text:
    A13A2269.
    POUGH v. THE STATE.
    (754 SE2d 129)
   Miller, Judge.

A jury found Clifford Pough guilty under Count 1 of driving under the influence to the extent it was less safe to drive (“DUI less safe”) (OCGA § 40-6-391 (a) (1)) and guilty under Count 2 of driving with an unlawful alcohol concentration (“DUI per se”) (OCGA § 40-6-391 (a) (5)), based on the same conduct. Pough appeals from the denial of his motion for new trial, contending that the evidence was insufficient to establish his guilt for the DUI offenses. For the reasons that follow, we affirm in part and vacate in part.

Following a criminal conviction, we view the evidence in the light most favorable to the jury’s verdict, and the defendant is no longer presumed innocent. Davis v. State, 301 Ga. App. 484 (1) (687 SE2d 854) (2009).

We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find [Pough] guilty of the charged offense beyond a reasonable doubt. As long as there is some evidence, even though contradicted, to support each necessary element of the [S]tate’s case, the verdict will be upheld.

(Punctuation and footnotes omitted.) Id.

So viewed, the evidence shows that on the night of December 1, 2011, Sergeant Roger Bell of the Gwinnett County Police Department was patrolling Interstate 85 between Beaver Ruin Road and Old Peachtree Road. At approximately 11:50 p.m., Sergeant Bell noticed a gold Jeep along the northbound shoulder of the interstate. Sergeant Bell believed the motorist needed assistance so he pulled over to offer help. Upon exiting his patrol vehicle, Sergeant Bell noticed that no one was inside the Jeep and that the engine was running. As he approached the Jeep, Sergeant Bell saw Pough standing near the front right corner of the vehicle. Pough stated that he was on his way-home from shooting pool at a sports bar and he stopped his Jeep because he had to urinate. Sergeant Bell observed that Pough had a strong odor of alcohol coming from his breath, his speech was slow and slurred, and his eyes were very bloodshot. After Pough admitted to having a few drinks earlier that night, Sergeant Bell called for a member of the police department’s DUI Task Force.

Shortly thereafter, Officer Jordan Cyphers responded to the scene. Upon making contact with Pough, Officer Cyphers also observed that Pough had a strong odor of alcohol on his breath, his eyes were bloodshot and glazed, his speech was mumbled and slurred, and he had urinated on himself. Officer Cyphers asked Pough if he was willing to participate in field sobriety evaluations, and Pough responded in the affirmative. Officer Cyphers observed all six possible indicators on the horizontal gaze nystagmus evaluation, four of eight indicators on the walk and turn evaluation, and two of four indicators on the one-leg-stand evaluation. Pough also registered a positive reading on the alco-sensor test. Based upon failing the field sobriety evaluations, Pough was arrested for DUI less safe. Officer Cyphers then read Pough the implied consent warning, and Pough consented to the State’s intoxilyzer test. Pough’s two sequential breath samples registered blood-alcohol concentrations of 0.157 and 0.160.

1. Before turning to the merits of Pough’s appeal, we note that at sentencing, the trial court merged Count 1 (DUI less safe) and Count 2 (DUI per se) and gave Pough a single sentence. The trial court, however, failed to identify which count merged into the other or to identify on which count it was sentencing Pough.

Where two DUI charges are based on the same conduct, the evidence will not support convictions of two separate offenses. Even though the trial court enters only a single sentence, if that sentence applies to both DUI counts of the accusation, by definition the court has convicted defendant of two counts of DUI.

(Footnote omitted.) Hewett v. State, 244 Ga. App. 112 (534 SE2d 867) (2000).

Rather than remanding the case to clarify Pough’s sentence, we may elect to vacate one conviction and affirm the other where, as here, it is apparent that the trial court “considered the charges alternative and sentenced appellant for only one offense.” (Punctuation and footnote omitted.) Hewatt, supra, 244 Ga. App. at 113. As a result, we vacate the DUI per se conviction and affirm the DUI less safe conviction, which is supported by the evidence, as discussed in more detail below. See, e.g., Schoolfield v. State, 251 Ga. App. 52, 55 (3) (554 SE2d 181) (2001); Hewett, supra, 244 Ga. App. at 113.

2. Pough contends that the evidence was insufficient to support his conviction for DUI, because the evidence that he was driving was entirely circumstantial and he presented evidence that he was not driving. We disagree.

OCGA § 40-6-391 (a) (1) provides that “[a] person shall not drive or be in actual physical control of any moving vehicle while: . . . [ujnder the influence of alcohol to the extent that it is less safe for the person to drive.”

The crime of driving while under the influence to the extent that it is less safe to drive does not require proof that a person actually committed an unsafe act while driving; rather, it requires showing three elements: (1) driving, (2) under the influence of alcohol, (3) to the extent that it is less safe for the person to drive.

(Footnote omitted.) Jaffray v. State, 306 Ga. App. 469, 470-471 (1) (702 SE2d 742) (2010). Moreover,

[i]t is well settled that the driving of an automobile while intoxicated may be shown by circumstantial evidence. It is likewise settled that to sustain a judgment of conviction, the evidence need not exclude every inference or hypothesis except the guilt of the accused, but only reasonable inferences and hypotheses, so as to justify the inference, beyond a reasonable doubt, of guilt.

(Citations and punctuation omitted.) Stephens v. State, 271 Ga. App. 634, 635 (610 SE2d 613) (2005).

Here, Pough does not challenge the overwhelming evidence showing that he was impaired due to alcohol. Instead, he contends that the circumstantial evidence showing that he was driving could not support his conviction because he presented credible evidence that he was riding as a passenger in his Jeep before the police officer found him standing outside his vehicle. The jury, however, was entitled to reject this evidence in light of Pough’s statement to the police officer that he was, in fact, driving. See Dechant v. State, 294 Ga. App. 23, 25 (1) (668 SE2d 501) (2008) (jury authorized to disbelieve defendant’s assertion that he was not driving in light of his contradictory statements). Specifically, when questioned, Pough admitted that he was driving home when he stopped to urinate. The evidence also showed that when the police officer encountered Pough just outside his Jeep, the Jeep’s engine was running and that no one else was around. Consequently, “[although the officer did not see the car moving, he observed circumstances from which a jury could infer that [Pough] was in actual physical control of the car when it was moved to the location where the officer found it, and that [Pough] was intoxicated while moving it there.” (Citations omitted.) Stephens, supra, 271 Ga. App. at 635.

Decided January 15, 2014.

Clark & Towne, Jessica R. Towne, for appellant.

Rosanna M. Szabo, Solicitor-General, Kylene F. Armond, Assistant Solicitor-General, for appellee.

In addition to the circumstantial evidence that Pough was driving, the remaining evidence clearly established that he was under the influence of alcohol to the extent that it was less safe for him to drive. Notably, the evidence showed several indicators of impairment, Pough admitted that he had been drinking earlier that night, his breath samples revealed blood-alcohol concentrations of 0.157 and 0.160, and the officer opined that Pough was less safe to drive. See Pecina v. State, 274 Ga. 416, 418-419 (2) (554 SE2d 167) (2001) (affirming DUI less safe conviction where evidence showed a strong odor coming from driver’s breath, he admitted that he had been drinking, he had urinated on himself, and he almost fell down when he exitedhis vehicle); Jaffray, supra, 306 Ga. App. at 471 (1) (evidence supported DUI less safe conviction where officer opined that suspect was impaired driver, driver’s blood-alcohol concentration was above the legal limit, driver admitted to drinking, and driver smelled of alcohol and had watery, bloodshot eyes). As a result, the evidence was sufficient to sustain Pough’s conviction as to Count 1 (DUI less safe).

Judgment affirmed in part and vacated in part.

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

       At trial, Pough and his friend testified that the friend went to pick up Pough at the sports bar after he called her. They testified that the friend then drove Pough in his Jeep, while another individual followed them in the friend’s car. According to Pough and the friend, they got into an argument while driving, whereupon the friend stopped the Jeep, got out, entered her own oar, and left Pough on the side of the interstate.


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A13A2389.
    FAIRCLOTH v. THE STATE.
    (754 SE2d 133)
    Decided January 15, 2014.
    Don R. Faircloth, pro se.

   Miller, Judge.

Don Robert Faircloth, pro se, appeals the denial of his motion for an out-of-time appeal following his guilty plea. Finding no error, we affirm.

As acknowledged in his brief, Faircloth pled guilty on May 21, 1999 to possession of cocaine, less than 28 grams, OCGA § 16-13-30 (a), and received a sentence of three years intensive probation. Faircloth completed his sentence and was discharged. On May 16, 2013, Faircloth filed his motion for out-of-time appeal, which the trial court denied.

Faircloth appeals, contending that his 1999 conviction was improperly used to enhance his sentence on a 2010 case, Case No. 10-CR-109, as well as asserting numerous constitutional violations during his 1999 arrest and pro se guilty plea.

As the Supreme Court of Georgia has recently explained,

[t]he purpose of an out-of-time appeal in a criminal case is to address the constitutional concerns that arise when a defendant is denied his first appeal of right because the counsel to which he was constitutionally entitled to assist him in that appeal was professionally deficient in not advising him to file a timely appeal and that deficiency caused prejudice. So, a motion for an out-of-time appeal must be premised upon an allegation of a deprivation of the right to direct appeal due to trial counsel’s ineffective assistance.

(Citation and punctuation omitted.) Kemp v. State, 292 Ga. 795 (741 SE2d 652) (2013); see also Owens v. State, 321 Ga. App. 722, 723 (742 SE2d 752) (2013).

Since Faircloth’s “motion for out-of-time appeal did not allege that his failure to file a timely appeal of his [1999] conviction was due to any ineffective assistance of counsel,... the motion was therefore correctly denied.” McMullen v. State, 292 Ga. 355, 356 (2) (737 SE2d 102) (2013).

