author: Doyle, Judge.

text:
    A10A1620.
    GOVERNOR’S TOWNE CLUB, INC. v. J. W. THOMASON, INC.
    (706 SE2d 602)
   Doyle, Judge.

This case arises from entry of a judgment of special lien and default judgment filed by J. W Thomason, Inc. (“Thomason”) against Governor’s Towne Club, Inc., f/k/a Governor’s Club, Inc. (“the Club”) for concrete forming work performed by Thomason in the Club’s common area.

The Club argues that the trial court erred by awarding judgment for a special lien and for default judgment based upon substituted service because Thomason’s affidavit filed pursuant to OCGA § 14-11-209 (f) was defective. We agree and reverse.

OCGA § 14-11-209 (f) states that

[w]henever a limited liability company shall fail to appoint or maintain a registered agent in this state or whenever its registered agent cannot with reasonable diligence be found at the registered office, then the Secretary of State shall be an agent of such limited liability company upon whom any process, notice, or demand may be served. Service on the Secretary of State of any such process, notice, or demand shall be made by delivering to and leaving with him or her or with any other person or persons designated by the Secretary of State to receive such service two copies of such process, notice, or demand. The plaintiff or his or her attorney shall certify in writing to the Secretary of State that the limited liability company failed either to maintain a registered office or appoint a registered agent in this state and that he or she has forwarded by registered or certified mail or statutory overnight delivery such process, notice, or demand to the most recent registered office listed on the records of the Secretary of State and that service cannot be effected at such office.

The Club contends that Thomason’s affidavit sworn by Thoma-son’s attorney, Andrew A. Lewis, was defective because Lewis failed to certify that he forwarded the service of process to the Club via “registered or certified mail or statutory overnight delivery. . . ,” Instead, Thomason’s affidavit merely states that he “properly sent” a summons to the Club at the last known address of its registered agent, referring to an attached sheriffs entry of service that states only that the summons was forwarded via first-class mail, not registered or certified mail or statutory overnight delivery, to the registered agent’s last known address. Whether the copy of the summons and complaint was “properly sent,” however, is a conclusion to be drawn based on the evidence presented in the affidavit, which does not support a finding here that Thomason forwarded service via registered or certified mail or statutory overnight delivery. Thus, the affidavit was defective at the time that it was certified to the Secretary of State, and the requirements of OCGA § 14-11-209 (f) were not fulfilled when Thomason attempted substituted service.

Thomason argues that at the hearing on the motion for default judgment, which was not recorded, the trial court found that Thomason had complied with the requirements of OCGA § 14-11-209 (f). Although normally the trial court is presumed to act correctly under the law in the absence of a transcript of a hearing, because in this case the affidavit was facially defective at the time it was served on the Secretary of State, the trial court erred by finding otherwise.

DeCided February 24, 2011.

Scott M. Stevens, for appellant.

Dietrick, Evans, Scholz & Williams, John A. Williams, Riley, Rosner & McLendon, Donald R. Hicks, Daniel J. Weber, for appellee.

Judgment reversed.

Ellington, C. J., and Andrews, J., concur.

       Based on this conclusion, we do not reach the Club’s second enumeration of error.

       (Emphasis supplied.)

       OCGA § 14-11-209 (f). Compare with Anthony Hill Grading, Inc. u. SBS Investments, LLC, 297 Ga. App. 728, 730-731 (1) (678 SE2d 174) (2009) (holding that the trial court did not err by granting the motion to set aside default on the basis that the plaintiff failed to strictly comply with OCGA § 14-11-209 (f)).

       See Gamlins, Solicitors & Notaries v. A. E. Roberts & Assocs. Inc., 254 Ga. App. 763, 765 (2) (a) (564 SE2d 29) (2002).

       See, e.g., Hudson v. Easterling, 301 Ga. App. 207, 208 (1) (687 SE2d 163) (2009).

       See Anthony Hill Grading, Inc., 297 Ga. App. at 730-731 (1); Gamlins, Solicitors &

        Notaries, 254 Ga. App. at 765 (2) (a).


source: Caselaw Access Project

license: Public Domain

text:
    A10A1916.
    LAW v. THE STATE.
    (706 SE2d 604)
   Doyle, Judge.

Following a jury trial, George Law was found guilty of armed robbery and two counts of possession of a firearm during the commission of a felony. He appeals, arguing that the trial court erred by (1) denying his motion to suppress identification testimony and (2) denying his motion to suppress his custodial statement. He also challenges the sufficiency of the evidence. We affirm, for reasons that follow.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to support the verdict, and the defendant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Likewise, when reviewing the denial of a motion to suppress, we construe the evidence presented both at the suppression hearing and at trial in a light favorable to upholding the trial court’s findings and judgment.

So viewed, the record shows that on February 7, 2008, at approximately 2:30 a.m., brothers Patrick Horton and Immanuel Small left a nightclub and approached their car, which was in the parking lot across the street from the club. As Horton and Small entered their vehicle, an automobile pulled into the lot and parked nearby. Three men exited the car and approached Horton’s vehicle. One of the men, who was armed with a shotgun, ran from the driver’s side to the passenger’s side of the car repeatedly, pointing the gun at both Horton and Small. The gunman tried to break the driver’s side window with the butt of the shotgun and demanded that Horton roll down the window. Horton opened his door, and one of the men told him to “give it up.” As Horton unsuccessfully attempted to extricate his wallet from his pants pocket, one of the men punched him in the face with his fist. Small was also punched in the face by one of the men. Horton then exited the car, took off his pants, and gave them to one of the assailants. Small gave the men his wallet, as well as loose change and paper money from his pocket. The three men then returned to their car and left the scene.

A witness from the nightclub called 911 at 2:27 a.m., while the robbery was occurring, and the police arrived shortly thereafter. The victims described their assailants, and police issued a be-on-the-lookout (“BOLO”) broadcast for a light brown or silver Lexus occupied by four black males, last seen heading northbound on Martin Luther King Boulevard. Two of the assailants were described as black males, “one being approximately [5] foot [11], [6] feet in height, with shoulder[-]length dre[a]ds, late teens, early twenties. The other one is about [5] feet [10], medium dre[a]ds.”

Very shortly thereafter, police spotted a “silver tannish Lexus,” but lost track of it when it sped off toward the Frazier Homes housing project. The police proceeded to Frazier Homes, where they located the parked, unoccupied Lexus. An officer saw Law “crouched down,” setting a shotgun next to the side of a building. The officer detained him and took possession of the shotgun. Another officer detained Law’s co-defendant, Kenneth Jerome Bellamy, in the same complex. According to police records, Law and Bellamy were detained at 2:43 a.m., approximately 16 minutes after the eyewitness called 911.

The police transported Small and Horton to Frazier Homes and asked them whether they could identify Law and Bellamy, who were standing together, handcuffed. Horton and Small immediately identified both men as two of them who robbed them. Horton identified Bellamy as the man who punched him and took his pants. Small identified Law as the man who demanded his money and hit him in the face. The victims’ identification occurred within approximately 30 minutes of the robbery. The police questioned Law at the police station thereafter, and although he denied participating in the robbery, he admitted that he was at the scene at the time of the robbery. According to Law, he tried to stop the robbery, but was unsuccessful.

At trial, Small identified Law as his attacker, and Horton identified Bellamy. Small also testified that the shotgun, which police recovered from Frazier Homes with Law, “look[ed] like the gun” used to rob him. The jury found Law guilty of armed robbery of Small and two counts of possession of a firearm during the commission of a felony. This appeal followed.

1. Law argues that the trial court erred by failing to suppress the identification evidence at trial, claiming that the showup was imper-missibly suggestive and gave rise to a substantial likelihood of misidentification. Specifically, Law contends that the fact that Law and Bellamy were shown as a pair to the victims at the same time was particularly suggestive.

As explained in Brooks v. State,

[testimony concerning a pre-trial identification of a defendant should be suppressed if the identification procedure was impermissibly suggestive and, under the totality of the circumstances, the suggestiveness gave rise to a substantial likelihood of misidentification. The taint which renders an identification procedure impermissibly suggestive must come from the method used in the identification procedure. An identification procedure is impermissibly suggestive when it leads the witness to an all but inevitable identification of the defendant as the perpetrator, or is the equivalent of the authorities telling the witness, “this is our suspect.”
A showup identification has been held to be inherently suggestive, but not necessarily inadmissible. A trial court uses a two-part test in determining whether evidence of pre-trial identification should be excluded. First, the court determines whether the identification procedure was im-permissibly suggestive, and upon a finding in the affirmative, the court considers whether there was a very substantial likelihood of irreparable misidentification.

In the instant case, pretermitting whether the circumstances surrounding the showup rendered it impermissibly suggestive, the trial court did not err in concluding that, given the totality of the circumstances, there was no substantial likelihood of misidentification. Small identified Law within 30 minutes of the offense. Small “got a good look” at all of the assailants, and he “was [100] percent sure” and “knew for a fact that” Law was the man who demanded money and punched him in the face, noting that “it was fresh in [his] head.”

