defendant intended to commit theft based on the presence of valuables inside the premises, when the jury concludes that there is no other apparent or credible motive for the defendant’s unauthorized entry.” (Citations and punctuation omitted.) Id. A jury may reject a defendant’s explanation for his unauthorized entry “where that explanation is inconsistent with other direct and circumstantial evidence.” (Citation and punctuation omitted.) Id. at 96 (1) (a).

In this case, the evidence, including the testimony of all four residents of 858 Hill Street that Long’s entry on March 19, 2004, was unauthorized, evidence establishing the presence of valuables in the house, and evidence that contradicted Long’s innocent explanation for his entry, authorized the jury to infer that Long intended to commit a theft when he entered the victims’ house. Accordingly, the evidence was sufficient to support Long’s burglary conviction. Grif fith v. State, 286 Ga. App. 859, 861 (1) (650 SE2d 413) (2007); Nelson v. State, 277 Ga. App. at 96 (1) (a).

2. Long contends that the trial court erred in admitting the evidence of the two prior burglaries as similar transactions. See Division 1, supra. Although the conduct of an accused in other transactions is generally irrelevant and inadmissible, evidence of similar transactions may be admissible, contingent upon three affirmative showings:

(1) the evidence must be admitted for a proper purpose; (2) there must be sufficient evidence to establish the accused committed the independent act; and (3) there must be a sufficient connection or similarity between the independent offense and the crime charged so that proof of the former tends to prove the latter.

(Citation omitted.) Gardner v. State, 273 Ga. 809, 810 (2) (546 SE2d . 490) (2001), citing Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991).

When reviewing the trial court’s factual findings regarding whether the State satisfied the three-prong test, we apply the clearly erroneous standard. Further, the decision to admit similar transaction evidence which satisfies the three-prong test is within the trial court’s discretion and will not be disturbed absent an abuse of that discretion.

(Citations omitted.) Flowers v. State, 269 Ga. App. 443, 444 (1) (604 SE2d 285) (2004).

(a) First, with regard to the burglary of 190 Wynburn Avenue, when the victim’s sunglasses were taken, Long contends the State failed to carry its burden of proving that he was the perpetrator of that offense. This argument lacks merit, as there was evidence that Long was in the house on the day before the burglary was discovered and was found wearing the stolen sunglasses two days later. Ryles v. State, 216 Ga. App. 462, 464 (1) (454 SE2d 639) (1995) (“Proof beyond a reasonable doubt is not required as to the proof that the defendant was the perpetrator of an independent similar crime[,] and evidence, like that presented in this case, that defendant was in recent possession of property stolen in a burglary is sufficient to raise an inference that defendant was the one who stole the goods.”) (citation and punctuation omitted).

(b) Next, with regard to the burglary of 195 South Finley Street, when the victim’s food and alcohol were consumed and some personal property was destroyed, Long contends that the State failed to show that the offense was sufficiently similar to the charged offense to be admissible. The evidence showed, however, that in each instance Long became acquainted with male college students by asking for money or odd jobs and later, when the victims’ house appeared to be vacant, entered without authority to appropriate the victims’ goods. Further, the burgled houses were within one mile of each other. The trial court’s finding that the offenses satisfied the similarity requirement was not clearly erroneous. Ryles v. State, 216 Ga. App. at 464 (1).

3. Long contends that the prosecutor misled the jury when she stated during closing argument that, because there were valuables in the victims’ house and Long entered the house without permission, Georgia law permitted the jury to presume that Long had the intent to commit a theft. Long contends that the trial court erred in failing either to instruct the jury to disregard the statement, to give a curative instruction that the jury could infer such an intent from those circumstances but could not presume intent, or to grant Long’s motion for a mistrial.

In passing on a motion for mistrial because of an improper statement of a prosecutor, the trial judge may take such action as in his judgment will prevent harm to the defendant, and a new trial will not be granted unless it is clear that such action failed to eliminate the statement from consideration by the jury.

(Citations and punctuation omitted.) Chancey u. State, 256 Ga. 415, 435 (10) (349 SE2d 717) (1986).

The record shows that, after Long’s attorney moved for a mistrial, the prosecutor stated that she would correct her misstatement and use the word “infer” instead of “presume,” and she immediately did so. Later, during the charge on the law, the trial court instructed the jury:

A person commits the offense of burglary when without authority that person enters any building or dwelling place of another with the intent to commit a theft. . . . Intent to commit a theft is an essential element and must be proved by the State beyond a reasonable doubt. . . . You may infer an intent to steal where the evidence shows an unlawful entry into the building or dwelling place of another where items of some value are present, stored, or kept inside, and where there is no other apparent alleged motive for the entry. Whether or not you make such an inference is a matter solely within your discretion.

Given the prosecutor’s immediate restatement of the principle of law using the proper language, and given the trial court’s complete and correct instructions to the jury, we conclude that the trial court took action sufficient to prevent the prosecutor’s misstatement from misleading the jury. SeeFreels v. State, 195 Ga. App. 609, 611 (2) (394 SE2d 405) (1990) (Error may result if an attorney’s misstatement of the law during argument “may tend to mislead the jury.”). Consequently, the trial court did not abuse its discretion in denying Long’s motion for a mistrial. Chancey v. State, 256 Ga. at 435 (10).

4. Long contends that his trial counsel worked on his case and appeared for the second day of trial while under the influence of alcohol to the extent that Long was effectively deprived of any assistance of counsel during critical stages of the trial. Consequently, Long contends, the trial court erred in denying his motion for a new trial on the basis of ineffective assistance of counsel.

In order to prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984)[.] The criminal defendant must overcome the strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct. [As the appellate court, we] accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.

(Citations and punctuation omitted.) Robinson v. State, 277 Ga. 75, 75-76 (586 SE2d 313) (2003).

The record shows that, on the second day of trial, Long’s counsel was cross-examining an investigator when, outside the presence of the jury, the investigator told the trial judge that counsel’s “breath reek[ed] of alcohol.” Counsel responded to this by admitting that he had had a drink before going to bed the previous evening but stated that he was clear-headed and sober that morning and that his judgment was not impaired. Long volunteered that he wanted his attorney to continue to represent him. The trial judge evaluated counsel’s performance that morning and found that there were no deficiencies in how he was cross-examining the investigator. The trial judge adjourned the trial until the following day.

Decided January 27, 2011.

Lavender, Baker & Slider, John H. Baker, for appellant.

Kenneth W. Mauldin, District Attorney, Todd R. Newland, Assistant District Attorney, for appellee.

Long failed to show that his trial counsel was actually intoxicated on the second morning of the trial. See Laymon v. State, 261 Ga. App. 488, 490 (583 SE2d 165) (2003) (The appellant’s claim of ineffective assistance of counsel failed because her claim that her attorney was under the influence of alcohol was supported by nothing more than speculation.). Nothing in the record shows that the trial court erred in finding that there were no deficiencies in counsel’s performance that morning. Furthermore, Long failed to show that his counsel’s performance after consuming alcohol affected the outcome of his trial, and, therefore, he failed to satisfy his burden of showing prejudice. Id.

Judgment affirmed.

Miller; P. J., and Doyle, J., concur.

       OCGA § 16-7-1 (a) provides that “[a] person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another!.]”

       This recitation of facts is based in part on evidence which Long contends the trial court erroneously admitted. We have rejected Long’s evidentiary challenges for the reasons discussed in Division 2, infra.

       See OCGA § 24-2-2 (“The general character of the parties and especially their conduct in other transactions are irrelevant matter unless the nature of the action involves such character and renders necessary or proper the investigation of such conduct.”).


author: Mikell, Judge.

text:
    A10A2025.
    WILLIAMS v. THE STATE.
    (705 SE2d 906)
   Mikell, Judge.

