text:
    A11A1363.
    JONES et al. v. ALLEN et al.
    (758 SE2d 133)
   Miller, Judge.

In Division 1 of this Court’s opinion in Jones v. Allen, 312 Ga. App. 762 (720 SE2d 1) (2011), this Court reversed the grant of summary judgment to Dr. Prem Singh Shekhawat and Dr. Wayne Mathews on the basis that they were not entitled to official immunity. In Division 2 of Jones, supra, this Court affirmed the grant of Dr. M. J. Allen’s motion to dismiss on the ground that she was entitled to official immunity.

In Shekhawat v. Jones, 293 Ga. 468 (746 SE2d 89) (2013), the Supreme Court of Georgia held that Shekhawat and Mathews were entitled to official immunity, and accordingly reversed our judgment. Consequently, we vacate Division 1 of our opinion in Jones, supra, and in its place adopt as our own the Supreme Court’s opinion in Shekhawat, supra. Since the Supreme Court did not address or consider Division 2 of our earlier opinion, and that portion of our earlier opinion is consistent with the Supreme Court’s opinion, that Division “become [s] binding upon the return of the remittitur.” Shadix v. Carroll County, 274 Ga. 560, 563 (1) (554 SE2d 465) (2001). Accordingly, the trial court did not err in granting summary judgment to Shekhawat and Mathews or in granting Allen’s motion to dismiss, and we affirm that judgment.

Judgment affirmed.

Ellington, P. J., and Doyle, P. J., concur.

Decided April 29, 2014.

Blasingame, Burch, Garrard & Ashley, JoshB. Wages, for appellants.

Owen, Gleaton, Egan, Jones & Sweeney, Annarita L. Busbee, Derrick L. Bingham, Carlock, Copeland & Stair, Adam L. Appel, Kim M. Ruder, Rutherford & Christie, Vincent A. Toreno, for appellees.


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A11A1807.
    RELIANCE TRUST COMPANY v. CANDLER et al.
    (761 SE2d 356)
    Decided April 29, 2014.

      Bryan Cave, William V. Custer TV, Nicole J. Wade, Luke A. Lantta, for appellant.

      Gaslowitz Frankel, Craig M. Frankel, Brian M. Deutsch, Kathy R. Bess, Robert P. Marcovitch, for appellees.
   Miller, Judge.

In Reliance Trust Co. v. Candler, 294 Ga. 15 (751 SE2d 47) (2013), the Supreme Court of Georgia reversed the judgment of this Court in Division 5 of Reliance Trust Co. v. Candler, 315 Ga. App. 495 (726 SE2d 636) (2012), in which this Court affirmed the award of prejudgment interest at the statutory rate from the dates of each encroachment upon the corpus of the revocable marital trust created by the wife of life beneficiary Charles Howard Candler III. Consequently, we vacate Division 5 of our opinion in Reliance Trust, supra, 315 Ga. App. at 504 (5), and in its place adopt the opinion of the Supreme Court as our own. We further remand this case to the trial court with direction to withdraw that portion of the final judgment awarding interest, and to reenter an award of interest from the date of the life beneficiary’s death.

The Supreme Court did not address or consider Divisions 1-4 of our earlier opinion. Since those portions of our earlier opinion are consistent with the Supreme Court’s opinion, those Divisions “become binding upon the return of the remittitur.” Shadix v. Carroll County, 274 Ga. 560, 563 (1) (554 SE2d 465) (2001). Accordingly, the trial court did not err in denying Reliance Trust’s motion for new trial with regard to the jury’s award of damages to the remainder beneficiaries of the trust.

Judgment affirmed in part and reversed in part with direction.

Ellington, P. J., and Doyle, P. J., concur.


author: MCMlLLIAN, Judge.

text:
    A12A1735.
    NEWTON v. THE STATE.
    (758 SE2d 151)
    Decided April 30, 2014.

      Drummond & Swindle, Jason W. Swindle, for appellant.

      David McDade, District Attorney, James A. Dooley, Assistant District Attorney, for appellee.
   MCMlLLIAN, Judge.

In our earlier decision in this case, Newton v. State, 319 Ga. App. 494 (736 SE2d 752) (2012), we reversed David Allen Newton’s conviction for burglary. In State v. Newton, 294 Ga. 767 (755 SE2d 786) (2014), the Supreme Court reversed that decision and reinstated Newton’s burglary conviction. We now vacate our earlier decision and adopt the opinion and decision of the Supreme Court as our own. Accordingly, the judgment of the trial court below is affirmed.

Judgment affirmed.

Barnes, P. J., and McFadden, J., concur.


author: McMillian, Judge.

text:
    A14A0331.
    ASHLEY v. JP MORGAN CHASE BANK, N.A. et al.
    (758 SE2d 135)
   McMillian, Judge.

Ruth L. Ashley filed suit against JP Morgan Chase Bank, N.A. (“JP Morgan”), McCurdy & Candler, LLC, and McCalla Raymer, LLC (collectively the “Appellees”) to set aside the foreclosure sale of her property. The trial court awarded summary judgment to defendants, and Ashley timely filed a notice of appeal. However, the trial court later dismissed her appeal because of a delay in filing the transcript of the proceedings. It is from that dismissal order that Ashley now appeals. For the reasons that follow, we affirm.

The record reflects that Ashley filed her suit against the Appellees in August 2011. Shortly thereafter, the parties filed cross-motions for summary judgment, and following two hearings in November and December 2011, the trial court entered an order denying Ashley’s motion for summary judgment and granting summary judgment to the Appellees on September 24, 2012. Ashley then filed her notice of appeal on October 2, 2012, specifically appealing “the Trial Court’s entire order of September 26, 2012 in its entirety” and requesting the clerk to “forward its entire file to the Georgia Court of Appeal[s] and exclude nothing from the record, including the transcript of the proceeding.”

On October 23, 2012, after issuance of the bill of costs for the record on appeal (in the amount of $1,025), Ashley moved to proceed in forma pauperis. The trial court entered an order granting Ashley’s motion on January 9, 2013, instructing the clerk to “transmit the record of the within matter to the Georgia Court of Appeals without Plaintiff’s payment of the cost hill.” But it was not until March 25, 2013 that Ashley first contacted the court reporter who took down the two summary judgment hearings. In her March 25, 2013 letter, Ashley’s counsel informed the court reporter that a copy of the transcript for the November 2011 hearing was needed for her appeal and asked her to “advise [her] of the cost of the transcript.” Ashley’s counsel further asked the court reporter to “let [her] know if the order of Judge Campbell approving the application for Ms. Ashley to proceed in forma pauperis will cover the cost of the transcript.”

On March 27, 2013, the court reporter responded to Ashley’s counsel via e-mail, notifying her that the cost for the preparation of the November 2011 hearing transcript was estimated to be around $ 100 and explaining that she did not know whether Judge Campbell’s order would cover the cost of the transcript. Ashley’s counsel alleges that she did not receive this e-mail because it was sent to her prior e-mail address, which she had changed sometime between the November 2011 hearing and March 2013 when she contacted the court reporter. However, Ashley’s counsel took no further steps to pay for the cost of the transcript, order the transcript, or otherwise contact the court reporter.

On June 4, 2013, JP Morgan filed a motion to dismiss Ashley’s notice of appeal, arguing that Ashley failed to timely file the transcripts designated in her notice of appeal for inclusion in the record. JP Morgan’s motion was supported by an affidavit of the court reporter. Finally, after receiving the motion to dismiss, Ashley’s counsel submitted payment, via letter dated June 11, 2013, to the court reporter for the cost of the November 2011 hearing transcript. In her letter, Ashley’s counsel called the court reporter’s affidavit into question, stating:

Although you maintain in your affidavit that you forwarded an email to my attention on March 25,2011,1 did not receive the email as the email address that you used is not a valid email for me or my office and was not an email address that I provided to you at any time during the course of this case.

The court reporter responded, confirming that she would complete the transcript within two to three weeks, and attached a copy of the business card that Ashley’s counsel had provided to her at the November 2011 hearing which showed the e-mail address that the court reporter had used to respond to her original inquiry in March 2013.

On July 3, 2013, Ashley filed the November 2011 hearing transcript, and on July 5 and July 22, 2013, Ashley filed various oppositions to JP Morgan’s motion to dismiss. On September 4, 2013, the trial court entered an order granting the motion and dismissing Ashley’s notice of appeal, making the following findings:

Plaintiff did not contact the court reporter to make arrangements for the preparation of the transcript until March 25, 2013, almost six (6) months after filing the Notice of Appeal, and did not pay for the preparation of the transcript until June 11, 2013. Plaintiff never moved this Court for an extension of time to file the transcript. The transcript was not filed until July 3, 2013, 274 days after Plaintiff filed her Notice of Appeal.
The Court further finds that these delays were caused by Plaintiff’s failure to timely make arrangements for the preparation of the transcript, her failure to timely pay for the transcript, and her complete lack of diligence in ensuring the timely completion and filing of the transcript. The Court further finds that the delay was unreasonable and inexcusable, and was due solely to the actions and inactions of the Plaintiff.

1. In her first and second enumerations of error, Ashley argues that the trial court erred in dismissing her appeal by failing to consider her indigent status and Uniform Superior Court Rule 41.3.

Numerous conditions on appellate practice concern filing a transcript of the trial court proceedings. OCGA § 5-6-37 requires that the notice of appeal shall state whether or not any transcript of evidence and proceedings is to be transmitted as part of the record on appeal. OCGA § 5-6-41 tells litigants how to obtain a transcript of their trial... or prepare statements of recollections concerning the record in lieu of a transcript.

In the Interest of D. M. C., 232 Ga. App. 466, 467 (2) (b) (501 SE2d 305) (1998). In addition,

OCGA § 5-6-41 (c) provides that where an appeal is taken which draws in question the transcript of the evidence and proceedings, it shall be the duty of the appellant to have the transcript prepared at the appellant’s expense. OCGA § 5-6-42 elaborates on this duty, specifying that the appellant must file the transcript within 30 days after the filing of the notice of appeal unless the time is extended as provided by OCGA § 5-6-39.

(Citation and punctuation omitted.) Pistacchio v. Frasso, 314 Ga. App. 119, 121 (723 SE2d 322) (2012).