Judgment affirmed.

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

S. Hayward Altman, District Attorney, MaryK. McKinnon, Assistant District Attorney, for appellee.

       Because Faircloth timely filed his notice of appeal from the denial of his motion for out-of-time appeal, the State’s motion to dismiss his appeal is denied.


text:
    A13A2415.
    COMBS v. THE STATE.
    (754 SE2d 134)
   Miller, Judge.

Brian Keith Combs pled guilty to one count of burglary (OCGA § 16-7-1 (a) (2011)). Pursuant to the negotiated guilty plea, Combs was sentenced on July 17, 2012, to twenty years, with four to serve in confinement. Combs subsequently filed a pro se motion for a nunc pro tunc order to give him credit for time served in confinement awaiting trial. The trial court denied his motion, and Combs appeals from that order, contending that the trial court was required to correct his sentence to give him credit for time served.

Under OCGA § 17-10-11 (a), a convict should be given credit for time spent in confinement awaiting trial. The amount of credit, however, “is to be computed by the convict’s pre-sentence custodian, and the duty to award the credit for time served prior to trial is upon the Department of Corrections. OCGA § 17-10-12.” (Citation and punctuation omitted.) Cutter v. State, 275 Ga. App. 888, 890 (2) (622 SE2d 96) (2005). A trial court has no authority to interfere in the determination and award of credit for time served. Cochran v. State, 315 Ga. App. 488, 490 (727 SE2d 125) (2012); see also Cutter, supra, 275 Ga. App. at 890 (2).

If aggrieved by the calculations in awarding credit, [Combs] should have sought relief from the Department of Corrections. Dissatisfaction with that relief would not be a part of his direct appeal from his original conviction but would be in a mandamus or injunction action against the Commissioner of the Department of Corrections.

(Citations and punctuation omitted.) Id. at 890 (2).

An exception exists, however, “where the trial court in its written sentencing order gives gratuitous misdirection to the correctional custodians.” (Punctuation omitted.) Cochran, supra, 315 Ga. App. at 490. No such misdirection was given in this case. Rather, the trial court expressly directed the Department of Corrections to compute Combs’s sentence according to law and gave no further direction. Accordingly, the trial court did not err in denying Combs’s motion for a nunc pro tunc order.

Decided January 15, 2014.

Brian K. Combs, pro se.

Layla H. Zon, District Attorney, Elizabeth K. Grofic, Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: ELLINGTON, Presiding Judge.

text:
    A13A1826.
    CITY OF MILLEDGEVILLE v. PRIMUS.
    (753 SE2d 146)
   ELLINGTON, Presiding Judge.

Pursuant to a granted interlocutory appeal, the City of Milledgeville contends that the Superior Court of Baldwin County erred in denying its motion for summary judgment on sovereign immunity grounds. Because the City was immune from suit for the discretionary act of its employee, we must reverse the order of the superior court.

On appeal from the grant [or denial] of summary judgment, this Court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

(Citation and punctuation omitted.) Bomia v. Ben Hill County School Dist., 320 Ga. App. 423 (740 SE2d 185) (2013). So viewed, the record shows that the City had a contract with the Georgia Department of Corrections, under which the City provided vehicles for corrections officers to transport prison inmates who were performing labor for the benefit of the City. Under the contract, the City was responsible for maintaining the vehicles in working order.

On October 10, 2007, corrections officer Lucious Primus was driving an inmate transport bus from a work detail back to the prison when the brakes suddenly failed. Unable to stop the bus and concerned that he was about to run a red light at an upcoming intersection, Primus drove the bus off the road and into a utility pole. Although the bus suffered only minor damage, Primus allegedly suffered neck and shoulder injuries.

An inspection of the bus after the crash revealed that the front brake line had burst, causing the power assist to the front brakes to fail. The rear brakes, however, were still operable. There is no evidence in the record that the front brake line ruptured due to a defect that would have been visible upon inspection. Further, there is no evidence in the record from which one might infer that the brake line was in need of replacement before it ruptured. In fact, the mechanic who maintained the vehicle averred that a brake line is a “lifelong” part, not one which is typically replaced during scheduled maintenance. The record shows that the City regularly inspected its transport vehicles, including the brake lines, and that it had protocols in place for repairs, for scheduled maintenance, and for checking the working condition of each vehicle before it was put into use. Primus had also performed a safety check on the vehicle immediately prior to driving it, and found it to be in working order.

Primus sued the City for negligence, alleging that it had failed to adequately inspect the bus and maintain the brake lines. An adequate inspection, according to Primus, would have shown a problem with the brake line. The City moved for summary judgment on the ground of sovereign immunity. The trial court denied the motion without explanation, but certified its order for immediate review. In this appeal, the City contends that it is immune from suit for the alleged negligent performance of a discretionary act. Primus argues, however, that the City’s failure to discover the defective brake line during its inspection was a ministerial act for which immunity is waived.

Sovereign immunity applies to municipalities, unless the General Assembly waives it by law. Ga. Const, of 1983, Art. IX, Sec. II, Par. IX. “Traditionally, municipalities have been subject to suit for negligent performance or nonperformance of their ministerial functions while enjoying immunity from suit for the negligent performance or nonperformance of their governmental or discretionary functions.” (Citations and punctuation omitted.) J. N. Legacy Group v. City of Dallas, 322 Ga. App. 475, 478 (1) (745 SE2d 721) (2013). A ministerial act is

commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. A discretionary act, however, calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.

(Punctuation and footnote omitted.) Russell v. Barrett, 296 Ga. App. 114, 117 (1) (673 SE2d 623) (2009). Thus, sovereign immunity is waived for ministerial acts, but not for discretionary ones. The party seeking to benefit from a waiver of sovereign immunity—in this case, Primus — bears the burden of establishing waiver. Southerland v. Ga. Dept. of Corrections, 293 Ga. App. 56, 57 (666 SE2d 383) (2008). “Whether the acts upon which liability is predicated are ministerial or discretionary is determined by the facts of the particular case.” (Citation omitted.) Woodard v. Laurens County, 265 Ga. 404, 407 (2) (456 SE2d 581) (1995).

Although the City concedes it has a ministerial duty to maintain and inspect the bus, including its brake lines, it contends that the decision whether to replace the brake line on the bus was a discretionary act under these circumstances. We agree.

The City offered unrebutted evidence that there was no standard replacement schedule for the brake line, unlike the routine scheduled maintenance of changing the oil, air filters, and tires on the timetable recommended by the vehicle’s manufacturer. As the City’s chief mechanic stated in his affidavit, the brake line is “a lifelong part to a vehicle” that is not “typically ever replaced.” Thus, the mechanics would only replace the brake line if, in the exercise of their judgment, they saw some reason to do so.

Nevertheless, Primus argues that since the duty to inspect the bus was ministerial, then the City can be held liable for negligently failing to discover the defect in the brake line. However Primus’s argument fails because he has not properly identified the act in question; we must consider whether “the specific act from which liability arises is discretionary or ministerial.” (Citation and punctuation omitted; emphasis supplied.) Howell v. Willis, 317 Ga. App. 199, 201 (729 SE2d 643) (2012). Here, the specific act at issue is not inspecting the bus generally; rather it is inspecting the brake lines in such a way that a concealed defect would have been discovered. Thus, the question before us is whether that act was ministerial or discretionary.

This Court has decided a number of negligent inspection cases over the years, and we have typically held that sovereign immunity is not waived unless there is a policy, procedure, ordinance, or law dictating either the method of inspection or the specific standard that must be met. In Kordares v. Gwinnett County, 220 Ga. App. 848 (470 SE2d 479) (1996), for example, the plaintiff alleged that the county had negligently inspected a bridge and failed to uncover subsurface deficiencies. We held that the defendants were immune from suit in the absence of any “procedure or instruction” governing the manner of bridge inspections. Id. at 851. In Heller v. City of Atlanta, 290 Ga. App. 345 (659 SE2d 617) (2008), by contrast, we held that the city was not entitled to immunity for the negligent failure of its public taxicab inspector to ascertain that a taxicab had insufficient tire tread. The inspection was ministerial, rather than discretionary, because state law provided that the major grooves of a tire must have a tread depth of at least 2/32 inch. Id. at 348 (1). The city had no discretion to deviate from this clear standard in executing its taxicab inspections. Id. at 349 (1).

Decided December 19, 2013

Reconsideration denied January 16, 2014

Martenson, Hasbrouck & Simon, Edward A. Miller, Yakov D. Shteyman, for appellant.

James E. Lee II, Michael D. Barber, for appellee.

Primus points to no clear standard for inspections in this case, as is his burden. Although the City had a duty to maintain and inspect the bus, there is no evidence that there was a specific timetable for inspections and no guidelines as to what an inspection of the brake line should entail. Without any evidence that the City failed to follow a specific rule, procedure, or law, or that it otherwise deviated from some clear standard for performing its inspection, the act in question is a discretionary one. SeeKordares v. Gwinnett County, 220 Ga. App. at 851. Accordingly, the trial court erred in denying the City’s motion for summary judgment on this ground.

Judgment reversed.

Phipps, C. J., and Branch, J., concur.

       Primus cites the testimony of the city marshal, who deposed that, during a lunch break that occurred shortly before Primus drove back to the prison, another city employee told Primus that he saw fluid dripping onto the ground beneath the bus. There is no evidence, however, that this unspecified fluid leak was a sign of an imminent brake line rupture. In fact, according to both the city mechanic and the city marshal, there are no warning signs and no way to anticipate the rupture that occurred. Primus presented no evidence to the contrary.


author: Ray, Judge.

text:
    A12A1347.
    JOHNSON et al. v. OMONDI et al.
    (754 SE2d 154)
   Ray, Judge.

