author: MCFADDEN, Judge.

text:
    A15A0634.
    HARRIS v. THE STATE.
    (775 S.E.2d 602)
   MCFADDEN, Judge.

Andre Harris appeals from his convictions of child molestation and enticing a child for indecent purposes. He challenges the sufficiency of the evidence, the allowance of certain rebuttal testimony, a jury charge on the asportation element of enticing a child for indecent purposes, and the effectiveness of his trial counsel. However, there was sufficient evidence to support the jury’s verdict, Harris opened the door to the rebuttal testimony, the court correctly charged the jury on asportation, and Harris has failed to show that his counsel’s performance was both deficient and prejudicial. Accordingly, we affirm.

1. Sufficiency of the evidence.

On appeal from a criminal conviction, the standard for reviewing the sufficiency of the evidence

is whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. This [c]ourt does not reweigh evidence or resolve conflicts in testimony; instead, evidence is reviewed in a light most favorable to the verdict, with deference to the jury’s assessment of the weight and credibility of the evidence.

Hayes v. State, 292 Ga. 506 (739 SE2d 313) (2013) (citations omitted).

So viewed, the evidence shows that Harris is the biological father of K. H. In August 2010, when K. H. was 11 years old, she moved from her mother’s home in Spalding County to Harris’ home in Clayton County, where he lived with his wife and their two minor children. Unbeknownst to K. H.’s mother, at that time, Harris had child molestation charges pending against him, arising from an incident in 2009 involving a nine-year-old girl. In March 2011, while K. H. was still living with him, Harris pled guilty to two counts of child molestation. As a registered sex offender, he could no longer live in the same house because it was near a school. So in September 2011, Harris moved his family, including then 12-year-old K. H., to another house in Clayton County.

Shortly after the move to the new house, Harris began entering K. H.’s bedroom in early morning hours once or twice a week. Harris would awaken K. H. and tell her to come with him to massage his back. Harris would then take his daughter to another room in the house, usually his music studio. Harris would lie face-down on the floor and instruct K. H. to sit on his back and massage it with her buttocks by moving in a circular motion. He would then turn over, lie on his back, and instruct her do the same thing while sitting on his crotch area, having her massage his genitals with her buttocks by moving her hips in a circular motion. After approximately 20 minutes, Harris would tell her “good job” and allow her to return to her bedroom. He also instructed his daughter not to tell others about the incidents.

In December 2011, K. H. moved back to live with her mother. In April 2012, she went to visit Harris and his family during spring break. On that occasion, while the rest of the family was at church, Harris called K. H. into his bedroom where he again had her sit on him and move her buttocks in a circular motion. K. H. could feel that his penis was hard and that it moved as she rotated her buttocks. Harris apparently ejaculated on K. H.’s clothed buttocks as she subsequently discovered what she described as a white gooey substance on the back of her shorts.

Harris testified on his own behalf, denying that the molestation of K. H. had occurred and claiming that the prior acts of molestation of the nine-year-old girl had been an isolated incident and that he had never done anything like that before. On rebuttal, the state introduced testimony from the aunt of that nine-year-old victim. She testified that on several occasions when she was 14 years old, Harris had taken her to a hotel room and had sex with her.

(a) Child molestation.

Although Harris has not raised any argument concerning the sufficiency of the evidence supporting his child molestation conviction, we have reviewed the evidence and conclude that there was sufficient evidence from which the jury was authorized to find Harris guilty beyond a reasonable doubt of child molestation. See OCGA § 16-6-4 (a) (1) (child molestation committed when person does any immoral or indecent act to a child under the age of 16 years with the intent to arouse or satisfy the sexual desires of the child or the person); Madison v. State, 329 Ga. App. 856, 863 (1) (a) (766 SE2d 206) (2014).

(b) Enticing a child for indecent purposes.

“A person commits the offense of enticing a child for indecent purposes when he or she solicits, entices, or takes any child under the age of 16 years to any place whatsoever for the purpose of child molestation or indecent acts.” OCGA § 16-6-5 (a). This offense

has been held to include the element of asportation, and our Supreme Court has held that this element is satisfied whether the taking involves physical force, enticement, or persuasion. Further, any asportation, however slight, is sufficient to show the taking element of enticing a child for indecent purposes.

Whorton v. State, 318 Ga. App. 885, 887 (1) (a) (735 SE2d 7) (2012) (citations and punctuation omitted). Here, the indictment charged that between September 1, 2011 and April 30, 2012, Harris “did unlawfully solicit, entice and take [K. H.], a child under the age of sixteen years, to Rex, [Clayton County, Georgia,] for the purpose of child molestation.”

Harris argues that the evidence was insufficient to support the guilty verdict on this charge because he was not involved in the initial decision to move K. H. to his house in Clayton County, and instead that decision was made only by the child’s mother and grandmother. Thus, Harris reasons, there is no evidence that he initially enticed the child to his house. However, Harris has overlooked his own testimony that he was in fact involved in the initial decision to move K. H. to his house. He testified at trial that K. H. came to live with him in 2010 after he and the child’s mother had a conversation about the mother’s unstable living condition and they “came to the conclusion that it would be best for [K. H.] to come live with [Harris].” Thus, contrary to Harris’ argument, his own testimony provides evidence that he was in fact involved in the decision to move the child to his house.

Moreover, not only is the argument based on an incorrect factual premise, but it is also based on a misreading of the enticement offense alleged in the indictment. Contrary to Harris’ argument, the indicted enticement charge was not based on the victim’s initial move to the first house in Clayton County where Harris and his family were living in 2010. Rather, it is clear from the plain language of the indictment, as well as the evidence introduced at trial, that the enticement offense as charged actually took place at the second house that Harris moved his family to in September 2011, after he had pled guilty to the prior child molestation charges and had become a registered sex offender. Having reviewed the evidence in the light most favorable to the verdict, we conclude that “the evidence was sufficient for a rational trier of fact to find [Harris] guilty of [the indicted offense of] enticing a child for indecent purposes beyond a reasonable doubt.” Hicks v. State, 254 Ga. App. 814, 816 (3) (563 SE2d 897) (2002) (punctuation omitted).

Harris also argues that the state failed to prove venue in Clayton County for the enticement offense. He claims that K. H. was first told in Spalding County, where she had lived with her mother, that she would be moving to Harris’ home in Clayton County, and therefore venue for the crime of enticement would be in Spalding County. However, Harris has not cited any evidence showing that the child was first told of the move in Spalding County. Moreover, the argument is based on the same misreading of both the indicted enticement offense and the evidence presented at trial. As noted above, Harris was not charged with committing any enticement offense at his first house in Clayton County where K. H. initially moved to in 2010; rather, he was charged with enticing the child for indecent purposes at the second house between September 2011 and April 2012, and the evidence presented at trial supported that charge. Contrary to Harris’ argument, the uncontradicted evidence, including his own testimony, “was sufficient to establish venue in [Clayton] County. [Cit.]” Lowther v. State, 263 Ga. App. 282, 283 (2) (587 SE2d 335) (2003).

2. Rebuttal witness.

Harris contends that the trial court erred in allowing the rebuttal witness to testify about Harris having had sexual relations with her when she was 14 years old. However, Harris opened the door to such testimony with his own testimony. While testifying on direct about his prior guilty plea to two counts of child molestation, Harris claimed that he had accepted responsibility for that lone incident and that he had “never done nothing like that” either before or since that incident.

“A witness may be impeached by disproving the facts testified to by the witness.” OCGA § 24-6-621. Here, the state was properly allowed to impeach Harris by calling the rebuttal witness to give testimony disproving Harris’ testimony by showing that he had in fact engaged in improper sexual contact with another minor girl prior to the child molestation incident to which he pled guilty.

[W]hether the [s]tate should be permitted to introduce evidence after the defendant has closed his testimony ... is a matter resting in the sound discretion of the court. And given that the rebuttal evidence contradicted [Harris’] testimony, [Harris] has not shown that its admission [was a]... breach of that discretion.

Brown v. State, 300 Ga. App. 359, 365 (6) (d), n. 2 (685 SE2d 377) (2009) (citations and punctuation omitted).

3. Jury charge.

Harris enumerates as error the charge given on the asportation element of enticing a child for indecent purposes. But as he did not object to this charge at trial, his burden is to show plain error. Consequently,

review bythis [c]ourt is precluded pursuant to OCGA § 17-8-58 unless plain error is shown. Plain error requires a clear or obvious legal error or defect not affirmatively waived by the appellant that must have affected the appellant’s substantial rights, i.e., it affected the outcome of the trial-court proceedings. Stated more succinctly, the proper inquiry is whether the instruction was erroneous, whether it was obviously so, and whether it likely affected the outcome of the proceedings.

Guthridge v. State, 297 Ga. 126, 129 (1) (772 SE2d 627) (2015) (citations and footnote omitted). Here, there was no clear or obvious legal error because there was no error.

The asportation charge at issue stated:

As to this offense, the state is required to prove the element of asportation, which means causing a person to move from one place to another. Any asportation, no matter how slight, would be sufficient to show the taking element of the crime of enticing a child for indecent purposes. And the asportation element of the offense is satisfied when the taking involves a physical force, enticement or persuasion.