“Given the totality of these circumstances, the trial court was authorized to find that no substantial likelihood of irreparable misidentification existed. Accordingly, it properly denied [Law’s] motion to suppress.”

2. Law also argues that the trial court erred by failing to suppress his statements to the police because he invoked his right to remain silent. We find no basis for reversal.

The police transported Law to the police station, where Detective Sean Aaron Carr read him his Miranda rights. Carr asked him if, “having these rights in mind,” Law was willing to speak to police, and Law answered, “yes.” Detective Carr then completed the waiver of rights form, which lists a suspect’s Miranda rights, followed by two questions: (1) “Do you understand each of these rights I have explained to you?”; and (2) “Having these rights in mind, are you willing to talk to us now?” After each question, there were two boxes, one labeled “yes,” and the other labeled, “no,” followed by a space labeled, “[i]nitials.” Carr placed a check mark next to “yes” for both questions and then asked Law to place his initials next to those responses. Law placed his initials in the initials space after the question asking if he understood his Miranda rights, but following the question asking if he was willing to speak to police, Law placed his initials in the space labeled “no” instead of the initials space. Carr asked if Law meant that he was not willing to speak to the police, and Law “went back and said yes, he was willing to speak to [the detective,] and he initialed next to yes.” Although most of Law’s substantive statement to Carr was recorded, the conversation between the two men regarding the waiver was not recorded. According to Carr, although he thought he turned on the recording device when he began advising Law of his Miranda rights, he later realized that the device was not recording and turned it on during his questioning of Law.

Law argues that his statement should have been suppressed because based on the waiver form, “it appears [Law] invoked his right, and the [d]etective then initiated conversation with [Law] again.” Law contends that because the Miranda warning was not recorded, “it is impossible to know what transpired with the Miranda waiver.” We find no basis for reversal.

“Of course, an accused may end a custodial interrogation at any time by invoking his constitutional right to remain silent. To do so, a defendant must unambiguously and unequivocally express his desire to invoke that right. And any invocation of the right must be scrupulously honored.”

There is good reason to require an accused who wants to invoke his or her right to remain silent to do so unambiguously. A requirement of an unambiguous invocation of Miranda rights results in an objective inquiry that avoids difficulties of proof and provides guidance to officers on how to proceed in the face of ambiguity. If an ambiguous act, omission, or statement could require police to end the interrogation, police would be required to make difficult decisions about an accused’s unclear intent and face the consequence of suppression if they guess wrong. Suppression of a voluntary confession in these circumstances would place a significant burden on society’s interest in prosecuting criminal activity. Treating an ambiguous or equivocal act, omission, or statement as an invocation of Miranda rights might add marginally to Miranda’s goal of dispelling the compulsion inherent in custodial interrogation. But as Miranda holds, full comprehension of the rights to remain silent and request an attorney are sufficient to dispel whatever coercion is inherent in the interrogation process.

Law did not testify at the suppression hearing, and thus, the only testimony in the record on this issue is that of Detective Carr. Based on Carr’s testimony and our review of the record, we conclude that Law’s invocation of his right to remain silent, if any, was equivocal because it conflicted with his immediately preceding verbal indication that he was willing to speak with Carr. Thus, Carr had no obligation to stop questioning him, and the officer’s attempt to clarify whether Law wished to speak with him was not improper. “Under the totality of the circumstances test, the trial court did not err in finding [Law’s] statements admissible.”

Decided February 24, 2011.

Phillips & Roberts, Amanda R. Roberts, for appellant.

Larry Chisolm, District Attorney, Ann M. Elmore, Assistant District Attorney, for appellee.

3. Finally, Law challenges the sufficiency of the evidence. This enumeration is without merit.

“[T]he testimony of a single witness is generally sufficient to establish a fact.” “Moreover, we do not determine the credibility of eyewitness identification testimony. Rather the determination of a witness’ credibility, including the accuracy of eyewitness identification, is within the exclusive province of the jury.” Thus, even though Law was found near a Lexus similar to that involved in the robbery, with a shotgun similar to that used in the attack, and Law admitted being present at the scene of the robbery, Small’s testimony alone is sufficient to authorize the jury’s verdict of guilty beyond a reasonable doubt.

Judgment affirmed.

Ellington, C. J., and Andrews, J., concur.

       OCGA § 16-8-41 (a).

       OCGA § 16-11-106 (b) (1).

       (Citation and punctuation omitted.) Frazier v. State, 305 Ga. App. 274, 274-275 (699 SE2d 747) (2010).

       Law was acquitted of the armed robbery charge against Horton.

       285 Ga. 246 (674 SE2d 871) (2009).

       (Punctuation and footnote omitted.) Id. at 248-249 (3).

       (Citations omitted.) Frazier, 305 Ga. App. at 278 (3).

       See id. at 278-279 (3).

        Freeman v. State, 306 Ga. App. 783, 785 (2) (703 SE2d 368) (2010). See also Frazier, 305 Ga. App. at 279 (3); Crawford v. State, 297 Ga. App. 187, 191 (2) (676 SE2d 843) (2009).

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

       (Punctuation omitted.) Barnes v. State, 287 Ga. 423, 425 (2) (696 SE2d 629) (2010).

       (Citations and punctuation omitted.) Berghuis v. Thompkins,_U. S._(III) (A) (130 SC 2250, 176 LE2d 1098) (2010).

       See Perez v. State, 283 Ga. 196, 200 (657 SE2d 846) (2008); Turner v. State, 287 Ga. 793, 795 (3) (700 SE2d 386) (2010).

        Turner, 287 Ga. App. at 795 (3).

       OCGA § 24-4-8.

       (Punctuation omitted.) Freeman, 306 Ga. App. at 784 (1).

       See id.; Frazier, 305 Ga. App. at 275 (1).


author: Dillard, Judge.

text:
    A10A1922.
    JONES v. LOPEZ-HERRERA.
    (706 SE2d 609)
   Dillard, Judge.

This appeal follows the dismissal of a complaint for failure to perfect service of process. For the reasons set forth infra, we affirm.

The record shows that appellant, Inyianie Jones, originally filed a complaint for damages, arising out of an October 24, 2007 car accident, against appellee, J. Soledad Lopez-Herrera, on June 30, 2008. The action was dismissed on or about August 30, 2009, for failure to prosecute and was then refiled on August 31, 2009. At the time of refiling (and again in September 2009), Jones filed a motion to serve Lopez-Herrera by way of a court-appointed process server, claiming that he had willfully avoided service of process in the previously dismissed action. Thereafter, Jones claims that Lopez-Herrera was personally served by the court-appointed process server at 5715 Hammond Drive, Norcross, Georgia 30071 on October 27, 2009, citing an affidavit of service signed by the process server and filed with the trial court.

Lopez-Herrera denies having been served with a copy of the complaint, and he filed a special answer, reserving all defenses arising from service, process and jurisdiction, and alleging that Jones’s complaint should be dismissed for failure of service. Lopez-Herrera then filed a motion to dismiss, in which he argued that he had not been properly served. In support of his motion, he filed an affidavit averring that he had not been served by the process server and did not reside at the service address.

Jones filed a response to Lopez-Herrera’s motion to dismiss, and included a second affidavit by the process server, which noted, inter alia, that a Hispanic male responding to the name Soledad accepted service of the complaint. In response, Lopez-Herrera filed an affidavit by Raul Lopez, in which he attested that Lopez-Herrera had been renting a room from him in Lilburn since October 2008. Finally, the battle of affidavits ended when Jones filed the affidavit of a private investigator moments before the hearing on Lopez-Herrera’s motion to dismiss, attesting to a skip trace that he had performed on Lopez-Herrera’s brother. The very next day, the trial court granted the motion to dismiss in a summary opinion. This appeal follows.

In considering Jones’s enumeration of error, we begin by noting that the question of “[wjhether evidence is sufficient to overcome facts reflected in a return of service is a matter addressed to the discretion of the trial court.” A return of service is prima facie evidence of personal service, and it may only be set aside when the defendant presents evidence that is “the strongest of which the nature of the case will admit.” A trial court’s findings of insufficient service of process (and its accompanying dismissal order) will be upheld on appeal absent a showing of an abuse of discretion. Moreover, factual disputes regarding service of process “are to be resolved by the trial court, and the court’s findings will be upheld if there is any evidence to support them.” And here, because we find support for the trial court’s decision and no abuse of discretion on its part, we affirm the dismissal of Jones’s complaint.