In Johnson v. Omondi, 294 Ga. 74 (751 SE2d 288) (2013), the Supreme Court reversed the judgment of this Court in Johnson v. Omondi, 318 Ga. App. 787 (736 SE2d 129) (2012). We therefore vacate our opinion and adopt the judgment of the Supreme Court as the opinion of this court.

Judgment affirmed.

Miller and Branch, JJ., concur.

Decided January 16, 2014.

Thomas, Kennedy, Sampson & Patterson, Thomas G. Sampson, Edmond & Lindsay, Keith L. Lindsay, Summerville Moore, J. Darren Summerville, S. Leighton Moore, for appellants.

Huff, Powell & Bailey, Jeffrey D. Braintwain, Michael G. Frank-son, for appellees.

Allen, McCain & OMahoney, Hunter S. Allen, Jr., Simuel F. Dosier, Jr., amici curiae.


text:
    A13A1917.
    AMBROSE v. SAINT JOSEPH’S HOSPITAL OF ATLANTA, INC.
    (754 SE2d 135)
   Miller, Judge.

Henley J. Ambrose filed suit against St. Joseph’s Hospital of Atlanta, Inc. (the “hospital”), alleging that he was burned by a microscope used during spinal surgery. The trial court granted the hospital’s motion to dismiss the suit for failure to file an expert affidavit. Ambrose appeals, contending the trial court erred in dismissing his suit because (1) his claims are based on ordinary negligence, not allegations involving professional malpractice and (2) the allegations involve institutional negligence, not the conduct of any professional listed in OCGA § 9-11-9.1 (g). We agree and reverse.

Whether a complaint alleges ordinary negligence or professional malpractice is a question of law for this Court to decide. Crisp Regional Nursing & Rehabilitation Center v. Johnson, 258 Ga. App. 540, 542 (574 SE2d 650) (2002). On appeal, we conduct

a de novo review of a trial court’s ruling on a motion to dismiss. In doing so, our role is to determine whether the allegations of the complaint, when construed in the light most favorable to the plaintiff, and with any and all doubts resolved in the plaintiff’s favor, disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts; however, we need not adopt a party’s legal conclusions based on these facts.

(Punctuation and footnotes omitted.) Dove v. Ty Cobb Healthcare Systems, Inc., 316 Ga. App. 7, 9 (729 SE2d 58) (2012).

So viewed, the complaint shows that Ambrose had spinal surgery at the hospital in November 2010 to repair his ruptured lumbar disk. During the procedure, the surgeon used an OPMI Pentero surgical microscope (the “Pentero”) provided by the hospital. The Pentero is a technologically advanced system that, among other things, integrates a surgical microscope and lighting system with digital video recording and the hospital’s information infrastructure. The Pentero’s computer software controls its lighting features, which include powerful xenon lamps that shine ultraviolet light on the patient’s body to illuminate the operative field. During surgery, the Pentero emitted UV light at a level that was too intense for Ambrose’s skin to tolerate, resulting in burns on his back during the surgery, leaving Ambrose with a scar and continued pain that prevented him from working as a model and driving to locations required for his hospice job.

Ambrose subsequently filed suit against the hospital alleging that it breached its duty of care by providing unsafe equipment for use in treating him. The hospital moved to dismiss the complaint for failure to provide an expert affidavit in accordance with OCGA § 9-11-9.1. The trial court granted the motion, finding that Ambrose’s claim sounded in medical malpractice and therefore Georgia law requires that an expert affidavit be filed with the complaint.

1. Ambrose first contends that the trial court erred in dismissing his suit on the ground that an expert affidavit is required under OCGA § 9-11-9.1 because his allegations involve the hospital’s failure to exercise ordinary care with regard to the equipment furnished for use in treating its patients.

OCGA § 9-11-9.1 requires a plaintiff to attach to the complaint an expert’s affidavit supporting his malpractice claim, but the requirement of attaching a medical affidavit to the complaint does not apply to claims of ordinary negligence. OKelley v. Atlanta Heart Assoc., 316 Ga. App. 218, 219 (1) (728 SE2d 313) (2012).

Whether an action alleges professional negligence or simple negligence depends on whether the professional’s alleged negligence required the exercise of professional judgment and skill. It is a question of law for the court to decide. A professional negligence claim calls into question the conduct of the professional in his area of expertise. Administrative, clerical, or routine acts demanding no special expertise fall in the realm of simple negligence. We have previously held that a nurse’s failure to activate an alarm, as a doctor ordered, was ordinary negligence. Likewise, claims that employees failed to carry out instructions and that hospitals failed to have appropriate equipment alleged ordinary negligence. However, if a claim of negligence goes to the propriety of a professional decision rather than to the efficacy of conduct in the carrying out of a decision previously made, the claim sounds in professional malpractice.

(Citations and punctuation omitted.) MCG Health v. Casey, 269 Ga. App. 125, 128 (1) (603 SE2d 438) (2004); see also Candler Gen. Hosp. v. McNorrill, 182 Ga. App. 107, 109-110 (2) (354 SE2d 872) (1987) (simply because an injury occurs in a hospital setting does not mean that it necessarily involved medical malpractice).

Here, Ambrose alleges that the hospital breached its duty of ordinary care by providing unsafe equipment for use in treating him, that the hospital failed to update the software on the Pentero, and that the hospital failed to warn the surgeon of the risk of using the Pentero. Viewing the allegations in the complaint in the light most favorable to Ambrose, we cannot say that the claim is necessarily one of medical malpractice. See Lamb v. Candler Gen. Hosp., 262 Ga. 70, 71 (1) (413 SE2d 720) (1992) (failure to replace disposable parts in instrument used in eye surgery created an issue of simple negligence by hospital employees for which hospital may be liable); compare Jones v. Bates, 261 Ga. 240, 242 (2) (403 SE2d 804) (1991) (decision to remove heat shield on a light would not involve medical judgment, but the decision to get more light to operating site may have). Since Ambrose’s claim alleges simple negligence, it was error to dismiss his complaint.

2. Ambrose also contends that the trial court erred in dismissing his suit against the hospital because the case is not one against a professional as listed in OCGA § 9-11-9.1 (g), and thus no affidavit is required.

Decided January 16, 2014.

Laura W. Speed-Dalton, for appellant.

Huff, Powell & Bailey, Daniel J. Huff, L. Evan Cline, for appellee.

In a suit against a licensed health care facility, such as this one, OCGA § 9-11-9.1 requires the plaintiff to file an expert affidavit only when the facility’s alleged liability is based on the action or inaction of a health care professional. OCGA § 9-11-9.1 (a) (3). Insofar as Ambrose’s complaint alleges negligence against the hospital for supplying defective equipment for use in treating its patients, the case is not one against a professional or one involving professional malpractice. Lamb, supra, 262 Ga. at 72 (2). Therefore, OCGA § 9-11-9.1 is inapplicable, and no affidavit is required. Id. Accordingly, we reverse the grant of the hospital’s motion to dismiss.

Judgment reversed.

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

       In an action for damages alleging professional malpractice against a professional licensed by the State of Georgia or against any licensed health care facility alleged to be liable based upon the action or inaction of a healthcare professional licensed by the State of Georgia, the plaintiff is required to file with the complaint an affidavit of an expert competent to testify, setting forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim. OCGA § 9-11-9.1 (a). If an affidavit is not filed, and the defendant against whom an affidavit should have been filed alleges, by motion to dismiss filed contemporaneously with its initial responsive pleading, that the plaintiff has failed to file the requisite affidavit, the complaint is subject to dismissal for failure to state a claim. OCGA § 9-11-9.1 (b), (f).

       Contrary to the hospital’s contention, Ambrose’s complaint does not allege that the surgeon negligently allowed Ambrose to be overexposed. Instead, Ambrose alleges only that his injuries were caused by the negligence of the hospital in providing unsafe equipment for use in treating patients.


text:
    A13A2140.
    CBS, INC. v. ANOINTED HAIR STUDIO, INC.
    (754 SE2d 138)
   Ray, Judge.

CBS, Inc. sued Anointed Hair Studio, Inc., alleging nonpayment of fees due for the rental of advertising space on two billboards. After a bench trial resulting in judgment for Anointed Hair, CBS appealed, alleging that the trial court erred in (1) admitting testimony, over objection, involving a different contract from the one at issue in CBS’s suit; (2) basing its decision not to award damages to CBS in part on testimony about what CBS contends is the irrelevant contract; and (3) finding that CBS failed to prove damages by a preponderance of the evidence because its documentation was incomplete. For the reasons that follow, we reverse and remand for further proceedings consistent with this opinion.

“The trial court is the trier of fact in a bench trial, and its findings will be upheld on appeal if there is any evidence to support them. The plain legal error standard of review applies where the appellate court determines that the issue was of law, not fact.” (Punctuation and footnote omitted.) Slaick v. Arnold, 316 Ga. App. 141, 142 (728 SE2d 782) (2012). “However, the court’s judgment in a non-jury trial will be reversed where it is apparent that it rests on erroneous reasoning or on an erroneous legal theory.” (Citations omitted.) CRS Sirrine, Inc. v. Dravo Corp., 213 Ga. App. 710, 721 (4) (445 SE2d 782) (1994) (finding that judgment must be reversed where trial court’s factual findings were inconsistent).

Properly viewed, the facts show that CBS and Anointed Hair entered into an agreement in 2010 in which CBS sold advertising space on two billboards to Anointed Hair. In 2011, CBS and Anointed Hair entered into a separate contract, which by its own terms cancels and supersedes the 2010 contract. The 2010 contract was not before the trial court, nor is it in the record before this Court. The 2011 contract states that CBS will provide two billboards for 13 periods, running from February 7, 2011, through February 5, 2012, at a total cost of $1,700 per period. In addition, the 2011 contract also provides that a “space available bonus billboard should be installed on Memorial Drive when space allows” at no additional cost to Anointed Hair. (Emphasis supplied.) It is undisputed that Anointed Hair never received advertising space on any free, bonus billboard.