Atrial court’s ruling on whether an appeal is subject to dismissal will be reversed only for an abuse of discretion. McAlister v. Abam-Samson, 318 Ga. App. 1, 2 (733 SE2d 58) (2012). OCGA § 5-6-48 (c) requires the trial court to “determine the length of the delay, the reasons for the delay, whether the appealing party caused the delay, and whether the delay was inexcusable before exercising its discretion in deciding whether to dismiss the appeal.” (Citation and punctuation omitted.) Id. A delay of more than 30 days in filing a transcript is “prima facie unreasonable and inexcusable, but this presumption is subject to rebuttal if the party comes forward with evidence to show that the delay was neither unreasonable nor inexcusable.” (Citation and punctuation omitted.) Pistacchio, 314 Ga. App. at 121. The question of whether a delay was unreasonable “refers principally to the length and effect of the delay.” (Citation and punctuation omitted.) Id. “Generally, a delay is unreasonable if it affects an appeal, either by directly prejudicing the position of a party ... or by causing the appeal to become stale, for instance by delaying docketing and hearing in this court.” (Citation and punctuation omitted.) Adams v. Hebert, 279 Ga. App. 158, 159 (630 SE2d 652) (2006).

Here, Ashley was required to file the transcript within 30 days after the filing of her notice of appeal, or by November 1, 2012. OCGA § 5-6-42. But without ever filing for an extension, she did not do so until July 3, 2013, more than eight months after the deadline. Therefore, Ashley’s delay was prima facie unreasonable, and the burden shifted to her to come forward with evidence that the delay was neither unreasonable nor inexcusable. Pistacchio, 314 Ga. App. at 121. However, Ashley has pointed to no evidence that would demonstrate that the eight-month delay was either reasonable or excusable. Although Ashley emphasizes that she was granted leave to proceed in forma pauperis, her motion only asked that she be relieved from payment of the costs to transmit the record, which relief the trial court granted, without reference to the costs of preparing the transcript. And her counsel’s letter to the court reporter highlighted her own uncertainty as to her obligation with respect to the transcript. Ashley’s reliance on Uniform Superior Court Rule 41.3, which speaks only to appellate counsel’s duty to personally pay transcript costs and to certify that she has ordered the transcript prior to filing a notice of appeal, does not aid her in demonstrating that the eight-month delay was somehow reasonable. Moreover, Ashley has cited no authority that would absolve her of all responsibility in ensuring that the transcript was timely filed.

To the contrary, “[i]t is well settled that the duty to order the transcript and to monitor timely the progress of the [court] reporter’s office in transcript preparation is vested upon the appropriate appealing party.” (Citation and punctuation omitted.) Mercer v. Munn, 321 Ga. App. 723, 726 (1) (742 SE2d 747) (2013); see also Atlanta Orthopedic Surgeons v. Adams, 254 Ga. App. 532, 536 (562 SE2d 818) (2002) (“The burden for making sure the transcript was filed, not just paying for it, belonged to [Appellant].”). Therefore, even where an indigent appellant may be relieved of having to pay for the transcript, she still has the duty of diligently ensuring it is timely prepared. See Wright v. Southern Investment Properties, 204 Ga. App. 538, 538 (419 SE2d 764) (1992) (“It is the duty of the appellant to have the transcript prepared pursuant to OCGA § 5-6-41. The filing of a pauper’s affidavit does not relieve the appellant in a civil action from such a duty.”). Even where the State is obligated to pay for a trial transcript for an indigent criminal defendant who appeals, this Court has held that it is nonetheless the obligation of the defendant to take affirmative steps to request that a transcript be filed and the State billed. See Miller v. State, 222 Ga. App. 641, 642 (475 SE2d 690) (1996) (“In light of defendant’s failure to take any steps to ensure the transcript was filed in a timely manner, regardless of who was going to pay for it, the trial court’s findings were supported and its dismissal of the appeal was not an abuse of discretion.”).

We also find Ashley’s attempts to blame the court reporter for the delay in filing the transcript unavailing.

The statutory duty to file timely a transcript does not rest with the court reporter; rather the duty to order the transcript is vested upon the appropriate appealing party. It would create an unacceptable and impractical burden on the court reporter’s office to require them to contact attorneys or parties and report on the status of all ordered transcripts.

(Citation and punctuation omitted.) In the Interest of T. H., 311 Ga. App. 641, 644 (716 SE2d 724) (2011); see also Jackson v. Beech Aircraft Corp., 217 Ga. App. 498, 501 (2) (458 SE2d 377) (1995) (“the burden to keep accurately informed of the status of transcript preparation remains with the party having the responsibility to file the transcript and it cannot be shifted to the court reporter”).

This Court’s docket for the January, April and September terms closes at noon on the 15th day of December, April and August, respectively. Because the transcript was filed eight months late, the docketing of Ashley’s appeal was delayed by at least one term. Accordingly,

it is indisputable that [Ashley’s] failure to procure the transcript has discernibly delayed docketing of the record in the appellate court and prevented an appellate decision on the merits at the earliest possible date. As we have repeatedly held, justice delayed for even one day is justice denied to the litigant who was successful in the lower court and who is entitled to his judgment unless the case is properly reversed.

(Citation and punctuation omitted.) Mercer, 321 Ga. App. at 726-727. Under these circumstances, we cannot say that the trial court abused its discretion in finding that the delay was unreasonable, inexcusable and causedbyAshley. See ACCC Ins. Co. v. Pizza Hut of America, Inc., 314 Ga. App. 655, 659 (725 SE2d 767) (2012) (affirming dismissal of appeal where appellant did nothing from the time the notice of appeal was filed until approximately four months later to cause the transcript to be prepared).

2. In her third enumeration of error, Ashley argues that the trial court erred in failing to hold a hearing prior to dismissing her appeal. In support, she cites McCorvey Dev., Inc. v. D. G. Jenkins Dev. Corp., 260 Ga. App. 276 (581 SE2d 308) (2003). However, McCorvey was later overruled by this Court:

As our Supreme Court has recently explained, OCGA § 5-6-48 (c)’s requirement that the trial court may not dismiss an appeal until first providing the parties with notice and an opportunity for hearing is satisfied if the complaining party is given an opportunity to respond on the record to the motion to dismiss.

(Citation and punctuation omitted; emphasis in original.) Grant v. Kooby, 310 Ga. App. 483, 486-487 (713 SE2d 685) (2011) (expressly abrogating McCorvey and holding “it is no longer of any precedential utility” as to the hearing requirement). The record clearly reflects that Ashley was given an opportunity to file her various briefs in opposition to the motion to dismiss, all of which were considered by the trial court, and it does not appear from our review of the record that Ashley ever asked for a hearing. Therefore, this enumeration is without merit.

3. In her fourth enumeration of error, Ashley contends that the trial court erred in dismissing her appeal in the absence of any showing of prejudice to the Appellees. However, where Ashley’s delay was prima facie unreasonable and she has failed to rebut that presumption, there is no requirement that the Appellees prove they were prejudiced by the delay. See Mercer, 321 Ga. App. at 726 (finding dismissal of appeal warranted even where appellee was not directly prejudiced but appellant’s failure to timely file transcript delayed docketing of the record in the appellate court and prevented an appellate decision on the merits at the earliest possible date). Accordingly, we find no error.

4. In her final enumeration of error, Ashley argues that the trial court erred in failing to consider the settlement negotiations of the parties that allegedly took place at some point after she filed her notice of appeal. However, this attempt to relieve herself of the responsibility for ensuring the timely filing of the transcript fails. Ashley offers no record citations to support her contention that “[t]he filing of the transcript did not become an issue until settlement discussions were exhausted.” Nor does she cite any legal authority to support the proposition that her delay was excusable in light of the parties’ attempt to resolve the matter through settlement negotiations, and we find none.

Decided April 30, 2014.

LaXavier Reddick Hood, for appellant.

Kitchens Kelley Gaynes, Stephen V. Kern, McCalla Raymer, Steven J. Flynn, Brett C. Giordano, Robert M. Sheffield, McCurdy & Candler, Frank R. Olson, for appellees.

Judgment affirmed.

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

       OCGA § 9-15-2 (a) (1) provides that when any party subscribes an affidavit that because of his indigence he is unable to pay any cost normally required in the court, the party “shall be relieved from paying the costs and his rights shall be the same as if he had paid the costs.” Id.

       Uniform Superior Court Rule 41.3 provides in full:
      Except where leave to proceed in forma pauperis has been granted, an attorney who files a motion for new trial, or a notice of appeal which specifies that the transcript of evidence or hearing shall be included in the record, shall be personally responsible for compensating the court reporter for the cost of transcription. The filing of such motion or notice shall constitute a certificate by the attorney that the transcript has been ordered from the court reporter. The filing of such motion or notice prior to ordering the transcript from the reporter shall subject the attorney to disciplinary action by the court.
      Id.

       We likewise reject Ashley’s argument that her motion for leave to proceed in forma pauperis acted as a supersedeas and excused her from ordering and filing the transcript until after the motion was granted. Even if we were persuaded by her citation of Haygood v. Head, 305 Ga. App. 375 (699 SE2d 588) (2010) (addressing the payment of the bill of costs, not the separate payment for the preparation of a transcript), Ashley offers no reason why she did not seek an extension of time pursuant to OCGA § 5-6-39. Moreover, her motion was granted on January 9, 2013, yet she still waited until March 25, 2013 to finally contact the court reporter for the first time, at which point the delay was already prima facie unreasonable.

       See Court of Appeals Rule 12.


author: MCMILLIAN, Judge.

text:
    A14A0417.
    WILLIAMS v. THE STATE.
    (758 SE2d 141)
   MCMILLIAN, Judge.

This appeal follows our grant of Jabari Williams’s application for interlocutory review of the trial court’s order denying his motion to suppress evidence of contraband and a weapon seized during a vehicle search. Because we find that the arresting officers did not have a particularized and objective basis for suspecting that Williams was engaged in criminal activity prior to the stop, we now reverse the denial of his motion to suppress.

In Miller v. State, 288 Ga. 286 (702 SE2d 888) (2010), our Supreme Court reaffirmed that appellate courts conducting a review of a trial court’s ruling on a motion to suppress must follow three fundamental principles:

First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support [them]. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.