Specifically, the trial court was presented with evidence sufficient to support a grant of dismissal—i.e., that Jones failed to serve Lopez-Herrera within five days of the two-year statute of limitation expiring (as required by law). As previously noted, Jones’s court-appointed process server attested in his affidavit that the person he served at the Norcross address responded “Yes” when asked if he was “Soledad.” In contrast, Lopez-Herrera proffered evidence that (1) he did not reside in Norcross at the time service was attempted, (2) his brother resided at the Norcross address during the relevant time period, and (3) his brother advised him of Jones’s complaint after being provided with a copy of same by the process server. Additionally, Lopez-Herrera presented evidence from his landlord confirming that he had lived at a different residence since October 2008.

While there are undoubtedly conflicts in the evidence presented below, the trial court was authorized to resolve them against Jones. Indeed, it is well established that a copy of a summons and complaint left with a relative at a place other than a defendant’s residence is not sufficient service, and the burden is on a plaintiff to ascertain a defendant’s actual address. While Jones relies heavily on evidence that Lopez-Herrera had previously lived at the Norcross address in January 2008, that evidence is in no way inconsistent with the evidence presented by Lopez-Herrera that he moved from that residence ten months later in October 2008. Additionally, even the evidence obtained by Jones’s private investigator (which appears to be the sole method of investigation employed to determine Lopez-Herrera’s address), confirms that the Norcross residence belonged to Lopez-Herrera’s brother and not J. Soledad Lopez-Herrera, the person whose whereabouts were actually at issue. Faced with Lopez-Herrera’s evidence in direct contravention to Jones’s claims of service (as well as the undisputed fact that Jones took no further steps to ensure proper service), the lower court did not commit error in dismissing Jones’s complaint for insufficient service.

DeCided February 24, 2011.

Khadizeth Tour e-Hernandez, for appellant.

Cruser & Mitchell, Craig P. Terrett, for appellee.

For all of the foregoing reasons, we affirm the trial court’s dismissal of Jones’s complaint.

Judgment affirmed.

Barnes, P. J., and Blackwell, J., concur.

       Jones presents no evidence to support this allegation of past willful avoidance, and we did not consider the exhibit attached to her brief in support of same. See, e.g., Jones v. State, 304 Ga. App. 445, 447 n.10 (696 SE2d 346) (2010) (holding that exhibits attached to an appellate brief, but not included in the record transmitted by the trial court, cannot be considered on appeal); see also Jahncke Seru., Inc. v. Dep’t of Trans., 134 Ga. App. 106, 107 (213 SE2d 150) (1975) (“The brief cannot serve in the place of the record or the transcript for the purpose of demonstrating error or for supporting a claim of error.”); Finley v. Franklin Aluminum Co., 132 Ga. App. 70, 71 (1) (207 SE2d 543) (1974) (same).

       It is undisputed that Jones took no further action to perfect service on Lopez-Herrera after the filing of his answer.

        Bohorquez v. Strother, 287 Ga. App. 98, 99 (650 SE2d 765) (2007) (punctuation omitted); see also Glatfelter v. Delta Air Lines, Inc., 253 Ga. App. 251, 251 (1) (558 SE2d 793) (2002) (same).

        See, e.g., Baughan v. Alaoui, 240 Ga. App. 661, 663 (1) (524 SE2d 536) (1999); Harvey v. Harvey, 147 Ga. App. 154, 154 (1) (248 SE2d 214) (1978).

        Bohorquez, 287 Ga. App. at 99; see also Ballenger v. Floyd, 282 Ga. App. 574, 574 (639 SE2d 554) (2006) (“[The] proof must be not only clear and convincing, but the strongest of which the nature of the case will admit.” (punctuation omitted)); Baughan, 240 Ga. App. at 663 (“When a defendant in a lawsuit challenges the sufficiency of service, he bears the burden of showing improper service.” (punctuation omitted)).

        See, e.g., Patel v. Sanders, 277 Ga. App. 152, 153 (1) (626 SE2d 145) (2006); Franchell v. Clark, 241 Ga. App. 128, 130 (3) (524 SE2d 512) (1999); Terrell v. Porter, 189 Ga. App. 778, 779 (1) (377 SE2d 540) (1989).

         Patel, 277 Ga. App. at 153 (1); see also Terrell, 189 Ga. App. at 779 (1).

        See Bohorquez, 287 Ga. App. at 99-100 (affirming dismissal when affidavit of special-process server was contradicted by evidence that defendant was never served); Baughan, 240 Ga. App. at 663 (affirming denial of dismissal when defendant failed to carry burden of proof to challenge sufficiency of service).

        See OCGA § 9-3-33 (two-year statute of limitation for personal-injury actions); OCGA § 9-11-4 (c) (service must be made upon defendant within five days of expiration of statute of limitation).

       It is probable that a language barrier contributed to the confusion in this case, given that Lopez-Herrera’s primary language is Spanish. Additionally, the process server averred that the woman who answered the door “did not understand much English” and that, after he asked to speak with “Soledad Lopez” (which is not even the appellee’s full name), the woman looked back at a Hispanic male who then came to the door.

       Jones’s own private investigator averred that he performed a “skip trace” on Lopez-Herrera’s brother and found that the brother resided at 5715 Hammond Drive, Norcross, Georgia 30071. A copy of the skip-trace results was attached to the private investigator’s affidavit.

        See, e.g., Patel, 277 Ga. App. at 153 (1); Franchell, 241 Ga. App. at 130 (3); Terrell, 189 Ga. App. at 779 (1).

        See, e.g., Terrell, 189 Ga. App. at 779 (1) (“A copy of the summons and complaint left with a relative at a place other than appellee’s residence or usual place of abode is not sufficient service.”); Freeman v. Nodvin, 181 Ga. App. 663, 663 (1) (353 SE2d 546) (1987) (same).

        See, e.g., Sykes v. Springer, 220 Ga. App. 388, 389 (1) (469 SE2d 472) (1996) (“The burden is on a plaintiff to ascertain a defendant’s address including his proper county.”); Devoe v. Callis, 212 Ga. App. 618, 619 (1) (442 SE2d 765) (1994) (“The burden is on the plaintiff to ascertain a defendant’s residence, and that obligation does not arise only upon expiration of the statute of limitation.”).

        See Bohorquez, 287 Ga. App. at 99-100; Baughan, 240 Ga. App. at 663. When a plaintiff receives notice that there is an issue with service, we ordinarily analyze whether the plaintiff thereafter exercised the greatest possible diligence to perfect service. See, e.g., Ballenger, 282 Ga. App. at 575-76 (“[Defendant’s] answer asserting insufficiency of service put [plaintiff] on notice and she was then required to exercise the greatest possible diligence to ensure proper and timely service.”). But in the case sub judice, we need not do so because Jones concedes that she took no additional steps to perfect service (even contending that there was “no need to exercise greater due diligence”).

       Lopez-Herrera points to a number of procedural errors by Jones, upon which the lower court may have disposed of the case. However, because we can affirm the lower court’s decision based on evidence of insufficient process, Jones’s procedural errors need not be addressed.


text:
    A10A1966.
    MANGUM v. THE STATE.
    (706 SE2d 612)
   Dillard, Judge.

Following a jury trial, Gary Lamar Mangum was convicted of possession of methamphetamine, possession of marijuana, theft by receiving of a motor vehicle, fleeing and attempting to elude, reckless driving, two counts of obstruction, and driving with a suspended license, and was sentenced as a recidivist. Mangum argues that the evidence was insufficient to support his drug convictions and that the trial court erred in allowing similar-transaction evidence to be introduced at his trial. We find no reversible error and affirm.

On appeal from a criminal conviction, we view the record in the light most favorable to upholding the jury’s verdict, and Mangum no longer enjoys the presumption of innocence. We neither reweigh the evidence nor assess witness credibility, but determine only whether a rational trier of fact could have found the essential elements of the crimes charged beyond a reasonable doubt.

So construed, the evidence adduced at trial showed that on the morning of February 2, 2007, the victim discovered that her green Mercury Mystique had been stolen from the front yard of her Hall County home, and then reported the theft to the proper authorities. Approximately one week later, a uniformed police officer in a neighboring county was on routine patrol when he noticed that a green Mercury Mystique being driven by Mangum did not have a proper tag light. The officer began to follow Mangum because of this equipment violation and, after observing him make a suspicious maneuver, relayed the vehicle’s license-plate number to dispatch. The dispatcher informed the officer that the vehicle had been reported stolen, prompting the officer to request backup assistance and turn on his car-mounted video camera in preparation for a traffic stop.

Once his backup had arrived, the officer activated his blue lights and siren, and attempted, to no avail, to stop Mangum. Mangum fled, and continued to do so even after a third officer placed a spike strip into the roadway, which flattened the stolen vehicle’s tires. Mangum eventually bailed out of the vehicle and absconded on foot before finally surrendering to the officers.

Upon entering the vehicle, the officer immediately noticed that the ignition had been removed and was hanging down from the vehicle’s steering column. A subsequent search of the vehicle yielded the tools used in the commission of the theft (in addition to numerous other items), including a book that contained a syringe of what was later confirmed to be methamphetamine and a small bag containing what was later confirmed to be marijuana.