On August 27, 2012, CBS filed suit on the 2011 contract only, alleging that Anointed Hair had failed to pay for six of the seven billboard rental periods between July 1, 2011, and January 1, 2012, and claiming damages of $10,200. Anointed Hair answered, but the trial court struck that answer because it was not filed by a licensed attorney, entered a default judgment in favor of CBS as to liability only, and scheduled a hearing for presentation of proof of the amount of damages.

After the hearing, the trial court entered an order finding that CBS had failed to prove its damages by a preponderance of the evidence. The order, in granting judgment to Anointed Hair, also appears to find that Anointed Hair is due a “pro-rated credit” under the terms of the 2011 contract, because it did not receive free billboard advertising space under the terms of the 2010 contract. Specifically, the trial court’s order finds that the parties negotiated a contract for billboard advertising services in January 2010, and that as an additional contract term, CBS was to provide a bonus billboard at no cost to Anointed Hair. The trial court further found that in January 2011, the parties executed a new contract for the remainder of the term that superseded the original contract, and that the new contract provided that Anointed Hair would receive free advertising space on a Memorial Drive billboard “when space allows.” The trial court’s order states that “[a] copy of the initial contract, executed in January 2010, has not been provided to the Court” but found that a witness for CBS “admits the 2010 contract did not limit the provision of the bonus billboard to a ‘space available’basis.” The trial court then determined that CBS failed to prove its damages by a preponderance of the evidence, listing as one of the bases for its decision that CBS provided itemized transactions from 2011 only, and not from 2010, and that because “payments appear to be assigned haphazardly to prior and current invoices” it needed the records from 2010. Then, the trial court found that because CBS did not provide a free, bonus billboard under the guarantee of the 2010 contract, the only available remedy under the 2011 contract was for a “pro-rated credit.” The trial court found that it could “only presume . . . [that CBS] chose to provide pro-rated credit as compensation for its failure to provide the bonus under the 2010 contract. [CBS] has provided no evidence this credit was provided. . . . The Court awards judgment to [Anointed Hair].”

1. The trial court’s order is unclear. As an initial matter, in basing portions of its order on the 2010 contract, the trial court appears to be ruling on an amended answer and counterclaim that Anointed Hair filed contemporaneously with a motion to set aside the default judgment. The counterclaim was filed after the trial court struck Anointed Hair’s answer and entered a default judgment, and about seven months after the time to file defensive pleadings had passed. Neither a compulsory nor permissive counterclaim may be filed after the time to file defensive pleadings, absent permission by the court to assert such an amendment. See Aycock v. Household Finance Corp. of Ga., 142 Ga. App. 207, 208 (1) (235 SE2d 578) (1977); OCGA § 9-11-13 (f). Also, the late filing of counterclaims “is permitted only as an amendment to pleadings already [on] file.” Ragan v. Smith, 188 Ga. App. 770, 771 (1) (374 SE2d 559) (1988), citing Electro-Kinetics Corp. v. Wilson, 122 Ga. App. 171, 172 (2) (176 SE2d 604) (1970). Because the trial court in the instant case had granted CBS’s motion to strike Anointed Hair’s answer and had entered a default judgment in CBS’s favor, it is unclear whether the trial court’s order means to grant the motion to open default and allow the counterclaim.

This ambiguity in the trial court’s order goes directly to CBS’s first enumeration. CBS argued that because its damages claims revolved only around the 2011 contract, the trial court erred in admitting, over its objection as to relevance, testimony related to the 2010 contract. If the trial court meant to set aside the default and allow Anointed Hair’s counterclaim, evidence of the 2010 contract could be relevant such that the trial court did not abuse its discretion in admitting such evidence over objection. If the trial court did not mean to allow the counterclaim, evidence of the 2010 contract could be deemed irrelevant, and the trial court could have abused its discretion in admitting it. See Corey v. Clear Channel Outdoor, Inc., 299 Ga. App. 487, 492 (2) (683 SE2d 27) (2009).

This lack of clarity also affects our ability to analyze CBS’s second enumeration of error. CBS contends that the trial court erred in finding that, inter alia, because CBS did not present evidence of invoices and payments under the 2010 contract, its record of account was “incomplete” and resulted in a failure to prove damages by a preponderance of the evidence under the 2011 contract. As above, absent clarity on whether the trial court meant to set aside the default and allow the counterclaim, it is unclear whether admission of evidence of the 2010 contract was an abuse of discretion. See id.

“We will not speculate whether or not the trial court intended to modify its previous conclusions . . . [and] [u]ntil the trial court clarifies its conclusions ... we are unable to fully review [CBS’s] claim[.]” (Footnote omitted.) CRS Sirrine, Inc., supra at 721 (4). Accordingly, we reverse the judgment and remand the case for the trial court to clarify its judgment on the above issues and enter a new judgment in accordance with this opinion. The right of any party to appeal from the entry of a new judgment is preserved.

2. CBS also contends that the trial court erred in entering judgment for Anointed Hair by providing an “offset” in the form of free billboard advertising space under the language of the 2011 contract as a remedy for CBS’s failure to provide free advertising space under the 2010 contract. In its order, the trial court specifically found that a pro-rated credit was available because, even though the trial court had never seen the 2010 contract, a witness for CBS “admits the 2010 contract did not limit the provision of the bonus billboard to a ‘space available’ basis.”

Pretermitting whether evidence of the 2010 contract should have been admitted, see Division 1, supra, there is no evidence in the record to support the trial court’s conclusion that the 2010 contract, which the trial court never saw, guaranteed free, bonus billboard space. Contrary to the trial court’s order, the witness for CBS never testified that the 2010 contract guaranteed a free billboard. Rather, in response to a statement from Anointed Hair’s attorney that under the “original contract that was signed in 2010 . . . the free billboard was promised to my client” (emphasis supplied), CBS witness Geri Colligan testified that she had “no knowledge” of any original promise. She never testified as to any guarantee of free billboard space in the 2010 contract. Further, Anointed Hair’s chief executive officer, Fumni Ogunkunle, also never testified that the bonus billboard was guaranteed under the 2010 contract. Rather, she testified that “anywhere there is space they are going to give it to me” and that when she called about getting the free space, she was told “there is no space left, when there is space they will give it to me.”

Decided January 16, 2014.

Simpson, Uchitel & Wilson, Andrew L. Hagenbush, for appellant.

Isaac O. Babalola, for appellee.

Because there was no evidence in the record to support the trial court’s conclusion on this issue, we must reverse. Slaick, supra at 145 (2).

Judgment reversed and case remanded.

Barnes, P. J., and Miller, J., concur.

       Because the trial court’s order does not address the provision of free, bonus billboard space under the 2011 contract in the context of an offset or remedy, we do not address this issue.


author: Phipps, Chief Judge.

text:
    A13A2340.
    PRICE v. THE STATE.
    (754 SE2d 144)
   Phipps, Chief Judge.

David Price shot Christopher Neal with a gun, severely injuring him, and a jury found Price guilty of aggravated assault and aggravated battery. Sentenced therefor, Price maintains in this appeal that the shooting was justified and that the jury was therefore not authorized to find him guilty; additionally, Price maintains that his trial lawyer rendered ineffective assistance of counsel. For reasons that follow, we affirm.

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

So viewed, the evidence showed the following. The incident from which both charges arose occurred at Price’s residence on May 25, 2008. Among the several individuals also living there were Price’s girlfriend and Neal. Price was permitting Neal to live there in exchange for performing construction work on the house.

Price and Neal’s relationship, however, was not without bouts of bickering, yelling, cursing, and threatening each other with physical violence. These bouts typically stemmed from disagreements about the way to repair the house or Neal’s work ethic. Generally, these episodes did not escalate to physical altercations; and the day after any such episode, the two seemed to be good friends again. Price had warned Neal, however, that if Neal ever tried to hurt him, he would shoot Neal; and Neal knew that Price kept firearms in his bedroom.

About a month before the shooting underlying this case, during one of their arguments, Neal threw a cell phone at Price. Although the phone did not strike him, Price rushed to his bedroom. Neal quickly followed him, and discovered Price kneeling in front of his opened gun case and taking a gun out of it. Neal pinned Price down to the floor until Price’s girlfriend, having heard the commotion, entered the bedroom, coaxed Neal off Price, then stood between the two men until Neal left the premises. Later that day, Neal returned to the residence without incident.

On the morning of the shooting, Price and Neal, along with two other men summoned by Price to help with the construction, were scheduled to install vinyl siding upon the house. Although the recruits had arrived by 8:30 a.m., Neal was still asleep. Price went to the side of the house and beat on the wall, hollering for Neal to get up. Neal did not awaken, however, until Price stood in Neal’s bedroom doorway yelling at him to get out of bed. When Neal joined the others outside, an argument soon erupted between him and Price concerning the whereabouts of one of Price’s construction tools. Price threatened Neal, Til blow your . . . head off.” Neal threw an object at Price and retorted, “I dare you to shoot me.” Although the object thrown by Neal did not strike him, Price rushed into the house. Discerning that Price was headed for a gun, Neal quickly followed. All the while, as Neal testified, “I kept calling him an idiot, you’re stupid, what do [you] think you’re doing —.”

Price went directly to his bedroom. By the time Neal entered the room, Price was kneeling at his closet, searching for a firearm. Meanwhile, as Neal recollected at trial, “I told him he was stupid he’s going to try to shoot me, there’s no point in it, you’re being stupid, you’re being retarded, you’re being a dumbass.” Neal testified that, when he realized that Price had nevertheless retrieved a gun and was aiming it at him, “[m]y only option that ran through my head was, take him down and get that gun away from him.” Accordingly, Neal testified, “I charged him.” Price discharged the gun multiple times, and eight bullets struck Neal. The bullets, inter alia, grazed Neal’s “side,” entered his abdomen, broke bones in his arm, and cracked a rib. At trial, Neal showed the jury the scars that remained on his arms, chest, and abdomen from the bullet wounds, as well as scars from numerous medical procedures he underwent during the ensuing six weeks of hospitalization.