That charge was a correct statement of the law as to an element of a crime at issue in the case. See Whorton v. State, supra (offense of enticing a child includes the element of asportation; this element is satisfied whether the taking involves physical force, enticement, or persuasion; and any asportation, however slight, is sufficient to show the taking element of enticing a child). Moreover, Harris has made no showing that this proper statement of the law somehow improperly affected the outcome of the trial. Thus, Harris “has failed to demonstrate error, much less plain error, in the jury instructions he now disputes.” Woodard v. State, 296 Ga. 803, 807 (2) (771 SE2d 362) (2015).

4. Ineffective assistance of counsel.

In order to succeed on his ineffective assistance of counsel claim, Harris must show, under the standard set forth in Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984),

both that his trial counsel’s performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. ... If [he] fails to meet his burden of proving either prong of the Strickland test, the reviewing court need not examine the other prong.

Perez v. State, 331 Ga. App. 164, 168 (3) (770 SE2d 260) (2015).

(a) Failure to advise defendant about testifying.

Harris claims that his trial counsel was ineffective in failing to properly advise him before he testified and that such deficient performance opened the door to the rebuttal testimony discussed above in Division 2. However, at the motion for new trial hearing, counsel explained that they talked in depth several times about whether Harris should testify, that Harris made the decision to testify after consulting with counsel, that counsel repeatedly advised Harris to answer only the questions asked and instructed him to “not volunteer other information about anything else.” Despite counsel’s advice, Harris gave a nonresponsive answer during his testimony that opened the door to the rebuttal testimony. Thus, it was Harris’ disregard of counsel’s advice to answer only the questions asked and not volunteer other information that opened the door to the rebuttal testimony. The fact that Harris’ “responses to [questions] may have been less than optimal does not render his trial counsel’s representation constitutionally deficient.” Alexander v. State, 319 Ga. App. 199, 203 (2) (734 SE2d 432) (2012).

(b) Failure to obtain victim’s school records.

Harris claims that his trial counsel was ineffective in failing to obtain K. H.’s school records, which would have impeached the testimony of the child’s mother about her poor performance at school while living with Harris. However, Harris himself also testified that K. H. was “coming home with Fs” on her report card when she lived with him. Moreover, we have reviewed the mother’s testimony and are unable to discern precisely what testimony Harris now claims his counsel should have rebutted. As the trial court found in denying a new trial, “it is highly unlikely that [evidence of the school records] would have changed the outcome of the case in light of all the other evidence.” Consequently, even assuming for the sake of argument that counsel was deficient in not investigating the school records, Harris has made no showing of prejudice from counsel’s failure to obtain such records. See Wright v. State, 296 Ga. 276, 285 (4) (766 SE2d 439) (2014) (no showing of prejudice in failure to obtain certain school records).

Decided July 13, 2015.

John W. Kraus, for appellant.

Tracy Graham-Lawson, District Attorney, Elizabeth A. Baker, Assistant District Attorney, for appellee.

(c) Failure to object to jury charge on asportation.

Harris complains that trial counsel was ineffective in failing to object to the trial court’s jury instruction on the asportation element of enticing a child for indecent purposes. But as explained above, the charge was a correct statement of the law and not improper. “Counsel cannot be ineffective for failing to make a meritless objection to a proper charge. [Cit.]” Vergara v. State, 287 Ga. 194, 198 (3) (b) (695 SE2d 215) (2010).

(d) Failure to object to cross-examination.

Harris claims that trial counsel was ineffective in failing to object when the prosecutor asked him irrelevant questions on cross-examination about his marital relations. “Pretermitting whether trial counsel was deficient for failing to object to the prosecutor’s questions, we conclude that [Harris] has failed to show a reasonable probability that the outcome of the trial would have been different but for his counsel’s alleged deficiency. [Cit.]” Gipson v. State, 332 Ga. App. 309, 323 (8) (h) (772 SE2d 402) (2015).

Judgment affirmed.

Ellington, P. J., and Dillard, J., concur.


source: Caselaw Access Project

author: McFadden, Judge.

license: Public Domain

text:
    A15A0653.
    THE STATE v. WEIGHT.
    (775 S.E.2d 567)
   McFadden, Judge.

The state appeals from the trial court’s grant of a general demurrer against an indictment’s count alleging that Tommy Lugene Wright committed the offense of possession of a controlled substance in violation of OCGA § 16-13-30 (a). We affirm, because the indictment does not identify a substance listed as a controlled substance under the statute.

“A general demurrer challenges the sufficiency of the substance of the indictment[.]” Bryant v. State, 320 Ga. App. 838, 841 (3) (740 SE2d 772) (2013) (citation omitted). “An indictment shall be deemed sufficiently technical and correct to withstand a general demurrer if it ‘states the offense in the terms and language of this Code or so plainly that the nature of the offense charged may easily be understood by the jury.’ ” State v. Corhen, 306 Ga. App. 495, 497 (700 SE2d 912) (2010) (quoting OCGA § 17-7-54 (a)).

[I]f an accused would be guilty of the crime charged if the facts as alleged in the indictment are taken as true, then the indictment is sufficient to withstand a general demurrer; however, if an accused can admit to all of the facts charged in the indictment and still be innocent of a crime, the indictment is insufficient and is subject to a general demurrer.

Id. (citation omitted). This presents a question of law that we review de novo. State v. McDowell, 301 Ga. App. 751 (688 SE2d 417) (2009).

The indictment in this case alleged that Wright “unlawfully possessed] and [had] under [his] control 3, 4-methylenedioxy-N-ethyl-cathinone (ethylone), a substituted 2-aminopropan-l-one, a Schedule [I] controlled substance, in violation of OCGA § 16-13-30 (a)[.]” This description of the substance is not sufficient to show that it is a controlled substance within the meaning of the statute. Cf. Nixdorf v. State, 226 Ga. 615, 617 (1) (a) (176 SE2d 701) (1970) (considering, in ruling on demurrer, whether allegations in indictment were sufficient to show defendant’s office was “private place” within meaning of statute establishing offense of eavesdropping). The substance “3, 4-methylenedioxy-N-ethylcathinone (ethylone)” does not appear by name within the statutory list of Schedule I controlled substances. See OCGA § 16-13-25. The state argues that the phrase “a substituted 2-aminopropan-l-one” indicates that the substance falls under OCGA § 16-13-25 (12) (L), which in pertinent part identifies as a Schedule I controlled substance “[a]ny compound . . . structurally derived from 2-aminopropan-l-one by substitution at the 1-position with either phenyl, naphthyl, or thiophene ring systems [.]” But the indictment’s language does not clearly refer to a substance under OCGA § 16-13-25 (12) (L). Its use of the term “substituted” is ambiguous and could be construed to include compounds that do not match the precise definition of the statute and, thus, are not controlled substances. So construed, the indictment would not charge a crime. See generally Tibbs v. State, 211 Ga. App. 250, 251 (1) (438 SE2d 706) (1993) (indictment that alleged defendant had violated statute pertaining to “dangerous drugs” but identified substances that were not “dangerous drugs” but rather “controlled substances” failed to state any crime and would have been subject to demurrer had defendant timely filed such demurrer).

Decided July 13, 2015.

Joseph K. Mulholland, District Attorney, MorufO. Oseni, Michael L. Bankston, Assistant District Attorneys, for appellant.

Patrick E. Chisholm, for appellee.

“An indictment is to be strictly construed against the state when a demurrer has been filed against it.” Jack Goger, Daniel’s Ga. Criminal Trial Practice, § 13-4 (2014-2015 ed.) (citations omitted). Because this indictment can be construed such that Wright would not be guilty of the crime of possession of a controlled substance if the facts as alleged in the indictment were taken as true, we find no error in the trial court’s grant of the general demurrer to Wright on that count.

Judgment affirmed.

Ellington, P. J., concurs. Dillard, J., concurs in judgment only.


author: McFADDEN, Judge.

text:
    A15A0760.
    CAPITAL CITY BANK v. JONES.
    (775 S.E.2d 608)
   McFADDEN, Judge.

Capital City Bank sued Eric Jones on guaranties executed by Jones to guarantee the indebtedness of Parrish Capital Resources, Inc. In his answer and counterclaim, Jones sought to vary the written terms of the guaranties and to dispute the recitation in the guaranties that the consideration for them was the loan to Parrish Capital. Those arguments do not constitute a valid defense to the prima facie case the bank had made out by producing the guaranties and showing that Jones had executed them. We therefore reverse the trial court’s denial of the bank’s motion for summary judgment.

1. Facts.

Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” OCGA § 9-11-56 (c). “We review the grant or denial of a motion for summary judgment de novo, and we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.” Courtland Hotel v. Salzer, 330 Ga. App. 264 (767 SE2d 750) (2014) (citation and punctuation omitted).

So viewed, the evidence showed that Parrish Capital Resources executed a promissory note in favor of the Bank dated July 7,2011, in the amount of $558,874.89. The note was a renewal and consolidation of other loans, and the collateral for the note included real estate owned by Parrish Capital. Jones, a 50 percent stockholder in Parrish Capital, signed commercial guaranties dated November 20,2009 and July 7, 2011, guaranteeing payment of the indebtedness of Parrish Capital to the Bank. In his deposition, Jones — who is an attorney experienced in the drafting and enforcement of loan documents — testified that he had relied on oral representations that other persons had also signed guaranties. Jones had been signing guaranties for Parrish Capital’s loans since 1995. The normal procedure, he testified, was that the Bank would work out the terms of the loan with John Parrish, an officer of Parrish Capital, and then call Jones and let him know that he needed to come in to sign a guaranty. Jones thought that John Parrish was also giving guaranties for the loans, and would always ask Bank employees if John and Phyllis Parrish had signed their guaranties when he went in to sign. The employees, Jones testified, would respond that everyone else had already signed.