In addition to admitting a videotaped recording of the incident and the testimony of the officers involved in Mangum’s apprehension, the State presented testimony from the victim, who denied unequivocally that the drugs found in the vehicle belonged to her. She further denied that the contraband and most of the other items found in the vehicle were there when it was stolen. Finally, the State presented similar-transaction evidence of Mangum’s prior misdemeanor obstruction conviction, stemming from an incident in which he was at a friend’s residence and fled from law-enforcement officers who approached the residence in an attempt to serve an arrest warrant on his friend. Mangum was ultimately convicted of, inter alia, possessing methamphetamine and marijuana, and was sentenced by the trial court as a recidivist. This appeal follows.

1. Contrary to Mangum’s assertion, the evidence set forth supra was sufficient to support his convictions of possession of methamphetamine and possession of marijuana. In the absence of any evidence to the contrary, the jury was authorized to consider the rebuttable presumption that Mangum, as the sole driver of the stolen vehicle in question, had possession of and control over the contraband contained within that vehicle.

Mangum’s argument that evidence of his possession is rendered insufficient because the State failed to disprove that someone other than himself had equal access to the vehicle is misguided. While it is certainly true that

[affirmative] evidence showing that a person or persons other than the owner or driver of the automobile had equal access to contraband found in the automobile may or will, depending upon the strength of the evidence, overcome the presumption that the contraband was in the exclusive possession of the owner or driver,

this legal principle does not mean that the State must establish a negative fact. Rather, the burden on the State remains the same: to prove every element of the crimes charged beyond a reasonable doubt.

And here, the record is devoid of any evidence that someone other than Mangum had access to the interior of the vehicle, with the exception of the vehicle’s rightful owner (a week earlier), who emphatically denied knowledge of or involvement with the contraband and whose testimony the jury obviously chose to believe. To the extent one could speculate that someone else placed the drugs in the vehicle, the question as to whether the presumption of equal access was overcome was one for jury resolution. And in the absence of “unrebutted affirmative evidence demanding a finding of equal access,” the jury was authorized to convict Mangum of the drug-possession charges.

2. We likewise reject Mangum’s claim that the trial court’s admission of the similar-transaction evidence constituted reversible error. According to Mangum, the evidence of his prior conviction on an obstruction charge should have been excluded on the basis that it amounted to improper character evidence that was highly prejudicial and lacked probative value. This Court will only reverse a trial court’s decision to admit similar-transaction evidence, however, upon a finding that the trial court abused its discretion in doing so. We find no such abuse.

At the outset, we note that the trial court admitted the challenged evidence for the purpose of showing Mangum’s course of conduct only after conducting a hearing pursuant to Uniform Superior Court Rule 31.3 (B), which it was required to do. Mangum does not dispute that the State satisfied the criteria delineated in Rule 31.3 for the admission of similar-transaction evidence, but instead argues that the evidence lacked probative value in light of the fact that, as a matter of trial strategy, he did not contest the obstruction charges. Indeed, Mangum’s trial counsel conceded his client’s guilt as to the majority of the crimes charged during opening argument. Mangum’s trial defense focused solely on his contention that, despite committing the other crimes, he did not knowingly possess the drugs found inside the vehicle.

But even assuming that the similar-transaction evidence should have been excluded by the trial court, any error in its admission was harmless. In the face of videotaped evidence—all of which was seen by the jury—that Mangum was driving an obviously stolen vehicle, that he fled from officers who attempted to conduct a traffic stop, that he continued to lead the officers on a chase even after his tires had been flattened, that he ultimately exited the vehicle and ran on foot, and that methamphetamine and marijuana not belonging to the owner were found inside the vehicle in which Mangum was the sole occupant, we simply cannot conclude it highly probable that Man-gum’s previous obstruction of a law-enforcement officer in an unrelated case contributed to the guilty verdict on the drug charges at issue in the case sub judice.

Decided February 24, 2011.

Jennifer A. Trieshmann, for appellant.

Lee Darragh, District Attorney, Jennifer D. Hart, John G. Wil-banks, Jr., Assistant District Attorneys, for appellee.

Judgment affirmed.

Barnes, B J., and Blackwell, J., concur.

        See, e.g., Arellano v. State, 304 Ga. App. 838, 838 (698 SE2d 362) (2010).

        See, e.g., Hester v. State, 287 Ga. App. 434, 434 (651 SE2d 538) (2007).

       OCGA § 16-10-24 (a) (“[A] person who knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties is guilty of a misdemeanor.”).

       Although Mangum was also found to be in possession of methamphetamine during this prior incident, the State was precluded from making any reference to the existence of the drugs because it had failed to provide Mangum with proper notice of its intent to do so.

       OCGA § 16-13-30 (a) (“[I]t is unlawful for any person to purchase, possess, or have under his control any controlled substance.”).

        See, e.g., Miller v. State, 298 Ga. App. 792, 793-94 (1) (681 SE2d 225) (2009) (“An owner or driver of an automobile, in the absence of any circumstances to the contrary, is presumed to have possession and control of contraband found in the automobile.”); Ramirez v. State, 290 Ga. App. 3, 4 (1) (658 SE2d 790) (2008) (same); Davis v. State, 272 Ga. App. 33, 33-34 (611 SE2d 710) (2005) (same).

        Davis, 272 Ga. App. at 34; see Whipple v. State, 207 Ga. App. 131,132 (1) (427 SE2d 101) (1993) (“Where it is established that other persons had equal access to the vehicle, the application of a presumption of possession of any contraband found in it is not a sound, abstract principle of law and is a dangerous rule for the numerous owners of motor vehicles.” (punctuation omitted)); Nelson v. State, 199 Ga. App. 487, 488 (1) (405 SE2d 310) (1991) (“For the equal access rule to rebut the inference of defendant’s possession of contraband, affirmative evidence must be presented that a person other than the defendant had equal access to the premises where the contraband was found.”); Burrell v. State, 171 Ga. App. 648, 650 (6) (320 SE2d 810) (1984) (“To make an affirmative showing of equal access, it is not enough to show that others might have had equal access),] but it must affirmatively appear that others did have equal access.” (punctuation omitted)).

        See, e.g., Kidd v. State, 277 Ga. App. 29, 32-33 (2) (625 SE2d 440) (2005) (noting that the presumption that the owner or driver of an automobile is in possession of its contents is permissive only and does not diminish the State’s duty to prove every element of the crime charged beyond a reasonable doubt); Cochran v. State, 190 Ga. App. 884, 885 (1) (380 SE2d 319) (1989) (“It is not necessary that the State remove every possibility of defendant’s innocence, but only that the evidence be sufficient to convince the rational trier of fact of the defendant’s guilt beyond a reasonable doubt.” (punctuation omitted)).

        See Vaughn v. State, 301 Ga. App. 391, 392 (687 SE2d 651) (2009) (“It is the jury’s prerogative to choose what evidence to believe and what to reject. Issues regarding the credibility of witnesses are in the sole province of the jury and only the jury may analyze what weight will be given each witness’s testimony.” (punctuation omitted)).

        See, e.g., Cochran, 190 Ga. App. at 886 (1) (“Whether the evidence of equal access is sufficient to rebut any inference of possession is a question properly left to the jury.” (punctuation omitted)).

        See, e.g., Wilkerson v. State, 269 Ga. App. 190, 193 (2) (603 SE2d 728) (2004); Causey v. State, 274 Ga. App. 506, 507-08 (618 SE2d 127) (2005); Davis, 272 Ga. App. at 34; Cochran, 190 Ga. App. at 886 (1).

        See Arnica v. State, 307 Ga. App. 276, 283 (704 SE2d 831) (2010).

        See, e.g., Arnica, 307 Ga. App. at 283 (“Independent crimes are admissible to show motive, intent, plan, identity, bent of mind or course of conduct.” (punctuation omitted)).

       Prior to admitting evidence of a prior conviction, the trial court must conduct a hearing pursuant to Uniform Superior Court Rule 31.3 (B) in which the State must demonstrate (1) that it seeks to introduce the evidence not to raise an improper inference as to the defendant’s character but for some proper purpose, (2) that there is sufficient evidence to establish that the defendant committed the independent offense, and (3) that there is a sufficient connection or similarity between the independent offense and the crime charged so that proof of the former tends to prove the latter. Williamson v. State, 300 Ga. App. 538, 541 (2) (685 SE2d 784) (2009).