The state adduced evidence that police officers summoned to the shooting scene arrived to find Neal lying on a bloody floor. As one officer observed, bones were “sticking out” from Neal’s arm and “there was a hole in his stomach, there was a lot of blood coming out of it.” Price claimed to an officer that the shooting had been in self-defense, describing that he had pulled the trigger repeatedly until Neal fell down. That officer observed on Price’s neck “two faint red lines,” but determined that the marks were not large, were not scratches, and were not bleeding; the officer concluded that Price was in no need of medical attention. After further police investigation at the scene, Price was arrested and transported to jail.

In this appeal, Price maintains that the evidence established that he was justified in using deadly force against Neal. He points to evidence that Neal had “charged” him first, that he (Price) was suffering at the time from an earlier back injury, and that Neal had previously been violent toward him.

But in addition to the foregoing evidence, the state adduced Neal’s testimony that, at the time in question, he (Neal) did not have a gun and that he did not reach for any of Price’s guns. Further, Neal surmised, “[Considering the situation, ... I was not attacking him. I might have been . . . vulgar saying he was stupid, he was an idiot, and all that other stuff, but I mean, there’s no reason to shoot somebody for calling them a dumbass or whatever.”

When the state rested its case, Price neither testified nor called any witness. The parties’ closing arguments were not transcribed, but the record shows that the court’s final charge to the jury included instructions on the defense of justification.

“Whether a defendant justifiably used deadly force is a jury question.” [] In reaching [its] decision, the jury properly weighed the evidence and determined the credibility of all the witnesses who testified. Viewed in a light most favorable to the verdict, the evidence was sufficient to enable a rational trier of fact to find [Price] guilty of [aggravated assault and aggravated battery] beyond a reasonable doubt.

Consequently, this contention presents no basis for disturbing the judgment of conviction.

2. Price contends that the trial court erred in rejecting his claim of ineffective assistance of trial counsel. Price complains that his trial lawyer neither encouraged him to take the stand nor called any character witnesses.

Pursuant to Strickland v. Washington,

[i]n order to prevail on this claim, [the defendant] must show both that counsel’s performance was deficient, and that the deficient performance was prejudicial to his defense. To meet the first prong of the required test, the defendant must overcome the strong presumption that counsel’s performance fell within a wide range of reasonable professional conduct, and that counsel’s decisions were made in the exercise of reasonable professional judgment. The reasonableness of counsel’s conduct is examined from counsel’s perspective at the time of trial and under the particular circumstances of the case. To meet the second prong of the test, the defendant must show that there is a reasonable probability that, absent any unprofessional errors on counsel’s part, the result of his trial would have been different.

When Price’s trial lawyer was asked at the hearing on motion for new trial why he had not called such witnesses, the lawyer recounted that, when the state rested its case, he determined and thus advised Price that taking the stand and/or calling any character witness presented unwarranted risks. As the lawyer had determined, the evidence afforded the jury a basis to find that the shooting was justified, and testimony from Price and/or any character witness would not have significantly aided the defense. Moreover, the lawyer recounted, he had anticipated that the state would cross-examine Price and/or the character witnesses in a manner that would remind the jury that: (i) during an earlier altercation with Neal, Price had attempted to get a gun; and (ii) on the day in question, Price had in fact shot Neal.

In the order denying Price’s motion for new trial, the trial court correctly determined that Price had failed to overcome the strong presumption that trial counsel’s decisions fell within the broad range of reasonable professional conduct. “Decisions concerning the presentation of witnesses are matters of trial strategy and do not constitute ineffective assistance when, as here, they are founded on legitimate evidentiary concerns.” In its order denying Price’s motion for new trial, the trial court further noted that, at the new trial hearing, Price had neither testified nor called any of the individuals he claimed should have testified as character witnesses; hence, the trial court correctly determined that Price had failed to demonstrate the requisite prejudice.

Decided January 16, 2014.

Lawrence W. Daniel, for appellant.

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

Given the foregoing, Price has demonstrated no merit in his contention that the trial court erred in rejecting his claim of ineffective assistance of trial counsel.

Judgment affirmed.

Ellington, P. J., and Branch, J., concur.

       OCGA § 16-5-21 (a) (2) (defining aggravated assault). The indictment charged that Price had placed Neal in reasonable apprehension of immediately receiving a violent injury when he pointed a handgun at him.

       OCGA § 16-5-24 (a) (defining aggravated battery). The indictment charged that Price had maliciously caused bodily harm to Neal by seriously disfiguring his arms, chest, and abdomen when he repeatedly shot Neal with a handgun, causing bullet wounds to his arms, chest, and abdomen.

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

       Price makes no claim on appeal that the jury was not properly charged on the defense of justification.

        Timley v. State, 268 Ga. 611 (1) (492 SE2d 214) (1997).

        Gilchrist v. State, 270 Ga. 287, 288 (1) (508 SE2d 409) (1998), citing Jackson, supra.

       See Jackson, supra; Gilchrist, supra.

       466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984).

        Kendrick v. State, 287 Ga. 676, 680 (4) (699 SE2d 302) (2010) (citations and punctuation omitted).

        Harris v. State, 279 Ga. 522, 528-529 (6) (615 SE2d 532) (2005) (citation omitted).

        See Ponder v. State, 201 Ga. App. 388, 389 (1) (411 SE2d 119) (1991) (explaining that, in light of defendant’s failure to proffer the testimony of the uncalled witness, defendant could not prove that there was a reasonable probability that the outcome of the trial would have been different).

       See Strickland, supra; Harris, supra at 528 (6) (concluding that trial court did not err in rejecting claim that trial counsel performed deficiently by failing to call certain witnesses, where decision was founded on legitimate evidentiary concerns); Roberts v. State, 263 Ga. 807, 808 (2) (b) (439 SE2d 911) (1994) (concluding that trial court did not err in rejecting claim that trial counsel rendered ineffective assistance by failing to call certain witnesses, where the decision not to call them was a strategic or tactical decision and appellant did not establish how the failure to call either witness would have affected the outcome of the case); Ponder, supra.


text:
    A13A2364.
    HARRIS v. THE STATE.
    (754 SE2d 148)
   Phipps, Chief Judge.

In August 2012, James B. Harris pled guilty to three counts of child molestation and one count of enticing a child for indecent purposes. He was sentenced to 15 years, 12 years of which were tobe served in confinement. In June 2013, he filed a motion for an out-of-time appeal, which the trial court denied. Harris appeals from the order denying the motion, asserting that trial counsel had provided ineffective assistance by incorrectly informing him that he was not eligible to be sentenced as a first offender, failing to request sentencing as a first offender, and failing to inform him of his right to appeal from the guilty plea. For the reasons that follow, we affirm.

“An out-of-time appeal is appropriate where, as the result of ineffective assistance of counsel, a timely direct appeal was not taken. It is the remedy for a frustrated right of appeal.”

[Harris’s] judgments of conviction and sentences were entered after he pled guilty. A criminal defendant has no unqualified right to file a direct appeal from a judgment of conviction and sentence entered on a guilty plea. A direct appeal will lie from a judgment of conviction and sentence entered on a guilty plea only if the issue on appeal can be resolved by facts appearing in the record . .., including the transcript of his guilty plea hearing.

Further,

if a defendant raises an issue in a motion for [an] out-of-time appeal that can be determined on the existing record, issues regarding the effectiveness of counsel are reached, and the defendant must show that his counsel was ineffective in not filing a timely appeal. Under the familiar Strickland [v. Washington] standard, this requires the defendant to prove both that his trial counsel provided deficient performance and that, but for that unprofessional performance, there is a reasonable probability that the outcome of the proceeding would have been different, which means in this context that the appeal would have been successful. The court need not address both parts of this test if the defendant makes an insufficient showing on one.

The issues that Harris raised in his motion for an out-of-time appeal and has pursued in this appeal can be resolved based on facts appearing in the existing record. Thus, Harris did have a right to appeal his guilty plea. However, as discussed below, “it is clear that each of his claims can be resolved against him, so a timely appeal would have been unsuccessful and the motion for an out-of-time appeal was properly denied.”

To support his claim of ineffective assistance of counsel, Harris points to a colloquy at the guilty plea hearing in which the prosecuting attorney asked Harris, “You’re not eligible [for first offender treatment] given the charges, correct?” Defense counsel interjected, “I don’t know about eligibility, but we are not asking for it.”

Harris argues that he was eligible for treatment as a first offender because he had no prior criminal record, the facts of the crimes charged were “not severe,” his character was “outstanding,” and he showed no signs of predisposition to recommit any unlawful offense. Had counsel requested first offender treatment from the court, Harris asserts, there is a reasonable probability that he would have received such treatment.

OCGA § 42-8-60 (a) provides, in pertinent part, that, upon a plea of guilty, in the case of a defendant who has not been previously convicted of a felony, the court may defer further proceedings and place the defendant on probation as provided by law, or sentence the defendant to a term of confinement as provided by law. Notwithstanding, OCGA § 42-8-60 (d) (2) pertinently provides that no person convicted of a sexual offense, as “sexual offense” is defined in OCGA § 17-10-6.2, may be given first offender treatment. Under OCGA § 17-10-6.2 (a), the term “sexual offense” includes child molestation, as defined in OCGA § 16-6-4 (a) (unless subject to the provisions of OCGA § 16-6-4 (b) (2)), and enticing a child for indecent purposes, as defined in OCGA § 16-6-5 (unless subject to the provisions of OCGA § 16-6-5 (c)).

