text:
    A10A1640.
    PARK v. NICHOLS et al.
    (706 SE2d 698)
   Andrews, Judge.

Seung C. Park appeals after a jury awarded $715,000 to Stacey Camacho’s estate on its claim for pain and suffering and $5,115,000 to Camacho’s surviving spouse on his claim for wrongful death. The claims were the result of an automobile accident in which Park, who was drunk, ran a red light and hit the car Camacho was driving, killing her and injuring her young son. Park pled guilty to a felony charge of homicide by vehicle and was in prison at the time of trial. Park admitted liability and the only issue at trial was the amount of damages.

1. In his first enumeration of error, Park claims that the trial court improperly allowed the issue of insurance to be reinjected into the case during voir dire. Park claims that the jury was qualified as to his automobile insurance carrier, Nationwide Mutual Fire Insurance Company, three times before counsel began their general voir dire questions and then for the fourth time by plaintiffs counsel.

The record shows that the jurors were to be prequalified as to shareholders, officers, directors and employees of Nationwide, but not as to policy holders. But, as the trial court stated, it was not confirmed with the jury clerk whether that was done, “so we’re going to make sure it is done properly here.” Also, because sometimes there were jurors “who didn’t make it through the questionnaire,” the court wanted to make sure that the qualification was done properly. The trial court said that because it was a mutual insurance company, he would add policy holders to the list of those to be prequalified.

The court asked the panel:

Are any of you an officer — director, officer, agent, employee, shareholder or policy holder of Nationwide Mutual Fire Insurance Company? Are any of you related by blood or marriage, third cousin or closer, to any director, officer, agent, employee or share holder of Nationwide Mutual Fire Insurance Company?

Then, during counsel’s generad questioning of the panel, plaintiffs’ counsel asked the jurors: “The judge asked you about Nationwide Mutual Fire Insurance Company; and I’m not going to follow up and repeat those questions, but I do want to ask you about insurance companies, generally. So is there anyone . . .’’At that point, the court interrupted counsel and counsel did not continue with the question.

Defense counsel moved for a mistrial “based upon the reinjection of the subject of insurance into the case.” Plaintiffs’ counsel stated that he asked the question because he thought that people who had been involved in handling claims for insurance companies would bring a bias to the case. The trial court denied the motion for mistrial but instructed plaintiffs’ counsel that he could “not discuss insurance.”

[I]n Georgia the injection into a case of testimony pertaining to liability insurance does not automatically require a grant of a motion for a mistrial. It is only where the testimony is so obviously prejudicial in its nature that its adverse effect cannot be eradicated from the minds of the jury or its consequences avoided by proper cautionary instructions from the court, that a mistrial should be granted. The determination as to whether these harmful factors are present in a case necessarily rests in the discretion of the trial judge. Appellate courts should never interfere with the exercise of that discretion unless it is made to appear that wrong or oppression has resulted from its abuse. This principle is historically respected in this jurisdiction.

(Punctuation omitted.) Dubose v. Ross, 222 Ga. App. 99, 100 (473 SE2d 179) (1996).

In Dubose, plaintiff, while testifying, “related defendant’s admissions of fault and mentioned that plaintiff had asked defendant whether he had insurance, to which defendant responded in the affirmative.” Id. at 99. The trial court refused to grant defendant’s motion for mistrial and this Court affirmed, holding that there was no abuse of discretion because

the jury had already been made aware of the existence of liability insurance when the trial court qualified the jury members as to any relationship they might have with defendant’s insurance company, as authorized by Georgia law. Moreover, the jury could and should have assumed that defendant had liability insurance because Georgia law requires motorists to obtain a minimum of $15,000 in bodily injury liability coverage.

Id. at 100-101.

Likewise, in Leonard v. Miller, 207 Ga. App. 602 (428 SE2d 646) (1993),

after the trial court had qualified the panel as to appellant’s liability carrier, appellees’ counsel asked several additional questions which were addressed to the panel as a whole and not to any individual prospective juror. The import of these additional inquiries was merely to determine whether any of the prospective jurors or a family member had ever worked in the field of insurance.

Id. at 603. This Court held that

[w]here, as here, interest of the insurance company is admitted, it cannot be said that counsel’s examination extended beyond the permissible limits. Under the facts and circumstances which existed in the case at bar we find no abuse of discretion by the trial court in having permitted these additional voir dire questions.

(Punctuation omitted.) Id. The court in Leonard relied on Parsons v. Harrison, 133 Ga. App. 280, 282 (1) (211 SE2d 128) (1974), which also held that there was “no abuse of discretion by the trial court in having permitted these additional voir dire questions.” See also Defusco v. Free, 287 Ga. App. 313, 314-315 (651 SE2d 458) (2007) (plaintiffs answer that she wanted “[j]ust for the insurance to pay” did not require the grant of a mistrial).

Gonzalez v. Wells, 213 Ga. App. 494 (445 SE2d 332) (1994), cited by Park, does not demand a different result. In that case,

[t]he trial court clearly stated that no other insurance inquiries would be permitted. Notwithstanding that ruling, Wells’ counsel proceeded to ask the jurors if they had automobile insurance and also whether they were insured by Safeway (Gonzalez’ insurance carrier). In continuing to make inquiries on the subject of insurance, Wells’ counsel clearly violated the court’s order on Gonzalez’ motion in limine.

Id. at 495.

That is not the case here. Moreover, the trial court stopped counsel before he could finish his question concerning insurance and refused to allow him to mention it again. Accordingly, we find no abuse of discretion in the trial court’s refusal to grant a mistrial. See Defusco, supra at 314 (“Where a motion for a mistrial is made on the ground of inadmissible evidence illegally placed before the jury, the corrective measure to be taken by the trial court is largely a matter of discretion, and where proper corrective measures are taken and there is no abuse of discretion, the refusal of the trial court to grant a mistrial is not error.”).

2. Next, Park claims the trial court erred in denying his motion for directed verdict and motion for j.n.o.v. on the amount of damages the jury awarded for pain and suffering. Park argues that there was testimony that Camacho was unconscious immediately after the collision and therefore the amount of damages awarded was unwarranted.

“On appeal from the denial of a motion for a directed verdict or for j.n.o.v., we construe the evidence in the light most favorable to the party opposing the motion, and the standard of review is whether there is any evidence to support the jury’s verdict.” Parris Properties, LLC v. Nichols, 305 Ga. App. 734, 735 (700 SE2d 848) (2010).

Here, Officer Irizzary testified that he arrived at the scene of the accident within a minute or so after the call came in to dispatch. He stated that when he arrived, there was a doctor talking to Stacey Camacho. When Irizzary saw her, Camacho “was bleeding from her mouth, her head and ear area.”

She was basically trying to say something. I remember the blood coming out of her mouth and her fighting for her life. And apparently, she was more concerned about her child . . . you could see her eyes rolling towards the back . . . and you could hear the child screaming in the back in the car seat.

Irizzary testified further: “It’s stuck in the back of my head, that picture of her just sitting there just trying to talk, I guess, gurgling blood and looking back towards her kid. I’ve worked a lot of wrecks; none of them ever bothered me like this one has.”

Park argues that two of the eyewitnesses testified that Camacho was unconscious when they saw her immediately after the accident. One of the witnesses, when asked if Camacho was unconscious, answered “As best I could tell.” The other witness who went up to Camacho’s car after the accident testified “she looked like she wasn’t conscious.”

The testimony of these two witnesses is not necessarily inconsistent with the testimony of Irizzary. Irizzary observed Camacho while the doctor was ministering to her and talking to her. In any event, “[t]he amount of damages returned by a jury in a verdict for pain and suffering due to alleged negligence is governed by no other standard than the enlightened conscience of impartial jurors.” Hart v. Shergold, 295 Ga. App. 94, 99 (670 SE2d 895) (2008). Therefore, for this Court to overturn the jury’s verdict, it must be “so flagrantly excessive or inadequate, in light of the evidence, as to create a clear implication of bias, prejudice, or gross mistake [by] the jurors.” (Punctuation omitted.) Turpin v. Worley, 206 Ga. App. 341, 343 (425 SE2d 895) (1992). Here, the evidence set out above was sufficient to support the jury’s award of damages for pain and suffering. Moreover, because the trial court approved the verdict in denying Park’s post-trial motion, “a presumption of correctness arises that will not be disturbed absent compelling evidence.” Beam v. Kingsley, 255 Ga. App. 715, 716 (566 SE2d 437) (2002) (rejecting argument that $2,584,000 award for funeral expenses and pain and suffering was excessive in light of medical evidence that death occurred within one or two minutes after impact and that [decedent] may have lost consciousness prior to that).