As to the guaranties at issue here, Jones testified that he understood what each guaranty was before he signed it, that he had an opportunity to read it before he signed it, and that he understood that by signing it, he was guaranteeing all indebtedness from Parrish Capital to the Bank — which he knew was in the range of $500,000. Jones did not see the loan documents before he signed the guaranties; he never asked to see them.

In 2013, the bank notified Jones in a demand letter that the loan to Parrish Capital was in default. The demand letter stated that the July 7, 2011 note was in default and that the Bank was accelerating the note and seeking immediate payment of $558,710.38, plus interest, late fees, and escrow fees from Parrish Capital and all guarantors of the note. The demand letter also notified Jones that if these amounts were not paid within ten days, the Bank would seek to recover its attorney fees. When the amounts sought in the demand letter were not paid, the Bank filed suit against Parrish Capital on the note and against Jones and the other guarantors on their guaranties.

2. Motion for summary judgment on the complaint.

“Once a plaintiff establishes a prima facie case by producing a guarant[y] and showing that it was executed, the plaintiff is entitled to judgment as a matter of law unless the defendant can establish a defense.” CSS Real Estate Dev. I v. State Bank and Trust Co., 324 Ga. App. 184, 185 (749 SE2d 773) (2013) (citation and punctuation omitted). Here, the Bank established a prima facie right to recovery by producing the guaranties executed by Jones, and the burden shifted to Jones to establish a valid defense.

Jones argued below that there was no meeting of the minds with respect to the Bank’s conduct in securing execution of the guaranties and that although Jones’s signature on the guaranties may be some evidence of assent on his part, it did not constitute complete assent. The trial court considered parol evidence in reaching its conclusion that there were “questions of assent, i.e. Defendant Jones’s understanding of other guarantors, and consideration or lack thereof.” Specifically, the trial court relied on Jones’s deposition testimony that he thought John Parrish was also a guarantor. That reliance was misguided because “parol evidence is not admissible to vary or contradict the unconditioned promise to pay provided in a note or a guaranty agreement. The cases are legion that a complete and unambiguous instrument cannot be varied or contradicted by reliance upon inconsistent parol statements.” Brooks-v. Gwinnett Community Bank, 311 Ga. App. 806, 807 (717 SE2d 647) (2011) (citations and punctuation omitted).

Here, the guaranties set unconditional promises to pay that cannot be contradicted by inconsistent parol statements; they provide, in pertinent part:

Guarantor absolutely and unconditionally guarantees full and punctual payment and satisfaction of the Indebtedness of Borrower to Lender..., NOW EXISTING OR HEREAFTER ARISING OR ACQUIRED, ON AN OPEN AND CONTINUING BASIS____“Indebtedness” as used in this Guaranty means all- of the principal amount outstanding from time to time and at any one'or more times, accrued unpaid interest thereon and all collection costs and legal expenses related thereto permitted by law, attorneys’ fees, arising from any and all debts, liabilities and obligations of every nature or form, now existing or hereafter arising or acquired, that Borrower individually or collectively or interchangeably with others, owes or will owe Lender.

Moreover, “[t]he parol evidence rule bars evidence of an extrinsic contemporaneous oral representation that an unconditional written guaranty was conditioned on the existence of a guaranty by another party.” Carrollton Car Center v. C & S Nat. Bank, 202 Ga. App. 429, 430-431 (3) (414 SE2d 674) (1992) (citations omitted). The trial court therefore erred in admitting parol evidence to vary the terms of the guaranties.

The Bank contends that the trial court erred by concluding that issues of fact remained regarding whether there was consideration for the guaranties. Again, we agree.

The stated consideration in the guaranties is “to induce Lender to make loans or otherwise extend credit to Borrower, or to renew or extend in whole or in part any existing indebtedness of Borrower to Lender, or to make any other financial accommodations to Borrower.” It is undisputed that the Bank made loans to Parrish Capital, which provided sufficient consideration for the guaranties. See Beasley v. Wachovia Bank, 277 Ga. App. 698, 701 (1) (d) (627 SE2d 417) (2006); Hearn v. C & S Nat. Bank, 154 Ga. App. 686, 689 (269 SE2d 486) (1980).

3. Motion for summary judgment on the counterclaim.

In his counterclaim, Jones asserts that the Bank should be estopped from pursuing this action against him until it has taken reasonable steps to foreclose on the real estate serving as collateral for the loans. But the guaranties he signed specifically state:

This is a guaranty of payment and performance and not of collection, so Lender can enforce this Guaranty against Guarantor even when Lender has not exhausted Lender’s remedies against anyone else obligated to pay the indebtedness or against any collateral securing the Indebtedness.

And the guaranties further provide that “Guarantor waives any right to require Lender . . . (D) to proceed directly against or exhaust any collateral held by Lender from Borrower.” Those provisions are enforceable; indeed they are consistent with the well-settled generally applicable principle that

a creditor who holds a promissory note secured by a deed is not put to an election of remedies as to whether he shall sue upon the note or exercise a power of sale contained in the deed, but he may do either, or pursue both remedies concurrently until the debt is satisfied. In other words, the holder of a note who is also the grantee in a deed to secure the indebtedness of the note is not forced to exercise the power of sale in the deed. He may sue on the note or exercise the power of sale.

REL Dev. v. Branch Banking & Trust Co., 305 Ga. App. 429, 431 (1) (699 SE2d 779) (2010) (citations and punctuation omitted).

Because the record shows that the Bank proved a prima facie case by showing that Jones signed the guaranties and that the loans and guaranties are now in default, and as we have found no merit in the issues raised by Jones in rebuttal, the trial court erred in denying the Bank’s motion for summary judgment. Secured Realty Investment v. Bank of North Ga., 314 Ga. App. 628, 632 (2) (725 SE2d 336) (2012).

Decided July 13, 2015.

Rogers Law Offices, Beth E. Rogers, James F. F. Carroll, for appellant.

Smith, Garner & Rowland, J. Stanley Smith, James C. Garner, for appellee.

Judgment reversed.

Dillard, J., concurs. Ellington, R J., concurs in judgment only.


author: BARNES, Presiding Judge.

text:
    A15A0049.
    KWON et al. v. KWON.
    (775 S.E.2d 611)
   BARNES, Presiding Judge.

Soon Ja Kwon, the widow of Phil Kwon, filed a petition against Mr. Kwon’s children and his estate administrator (collectively, “the Administrator”) to determine the heirs of the estate, and then filed a motion to deny the enforcement of an antenuptial agreement she signed before she married Mr. Kwon. The Administrator answered and counterclaimed against Mrs. Kwon for conversion of a Rolex watch and for declaratory judgment that the antenuptial agreement was enforceable. The Administrator subsequently moved for summary judgment. The trial court denied the motion for summary judgment and granted the motion to deny enforcement of the agreement, finding that the evidence established that Mrs. Kwon was not fully apprised of Mr. Kwon’s assets when she executed the agreement. The Administrator appeals, arguing that the trial court erred in this finding, and erred in failing to find that, even if Mrs. Kwon was not fully apprised of Mr. Kwon’s assets when she signed the agreement, she waived her right to further disclosure of his assets. For the reasons that follow, we affirm.

Unlike a motion for summary judgment, in which a trial court is authorized only to determine whether an issue of material fact exists, in a motion to enforce or deny enforcement of an antenuptial agreement, “the trial court essentially sits in equity and has discretion to approve the agreement in whole or in part, or refuse to approve it as a whole.” (Citations and punctuation omitted.) Alexander v. Alexander, 279 Ga. 116, 117-118 (610 SE2d 48) (2005). “On appeal, the trial court’s disposition of a motion to enforce a prenuptial agreement is evaluated under the abuse of discretion standard of review.” (Citations omitted.) Quarles v. Quarles, 285 Ga. 762 (683 SE2d 583) (2009).

So viewed, the evidence showed that the Kwons signed an antenuptial agreement on January 3, 2003, which included alimony provisions in the event of a divorce and provided that if Mr. Kwon died first, Mrs. Kwon would receive $200,000 and half of any life insurance proceeds for which she was a named beneficiary. They obtained a marriage license later that same day, and were married on January 11, 2003. Mr. Kwon was 62, and Mrs. Kwon was 60.

Mr. Kwon died of a stroke on December 20, 2010. He was intestate, and nine days later, the probate court granted letters of administration to Mr. Kwon’s son, the Administrator. The Administrator began paying Mrs. Kwon’s bills and advancing estate funds to her, but stopped in July 2012 when he located the antenuptial agreement among his father’s papers and calculated that he had distributed to Mrs. Kwon all the money she was entitled to receive from the estate. Mrs. Kwon subsequently filed the petition to determine Mr. Kwon’s heirs and the motion to deny enforcement of the antenuptial agreement that is the subject of this appeal.