Miguel Henri Williams was charged with kidnapping with bodily injury (Count 1), kidnapping (Count 2), aggravated sexual battery (Count 3), two counts of aggravated assault (Counts 4 and 5), possession of cocaine with intent to distribute (Count 6), two counts of possession of controlled substances (Counts 7 and 8), and obstructing or hindering a law enforcement officer (Count 9). After a jury trial, Williams was convicted on Count 1 of kidnapping as a lesser included offense and on Counts 4 through 9. He was acquitted on the remaining counts (Counts 2 and 3). On appeal, Williams challenges the sufficiency of the evidence as to the kidnapping and obstruction charges. He also argues that the trial court incorrectly instructed the jury on the asportation element of kidnapping and failed to merge the aggravated assault in Count 4 with Count 1. We find no error and affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and an appellant no longer enjoys the presumption of innocence. This Court determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), and does not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the state’s case, we must uphold the jury’s verdict.

Viewed in favor of the verdict, the evidence shows that in August 2007, Chrissy Hafley, the victim, was residing with a friend in a motel in Gwinnett County. While searching for a more permanent living arrangement, Hafley met a man named “Steve,” who told her they could get a place together at the Baymont Inn. Instead, Steve introduced her to Williams, who had a suite at the Baymont Inn. Hafley testified that there were several people in Williams’s suite who were doing drugs and converting powder cocaine to crack cocaine. Hafley admitted that she smoked crack cocaine in Williams’s suite.

Hafley testified that she left the room with a woman named “Tina” and went to another hotel, where she sat on the bed as Tina had sex with a man in the bathroom. Thereafter, they went to another hotel where Tina left Hafley with a Caucasian man. When Tina returned, she told Hafley that they needed to return to the Baymont Inn to retrieve Hailey’s bag from Williams’s suite. When they arrived, the same people, who were described by Hafley as drug dealers, pimps, and prostitutes, were present in the room along with Williams. Hafley testified that her plan was to retrieve her bag and return to the hotel across the street where she had been earlier. However, she was not allowed to leave.

Hafley testified that Lisa Emerson, Williams’s main prostitute, beat her with her fists when she tried to leave. Then, according to Hafley, Williams choked her from behind, hit her, pointed a gun at her back, and dragged her into the bathroom. Hafley further testified that while in the bathroom, Williams explained to her that he was a pimp; that Steve had sold her to him for $500 in exchange for drugs; and that she was not leaving, would smoke crack as instructed, and was going to prostitute for him to repay Steve’s debt. Williams then turned the shower on and instructed Hafley to remove her clothes, bathed her, and inserted his fingers into her vagina without her consent.

Tina and Emerson kept watch over Hailey until the next day. Hailey saw Williams beat Tina with a metal broom, which broke on her back. Hailey drove Williams and Tina around, but Hailey did not try to flee because she was afraid of Williams, as he always carried a gun and told her that if she left, he would find and kill her.

When they returned to the Baymont Inn, Williams sent Hailey and Tina to have sex with a “John.” The man paid Williams for drugs and for sex with Hailey. While spending the night with the “John,” whom she told she had been kidnapped, Hailey voluntarily used crack cocaine and took pills provided to her by Williams. She called 911 the following morning. The police responded and arrested Williams when he returned to pick up Hailey.

Emerson testified that she lived with Williams at the Baymont Inn; that she was a prostitute and that he was her pimp; and that other prostitutes, Tina and Yazman, also lived there; that Williams sold drugs from his room; that Hailey had told her that she was not a prostitute; that she hit Hailey to keep her from leaving; that she saw Williams grab Hafley by the throat and force her into the bathroom; and that she saw a gun in Williams’s waistband when he exited the bathroom.

1. In his first enumeration of error, Williams argues that the evidence did not support his kidnapping conviction under Garza v. State because the state had not established the required element of asportation. In Garza, our Supreme Court ruled that four factors should be assessed to determine whether movement constitutes asportation:

(1) the duration of the movement; (2) whether the movement occurred during the commission of a separate offense; (3) whether such movement was an inherent part of that separate offense; and (4) whether the movement itself presented a significant danger to the victim independent of the danger posed by the separate offense.

Williams argues that the movement in the instant case was incidental to the aggravated assault committed when he used the gun to force Hailey to the bathroom and did not increase the danger to Hailey. We disagree.

The movement of Hailey from one room to another within the hotel room, even though of minimal duration, created an additional danger to her by enhancing Williams’s control over her. Additionally, it was not an inherent part of the aggravated assault. An aggravated assault occurs when a person assaults “[w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” Thus, the aggravated assault was completed when Williams pointed the gun at Hailey and grabbed her around the neck. Here, the asportation occurred after the aggravated assault. Accordingly, this enumerated error fails.

2. Next, Williams argues that the trial court erred when it charged the jury in accordance with the pre-Garza definition of asportation.

At Williams’s trial, the trial court charged the jury as follows on the asportation element of kidnapping:

Ladies and gentlemen, I charge you that to prove abduction, the State must prove the element of asportation. Asportation means carrying away. Only the slightest movement of the victim is required to constitute the necessary element of asportation. There is no minimum amount of time that an alleged victim must be held to constitute kidnapping.

Although the charge given was a correct statement of law at the time of Williams’s trial in August 2008, “under our Supreme Court’s [December] 2008 decision in Garza, the asportation required to support a kidnapping conviction must consist of more than ‘slight movement.’ ” Therefore, the trial court erred in charging the jury that “the slightest movement” was sufficient to support the element of asportation. The issue, however, is whether the error in the charge deprived Williams of a fair trial.

The standard for weighing nonconstitutional error in criminal cases is known as the “highly probable test,” i.e., that it is “highly probable that the error did not contribute to the judgment.” Under that test, a reversal is not required if the evidence of guilt is overwhelming in that there is no reasonable probability that the verdict of the jury would have been different in the absence of this error.

As stated earlier, Hafley and Emerson testified that Williams forced Hafley from the hotel room into the bathroom, which was sufficient evidence of asportation under Garza as discussed in Division 1. We conclude, therefore, that it is highly probable that the charge that the “slightest movement” sufficiently established asportation did not contribute to the judgment.

3. In his third enumeration of error, Williams argues that the trial court erred when it did not merge his conviction for aggravated assault (Count 4) with his conviction for kidnapping (Count 1). The trial court sentenced Williams to fifteen years in prison and five years probation on Count 1 and twenty years of probation on Count 4, to run consecutive to the sentence imposed on Count 1. Williams maintains that the charges should have been merged as a matter of fact. We disagree.

In determining whether there are two separate offenses or one crime is included in the other, Georgia’s courts apply the “required evidence” test. Where the same act or transaction constitutes a violation of two distinct statutory provisions, the required evidence test is whether each provision requires proof of a fact which the other does not. As the Supreme Court of Georgia stated previously, a single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.

In the instant case, the kidnapping conviction was based on forcing Hatley into the bathroom, while the aggravated assault conviction was based on unlawfully assaulting her with a handgun. Kidnapping requires proof of asportation, which aggravated assault does not. The aggravated assault did not require movement or holding the victim against her will. Therefore, the crimes do not merge as a matter of fact.

4. In his last enumerated error, Williams argues that the evidence was insufficient to support the charge of misdemeanor obstruction.

In Count 9 of the indictment, Williams was charged with obstructing or hindering a law enforcement officer because he attempted to spit on an officer. Officer James Fouchia of the Gwinnett County Police Department testified as follows:

[W]hen I undid the belt Mr. Williams raked the back of his throat, as if he was gathering the phlegm off the back of his throat. He brought it to the forefront of his mouth. Mr. Williams had a white crusty foam on the corners of his mouth. And when he was about to spit this collective saliva, it was a white thick foam. I knew exactly what he was in the process of doing, he was going to spit in my face. So I redirected his face away from me and I obtained some restriction from him. He was becoming, he was obstructing me to the point where he did not want to get back into the patrol car.