3. Next, Park claims that the trial court erred in refusing to give the following charge: “Members of the jury, in an action for alleged wrongful death, Georgia law does not allow compensation for the mental or physical suffering of the person bringing the action. The emotional upset of [the plaintiffs] in this action, if any, cannot be considered by you in awarding damages.” Instead, the trial court gave the following charge:

The measure of damages for wrongful death is the full value of the life of Stacey Camacho, without deducting for any of her necessary or personal expenses had she lived. In determining this measure of damages, you must determine the value of Stacey Camacho’s life to herself, from her standpoint, had she lived, not the value of Stacey Camacho’s life to her family and friends.

Park cites to no authority on point holding that it was error to give the above charge instead of the requested one and we find none.

It is now well settled that, simply because a request to charge is apt, correct and pertinent, it is not necessarily error to fail to charge it, but the test is whether the court substantially covered the principles embodied therein or whether it was sufficiently or substantially covered by the general charge.

(Punctuation omitted.) Alexie, Inc. v. Old South Bottle Shop Corp., 179 Ga. App. 190, 191-192 (345 SE2d 875) (1986). Because the trial court’s charge covered the principles in appellant’s requested charge, the trial court did not err in refusing to give the requested charge. Id.

4. In his last enumeration of error, Park argues that the verdict was strongly against the weight of the evidence and principles of justice. Park cites to his arguments in support of the above enumerations of error as authority. In light of our holdings in Divisions 1, 2, and 3 above, and because the decision whether to grant a new trial on these grounds is left to the sound discretion of the trial judge, we need not address this enumeration. See Glenridge Unit Owners Assn. v. Felton, 183 Ga. App. 858, 859 (360 SE2d 418) (1987) (“The grant or denial of a motion for new trial ... is a matter within the sound discretion of the trial court and will not be disturbed ... if there is ‘any evidence’ to authorize it.”) (punctuation omitted).

Decided February 15, 2011.

Hawkins, Parnell, Thackston & Young, William H. Major III, Peter A. Jacxsens, for appellant.

Charles H. McAleer, Nelson O. Tyrone III, for appellees.

Judgment affirmed.

Ellington, C. J., and Doyle, J., concur.

       The jury found for Park on the estate’s claim for punitive damages.

       This doctor was never identified and did not testify at trial.


source: Caselaw Access Project

author: Barnes, Presiding Judge.

license: Public Domain

text:
    A10A1823.
    HARRIS v. THE STATE.
    (706 SE2d 702)
   Barnes, Presiding Judge.

Riley E Harris was found guilty by a jury of failure to stop at a stop sign (OCGA § 40-6-72), failure to maintain lane (OCGA § 40-6-48) and driving under the influence to the extent he was a less safe driver (OCGA § 40-6-391 (a) (1)). Harris filed a motion for a new trial, which he subsequently amended. The trial court denied Harris’s amended motion and Harris appeals, challenging the sufficiency of the evidence supporting his conviction for DUI. For the reasons set forth below, we affirm the judgment.

On appellate review of a criminal conviction, Harris no longer enjoys a presumption of innocence, and we view the evidence in a light most favorable to the trial court’s finding of guilt. Gamble v. State, 283 Ga. App. 326 (1) (641 SE2d 556) (2007). So viewed, the record shows that around 2:00 a.m. on August 4, 2007, the sergeant on duty observed Harris’s vehicle fail to stop at a stop sign. The sergeant followed Harris’s vehicle and after observing the vehicle change from the slow lane into the fast lane without signaling, stopped Harris’s vehicle. When he asked for Harris’s driver’s license, he noticed an odor of alcohol and that Harris’s eyes were bloodshot and watery. The sergeant had Harris blow into an alco-sensor, which showed positive for alcohol. The sergeant did not have Harris perform any field sobriety tests because he had a spinal cord injury. The sergeant tried to perform a horizontal gaze nystagmus test, but Harris was unable to follow the stimulus. After speaking to Harris briefly, the sergeant placed him under arrest.

Harris challenges the sufficiency of the evidence supporting his conviction for DUI, arguing that “there was insufficient evidence to convict.” According to Harris,

the only evidence against Mr. Harris was that he allegedly only slowed down, but did not stop for a stop sign (not on video), that he briefly moved partially into the left hand lane while his right turn signal was on, there was an odor of alcoholic beverage and he admitted drinking two beers a few hours earlier.

This argument does not provide grounds for reversal. As a reviewing court, we do not re-weigh the evidence or determine credibility, but only determine whether there is sufficient evidence for a rational trier of fact to find the accused guilty of the charged offense beyond a reasonable doubt. Gamble v. State, supra, 283 Ga. App. at 326 (1).

In order to prove that Harris was driving under the influence to the extent he was a less safe driver under OCGA § 40-6-391 (a) (1), “the [SJtate must prove that the defendant had impaired driving ability as a result of drinking alcohol.” (Citation omitted.) Davis v. State, 301 Ga. App. 484, 486 (1) (687 SE2d 854) (2009). Methods of proving this offense include evidence of erratic driving behavior, refusal to take field sobriety tests and a breath or blood test, and the officer’s own observations (such as smelling alcohol and observing strange behavior) and resulting opinion that the alcohol made it less safe for the accused to drive. Drogan v. State, 272 Ga. App. 645, 647 (1) (b) (613 SE2d 195) (2005).

In this case, contrary to Harris’s contentions, there was sufficient evidence to support his conviction. The sergeant who arrested Harris has almost 14 years of experience and training in DUI detection. The sergeant testified that he arrested Harris based on Harris’s bloodshot and watery eyes, the odor of alcohol coming from him and the alco-sensor test showing the presence of alcohol.

Even though a conviction for driving under the influence to the extent he was a less safe driver “does not require proof that a person actually committed an unsafe act while driving,” the commission of a traffic violation, such as failing to stop for a stop sign or failing to maintain a lane, “can constitute evidence that a driver is impaired.” (Citation and punctuation omitted.) Yglesia v. State, 288 Ga. App. 217, 218 (653 SE2d 823) (2007). We conclude that the evidence adduced was sufficient to authorize the jury to find Harris guilty beyond a reasonable doubt of driving under the influence to the extent he was a less safe driver.

Judgment affirmed.

Blackwell and Dillard, JJ., concur.

Decided February 15, 2011.

Lawrence W. Daniel, for appellant.

Brian K. Fortner, Solicitor-General, Matthew C. Krull, Assistant Solicitor-General, for appellee.


author: Mikell, Judge.

text:
    A10A2168.
    YAWN v. NORFOLK SOUTHERN RAILWAY COMPANY.
    (706 SE2d 197)
   Mikell, Judge.

After Norfolk Southern Railway Company (the “Railway”) closed a railroad crossing leading to Gary E. Yawn’s property on September 6, 2007, Yawn filed the underlying action, claiming interference by the Railway with his easement right to a private railroad crossing. Yawn sought to compel the Railway to restore the crossing it had removed; he also sought damages for the Railway’s interference with his use of the private way. The parties filed cross-motions for summary judgment, and following a hearing, the trial court granted summary judgment in favor of the Railway and against Yawn. Yawn appeals. We find no error and affirm.

On appeal from a grant of summary judgment, this court conducts a de novo review of the evidence viewed in the light most favorable to the nonmovant, to determine whether any question of material fact exists. Summary judgment is appropriate where the moving party can show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law.

So viewed, the evidence shows that Yawn owns a 155-acre tract of timberland in Dodge County, and that until September 6, 2007, the private crossing at issue here went over the Railway’s main line, which ran adjacent to Yawn’s property. The private crossing, originally built by the Railway in the 1800s, provided access to Yawn’s property from the highway on the other side of the Railway’s main line. Yawn’s grandfather purchased the land in 1915, and Yawn acquired it after his mother’s death in 1990. Yawn testified by deposition that during all that time the private crossing had been used by the owners of the property to gain access to the land. Yawn presented evidence that the crossing had been used to haul out timber upon a sale of timber in 2006. Prior to that, it was used to haul out timber in 1988 or 1989. Yawn testified that the crossing was also used to gain access to the land for hunting by Yawn himself, by his nephews and by the neighbor who owned the adjoining land.