(Citation omitted.) Id. at 286 (1). However, it is equally well established that

[w]hile the trial court’s findings as to disputed facts in a ruling on a motion to suppress will be reviewed to determine whether the ruling was clearly erroneous, where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.

(Citation omitted.) State v. Underwood, 283 Ga. 498, 500 (661 SE2d 529) (2008). Dryer v. State, 323 Ga. App. 734, 736 (747 SE2d 895) (2013). We apply these principles with equal force regardless of whether the trial court upholds the validity of the seizure or determines that the evidence must be suppressed. Miller, 288 Ga. at 286 (1).

We turn now to the application of these overarching legal principles to the facts of this case. The only testimony at the hearing on the motion to suppress was given by Officer P. Sullivan, who was one of the DeKalb County police officers who arrested Williams. At the time of Williams’s arrest, Sullivan was employed by the DeKalb County police department and assigned to the Tucker Precinct Neighborhood Enforcement Team Unit (“NET Unit”), which was a task force created to handle, among other things, drug activity in areas where there was a high incident of such activity.

On the day in question, the NET Unit was assisting the narcotics unit in conducting surveillance of Apartment J at the Alden Ridge Apartment Complex. This surveillance was based on “previous arrests made at that location,” and the trial court found that it was part of an ongoing investigation for illegal narcotic sales. In order to confirm the proper apartment was under surveillance, an officer knocked on the door of Apartment J under the pretext that a 911 call had been received from that location. When the door opened, the officer detected a “strong” odor of marijuana coming from inside the apartment. The officer left the apartment after being informed that a 911 call had not been made from that location.

During the surveillance, a NET sergeant was positioned so that she could see the foot and vehicle traffic coming and going from inside the apartment, which was characterized as “heavy.” Other members of the NET unit were positioned nearby, but did not necessarily have a view of the apartment. However, the sergeant communicated her observations to the other officers via radio, and those officers would then initiate traffic stops and/or arrests of the individuals leaving the apartment once they had exited the apartment complex onto nearby Brockett Road. According to Sullivan, the NET team was “basically’ stopping everyone who was observed going into and out of Apartment J.

Williams, who was riding as a front seat passenger in a white PT Cruiser, arrived at the apartment complex about an hour after the officer made the pretextual visit to the apartment and smelled marijuana inside. The PT Cruiser parked near the apartment, and Williams, who was carrying a backpack, exited the vehicle and walked into the residence. Less than five minutes later, Williams came back out of the apartment with the same backpack, re-entered the car, and drove out of the apartment complex. The sergeant notified the other officers that the car was leaving the complex, and Sullivan and another officer initiated an investigative stop of the vehicle after it exited onto Brockett Road.

Sullivan and the other officer smelled a “large” odor of marijuana as they approached the trunk of the vehicle, and the odor was emanating from inside the vehicle. The officers asked the occupants of the vehicle if they had any illegal substances in the vehicle, which they denied. Sullivan then informed the driver of the vehicle that they had probable cause to search the vehicle based on the strong odor of marijuana coming from inside the vehicle, and that search revealed four small bags and two large “freezer-size” plastic bags of marijuana and a 9-millimeter Taurus handgun inside the backpack that Williams had been seen carrying into and out of Apartment J. Based on this evidence, Williams was later charged with violating the Georgia Controlled Substances Act and possession of a firearm by a convicted felon.

On appeal, Williams argues that the evidence found during the search should have been suppressed because the stop of the vehicle was not supported by a particularized and objective basis for suspecting he was engaged in criminal activity. We agree.

[Although an officer may conduct a brief investigative stop of a vehicle, such a stop must be justified by specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. The U. S. Supreme Court recognized the difficulty in defining the elusive concept of what cause is sufficient to authorize police to stop a person, and concluded that the essence of the elusive concept was to take the totality of the circumstances into account and determine whether the detaining officer [] has a particularized and objective basis for suspecting the particular person stopped of criminal activity. This demand for specificity in the information upon which police action is predicated is the central teaching of the Supreme Court’s Fourth Amendment jurisprudence.

(Citations and punctuation omitted.) Hughes v. State, 269 Ga. 258, 259-260 (1) (497 SE2d 790) (1998).

Thus,

the question presented to the trial court was whether the investigative stop was proper in that it was justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity. This specific, articulable suspicion must be based on the totality of the circumstances — e.g., objective observations, information from police reports, the modes or patterns of certain kinds of lawbreakers, and the inferences drawn and deductions made by a trained law enforcement officer.

(Citation and punctuation omitted.) Holmes v. State, 293 Ga. 229, 230-231 (2) (744 SE2d 701) (2013).

Although there are numerous appellate cases interpreting and applying these precepts, we find our Supreme Court’s opinion in Hughes, 269 Ga. at 259-260 (1), and our opinion in State v. Hopper, 293 Ga. App. 220 (666 SE2d 735) (2008), to be particularly instructive in this case.

The facts in Hopper are strikingly similar to the case at hand. In Hopper, as in the present case, police had set up a surveillance operation after they had confirmed that drugs were being sold at a location. During these surveillance operations, which had occurred on other occasions prior to the day on which Hopper was arrested, the surveillance officers had observed a pattern of individuals arriving in vehicles, exiting the vehicles, going into the house and then coming back out after a brief time. In this instance, a van arrived, and similar to the previous occupants, the driver exited the vehicle, went into the house, and came back outside after a few minutes. The driver then met someone at the back of his van, at which time “ ‘there was an interaction of some kind, talking,’ ” although the officers did not observe money or containers exchanging hands. 293 Ga. App. at 221. The lead surveillance officer “due to her experience, knowledge, and training [and] the pattern that he pulled in, went into the house and came back out and left in a few minutes” believed that Hopper had just purchased drugs. A nearby officer was directed to initiate an investigative stop of the van to check for drugs, and contraband was found in the vehicle during the ensuing search. (Punctuation omitted.) Id. at 221-222.

The trial court subsequently suppressed the evidence found during the search, and we upheld that ruling on appeal. We found that the officer’s observation that Hopper followed a pattern by pulling up to the house, going into the house and coming back out in a few minutes, “combined with what [police] had learned from [their] investigation” was insufficient to show that the officer had a particularized suspicion that Hopper was engaged in wrongdoing. Hopper, 293 Ga. App. at 222. In reaching this conclusion, we noted that Hopper had not otherwise been connected to the house, had committed no traffic offense or attempted to avoid police, and was not observed by police engaging in any sort of drug transaction. “Rather, all police knew about Hopper was that he went into a suspected drug house in the middle of the afternoon, stayed for a few minutes, and then he left and drove away,” which showed nothing more than Hopper fit a general pattern of behavior. Id. at 222. Accordingly, we concluded that the detaining officer did not have a particularized, objective basis for concluding that Hopper was engaged in wrongdoing and thus the investigative stop of Hopper’s vehicle was not supportable under the Fourth Amendment.

Similarly, in Hughes, our Supreme Court concluded that an investigative stop in that case was not authorized based on a police officer’s observation that defendant’s conduct fit the general pattern of whites coming into a predominantly African-American neighborhood and then making drug transactions in vehicles by picking up the seller, driving around a short distance, and then returning to drop off the seller in the same location. Hughes, 269 Ga. at 260 (1). The Supreme Court reached this conclusion although the officer testified that he was regularly assigned to the neighborhood in question and had made numerous arrests of individuals for drug offenses and prostitution who engaged in this pattern of conduct. Id. at 261 (1). However, our Supreme Court concluded that “[w]hile such behavior might justify an officer in closely observing the individuals engaged in that behavior, it is not alone sufficient to indicate that the individuals are or might be engaged in illegal activity so as to provide a reasonable, articulable suspicion to stop those individuals [,]” and that, therefore the evidence found during the search should have been suppressed. Id. at 261 (1).

In the present case, similar to Hughes and Hopper, Williams’s conduct appeared to fit a pattern of behavior of individuals who were going quickly in and out of a location where police knew drugs were present and suspected drugs were being sold. The arresting officer testified that “basically... whoever is observed going into Apartment J and leaving” was being stopped, and that Williams was stopped solely for this reason. Further, although the officer testified that other “stops and/or arrests” had been made that day of individuals engaging in this conduct, the officer gave no indication that all, or indeed any, of those stops yielded arrests for contraband. Nor did the officer have any knowledge about Williams or any previous drug-related activity on his part. Thus, it was Williams’s conformity to a general pattern of behavior, and not a particularized suspicion, that led to the stop. “Georgia case law is clear that, absent some particularized suspicion of wrongdoing, merely [acting in a way] that fits a known ‘pattern’ of criminal activity — does not justify an investigatory stop.” (Emphasis in original.) State v. Holmes, 326 Ga. App. 451, 454-455, n. 13 (756 SE2d 679) (2014). Hopper, 293 Ga. App. at 223.

Accordingly, we find that the investigative stop in this case was not based on a particularized and objective suspicion that Williams was engaged in criminal activity and that the evidence found during the search of his backpack should have been suppressed. Dryer, 323 Ga. App. at 739 (2) (officer’s subjective feeling that a person is “acting in a suspicious way does not amount to a particularized and objective basis for suspecting him of criminal activity”) (citation and punctuation omitted); Adkinson v. State, 322 Ga. App. 1, 2 (743 SE2d 563) (2013) (evidence suppressed where officer saw defendant engage in behavior consistent with buying drugs by briefly visiting a hotel located in an area known for heavy drug activity); Pritchard v. State, 300 Ga. App. 14, 15-16 (684 SE2d 88) (2009) (evidence suppressed when only evidence to support the stop was that defendant’s car was seen in front of a residence that had recently been raided for drugs); Emery v. State, 249 Ga. App. 114 (548 SE2d 23) (2001) (stop not authorized where defendant drove away from house shortly before a search warrant was to be executed). Cf. Satterfield v. State, 289 Ga. App. 886, 889 (2) (658 SE2d 379) (2008) (stop justified when defendant spent five minutes in residence of known drug dealer where police had observed drug activity, and defendant left house in a vehicle with a known drug dealer and went to the dealer’s residence).

Judgment reversed.

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

Decided April 30, 2014.

James C. Thomas, for appellant.