“As a matter of public policy, antenuptial agreements made in contemplation of divorce are not absolutely void in Georgia.” (Citation omitted.) Alexander, 279 Ga. at 117. When considering whether an antenuptial agreement is valid,

the trial judge should employ basically three criteria in determining whether to enforce such an agreement in a particular case: (1) was the agreement obtained through fraud, duress or mistake, or through misrepresentation or nondisclosure of material facts? (2) is the agreement unconscionable? (3) [h]ave the facts and circumstances changed since the agreement was executed, so as to make its enforcement unfair and unreasonable?

Scherer v. Scherer, 249 Ga. 635, 641 (3) (292 SE2d 662) (1982).

To satisfy the first prong of the Scherer test, the party seeking enforcement must show both that there was a full and fair disclosure of the assets of the parties prior to the execution of the antenuptial agreement, and that the party opposing enforcement entered into the antenuptial agreement freely, voluntarily, and with full understanding of its terms after being offered the opportunity to consult with independent counsel. Thus, Georgia law, like that of virtually every other State in the Union, imposes an affirmative duty of disclosure on both parties to an antenuptial agreement.

Blige v. Blige, 283 Ga. 65, 68 (2) (656 SE2d 822) (2008) (affirming trial court’s denial of motion to enforce antenuptial agreement based on husband’s failure to disclose $150,000 in cash).

In the antenuptial agreement, each party covenanted that he or she gave a “substantially accurate” disclosure to the other of all assets and income, that the attached Exhibit A listed all of Mr. Kwon’s assets “currently comprising his separate property,” that Mrs. Kwon had no property or assets, that each “freely and voluntarily enterfed] into this agreement with full knowledge of the holdings of the other party and specifically waive[d] and relinquished] any right to obtain any further knowledge” about the holdings, and that the assets owned by each party remained his or her separate estate after marriage. Exhibit A listed four pieces of real property with a fair market value of $4.2 million and mortgages of $2.6 million, two businesses, and “[substantial cash holdings” used in the businesses as operating capital.

Mrs. Kwon testified that she met Mr. Kwon when her older sister arranged for him to come to California to meet her in May 2002. He was in California for about a week, and in September 2002, Mrs. Kwon moved to Georgia to live with Mr. Kwon, and he gave her $2,000 each month as an allowance. He took her to his lawyer’s office on January 3, 2003, gave her a one-page document, and told her she needed to sign it “for marriage verification.” She testified that she did not speak or read English, but that she relied on Mr. Kwon’s representation that the document was required for the marriage license and did not obtain an interpreter to explain it to her, but simply signed the single page that was presented to her.

Mrs. Kwon further testified that she never saw the first nine pages of the antenuptial agreement and that Mr. Kwon did not explain that she was signing one or talk about how they would divide assets if they got divorced. She said that if he had explained the document to her she would not have married him. He did not tell her what he owned, and she signed without knowing what she was signing, she said, because she had been deceived. The lawyer who prepared the agreement was deceased as of the time this proceeding was filed, and the woman who notarized the Kwons’ signatures did not remember the transaction. Mrs. Kwon also testified that she had saved $40,000 in cash during her 22 years working at her brother’s gas station in California, which she brought to the marriage and subsequently lent to Mr. Kwon to buy cigarettes for one of the gas stations the Kwons leased or bought after they were married, which he never repaid.

The Administrator testified in deposition that some of the assets listed in the antenuptial agreement might be held by FHI Enterprises, LLC, or OHI Enterprises, LLC. Neither company was listed in the agreement, although they both existed before the marriage. When asked to identify more than a dozen accounts Mr. Kwon held at a banking institution when he died, the Administrator did not know which accounts were in Mr. Kwon’s name individually and which were in a company name, nor did he know which companies might hold the accounts. He did not know what assets were owned by one of the two limited liability companies that were listed on the antenuptial agreement, either currently or when the Kwons married, nor did he know if a store and a dry cleaning business listed in the agreement were proprietorships or corporations, or whether they were still in operation. The Administrator identified several pieces of real estate and three condominiums Mr. Kwon had purchased with cash after the marriage, but had no inventory of the items he had removed from the Kwons’ home after Mr. Kwon died and placed in storage, which included televisions, pictures, computers, stereo equipment, furniture. The Administrator thought the estate was possibly insolvent, and had hired an appraiser to determine the value of the real estate holdings.

The trial court first found that Mrs. Kwon understood English well enough to have appreciated the import of what she was signing, based on her having lived and held a job in the United States for a long time, and having transacted other business in English. Even if she saw only the signature page, as she asserted, the court held, the language on that page should have put her on notice of its binding effect. Therefore, the court found, Mrs. Kwon had a duty to ascertain the contents of the document. Buckner v. Buckner, 294 Ga. 705, 708 (1) (755 SE2d 722) (2014) (party to contract has duty to read before signing, and, by signing, is bound by its terms, absent showing of fraud, reliance on confidential relationship, or emergency).

The trial court also held that under Georgia law, Mrs. Kwon shared no confidential relationship with Mr. Kwon before they married and therefore was not excused from her duty to read the contract or have it interpreted for her. Mellen v. Mallen, 280 Ga. 43, 45 (1) (a) (622 SE2d 812) (2005). Further, being required to sign the agreement as a condition of marriage did not constitute legal duress under Georgia law. Hiers v. Estate of Hiers, 278 Ga. App. 242, 245-246 (1) (a) (628 SE2d 653) (2006).

However, the trial court further found that neither party’s assets were fully disclosed to the other, and that Mr. Kwon’s failure to fully disclose his assets to Mrs. Kwon made the agreement unenforceable. The court found that the Administrator “acknowledge [d] that the agreement does not include an accurate accounting of [Mr. Kwon’s] nor [Mrs. Kwon’s] assets and liabilities,” andMrs. Kwon testified that she did not ask Mr. Kwon about his financial affairs, nor did he tell her about them. Because the first factor in determining the enforceability of an antenuptial agreement is whether the agreement was obtained with a full and fair disclosure of material facts, the trial court concluded, Mr. Kwon’s failure to disclose his assets to Mrs. Kwon rendered the agreement unenforceable.

On appeal, the Administrator argues that the trial court erred in finding that Mrs. Kwon was not fully apprised of Mr. Kwon’s assets when she signed the agreement, and that even if she was not fully apprised, under the terms of the agreement she waived her right to the information.

1. The Administrator argues that the trial court abused its discretion in finding that he “acknowledge [s] that the agreement in dispute does not include an accurate accounting of the Decedent’s nor [Mrs. Kwon’s] assets and liabilities,” denying that he made such an admission. He further argues that Mrs. Kwon offered no evidence that Mr. Kwon owned any assets of which she was unaware before she signed the agreement, and that every piece of real property Mr. Kwon owned when he died was bought “well after” he married Mrs. Kwon. Absent evidence to support the trial court’s findings, he argues, the court abused its discretion and must be reversed.

To the contrary, evidence in the record establishes that Mr. Kwon owned assets that were not listed in the antenuptial agreement, and Mrs. Kwon testified that Mr. Kwon never told her what he owned. The Administrator admitted in his deposition that his father owned an interest in two limited liability companies, OHI Enterprises, LLC, and FSI Enterprises, LLC, before the antenuptial agreement was signed, and those companies are not listed in the agreement. While the Administrator argues that Mrs. Kwon failed to establish that those companies held any assets when the agreement was signed, the Administrator had the burden of establishing that Mr. Kwon fully and fairly disclosed his assets to Mrs. Kwon, and if the companies had no assets when the Kwons married, the Administrator could have established that fact. See Blige, 283 Ga. at 68 (2) (“To satisfy the first prong of the Scherer test, the party seeking enforcement must show ... that there was a full and fair disclosure of the assets of the parties prior to the execution of the antenuptial agreement.”). In his deposition, the Administrator could not identify the ownership of the multiple financial accounts and real estate in which Mr. Kwon had an interest when he died. In fact, the Administrator could not give even a ballpark estimate of the estate’s value, other than to guess that it might be insolvent.

The Administrator further argues that the agreement itself provides that the parties had disclosed their assets and liabilities to each other, and that the listing of Mr. Kwon’s assets and liabilities was not designed to be the sole disclosure of Mr. Kwon’s assets, but rather, a listing of his “separate property,” which the parties agreed would remain the property of Mr. Kwon’s estate. It is true that the agreement states only that the listed assets would remain Mr. Kwon’s separate property. But that list constitutes some evidence that Mr. Kwon did not disclose his other assets, as does Mrs. Kwon’s testimony that he did not tell her anything about his finances.

Additionally, Mrs. Kwon had no duty to investigate Mr. Kwon’s assets before she signed the antenuptial agreement.

[T]he burden is not on either party to inquire, but on each to inform, for it is only by requiring full disclosure of the amount, character, and value of the parties’ respective assets that courts can ensure intelligent waiver of the statutory (and other) rights involved, and... when a spouse has a duty to fully and completely disclose his financial wealth, we would eviscerate and render meaningless that duty if we imposed upon the other spouse a duty to investigate.

(Citations and punctuation omitted.) Blige, 283 Ga. at 71 (2).