Roy M. Harper, an employee of the Railway, testified by affidavit that in his capacity as the Railway’s track supervisor, he inspected the private crossing at issue here and saw no evidence of recent use. He also determined that Yawn had at least three other points of access to his property. After it was determined that no record existed of a private crossing agreement or easement agreement concerning this crossing, Harper had a sign posted at the crossing on June 27, 2007, advising that the crossing would be removed on September 6, 2007. The crossing was removed on September 6, 2007.

W L. Barringer, employed by the Railway as its Director-Grade Crossing Safety, testified by affidavit that the purpose of closing this crossing, as for other grade crossings closed by the Railway, was “to enhance public safety for both vehicle and train traffic at grade crossings.” Barringer further averred that the Railway’s standard procedure for closing a private crossing was followed in this case. First, it was determined that no private crossing agreement as to the crossing was in effect; that the crossing did not appear to be in use; and that the owner of the land adjoining the crossing had alternative access from his land to public roadways. Then, a notice was posted announcing the Railway’s intent to close the crossing in 60 days, with a telephone number for a user of the crossing to call.

The Railway received no objection to the removal of the crossing until Yawn first telephoned the Railway office in Atlanta on November 5, 2007. Yawn acknowledged that he did not notice that the crossing had been removed until he visited the property on that date.

1. Yawn contends that an easement for the private crossing was created in a deed from his mother to the Dodge County-Eastman Authority (the “Authority”) in 1988. This argument is without merit.

The record reflects that on June 10, 1988, Yawn’s mother, the then-owner of the property, conveyed an adjacent 2.521-acre tract to the Authority. This tract was adjacent to the Railway’s main line right of way, and thus the conveyance did not include the private crossing at issue here. On November 5, 1993, the Authority transferred to the Railway an easement over this 2.521-acre tract. Both conveyances were in contemplation of a spur line from the main line to serve the Gilman Paper Company’s plant (the “Gilman plant”).

The deed from Yawn’s mother to the Authority (the “1988 Deed”) contained the following language: “The Party of the First Part [that is, Yawn’s mother], for her heirs, successors and assigns, reserves the right to use the existing private crossing as shown on said drawing.” The drawing referred to, recorded at Dodge County records in Plat Book 21, Page 45, was referenced in both deeds, although the language quoted above did not appear in the deed from the Authority to the Railway. On the drawing, the crossing at issue here was marked “Existing Private Crossing”; however, as noted above, the crossing was not actually a part of the property under conveyance by either of the above deeds.

The Railway (or its predecessors-in-interest) has held a right-of-way for its main line from at least 1888. Our Supreme Court has ruled that “a railroad right-of-way is more than the mere right of passage;... it is more than an easement;... it is, in substance, an interest in land special and exclusive in its nature.” Yawn acknowledged in his deposition, and he has pointed to no contrary evidence in the record, that he does not have any easement agreement or deed from the Railway or its predecessors conveying an easement for the private crossing at issue here. Moreover, neither the language in the 1988 Deed nor the drawing attached thereto was effective to create an express easement for a private crossing where (1) the purported easement was over property not conveyed in the 1988 Deed; and (2) at the time of the conveyance, Yawn’s mother did not have any ownership interest in the Railway’s right-of-way where the private crossing was located.

2. Yawn contends that he and his predecessors-in-title obtained a prescriptive easement to the private crossing at issue here. We disagree.

“Prescriptive rights are to be strictly construed, and the pre-scriber must give some notice, actual or constructive, to the landowner he . .. intends to prescribe against.” OCGA § 44-9-54 provides that a private way, that is, “a right of ingress and egress over the land of another,” may be established by prescription in the following manner: “Whenever a private way has been in constant and uninterrupted use for seven or more years and no legal steps have been taken to abolish it, it shall not be lawful for anyone to interfere with that private way.” In order to establish a private way by prescription, the petitioner must also show “that the private way did not exceed 20 feet in width, [that] the use continued along the same route without shifting from one path to another, and that the prescriber kept the way open and in repair during the period of prescription.” “If the prescriber fails to show any of these elements necessary to establish prescriptive title, he cannot recover.” Moreover, “[w]hen the use of a private way originates by permission of the owner, prescription does not begin to run until the user notifies the owner, by repairs or otherwise, that he has changed his position from that of a mere licensee to that of a prescriber.” It is the element of notice that is lacking in the case before us.

In his deposition, Yawn acknowledged that no written agreement or easement from the Railway existed concerning this private crossing. He admitted that his use of the private crossing had been with the permission of the Railway, although he also claimed an easement right to the crossing. It is undisputed that the crossing had been repaired and maintained throughout by the Railway. Yawn asserts, however, that the language in the 1988 Deed, as well as in a letter he wrote to the Railway in October 1987 (the “1987 letter”), were sufficient to place the Railway on notice of the Yawns’ adverse claim to the private crossing and to initiate the running of the prescriptive period. However, the language in both documents indicates merely that the Yawns desired to continue the current permissive use of the private crossing, not that the Yawns intended to assert a prescriptive right to use the crossing.

We disagree with Yawn’s contention that the Railway was put on notice of an adverse claim by his 1987 letter. The record reflects that during the negotiations for the spur track to the Gilman plant, the Railway partially removed the crossing at issue here. In his 1987 letter to the Railway, Yawn objected to the removal of the crossing, stating that “[t]his letter is to serve as notice that we have had the use of this crossing for many years (in excess of 75 years) and do not want it eliminated.” The Railway subsequently restored the crossing, and the Yawns continued to use it. As this Court noted in a similar case, “[i]f [Yawn’s] complaint amounted to notice of an adverse claim, the adversity was very short-lived.” The fact that the Railway restored the crossing so that the Yawns could continue to use it “is evidence that the [Railway] permitted rather than forbade continued use of the [crossing].”

Decided February 15, 2011.

Straughan & Straughan, Mark W. Straughan, for appellant.

Hall, Bloch, Garland & Meyer, Benjamin M. Garland, for appellee.

“That a property owner knows of and acquiesces in the use of his private way is insufficient to establish prescription.” “An owner’s acquiescence in the mere use of his road establishes, at most, a revocable license.” The Yawns’ mere use of the private crossing was not enough for them to acquire prescriptive rights.

Because Yawn failed to show that the Railway was on notice of an adverse claim to the private crossing, the trial court did not err in granting summary judgment to the Railway.

Judgment affirmed.

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

       Yawn appealed to the Supreme Court of Georgia, which transferred the case to this Court for disposition.

       (Footnote omitted.) Norton v. Holcomb, 285 Ga. App. 78 (646 SE2d 94) (2007) (whole court).

       (Citation and punctuation omitted.) Tompkins v. Atlantic Coast Line R. Co., 213 Ga. 48, 50 (96 SE2d 603) (1957).

       See Macon-Bibb County Indus. Auth. v. Central of Ga. R. Co., 266 Ga. 281, 283 (3) (466 SE2d 855) (1996) (no express easement created as to rail lines shown in recorded plat, where rail lines lay on adjoining property not owned or operated by grantor). See also Seignious v. MARTA, 252 Ga. 69, 70-71, 72 (1) (311 SE2d 808) (1984) (evidence showed that grantor had no ownership claim to tract adjoining the tract transferred in the deed; therefore, grantor’s reservation in deed was ineffective to reserve any interest in that adjoining tract). It is a long-standing legal maxim that no one can transfer more right to another them he has himself (nemo plus juris ad ahum transferre potest quam ipse habet). Black’s Law Dictionary, p. 1038 (6th ed. 1990). In this case, no one can reserve to himself more right than he has himself.

       (Citation omitted.) Keng v. Franklin, 267 Ga. 472 (480 SE2d 25) (1997). Accord Horton, supra at 81 (2). See OCGA §§ 44-9-1, 44-9-54.

        Keng, supra.

       OCGA § 44-9-54. See also OCGA § 44-9-1; Keng, supra.

       (Citation omitted.) Keng, supra. Accord Norton, supra.

       (Citation and punctuation omitted.) Eileen B. White & Assocs. v. Gunnells, 263 Ga. 360 (434 SE2d 477) (1993).