Robert D. James, Jr., District Attorney, Leonora Grant, Shannon E. Hodder, Assistant District Attorneys, for appellee.

       The indictment has not been included in the record on appeal. However, it appears undisputed that Williams was charged with felony possession of marijuana. In any event, the exact nature of the charges against Williams is irrelevant.

       We note that Williams makes no issue of the fact that the arresting officers relied on the collective knowledge of the other officers at the scene in making the stop. Clearly, this was permissible. Edmond v. State, 297 Ga. App. 238, 239 (676 SE2d 877) (2009).


text:
    A14A0549.
    WARE v. MULTIBANK 2009-1 RES-ADC VENTURE, LLC.
    (758 SE2d 145)
   McMillian, Judge.

The trial court granted summary judgment to Multibank 2009-1 RES-ADC Venture, LLC (“Multibank”) on its complaint for breach of three promissory notes from Reginald B. Ware. On appeal, Ware asserts 12 separate enumerations of error, the majority of which challenge the affidavit submitted in support of Multibank’s motion for summary judgment. For the reasons that follow, we affirm the judgment as to liability on each of the three promissory notes, but reverse the award of damages as to the third note and remand for further proceedings consistent with this opinion.

As an initial matter, we note that Ware’s brief fails to comport with the rules of this Court. It provides no citations to the record, lacks a statement by which each of his enumerations of error was preserved for consideration, and, in many instances, fails to include any citation to legal authority. “We recognize that [Ware] is acting pro se; nevertheless, that status does not relieve him of the obligation to comply with the substantive and procedural requirements of the law, including the rules of this court.” (Citations and punctuation omitted.) Brown v. Mowr Enterprises, LLC, 322 Ga. App. 93, 93 (742 SE2d 173) (2013). “It is not the function of this Court to cull the record on behalf of a party in search of instances of error. The burden is upon the party alleging error to show it affirmatively in the record.” (Citation and punctuation omitted.) Resource Life Ins. Co. v. Buckner, 304 Ga. App. 719, 740 (7) (698 SE2d 19) (2010).

Given the shortcomings of Ware’s brief, we are authorized to dismiss it. See Court of Appeals Rule 7. However, we choose to exercise our discretion and review the record in this case to resolve the appeal on its merits. See Masood v. State, 313 Ga. App. 549, 550, n. 4 (722 SE2d 149) (2012). “But if we have omitted any facts or failed to locate some evidence in the record, the responsibility rests with [Appellant].” (Citation and punctuation omitted.) Reid v. Ga. Bldg. Auth., 283 Ga. App. 413, 413 (641 SE2d 642) (2007); see also Pruitt v. State, 323 Ga. App. 689, 690 (1) (747 SE2d 694) (2013).

On appeal, Ware asserts various enumerations of error arising from the trial court’s grant of summary judgment to Multibank.

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 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.

(Citation omitted.) Hanna v. First Citizens Bank & Trust Co., Inc., 323 Ga. App. 321, 322 (744 SE2d 894) (2013).

Viewed in this light, the record shows that Ware executed a commercial promissory note in favor of Omni National Bank (“Omni”) on December 27, 2006 in the original principal amount of $91,925 (“First Note”). In connection with the First Note, Ware also executed a Deed to Secure Debt, granting to Omni a security interest in real property located at 2976 Fifth Street, SW, Atlanta, Georgia 30315. On February 7, 2007, Ware executed a second promissory note in favor of Omni in the amount of $98,250 (“Second Note”). That same day, Ware executed a Deed to Secure Debt, granting to Omni a security interest in real property located at 1262 Elizabeth Avenue, SW, Atlanta, Georgia 30310. On February 16, 2007, Ware executed a third promissory note in favor of Omni for $96,125 (“Third Note”). Again, Ware executed a Deed to Secure Debt, granting to Omni a security interest in real property located at 324 Oak Drive, Atlanta, Georgia 30354. According to their express terms, the First Note was due in full on January 5, 2008, and the Second and Third Notes were due in full on March 15, 2008. In March 2009, Omni was closed, and the Federal Deposit Insurance Corporation (“FDIC”) was named Receiver. In February 2010, the FDIC assigned the Notes to Multibank, as evidenced by various allonges and omnibus assignments.

On August 22, 2012, Multibank brought suit against Ware, seeking the unpaid principal, accrued interest, and contractual attorney fees due under the Notes. In his Answer, Ware did not dispute that he executed the Notes and then defaulted on each, but he generally denied liability for reasons such as lack of privity, failure to prove the amount shown on the Notes, and unenforceability of illusory contracts. Multibank filed a motion for summary judgment on March 7,2013, which was supported by the affidavit of Niral Shah, the attorney-in-fact for the entity serving as manager of Multibank. Following a hearing on April 15, 2013, the trial court granted summary judgment to Multibank.

1. In his first two enumerations of error, Ware complains that he was not aware that the hearing held by the trial court would pertain to Multibank’s motion for summary judgment and that the trial court never ruled on Multibank’s request for oral argument filed in conjunction with its motion for summary judgment. Ware cites neither to the record nor to any legal authority to support his claims of error. Moreover, an independent review of the record shows that not only was Ware present at the hearing, where he argued against Multibank’s motion, he also filed both an opposition to Multibank’s motion and a cross-motion on April 1, 2013. Thus, Ware’s first and second enumerations of error are without merit. See, e.g., Chae v. Saehan Bank, 321 Ga. App. 833, 835 (2) (742 SE2d 169) (2013) (finding no error in the trial court’s procedure used to grant summary judgment where the defendant was not surprised by the motion and was allowed to and did submit defenses to the motion).

2. In his third, fourth, fifth, sixth, seventh, and ninth enumerations of error, Ware challenges various aspects of Shah’s affidavit. In her affidavit, Shah sets out her role and personal access to and knowledge of the records created and maintained by Multibank in the ordinary course of business, including the FDIC’s transfer of Omni’s records to Multibank in the ordinary course of business. She also references and authenticates various documents, including the three Notes and their corresponding deeds to secure debt, the omnibus assignments and allonges that transferred the Notes to Multibank from the FDIC as Receiver for Omni, the limited power of attorney executed by the FDIC granting authority to the attorney who executed the assignment documents, and the payment histories for the Notes.

Ware first argues that because Shah was never employed by Omni, she has no personal knowledge of how Omni conducted business or kept its records and therefore is unable to authenticate the records attached to her affidavit. We have consistently rejected similar arguments in the past. Because the hearing on Multibank’s motion for summary judgment took place after January 1, 2013, the provisions of Georgia’s new Evidence Code apply. See Ga. L. 2011, pp. 99, 214, § 101. Under our new code, business records may be admissible as a hearsay exception:

Unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness . . . , a memorandum, report, record, or data compilation, in any form ... if (A) made at or near the time of the described acts, events, conditions, opinions, or diagnoses; (B) made by, or from information transmitted by, a person with personal knowledge and a business duty to report; (C) kept in the course of a regularly conducted business activity; and (D) it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness or by certification ....

OCGA § 24-8-803 (6). We find that Shah has sufficiently authenticated those records she relied on and attached to her affidavit. See SKC, Inc. v. eMag Solutions, LLC, 326 Ga. App. 798, 803 (3) (755 SE2d 298) (2014); see also Fed. Deposit Ins. Corp. v. Sri Chakra Group LLC, No. 5:13-CV-268-MTT, 2014 U.S. Dist. LEXIS 12701, at *11 (M.D. Ga. Feb. 3, 2014) (“As several courts have noted, employees of successor entities can authenticate business records of their predecessor entities that pass to them by virtue of merger.”); RADC/CADC VENTURE 2010-2, LLC v. Hunt Valley Properties, LLC, No. 1:10-CV-3395-RWS, 2012 U.S. Dist. LEXIS 98789 (N.D. Ga. July 17, 2012).

As we understand several of his remaining enumerations of error related to Shah’s affidavit, Ware also calls into question the trustworthiness of the business records relied on by Shah because of the circumstances under which Omni was closed and the FDIC was appointed as Receiver. We are not persuaded. Federal courts that have examined the trustworthiness prong of the business record exception to the hearsay rule have noted that, generally, “bank records are particularly suitable for admission under Rule 803 (6) in light of the fastidious nature of record keeping in financial institutions, which is often required by governmental regulations.” See, e.g., St. Paul Mercury Ins. Co. v. Fed. Deposit Ins. Corp., No. 08-21192-CIV-GARBER, 2011 U.S. Dist. LEXIS 103135, at *12 (S.D. Fla. Sept. 13, 2011); FirstMerit Bank v. Balin, No. 11 C 8809, 2012 U.S. Dist. LEXIS 129747, at **10-11 (N.D. Ill. Sept. 11, 2012) (admitting records of predecessor bank and noting that otherwise “it would be extremely difficult for a successor bank to recover debt owed to a failed bank” which would “inhibit the FDIC in its receivership role when it must find solvent banks to take over insolvent banks”).

Although Ware repeatedly refers to the prosecution of certain former Omni executives related to fraudulent schemes to overvalue Omni’s reported assets, he does not argue — much less offer any evidence in support — how those alleged schemes relate specifically to the Notes he executed. Moreover, Ware has not disputed that he is in default on the Notes, nor has he offered any specific dispute as to the amount he owes. Therefore, we decline to accept Ware’s conjectural complaints about the trustworthiness of the documents submitted by Multibank. See St. Paul Mercury Ins. Co., 2011 U.S. Dist. LEXIS 103135, at **14-15; FirstMerit Bank, 2012 U.S. Dist. LEXIS 129747, at*10 (“Defendants have failed to present any evidence other than their unsupported personal opinions to call into doubt the accuracy or trustworthiness of the business records and documents.”).