The trial court did not abuse its discretion in finding the agreement unenforceable under the first Scherer prong based on Mr. Kwon’s failure to make a full and fair disclosure of his assets to Mrs. Kwon before they signed the antenuptial agreement. See Blige, 283 Ga. at 71-72 (2) (husband’s failure to disclose $150,000 cash rendered agreement unenforceable); Corbett v. Corbett, 280 Ga. 369, 370 (628 SE2d 585) (2006) (husband’s failure to disclose income rendered agreement unenforceable); Alexander, 279 Ga. at 117 (husband’s failure to disclose $40,000 investment account rendered agreement unenforceable).

2. The Administrator also argues that Mrs. Kwon waived her right to challenge the adequacy of Mr. Kwon’s disclosure under the terms of the agreement. The agreement states that each party had made “a substantially accurate disclosure” of all assets to the other, did not want an independent audit of the other’s assets, and “specifically waives and relinquishes any right to obtain further knowledge with regard to said holdings.” The Administrator contends that a “showing of full and fair disclosure was achieved via waiver of additional financial disclosure in the document,” citing Spurlin v. Spurlin, 289 Ga. 818, 820 (2) (716 SE2d 209) (2011).

Decided July 14, 2015.

Gaslowitz Frankel, Craig M. Frankel, LeAnne M. Gilbert, for appellants.

Simmons & Szczecko, Joseph Szczecko, for appellee.

The court in Spurlin did not hold that a party waives her right to a full and fair disclosure of assets based on a contract’s waiver provision. If this were so, a party could avoid making any disclosure simply by including such a provision in an antenuptial agreement. Just as imposing a duty to inquire on one party would eviscerate the other party’s duty of full disclosure, so would allowing a waiver provision to substitute for full disclosure eviscerate the duty to disclose. After affirming the trial court’s finding that the husband’s financial position was fully disclosed before the parties signed a postnuptial agreement, the Supreme Court in Spurlin further held that this finding “was not altered, but was further supported, by the affirmation in the agreement that each party had ‘knowingly and voluntarily chosen to forego’ formal discovery, investigation, and analysis of the other party’s financial condition.” 289 Ga. at 820. This holding does not support the proposition that a party who is not fully informed can contractually waive her right to information.

Further, the waiver provision here also states that it is made “with full knowledge of the holdings of the other party.” Mrs. Kwon did not waive her right to obtain full and fair knowledge of Mr. Kwon’s assets by signing the agreement; she only waived her right to obtain “further knowledge” of the holdings she already knew about. Accordingly, we find no merit in this enumeration.

Judgment affirmed.

Ray and McMillian, JJ., concur.

       The Administrator initially sought repayment of $15,000 from Mrs. Kwon, but later dropped that claim.


author:
McFadden, Judge.
      Dillard, Judge,

text:
    A15A0219.
    WHOLE FOODS MARKET GROUP, INC. et al. v. SHEPARD.
    (775 S.E.2d 616)
   McFadden, Judge.

On January 30, 2010, a truck driven by Whole Foods Market Group, Inc. employee Kevin Hulsey struck a car driven by Richard Shepard as Hulsey was attempting to change lanes on Interstate 75. Shepard brought a personal injury action against Whole Foods and Hulsey alleging that Hulsey was negligent per se for violating the provision of the Uniform Rules of the Road requiring that a “vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety[.]” OCGA § 40-6-48 (1). The trial court granted Shepard’s motion for partial summary judgment on issues of negligence, proximate cause, and liability, and Whole Foods and Hulsey appeal. They argue that the trial court misapplied the rule in Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986), to disregard some of Hulsey’s sworn testimony, and that genuine issues of material fact preclude summary judgment. We find no error in the trial court’s application of the Prophecy rule, and we find that, disregarding the conflicting portions of Hulsey’s testimony, the evidence authorized the trial court’s grant of summary judgment to Shepard. Accordingly, we affirm.

1. Facts.

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

Dogan v. Buff, 329 Ga. App. 499 (765 SE2d 674) (2014) (citation omitted).

So viewed, the evidence showed that both Hulsey and Shepard were traveling south on the interstate when the front right wheel of Hulsey’s truck struck the rear left wheel of Shepard’s car, causing the car to spin out of control and collide twice more with the truck. Neither driver saw the other before the collision occurred. Shepard testified that immediately before the collision he was driving completely within his lane of travel with no intention of changing lanes. Hulsey testified that he had just begun to change lanes when he felt the impact of the collision, and that before changing lanes he had checked his mirrors and seen no vehicles.

2. Application of Prophecy rule.

In an affidavit filed in opposition to summary judgment, Hulsey testified that, although he was beginning to change lanes, he had not yet moved out of his own lane of travel at the time of the collision. Shepard argued to the trial court that she should disregard this testimony under the Prophecy rule, see Prophecy Corp. v. Charles Rossignol, Inc., supra, 256 Ga. 27, because it contradicted Hulsey’s earlier deposition testimony. Although the trial court did not expressly address this issue in her summary judgment order, her ruling in Shepard’s favor implies that she disregarded the allegedly contradictory testimony. Whole Foods and Hulsey argue that this was error because the testimony did not conflict. We disagree.

Under the Prophecy rule,

when a party has given contradictory testimony, and when that party relies exclusively on that testimony in opposition to summary judgment, a court must construe the contradictory testimony against him. In such a case, the court must disregard the favorable portions of the contradictory testimony and then decide whether the remaining evidence is sufficient to get by summary judgment. For purposes of the Prophecy rule, testimony is contradictory if one part of the testimony asserts or expresses the opposite of another part of the testimony.

Bradley v. Winn-Dixie Stores, 314 Ga. App. 556, 557-558 (724 SE2d 855) (2012) (citations, punctuation and footnote omitted). However, “ [contradictory testimony is not to be construed against a party if he offers a reasonable explanation for the contradiction.” Id. at 557, n. 8 (citation omitted).

The parties dispute whether a contradiction exists between Hulsey’s deposition testimony and his later affidavit testimony. In his deposition, Hulsey acknowledged the truth and accuracy of earlier written statements he had made to Whole Foods in an accident report; by doing so he adopted the previously unsworn statements as part of his sworn deposition testimony. CSX Transp. v. Belcher, 276 Ga. 522, 523-524 (1) (579 SE2d 737) (2003). In one of the statements adopted into his sworn testimony, Hulsey indicated that he “started to change lanes [and] felt the front end shake so [he] move[d] back in the lane [he] was in[.]” In another such statement, Hulsey indicated that he “started to change lanes. [T]hat is when [he] felt something start to shake in the front end of the truck. So [he] pulled back in the lane [he] was in[.]” Both of these statements depict Hulsey beginning to change lanes, feeling the impact of the collision, and then pulling “back in” the lane in which he initially had been traveling.

In subsequent affidavit testimony, however, Hulsey averred that he never left the lane in which he initially had been traveling. He stated: “Before I crossed into the lane to my right, I felt a vibration in the front wheel of my vehicle. Therefore, I stopped moving toward the lane on my right, straightened my vehicle which was still... in the lane in which I had been driving and began to lightly apply my brakes.” Elsewhere in the affidavit, Hulsey stated: “I did not leave my lane of travel to cause the incident [.]”

We agree with the trial court that Hulsey’s affidavit testimony that he did not leave his lane of travel conflicted with the written statements, adopted by Hulsey as part of his deposition testimony, that he pulled “back in” his lane of travel. One does not pull “back in” a lane that one already occupies. Whole Foods and Hulsey argue that the affidavit testimony is consistent with other parts of Hulsey’s deposition testimony, specifically where Hulsey declined to agree with the questioner’s statement that he “came back” into his lane and instead responded, “[w]ell, I don’t know that I ever left my lane.” But this argument does not resolve the conflict between the statements that Hulsey adopted into his sworn deposition testimony and his later affidavit testimony; instead, it establishes an additional conflict between Hulsey’s statement that he pulled “back in” his lane and his testimony suggesting that he may not have “come back” into his lane.

In his affidavit, Hulsey attempted to explain the conflict by noting that he was not directly asked in his deposition if he left his lane. Had he been asked that direct question, he averred, he would have responded that he did not leave his lane. But such a direct question is not necessary to establish a conflict that implicates the Prophecy rule. See Walker v. Brannan, 243 Ga. App. 235, 237 (533 SE2d 129) (2000). Moreover, Hulsey’s explanation does not address the conflict with his statements that, upon feeling the impact of the collision, he pulled “back in” his lane. Hulsey was specifically asked about those statements in the deposition and given an opportunity to disagree with any part of the statements; he testified that he did not disagree with anything in the statements.

Under these circumstances, the Prophecy rule authorized the trial court to disregard the portions of the conflicting testimony that were favorable to Hulsey in deciding the motion for summary judgment. Bradley, supra, 314 Ga. App. at 557-558.

3. Negligence per se.

The evidence, viewed in the light most favorable to Whole Foods and Hulsey except for the contradictory portions of Hulsey’s testimony, shows that Hulsey began to change lanes and collided with Shepard’s vehicle in Shepard’s lane of travel. This evidence demonstrates a violation of OCGA § 40-6-48 (1), which required Hulsey to drive his vehicle “as nearly as practicable entirely within a single lane” and not move his vehicle “from such lane until [he] ha[d] first ascertained that such movement [could] be made with safety,” thereby establishing a prima facie case for negligence per se. See Harden v. Burdette, 204 Ga. App. 733, 735 (4) (420 SE2d 626) (1992) (“A violation of the Uniform Rules of the Road prima facie establishes negligence per se in the absence of a valid defense.”) (citation omitted). Once a plaintiff establishes a prima facie case of negligence per se, the “burden then shifts to the defendant to show that the violation was unintentional and in the exercise of ordinary care.” Id. (citations and punctuation omitted).