       (Citation and punctuation omitted.) Keng, supra at 472-473. Accord Eileen B. White, supra at 362 (“the notice required is notice of the assertion of an adverse use, under claim of right, as distinguished from a mere permissive use”) (citation omitted); Duncan v. Sluder, 204 Ga. 458, 460 (1) (50 SE2d 78) (1948).

        Douglas v. Knox, 232 Ga. App. 551, 552-553 (2) (502 SE2d 490) (1998) (fact that property owner removed gate across hunt trail at petitioner’s request showed that petitioner’s use of trail was permissive).

       Id. at 552 (2).

       (Emphasis supplied.) Id. at 553 (2). Cf. Thompson v. McDougal, 248 Ga. App. 270, 271-272 (546 SE2d 44) (2001) (that petitioner’s use of private way was permissive could be implied from owner’s grading of private road).

       (Citation omitted.) Douglas, supra.

       (Punctuation omitted.) Jackson v. Norfolk Southern R., 255 Ga. App. 695, 697-698 (2) (566 SE2d 415) (2002), citing Eileen B. White, supra.


author: MlKELL, Judge.

text:
    A10A2274.
    JOHNSON v. THE STATE.
    (706 SE2d 201)
   MlKELL, Judge.

Keith Eugene Johnson was charged as a recidivist with seven counts each of armed robbery and kidnapping, aggravated assault, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon. Johnson entered a negotiated plea of guilty to all of the charges, with the exception of the counts charging recidivism and possession of a firearm during the commission of a felony, both of which were nolle prossed by the district attorney. Johnson was sentenced to serve 18 years. Johnson moved to withdraw his guilty plea on the grounds that he received ineffective assistance of counsel, and the trial court denied his motion. On appeal, Johnson enumerates two errors but asserts only one argument, that the trial court should have granted his motion to withdraw his guilty plea due to counsel’s ineffectiveness. We disagree and affirm.

Johnson contends that he pled guilty solely because he feared proceeding to trial with his attorney, Mr. Erb. In support of his contention, he maintains that he and Erb had not adequately communicated; that Erb had been hostile toward him; and that Erb had not interviewed Tilley, who was a potentially exculpatory witness. The record shows that before Johnson entered his plea, he informed the court that he was dissatisfied with Erb’s services and wanted an opportunity to retain new counsel. In response to Johnson’s complaints, Erb explained to the court that he talked to Johnson before his arraignment, but Johnson was shipped out the following day; that Johnson was antagonistic and belligerent when they spoke; that he had been in contact with Johnson’s brother and daughter almost daily trying to identify potential witnesses; and that he had hired a private investigator at his own expense to find witnesses to no avail. The trial court denied Johnson’s request for a new lawyer.

After disposing of other preliminary matters, the trial court reminded Johnson that once the jury trial began, the offer available to him at that juncture, 20 years to serve, would no longer be available. The district attorney informed the court and Johnson that the state would nolle prosse a separate indictment against Johnson. The trial court then informed Johnson that he would get six years of credit for time served, and that if convicted, he would be sentenced to life without parole. Johnson reminded the court that the initial offer was 15 years, and he was told that the initial offer was no longer available because he had absconded. The court recessed, and upon Johnson’s return to court, he accepted an offer to serve 18 years, which Erb had negotiated with the prosecutor during the recess. Johnson filed his motion to withdraw guilty plea, which the trial court denied.

A ruling on a motion to withdraw a guilty plea lies within the sound discretion of the trial court and absent a manifest abuse of that discretion, the trial court’s ruling will not be disturbed. “[I]n ruling on a motion to withdraw a guilty plea, the trial court is the final arbiter of all factual disputes raised by the evidence. If evidence supports the trial court’s findings, we must affirm.”

A defendant who pleads guilty and seeks to overturn his conviction because of counsel’s errors must show both that counsel’s performance was deficient and that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.

In reviewing the trial court’s decision on the ineffectiveness claim, “we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts."

At the hearing on the motion to withdraw Johnson’s plea, only two witnesses testified: Johnson and Erb. Erb testified that he had been practicing law since 1973 and had conducted hundreds of jury trials; that he was the fourth attorney to represent Johnson in this case; and that Johnson had filed bar complaints against all of his attorneys. Erb further testified that he had met with the district attorney to review the discovery in the case two or three times and had reviewed it with Johnson; that he had met with Johnson between seven and ten times in the Chatham County jail; that he and Johnson had discussed all of the documents and listened to each audio tape that was in the state’s discovery packet over the course of ten to fifteen hours; that Johnson had told him that he had an alibi witness but they could never find anyone who would provide an alibi; that he and Johnson had discussed Johnson’s defense; and that he filed several motions on Johnson’s behalf, some of which were successful. Additionally, Erb recalled that he and Johnson had discussed the similar transaction evidence and the prior felonies that would be used against Johnson at trial. Erb maintained that he worked between 60 and 80 hours on the case and wrote Johnson several letters; that he did not pressure Johnson into taking a plea; that the plea was Johnson’s idea; and that he was prepared to go to trial.

Johnson argues that Erb did not spend an adequate amount of time with him to prepare for trial and ignored his requests to meet until soon before trial, but “there exists no magic amount of time which counsel must spend in actual conference with his client.” Johnson acknowledges that Erb met with him to prepare before the trial but disputes Erb’s testimony about the extent of the preparation that occurred during those meetings. Erb specifically testified as to the length of time he spent preparing for the trial, and meeting with Johnson, the district attorney, and Johnson’s previous counsel. The trial court is authorized to credit Erb’s testimony. Johnson argues that trial counsel failed to interview a potential alibi witness, but Johnson acknowledged that he did not remember the name of that witness, admitted that his other alibi witnesses gave inconsistent statements to the state, and has failed to offer evidence that would have been revealed by the interview of any witness.

On cross-examination, Johnson acknowledged that his case had been set for trial once before with another attorney; that the charges were the same at that time; that he understood that he had been indicted as a recidivist because of his three prior felony convictions, one of which was a robbery; that he was familiar with the voluntariness questions, knew how to take a plea, and generally understood the process; that he saw the discovery in the case, although not with Erb; that he listened to tapes with Erb; that he saw the photo spreads of suspects that contained the victims’ signatures identifying him; that he had possession of the trial documents and police reports and knowledge of the plea deal for six years before entering his plea; and that he understood that his possible sentence was life without parole. Johnson further testified that at no time during the plea hearing did he inform the court that he did not wish to take the plea.

Decided February 15, 2011

Leslie R. Lowry, for appellant.

Larry Chisolm, District Attorney, Margaret E. Heap, Julayaun M. Waters, Assistant District Attorneys, for appellee.

In further support of his position that trial counsel was ineffective, Johnson cites Heyward v. Humphrey, in which our Supreme Court reversed the denial of a petition for habeas corpus where Erb represented the defendant. In that case, however, there was evidence that Erb knew nothing about a potential key witness, who would have supported a justification defense, knew that the state’s case had “all but fallen apart,” and showed “apparent anger at [his client] for initially denying his guilt and thwarting the plea proceedings, which [the Court concluded] raise[d] additional questions about the voluntariness of the decision to enter the pleas.” There is no such evidence in the instant case, therefore Heyward is inapposite here.

Based on the evidence in the record, we conclude that Johnson has not shown that his trial counsel’s performance was deficient. Absent a showing of trial counsel’s deficiency, we need not address the issue of prejudice. In light thereof, we conclude that the trial court did not abuse its discretion when it denied Johnson’s motion to withdraw his guilty plea.

Judgment affirmed.

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

       The predicate facts developed at the guilty plea hearing show that Johnson and Mavon Tilley, who had already entered a guilty plea, walked into a store where Tilley pulled a gun on the cashier who gave him the money from the cash register; that Johnson, who was standing near the front door of the store and holding a gun, robbed the next four customers who walked into the store of their wallets and made them lie on top of one another; that Johnson struck the other store employee on the back of the head with his gun and robbed him; that Tilley forced the cashier to open the safe, from which he and Johnson took fifteen guns and a large amount of cash. Tilley and Johnson also took the surveillance videotapes from the store but left a book bag, which contained information that led the police to them. Two of the victims positively identified Johnson, and two other victims stated that they thought that Johnson was the perpetrator.