And finally, Ware points out that although Shah references the documents within her affidavit and appears to have relied on them in determining the payment amount demanded, she failed to attach the payment history for the Third Note. He therefore argues that her affidavit must fail. We agree, but only to the extent Shah relied on the missing payment history. See, e.g., Powers v. Hudson & Keyse, LLC, 289 Ga. App. 251, 252 (1) (656 SE2d 578) (2008) (“where records relied upon and referred to in an affidavit are neither attached to the affidavit nor included in the record and clearly identified in the affidavit, the affidavit is insufficient”) (citations and punctuation omitted). However, even where a portion of Shah’s affidavit is inadmissible, that fact does not invalidate the entire affidavit. See Hodges v. Putzel Electric Contractors, Inc., 260 Ga. App. 590, 596 (3) (580 SE2d 243) (2003) (“[W]e must examine all the affidavits and determine whether parts of them are actually based on the affiants’ personal knowledge ... which would make those parts admissible.”). We find the remainder of Shah’s affidavit and corresponding documents admissible, and therefore, examine those remaining portions to determine whether they are sufficient to establish summary judgment in favor of Multibank.

“In an action on a promissory note, a movant may establish a prima facie right to judgment as a matter of law on the issue of liability by producing the promissory note and showing that it was executed.” (Citation and punctuation omitted.) Alexander v. Wachovia Bank, Nat. Assn., 305 Ga. App. 641, 642 (700 SE2d 640) (2010). Because Multibank has presented each of the three Notes it has sued on and shown that they were executed by Ware, it has sufficiently established liability on each Note as a matter of law. See id. However, “[w]here a party sues for damages, it has the burden of proof of showing the amount of loss in a manner in which the trial judge can calculate the amount of the loss with a reasonable degree of certainty.” (Citation and punctuation omitted.) Myers v. First Citizens Bank & Trust Co., Inc., 324 Ga. App. 293, 296 (2) (750 SE2d 378) (2013). Attached to Shah’s affidavit were the three Notes, whose express terms establish the original principal amount, the applicable interest rate, and method for calculating attorney fees in the event of default. Shah also attached the payment history for the First and Second Notes to her affidavit. We find these documents sufficient to establish the amount of damages as to the First and Second Notes. See, e.g., Angel Business Catalysts, LLC v. Bank of the Ozarks, 316 Ga. App. 253, 256-257 (2) (728 SE2d 854) (2012); Kensington Partners, LLC v. Beal Bank Nevada, 311 Ga. App. 196, 198-199 (3) (715 SE2d 491) (2011).

With respect to the Third Note, however, Multibank’s failure to include the documents referenced by Shah in her affidavit to determine the amount of damages owed by Ware precludes summary judgment on that issue. See Hanna, 323 Ga. App. at 328-329 (4) (trial court erred in granting summary judgment as to damages where the bank provided insufficient proof of same). Although, based on the current record, the amount of damages is insufficiently certain, our holding in this regard does not mean that Multibank’s damages as to the Third Note would never be susceptible to summary adjudication. See, e.g., SKC, Inc., 326 Ga. App. at 803 (3).

3. In his eighth and tenth enumerations of error, Ware complains of the trial court’s failure to “rule on” various interrogatories presumably served on Multibank. Ware wholly fails to support these arguments with either record citations or relevant legal authority. “ [Ware’s] failure to provide any cogent argument or citation of authority in support of [these] alleged [errors] constitutes a waiver.” Vadde v. Bank of America, 301 Ga. App. 475, 478 (1) (a) (687 SE2d 880) (2009).

4. In his eleventh enumeration of error, Ware asserts that the allonges submitted by Multibank in support of their motion for summary judgment failed to meet the necessary requirements for admissibility such that Multibank is unable to prove a valid assignment. In support of his argument, Ware provides a citation to one Georgia case, Tallahassee Bank & Trust Co. v. Raines, 125 Ga. App. 263 (187 SE2d 320) (1972). However, although Raines stands for the proposition that an allonge must be “so firmly affixed to the instrument as to become an extension or part of it,” this Court concluded that even where the allonge was not so affixed, the bank was nonetheless an assignee, but took the notes subject to any defense which could be raised against the maker. Id. at 264 (1); see also Adams v. Madison Realty & Development, Inc., 853 F2d 163,166 (3rd Cir. 1988) (relying on the Uniform Commercial Code to explain that in order to become a holder in due course — an advantageous status which cuts off certain defenses — the holder must meet certain technical requirements, including a firmly affixed allonge). Here, the records on which Multibank relied in support of its motion for summary judgment evidenced a complete chain of assignments, and Ware has raised no valid defense to Multibank’s claims. See Big Sandy Partnership, LLC v. Branch Banking & Trust Co., 313 Ga. App. 871, 872 (723 SE2d 82) (2012) (“In response to [the bank’s] motion for summary judgment, the Debtors were not entitled to rest on allegations in their pleadings to establish affirmative defenses on which they had the burden of proof at trial, but were required to come forward with or point to specific facts in the record to establish affirmative defenses.”). Accordingly, this claim of error fails. See, e.g., Heritage Constr. Corp. v. State Bank & Trust Co., 316 Ga. App. 25, 27 (728 SE2d 703) (2012).

Decided April 30, 2014.

Reginald B. Ware, pro se.

Hartman Simons & Wood, Jill D. Prussack, Jared M. Lina, for appellee.

5. In his final enumeration, Ware contends that the trial court erred by failing to allow a jury trial where he did not expressly waive that right. However, where there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law, summary judgment is proper. OCGA § 9-11-56 (c). Because we find that the trial court did not err in granting summary judgment to Multibank as to liability on each of the Notes or as to the damages related to the First and Second Notes, but did err as to its determination of the damages related to the Third Note, we affirm the trial court’s grant of summary judgment in part and reverse in part and remand for further proceedings consistent with this opinion.

Judgment affirmed in part and reversed in part, and case remanded.

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

       Court of Appeals Rule 25 (a) (1) provides: “Record and transcript citations shall be to the volume or part of the record or transcript and the page numbers that appear on the appellate record or transcript as sent from the trial court.” In addition, Court of Appeals Rule 25 (c) (2) (i) provides: “Each enumerated error shall he supported in the brief by specific reference to the record or transcript. In the absence of such reference, the Court will not search for or consider such enumeration.”

       See Court of Appeals Rule 25 (a) (1).

       See Court of Appeals Rule 25 (c) (2); Blanton v. State, 324 Ga. App. 610, 616, n. 10 (751 SE2d 431) (2013) (finding appellant abandoned any potential claim of error where he failed to cite to authority in support of such claim).

       The rules of this court are not intended to provide an obstacle for the unwary or the pro se appellant. Briefs that do not conform to the rules . . . are not merely an inconvenience or grounds for refusing to consider a party’s contentions. Such briefs hinder this court in determining the substance and basis of an appellant’s contentions both in fact and in law and may well prejudice an appellant’s appeal regardless of the amount of leniency shown.
      (Citation and punctuation omitted.) Williams v. State, 318 Ga. App. 744, 744-745 (734 SE2d 745) (2012).

       On March 15, 2007, the First Note was modified to increase the principal balance to $99,925.

       Where appropriate, we will refer to the First, Second, and Third Notes collectively as “the Notes.”

       Each Note provided for an annual interest rate of 13 percent and attorney fees equal to 15 percent of the principal and interest due in the event of default.

       The notice complained of was the trial court’s notice to the parties that the matter was scheduled on the trial calendar beginning April 15, 2013.

       Ware does not explain how a failure to rule on Multibank’s request for oral argument prejudiced him. Moreover, at the hearing, Ware admitted that he learned the week before that Multibank’s motion for summary judgment would be considered at that time.

       See, e.g., Angel Business Catalysts, LLC v. Bank of the Ozarks, 316 Ga. App. 253, 255-256 (1) (728 SE2d 854) (2012) (“where routine, factual documents made by one business are transmitted and delivered to a second business and there entered in the regular course of business of the receiving business, such documents are admissible [as business records]”) (citation and punctuation omitted); Jenkins v. Sallie Mae, Inc., 286 Ga. App. 502, 503 (2) (649 SE2d 802) (2007); Boyd v. Calvary Portfolio Svcs., Inc., 285 Ga. App. 390, 391 (1) (646 SE2d 496) (2007) (documents of predecessor were properly admitted as business records of successor business and trial court did not err in granting summary judgment based on the evidence contained therein); see also former OCGA § 24-3-14 (b).

       Because OCGA § 24-8-803 mirrors Rule 803 of the Federal Rules of Evidence, we will look to case law from federal courts within the Eleventh Circuit for guidance in interpreting that statute. See Ga. L. 2011, p. 99, § 1; Barnum v. Coastal Health Svcs., 288 Ga. App. 209, 215 (2) (b) (653 SE2d 816) (2007).

       We note that although the original principal loan amount in the Third Note was $96,125, Shah alleges in her affidavit that Ware now owes $96,413.38 in unpaid principal without an explanation as to how that amount was determined.

       We further note that, based on the record before us, Ware did not file a motion to compel or any other discovery motion related to the complained of interrogatories.

       “An allonge is a piece of paper attached to a promissory note on which parties write endorsements for which there is no room on the instrument itself.” (Citation omitted.) Milestone v. David, 251 Ga. App. 832, 832, n. 1 (555 SE2d 163) (2001).

       “Aparty may assign to another a contractual right to collect payment, including the right to sue to enforce the right. But an assignment must be in writing in order for the contractual right to be enforceable by the assignee.” (Citation and punctuation omitted.) Hosch v. Colonial Pacific Leasing Corp., 313 Ga. App. 873, 874 (2) (722 SE2d 778) (2012).


author: Boggs, Judge.

text:
    A14A0590.
    LITTLE v. THE STATE.
    (758 SE2d 133)
   Boggs, Judge.

The trial court revoked Dennis Little’s three-year suspended sentence that was imposed under the First Offender Act for three counts of abandonment of a dependent child. Little appeals from the trial court’s denial of his subsequent “Motion to Correct Void Sentence.” Because the trial court was not authorized to revoke Little’s suspended sentence, the sentence imposed is void. We therefore reverse the denial of Little’s motion and vacate his sentence.

The record reveals that in 2009, at a bench trial, Little was found to have committed three counts of felony child abandonment and was sentenced to serve three years on each count to run concurrently. But the court withheld the adjudication of guilt under the provisions of the First Offender Act (OCGA § 42-8-60 et seq.), and ordered that the three-year sentence be suspended on the condition that Little make child support payments of $1,200 per month. On February 2, 2012, Little stipulated that he was in violation of his suspended sentence, and the trial court revoked the suspension and ordered that Little serve the three years of incarceration.