Disregarding the contradictory portions of Hulsey’s testimony, Whole Foods and Hulsey have pointed to no evidence that raises a fact question as to whether Hulsey exercised ordinary care despite moving into Shepard’s lane and colliding with his vehicle. Although Hulsey testified that before beginning to change lanes he checked the adjacent lane but did not see Shepard’s vehicle, the undisputed evidence shows that Shepard’s vehicle nevertheless was driving in that adjacent lane in front of Hulsey’s truck. There is no evidence that Shepard also was attempting to change lanes at the time of the accident. Under these circumstances, “[speculation that [Hulsey’s] actions were conceivably reasonable under the circumstances, which might have been a question for the jury, is a contradiction in terms for he was undisputably mistaken in ascertaining that he could [move from his lane] safely.” Hitchcock v. McPhail, 221 Ga. App. 299, 300 (471 SE2d 256) (1996) (citation omitted; emphasis in original). Compare Turner v. Masters, 304 Ga. App. 855, 857 (1) (698 SE2d 346) (2010) (jury was authorized to find that driver exercised ordinary care in changing lanes where driver testified that he made an effort to ensure that he had a clear path of travel and posited that the other driver, whom he struck, had also been attempting to change lanes at that time). Accordingly, Whole Foods and Hulsey have not pointed to evidence that rebuts a finding of negligence per se, and the trial court did not err in granting partial summary judgment to Shepard. Cf. Hitchcock, 221 Ga. App. at 300-301 (trial court did not err in directing verdict to plaintiff in case where undisputed evidence established that defendant violated the rules of the road based on her mistaken belief that she could make a driving maneuver safely).

Judgment affirmed.

Barnes, P. J., Ellington, P. J., and Phipps, P. J., concur in judgment only. Dillard, Ray, and McMillian, JJ., dissent.

Dillard, Judge,

dissenting.

Because I disagree with the majority that the trial court properly applied the rule under Prophecy Corp. v. Charles Rossignol, Inc. in granting summary judgment to Shepard, I respectfully dissent.

The majority correctly notes that, under Prophecy,

when a party has given contradictory testimony, and when that party relies exclusively on that testimony in opposition to summary judgment, a court must “construe the contradictory testimony against him.” In such a case, the court must disregard “the favorable portions of the contradictory testimony” and then decide whether the remaining evidence is sufficient to get by summary judgment. For purposes of the Prophecy rule, testimony is contradictory “if one part of the testimony asserts or expresses the opposite of another part of the testimony.”

That said, I disagree with the majority’s conclusion, and the trial court’s conclusion, that Hulsey’s deposition testimony and later-filed affidavit contained contradictory statements.

At the beginning of Hulsey’s deposition, he was asked to describe the accident at issue in the case sub judice, and he explains that he needed to change lanes to the right in order to access 1-285 eastbound. According to Hulsey, “when [he] started to move towards the lane, [he] felt something in [his] front end.” He later explained that, as soon as he felt the vibration at the front of his truck, he

pulled [his] truck straight in [his] lane, let up on [his] accelerator, which [his] Jakes kicked in, which is slowing [his] truck down. And when it wasn’t going away with [him] being in [his] lane, [he] started applying [his] brakes real slow to get [his] truck slowed down to almost where [he] could... when [he] applied the brakes, the car come around [sic] in front of [him].

Counsel then asked Hulsey the following question: “And it was after you got back into your lane when you felt [Shepard’s vehicle] swung around to the — swing around to the front?” Hulsey responded, “When I was in my lane, the vibration was still with me.” Counsel continued, “When you came back?” And Hulsey replied, “Yeah. Well, I don’t know that I ever left my lane. I started towards that lane, and when I started to turn my steering wheel a bit, I felt a vibration. I straightened, turned it back straight up, straightened out in my lane and had let up on the accelerator . . . .”

A while later, Hulsey was presented with a copy of the accident report he completed for his employer, and he confirmed that the written statement he provided to explain the accident was contained on page three and continued on to the subsequent page. After reviewing the written statement, Hulsey agreed with counsel’s observation that “the statement that [counsel was] reading is the same statement [he was] giving [to counsel]” that day and that he “wouldn’t change anything.”

According to one of Hulsey’s written statements, he “started to change lanes [and] [he] felt the front end shake so [he] move [sic] back in the lane [he] was [in] [and] the shaking did not stop . ...” In a lengthier written statement, he explained that, after checking his mirrors and engaging his blinker, he “started to change lanes [and] that is when [he] felt something start to shake in the front end of the truck.” As a result, he “pulled back in the lane [he] was in [and] the front end continued to shake.”

After Shepard filed his motion for summary judgment, in which Shepard contended that Hulsey’s deposition testimony established that Hulsey had negligently entered Shepard’s lane, Hulsey filed an affidavit in response and sought to clarify his earlier testimony. Specifically, Hulsey averred that, had he been asked point blank whether he had left his lane of travel, he would have responded that he did not. Hulsey further averred that he “began to move toward the lane to [his] right” and that, “[b]efore [he] crossed into the lane to [his] right, [he] felt a vibration in the front right wheel of [his] vehicle,” and, as a result, “[he] stopped moving toward the lane to [his] right, straightened [his] vehicle which was still... in the lane in which [he] had been driving and began to lightly apply [his] brakes.”

The majority concludes that the testimony in Hulsey’s affidavit contradicts the testimony given in his written statement and deposition, taking particular issue with Hulsey’s prior statements that he pulled “back in” his lane of travel and asserting that “[o]ne does not pull ‘back in’ a lane that one already occupies.” Thus, the majority finds that Hulsey’s later statements — both in his oral deposition testimony and in his affidavit — conflict to the extent that Hulsey contends he never left his lane of travel. I disagree that Hulsey’s statements are contradictory.

Decided July 14, 2015.

To begin with, for purposes of the Prophecy rule, the issue of whether a party-witness’s testimony is inconsistent is “to be determined, not by individual words or phrases alone, but by the whole impression or effect of what has been said.” Here, in each of Hulsey’s sworn statements (i.e., the written accident report, the deposition testimony, and his affidavit), he has explained that he began moving toward Shepard’s lane; that when he did so, he felt a vibration; and that, upon feeling an impact, he moved or straightened his vehicle “back” in his lane of travel. Indeed, Hulsey has asserted on these three separate occasions that he “pulled [his truck straight in [his] lane”; “straightened, turned it back straight up, straightened out in my lane”; “move[d] back in the lane [he] was [in]”; “pulled back in the lane [he] was in”; and “straightened [his] vehicle which was still in the . . . lane in which [he] had been driving.” Thus, it is not, as the majority asserts, impossible that Hulsey moved “back” into a lane he was already occupying when Hulsey’s prior testimony reflects that he had started moving toward the other lane but discontinued that endeavor by straightening the front portion of his vehicle “back” into the lane he was still occupying. In this regard, Hulsey’s later-filed affidavit is not in material conflict with his prior sworn statements and instead “offers a fuller, more expansive, and complete account of the accident.” Accordingly, the rule in Prophecy does not apply, summary judgment was not appropriate, and the judgment of the trial court should be reversed.

I am authorized to state that Judge Ray and Judge McMillian join in this dissent.

Swift, Currie, McGhee & Hiers, Terry O. Brantley, Alicia A. Timm, for appellants.

Goldstein & Hayes, James A. Goldstein, Jared M. Lina; Christopher J. Adams, for appellee.

       256 Ga. 27 (343 SE2d 680) (1986).

        Bradley v. Winn-Dixie Stores, 314 Ga. App. 556, 557-58 (724 SE2d 855) (2012) (citation and punctuation omitted).

       Emphasis supplied. Ellipses in original.

       Emphasis supplied.

        See CSXTransp. v. Belcher, 276 Ga. 522, 524 (1) (579 SE2d 737) (2003) (“[A] witness under oath who testifies that an unsworn statement is true and accurate incorporates the earlier statement into his present, sworn testimony.”).

        Price v. Thapa, 323 Ga. App. 638, 640 (745 SE2d 311) (2013); accord Smith v. Vencare, Inc., 238 Ga. App. 621, 624 (1) (519 SE2d 735) (1999).

        See Bradley, 314 Ga. App. at 558 (“[B] ecause it is not absolutely impossible, we cannot say that ‘one part of the testimony asserts or expresses the opposite of another part of the testimony.’”); Greeley v. A.G. Spanos Cos., 223 Ga. App. 783, 784 n.2 (479 SE2d 23) (1996) (asserting that a “jury should decide how to interpret and weigh” statements that were “not necessarily inconsistent”).

        Price, 323 Ga. App. at 640; accord Smith, 238 Ga. App. at 624 (1) (“Further, the facts omitted from the earlier statements and testimony do not cause a conflict with the latter testimony; such testimony is merely fuller, more expansive, and complete.”).


author: ELLINGTON, Presiding Judge. DILLARD, Judge,

text:
    A15A0401, A15A0402.
    DAY v. FLOYD COUNTY BOARD OF EDUCATION; and vice versa.
    (775 S.E.2d 622)
   ELLINGTON, Presiding Judge.