       Johnson’s original motion to withdraw his guilty plea is not included in the record. However, appellate counsel’s correct motion to withdraw the plea is included and explained that the original motion was filed pro se under the wrong case number.

        Bishop v. State, 299 Ga. App. 241 (682 SE2d 201) (2009); Frost v. State, 286 Ga. App. 694 (649 SE2d 878) (2007).

       (Citation and punctuation omitted.) Dix v. State, 302 Ga. App. 458-459 (691 SE2d 323) (2010).

       (Citation and punctuation omitted.) Jones v. State, 287 Ga. 270-271 (695 SE2d 271) (2010). See also Dix, supra at 458.

       (Punctuation and footnote omitted.) Brown v. State, 302 Ga. App. 515, 517 (1) (692 SE2d 386) (2010).

       The bar complaint that Johnson filed against Erb had been dismissed.

       (Citation and punctuation omitted.) Rios v. State, 281 Ga. 181, 182 (2) (637 SE2d 20) (2006). See also Tahamtani v. State, 177 Ga. App. 52, 53 (338 SE2d 488) (1985) (“[t]he length of time spent in consultation is only one factor to be considered and, without more, will not establish ineffective assistance of counsel”) (citation and punctuation omitted).

        Jackson v. State, 285 Ga. 840, 842 (2) (684 SE2d 594) (2009).

       See generally Moon v. State, 286 Ga. App. 360, 363 (2) (b) (649 SE2d 355) (2007).

       277 Ga. 565 (592 SE2d 660) (2004).

       Id. at 568 (A).

       Id. at 569 (B).

       Id. at 570 (B).

       Supra.

       See Sallins v. State, 289 Ga. App. 391, 393 (1) (657 SE2d 309) (2008) (no ineffective assistance where trial counsel testified that he thoroughly reviewed discovery, was provided with no information for witnesses who might help the defendant, and the victim would have identified the defendant).

        Stinson v. State, 286 Ga. 499, 501 (2) (689 SE2d 323) (2010).


text:
    A10A2295.
    WELCH v. THE STATE.
    (705 SE2d 916)
   Mikell, Judge.

Nolan Renard Welch was convicted of armed robbery, aggravated assault, and possession of a firearm during the commission of a felony, for which he was sentenced to 20 years in prison followed by 25 years on probation. On appeal from the denial of his motion for new trial, Welch contends that the trial court erred by failing to inquire into a hearing impaired juror’s ability to understand the testimony and that his trial counsel rendered ineffective assistance by failing to raise the issue at trial. As these contentions are meritless, we affirm.

1. Welch argues that the trial court failed to inquire into the hearing impaired juror’s ability to understand the testimony. Not only is this contention belied by the record, the issue has been waived by Welch’s failure to raise it at trial.

The record shows that when qualifying the jury, the trial court inquired whether anyone suffered from a physical disability that would make it impossible for that person to serve. No one responded affirmatively. The jury was selected, and trial proceeded. During a recess in the state’s case, the prosecutor informed the trial court that one of the jurors had reported to the bailiff that she wore hearing aids and was having some difficulty hearing the witnesses. The prosecutor asked whether the court wanted to offer the juror assisted hearing devices, but the court indicated that the devices were unavailable because they were being repaired. The court suggested that the bailiff arrange for the juror to sit in the seat closest to the witness box. The court also made certain that the microphone was working properly. Welch did not object to the trial court’s actions.

On the following day, the trial court interrupted defense counsel’s cross-examination of a witness when a deputy handed the judge one of the juror’s hearing aids, which her husband had brought in. The juror indicated that she had dropped one of them on the way to court. Apparently, the juror was given her hearing aid, and trial resumed. Again, Welch made no objection to the trial court’s actions. As a result, this issue has been waived. “A party may not complain on appeal of a ruling that he contributed to or acquiesced in by his own action.”

2. Welch complains that his trial counsel rendered ineffective assistance by failing to ask the trial court to inquire into the hearing impaired juror’s ability to understand the testimony and by failing to ask that voir dire be recorded to enable a thorough investigation of the issue.

To prevail on a claim of ineffective assistance of counsel, a defendant “bears the burden of showing both that trial counsel was deficient and that he was prejudiced by the deficiency.” To show prejudice, a defendant must demonstrate “that a reasonable probability exists that the outcome of the case would have been different but for the deficient performance of counsel.” It is axiomatic that “an error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.”

Pretermitting whether trial counsel was deficient, Welch has failed to establish prejudice. At the new trial hearing, Welch’s trial counsel testified that she had no recollection of a hearing impaired juror. At the conclusion of the hearing, the trial court reviewed the actions it had taken with regard to the juror and presumed that she was able to hear better, either because she relocated herself or the witnesses spoke up. The court stated:

I think that you can make a presumption that if the juror speaks up that I can’t hear, they recognize it’s important to be able to hear; and if they subsequently could not hear, they would have spoken up and say, Judge, I still cannot hear, we’ve got to do something. That did not happen. ... I never saw jurors from the back row, as far away as 19 feet eight inches having trouble hearing.

“[T]here is a well established presumption in favor of the regularity and legality of all proceedings in the trial court until otherwise shown,” and Welch has shown nothing to indicate that the juror was unable to hear the witnesses’ testimony. Applying this presumption, and adhering to the rule that the trial court’s factual findings and credibility determinations at a hearing on a motion for new trial must be accepted unless clearly erroneous, we conclude that Welch has failed to establish that he suffered any harm from trial counsel’s failure to ask that the trial court take any additional action with regard to the hearing impaired juror.

Finally, Welch has waived his claim that trial counsel was ineffective for failing to ask that voir dire be recorded, because appellate counsel did not raise this issue in her amended motion for new trial and did not argue it at the hearing. Although appellate counsel mentioned at the hearing that voir dire was not taken down, she did not allege that trial counsel was ineffective on this ground until closing argument when she stated: “I would like to preserve for the record at the next level, assuming that the Court denies my motion, . . . that [trial counsel] was ineffective in failing to ask that the voir dire of the jury be taken down.” This statement, without more, did not give the trial court an opportunity to rule on this ground. “In the absence of any ruling by the trial court on this issue, there is nothing for this Court to review,” and this claim is deemed waived.

Decided February 15, 2011

3. Lastly, Welch argues that trial counsel was ineffective because she failed to call him as a witness even though he told her he wished to testify. Welch thus asserts that his constitutional right to testify was violated.

The record does not support these assertions. Trial counsel testified that she held a conference with Welch concerning whether or not he should testify; that she listed the risks and benefits and gave him material to review on the issue; and that she printed out matters for him that she expected would arise during opening statements. Trial counsel testified that she and Welch jointly decided that he should not testify and that Welch did not inform her during trial that he wanted to testify. Welch testified that trial counsel told him that she would call him as a witness but never did so.

The trial court found that Welch was duly informed of his right to testify, made a conscious, informed decision not to testify, and never changed his decision. Although Welch claims that his testimony proves otherwise, “it is the function of the trial court at the hearing on the motion for new trial to determine witness credibility and to resolve any conflicts in the testimony. The evidence supports the trial court’s finding that [Welch] was well aware of his right to testify, but made no such request of his attorney[ ].” Welch has thus failed to “demonstrate that his counsel erroneously deprived him of his choice to testify in his own behalf, [or] that counsel’s deficiency in this regard denied him a fair trial.” The trial court did not err in rejecting Welch’s claim of ineffectiveness on this ground.

Judgment affirmed.

Smith, E J., and Adams, J., concur.

Barbara M. Collins, for appellant.

Tommy K. Floyd, District Attorney, Blair D. Mahaffey, Assistant District Attorney, for appellee.

       (Citation and punctuation omitted.) Jackson v. State, 284 Ga. App. 619, 626 (8) (644 SE2d 491) (2007) (by failing to object to the court’s questioning of a juror, defendant waived contention that he was not tried by an impartial jury). Accord Mintz v. State, 273 Ga. App. 211, 212 (615 SE2d 152) (2005) (by failing to object to the disqualification of a juror, defendant waived the issue for appeal).

       (Footnote omitted.) Welbon v. State, 278 Ga. 312, 313 (2) (602 SE2d 610) (2004).

       (Citations omitted.) Allen v. State, 277 Ga. 502, 503 (3) (591 SE2d 784) (2004).

       (Citation and punctuation omitted.) Collier v. State, 280 Ga. 148,150 (2) (625 SE2d 757) (2006).