On May 31, 2012, Little filed a “Motion to Declare Judgment Void,” which the court denied on July 16, 2012. He filed an untimely notice of appeal from that order, and we dismissed the notice for lack of jurisdiction. On May 13,2013, Little filed a “Motion to Correct Void Sentence,” which motion the trial court denied on September 18, 2013. It is from this order that Little now appeals, arguing that his sentence is void because the trial court was without authority to revoke the suspended sentence.

A sentence that is void “is a mere nullity and may be vacated at any time in any court where it becomes material to the interest of the parties to consider it. A sentence is void if the court imposes punishment that the law does not allow.” (Citations and punctuation omitted.) Garibay v. State, 290 Ga. App. 385, 386 (1) (659 SE2d 775) (2008). Little was found guilty on three counts of abandonment of a dependent child. OCGA § 19-10-1 (j) (1) provides that in such a prosecution and conviction, “the trial court may suspend the service of the sentence imposed in the case, upon such terms and conditions as it may prescribe for the support, by the defendant, of the child or children abandoned during the minority of the child or children.” Subsection (j) (2) provides, however, that:

Decided April 30, 2014.

Dennis Little, pro se.

T. Craig Earnest, District Attorney, Thomas S. Bishop, Assistant District Attorney, for appellee.

Service of any sentence suspended in abandonment cases maybe ordered by the court having jurisdiction thereof at any time before the child or children reach the age of 18 or become emancipated, after a hearing as provided in paragraph (1) of this subsection and a finding by the court that the defendant has failed or refused to comply with the terms and conditions upon which service of the sentence was suspended by the court having jurisdiction thereof.

(Emphasis supplied.)

The record here reveals that on February 2, 2012, when the trial court ordered that Little serve the three-year sentence, his youngest child was eight days from reaching his nineteenth birthday. Because none of the children that Little was found guilty of abandoning were under the age of 18 at the time of the revocation of the suspended sentence, the court was without authority to order that he serve the sentence. The sentence is therefore void because it imposes a punishment that the law does not allow. See, e.g., Long v. State, 324 Ga. App. 882, 897-898 (8) (752 SE2d 54) (2013) (sentence exceeding statutory maximum); see also Wilson v. State, 244 Ga. App. 224, 226-227 (2) (534 SE2d 910) (2000) (vacating unauthorized felony sentence under OCGA § 19-10-1 (b) when violation was misdemeanor). We therefore reverse the trial court’s denial of Little’s motion and vacate his sentence.

Judgment reversed and sentence vacated.

Barnes, P. J., and Branch, J., concur.

       We address only this argument as it was raised for the first time in Little’s 2013 “Motion to Correct Void Sentence.” We do not address Little’s enumerations regarding the indictment and the superior court’s jurisdiction, as those issues were raised in his prior dismissed appeal. See Howard v. State, 289 Ga. 207, 207 (1) (710 SE2d 761) (2011) (issues raised in earlier dismissed appeal will not be considered in subsequent appeal); Ross v. State, 310 Ga. App. 326, 328 (713 SE2d 438) (2011) (while a void sentence is a nullity and may be vacated at any time, “this important legal principle is, nevertheless, subject to the equally well established principles of res judicata and the law-of-the-case rule once the issue has been raised and ruled upon. [The defendant] is not entitled to multiple bites at the apple.”) (citation and footnote omitted).


author: BARNES, Presiding Judge.

text:
    A14A0039.
    PETRO v. THE STATE.
    (758 SE2d 152)
   BARNES, Presiding Judge.

After a bench trial, the trial court found John Tony Petro guilty of two counts of aggravated assault, two counts of terroristic threats, two counts of possession of a knife during the commission of a crime, and one count of family violence battery based on an altercation he had with his girlfriend and her ex-boyfriend. The trial court subsequently denied his motion for new trial. Petro appeals, challenging the sufficiency of the evidence. He also contends that his convictions for terroristic threats should have merged into his convictions for aggravated assault. For the reasons discussed below, we affirm.

Following a bench trial, we view the evidence in the light most favorable to the trial court’s verdict. Hinton v. State, 319 Ga. App. 673 (738 SE2d 120) (2013). So viewed, the evidence showed that Petro lived with his girlfriend and her three children at her residence in Effingham County. On the night in question, Petro and his girlfriend had been drinking and got in a heated argument over text messages that the girlfriend’s ex-boyfriend had sent to her. The girlfriend’s ex-boyfriend and her niece were at the residence during the argument.

During the argument, Petro’s girlfriend left the residence at one point. She returned a little while later and went to lie down in the master bedroom. However, Petro followed her to the bedroom, cursed at her, and threw a drink on her. He then slapped his girlfriend in the face, forced her to the floor, and began choking her. After his girlfriend struggled free and told him to leave her alone, Petro left the bedroom.

Petro went to the kitchen and grabbed a butcher knife. The girlfriend’s ex-boyfriend and her niece were sitting in the living room and saw Petro with the knife. When Petro began walking back to the bedroom, the ex-boyfriend attempted to intervene and suggested that Petro “take a walk with him.” Petro pointed the knife at the ex-boyfriend and told him “to shut up and if he didn’t, he was next.” He also threatened the niece, warning her that “they’d find [her] floating up a river somewhere” if she tried to help.

Petro returned to the master bedroom, approached his girlfriend with the knife, threatened to kill her with it, and cut her in the face. He also threw his girlfriend against a dresser several times when she “wouldn’t do what he wanted [her] to do.” Ultimately, the girlfriend was able to wrestle the knife from Petro and throw it behind the bed and nightstand. After the girlfriend took the knife away, Petro slapped her in the face and left the bedroom. The girlfriend later testified that she feared for her life during the attack.

The niece walked up to the bedroom door as Petro’s girlfriend wrestled the knife away from him, and the niece saw Petro slap his girlfriend in the face before he walked out of the bedroom. After the attack ended, the girlfriend’s ex-boyfriend ran from the residence and called the police.

When police officers arrived at the residence, the girlfriend initially denied that Petro had attacked her but later told the officers what had happened after they separated her from Petro. The officers found the knife where the girlfriend had thrown it behind the bed and nightstand, and the niece took photographs of the girlfriend’s facial wound caused by the knife. While the officers were investigating the attack, Petro kept screaming that he loved his girlfriend and wanted to kiss her. The officers had the girlfriend’s ex-boyfriend, who appeared to be “in fear for his life,” crouch down behind a police car when they arrested Petro.

After his arrest, Petro wrote to his girlfriend from jail. Petro promised her that “[t]his will never happen again” and suggested that if “you and me tell the judge that we were both fighting the other, it will go easier in court because ... if not, I’m going to state jail time.”

Petro was indicted on two counts of aggravated assault for assaulting his girlfriend and her ex-boyfriend with the butcher knife, an object, which when used offensively against another, is likely to result in serious bodily injury; two counts of terroristic threats for threatening to kill his girlfriend and her ex-boyfriend; two counts of possession of a knife during the commission of a crime; and one count of family violence battery. Petro elected to be tried on these charges in a bench trial.

At the bench trial, Petro’s girlfriend and her niece testified to the events as summarized above. The State also introduced photographs of the facial injury that Petro’s girlfriend sustained from the butcher knife, the knife used in the attack, and the letters that Petro sent to his girlfriend from jail. The girlfriend’s ex-boyfriend did not testify. After the State rested, Petro chose not to testify and did not call any defense witnesses. Based on the evidence presented, the trial court found Petro guilty of all the charged offenses. Petro filed a motion for new trial, which the trial court denied, leading to this appeal.

1. Petro contends that there was insufficient evidence to convict him of two counts of aggravated assault, two counts of terroristic threats, and two counts of possession of a knife during the commission of a crime. When reviewing the sufficiency of the evidence,

we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence. We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(Citations and punctuation omitted.) Sidner v. State, 304 Ga. App. 373, 374 (696 SE2d 398) (2010). See Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979). Applying this standard, we conclude that the evidence presented at the bench trial was sufficient to sustain Petro’s convictions.

(a) Aggravated Assault. “A person may be found guilty of aggravated assault if the State proves (1) an assault and (2) aggravation by use of any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” (Citation and punctuation omitted.) Myrick v. State, 325 Ga. App. 607, 608 (1) (754 SE2d 395) (2014). See OCGA § 16-5-21 (a) (2). The State may prove an assault by showing that the defendant “[ajttempts to commit a violent injury to the person of another” or “[cjommits an act which places another in reasonable apprehension of immediately receiving a violent injury.” OCGA § 16-5-20 (a). See Lambert v. State, 325 Ga. App. 603, 605 (1) (754 SE2d 392) (2014). Here, the indictment alleged that Petro committed aggravated assault with a butcher knife “by moving toward [his girlfriend and her ex-boyfriend] while brandishing said knife.”

Petro’s girlfriend testified that he entered the bedroom with the butcher knife, placed it to her face, and cut her with it, causing her to fear for her life. The girlfriend’s testimony was sufficient to sustain Petro’s conviction for committing aggravated assault against her as alleged in the indictment. See OCGA § 24-4-8 (“The testimony of a single witness is generally sufficient to establish a fact____”); Lomax v. State, 319 Ga. App. 693, 694 (1) (738 SE2d 152) (2013) (noting that “the testimony of the victim, standing alone, was sufficient to sustain the conviction” for aggravated assault). See also Hartley v. State, 299 Ga. App. 534, 534-535, 537 (1) (683 SE2d 109) (2009) (affirming aggravated assault conviction where defendant brandished butcher knife in front of victim); Harris v. State, 233 Ga. App. 696, 697 (1) (505 SE2d 239) (1998) (affirming aggravated assault conviction where defendant wounded victim in mouth with knife).

Although the girlfriend’s ex-boyfriend did not testify, her niece testified that she saw Petro point the butcher knife at the ex-boyfriend when he tried to intervene. The niece also testified that the ex-boyfriend fled from the residence after being threatened with the knife and later crouched behind a police car “in fear for his life.” The niece’s testimony was sufficient to sustain Petro’s conviction for committing aggravated assault against the ex-boyfriend as alleged in the indictment. See McLeod v. State, 245 Ga. App. 668, 669 (3) (538 SE2d 759) (2000) (testimony of eyewitness who saw victim fleeing from defendant with an ax raised over his head was sufficient to sustain aggravated assault conviction).