Gilda Day’s teaching contract with the Floyd County Board of Education, a/k/a the Floyd County School District (“the Local Board”), was not renewed following a system-wide reduction in force, a decision ultimately upheld by the Superior Court of Floyd County. In Case No. A15A0401, Day appeals, arguing that the superior court erroneously interpreted Georgia law in reversing the decision of the Georgia Board of Education (“the State Board”). In Case No. A15A0402, the Local Board cross-appeals, contending that the State Board did not have jurisdiction to entertain Day’s appeal from the Local Board’s decision because the Local Board, as a charter system, is not bound by the Fair Dismissal Act (“the FDA”), OCGA § 20-2-940 et seq. For the reasons that follow, we reverse the order of the superior court and remand with instruction.

The facts relevant to the appeal and the cross-appeal are the same. In 2007, Day was employed as a counselor at Coosa High School, which was part of the Floyd County school district. In 2010, the Floyd County school district became a charter system under the Charter Schools Act of 1998, OCGA § 20-2-2063.2. The charter reflects that the Local Board was granted, pursuant to OCGA § 20-2-2065 (a), “the broad flexibility allowed by state law from the provisions of Title 20” of the Georgia Education Code. The charter did not expressly incorporate or allow for the incorporation of any of the provisions of the FDA, and there is no evidence in the record that the charter was later amended to adopt any provision of the FDA. The charter did require, however, that each charter school within the system establish a Local School Governance Team (“LSGT”) for the purpose of “maximizing school level decision making.” The LSGTs are subject to the control and management of the Local Board.

In 2013, the Local Board implemented a system-wide reduction in force (“RIF”) of about 120 employees in response to decreased state funding and a projected deficit of $10 million for the 2013-2014 school year. The RIF plan was created by the school superintendent and implemented by a team comprised of the superintendent, the human resources director, and a data analyst. In deciding which employees to let go, the team first selected those with poor performance evaluations and those with “repeated performance concerns.” Day was not in this initial group. Thereafter, the team grouped the remaining employees into categories based upon position (e.g., teachers, guidance counselors, etc.) and status (e.g., tenured, nontenured, and classified employees). The team then determined how many positions in each category it needed to operate the school system and then offered contracts for the 2013-2014 school year to employees with the most seniority in each position. The team determined that it could operate the system with 13 of its 24 guidance counselors. Because Day ranked seventeenth in terms of seniority, she was not offered one of the thirteen positions.

By letter dated March 22, 2013, the school superintendent notified Day that her employment contract was not being renewed and, citing OCGA § 20-2-940 of the FDA, advised her that she was entitled to a hearing before the Local Board. Counsel for the Local Board, however, took the position that charter systems are statutorily exempted from the FDA; nevertheless, the Local Board gave Day a hearing, which was held on May 10, 2013. Following the hearing, the Local Board voted to uphold the decision not to renew Day’s employment contract.

Day appealed to the State Board, which reversed the Local Board. The State Board ruled that the Local Board was not exempt from the FDA. It concluded that the Local Board had adopted the procedures of the FDA and waived any exemption from the FDA by giving Day a hearing pursuant to the FDA. Next, the State Board found that the necessity of the RIF was supported by the evidence and that the Local Board identified appropriate factors (e.g., performance and length of service) for implementing the RIF. However, the State Board concluded that the Local Board had violated its charter by failing to involve the LSGTs in the system-wide RIF decision-making process. Because of this failure, the State Board characterized the Local Board’s “actions as being arbitrary and capricious because the decision on who to RIF may have ended in a different result if the proper procedures had been followed.”

The Local Board appealed to the superior court, and the superior court reversed the State Board in part. Although it affirmed those portions of the State Board’s order holding that the necessity of the RIF was supported by the evidence and that the Local Board identified appropriate factors in implementing the RIF, the superior court reversed that portion of the State Board’s order holding that the Local Board had violated its charter by failing to involve the LSGTs in the RIF decision-making process. The superior court also rejected the Local Board’s argument that the State Board lacked jurisdiction to hear Day’s administrative appeal. Apparently assuming that the FDA did not apply to charter schools and charter systems, the superior court held that Day was “a previously tenured employee” and that a “mere legislative enactment” and the subsequent “execution of a Charter School Agreement to which she [was] not a party cannot take those rights from her[.]” Consequently, the court held that Day was entitled to “some form of due process” before her employment could be terminated. The superior court concluded that the State Board had appellate jurisdiction to consider whether Day had been afforded that due process.

In Case No. A15A0401, Day argues that (1) the Local Board is hound by the FDA, even though it is a charter system; and (2) the State Board had the authority to address the Local Board’s alleged violation of its charter contract (i.e., its failure to involve the LSGTs in the RIF process). The Local Board argues, inter alia, that the superior court erred in finding that the State Board had subject matter jurisdiction to entertain Day’s appeal. This argument also forms the first claim of error in the Local Board’s cross-appeal in Case No. A15A0402. For the reasons that follow, we hold that, under the circumstances presented here, the Floyd County charter system was exempt from the FDA and its administrative appeals process pursuant to the general waiver of OCGA § 20-2-2065 (a) and that, as a consequence, the State Board lacked subject matter jurisdiction to entertain Day’s appeal. We therefore reverse the decision of the superior court and remand this case with instruction to reinstate the decision of the Local Board.

Case No. A15A0401

1. This Court has held that “an appellate court or tribunal only has the power to review a judgment or decision of a lower court or tribunal if it has jurisdiction over the appeal.” (Footnote omitted.) Clayton County Bd. of Ed. v. Wilmer, 325 Ga. App. 637, 643 (1) (753 SE2d 459) (2014). See also Fullwood v. Sivley, 271 Ga. 248, 250-252 (517 SE2d 511) (1999) (Unless an appellate court has jurisdiction over a case, “it is without power or authority to render a judgment upon review.”) (citation and punctuation omitted). As a threshold matter, we must address whether the State Board, as an appellate tribunal, had jurisdiction to entertain an administrative appeal from the Local Board’s decision not to renew Day’s employment contract. The State Board’s authority to hear an appeal from the Local Board is found in OCGA § 20-2-1160 (b) and provides that “[a]ny party aggrieved by a decision of the local board rendered on a contested issue after a hearing shall have the right to appeal therefrom to the State Board of Education.” In this case, Day was not “aggrieved by a decision of the local board” because the FDA did not apply to her and she was given the benefit of a hearing and an administrative process to which she was not entitled.

Day proceeded in this case under the assumption that the FDA provided her with administrative remedies following the nonrenewal of her employment contract, even though her contract of employment was with a charter system. Charter schools and charter systems are governed by the Charter Schools Act of 1998. See OCGA § 20-2-2060 et seq. Under the Charter Schools Act, charter schools and charter systems are granted a general waiver exempting them from most state statutory and regulatory schemes that apply to noncharter public schools under Title 20, “Education.” OCGA § 20-2-2065 (a) provides, in relevant part:

Except as provided in this article or in a charter, a charter school, or for charter systems, each school within the system, shall not be subject to the provisions of this title or any state or local rule, regulation, policy, or procedure relating to schools within an applicable school system regardless of whether such rule, regulation, policy, or procedure is established by the local board, the state board, or the Department of Education-, provided, however, that the state board may establish rules, regulations, policies, or procedures consistent with this article relating to charter schools. A waiver granted pursuant to this Code section for a charter system shall apply to each system charter school within the system. . . .

(Emphasis supplied.) Because the FDA, OCGA §§ 20-2-940 through 20-2-948, is among the provisions of Title 20 generally waived, a charter system is not subject to the FDA unless the system’s charter so provides or unless an exception to the general waiver contained within Title 20 applies. OCGA § 20-2-2065 (a). This is the plain and unambiguous import of the statute. The Floyd County schools system’s charter does not incorporate the FDA nor does it expressly allow for the promulgation of local rules or policies embracing the FDA. And none of the exceptions to OCGA § 20-2-2065 (a) listed in OCGA § 20-2-2065 (b) expressly provide that charter schools shall be subject to the FDA. See OCGA § 20-2-2065 (b) (1)-(14).

Day argues, however, that the FDA is implicitly included within an exception to the broad waiver of OCGA § 20-2-2065 (a), citing OCGA § 20-2-2065 (b) (5). That subsection provides, in relevant part:

In determining whether to approve a charter petition or renew an existing charter, the local board and state board shall ensure that a charter school, or for charter systems, each school within the system, shall be: . . . [s]ubject to all federal, state, and local rules, regulations, court orders, and statutes relating to civil rights; insurance; the protection of the physical health and safety of school students, employees, and visitors; conflicting interest transactions; and the prevention of unlawful conduct [.]