       (Citation omitted.) Merrill v. State, 201 Ga. App. 671, 672 (1) (411 SE2d 750) (1991); see also Bee v. State, 294 Ga. App. 199, 200 (1) (670 SE2d 114) (2008).

        Adams v. State, 283 Ga. 298, 299 (3) (658 SE2d 627) (2008).

       (Citations and punctuation omitted.) Nichols v. State, 285 Ga. 784, 785 (2) (a) (683 SE2d 610) (2009).

       (Citation omitted.) Mobley v. State, 264 Ga. 854, 856 (2) (452 SE2d 500) (1995).

       (Citation omitted.) Id. at 857 (2).


text:
    A10A2356.
    RAYNER v. THE STATE.
    (706 SE2d 205)
   Mikell, Judge.

After a jury trial, Richard Allen Rayner was convicted of child molestation, criminal attempt to commit rape, and false imprisonment and sentenced to ten years to serve and ten years on probation. On appeal, Rayner asserts several enumerations of error. He argues that the trial court erred when it conveyed its opinion to the jury and charged the jury incorrectly about the law regarding prior difficulties between the parties. Rayner also contends that the trial court impermissibly restricted his expert witness’s testimony and his cross-examination of the victim and other witnesses. Finding no error, we affirm.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia. Conflicts in the testimony of the witnesses, including the State’s witnesses, are a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld. The testimony of a single witness is generally sufficient to establish a fact.

So viewed, the evidence shows that fourteen-year-old C. E testified that when she was nine years old, she told her mother that Rayner, her uncle, had been touching her in inappropriate places for approximately a year. C. E explained that she and her cousin, Aaron, Rayner’s son, were very close and that she often visited their home. C. E testified that when Aaron was not around, Rayner would lure her into bedrooms and touch her breasts and vagina with his hand, tongue, and penis.

When asked about specific encounters, C. E testified that the first act occurred when Rayner touched her breast on the outside of her clothes while they were watching a movie in Aaron’s bedroom. She left the room and when she returned, Rayner had left. On another occasion, Rayner took her into another room, raised her shirt and licked her breasts, and told her not to tell anyone. C. E testified that she told Rayner to stop but he did not; that the encounter lasted for approximately 30 seconds; and that she used a towel to wipe herself off afterward. C. E recalled four or five encounters were Rayner touched her vagina on the outside and inside of her underwear. On two other occasions, C. E recalled that Rayner picked her up and took her to a bedroom, and locked the door and had her sit on the bed. He then pulled her clothes down and his penis out and touched her vagina with his penis while straddling her with his legs and holding her arms down. C. E testified that the touching only occurred when she was at the Rayner home alone with Rayner and Aaron and that she thought that if she told, Rayner would do something to her.

C. E recalled that on the day that she told her mother about the encounters with Rayner, she had been in the weight room of Rayner’s home with Aaron. Aaron left the room, and Rayner picked her up and put her back down and then went upstairs. C. E testified that she began to cry and asked to talk to her mom, Charlene Fruitt, and then told her what had been happening. C. E and Charlene left the Rayner home immediately. C. E testified that soon thereafter, she and her mother met with the family at her grandmother’s house, that Rayner denied touching C. E, and that C. E affirmed that he had. One of her mother’s sisters, Stephanie, asked C. E if her mother’s boyfriend had been touching her, and she replied that he had not. C. E recalled that her mother and aunt Jenni were both crying, and she felt like they all believed Rayner. C. E testified that she never wavered in her story although she knew that recanting would have made her mom and her aunt happy.

Charlene testified that she, her mom, and her two sisters, Stephanie and Jenni, were very close and were frequently together on the weekends and vacationed together. Additionally, she often left C. E with Rayner and Aaron at their home when she went out with her sisters. Charlene further testified that C. E loved Rayner like a father; that no argument or problem with Rayner preceded C. E’s outcry of abuse; that on the day that C. E talked to her, she had gone downstairs to chastise her for listening to inappropriate music and reprimanded her for “dirty dancing”; that C. E replied, “[w]hy is [sic] that I always get in trouble, and he never does,” referring to Rayner; and that she asked C. E what she meant and C. E said, “[bjecause he touches me”; and that when she continued to question C. E, she told her that Rayner made her do handstands and would touch her private area and that he had touched his private part to her vagina. Charlene recalled that she left the Rayner home immediately and that she and C. E discussed the abuse over the next couple of days and that C. E would cry each time.

Charlene testified that she met with her family about the incident and that no one was in support of her going to the police, including C. E On cross-examination, Charlene testified that she did not take C. E to the doctor because C. E told her that Rayner had not penetrated her. Charlene also acknowledged that the family had vacationed together at a beach house two months after C. E’s outcry, although C. E was never left alone with Rayner.

Randall Calvin Fruitt, C. E’s father, testified that he heard about the incident from a friend, then questioned C. E, who told him that Rayner touched her private parts. Randall called Charlene, and they reported the incident to the police. Detective Thomas Moore of the Forsyth County Sheriffs Office testified that Charlene reported the incident to the police in November 2005, which was more than a year after its occurrence; that he set up an interview for C. E at a children’s advocacy center; and that he heard the details of the allegations as C. E was being interviewed. Rayner testified and denied that he had ever had any sexual contact with C. E but he acknowledged that there were times when he was alone with her.

1. In his first two enumerations of error, Rayner argues that the trial court conveyed its opinion to the jury when it charged the law regarding prior difficulties between the parties.

The trial court charged as follows:

Evidence of prior difficulties between the defendant and the alleged victim has been admitted for the sole purpose of illustrating, if it does so illustrate, the state of feeling between the defendant and the alleged victim and the bent of mind and course of conduct on the part of the defendant. Whether this evidence illustrates such matters is a matter solely for you, the jury, to determine, but you are not to consider such evidence for any other purpose.

Rayner argues that the charge intimates an opinion that there was indeed evidence of prior difficulties, when there was none, and that it telegraphed to the jury that the court agreed with the state’s theory of the case. The state responds that each instance of molestation reported by C. E, although not necessarily charged by the state, constituted evidence of prior difficulties justifying the charge. We agree.

“ [P]roof of prior difficulties between the defendant and victim — including prior acts of molestation — is admissible without notice or a hearing.” This evidence is admissible to show the defendant’s “motive, intent, and bent of mind in committing the act against the victim which resulted in the charges for which he was being prosecuted.” The evidence here supported the trial court’s charge. Rayner was charged with child molestation for placing his penis on or about C. E’s vagina, with criminal attempt to commit rape for doing the same while holding C. E down, and with false imprisonment for illegally detaining her. But C. E also testified to various other instances of Rayner touching her breasts and vagina, all of which constitute evidence of prior difficulties. Thus, by giving the charge, the trial court was not commenting on the evidence nor was the charge unsupported by the evidence. Therefore, these enumerated errors fail.

2. Rayner argues that the trial court improperly restricted his expert’s testimony. In support of his argument, Rayner refers us to several excerpts from the expert’s testimony but does not clearly set forth the alleged error. In one instance, while discussing the efficacy of multiple interviews, the expert testified that research shows that interviewing children multiple times risks the possibility of contaminating the information received in subsequent interviews. He then stated: “And Dr. Stephen Ceci out of Chicago has shown clearly that after a thirty-day period of time, in an experiment he conducted, experts cannot tell anything about what really did or did not happen based upon the interviews.” The state objected on the grounds that the expert was testifying about the witness’s believability, and the trial court sustained the objection. Experts are allowed to discuss the propriety and effect of interviewing techniques in child sexual abuse cases, and the record here shows that Rayner’s expert was permitted to testify at length on this topic. It is also true, however, that an expert witness cannot testify as to his opinion of a victim’s truthfulness. Accordingly, we find no error in the trial court’s ruling.

In the course of discussing scientific and forensic interviews, the expert states that in “[t]herapy, you assume it’s true because somebody says it. In a forensic interview, first you say it, then you prove it. We have to get something that the trier of fact, in this case the jury, can have some scientific belief in.” The state objected, and the trial court sustained the objection. Rayner has not pointed out how this ruling unfairly restricted his expert’s testimony, who went on to provide his criticisms of how C. E’s interview was conducted. When asked “would there be a problem with an interview where the witness . . . couldn’t remember the first outcry, or claimed they couldn’t remember[,]” the trial court sustained the state’s objection that the witness needed to specify who he was talking about and then reprimanded Rayner to just talk about interviewing techniques. Rayner also has not stated specifically how this ruling constituted error. “Control of the cross-examination of a witness is to a great degree within the discretion of the trial court and will not be controlled unless abused.” Although Rayner argues generally that the trial court abused its discretion in limiting the expert’s testimony, the record belies this contention.