        See, e.g., Ward v. State, 262 Ga. 293, 295 (2) (417 SE2d 130) (1992) (“The ultimate issue in determining the admissibility of evidence of other crimes is not mere similarity but relevance to the issues in the trial of the case.” (punctuation omitted)); Wade v. State, 295 Ga. App. 45, 47 (670 SE2d 864) (2008) (“[I]n exercising discretion as to whether to admit the inflammatory evidence of prior acts, the court should consider whether the State’s need for the similar transaction evidence outweighs the prejudice inherent to the defendant.”); Smith v. State, 232 Ga. App. 290, 292 (1) (501 SE2d 523) (1998) (“Even if all of [the Rule 31.3] criteria are met, the trial court retains the sound legal discretion to exclude relevant similar crimes evidence on the ground that its probative value is substantially outweighed by the danger of unfair prejudice.” (punctuation omitted)).

        See, e.g., Duvall v. State, 305 Ga. App. 545, 548 (3) (699 SE2d 761) (2010) (“[T]he erroneous admission of similar transaction evidence may be harmless if there is such overwhelming evidence of the defendant’s guilt that it is highly probable that the error did not contribute to the guilty verdict.” (punctuation omitted)).

        See, e.g., McGee v. State, 267 Ga. 560, 562-64 (2) (480 SE2d 577) (1997) (holding harmless erroneously admitted evidence of defendant’s prior crime due to the overwhelming evidence against him); Bryant v. State, 304 Ga. App. 755, 758-59 (3) (697 SE2d 860) (2010) (same); Nesbitt v. State, 296 Ga. App. 139, 140 (1) (673 SE2d 652) (2009) (same); Jones v. State, 226 Ga. App. 721, 724 (1) (487 SE2d 618) (1997) (same); Weems v. State, 204 Ga. App. 352, 354-55 (419 SE2d 346) (1992) (same).


author: BARNES, Presiding Judge.

text:
    A10A2016.
    TEXTILE RUBBER AND CHEMICAL COMPANY, INC. v. THERMO-FLEX TECHNOLOGIES, INC. et al.
    (706 SE2d 728)
   BARNES, Presiding Judge.

This is the second appeal of this case, which arose out of a dispute between the parties over an agreement to sell certain carpet-making technology for $3 million. In the first appeal, we affirmed the trial court’s decision that the plaintiff, Thermo-Flex Technologies, Inc., was entitled to $500,000 in damages as a matter of law, based upon the defendant Textile Rubber and Chemical Company, Inc.’s failure to make an installment payment, but remanded the case for a jury to decide additional damage claims. Textile Rubber and Chemical Co. v. Thermo-Flex Technologies, 301 Ga. App. 491 (687 SE2d 919) (2009). On remand, Thermo-Flex moved for summary judgment against Textile on its claim for statutory attorney fees based on the $500,000 damages awarded. The trial court granted the motion. The third-party defendants, Larry Mullinax and Technology Works, Inc., also moved for summary judgment on the cross-claims brought against them by Textile, and the trial court likewise granted their motion. Textile now appeals these summary judgment rulings made by the trial court on remand. For the following reasons, we affirm the trial court’s grant of summary judgment to Thermo-Flex on its attorney fees claim and to the third-party defendants on Textile’s cross-claims for tortious interference with contract, breach of warranty, and indemnity. We reverse the trial court’s grant of summary judgment to the third-party defendants on Textile’s cross-claims for fraud, negligent misrepresentation, and breach of duty to principal.

When reviewing the grant... of a motion for summary judgment, this Court conducts a de novo review of the law and the evidence. To prevail at summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

(Footnotes omitted.) Smith v. Gordon, 266 Ga. App. 814 (1) (598 SE2d 92) (2004). See OCGA § 9-11-56 (c).

So viewed, the record showed that at all times relevant to this dispute, Larry Mullinax was the president and owner of 50 percent of the outstanding shares of Thermo-Flex Technologies, Inc., which was in the business of developing a thermoplastic recyclable backing system for carpets. Mullinax also was the president, chief executive officer, chief financial officer, and owner of Technology Works, Inc., a consulting firm in the area of thermoplastic technology.

Due to his expertise in the area, Textile Rubber and Chemical Company, Inc. hired Mullinax to serve as its consultant in the application of thermoplastic technologies in the flooring industry. Mullinax had previously been an employee of Textile and had a longstanding relationship with its founder. Textile paid Mullinax $100,000 a year for his role as a consultant. Mullinax informed Textile that his other company, Thermo-Flex, had developed a thermoplastic recyclable backing system that was ready to go to market and proposed a partnership between the two companies. Mullinax repeatedly advised Textile that the technology developed by Thermo-Flex did not produce a significant amount of “volatile organic compounds” (“VOCs”), which would raise environmental concerns and would be an important issue to potential customers. Textile chose not to perform its own independent testing of Thermo-Flex’s technology for VOCs after Mullinax advised that such testing was unnecessary and would be “a waste of money.”

Textile and Mullinax ultimately concluded that it made more business sense for Textile to simply purchase the thermoplastic backing technology from Thermo-Flex rather than form a partnership. Consequently, on August 11, 2006, Thermo-Flex sold its technology to Textile in return for $3 million in installment payments (the “Agreement”). The Agreement specified that Textile would make three separate payments of $500,000 to Thermo-Flex on the closing date of the sale, on January 1, 2007, and on December 31, 2007, respectively. The Agreement provided that the remaining $1.5 million would be paid in quarterly installments based upon a formula relating to Textile’s future net income and net profits. In addition to these installment payments, Textile agreed that it would “pay to [Thermo-Flex] all costs and expenses, including reasonable attorney[ ] fees incurred by [Thermo-Flex] in enforcing any of the covenants and provisions of this Agreement and incurred in any action brought by [Thermo-Flex] against [Textile] on account of the provisions hereof.”

With respect to the quality of the technology purchased, the Agreement provided that Textile was buying the technology

in an “as is” condition, that no warranties of any type (whether for merchantability or fitness for a particular purpose or use, express or implied, or otherwise) [were] being made by [Thermo-Flex], and that any and all such warranties [were] . . . expressly disclaimed to the fullest extent allowed by Georgia law. The bill of sale for the technology contained a similar disclaimer of all express or implied warranties.

Following execution of the Agreement, Textile paid the $500,000 due at closing and on January 1, 2007. In the summer of 2007, customers notified Textile that the technology produced problematic levels of VOCs. Textile launched its own investigation which confirmed the presence of considerable levels of VOCs. As a result, Textile informed Thermo-Flex that it would not be making the third $500,000 payment due on December 31, 2007, and that it planned to make certain modifications to its installment payments relating to future net profits.

Unwilling to accept Textile’s unilateral changes to the payment arrangements, Thermo-Flex sued Textile for anticipatory breach of contract and sought contractual damages of $2,000,000, plus accrued interest, court costs, and attorney fees. Textile counterclaimed for breach of contract on the ground that the technology was defective for containing problematic levels of VOCs. Textile also successfully moved to add Mullinax and Technology Works as third-party defendants and asserted cross-claims against them for tortious interference with contract, breach of warranty, fraud, negligent misrepresentation, breach of duty to principal, and indemnity.

The trial court thereafter granted partial summary judgment to Thermo-Flex, concluding that the uncontroverted evidence showed that Textile had committed an anticipatory breach of contract by unilaterally changing the payment arrangements. Regarding the measure of damages, the trial court ruled that Thermo-Flex was entitled to entry of judgment in the amount of $500,000 plus interest based upon Textile’s failure to make the December 31, 2007 installment payment. As to the $1.5 million in installment payments relating to Textile’s future net profits, the trial court ruled that Thermo-Flex was “entitled to some or all of the $1.5 million if it [could] show with reasonable certainty the extent to which [Textile] could have used the technology profitably.” Additionally, the trial court granted summary judgment to Thermo-Flex on Textile’s breach of contract counterclaim, reasoning that any oral representations concerning VOCs would constitute inadmissible parol evidence and could not be used to vary the plain terms of the warranty disclaimers in the Agreement. The trial court reserved ruling on the issue of attorney fees.

Textile appealed to this Court, and we affirmed in part and vacated in part the trial court’s decision. See Textile Rubber & Chemical Co. v. Thermo-Flex Technologies, 301 Ga. App. at 491. We affirmed the trial court’s grant of summary judgment in favor of Thermo-Flex on its claim for anticipatory breach of contract and against Textile on its counterclaim for breach of contract. Id. at 494-495 (1), 496-497 (3). We also affirmed the trial court’s entry of judgment in the amount of $500,000 plus interest for Textile’s refusal to make the December 31, 2007 installment payment. Id. at 494-495 (1). However, we vacated the trial court’s ruling as to the $1.5 million in installment payments relating to future net profits and held that Thermo-Flex was entitled to recover the present value of the $1.5 million after that value was determined by a jury using the formula set out in our opinion. Id. at 495-496 (2).