Day contends that, as a tenured teacher, she is entitled to due process before she is deprived of her tenure, a vested property right, and that such due process is a “civil right.” She argues, therefore, that the FDA is among the “statutes relating to civil rights” referenced in OCGA § 20-2-2065 (b) (5) and that charter schools and charter systems are subject to the FDA. Day’s argument, however, is founded on a faulty premise: She assumes that, having accepted employment with the Local Board after its conversion to a charter system, she retained the tenure to which she was previously entitled while employed with the Local Board when it was a noncharter system. But any right Day has to continued employment derives from the FDA only,* ** and the General Assembly has provided that, absent a provision in the charter to the contrary, charter schools and charter systems shall not be subject to the FDA. See OCGA § 20-2-2065 (a). Having accepted employment with a charter system that was not subject to the FDA, Day had no tenure or right to continued employment with that charter system; consequently, she was not entitled to any of the procedural rights afforded to tenured employees under the FDA prior to the nonrenewal of her employment contract. Because the FDA’s due process provisions were inapplicable to the Floyd County charter system, it plainly is not one of the “statutes relating to civil rights” referenced in OCGA § 20-2-2065 (b) (5).

Because the Floyd County charter system is not subject to the FDA, Day was not entitled to any of the procedural rights and administrative remedies afforded to tenured, noncharter public school employees pursuant to the FDA. See Patrick v. Huff, 296 Ga. App. 343, 345-347 (1) (674 SE2d 398) (2009) (A public school employee is not entitled to the procedural rights and administrative remedies afforded by the FDA unless the employee is a covered employee within the ambit of the Act.). Because Day, as an employee of a charter system, was not entitled to the hearing and process that the Local Board gratuitously provided to her in connection with its decision not to renew her employment contract, she cannot be aggrieved by a decision of the Local Board affirming what it already had a right to do. Under such circumstances, there is no right to an appeal to the State Board. See OCGA § 20-2-1160 (b) (“Any party aggrieved by a decision of the local board rendered on a contested issue after a hearing shall have the right to appeal therefrom to the State Board of Education.”). See also Owen v. Long County Bd. of Ed., 245 Ga. 647, 649 (2) (266 SE2d 461) (1980) (“[0]nly the decisions of the county board made on disputed issues are appealable. If there has been no issue heard and decided by the county board, there can be no parties and no testimony which the law authorizing an appeal contemplates.”) (citation omitted; decided under former Ga. Code Ann. § 32-910).

Consequently, we reverse the order of the superior court and remand the case to the superior court with instruction that it vacate the order of the State Board and reinstate the decision of the Local Board.

2. Given our holding in Division 1 that the State Board had no authority to hear Day’s appeal from the Local Board’s decision not to renew her employment contract, her remaining claim of error concerning whether the State Board correctly determined that the Local Board failed to involve the LSGTs in the RIF process (an alleged violation of its charter) is moot.

Case No. A15A0402

3. For the reasons set forth in Division 1 of this opinion, the Local Board’s cross-appeal is moot.

Judgment reversed and case remanded with direction.

McFadden, J., concurs. Dillard, J., concurs fully and specially.

DILLARD, Judge,

concurring fully and specially.

I agree with the majority’s conclusion that Day was not entitled to the procedural rights and remedies afforded by the Fair Dismissal Act, and I fully concur with the reasoning and analysis underlying that holding. Nevertheless, I write separately to express my disagreement with the inclusion of footnote 6 in the majority opinion. In that footnote, the majority discusses what we might have considered in ascertaining the General Assembly’s “intent” if we had found an ambiguity in OCGA § 20-2-2065 (b). But because we expressly hold that this statutory provision is not ambiguous, such a discussion is mere dicta and entirely irrelevant to our holding.

Decided July 14, 2015

Williams Oinonen, Mario B. Wiliams, Julie J. Oinonen, for appellant.

Brinson, Askew, Berry, Seigler, Richardson & Davis, C. King Askew, I. Stewart Duggan, Samuel L. Lucas, Lee B. Carter, for appellee.

John F. Beasley, Jr.; Harben, Hartley & Hawkins, Phillip L. Hartley, amici curiae.

Moreover, footnote 6 of the majority opinion relies on the legislative history of Title 20 of the Official Code of Georgia, such as the floor debates and proposed legislation that never passed. Suffice it to say, I do not consider extratextual sources of this nature in interpreting statutes. As Justice Antonin Scalia has aptly noted, “legislative history [is] the equivalent of entering a crowded cocktail party and looking over the heads of the guests for one’s friends.” Thus, while I completely understand the majority’s desire to reference legislative history in the case sub judice for contextual reasons, I wish to make it abundantly clear that I categorically reject relying on legislative history in interpreting the statutes passed by our General Assembly. Indeed, like Justice Scalia (and many other textualists), I am of the view that the “greatest defect of legislative history is its illegitimacy.”* As Georgians (and Americans), we are “governed by laws, not by the intentions of legislators.” And as judges, we should only be concerned with what laws actually say, “not by what the people who drafted the laws intended.”

That having been said, I commend the majority for its thoughtful and well-reasoned opinion, and I fully concur in same.

       This Court granted Day’s application for a discretionary appeal. See OCGA § 5-6-35 (a) (1).

       Ga. L. 2007, p. 185.

        “Where the language of a statute is plain and unambiguous, judicial construction is not only unnecessary but forbidden.” (Citation omitted.) Six Flags Over Ga. II, L.P. v. Kull, 276 Ga. 210, 211 (576 SE2d 880) (2003). In this regard, “under our system of separation of powers [the appellate courts do] not have the authority to rewrite statutes.” State v. Fielden, 280 Ga. 444, 448 (629 SE2d 252) (2006). Additionally, the judicial branch “make[s] an independent determination as to whether [an] interpretation of the administrative agency correctly reflects the plain language of [a] statute and comports with the legislative intent.” (Citation omitted.) Sawnee Electric Membership Corp. v. Ga. Public Svc. Comm., 273 Ga. 702, 706 (544 SE2d 158) (2001).

       “The employment rights of public school employees in this state are statutory and are set forth in the FDA.” (Citation omitted.) DeKalb County School Dist. v. Butler, 295 Ga. 672, 673 (1) (763 SE2d 473) (2014). “A tenured teacher is one who accepts a school year contract for the fourth consecutive school year from the same local hoard of education. OCGA § 20-2-942 (b) (1).” Boone v. Atlanta Independent School System, 275 Ga.App. 131, 132, n. 1 (619 SE2d 708) (2005). See also West v. Dooly County School Dist., 316 Ga. App. 330, 331 (1) (729 SE2d 469) (2012) (“State law determines whether a public employee has a property interest in his or her job, and defines the dimensions of such interest.”) (citations omitted).

       Whether OCGA § 20-2-2065 (a) is constitutional was not decided below, and it is not an issue that this Court may decide. With respect to constitutional issues, the Supreme Court of Georgia has exclusive jurisdiction over all cases involving construction of the Constitution of the State of Georgia and of the United States and all cases in which the constitutionality of a law, ordinance, or constitutional provision has been called into question. Ga. Const, of 1983, Art. VI, Sec. VI, Par. II (1).

       Had we found any ambiguity in OCGA § 20-2-2065 (b), we would have recognized “that legislative exceptions in statutes are to be strictly construed and should be applied only so far as their language fairly warrants.” (Citations and punctuation omitted.) Sawnee Electric Membership Corp. v. Ga. Public Svc. Comm., 273 Ga. at 704. Given that the General Assembly expressly excepted certain provisions of Title 20 from the general waiver, it would have similarly expressly excepted the FDA from the general waiver had that been its intent. See OCGA § 20-2-2065 (b) (9)-(14). We also note that, during the floor debate concerning the enactment of this Code section, a senator “stated a concern that teachers would not have the protections of fair dismissal under Title 20[.]” See Megan L. lorio et al., Peach Sheets, Elementary and Secondary Education, 24 Ga. St. U. L. Rev. 121,129 (2007). Further, in 2011, members of the General Assembly made an effort to amend OCGA § 20-2-2065 (b) by adding a subsection that made charter schools and charter systems subject to the FDA; however, that legislation died in committee. See Senate Bill 207, 151st Gen. Assem., Reg. Sess. (2001).

       We find no merit to the argument that the Local Board, in its capacity as a party, waived the inapplicability of the FDA by giving Day a hearing pursuant to the FDA. See Jackson v. Gamble, 232 Ga. 149, 152 (205 SE2d 256) (1974) (waiver or consent to jurisdiction cannot confer jurisdiction over the subject matter upon a tribunal).

        See OCGA § 20-2-940 et seq.

        See McLeod v. Clements, 297 Ga. 371 (774 SE2d 102) (2015) (explaining that statements and comments in an opinion concerning a legal proposition not necessarily involved with nor essential to the determination of an appeal are dicta and lack the force of an adjudication); Little v. Fleet Finance, 224 Ga. App. 498, 504 (481 SE2d 552) (1997) (same).

        Conroy v. Aniskoff, 507 U. S. 511, 519 (113 SCt 1562, 123 LE2d 229) (1993) (Scalia, J., concurring).

        Id.

        Id.

        See Deal v. Coleman, 294 Ga. 170, 172 (1) (a) (751 SE2d 337) (2013) (“To that end, we must afford the statutory text its plain and ordinary meaning.” (punctuation omitted)); State v. Able, 321 Ga. App. 632, 636 (742 SE2d 149) (2013) (“A judge is charged with interpreting the law in accordance with the original and/or plain meaning of the text at issue (and all that the text fairly implies)....”); Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 16 (1st ed. 2012) (“Textualism, in its purest form, begins and ends with what the text says and fairly implies.”).

       Scalia & Garner, supra note 6, at 375.