3. In his fourth and fifth enumerations of error, Rayner contends that the trial court erred when it excluded evidence of prior false allegations of a sexual nature made by C. E and did not allow her or her mother to be cross-examined on the topic. We disagree.

Evidence of prior false allegations is indeed admissible to attack the witness’s credibility and as substantive evidence in support of the argument that the charged offense did not occur. However,

to protect the complaining witness from unfounded allegations that the witness has made similar false allegations in the past, before such evidence can be admitted, the trial court is required to make a threshold determination outside the jury’s presence that a reasonable probability of falsity exists.

In the instant case, the trial court held the required hearing and concluded that there had been no prior false allegation. We find no error.

The record shows that Rayner’s counsel filed a motion to allow prior false allegations of sexual misconduct to be admitted into evidence. At the hearing on the motion, C. E was asked if she told her mother that she watched a pornographic movie with a former neighbor, Ashley Mankovitch, and she replied that she did not remember. C. E was also asked if she told her mother that her neighbor touched her inappropriately, and she replied that she did not remember. C. E did recall, however, that after a conversation with her mother, her mother talked to Ashley’s parents. On cross-examination, C. E testified that she had no memory of being sexually abused by Ashley.

Mankovitch’s father testified that he had a conversation with Charlene, wherein she told him that C. E said that Ashley made her watch porn and touched her. He did not recall anything else about the conversation as it had occurred at least four years before trial. Ashley Mankovitch testified that she had never watched a pornographic movie with or inappropriately touched C. E Charlene testified that the girls were “dirty dancing” while watching television and that C. E told her that she was uncomfortable and asked to come home; that she talked to Ashley’s father and they both talked to the girls; and that there was no need to make a report to the police. The trial court, acting as the trier of fact, found Charlene’s testimony to be credible and concluded that there had been no prior false allegation. Therefore, Rayner was not permitted to question the witnesses about the allegation. At trial, the state filed a motion in limine to exclude the evidence, which the trial court granted.

Rayner argues that the trial court erred when it did not permit him to cross-examine Charlene about the prior false allegation and cites Goldstein v. State in support of his position. But Goldstein is inapposite here. In that case, there was evidence of several prior false allegations made by the victim, but there was no hearing as to the admissibility of the evidence because trial counsel failed to investigate the evidence, resulting in the tried court’s finding of ineffective assistance of counsel.

In the instant case, the trial court made the pre-trial determination that there was no false allegation of sexual misconduct. “[W]e accept the factual findings and credibility determinations made by the court at pre-trial hearings on the admissibility of evidence unless they are clearly erroneousf,]” and we do not find them erroneous here. Assessing the credibility of the witnesses, the trial court found Charlene’s testimony that she talked to Ashley’s father because the girls were dancing inappropriately to be credible, and the trial court aptly determined that this was not an allegation of sexual misconduct. We find no abuse of discretion in its determination.

4. In his final enumeration of error, Rayner argues that the trial court erred when it did not allow him to cross-examine C. E’s grandmother about Charlene’s statements about her intent to report the incident or about the grandmother’s thoughts and interactions with C. E that caused her to question C. E’s credibility. We agree with the state that Charlene’s statements to the grandmother constituted inadmissible hearsay and that the grandmother could not testify to specific instances of bad conduct exhibited by C. E Rayner has not cited specific authority for the admission of this evidence, arguing instead, generally, that it violated his right to cross-examination.

Although a defendant has the right to conduct a thorough and sifting cross-examination, the trial court is authorized to restrict cross-examination to matters that are material to the issues at trial. Even if we assume, however, that Rayner should have been allowed to cross-examine the grandmother as he wished, Rayner has not shown that he was harmed. A successful enumeration of error requires both a showing of error and harm. The gist of Rayner’s argument appears to be that the inability to present this evidence was harmful because its admission would have caused the jury to question C. E’s credibility. But had the jury wished to find that C. E was not credible, there was ample evidence upon which it could have based that finding. C. E’s grandmother explicitly testified that C. E had a bad reputation and that she would not have believed anything C. E said under oath. Additionally, C. E’s aunt Stephanie testified that C. E had a bad reputation for truthfulness in the family. Nonetheless, in the face of this evidence, as well as the delayed report to the police and the lack of physical evidence, the jury chose to believe C. E’s version of the events, which it was authorized to do. “It was the jury’s role to assess the credibility of the witnesses, resolve any conflicts in the evidence, and arrive at a determination of the facts.” And the testimony of the victim, alone, is sufficient to support the convictions. “As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the state’s case, an appellate court must uphold the jury’s verdict.” Accordingly, as Rayner has not shown how he was harmed by the exclusion of the evidence he sought to introduce through further cross-examination of the grandmother, this enumeration of error also fails.

Decided February 15, 2011

Billy L. Spruell, for appellant.

Penny A. Penn, District Attorney, Sandra A. Partridge, Assistant District Attorney, for appellee.

Judgment affirmed.

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

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

       (Citation, punctuation and footnote omitted.) Shorter v. State, 271 Ga. App. 528, 528-529 (1) (610 SE2d 162) (2005).

       Rayner was married to C. E’s mother’s sister, Jenni.

       Charlene recalled that C. E was ten years old when the outcry occurred.

       “[T]he Supreme Court has approved the pattern jury charge on this issue!.]” (Footnotes omitted.) Newsome v. State, 289 Ga. App. 590, 595 (4) (657 SE2d 540) (2008).

       (Footnote omitted.) Stillwell v. State, 294 Ga. App. 805, 809 (2) (e) (670 SE2d 452) (2008) (evidence that the victim had previously alleged that the defendant touched her, conduct not charged in the indictment, was admissible and did not require notice of the presentation of similar transaction evidence).

       (Citations and punctuation omitted.) Hammontree v. State, 283 Ga. App. 736, 739 (2) (642 SE2d 412) (2007) (evidence of a prior difficulty that occurred one week before the act for which the defendant was charged was admissible).

       See Barlow v. State, 270 Ga. 54 (507 SE2d 416) (1998).

       See Roberson v. State, 214 Ga. App. 208, 210 (4) (447 SE2d 640) (1994).

       (Citations and punctuation omitted.) Carpenter v. State, 167 Ga. App. 634, 640 (6) (307 SE2d 19) (1983).

        Osborne v. State, 291 Ga. App. 711, 713 (2) (662 SE2d 792) (2008).

       (Citation omitted.) Id.

       In the motion, Rayner asserted that C. E had alleged that she had been molested by a neighbor, who was four years older than her, and by a teacher, who had looked down her blouse. Because the teacher was not available as a witness, the hearing proceeded in connection with the other allegation.

       283 Ga. App. 1 (640 SE2d 599) (2006).

       Id. at 6 (3) (a).

       (Footnote omitted.) Williams v. State, 257 Ga. App. 54, 55 (1) (570 SE2d 362) (2002).

       See Banks v. State, 250 Ga. App. 728 (1) (552 SE2d 903) (2001).

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

       See Ashe v. State, 285 Ga. 359, 361 (2) (676 SE2d 194) (2009).

       (Citation and punctuation omitted.) Wells v. State, 281 Ga. 253, 254 (1) (637 SE2d 8) (2006).

        Barnes v. State, 299 Ga. App. 253, 254-255 (1) (682 SE2d 359) (2009) (conviction of child molestation supported by victim’s testimony, alone, despite lack of physical evidence). See also Davis v. State, 221 Ga. App. 131, 132 (1) (470 SE2d 520) (1996) (where there were no physical findings to corroborate allegation of rape and evidence of guilt was not overwhelming, conviction was affirmed because victim’s testimony, alone, was sufficient to prove defendant’s guilt).

       (Punctuation and footnote omitted.) Barnes, supra at 255 (1).


author: Ellington, Chief Judge.

text:
    A10A2181.
    SEVOSTIYANOVA v. TEMPEST RECOVERY SERVICES, INC.
    (705 SE2d 878)
   Ellington, Chief Judge.