OCGA § 17-10-6.2 (b) pertinently provides: “No person convicted of a sexual offense shall be sentenced as a first offender pursuant to Article 3 of Chapter 8 of Title 42, relating to probation for first offenders, or any other provision of Georgia law relating to the sentencing of first offenders.”

Decided January 16, 2014

James B. Harris, pro se.

Inasmuch as Harris was not entitled to first offender treatment for the crimes of child molestation and enticing a child for indecent purposes to which he pled guilty, his claims that trial counsel was deficient because counsel had misinformed him about his eligibility for and had failed to request such treatment are without merit. We note that the cases upon which Harris relies to support his position that he was eligible for first offender treatment are inapposite, as those cases involved crimes committed prior to the enactment of OCGA§§ 42-8-60 (d) and 17-10-6.2, and/or did not address the issues he raises in this appeal.

Based on the existing record, the issues Harris seeks to raise are without merit, so a timely direct appeal from the judgment of conviction entered on his guilty plea would have been unsuccessful. Thus, even assuming counsel failed to advise Harris of his right to appeal, no prejudice resulted therefrom. The trial court did not abuse its discretion in denying Harris’s motion for an out-of-time appeal.

Judgment affirmed.

Ellington, P. J., and Branch, J., concur.

Daniel J. Porter, District Attorney, Jennifer G. Hendee, Assistant District Attorney, for appellee.

       OCGA §§ 16-6-4 (a); 16-6-5 (a). The indictment alleged that the acts were committed in 2011.

       Although Harris asserted in his initial appellate brief additional errors, he withdrew several of the asserted errors in his reply brief. We review only the remaining assertions of error.

        Smith v. State, 266 Ga. 687 (470 SE2d 436) (1996) (citation and punctuation omitted).

       Id. (citations and punctuation omitted).

       466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984).

        Stephens v. State, 291 Ga. 837,838-839 (733 SE2d 266) (2012) (citations, punctuation and emphasis omitted).

       See id. at 839 (3); Grantham v. State, 267 Ga. 635 (481 SE2d 219) (1997).

        Stephens, supra (citation omitted).

       See Planas v. State, 296 Ga. App. 51, 52 (1) (673 SE2d 566) (2009).

       OCGA § 16-6-4 (b) (2) provides an exception to the sentencing and punishment provisions of OCGA § 17-10-6.2 if the victim is at least 14 but less than 16 years of age and the person convicted of child molestation is 18 years of age or younger and is no more than four years older than the victim. Harris was 34 years old and the victim was 14 years old when the crimes were committed.

       OCGA § 16-6-5 (c) provides an exception to the sentencing and punishment provisions of OCGA § 17-10-6.2 if the victim is at least 14 but less than 16 years of age and the person convicted of enticing a child for indecent purposes is 18 years of age or younger and is no more than four years older than the victim.

       See Tew v. State, 320 Ga. App. 127, 128 (739 SE2d 423) (2013).

       Ga. L. 2006, pp. 379-380, §§ 26, 30 (the 2006 amendment, effective July 1, 2006, added subsection (d)). See generally Fleming v. State, 271 Ga. 587, 590 (523 SE2d 315) (1999) (defendants were not precluded from requesting and obtaining first offender treatment for crimes committed in 1996, when prior to the 1998 amendments to OCGA §§ 17-10-6.1 and 42-8-60 et seq. defendants found guilty of a serious violent felony could apply for first offender status; “in general, a crime is to be construed and punished according to the provisions of the law existing at the time of its commission”).

       Ga. L. 2006, p. 379, § 21 (OCGA § 17-10-6.2 was added in 2006 and became effective in 2006). See Roland v. Meadows, 273 Ga. 857 (548 SE2d 289) (2001); Threlkeld v. State, 250 Ga. App. 44, 45-46 (2) (550 SE2d 454) (2001); Lewis v. State, 217 Ga. App. 758 (458 SE2d 861) (1995).

       See Johnson v. Roberts, 287 Ga. 112 (694 SE2d 661) (2010) (appeal from denial of habeas corpus petition; issue was whether habeas court had erred in determining that counsel had provided ineffective assistance by misinforming petitioner about his parole eligibility for armed robbery and firearm possession convictions); Lewis, supra (trial court properly denied defendant’s motion requesting first offender treatment; motion was filed after he had been adjudicated guilty and while he was serving his sentence).

       See generally Stephens, supra.

       Id. at 839 (2).

       See generally id. at 840 (4); Brown v. State, 290 Ga. 321 (1) (720 SE2d 617) (2012); Ethridge v. State, 283 Ga. App. 289, 291 (641 SE2d 282) (2007).


text:
    A13A2453.
    DAVIS v. THE STATE.
    (754 SE2d 151)
   Phipps, Chief Judge.

In connection with a home invasion during which the intruder threatened the house-sitter with a gun, Freddie Lamar Davis was charged with burglary, aggravated assault, possession of a firearm during the commission of the aggravated assault, and possession of a firearm by a convicted felon. After rejecting several plea offers, Davis proceeded to a bifurcated jury trial and was convicted of all four charges. In this appeal, Davis contends that the trial court erred by denying his motion for new trial, which, as amended, asserted a claim of ineffective assistance of counsel. Because the record reveals no reversible error, we affirm.

1. Viewed to support the prosecution, the trial evidence showed the following. At about 8:00 p.m. on February 27, 2009, while the owners of the home in question were away on vacation, their house-sitter returned to the residence to discover an intruder inside. Startled, the house-sitter quickly exited the house and summoned police, but soon encountered the man again outside the house. The man flashed a gun and said to the house-sitter, “I’ll shoot you.” The house-sitter fled on foot, and the man disappeared into the night. When the police arrived moments later, the house-sitter identified Davis (whom the house-sitter had known for over twenty years) as the intruder who had threatened him at gunpoint; and an investigation of the premises revealed that a back window had been shattered. At trial, the house-sitter again identified Davis as the intruder who had threatened him at gunpoint.

Davis took the stand, denied all charges, and gave testimony placing him elsewhere with his son and/or live-in girlfriend at the time of the home invasion. To buttress his defense, Davis called his girlfriend as a witness. She testified that on the evening in question, Davis was with her at their home until he left with his son.

After the jury found Davis guilty of burglary, aggravated assault, and possession of a firearm during the commission of the aggravated assault, the state presented evidence that Davis had been convicted of a felony in 1999. Thereafter, the jury found Davis guilty of possession of a firearm by a convicted felon.

As Davis concedes on appeal, the state’s evidence as to all counts of the indictment satisfied the sufficiency standard under Jackson v. Virginia.

2. Citing Strickland v. Washington, Davis maintains that, during the plea bargaining process, his trial lawyer rendered ineffective assistance of counsel. According to Davis, the lawyer failed to adequately inform him of the consequences he would face if found guilty of the charges. Davis acknowledges that he received and rejected three plea offers, the last of which was an eight-year probated sentence, but claims that his trial lawyer failed to advise him of the maximum sentence of confinement he could face if found guilty of the charges. And without that information, Davis posits, his rejection of any plea offer was not informed, and hence, not valid.

“The two-part test of Strickland v. Washington ordinarily applies to claims of ineffective assistance of counsel in the plea process.” “In order to prevail on such a claim, a defendant must show that his trial counsel’s performance fell below an objective standard of reasonableness, and that the deficiency prejudiced the defense.” Because under Strickland, a defendant “claiming ineffective assistance of counsel must show both deficient performance and actual prejudice stemming from that deficiency, an insufficient showing on either of these prongs relieves the reviewing court of the need to address the other prong.” “In reviewing the trial court’s decision [regarding a claim of ineffective assistance of counsel], we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.”

The sole witness at the hearing on the motion for new trial was Davis’s trial lawyer. He recounted that Davis had rejected earlier plea offers that included confinement, as well as the final plea offer of an eight-year probated sentence. The lawyer was asked about his pretrial discussions with Davis concerning the plea offers, and the lawyer answered:

[W]hen I discussed that with Mr. Davis he was pretty adamant that he wasn’t guilty of the charges and wanted a trial, and after we spent some more time discussing the case,... I felt that he had a good defense. Everything that he was telling me about the case, the witnesses he had,[] led me to believe that it was a —fit was a case that could go to a jury. . .. [Bjased on everything I’d heard, I believed in what Mr. Davis was telling me. His story, like I said, sounded credible. . . . It’s a coherent version of events.

The lawyer was specifically asked whether, in discussing any plea offer, he told Davis about the maximum sentence he could face upon a guilty verdict. The lawyer replied:

I can’t specifically recollect discussing those specifics, but I think that in the discussion of the trial and communicating the plea offer, there was the possibility—I did communicate the possibility of confinement if he was convicted, but that wasn’t something — we were focused on the trial.

However, even assuming that Davis’s trial lawyer rendered deficient performance as Davis alleged, Davis failed to satisfy Strickland’s prejudice prong. Where, as here, the defendant’s complaint is that he went to trial instead of pleading guilty because of counsel’s deficient representation, “the proper question at the prejudice step is whether [the defendant] demonstrated that, but for counsel’s deficient performance, there is a reasonable probability that he would have accepted the State’s plea offer.”

In his brief, “[Davis] argues that the prejudice should be presumed based on [his] lack of information.” Davis also argues that the requisite prejudice was shown “based on the disparity between the plea offer (an eight year probated sentence) and the maximum sentence allowed by law (50 years confinement [according to Davis’s post-conviction lawyer’s calculation made during the hearing]).” But the Supreme Court of Georgia has expressly rejected the adoption of a bright-line rule for satisfying Strickland’s prejudice prong “such as presuming the defendant would have accepted any plea offer more favorable than the eventual outcome of the trial.” Consequently, Davis’s arguments are unavailing; and Davis has cited no evidence to support a finding that, but for his trial counsel’s deficient performance, there is a reasonable probability that he would have accepted a plea offer.