Following remand, Textile paid to Thermo-Flex the $500,000 plus accrued interest in satisfaction of the judgment relating to the unpaid December 31, 2007 installment payment. Thermo-Flex then moved for summary judgment on its claim for attorney fees predicated on its recovery of those damages. Thermo-Flex argued that it was entitled to attorney fees pursuant to OCGA § 13-1-11 because it made a proper written demand for those fees and Textile failed to pay the amount demanded. Textile responded that Thermo-Flex could not recover attorney fees because its demand letter failed to comply with the statutory notice requirements. Concluding that Thermo-Flex had made a demand for attorney fees that substantially complied with OCGA § 13-1-11, the trial court granted summary judgment to Thermo-Flex and entered judgment in the amount of $55,417.65, representing the amount of fees owed by Textile.

Mullinax and Technology Works also moved for summary judgment, contending that there were no genuine issues of material fact as to Textile’s cross-claims for tortious interference with contract, breach of warranty, fraud, negligent misrepresentation, breach of duty to principal, and indemnity. Textile responded that there were several disputed issues of material fact and that Mullinax and Technology Works had no standing to invoke or enforce the warranty disclaimers in the Agreement since they were not parties to that contract. Concluding that all of Textile’s cross-claims failed as a matter of law, the trial court granted summary judgment in favor of Mullinax and Technology Works. This appeal followed in which Textile challenges the two summary judgment decisions by the trial court on remand.

1. Textile first claims that the trial court erred in ruling that Thermo-Flex’s demand letter complied with the notice requirements imposed by OCGA § 13-1-11 for the recovery of attorney fees. We disagree.

OCGA § 13-1-11 establishes limits and procedures regarding obligations to pay attorney fees “upon any note or other evidence of indebtedness” and such obligations “contained in security deeds and bills of sale to secure debt.” OCGA § 13-1-11 (a), (b). The parties do not dispute that OCGA § 13-1-11 applies in this case. As a prerequisite to obtaining OCGA § 13-1-11 attorney fees, the party seeking the fees is required to issue a demand notice, which must

(1) be in writing, (2) to the party sought to be held on the obligation, (3) after maturity, (4) [state] that the provisions relative to payment of attorney fees in addition to principal and interest will be enforced, and (5) [state] that the party has 10 days from the receipt of such notice to pay the principal and interest without the attorney fees.

Gen. Elec. Credit Corp. of Ga. v. Brooks, 242 Ga. 109, 119 (249 SE2d 596) (1978). See OCGA § 13-1-11 (a) (3); Trust Assoc, v. Snead, 253 Ga. App. 475, 476 (1) (559 SE2d 502) (2002). “Substantial compliance with the notice requirement of OCGA § 13-1-11 is all that is required to allow for the recovery of attorney fees.” Community Marketplace Properties v. SunTrust Bank, 303 Ga. App. 403, 405 (1) (693 SE2d 602) (2010). See Gen. Elec. Credit Corp. of Ga., 242 Ga. at 118. “So long as a debtor is informed that he has 10 days from receipt of notice within which to pay principal and interest without incurring any liability for attorney fees[,] the legislative intent behind the enactment of [OCGA § 13-1-11] has been fulfilled.” (Emphasis omitted.) Gen. Elec. Credit Corp. of Ga., 242 Ga. at 118.

Here, Thermo-Flex relied upon a demand letter that its counsel sent to Textile’s counsel by e-mail and first class mail, return receipt requested, on January 9, 2009 (the “Demand Letter”). The Demand Letter quoted the attorney fees provision contained in the Agreement and stated that Thermo-Flex intended to enforce that provision in this case. The Demand Letter further provided: “Pursuant to OCGA § 13-1-11, notice is herewith given that Textile . . . may avoid the obligation to pay [Thermo-Flex’s] attorney[ ] fees by paying the open principal balance due under the Agreement of $2,000,000 within ten (10) days of your receipt of this letter.” The $2,000,000 represented the unpaid $500,000 installment payment due on December 31, 2007 plus the unpaid $1.5 million in quarterly installment payments relating to Textile’s future net profits. Textile did not make any payments to Thermo-Flex within ten days of receiving the Demand Letter; Textile instead waited and paid $500,000 plus interest to Thermo-Flex after this Court affirmed the entry of judgment in that amount on December 9, 2009. Thermo-Flex then moved for attorney fees in the amount of $55,417.65 for its recovery of the $500,000 plus interest.

Textile argues that the Demand Letter did not substantially comply with the notice requirements of OCGA § 13-1-11 because it demanded payment of the full amount of Thermo-Flex’s claims, $2 million, not the $500,000 as to which Thermo-Flex was awarded summary judgment and upon which judgment had already been entered. Specifically, Textile contends that the Demand Letter was deficient because it demanded payment of $2 million even though (a) only $500,000 of Textile’s payment obligations has matured, and (b) Thermo-Flex ultimately will recover an amount less than the full “face value” of the $1.5 million payment obligation relating to future net profits, since a jury will be instructed to determine the present value of that obligation.

(a) Contrary to Textile’s contention, its full payment obligations have matured. An anticipatory breach of contract accelerates the maturity of the indebtedness and entitles the creditor to demand the face value of the total unpaid debt. See Valley View Church of God in Christ u. King, 236 Ga. 337, 337-338 (223 SE2d 701) (1976). Furthermore, a demand notice is timely and proper under OCGA § 13-1-11 even if the specific amount due under the contract will “not [be] fixed until the court’s judgment.” Kauka Farms v. Scott, 256 Ga. 642, 646 (5) (352 SE2d 373) (1987). Thus, upon Textile’s anticipatory breach of the Agreement, Thermo-Flex was entitled to issue a demand for the face value of the total remaining unpaid debt, $2 million, prior to the entry of judgment on the indebtedness.

(b) We likewise reject Textile’s argument that the Demand Letter was deficient because Thermo-Flex ultimately will recover an amount less than the face value of the $1.5 million payment obligation. A creditor substantially complies with the notice requirements of OCGA § 13-1-11 by setting forth the face value of the debt as reflected in the plain terms of the contract. See Carlos v. Murphy Warehouse Co., 166 Ga. App. 406, 408 (2) (304 SE2d 439) (1983); Shier v. Price, 152 Ga. App. 593, 595 (2) (263 SE2d 466) (1979). Moreover, a demand notice is sufficient under the statute, even if the face value reflected in the notice is different from the amount that a jury later determines to be due. See Kroger Co. v. U. S. Foodservice of Atlanta, 270 Ga. App. 525, 530-531 (3) (607 SE2d 177) (2004); Carlos, 166 Ga. App. at 408 (2); Williams v. First Bank & Trust Co., 154 Ga. App. 879, 883-884 (5) (269 SE2d 923) (1980). See also Kauka Farms, 256 Ga. at 646 (5) (“The notice required by OCGA § 13-1-11 could have been sent even though there was uncertainty as to the amount due.”). Accordingly, the Demand Letter substantially complied with OCGA § 13-1-11 by setting forth the face value of the unpaid debt obligation, $2 million, even if Thermo-Flex ultimately may recover somewhat less than that amount after a jury calculates its present value.

For these reasons, there was no genuine issue of material fact as to whether the Demand Letter issued by Thermo-Flex was defective under OCGA § 13-1-11. The trial court, therefore, correctly granted summary judgment to Thermo-Flex on its statutory attorney fees claim.

2. Textile next argues that the trial court erred in granting summary judgment to Mullinax and Technology Works on its cross-claims for breach of warranty, fraud, negligent misrepresentation, breach of duty to principal, and indemnity. We affirm the trial court’s grant of summary judgment on Textile’s cross-claims for breach of warranty and indemnity, but we conclude that there were genuine issues of material fact precluding summary judgment on the cross-claims for fraud, negligent misrepresentation, and breach of duty to principal.

(a) Textile maintains that the trial court erred in ruling that its cross-claim for breach of warranty against the third-party defendants could not succeed in light of the dismissal of its counterclaim for breach of warranty against Thermo-Flex. But, in its brief filed in the trial court, Textile conceded that summary judgment would be proper on this cross-claim if we affirmed the trial court’s grant of summary judgment to Thermo-Flex on Textile’s breach of warranty counterclaim. And we did affirm the trial court’s grant of summary judgment on Textile’s counterclaim in our previous decision, see Textile Rubber & Chemical Co., 301 Ga. App. at 496-497 (3), as the trial court noted in its order granting summary judgment to the third-party defendants on the breach of contract cross-claim. Textile cannot now undo its concession on appeal. “To consider the case on a completely different basis from that presented below would be contrary to the line of cases holding, ‘[A party] must stand or fall upon the position taken in the trial court.’ ” (Citation omitted.) Heard v. City of Villa Rica, 306 Ga. App. 291, 293 (1) (701 SE2d 915) (2010). See also Craig v. Bailey Bros. Realty, 304 Ga. App. 794, 798 (2), n. 3 (697 SE2d 888) (2010) (“We will not consider new arguments in opposition to a motion for summary judgment raised for the first time on appeal.”).