Misdemeanor obstruction occurs when a person “knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties.” The jury was authorized to believe the officer’s testimony that Williams’s conduct hindered and obstructed the officer in the discharge of his duties. Accordingly, this enumerated error fails as well.

Decided February 1, 2011.

Sharon L. Hopkins, for appellant.

Daniel J. Porter, District Attorney, Carole Cox, Assistant District Attorney, for appellee.

Judgment affirmed.

Smith, P. J., and Adams, J., concur.

       (Citations omitted.) Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004).

       This act was the basis of the aggravated assault charge set forth in Count 5 of the indictment.

       284 Ga. 696 (670 SE2d 73) (2008).

       (Citation omitted.) Id. at 702 (1). Prior to Garza, the law provided that the requirement of asportation was satisfied where there was movement of the victim, however slight. Id. at 698 (1). After Garza, the kidnapping statute was amended by the Georgia legislature. OCGA § 16-5-40. The amendment applies to crimes committed on or after July 1, 2009. Because the crime in this case occurred in August 2007, the amended statute does not apply. Rather, the standard set forth in Garza does.

       See Hill v. State, 298 Ga. App. 677, 679 (1) (680 SE2d 702) (2009); Bryant v. State, 304 Ga. App. 755, 757 (1) (697 SE2d 860) (2010) (evidence established asportation where after grabbing the victim from behind and shoving a metal object into his back, the defendant forced victim from open backyard into the house, placing him in additional danger, isolating him, and exercising further control over him). Compare Garza, supra at 703-704 (2) (the victim’s movements of falling to the floor and then rising to sit in the chair where she was bound, were of minimal duration, occurred during the course of and incidental to the victim’s false imprisonment, and did not significantly increase the dangers to her over those she faced as a victim of false imprisonment or aggravated assault); Williams v. State, 304 Ga. App. 787, 789-790 (1) (697 SE2d 911) (2010) (insufficient evidence of asportation where defendant’s movement of victims of bank robbery to area where other bank occupants were located occurred during and incidental to armed robbery and did not enhance victims’ risks or defendant’s control over victims).

       See Hill, supra (victim’s movement not an inherent part of armed robbery where money had already been taken from the register, which completed the armed robbery).

       OCGA § 16-5-21 (a) (2).

       See Bryant, supra (movement of victim occurred after the defendant completed the aggravated assault by grabbing the victim and shoving a metal object into his back).

       (Footnote omitted.) Dixon v. State, 303 Ga. App. 517, 520 (2) (693 SE2d 900) (2010).

       (Citation and punctuation omitted.) Shirley v. State, 259 Ga. App. 503, 505 (578 SE2d 163) (2003).

       See Dixon, supra (erroneous charge on “slightest movement” did not require new trial where victim testified that the defendant forced her from the door of a hotel room to the bed inside the room, establishing the asportation required under the Garza standard).

       (Citation and punctuation omitted.) Elamin v. State, 293 Ga. App. 591-592 (1) (667 SE2d 439) (2008), citing Williams v. State, 293 Ga. App. 193, 195 (1) (666 SE2d 703) (2008).

       See Garza, supra.

       See Williams v. State, 295 Ga. App. 9, 15 (2) (c) (670 SE2d 828) (2008) (aggravated assault did not merge with kidnapping as a matter of fact where aggravated assault occurred before the victim was moved).

       See OCGA § 16-10-24.

       See Gordon v. State, 199 Ga. App. 704, 705 (2) (406 SE2d 110) (1991) (“The jury was authorized to find that defendant’s spitting on the officer while refusing to identify himself was not merely discourteous, it actually hindered and obstructed [the] [o]fficer ... in the discharge of his official duties”) (punctuation omitted). See also In the Interest ofD. J. E., 266 Ga. App. 807, 811 (3) (598 SE2d 108) (2004) (evidence of attempts to spit, along with other evidence, supported a felony obstruction charge).


author: MIKELL, Judge.

text:
    A10A2217.
    GRANT v. THE STATE.
    (705 SE2d 910)
   MIKELL, Judge.

Wayne Grant was convicted of burglary and was sentenced as a recidivist to serve 20 years in confinement. He appeals from the order denying his motion for new trial, challenging the sufficiency of the evidence and the trial court’s denial of his motion in limine. We find no error and affirm.

1. Grant contends that the evidence is insufficient to support his conviction of burglary because the state failed to prove an essential element of the crime, specifically that he entered the victim’s store with the intent to commit a theft therein.

On appeal from a criminal conviction, the evidence is viewed in the light most favorable to the verdict. We do not weigh the evidence or determine witness credibility but only determine whether the evidence is sufficient under Jackson v. Virginia. The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Properly viewed, the evidence adduced at trial shows that at approximately 3:00 a.m. on May 28, 2004, the police notified Mi Hae Rivera that her store, Glennville Beauty Supply, had been broken into. The police had responded to an alarm at the store, and when they arrived, they discovered that the glass in the front door had been shattered and a glass showcase had been busted. Rivera confirmed that numerous silver rings and other jewelry had been taken from the showcase. The police found several rings in the road across from the store, and Rivera identified them as belonging to her.

The police were able to collect blood samples from the front door and from the broken glass that had fallen inside the showcase. A forensic biologist employed by the GBI performed a DNA analysis on one of the blood samples and testified that it matched Grant’s DNA sample, which was admitted by stipulation.

Danny Scott Lynn, who supervised the investigation for the Glennville Police Department, testified that he was able to determine that Grant had distributed the stolen jewelry to several individuals in the community, including his daughter, Latisha Doe. Doe testified for the state, confirming that Grant had given her approximately ten rings during the end of May 2004.

Lynn obtained an arrest warrant for Grant and interviewed him on June 18, 2004. Grant gave a statement, which Lynn read into evidence. Grant stated that his vehicle ran out of gas, so he began walking down the street where the victim’s store was located. Grant said that he saw two black juveniles, whom he could not describe, exit the store. According to Grant, he pulled back the damaged glass on the front door, cutting his hand, and “placed one foot inside the store and looked around to see if the boys were inside the store.” Grant also stated, however, that he fled as soon as he saw a police car. He further stated that he picked up 25 to 30 rings as he was walking down the street, traded two of them “for a dime bag of crack rock,” gave his daughter, Doe, “7 to 12 pieces of jewelry,” and then sold the rest for crack cocaine.

Citing his statement that he only entered the store to investigate the break-in, Grant argues that the circumstantial evidence failed to exclude every reasonable hypothesis except that of guilt under OCGA § 24-4-6. We disagree.

Questions as to the reasonableness of hypotheses are generally to be decided by the jury which heard the evidence and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, that finding will not be disturbed unless the verdict of guilty is insupportable as a matter of law.

Furthermore, “[w]hether the defendant entertained an intent to commit a theft after entering is a matter for the jury to say, under the facts and circumstances proved.” In the case at bar, ample evidence supports the jury’s verdict. Grant’s blood in the store demonstrated his presence therein, and the jury was entitled to reject his explanation for entering the premises. Further, an unsatisfactory explanation for recent possession of stolen items will support a conviction for burglary, and it was for the jury to decide whether Grant’s explanation for the manner in which he came into possession of the stolen items was satisfactory. And Grant’s flight from the police showed consciousness of guilt. It follows that the evidence was sufficient to support his conviction.

2. Grant complains that the trial court erred in denying his motion in limine to redact references to his drug transactions from his statement. Grant contends that the references were irrelevant to the burglary charge and impermissibly placed his character in evidence. We disagree. “[T]he [s]tate is entitled to present evidence to establish that there was a motive, and evidence that the defendant used drugs is relevant to prove that he had a motive for committing the crime and is not rendered inadmissible by the fact that it incidentally puts his character in issue.” Here, the jury was entitled to infer from Grant’s statement that one motive for the burglary was to obtain jewelry to sell or exchange for crack cocaine.