(b) Terroristic Threats. “A person commits the offense of a terroristic threat when he or she threatens to commit any crime of violence with the purpose of terrorizing another.” (Citation and punctuation omitted.) Maskivish v. State, 276 Ga. App. 701, 703 (2) (624 SE2d 160) (2005). See OCGA § 16-11-37 (a). A defendant cannot be convicted of terroristic threats based “on the uncorroborated testimony of the party to whom the threat is communicated.” OCGA § 16-11-37 (a). “However, the quantum of corroboration need not in itself be sufficient to convict, but need only be that amount of independent evidence which tends to prove that the incident occurred as alleged.” (Citation, punctuation and footnote omitted.) Hobby v. State, 298 Ga. App. 52, 54 (1) (679 SE2d 72) (2009). Here, the indictment alleged that Petro made terroristic threats against his girlfriend and her ex-boyfriend by threatening to murder them.

The girlfriend testified that Petro threatened to kill her. Her testimony was corroborated by her niece’s testimony regarding Petro’s aggressive conduct leading up to and surrounding the threat, as well as by the photographs of the facial injury sustained by the girlfriend. See Hobby, 298 Ga. App. at 54 (1) (testimony of the victim’s son as to the defendant’s violent behavior surrounding the threat and evidence of victim’s injuries provided sufficient corroboration of the threat). The evidence thus was sufficient to sustain Petro’s terroristic threat conviction relating to his girlfriend. See id.

The girlfriend’s niece testified that she saw Petro holding the knife and threatening the ex-boyfriend that “he was next” if he attempted to intervene, and her testimony was sufficient to sustain Petro’s terroristic threat conviction relating to the ex-boyfriend. As we have explained, “there is no requirement that the victim testify for there to be sufficient evidence to sustain a conviction for terroristic threats,” and the statute “does not require corroboration of the testimony of a non-party.” (Citation and punctuation omitted.) Worthington v. State, 257 Ga. App. 10, 11 (570 SE2d 85) (2002).

(c) Possession of a Knife During the Commission of a Crime. “[0]ne who commits a crime against the person of another while having on or within arm’s reach of his or her person a... knife having a blade of three or more inches in length is guilty” of possession of a knife during the commission of a crime. (Citation and punctuation omitted.) Mitchell v. State, 283 Ga. 341, 342 (1) (659 SE2d 356) (2008). See OCGA § 16-11-106 (b). Here, the indictment alleged that Petro committed the offense by having the butcher knife in his possession during his commission of the aggravated assaults against his girlfriend and her ex-boyfriend.

As previously discussed, the girlfriend and her niece testified about Petro’s assault of the girlfriend and her ex-boyfriend with the butcher knife. While no witnesses testified to the length of the knife, the knife itself was introduced into evidence, and the trial court sitting as the trier of fact “was authorized to use its senses to determine if the knife blade was of the requisite length.” Mitchell, 283 Ga. at 342 (1). Hence, the evidence was sufficient to sustain Petro’s convictions for possession of a knife during the commission of a crime.

2. Petro also contends that his convictions for terroristic threats should have merged into his convictions for aggravated assault for sentencing purposes. Again, we disagree.

“It is axiomatic that Georgia law bars conviction for a crime that arises from the same criminal conduct included as a matter of fact or as a matter of law in another crime for which the defendant has been convicted.” (Citation and punctuation omitted.) Crowley v. State, 315 Ga. App. 755, 759 (3) (728 SE2d 282) (2012). When the same act or transaction constitutes a violation of two distinct criminal statutes, we apply the “required evidence” test adopted in Drinkard v. Walker, 281 Ga. 211 (636 SE2d 530) (2006), to determine whether one crime is included in the other pursuant to OCGA § 16-1-6 (1).

Under the required evidence test, neither offense is included in the other if each statutory provision requires proof of a fact which the other does not. Consequently, when each of two statutes requires proof of an additional fact which the other does not, an acquittal or conviction under one statute does not exempt the defendant from prosecution and punishment under the other, even though the charges are based on a single act.

(Citations, punctuation and footnote omitted.) Mason v. State, 312 Ga. App. 723, 726-727 (2) (a) (719 SE2d 581) (2011).

Applying this test, we conclude that no merger occurred in this case. To prove the two counts of aggravated assault, the State had to show that Petro committed an assault upon his girlfriend and her ex-boyfriend with the knife, an object, which when used offensively against another, is likely to result in serious bodily injury. See OCGA § 16-5-21 (a) (2). To prove the two counts of terroristic threats, the State had to show that Petro threatened to murder his girlfriend and her ex-boyfriend, with the purpose of terrorizing them. See OCGA § 16-11-37 (a). Thus, thecrimes of aggravated assault required proof of an assault with a knife upon the girlfriend and ex-boyfriend, while the crimes of terroristic threats required proof that Petro threatened to murder them. As such, the crimes of aggravated assault and terroristic threats required the State to prove at least one fact different from the other, and no merger occurred. See Vaughn v. State, 301 Ga. App. 55, 59-60 (4) (686 SE2d 847) (2009), overruled in part on other grounds, State v. Kelly, 290 Ga. 29, 32 (1) (718 SE2d 232) (2011) (convictions for aggravated assault with a knife and for making terroristic threat that defendant would kill the victim did not merge under “required evidence” test); McQueen v. State, 184 Ga. App. 630, 631-632 (2) (362 SE2d 436) (1987) (simple assault was not lesser included offense of making terroristic threats); Echols v. State, 134 Ga. App. 216, 218 (4) (213 SE2d 907) (1975) (aggravated assault and terroristic threats convictions did not merge).

It is true, as Petro notes in his brief, that the indictment in this case alleged in its entirety that Petro committed aggravated assault with a butcher knife “by moving toward [his girlfriend and her ex-boyfriend] while brandishing said knife and threatening to kill [them].” (Emphasis supplied.) Petro suggests that, given the specific way in which the indictment alleged that the aggravated assaults were committed and had to be proven at trial, the terroristic threats were lesser included offenses and thus merged into the aggravated assaults as a matter of fact. We are unpersuaded.

“In applying the Drinkard test, we consider the crimes as indicted and not every possible manner of committing a particular crime.” Franks v. State, 325 Ga. App. 488, 495 (3), n. 8 (758 SE2d 604) (2013). See Wilson v. State, 285 Ga. 224, 226 (2) (675 SE2d 11) (2009); Herrera v. State, 306 Ga. App. 432, 435 (3) (702 SE2d 731) (2010). But that rule does not change the result in this case. As we have explained, because the aggravated assault statute “requires proof of only one act, inclusion in the indictment of more than one such act is mere surplusage, which is unnecessary to constitute the offense, need not be proved, and maybe disregarded.” (Punctuation and footnote omitted.) Brown v. State, 313 Ga. App. 907, 908 (1) (723 SE2d 115) (2012). Here, evidence of Petro “moving toward [his girlfriend and her ex-boyfriend] while brandishing [the] knife” as alleged in the indictment was sufficient to sustain his convictions for aggravated assault, separate and distinct from any verbal threat made by him to kill the victims. See Hartley, 299 Ga. App. at 534-535, 537 (1) (evidence that defendant brandished butcher knife in front of victim was sufficient to sustain aggravated assault conviction). It follows that the language in the aggravated assault counts of the indictment referring to a “threat to kill” the girlfriend and ex-boyfriend constituted an “unnecessary specification of a legally unnecessary fact,” and was “mere surplusage” that was not required for proving those offenses. See Brown, 313 Ga. App. at 908 (1) (evidence that defendant pulled out a knife in front of victim was sufficient to sustain aggravated assault conviction, and thus language in the same count of the indictment that defendant also attempted to cut the victim with the knife was mere surplusage and did not have to be proved). As such, the State was not required to prove a “threat to kill” the girlfriend and ex-boyfriend to establish both the offenses of aggravated assault and terroristic threats, and so the crimes of terroristic threats were not mere lesser included offenses of the crimes of aggravated assault in this case.

Decided May 1, 2014.

Lastly, Petro cites to Zilinmon v. State, 234 Ga. 535, 538-539 (8) (216 SE2d 830) (1975), and In the Interest of C. S. G., 241 Ga. App. 37, 38-39 (2) (525 SE2d 106) (1999), to support his argument that his convictions should have merged. But Zilinmon applied the now-defunct “actual evidence” test for analyzing the merger issue and was expressly overruled by our Supreme Court in Drinkard, 281 Ga. at 217, n. 38. Likewise, In the Interest of C. S. G. was decided before Drinkard and used language consistent with the “actual evidence” test in analyzing whether terroristic threats was a lesser included offense of aggravated assault; thus, Petro’s reliance on that case is likewise misplaced. See Stuart v. State, 318 Ga. App. 839, 842 (734 SE2d 814) (2012) (discussing the “actual evidence” test and contrasting it with the “required evidence” test adopted in Drinkard).

Judgment affirmed.

Boggs and Branch, JJ., concur.

Stuart H. Patray, Robert L. Persse, for appellant.

Richard A. Mallard, District Attorney, Brian A. Deal, Assistant District Attorney, for appellee.

       Petro does not challenge his conviction for family violence battery.

       The aggravated assault averments in the indictment contained additional surplusage discussed infra in Division 2.

       Because the present case was tried in September 2010, the new Georgia Evidence Code does not apply. SeeGa. L. 2011, p. 99, § 101 (“This Act shall become effective on January 1,2013, and shall apply to any motion made or hearing or trial commenced on or after such date.”).

       OCGA § 16-1-6 (1) provides:
      An accused may be convicted of a crime included in a crime charged in the indictment or accusation. A crime is so included when:... It is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged^]

       (Punctuation and footnote omitted). Quiroz v. State, 291 Ga. App. 423, 425-426 (1) (662 SE2d 235) (2008) (language in indictment alleging that defendant committed aggravated assault upon the victim with a knife by “holding a knife to [his] neck” was “an unnecessary specification of a legally unnecessary fact” because State did not have to prove that the knife was actually held up to the victim’s neck; it was sufficient that State proved that defendant only pointed the knife at the victim). See also In the Interest of J. A. C., 291 Ga. App. 728, 730 (2) (662 SE2d 811) (2008) (language in indictment charging defendant with “hitting” victim with baton was immaterial; it was sufficient that State proved that defendant “advanced on” the victim while holding the baton “before a hand-to-hand struggle over the baton”).


author: Dillard, Judge.

text:
    A14A0278.
    DILLARD v. THE STATE.
    (758 SE2d 158)
   Dillard, Judge.