Indeed, as noted, the record supports the opposite conclusion, in that the only evidence before the court considering the motion for new trial, as amended, suggested that [Davis] was not interested in further pursuing attempts to resolve his case with a plea bargain and was determined to go to trial. Simply, [Davis] has failed to carry his burden under Strickland v. Washington,

Decided January 16, 2014.

Lisamarie N. Bristol, for appellant.

Kenneth W. Mauldin, District Attorney, James V. Chafin, Assistant District Attorney, for appellee.

Judgment affirmed.

Ellington, P. J., and Branch, J., concur.

       OCGA § 16-7-1.

       OCGA § 16-5-21.

       OCGA § 16-11-106.

       OCGA § 16-11-131.

       The trial court imposed as punishment the following sentences: (i) fifteen years of confinement for burglary; (ii) fifteen years, to serve ten, for aggravated assault (concurrent with the burglary sentence); (iii) five years probation for possession of a firearm during the commission of the aggravated assault (consecutive to the burglary sentence); and (iv) five years probation for possession of a firearm by a convicted felon (concurrent with the sentence for possession of a firearm during the commission of a crime). Additionally, the trial court set forth conditions of probation.

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

       Id.

       466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984).

        Cleveland v. State, 285 Ga. 142, 144 (674 SE2d 289) (2009) (punctuation and footnote omitted).

        Cormier v. State, 277 Ga. 607, 608 (2) (592 SE2d 841) (2004), citing Strickland, supra.

        Fuller v. State, 277 Ga. 505, 507 (3) (591 SE2d 782) (2004) (citation and punctuation omitted).

        Hughes v. State, 289 Ga. 98, 100 (3) (709 SE2d 764) (2011) (citation and punctuation omitted).

       However, Davis’s trial lawyer elaborated at the hearing on motion for new trial that “we were not able to contact his son, who was I won’t say an essential witness but certainly could fill in some gaps that his—the woman that he was living with that she was not able necessarily to fill in.”

       See Lloyd v. State, 258 Ga. 645, 647-648 (2) (a) (373 SE2d 1) (1988) (explaining that to show deficient performance, appellant must show that counsel’s representation fell below objective standard of reasonableness; in the context of an offered plea bargain, objective professional standards ordinarily dictate that a defendant be told that an offer to plead guilty hasbeenmadeandtobe advised of the consequences of the choices confronting him); see further Brown v. State, 291 Ga. 892, 898 (4) (734 SE2d 23) (2012) (“[P]rior to trial an accused is entitled to rely upon his counsel to independently examine the facts, circumstances, pleadings and laws involved in the case and then to offer an informed opinion about what plea should be entered; the plea bargaining process is a critical stage of the criminal proceedings, so counsel’s involvement is crucial.”) (citation omitted).

        Cleveland, supra at 145 (footnote omitted).

       At the hearing, Davis’s post-conviction lawyer surmised to the court “that the burglary case alone would carry twenty years confinement, that the aggravated assault carried another twenty, and I believe the two gun charges, that brings him up to fifty possible years of confinement.”

        Cleveland, supra at 146 (footnote omitted; emphasis supplied).

       See id. (rejecting the argument that a defendant has a “lower... evidentiary burden for establishing Strickland prejudice in the plea bargain context” and reiterating that the second prong of the Strickland test requires the defendant to make an “affirmative demonstration of prejudice”).

        Brown, supra at 899 (4) (rejecting the mere assertion that the prejudice prong of Strickland was satisfied and noting that defendant failed to present any evidence to support that assertion); see Cleveland, supra at 147-148 (4) (determining that the record showed that defendant failed to demonstrate through his testimony at the motion for new trial hearing or otherwise, that but for his counsel’s deficient performance, there was a reasonable probability that he would have accepted a pretrial plea offer, noting that the defendant had adamantly and consistently insisted that he had nothing to do with the events that formed the basis for his convictions); Badger v. State, 310 Ga. App. 157, 160 (712 SE2d 582) (2011) (concluding that the defendant failed to demonstrate requisite prejudice, citing trial counsel’s testimony that the defendant had unequivocally stated that he would not accept any plea offer from the state and that the evidence against the defendant was weak).


author: McFadden, Judge.

text:
    A14A0374.
    REAVES v. THE STATE.
    (754 SE2d 155)
    Decided January 16, 2014.

      Amanda R. Gaddis, for appellant.

      Shannon G. Wallace, District Attorney, Cliff Head, Assistant District Attorney, for appellee.
   McFadden, Judge.

Weldon Keith Reaves appealed from his convictions for burglary and theft by taking. The state filed a suggestion of death, advising that Reaves has died while this appeal has been pending. See Court of Appeals Rule 43 (a) (“The death of a party in a pending appeal may be suggested by counsel for either side at any time.”). Reaves’s counsel also represented to this Court that Reaves has died. The state has moved to dismiss the appeal as moot for this reason. We grant the motion and dismiss the appeal as moot. Dorsey v. State, 272 Ga. 283 (528 SE2d 257) (2000); McLendon v. State, 220 Ga. App. 205 (469 SE2d 551) (1996).

Appeal dismissed.

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


author: DOYLE, Presiding Judge.

text:
    A13A1780.
    LEONARD v. THE STATE.
    (754 SE2d 155)
   DOYLE, Presiding Judge.

Acting pro se, inmate Ronald Leonard, Jr., appeals from the trial court’s denial of his motion to correct a void sentence. He contends that the sentence is illegal because (1) one count was suspended in violation of former OCGA § 16-8-41 (d), and (2) the sentence was ambiguous. For the reasons that follow, we affirm in part and remand for resentencing.

In 1994, Leonard was found guilty of 11 counts of armed robbery stemming from a series of robberies. He was sentenced as follows: life imprisonment for Count 1, twenty years suspended sentence for Count 2, and twenty years on each of the remaining nine counts to be served concurrent with each other and consecutive to the life sentence from Count 1. Leonard then unsuccessfully pursued a direct appeal and habeas relief. In 2013, Leonard, acting pro se, filed a “Motion to Correct Void and Ambiguous Sentences.”

We note as a general matter,

[t]he General Assembly has established a specific time frame during which a trial court has jurisdiction to freely modify a criminal sentence. Pursuant to OCGA § 17-10-1 (f), a court may correct or reduce a sentence during the year after its imposition, or within 120 days after remittitur following a direct appeal, whichever is later. Once this statutory period expires, a trial court may only modify a void sentence. A sentence is void if the court imposes punishment that the law does not allow. To support a motion for sentence modification filed outside the statutory time period, therefore, a defendant must affirmatively demonstrate that the sentence imposes punishment not allowed by law.

1. Leonard argues that his sentence as to Count 2 is void and not authorized by law in light of former OCGA § 16-8-41 (d), which provided as follows: “Adjudication of guilt or imposition of sentence shall not be suspended, probated, deferred, or withheld for any offense punishable under subsection (a), (b), or (c) of this Code section [defining armed robbery]Based on this Code section, this Court has held that a superior court lacked authority to probate a sentence imposed on conviction of armed robbery, and such a sentence was deemed “absolutely void.” We are faced with a similar situation in this case, where the superior court suspended Leonard’s sentence for armed robbery as prohibited by OCGA § 16-8-41 (d). Thus, we conclude that the suspended sentence on Count 2 was unauthorized by law and therefore void. Accordingly, “[t]he posture of this case is that the defendant has been validly convicted but has had a void sentence imposed which in law amounts to no sentence at all,” as to Count 2. We remand for resentencing as to Count 2 only.

Decided January 21, 2014.

Ronald Leonard, Jr., pro se.

Daniel J. Porter, District Attorney, Nigel R. Lush, Assistant District Attorney, for appellee.

2. Leonard also argues that his remaining sentence is void as being ambiguous. We discern no ambiguity. The 20-year concurrent sentences merely run consecutive to the life sentence. This sentence is within the punishment prescribed by law, and it is therefore not void.

Judgment affirmed in part and case remanded for resentencing.

McFadden and Boggs, JJ., concur.

       Leonard urges an additional enumeration incorrectly asserting that waiver was a basis for the trial court’s order. That argument is belied by the trial court’s order, and we do not further address the argument. Further, in his reply brief, Leonard attempts to expand the scope of his arguments with an additional ground for reversal. This additional argument is beyond the scope of the enumerated error and will not be considered by this Court. See Corsini v. State, 238 Ga. App. 383, 386, n. 1 (519 SE2d 39) (1999).

       (Citation and punctuation omitted.) Frazier v. State, 302 Ga. App. 346, 347-348 (691 SE2d 247) (2010).

       See Fleming v. State, 271 Ga. 587, 590 (523 SE2d 315) (1999) (“[I]t has long been the law in this [S]tate that, in general, a crime is to be construed and punished according to the provisions of the law existing at the time of its commission”). We apply the Code section in effect in May 1992, the time of the offenses.

       See State v. Stuckey, 145 Ga. App. 434 (243 SE2d 627) (1978).

       Id. at 434-435.

        See Diaz v. State, 279 Ga. App. 134, 135-136 (630 SE2d 618) (2006) (voidness of one count does not affect remaining counts in indictment).

       See OCGA § 16-8-41 (b) (1992) (“Aperson convicted of the offense of armed robbery shall be punished by... imprisonment for life or by imprisonment for not less than five nor more than 20 years. . ..”).

       See Frazier, 302 Ga. App. at 347-348.


author: Dillard, Judge.

text:
    A13A2276.
    CHRYSLER FINANCIAL SERVICES AMERICAS, LLC v. BENJAMIN et al.
    (754 SE2d 157)
   Dillard, Judge.