(b) Textile also maintains that the trial court erred in ruling that its fraud and negligent misrepresentation cross-claims failed as a matter of law because it could not prove reasonable reliance. Both fraud and negligent misrepresentation require the injured party to prove reasonable reliance upon the alleged misrepresentations of the tortfeasor. See Hardaway & Co. v. Parsons, Brinckerhoff, Quade & Douglas, Inc., 267 Ga. 424, 426 (1) (479 SE2d 727) (1997); Alexander v. A. Atlanta Autosave, 272 Ga. App. 73, 75 (1) (611 SE2d 754) (2005). The trial court held that Textile could not establish that it reasonably relied upon Mullinax’s alleged misrepresentations concerning the level of VOCs in Thermo-Flex’s thermoplastic backing technology, given that the Agreement contained disclaimer of warranty language.

The trial court’s ruling was erroneous because it incorrectly assumed that Mullinax and Technology Works were entitled to invoke and enforce the disclaimer provision of the Agreement even though they were not parties to that contract. The disclaimer provision in the Agreement referred only to warranties by the “Seller,” defined in the Agreement as Thermo-Flex. Nor did the disclaimer in the bill of sale refer to representations or warranties by non-contracting parties. Moreover, the mere fact that someone would benefit from the performance of a contract is insufficient to give that person standing to enforce the contract. Marvel Enterprises v. World Wrestling Federation Entertainment, 271 Ga. App. 607, 614 (5) (610 SE2d 583) (2005). Rather, there must be a showing that the person was a third-party beneficiary. Id. Here, neither Mullinax nor Technology Works claimed to be a third-party beneficiary of the Agreement. It follows that Mullinax and Technology Works had no standing to invoke or enforce the protections afforded by the Agreement in order to preclude the fraud and negligent misrepresentation cross-claims brought against them.

It is true that under certain circumstances, an agent of a contracting party may be entitled to rely upon a disclaimer or merger clause contained in the contract to preclude claims against the individual agent for his or her alleged representations. See Tampa Bay Finance v. Nordeen, 272 Ga. App. 529, 534 (2) (612 SE2d 856) (2005); Yee v. Barnwell, 193 Ga. App. 820, 822-823 (1) (389 SE2d 392) (1989). In the present case, however, Mullinax was not simply acting as an agent for Thermo-Flex in his dealings with Textile. Rather, Mullinax also had a pre-existing relationship with Textile under which he was being paid $100,000 a year to serve as a consultant and expert to Textile on the very technology forming the basis for the Agreement. Under these unique circumstances, a jury would be entitled to find that Textile reasonably relied on the representations made by Mullinax concerning the level of VOCs in Thermo-Flex’s technology, thereby giving Textile the false assurance that it could safely enter into an “as is” purchase agreement with Thermo-Flex. Accordingly, there were genuine issues of material fact on the issue of reasonable reliance that must be resolved by a jury rather than by the courts. See Potts v. UAP-GA AG CHEM, 256 Ga. App. 153, 156 (1) (567 SE2d 316) (2002) (“Whether reliance is reasonable is normally a question for the jury[.]”). The trial court thus erred in granting summary judgment to Mullinax and Technology Works on the fraud and negligence misrepresentation cross-claims.

(c) Textile further maintains that the trial court erred in ruling that its cross-claim for breach of duty to principal failed as a matter of law because it could not prove proximate cause. An essential element of a tort claim for breach of duty is that the alleged negligence be a proximate cause of the plaintiffs injury. See Hoffman v. Insurance Co. of North America, 241 Ga. 328, 329-330 (245 SE2d 287) (1978). The trial court held that proximate cause could not be established because Textile’s act of signing the Agreement with the disclaimer provision cut off any causal connection between Mulli-nax’s alleged misrepresentations and any damages that Textile suffered.

The trial court erred in concluding that a jury could not find that Mullinax’s alleged misrepresentations proximately caused Textile’s damages.

It is well settled that there can be no proximate cause where there has intervened between the act of the defendant and the injury to the plaintiff, an independent, intervening, act or omission of someone other than the defendant, which was not foreseeable by defendant, was not triggered by defendant’s act, and which was sufficient of itself to cause the injury.

(Citation omitted.) Pruette v. Phoebe Putney Memorial Hosp., 295 Ga. App. 335, 341 (1) (c) (671 SE2d 844) (2008). Hence, an intervening act does not break the causal connection between the defendant’s conduct and the plaintiffs injury, if the intervening act was triggered by the defendant’s conduct or could have reasonably been anticipated or foreseen by the defendant. See Walker v. Giles, 276 Ga. App. 632, 645 (2) (624 SE2d 191) (2005).

In the instant action, a jury could find that Textile’s act of entering into the Agreement containing the disclaimer provision was triggered by the misrepresentations of its paid consultant and expert, Mullinax. Likewise, a jury could find that Mullinax reasonably could have anticipated or foreseen that his misrepresentations concerning the level of VOCs while serving as a paid consultant and expert would lead Textile to enter into the Agreement. Proximate cause is generally an issue for the jury, see Walker, 276 Ga. App. at 643 (2), and there is no reason to deviate from this rule under the specific facts of this case. The trial court therefore erred in granting summary judgment to Mullinax and Technology Works on the cross-claim for breach of duty to principal.

(d) Finally, Textile maintains that the trial court erred in ruling that its indemnity cross-claim failed as a matter of law because it did not meet the requirements of such a claim under the common law.

The duty to indemnify may arise by operation of law, independently of contract. If a person is compelled to pay damages because of negligence imputed to him as the result of a tort committed by another, he may maintain an action for indemnity against the person whose wrong has thus been imputed to him. Here, no wrong has been imputed to [Textile], nor does [Textile] have any vicarious liability. Rather, [Textile’s] duty to pay stemmed from its contractual obligation [to Thermo-Flex]. Under these circumstances, common law indemnity principles do not apply.

Decided February 24, 2011.

Coppedge & Evans, Warren N. Coppedge, Jr., Joseph B. Evans, for appellant.

Edward Hine, Jr., Daniel R. Hoyt, for appellees.

(Punctuation and footnotes omitted.) Nguyen v. Lumbermens Mut. Cas. Co., 261 Ga. App. 553, 557 (2) (583 SE2d 220) (2003). It follows that the trial court did not err in granting summary judgment to Mullinax and Technology Works on the cross-claim for common law indemnity. See id.; North Georgia Elec. Membership Corp. v. Thomason & Holsomback Constr. Co., 157 Ga. App. 719, 720 (1) (278 SE2d 433) (1981).

Judgment affirmed in part and reversed in part.

Blackwell and Dillard, JJ., concur.

       Where, as here, the underlying contract “provides for the payment of reasonable attorney! 1 fees without specifying any specific percent,” OCGA § 13-1-11 provides that the party seeking fees may recover “15 percent of the first $500.00 of principal and interest owing on such note or other evidence of indebtedness and 10 percent of the amount of principal and interest owing thereon in excess of $500.00.” OCGA § 13-1-11 (a) (2). Textile does not challenge the trial court’s method of calculating the attorney fees or the specific amount of fees awarded; rather, Textile’s challenge is limited to whether the preconditions for such an award were met.

       Textile does not challenge the trial court’s grant of summary judgment on its cross-claim for tortious interference with contract or present any argument with respect to that claim in its appellate brief. Any challenge to that ruling by the trial court thus has been abandoned. See Court of Appeals Rule 25 (a) (3) and (c) (2); Steed v. Fed. Nat. Mtg. Corp., 301 Ga. App. 801, 804, n. 2 (689 SE2d 843) (2009).

       In Yee, the defendant served as an agent of both the buyer and seller, but he was not paid to act as the agent of the buyer. See Yee, 193 Ga. App. at 822-823 (1). Furthermore, the alleged fraud in Yee was that the defendant failed to disclose his ownership or interest in the seller company to the buyer, but the record showed that the buyer learned that the defendant held such an interest several months before executing the contract yet inquired no further. Id. We held that under those circumstances, “there [wasl no evidence to justify reliance on a fiduciary relationship” between the defendant and buyer. Id. at 822 (1). Here, in contrast, there was evidence in the record that Mullinax was paid a significant sum to serve as a consultant and expert to Textile, and Textile did not learn of the problematic levels of VOCs until after executing the Agreement because of Mullinax’s advice and recommendations as its consultant.

       Mullinax and Technology Works also contend that by entering into the Agreement containing the disclaimer provision, Textile was estopped from and waived any claim that it relied upon or was injured by the representations of Mullinax. Again, however, Mullinax and Technology Works’ contention is predicated upon the false assumption that they were entitled to rely upon the protections afforded by the Agreement, even though they were not parties to the contract, third-party beneficiaries, or merely agents of a contracting party.

       Textile does not contend that it had an express or implied indemnification contract with Mullinax and Technology Works.


text:
    A10A2218.
    JONES v. THE STATE.
    (706 SE2d 593)
   Doyle, Judge.