Contrary to Grant’s contention, Robinson v. State is distinguishable. In that case, we held that the defendant’s statement, which included admissions of prior independent sales and use of cocaine, was erroneously admitted into evidence because the reference to those crimes “did not constitute an integral part of a criminal confession nor was each statement an inseparable part of the total oral statement made to [the police officer].” Here, Grant’s admission that he traded many of the stolen rings for crack cocaine was integral to his motive for the burglary and was an inseparable part of his statement. The tried court did not err in denying the motion in limine.

Judgment affirmed.

Smith, P. J., and Adams, J., concur.

Decided February 1, 2011.

Maurice V. Joseph, Craig T. Pearson, for appellant.

Tom Durden, District Attorney, for appellee.

       A person commits burglary by entering or remaining within the premises of another without authority and with the intent to commit a felony or theft therein. OCGA § 16-7-1 (a).

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       (Footnote omitted.) Leonard v. State, 268 Ga. App. 745 (1) (603 SE2d 82) (2004).

       The state indicates in its brief that the GBI tested the blood sample taken from the showcase, but this cannot be discerned from the record, as the expert witness did not identify the sample, and the exhibits containing the samples were not included in the appellate record.

       (Citation omitted.) Robles v. State, 277 Ga. 415, 417 (1) (589 SE2d 566) (2003).

       (Citation omitted.) Price v. State, 303 Ga. App. 589, 591 (2) (693 SE2d 826) (2010).

       Id. at 592 (2); Clark v. State, 289 Ga. App. 612, 615 (1) (658 SE2d 190) (2008).

       See Chambers v. State, 288 Ga. App. 550, 551 (654 SE2d 451) (2007); Leonard, supra at 746 (1).

        Renner v. State, 260 Ga. 515, 517 (3) (a) (397 SE2d 683) (1990) (evidence of flight may show consciousness of guilt).

       (Citations and punctuation omitted.) Shelton v. State, 251 Ga. App. 34, 38 (2) (553 SE2d 358) (2001). Accord Gonzalez v. State, 277 Ga. App. 362, 368 (6) (626 SE2d 569) (2006).

       192 Ga. App. 32 (383 SE2d 593) (1989).

       (Citation omitted.) Id. at 33.


author: PHIPPS, Presiding Judge.

text:
    A10A2322.
    DIX v. THE STATE.
    (705 SE2d 903)
   PHIPPS, Presiding Judge.

A jury found Mantarbi Kenyatta Dix guilty of cocaine possession, marijuana possession (less than one ounce), obstruction of a law enforcement officer, and driving on a suspended license. He appeals his convictions therefor, contending that the evidence was insufficient to support his drug convictions and that the trial court erred by denying his motion to declare a mistrial based upon remarks made by the prosecutor. Because Dix has shown no reversible error, we affirm.

1. When an appellant challenges the sufficiency of the evidence, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”

So viewed, the evidence showed that on the night of January 4, 2009, three sheriffs deputies were working a traffic safety checkpoint along a road in a wooded, rural area where residences were spread apart. At about 12:30 a.m. on January 5, they observed a vehicle traveling toward the checkpoint abruptly stop, then make a sharp turn, without signaling, into a residential driveway — which was the last driveway before reaching the checkpoint. The three deputies went to investigate a possible attempt to avoid the checkpoint and spotted the vehicle driving slowly back out of the driveway. The vehicle’s headlights were off, even though they had been on when the vehicle turned away from the checkpoint. There were two occupants in the vehicle, Dix and his son, who was approximately nine to eleven years of age. After Dix leaned over and said something to his son, both quickly scrambled out of the passenger’s side of the vehicle.

When one of the deputies asked Dix what they were doing, Dix responded that he lived at the residence; however, two of the deputies knew the family that lived at the residence and did not believe that Dix also lived there. Upon a deputy’s request for his driver’s license, Dix said that he did not have one. Meanwhile, the deputies noticed a smoke haze inside the vehicle and a strong odor of burnt marijuana coming out of it. As a deputy began handcuffing him, Dix wriggled away and fled on foot toward the woods behind the residence, leaving behind his child who was hysterically screaming for him.

There was no pathway leading into or through the dense wooded area. Dix breached what one of the deputies called a “solid wall of woods.” That deputy further described, “[Dix] ran straight into the woods, which is very thick vegetation. Basically, just made his own trail through there, . . . just breaking branches and vines as he was going through.” As he was “fighting” through the brush, which “kept getting thicker the further [they] went,” Dix fell twice — the first time about 40 to 45 feet inside the wood line, and the second time about 100 to 125 yards beyond the first fall. He was then apprehended by the two chasing deputies, handcuffed, and placed in the back seat of a patrol car.

While one of the deputies stayed in the area with Dix and his child, the other two deputies traced Dix’s attempted escape route in search of contraband. When Dix had been fleeing into the woods, one of the deputies had observed him fumbling with his pockets “like he was trying to get his hands in his pockets to pull something out.” Using flashlights, the deputies discovered about twenty feet along that route a small plastic bag of marijuana lying about two to three feet off the trail. The bag had no leaves, sticks, or anything on top of it; the bag was dry, even though it had rained either earlier that day or the day before, and the surrounding ground was damp. Further along the attempted escape route, near where Dix had fallen the second time, the deputies found a small plastic bag of cocaine. There were no leaves, sticks, or anything on top of it. According to the deputy who retrieved it off the ground, that bag was wet — not from “rain or dew”; rather, the wet coating was “sticky” and seemed like saliva.

Evidence of three similar transactions was also presented. First, the state showed that at about 1:30 one morning in March 2008, Dix was a passenger in a vehicle at a traffic safety checkpoint. An officer detected an overwhelming odor of marijuana being emitted from inside the vehicle. A small bag of marijuana was found in Dix’s pocket, and Dix told the officer that he had just smoked marijuana. Dix was convicted of marijuana possession.

The second incident occurred in 2003. Dix was a passenger in a vehicle that fled after an officer’s command to stop. When the vehicle thereafter suddenly stopped, Dix fled into a small woodshed upon residential property. When pursuing officers made contact with him, Dix put up a fight until he was subdued with pepper spray. Dix had in his mouth a small baggie of cocaine, which he was chewing and trying to swallow. Additional baggies of cocaine and marijuana were found in his pocket. On negotiated guilty pleas, Dix was convicted of possession of cocaine with the intent to distribute and misdemeanor obstruction of a law enforcement officer; a third charge of possession of marijuana with the intent to distribute was nolle prossed.

The third incident occurred in 1999. When an officer approached Dix to arrest him on outstanding warrants, he fled on foot. The officer pursued and apprehended Dix. During the resulting jail booking, a bag of cocaine fell from his waistband. He was convicted of cocaine possession.

In contending that the evidence was insufficient, Dix points to what he claims were weaknesses, conflicts and inconsistencies in the state’s case. He points out that no one saw him toss anything in the woods that night; no one saw any baggie of drugs in his mouth and that the cocaine bag may have been wet due to the recent rain; no drugs were found on his person; and no drugs were found in his vehicle.

But any evidentiary weaknesses, conflicts, or inconsistencies were for the jury to resolve. We do not speculate which evidence the jury chose to believe or disbelieve. Where as here, there was [sufficient] evidence, even though contradicted, to support each fact necessary to make out the state’s case, we must uphold the jury’s verdict.

There is no merit in Dix’s sufficiency challenge to his drug convictions.

2. Dix contends that the trial court erred by denying his motion to declare a mistrial based on remarks made by the prosecutor during closing argument. In particular, the prosecutor twice referred to Dix’s possession of marijuana as a misdemeanor, rather than the charged offense of “possession of marijuana less than an ounce.” The first instance occurred when the prosecutor was presenting the state’s theory that Dix’s attempt to flee on foot was not because of any traffic offense or even possession of marijuana (given the smoke haze, coupled with the apparently readily detectible odor), but because he had a bag of cocaine concealed on his person. After reminding the jurors that, when Dix fled the scene, his obviously upset child was screaming for him, the prosecutor said: “Does that make the defendant stop? Oh, [the child is] so upset. No. He keeps running into the woods. Suspended license? No. Little misdemeanor marijuana?” And that last remark drew an objection.