After Betty and Kerron Benjamin defaulted on a retail-installment contract, Chrysler Financial Services Americas, LLC (“Chrysler FSA”) sued them to recover the deficiency balance and later filed a motion for default judgment based on its belief that they failed to file an answer. But after noting that the Benjamins, acting pro se, had indeed filed an answer, the trial court dismissed Chrysler FSA’s case for failure to prosecute and awarded the Benjamins attorney fees pursuant to OCGA § 9-15-14. Chrysler FSA now appeals, arguing that the trial court abused its discretion. For the reasons set forth infra, we affirm in part, reverse in part, vacate in part, and remand the case for further proceedings consistent with this opinion.

The record shows that in 2005, Kerron Benjamin and Betty Benjamin (Kerron’s mother) entered into a retail-installment contract for the purchase of a Dodge pickup truck with a local automobile dealership, which then sold the contract to Chrysler FSA. Approximately three years later, the Benjamins took the truck back to the dealership for repairs, which they believed were covered by the vehicle’s warranty. But according to the Benjamins, after removing the truck’s engine, the dealership informed them that the required repairs were not covered by the warranty. At this point, believing that they should not be required to make payments on a vehicle they could not drive, the Benjamins stopped making payments on the contract.

Shortly thereafter, Chrysler FSA repossessed the vehicle and resold it. The resale amount, however, was less than the balance due on the Benjamins’ retail-installment contract. Consequently, on February 22, 2010, Chrysler FSA filed a lawsuit against the Benjamins, seeking to recover the deficiency balance on the contract. Nine months later, Chrysler FSA voluntarily dismissed the action but then re-filed it on February 22, 2011.

On March 22, 2011, the Benjamins filed an answer. But because Chrysler FSA apparently never received a service copy of the answer, it believed the matter to be in default. Nevertheless, the record does not indicate that any additional action was taken until February 24, 2012 (almost one year later), at which point Chrysler FSA successfully sought a continuance to prepare a motion for default judgment. Seven more months passed, and on September 25, 2012, Chrysler FSA sought another continuance, averring that such a continuance was necessary in order to complete an affidavit supporting its soon-to-be-filed motion for default judgment. The trial court granted the second continuance; however, Chrysler FSA did not file its motion for default judgment until January 28, 2013.

On March 22, 2013, rather than ruling on the motion for default judgment, the trial court dismissed Chrysler FSA’s complaint with prejudice for failure to prosecute the case, noting that the case had lingered for over three years and that Chrysler FSA had not appeared at four separate calendar calls. In addition, the trial court awarded attorney fees to the Benjamins pursuant to OCGA § 9-15-14. This appeal follows.

At the outset, we note that a trial court’s order of dismissal for failure to prosecute is discretionary and “is subject to appellate review for abuse of discretion.” And we will not substitute our judgment for the trial court’s judgment when “there is no obvious abuse of discretion.” With these guiding principles in mind, we turn now to Chrysler FSA’s claims of error.

1. Chrysler FSA contends that the trial court abused its discretion in dismissing its complaint with prejudice for failure to prosecute its case, arguing that this sanction was too severe. We do not agree that the court abused its discretion in dismissing the case based on Chrysler FSA’s failure to prosecute, and thus, we affirm the court’s judgment in that regard. That said, we do agree that the court erred in dismissing the case with prejudice, and thus, we vacate that aspect of the court’s judgment and remand with the direction noted infra.

Here, in its dismissal order, the trial court noted that the case had lingered for approximately three years, that Chrysler FSA conducted no discovery during that time, and that Chrysler FSA failed to attend at least four calendar calls. The court, therefore, dismissed the case for failure to prosecute pursuant to OCGA § 9-11-41 (b). Chrysler FSA does not dispute that it failed to attend the various calendar calls but, rather, argues that it did not think it was necessary to do so in light of its belief that the Benjamins were in default by failing to file an answer. This mistaken belief, however, did not preclude an involuntary dismissal by the trial court. Indeed, it is a fundamental principle of Georgia law that “counsel has a duty to keep himself informed as to the progress of the cases he handles in a particular court, so that he may take whatever actions may be necessary to protect the interests of his clients.” Consequently, Chrysler FSA’s reason for not attending the calendar calls is not at all persuasive. Furthermore, “our prior case law in this area has shown extraordinary deference to trial courts that have chosen to dismiss a civil action as a result of a party’s failure to appear at a proceeding, calendar call, or the like.” Accordingly, the trial court did not abuse its discretion in dismissing Chrysler FSA’s case.

Nevertheless, although we find that the trial court did not abuse its discretion in dismissing Chrysler FSA’s case, the trial court did err in dismissing the case with prejudice. Indeed, while the trial court attempts to justify its decision by characterizing Chrysler FSA’s conduct below as contumacious, the court clearly dismissed the case due to Chrysler FSA’s failure to prosecute. And it is well established that, pursuant to OCGA § 9-11-41 (b), a dismissal for failure of the plaintiff to prosecute “does not operate as an adjudication upon the merits[,]” Thus, “it follows that such a dismissal cannot be with prejudice.”

Moreover, the trial court’s further finding that a dismissal with prejudice was likewise appropriate under OCGA § 9-11-41 (a) (3), given Chrysler FSA’s earlier voluntary dismissal, is equally erroneous. As the text of OCGA § 9-11-41 (a) (1) makes explicitly clear, this statutory subsection, by its plain terms, concerns a “[v]oluntary dismissal” in which “an action may be dismissed by the plaintiff, without order or permission of court.” And OCGA § 9-11-41 (a) (3) then explains the effect of such a voluntary dismissal, noting that, “[a] dismissal under this subsection is without prejudice, except that the filing of a second notice of dismissal operates as an adjudication upon the merits.” Thus, a plaintiff’s second voluntary dismissal pursuant to OCGA § 9-11-41 (a) (1) “operates as an adjudication on the merits against the plaintiff” pursuant to OCGA § 9-11-41 (a) (3), and as such, “[s]ubsection (a) (3) of the statute has nothing to do with involuntary dismissals.”

Decided January 21, 2014.

C. Fredrick MacDowell, Alexander J. Zubrowski, for appellant.

Betty Benjamin, pro se.

Kerron L. Benjamin, pro se.

And here, the only voluntary dismissal that occurred was Chrysler FSA’s dismissal in November 2010. The trial court, then, clearly erred “in concluding that an adjudication on the merits occurred under the voluntary dismissal rule of OCGA § 9-11-41 (a) (3).” Accordingly, the trial court erred in dismissing Chrysler FSA’s case with prejudice. We, therefore, vacate that aspect of the trial court’s judgment and remand this case for entry of an order consistent with this opinion.

2. Chrysler FSA also contends that the trial court erred in awarding attorney fees to the Benjamins pursuant to OCGA § 9-15-14. We agree.

As this Court has previously held, “pro se litigants who are not attorneys cannot recover attorney fees because of the lack of any meaningful standard for calculating the amount of the award.” Thus, the trial court erred in awarding attorney fees to the Benjamins pursuant to OCGA § 9-15-14, and we reverse that aspect of its judgment.

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

Andrews, P. J., and McMillian, J., concur.

        McKnight v. Wyrick, 247 Ga. App. 584, 585-586 (544 SE2d 507) (2001); accord Floyd v. Logisticare, Inc., 255 Ga. App. 702, 702 (1) (566 SE2d 423) (2002).

        McKnight, 247 Ga. App. at 586.

        See OCGA § 9-11-41 (b) (“For failure of the plaintiff to prosecute or to comply with this chapter or any order of court, a defendant may move for dismissal of an action or of any claim against him. . . .”).

        Atlanta Bus. Video, LLC v. FanTrace, LLC, 324 Ga. App. 559, 561 (751 SE2d 169) (2013) (punctuation omitted); accord Hipple v. Simpson Paper Co., 234 Ga. App. 516, 517 (1) (507 SE2d 156) (1998).

        Atlanta Bus. Video, LLC, 324 Ga. App. at 562; see Ector v. Unison Ins. Co., 228 Ga. App. 520, 521 (3) (492 SE2d 287) (1997) (affirming dismissal of plaintiff’s suit without prejudice “for failure to appear at the calendar call,” even though “the circumstances of this case understandably gave rise to some confusion” because ultimately “it was plaintiff’s responsibility to appear at the call or contact the court to clarify the status of the case in the absence of a continuation order”); see also Kraft, Inc. v. Abad, 262 Ga. 336, 336 (417 SE2d 317) (1992) (“OCGA § 9-11-41 (b) and Superior Court Rule 14 both contain permissive language. Under either provision the court may dismiss an action without prejudice if the plaintiff fails to appear at the call of the case.”).

        Lloyd v. Whitworth, 210 Ga. App. 714, 715 (437 SE2d 636) (1993) (punctuation omitted); see OCGA § 9-11-41 (b) (“A dismissal for failure of the plaintiff to prosecute does not operate as an adjudication upon the merits . .. .”); Wolfpack Enters., Inc. v. Arrington, 272 Ga. App. 175, 176 (1) (612 SE2d 35) (2005) (holding that Uniform Superior Court Rule 14 and OCGA § 9-11-41 (b) “restrict the dismissal of an action for failure to appear at the call of the case to one without prejudice” (punctuation omitted)).

        See Lloyd, 210 Ga. App. at 715 (punctuation omitted).

        See Troup v. Chambers, 280 Ga. App. 392, 392 (634 SE2d 191) (2006); see OCGA § 9-11-41 (a) (1), (3).

        Troup, 280 Ga. App. at 392.

        Id. at 393.

        JarAllah v. Am. Culinary Fed., Inc., 242 Ga. App. 595, 596 (2) (529 SE2d 919) (2000); see Demido v. Wilson, 261 Ga. App. 165, 169 (1) (582 SE2d 151) (2003) (“As a pro se litigant who was not an attorney, [appellant] was not entitled to recover attorney fees----”). We further note that even if the Benjamins were arguably entitled to attorney fees under OCGA § 9-15-14, the trial court nevertheless erred in awarding such fees without holding an evidentiary hearing. See Green v. McCart, 273 Ga. 862, 863 (1) (548 SE2d 303) (2001).