Leonard Leroy Dillard appeals the trial court’s denial of his motion to withdraw his guilty plea to voluntary manslaughter. Specifically, Dillard contends that the plea was not freely and voluntarily made because the trial court failed to inform him of the constitutional right to confront his accusers. For the reasons set forth infra, we affirm.

The record establishes that on October 17, 2012, Dillard, who had been indicted on charges of malice murder and felony murder, pleaded guilty to the voluntary manslaughter of Verdell Moore. And during the course of the plea proceedings, Dillard completed by hand and signed a “sworn statement of defendant,” marking in the affirmative his understanding of eighteen statements. These statements included, inter alia, an affirmation of his understanding of the charges against him; the potential minimum and maximum penalties he faced; the right to trial by jury and waiver of same; and the rights inherent in a jury trial, including the rights to confront witnesses and to testify or to remain silent. Dillard also acknowledged that he had conferred with his attorney, and signed to confirm his understanding of the statements, swearing and affirming that his answers were “true, correct and voluntarily made.”

The transcript of the guilty-plea hearing reflects that the trial court questioned Dillard about his completion of the form. Dillard stated affirmatively that he reviewed the form’s questions with his attorney, that his answers were true and correct, and that he understood the substance of the form. The trial court then asked Dillard whether he understood that he had a right to a trial by jury on the charges of murder and felony murder and that, by pleading guilty, he would give up the right to trial by jury. The court also inquired as to whether Dillard understood that he would have a right to testify but could not be forced to testify or incriminate himself. The trial court then questioned Dillard as to his understanding of other rights he would have at trial as well, including the right to an attorney and to subpoena witnesses and present evidence. Dillard answered all of the foregoing questions in the affirmative. However, the trial court did not engage in a colloquy specifically as to Dillard’s right to confront his accusers. Thereafter, Dillard entered his plea.

Dillard later sought to withdraw his guilty plea within the same term of court, but the trial court denied same, finding that the guilty plea was knowingly and voluntarily entered. Dillard now appeals, solely contending that the plea was not knowingly and voluntarily entered because he was not informed of the constitutional right to confront his accusers. We disagree.

In Boykin v. Alabama, the Supreme Court of the United States held that when a defendant pleads guilty, he must be adequately advised of his rights (1) against self-incrimination, (2) to trial by jury, and (3) to confront his accusers. Here, while the record shows indisputably that the trial court did not inform Dillard of the right to confront his accusers on the record during the plea hearing, it does contain the “sworn statement of defendant,” which clearly informed Dillard of that right, and Dillard signed the form to affirm his understanding and that he had conferred with his attorney regarding same. Further, in response to inquiry by the trial court, Dillard acknowledged on the record that he understood the substance of the form and had reviewed it with his attorney. And because nothing in Boykin “requires the use of any precisely-defined language or ‘magic words’ during a guilty plea proceeding,” the form’s inclusion of the “right to confront the witnesses against” Dillard adequately conveyed, in a manner reasonably intelligible to him, the core principles of the right to confront his accusers. Accordingly, despite the trial court’s failure to include the right to confront his accusers in its colloquy with Dillard, there was clear evidence demonstrating that he was apprised of the three Boykin rights.

Decided May 1, 2014.

Brandi D. Payne, for appellant.

S. Hayward Altman, District Attorney, Samuel S. Olens, Attorney General, for appellee.

Judgment affirmed.

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

        See, e.g.,Merilien v. State, 321 Ga. App. 727, 728 (742 SE2d 754) (2013) (“The trial court’s jurisdiction to entertain a motion to withdraw a guilty plea ends after the term of court in which the judgment of conviction was rendered.”).

       395 U. S. 238 (89 SCt 1709, 23 LE2d 274) (1969).

        Id. at 243; see also Wilson v. Kemp, 288 Ga. 779, 780 (727 SE2d 90) (2011).

        See Brown v. State, 290 Ga. 50, 51-52 (1) (718 SE2d 1) (2011) (holding that, although the trial court did not fully inform the defendant of all three Boykin rights, the record established that the defendant was apprised of these rights when he completed a waiver-of-rights form and the trial court entered into a colloquy to ensure that the defendant had read the form with a full understanding, and the defendant acknowledged that he had reviewed the form with his attorney). Cf. State v. Hemdani, 282 Ga. 511, 512 (651 SE2d 734) (2007) (“First, it is undisputed that the trial court did not fully inform [the defendant] of his Boykin rights during his plea hearing. Second, there is no evidence of record that the trial court entered into any colloquy with [the defendant] to ensure that he read and fully understood the plea agreement which he signed. Third, there is no evidence that [the defendant’s] trial counsel discussed his Boykin rights with him or that it was her standard practice of doing so. Finally, there is no evidence that trial counsel actually went over the plea agreement with her client or any of the information that it contained. Therefore, this record provides nothing more than the state’s speculation that [the defendant’s] trial counsel might have possibly discussed his Boykin rights with him based on trial counsel’s act of signing the plea agreement.”).

        Brown, 290 Ga. at 52 (2).

        See Thomas v. State, 231 Ga. 298, 299 (1) (201 SE2d 415) (1973) (holding that defendant was adequately advised of the right to confront accusers when trial court asked whether defendant understood that he had “a right to face any witness against you and to be here whenever any witness testifies against you and to have your attorney ask any questions”). Cf. Brown, 290 Ga. at 52 (2) (holding that waiver-of-rights form adequately conveyed core principles of “the privilege against compulsory self-incrimination” through use of other wording); Rogers v. State, 286 Ga. 55, 55-56 & n.2 (685 SE2d 281) (2009) (holding that defendant was adequately advised by trial court of his right against self-incrimination despite use of other wording, and noting that defendant had also signed a statement as to his understanding that he was waiving the right not to incriminate himself); Foster v. State, 319 Ga. App. 815, 817 (2) (a) (738 SE2d 651) (2013) (“[T]he statements by the court and prosecutor during the plea colloquy, taken as a whole, conveyed the core principle that if [the defendant] did not enter a plea he could have a jury trial.”).

        See Brown, 290 Ga. at 51-52 (1); see also Askew v. State, 318 Ga. App. 454, 456 (2) (734 SE2d 222) (2012).


text:
    A11A2025.
    UNION CARBIDE CORPORATION et al. v. FIELDS et al.
    (758 SE2d 335)
   Miller, Judge.

In Georgia-Pacific, LLC v. Fields, 293 Ga. 499 (748 SE2d 407) (2013), the Supreme Court of Georgia reversed the judgment of this Court in Division 1 (d) of Union Carbide Corp. v. Fields, 315 Ga. App. 554 (726 SE2d 521) (2012), in which this Court affirmed the partial grant of summary judgment to Rhonda and Gary Fields on the defense of nonparty fault as it pertained to Central Moloney, Inc., Nehring Electrical Works Company, Phelps Dodge Cable & Wire, Southern States LLC and Southwire Company. Consequently, we vacate Division 1 (d) of our opinion in Union Carbide, supra, and in its place adopt the opinion of the Supreme Court as our own.

Decided May 5, 2014.

Alston & Bird, William C. Massey, Evert Weathersby Houff, Ivan A. Gustafson, Frances L. Spinelli, David L. Boohaker, Chivilis, Cochran, Larkins & Bever, John D. Dalbey, Nelson, Mullins, Riley & Scarborough, Lee Ann S. Anand, King & Spalding, Richard A. Schneider, for appellants.

Robert C. Buck, for appellee.

The Supreme Court did not address or consider Division 1 (a)-(c) or (e) of our earlier opinion, in which we concluded that the trial court properly granted partial summary judgment to the Fieldses on the defendants’ nonparty defense as it pertained to Georgia Power Company, Ford Motor Company, Genuine Parts Company, Chrysler LLC, General Motors, Asbestos Corporation Ltd., Atlas Asbestos, Johnson Mines, Nicolet Industries and Pacific Asbestos. Union Carbide, supra, 315 Ga. App. at 557-561 (1) (a)-(c) and 563-564 (1) (e). The Supreme Court also did not address or consider Division 2 of our earlier opinion in which we held that a factual issue remained as to causation with regard to Mrs. Fields’s exposure to Union Carbide’s product. Id. at 566 (2). Since those portions of our earlier opinion are consistent with the Supreme Court’s opinion, Division 1 (a)-(c), (e) and Division 2 of our earlier opinion “become binding upon the return of the remittitur.” Shadix v. Carroll County, 274 Ga. 560, 563 (1) (554 SE2d 465) (2001).

Accordingly, we reverse the grant of partial summary judgment to the Fieldses on the defendants’ nonparty defense as it pertained to Central Moloney, Inc., Nehring Electrical Works Company, Phelps Dodge Cable & Wire, Southern States LLC and Southwire Company. We affirm the grant of partial summary judgment to the Fieldses on the defendants’ nonparty defense as it pertained to Georgia Power Company, Ford Motor Company, Genuine Parts Company, Chrysler LLC, General Motors, Asbestos Corporation Ltd., Atlas Asbestos, Johnson Mines, Nicolet Industries and Pacific Asbestos.

Judgment affirmed in part and reversed in part.

Ellington, P. J., and Doyle, P. J., concur.


text:
    A11A2322.
    THE STATE v. HIPP.
    (758 SE2d 336)
    Decided May 5, 2014.

      W. Jeffrey Langley, District Attorney, Jeremy D. Clough, Assistant District Attorney, for appellant.

      Jeffrey L. Wolff, for appellee.
   Miller, Judge.

In Hipp v. State, 293 Ga. 415 (746 SE2d 95) (2013), the Supreme Court of Georgia reversed this Court’s opinion in State v. Hipp, 314 Ga. App. 520 (724 SE2d 825) (2012). We therefore vacate our earlier opinion, adopt the opinion of the Supreme Court as our own, and affirm the trial court’s judgment.

Judgment affirmed.

Ellington, P. J., and Doyle, P. J., concur.