After a bench conference, the court instructed the jurors that it is improper for either side to argue about punishment and that they were to disregard argument concerning “whether it’s a misdemeanor or felony or anything like that. Okay? That’s highly improper. I’ll instruct her not to do that any more.”

The prosecutor resumed the state’s argument, and shortly thereafter, in concluding the argument, the prosecutor stated: “Render a verdict that speaks the truth in this case. Not that he’s just guilty of suspended license. Not that he’s just guilty of obstruction. Not that he’s just guilty of possession misdemeanor.” Thereupon, defense counsel objected and moved for a mistrial, which was denied. However, the court instructed the jurors, “Again, ladies and gentlemen, that is highly improper to say anything about what the punishment would be and what kind of case it is in relationship to a misdemeanor or felony.”

While Dix asserts that the trial court’s response to the objection after the first occurrence was adequate, he argues that he was entitled to a mistrial, given the prosecutor’s repeat of the improper remark after being admonished not to do so.

When prejudicial matter is improperly presented to the jury, a mistrial is appropriate if it is essential to preserve the defendant’s right to a fair trial. It is for the trial court to determine whether the granting of a mistrial is the only corrective measure or whether any prejudice can be corrected by withdrawing the [matter] from the jury’s consideration under proper instruction from the court.

Here, the trial court gave the jurors prompt and correct curative instructions that the prosecutor’s remarks were improper and should play no role in their consideration of the case. And the record in this case allows us to “presume that the jury followed the trial court’s instructions and disregarded the [prosecutor’s] statement[s].” Given these circumstances, we conclude that the trial court did not abuse its discretion in denying Dix’s motion to declare a mistrial.

Decided February 1, 2011.

Julianne H. Lynn, for appellant.

Peter J. Skandalakis, District Attorney, Melissa L. Himes, Assistant District Attorney, for appellee.

Judgment affirmed.

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

        Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979) (emphasis in original).

        Sirmans v. State, 301 Ga. App. 756-757 (1) (688 SE2d 669) (2009) (footnote omitted); see generally Treadwell v. State, 285 Ga. 736, 743 (4) (684 SE2d 244) (2009) (regarding use of circumstantial evidence as support for conviction).

       See Jackson v. Virginia, supra.

        Banks v. State, 281 Ga. 678, 682 (3) (642 SE2d 679) (2007) (citation omitted).

       See Ballard v. State, 281 Ga. 232, 234 (3) (637 SE2d 401) (2006); Johns v. State, 274 Ga. 23, 25 (3) (549 SE2d 68) (2001).

        Johns, supra.

       See Banks, supra; Ballard, supra; Johns, supra; Steele v. State, 181 Ga. App. 695, 696 (1) (353 SE2d 612) (1987).


text:
    A10A2325.
    McKISSICK v. AYDELOTT.
    (705 SE2d 897)
   Mikell, Judge.

This is the second appearance of this case in this court. In the first, McKissick v. S. O. A., Inc. (referred to herein as “McKissick I”), we reversed the grant of summary judgment to S. O. A., Inc. (“SOA”) and its president, Steven Aydelott, on Timothy McKissick’s claims for malicious prosecution and malicious arrest. The case proceeded to trial, and the jury, utilizing a special verdict form, rendered a verdict in favor of Aydelott. The jury concluded that Aydelott had been released from liability by reason of a Mutual Release (the “Release”) executed on November 21, 2005, by McKis-sick, SOA, and The Cincinnati Insurance Company, following an arbitration award in McKissick’s favor. McKissick appeals from the trial court’s judgment on the verdict, arguing that the court erred when it admitted the Release into evidence, denied his motion in limine, and excluded evidence of the arbitration award. We affirm.

We begin with the facts set forth in McKissick I that preceded the execution of the Release:

[I]n the late summer of 2003, McKissick was employed as a project estimator with Allgood Electrical Company, Inc. (“Allgood”). Allgood was hired as an electrical subcontractor by SOA, which was the general contractor for the construction of the Perry High School Multi-Purpose Facility (the “Project”). During the fall of that year, Allgood left the Project due to a dispute over payment with SOA and Aydelott. McKissick averred that he worked out an agreement with Aydelott to complete the electrical work on the Project for which he would be paid $ 1,000 weekly plus the cost of materials. Because McKissick was not a licensed electrician, he arranged for his father-in-law, Albert Wayne Davis, who was a licensed electrician, to visit the site each week to inspect McKissick’s work. McKissick further averred that Aydelott knew about the arrangement with Davis and did not object to it. Eleven weeks after he began working on the Project, McKissick was terminated by Aydelott. On June 2, 2004, McKissick demanded payment for work performed in the amount of $ 9,373.94 and filed a lawsuit ... in the Magistrate Court of Houston County in June 2004 [the “2004 action”].

The case was transferred to the Superior Court of Houston County, and almost a year later, on October 12, 2005, the court ordered the case to arbitration. On November 7, 2005, the arbitrator awarded damages in the amount of $4,853.22 to McKissick.

On November 21, 2005, the parties executed the Release, agreeing to dismiss the 2004 action in exchange for payment to McKissick of the amount awarded by the arbitrator. The Release also provided as follows:

1. All of the Parties . . . hereby fully release and discharge each other . . . from all rights, claims, disputes, and/or causes of action which each of the . . . Parties . . . now have or may ever have after the signing of this agreement against each other . . . arising out of or connected to either: a) the events surrounding the work completed or not completed on; [sic] and, b) the agreement between them that was the subject of the . . . [c]ivil action; both of which were regarding the construction project known as the . . . Project. 2. This release is intended by each of the Parties to release all claims for damages or losses to each Party . . . whether known or unknown, . . . which either of the Parties may have against the other. Each Party understands and acknowledges the significance and consequences of such specific intention to release all claims and hereby assumes full responsibility for any damages or losses that either Party may incur from the above referenced agreement and work performed pursuant thereto.

Several months later, on June 2, 2006, McKissick filed a new civil action against SOA and Aydelott, asserting claims based on malicious prosecution and malicious arrest (the underlying action), based on the following events as described in McKissick I as follows:

[T]wo months [after McKissick filed the 2004 action], [Aydelott] reported the following facts to the Houston County Sheriffs Office: that while McKissick worked on the Project, he ordered supplies from an electrical materials supplier using SOA’s account without authorization from SOA; that the materials were not delivered to the job site but were picked up by McKissick; that some of the materials could not be accounted for at the job site; that neither McKissick nor the supplier could provide proof that the items had been delivered to the job site, but the supplier demanded payment from SOA and filed a lien against it; and that within the same time period, he learned that McKissick was not a licensed electrician and was performing substandard work. According to Aydelott, McKissick led him to believe that he was a licensed electrician. Aydelott also averred that he learned that McKissick had been convicted of armed robbery and was on parole for that offense.

After Aydelott made this report,

Sergeant Joseph Sendek was assigned to investigate the case. Sendek averred that upon commencing his investigation, he contacted Aydelott, who confirmed the information in the police report and asked Aydelott to provide documents relating to the investigation. Sendek further averred that he conducted the investigation in the manner he was trained; that Aydelott never asked him to undertake a certain course of conduct regarding the matter nor did he directly or indirectly urge that any action be taken; and that he concluded that probable cause existed to arrest McKiss-ick for theft by deception. Sendek submitted an application for a search warrant to the magistrate court. A preliminary hearing was held, which McKissick attended with counsel. Sendek was the only witness to testify at the hearing, and the warrant was issued. McKissick was arrested on September 10, 2004, and remained incarcerated until October 12, 2004. He was given a recognizance bond on the day of his arrest but could not post bond due to a hold placed by his probation officer. The criminal charges were dismissed on November 10, 2004.