Matthew Trent Jones entered a nonnegotiated guilty plea to speeding, reckless driving, and passing in a no-passing zone. He appeals his sentence, arguing that the trial court erred by (1) sentencing him to 12 months, to serve 45 days in jail and the balance on probation on the speeding count; (2) imposing a $1,000 fine on the speeding count; and (3) ordering him to complete 400 hours of community service. For reasons that follow, we affirm the judgment of conviction, vacate the sentence, and remand the case for resen-tencing.

“The trial court has the discretion to impose sentence within the parameters prescribed by the statute and if the sentence is within the statutory limits, the appellate courts will not review it.” Viewed with this principle in mind, the record shows that Jones was charged with speeding (Count 1), reckless driving (Count 2), passing in a no passing zone (Count 3), passing on a curve (Count 4), following too closely (Count 5), and failure to signal a lane change (Count 6). Jones entered a nonnegotiated guilty plea to Counts 1, 2, and 3 in exchange for the State’s agreement to enter a nolle prosequi on Counts 4, 5, and 6. The trial court then sentenced Jones as follows: 12 months on each charge, to run consecutive to each other, with the first 45 days served in jail and the remainder on probation; a $1,000 fine on the speeding charge; and 400 hours of community service. He now appeals certain portions of his sentence.

1. Jones contends that the trial court erred by sentencing him on the speeding charge to 12 months, to serve 45 days in jail and the balance on probation, arguing that the speeding statute does not authorize a sentence of imprisonment or probation. This contention is without merit.

OCGA § 40-6-1 (a) provides that “unless otherwise declared in this chapter with respect to particular offenses, it is a misdemeanor for any person to do any act forbidden or fail to perform any act required in this chapter.” Thus, speeding, which is prohibited by OCGA § 40-6-181 (b), is a misdemeanor. Pursuant to OCGA § 17-10-3 (a) (1), except as otherwise provided by law, misdemeanors are punished “[b]y a fine not to exceed $1,000.00 or by confinement in the county or other jail, county correctional institution, or such other places as counties may provide for maintenance of county inmates, for a total term not to exceed 12 months, or both.”

Jones argues, however, that the enactment of legislation setting lower limits on speeding fines set forth in OCGA § 40-6-1 (b), which became effective on July 1, 2001, rendered the general misdemeanor punishment statute (OCGA § 17-10-3) inapplicable to speeding convictions. We disagree. OCGA § 40-6-1 (b) simply sets limits on fines that may be imposed as punishment for a first offense of speeding. It does not restrict the available punishment for speeding to a fine. Therefore, Jones’s sentence to serve 12 months for the speeding charge was within authorized limits.

2. Jones also argues that the trial court erred by imposing a $1,000 fine for the speeding charge.

OCGA § 40-6-1 (b) (6) provides that the maximum fine for a first offense of violating a maximum lawful speed limit “[b]y 24 or more but less than 34 miles per hour shall not exceed $500.00.” At the sentencing hearing, the trial court noted that Jones had a lengthy history of traffic violations, reading from “documents” provided by the State as follows:

1999, 85 in a 55; ... 61 in a 45, that was in 2000; again in 2000, same month, we’ve got 67 in a 45; 2001, March of 2001, failure to obey a stop sign; November of 2001, we’ve got a construction site speed zone violation; . . . December of 2002, 85 in a 70; March of 2003, improper passing; September of 2002, 51 in a 35; August of 2003, 68 in a 45; May of 2004, 87 in a 70; August of 2005, failure to obey a stop sign; June of 2005, 79 in a 55; . . . March of 2007, 45 in a 30; April of 2007, 64 in a 45; 12/16/07, failure to obey signs or control devices; . . . [and] January 2nd, 2008, 91 in a 65. . . .

Therefore, the State argues, the $500 fine limit prescribed in OCGA § 40-6-1 (b) (6) does not apply because the instant speeding conviction was not his first offense. Jones maintains, however, that because the State failed to tender into evidence his record or certified copies of the convictions, the trial court was not authorized to impose a fine in excess of $500.

As we have previously held, “[t]he time to challenge the validity of a prior conviction is at sentencing when the [S]tate attempts to prove such conviction.” Moreover, “[t]he requirement that prior convictions be proved by certified copies thereof is really an application of the ‘best evidence rule.’ The ‘best evidence rule’ may be waived.” Here, Jones did not object to the State’s failure to admit certified copies thereof, nor did he dispute that he had multiple convictions for traffic violations. In fact, at one point, when the trial court asked him whether any of his previous violations occurred while he was operating a motorcycle, Jones responded, “[t]he 91 in a 60 or 91 something,” implicitly admitting at least one prior conviction for speeding. Under these circumstances, we find no error in the trial court’s judgment sentencing Jones to a $1,000 fine for speeding.

3. In his final enumeration, Jones argues that the trial court erred by sentencing him to 400 hours of community service. We agree.

OCGA § 42-8-72 (a) (1) provides that “[c]ommunity service may be considered as a condition of probation” for traffic violations. The statute further provides, however, that the sentencing court may order “[n]ot less than 20 hours nor more than 250 hours in cases involving traffic or ordinance violations or misdemeanors. . . ,” The State concedes that the trial court erred to the extent that it ordered Jones to perform 400 hours of community service for one charge and requests that this Court remand this case for clarification by the trial court, suggesting that the trial court would be authorized to sentence Jones to up to 250 hours on each of the three convicted charges.

The State’s position is without merit. “ ‘Courts of last resort must frequently construe the language of a statute, but such courts may not substitute by judicial interpretation language of their own for the clear, unambiguous language of the statute, so as to change the meaning.’ ” The 250-hour maximum limit for community service hours set forth in OCGA § 42-8-72 (b) (1) specifically applies to “cases involving traffic . . . violations,” not to each traffic violation or charge as suggested by the State. Thus, the trial court erred by ordering Jones to perform 400 hours of community service as a condition of his probation. We therefore affirm Jones’s conviction, vacate his sentence, and remand the case to the trial court for resentencing consistent with this opinion.

Judgment of conviction affirmed, sentence vacated, and case remanded.

Decided February 24, 2011.

Benjamin D. Goldberg, Michael R. McCarthy, for appellant.

Kermit N. McManus, District Attorney, Benjamin B. Kenemer, Assistant District Attorney, for appellee.

Ellington, C. J., and Andrews, J., concur.

       (Punctuation omitted.) Pitts v. State, 231 Ga. App. 9 (498 SE2d 534) (1998).

       OCGA § 40-6-181 (b) (2).

       OCGA § 40-6-390 (a).

       OCGA § 40-6-46 (b).

       OCGA § 40-6-45 (a) (1).

       OCGA § 40-6-49 (a).

       OCGA § 40-6-123 (a).

       See Gregg v. State, 253 Ga. App. 243, 245 (7) (558 SE2d 729) (2001).

       See id.

       See Caputo v. State, 276 Ga. App. 477 (623 SE2d 687) (2005) (recognizing that speeding “is a misdemeanor and subjects [the defendant] to potential punishment as a misdemeanant,” including possible imprisonment); Gregg, 253 Ga. App. at 245 (7). Compare Chastain v. State, 231 Ga. App. 225, 228 (4) (498 SE2d 792) (1998) (holding that violations of OCGA § 40-6-253, which “criminalizes the act of operating a vehicle while in possession of an open container of alcohol and also prescribes its own punishment for such an act (i.e., a fine not to exceed $200),” are punishable “by the specific statute, OCGA § 40-6-253 (c), and not by the general misdemeanor statute”).

       See Caputo, 276 Ga. App. at 477; Gregg, 253 Ga. App. at 245 (7).

       Jones was charged with driving more than 100 miles per hour in a 70 miles-per-hour zone.

       Instead, the State maintains that the $1,000 fine limit set forth in OCGA § 17-10-3 (1), the general misdemeanor Code section, applies.

        Thompson v. State, 266 Ga. App. 29, 34 (3) (596 SE2d 205) (2004).

       (Citation omitted.) Moret v. State, 246 Ga. 5, 6 (3) (268 SE2d 635) (1980).

       See id. (holding that by failing to object to the oral testimony of the prosecutor regarding the defendant’s prior conviction, the defendant waived the objection that the State failed to produce a certified copy thereof); Thompson, 266 Ga. App. at 33 (3) (affirming recidivist sentencing because the State offered evidence of the defendant’s prior conviction, the defendant did not contest the conviction, and the trial court considered it in sentencing him as a recidivist).

       OCGA § 42-8-72 (b) (1).

       It is not clear from either the transcript of the sentencing hearing or the judgment whether the trial court intended to sentence Jones to 400 hours of community service for one or more counts or for the case as a whole.

        Richardson v. State, 276 Ga. 639, 640 (1) (581 SE2d 528) (2003).

       (Emphasis supplied.)