Based on this evidence, we reversed the trial court’s grant of summary judgment to SOA and Aydelott on McKissick’s claims for malicious prosecution and malicious arrest, concluding that genuine issues of fact remained as to whether there was probable cause for McKissick’s arrest and whether Aydelott acted maliciously. McKis-sick now appeals from the trial court’s judgment entered on the jury’s verdict in favor of Aydelott.

1. In his first enumeration of error, McKissick argues that the Release should not have been admitted into evidence because Ayde-lott was not named individually therein, but we find that McKissick waived this argument.

The record shows that McKissick’s counsel stated that he planned to concede that SOA had been released from liability under the Release. McKissick’s counsel also stated that

I think that [the jury] can be told, and I think the facts have pretty much shown that at the conclusion of the arbitration there was an award entered and that there was a release executed that released SOA, Inc. and the Cincinnati Insurance Company, and that Mr. McKissick gave the release. And then I guess the issue is whether or not that release later on ends up releasing the defendant individually. I think that’s the issue to be decided.

By stipulation of the parties, the trial court informed the jury that an arbitration award was rendered in McKissick’s favor in the action filed in magistrate court; that a Release was executed by Aydelott, on behalf of SOA, and by McKissick that released SOA and The Cincinnati Insurance Company from liability; that if Aydelott acted as an agent of SOA when he involved the police, he would have no liability in this action; but that if he acted as an individual, he would be responsible; and that the Release would be admitted into evidence. McKissick did not object to this instruction. At the close of evidence, the trial court informed the jury that it would receive a special verdict form, which posed several questions, the first of which inquired as to whether the jury believed the Release released all of the parties. The court instructed the jury that if it answered that question affirmatively, their deliberations would be over. McKissick did not object to the special verdict form.

“No matter how erroneous a ruling of a trial court might be, a litigant cannot submit to a ruling or acquiesce in the holding, and then complain of the same on appeal. He must stand his ground. Acquiescence deprives him of the right to complain further.” By agreeing to the stipulation and by later failing to object to the special verdict form, McKissick waived this argument.

2. McKissick argues that the trial court erred when it denied his motion in limine to exclude evidence pertaining to the issues litigated in the arbitration. Specifically, McKissick maintains that res judicata barred Aydelott from arguing that McKissick committed any wrongdoing in the performance of his work because that issue was litigated at the arbitration. The trial court denied the motion in limine, concluding that the issues in the instant case were not the same as the issue posed in the first action, i.e., which party owed the other money. “A trial court’s ruling on a motion in limine is reviewed for abuse of discretion.” We find no such abuse.

The doctrine of res judicata prevents the re-litigation of all claims which have already been adjudicated, or which could have been adjudicated, between identical parties or their privies in identical causes of action. [However,] [t]hree prerequisites must be satisfied before res judicata applies — (1) identity of the cause of action, (2) identity of the parties or their privies, and (3) previous adjudication on the merits by a court of competent jurisdiction.

Although it is true that “[a]n award of arbitrators is conclusive as to all matters submitted to them by the parties,” res judicata does not apply here because there was no identity of the cause of action or previous adjudication by a court of competent jurisdiction. The malicious prosecution and malicious arrest claims involved here were not submitted to the arbitrator. In the six-page arbitration award, there is no reference to the facts that led to the filing of these claims.

In order to prevail on his claim for malicious prosecution, McKissick was required to show that a criminal prosecution was instigated without probable cause and with malice, pursuant to a valid warrant, accusation, or summons; and that the prosecution terminated in his favor and caused him damage. We concluded in McKissick I that genuine issues of fact remained as to the issues of probable cause and malice.

The focus in a probable cause inquiry is whether the facts as they appeared at the time of instituting the prosecution were such as to lead a person of ordinary caution to entertain a belief that the accused was guilty of the offense charged. In other words, the question is, not whether plaintiff was guilty, but whether defendants had reasonable cause to so believe — whether the circumstances were such as to create in the mind of defendants a reasonable belief that there was probable cause for the arrest and prosecution. Probable cause is defined to be the existence of such facts and circumstances as would excite the belief in a reasonable mind, that the person charged was guilty of the crime for which he was arrested and prosecuted.

It follows then that evidence of Aydelott’s beliefs regarding McKis-sick’s work performance at the time that Aydelott instituted the criminal prosecution was relevant and material to McKissick’s claims. Thus, the trial court’s denial of McKissick’s motion in limine did not constitute an abuse of its discretion.

3. In his last enumeration of error, McKissick argues that the trial court erroneously excluded the arbitration award from evidence as it could have been used to impeach any witness who testified that McKissick’s work was deficient. “We review a trial court’s decisions on the admissibility of evidence under an abuse of discretion standard,” and again, we find no abuse of discretion.

Decided February 1, 2011.

Waymon S. Harrell, for appellant.

Stephen N. Hollomon, for appellee.

As stated in Division 1, the jury was informed that an arbitration award was rendered in McKissick’s favor in the magistrate court action. McKissick complains that the actual award should have been admitted, but he has not shown how he was harmed by its exclusion. “In order to constitute reversible error, both error and harm must be shown.” McKissick does not identify any witness whose testimony he could have impeached using the arbitration award. Additionally, McKissick has not shown that the content of the arbitration award would have had any bearing whatsoever on the first question posed in the special verdict form, which was dispositive of the case as discussed fully in Division 1. Accordingly, we conclude that this enumeration of error lacks merit, and we affirm the judgment of the trial court.

Judgment affirmed.

Smith, P. J., and Adams, J., concur.

       299 Ga. App. 772 (684 SE2d 24) (2009).

       Id.

       Id. at 772-773. The 2004 action named SOA and The Cincinnati Insurance Company as defendants and Timothy Greg McKissick Electrical Advantage as plaintiff and sought damages in the amount of $9,614.91.

       Id. at 773-774.

       Id. at 773.

       Id. The facts cited from McKissick 1 were adduced on summary judgment, but the trial testimony is consistent therewith.

       Id. at 776-777 (1), (2).

       (Citation and punctuation omitted.) Renshaw v. Feagin, 199 Ga. App. 148, 151 (4) (404 SE2d 457) (1991).

       See generally Bruno v. Evans, 200 Ga. App. 437, 442 (5) (408 SE2d 458) (1991) (“by failing to object timely to the format or content of the jury verdict form, appellant has waived any objection to error arising therefrom”) (citation omitted).

       The actual motion in limine is not included in the record.

       (Citations omitted.) Forsyth County v. Martin, 279 Ga. 215, 221 (3) (610 SE2d 512) (2005).

       (Punctuation omitted.) Body of Christ Overcoming Church of God v. Brinson, 287 Ga. 485, 486 (696 SE2d 667) (2010), citing Karan, Inc. v. Auto-Owners Ins. Co., 280 Ga. 545, 546 (629 SE2d 260) (2006).

       (Citation and punctuation omitted.) Nannis Terpening & Assoc. v. Mark Smith Constr. Co., 171 Ga. App. 111, 113 (1) (318 SE2d 89) (1984).

       See McNeely v. The Home Depot, 275 Ga. App. 480, 482 (621 SE2d 473) (2005).

       Supra.

       (Punctuation and footnote omitted; emphasis omitted and supplied.) Adams v. Carlisle, 278 Ga. App. 777, 782 (1) (630 SE2d 529) (2006).

        Forsyth County, supra.

       (Citation, punctuation and footnote omitted.) Fuller v. Flash Foods, 298 Ga. App. 217, 220 (2) (679 SE2d 775) (2009).

       (Citation omitted.) Kersey v. Williamson, 284 Ga. 660, 663 (3) (670 SE2d 405) (2008).


text:
    A10A2340.
    FORTSON et al. v. TUCKER et al.
    (705 SE2d 895)
   Mikell, Judge.

Ander Tucker and his son, Richard Tucker, filed a complaint against Tift County, its Board of Commissioners, the individual commission members, and Carl Fortson, the county Director of Code Administration (collectively, “the County defendants”), alleging a variety of claims arising out of a resolution issued by the county Zoning Board of Appeals (“the Board”) allowing manufactured homes to be placed on property owned by Larry G. Massey and Tony Massey. We granted the County defendants’ application for interlocutory review of the trial court’s denial of their motion for summary judgment. We reverse. Because the Tuckers failed to challenge the underlying zoning decision in a timely manner, their claims against the County defendants are time-barred.

To prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact, and that the undisputed facts, viewed in the light most favorable to the party opposing the motion, warrant judgment as a matter of law. On appeal from a grant of summary judgment, we conduct a de novo review of the record, construing the evidence and all inferences therefrom most favorably to the nonmoving party.

So viewed, the record shows that in February 2004, the county issued two permits to allow manufactured homes to be placed on the Masseys’ land. In April 2004, Ander Tucker, who lives on neighboring land, filed an appeal with the Board to challenge the issuance of the permits. At the hearing held on the appeal, both Ander and Richard Tucker argued that the issuance of the permits violated county zoning ordinances concerning required lot size in land zoned for agricultural use. No decision was rendered. Meanwhile, Larry Massey applied for variances that, if granted, would allow the Masseys to re-plat their land without complying with the zoning ordinance’s street frontage requirements. On May 27, 2004, the Board held a hearing, at which the Tuckers appeared with counsel. A motion was made to approve the variances. On June 15, 2004, the Board issued a resolution that affirmed the county’s issuance of the manufactured home permits and granted Larry Massey’s request for variances.

The Tuckers did not appeal the Board’s decision. Instead, more than three years later, on April 10, 2007, the Tuckers filed the instant action in superior court against the County defendants and the Masseys, alleging fraud, wilful misrepresentation, conspiracy, nuisance, negligent failure to perform ministerial duties, vicarious liability, and civil rights violations. All claims related to the Board’s June 2004 resolution. The Tuckers alleged that the Board acted arbitrarily and capriciously in granting the variances and permits; that Fortson failed to enforce existing zoning ordinances; that the County defendants engaged in a pattern of fraud and deception by causing the Masseys to apply for variances and by concealing alleged misconduct; and that the County defendants conspired to deny the Tuckers access to the courts and other privileges and immunities, in violation of federal civil rights laws. They prayed for an injunction that would essentially rescind the manufacturing housing permits issued for the Masseys’ property. The Tuckers also sought damages, including punitive damages and attorney fees. The County defendants sought summary judgment on a number of grounds, including the Tuckers’ failure to appeal the Board’s resolution. The trial court denied the motion without explanation, but certified its order for immediate review. This appeal followed.

The County defendants correctly argue that the claims against them are time-barred. Pursuant to OCGA § 5-3-20, appeals to superior court must be filed “within 30 days of the date the judgment, order, or decision complained of was entered.” This Code section applies to an appeal from a county zoning board’s decision. The requirement is jurisdictional, so that a superior court lacks jurisdiction when such an appeal is filed beyond the time allowed by law.

The 30-day period.commences upon “the signing of the initial document reducing the decision to writing.” In this case, the appeal period commenced on June 15, 2004, the date that the Board entered a resolution allowing manufactured homes to be placed on the Masseys’ property. The Tuckers’ complaint against the County defendants, filed nearly three years later, is thus untimely. The Tuckers argue that their suit is not an appeal of the zoning decision, but instead raises independent tort claims. A review of the complaint shows otherwise. The complaint states: “Plaintiffs hereby file this suit and, further, hereby appeal to the Superior Court from the prior decisions of the [Board], the zoning administrator and the Tift County Commissions [sic] refusing to enforce and apply the zoning and land use provisions.”

Moreover, precedents establish that a party dissatisfied with a zoning decision must appeal to the superior court; it cannot circumvent the review process by instituting an untimely collateral attack on the zoning decision. In Mayor & Alderman of the City of Savannah u. Savannah Cigarette &c., the City of Savannah issued a rezoning decision that precluded a business’s intended use of its property. The business lodged an objection at the rezoning hearing, but did not file an appeal. Instead, the business filed an inverse condemnation action against the city, arguing that it had suffered uncompensated losses in rental income and market value as a result of the rezoning decision. The Supreme Court held that “a suit attacking the zoning ordinance as applied to the property involved is untimely when no suit challenging the zoning classification is filed within 30 days of the local authorities’ final act on the zoning issue, as was the case here.” Accordingly, the Court held that the business’s collateral lawsuit should have been dismissed.

Decided February 1, 2011

Hall, Booth, Smith & Slover, Anthony A. Rowell, Charles A. Dorminy, Thomas M. Burke, Jr., for appellants.

Similarly, in Hollberg v. Spalding County, the Spalding County Board of Commissioners (“BOC”) issued a zoning decision on April 22, 2004, following a hearing at which the appellant appeared and voiced objections. The decision was not timely appealed. Instead, on October 25, 2004, the appellant filed in superior court a petition for a writ of certiorari or, alternatively, a complaint for declaratory judgment against Spalding County and the BOC. The petition sought review of the BOC’s decision to rezone adjacent property and contended that it was void for a variety of reasons. We held that the appellant could not circumvent the requirement of filing a timely appeal by seeking a declaration of rights that had already accrued and by instituting a collateral attack upon the Board’s decision.

Applying the principles of Savannah Cigarette and Hollberg to the instant case, we conclude that the Tuckers’ claims against the County defendants are time-barred. Although the Tuckers appeared and objected throughout the zoning process, they failed to file an appeal within 30 days of the resolution that forms the basis of their complaint. Instead, they waited nearly three years to file a new action, asserting, as did the appellant in Hollberg, that they are entitled to do so because the actions of the Board are void. The Tuckers cannot be permitted to do indirectly that which the law does not allow to be done directly. The trial court erred in denying the County defendants’ motion for summary judgment.

Judgment reversed.

Smith, P. J., and Adams, J., concur.

Spurlin & McCorvey, John C. Spurlin, Thomas H. Pittman, for appellees.

       The complaint also named the Masseys as defendants.

       (Citations and footnotes omitted.) Flippen Alliance &c. v. Brannan, 267 Ga. App. 134 (601 SE2d 106) (2004).

       OCGA § 5-3-20 (a).

        Wilson v. City of Snellville, 256 Ga. 734, 735 (2) (352 SE2d 759) (1987); Taco Mac v. City of Atlanta Bd. of Zoning Adjustment, 255 Ga. 538, 539 (340 SE2d 922) (1986).

         Rowell v. Parker, 192 Ga. App. 215, 216 (2) (384 SE2d 396) (1989).

        Chadwick v. Gwinnett County, 257 Ga. 59, 60 (1) (354 SE2d 420) (1987).

       (Emphasis supplied.)

       267 Ga. 173 (476 SE2d 581) (1996).

       Id.

       (Citations omitted.) Id. at 174.

       Id.

       281 Ga. App. 768 (637 SE2d 163) (2006).

       Id. at 769.

       Id.

       Id. at 771 (1) (a).


author: MlKELL, Judge.

text:
    A10A2037.
    GIBSON CONSTRUCTION COMPANY v. GAA ACQUISITIONS I, LLC et al.
    (705 SE2d 913)
   MlKELL, Judge.

Gibson Construction Company (“Gibson”) filed an action against GAA Acquisitions I, LLC (“GAA”), McNeil Management, LLC (“McNeil Management”), and Ryan McNeil, alleging a claim to surplus funds from a foreclosure sale, conversion, wrongful foreclosure, and conspiracy, and seeking punitive damages. GAA filed a motion for summary judgment on all of Gibson’s claims and on its claim for declarative relief that it had asserted in its counterclaim. Gibson filed a cross-motion for partial summary judgment on its claim to the excess proceeds and the conversion of those proceeds. Ruling from the bench, the trial court granted GAA’s motion for summary judgment on all of Gibson’s claims as well as on GAA’s counterclaim but denied its motion for attorney fees. The trial court also denied Gibson’s motion for partial summary judgment. Gibson appeals from the trial court’s order, and we affirm.

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). A de novo standard of review applies to an appeal from a grant or denial 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.

So viewed, the record shows that on or about May 10, 2005, McNeil Management obtained a loan from Charter Bank in the principal amount of $1,280,000 to purchase property. Gibson performed work on the property for which it was not paid. Gibson obtained a judgment and special lien against McNeil Management in the principal amount of $375,092, and filed its claim of lien on February 8, 2008. On or about April 1, 2008, Charter Bank notified McNeil Management that it was in default on the loan. Charter Bank advertised the foreclosure sale of the property in the Fulton County Daily Report on April 10, April 17, April 24, and May 5, with the intent to sell the property on the courthouse steps on May 6, 2008.

On May 5, 2008, GAA contacted Charter Bank and purchased the loan, receiving a Transfer and Assignment of Security Deed, which was recorded on May 8, 2008. On May 6, 2008, in exchange for GAA’s agreement not to foreclose, McNeil Management and GAA executed the First Loan Modification Agreement (the “Modification Agreement”), which provided that the original loan documents, including the security deed, would remain in full force and effect, except for the amendments specified in the Modification Agreement. The amendments included a provision that the attorney fees to be paid in event of default would be 15 percent of the principal and interest owed on the loan. The Modification Agreement also added a note modification fee of $25,000 to the security deed and increased the default interest rate. It is undisputed that the Modification Agreement was not recorded.

On May 15, 2008, GAA informed McNeil Management that it was in default and made a demand for payment of $1,048,948.42. GAA also informed McNeil Management that should it be forced to foreclose, attorney fees would be due in the amount of $157,042.26. GAA published its foreclosure notice. On July 1, 2008, attorney Jon Erickson, on GAA’s behalf, auctioned the property on the courthouse steps, and there were no third-party bidders. GAA acquired the property in the form of a bid credit for less than the total sum owed, and recorded its Deed Under Power of Sale on the same day.

On September 18, 2008, Gibson submitted a demand for distribution of proceeds of sale under power to GAA under the theory that based on a loan payoff letter issued to McNeil Management on May 5, 2008, the loan amount was less than the purchase amount paid at the foreclosure. Gibson contended that it was entitled to recover the excess amount, $236,159.70, by virtue of its recorded claim of lien. GAA responded that there were no excess proceeds, explaining that it “bid in” the property with a bid credit, and provided the list of items that lenders are entitled to calculate in order to arrive at the amount of the bid credit. Gibson filed the instant action in January 2009.

On appeal, Gibson argues that it was entitled to recover excess proceeds from GAA under the Sale Under Power of Deed. Gibson reasons that GAA was not entitled to rely on the Modification Agreement to calculate the amount that it was due because the document was not recorded. Consequently, the original security deed governed the sale, and under the terms therein, there would have been excess proceeds to which Gibson would have been entitled because the attorney fees would have been significantly less. We disagree.

The bona fide holder of a security deed executed before the first material was furnished, and therefore necessarily prior to the recording of the materialman’s claim of lien, will take priority over the lien, even if the security deed itself was not recorded until after the first material was supplied. In the instant case, the security deed was filed in 2005, before Gibson’s lien.

A security deed, like any other deed, may be corrected or modified by a new deed or by a subsequent instrument in the form of a modification agreement, changing the terms of the indebtedness, the description of the property conveyed, the designation of the parties or the execution or attestation. The cancellation of the old security deed and the execution of a new one between the same parties may have the effect of a novation, so as to promote junior liens to superior rank, but a modification agreement will not have such an effect where the original security deed is not cancelled.

Here, the Modification Agreement did not cancel the original security deed nor was a new security deed executed. Accordingly, the security deed did not lose its priority status to Gibson’s lien by virtue of the Modification Agreement.

Gibson maintains that the failure to record the Modification Agreement defeats the purpose of the recording statutes, which is to provide notice, and that it was entitled to receive notice of the changes to the security deed. But Gibson has not cited, nor have we found, any authority for the proposition that a loan modification agreement is not valid or enforceable unless it is recorded. Moreover, as a subordinate lienholder, Gibson had notice from the outset that any claims it had against the property conveyed in the recorded security deed could be extinguished by the power of sale contained in the deed because a sale of the property might not generate enough proceeds to pay its claim. In sum, Gibson’s claim that it was entitled to excess proceeds fails as does its claim for conversion, because the record shows that there were no excess proceeds, and Gibson has not established otherwise.

Decided February 2, 2011.

Cruser & Mitchell, Andrew R. Diamond, for appellant.

Schulten, Ward & Turner, Kevin L. Ward, Jill D. Prussack, Joseph L. Kelly, for appellees.

Gibson argues that its claim of wrongful foreclosure, which is based on GAA’s alleged lack of good faith in conducting the sale, should have proceeded to the jury. However, this claim, too, is premised ultimately upon Gibson’s contention that the Modification Agreement had to be recorded, which we have already rejected. Finally, Gibson maintains that a genuine issue of material fact remained as to whether it was entitled to punitive damages. Because Gibson has not shown that there were excess funds, it has no successful underlying claim. Consequently, the claim for punitive damages cannot survive.

Judgment affirmed.

Smith, P J., and Adams, J., concur.

       Gibson obtained a default judgment against McNeil Management, and Ryan McNeil was dismissed without prejudice due to lack of service.

       The trial court’s written order explicitly incorporated its ruling made in open court.

        Arko v. Cirou, 305 Ga. App. 790, 791 (700 SE2d 604) (2010), citing Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459, 459 (1) (486 SE2d 684) (1997).

       The original security deed provided for the payment of reasonable attorney fees actually incurred in connection with the sale of the property following default.

       The payoff amount provided in the letter was $993,300.13.

       Although not challenged by Gibson, we point out, as recognized by the trial court, that the forbearance from proceeding with the foreclosure on May 6 was sufficient consideration for the Modification Agreement. See Graphic Prep v. Graphcom, 206 Ga. App. 689, 691-692 (3) (426 SE2d 183) (1992).

        Caldwell v. Northwest Atlanta Bank, 194 Ga. 370, 375 (1) (a) (21 SE2d 619) (1942).

       (Citation and punctuation omitted; emphasis supplied.) Aetna Cas. &c. Co. v. Valdosta Fed. Sav. &c., 175 Ga. App. 614, 617 (2) (333 SE2d 849) (1985).

       See Riverview Condo. Assn. v. Ocwen Fed. Bank, 285 Ga. App. 7, 8 (2) (a) (645 SE2d 5) (2007) (the distribution of excess proceeds from a foreclosure sale is governed by the security deed). See also Aetna Cas., supra (Georgia law allows the modification of the terms of debt).

       See Reid v. Saul, 146 Ga. App. 264, 265 (246 SE2d 121) (1978).

       See generally Walker County v. Tri-State Crematory, 284 Ga. App. 34, 40 (1) (643 SE2d 324) (2007); Benefit Support, Inc. v. Hall County, 281 Ga. App. 825, 833 (6) (637 SE2d 763) (2006) (“Since [the plaintiff] cannot recover on its underlying tort claims as a matter of law, there can be no punitive damages thereon”) (citation, punctuation and footnote omitted). Compare Decatur Investments Co. v. McWilliams, 162 Ga. App. 181, 182 (2) (290 SE2d 526) (1982) (punitive damages appropriate where mortgagor wrongfully retained surplus proceeds after wrongfully foreclosing on property).