In this case arising from the repossession and sale of a car, Ekaterina Sevostiyanova appeals from an order of the State Court of Cobb County in favor of Tempest Recovery Services, Inc. Sevostiy-anova contends that the trial court erred in ruling against her on her tort claims, in excluding certain evidence, and in failing to amend its judgment to include findings of fact and conclusions of law. For the following reasons, we affirm.

“The 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.” (Citations, punctuation and footnote omitted.) Crowell v. Williams, 273 Ga. App. 676 (1) (615 SE2d 797) (2005).

The record shows that, in March 2004, Sevostiyanova obtained a loan and purchased a 2001 Toyota Corolla. In July 2005, after she had fallen behind on her payments, Tempest repossessed the car and sold it. In January 2007, Tempest filed a complaint against Sevosti-yanova, claiming that she owed the company $2,454 on the loan (representing the deficiency between the outstanding principal loan amount and the sale price), plus interest, late fees and collection costs. According to Sevostiyanova, she never received formal notice of the sale, and it is undisputed that Tempest never perfected service of its complaint against Sevostiyanova. Sevostiyanova admitted, however, that she was notified about two months after the repossession that the company that had purchased her car loan was going to pursue a deficiency claim against her for approximately $2,445. In fact, when she filed for bankruptcy in December 2007, Sevostiyanova included the deficiency claim in a schedule of creditors holding unsecured, nonpriority claims against her. The bankruptcy court discharged Sevostiyanova’s debts in March 2008. Tempest received notice of the bankruptcy action, but, due to an alleged miscommunication, it did not dismiss its complaint against her after her debts were discharged.

In September 2009, after Tempest had taken no action on its complaint for more than two years, the trial court ordered the parties to appear at a special calendar call to address the complaint. Sevostiyanova appeared, waived and acknowledged service of process, and filed an answer and a counterclaim against Tempest, contending that Tempest had improperly violated an automatic stay imposed in the bankruptcy case and wrongfully continued to pursue its claim against her in the trial court after the debt was discharged by the bankruptcy court. Because no representative appeared on behalf of Tempest, the trial court dismissed Tempest’s deficiency claim for lack of prosecution, but allowed Sevostiyanova’s counterclaim to remain pending.

Sevostiyanova subsequently amended her counterclaim to assert claims for negligent infliction of emotional distress, abusive litigation under OCGA § 51-7-80 et seq., and libel under OCGA § 51-5-1; each claim was based upon allegations that Tempest had continued to pursue its claim against her following the automatic stay and failed to dismiss its claim against her after the debt was discharged by the bankruptcy court. She also claimed that Tempest’s sale other car was commercially unreasonable because it sold the car for less than its fair market value. She claimed that, as a result, Tempest owed her “actual damages caused by a sale at less than an adequate value,” pursuant to OCGA § 11-9-625.

The trial court conducted a bench trial on Sevostiyanova’s counterclaim in December 2009; Sevostiyanova proceeded pro se and was the only witness to testify. Following the trial, the court entered judgment in favor of Tempest on each count of the counterclaim. This appeal followed.

1. Sevostiyanova contends that the trial court erred in entering judgment in favor of Tempest on her claim for damages arising from the sale of her car following its repossession. She claims that Tempest failed to conduct the sale of the car in a commercially reasonable manner and, as a result, sold her car at an unreasonably low price. According to Sevostiyanova, Tempest owed her the difference between the sale price and the car’s fair market value.

The doctrine of judicial estoppel prevents Sevostiyanova from pursuing this claim, however.

Under the doctrine [of judicial estoppel], a party is precluded from asserting a position in a judicial proceeding which is inconsistent with a position previously successfully asserted by it in a prior proceeding. Therefore, the doctrine is commonly applied to preclude a bankruptcy debtor from pursuing a damages claim that [the debtor] failed to include in his [or her] assets in the bankruptcy petition because a failure to reveal assets, including unliquidated . . . claims, operates as a denial that such assets exist, deprives the bankruptcy court of the full information it needs to evaluate and rule upon a bankruptcy petition, and deprives creditors of resources that may satisfy unpaid obligations.

(Punctuation and footnotes omitted.) Nat. Bldg. Maintenance Specialists v. Hayes, 288 Ga. App. 25, 26 (653 SE2d 772) (2007).

As shown above, it is undisputed that Sevostiyanova knew that her car had been repossessed in July 2005 and that, within two months, she was notified that the car had been sold and that she was expected to pay approximately $2,445, representing the deficiency from the sale. She also testified that, at the time of the repossession and sale, she believed that the car was worth at least $7,000, which was more than she owed on the car loan. Thus, her claim that Tempest sold her car for an unreasonably low price (and, as a consequence, owed her the amount of surplus funds that should have been generated from a commercially reasonable sale) arose at least two years before she filed for bankruptcy protection in December 2007.

Because this cause of action accrued prior to Sevostiyanova’s commencement of her bankruptcy action, Sevostiyanova was required to disclose it in her schedule of assets to be included as property of the bankruptcy estate. 11 USC § 541 (2010) (property of the bankruptcy estate); Kittle v. Conagra Poultry Co., 247 Ga. App. 102, 105-106 (1) (a) (543 SE2d 411) (2000). “[A]ny asset not properly scheduled remains [the] property of the bankrupt estate, and the debtor loses all rights to enforce it in his [or her] own name.” (Citation omitted.) Kittle v. Conagra Poultry Co., 247 Ga. App. at 107 (1) (b). Sevostiyanova did not amend her bankruptcy petition to disclose the cause of action, move the bankruptcy court to reopen her bankruptcy case to allow for an amendment, or otherwise alert the bankruptcy court and other interested parties of the claim. Nat. Bldg. Maintenance Specialists v. Hayes, 288 Ga. App. at 27-28; Kittle v. Conagra Poultry Co., 247 Ga. App. at 107 (1) (b).

Consequently, because any recovery by Sevostiyanova on this cause of action would not inure to the benefit of her creditors, who were not fully compensated when the bankruptcy court discharged her debts, Sevostiyanova is judicially estopped from pursuing this claim. Kittle v. Conagra Poultry Co., 247 Ga. App. at 107 (1) (b); Reagan v. Lynch, 241 Ga. App. 642, 643-645 (524 SE2d 510) (1999); cf. Period Homes v. Wallick, 275 Ga. 486, 488-489 (2) (569 SE2d 502) (2002) (A debtor was not judicially estopped from pursuing a cause of action against a third party, even though the cause of action accrued before the debtor filed for bankruptcy protection and the debtor failed to list the cause of action in his schedule of assets, because the debtor’s creditors were paid in full out of the bankruptcy estate’s funds and, therefore, the debtor’s omission of the cause of action did not deprive the creditors of any resources that would have been used to satisfy their claims.).

2. Sevostiyanova contends that the trial court erred in excluding her opinion testimony regarding the fair and reasonable value of the car at the time of the repossession. Under OCGA § 24-9-66, “[d]irect testimony as to market value is in the nature of opinion evidence. One need not be an expert or dealer in the article in question but may testify as to its value if he [or she] has had an opportunity for forming a correct opinion.” “The question of whether a witness has established sufficient opportunity for forming a correct opinion or has stated a proper basis for expressing an opinion is for the trial court. We review the court’s decision for abuse of discretion.” (Punctuation and footnotes omitted.) Dept. of Transp. v. Southeast Timberlands, 263 Ga. App. 805, 810 (3) (589 SE2d 575) (2003).

The trial transcript shows that Sevostiyanova testified that, in July 2005,

I made the research regarding the fair market value on my car because I was going to sell it at the time of the repossession, before the repossession took place. I visited several dealers’ stores, several car dealers, and I made a lot of research through the Internet, Web site, and I obtain[ed] the value for the car, [with] this particular mileage. . . . The mileage was 53,000. . . . And I made research with Kelley Blue Book value,. . . the level of the private party value and dealer value, and I compare[d] all of these values. And I went to the dealership and search [ed] for the Toyota Corollas[.] ... In the dealership, the purchase price was much more than 10,000 [dollars], but the price for which they are willing to buy it. . . was around 7,000 [dollars]. And the Kelley Blue Book value was between seven and $9,000.

During this testimony, Tempest objected because Sevostiyanova’s opinion testimony was based upon hearsay. The trial court responded that it was going to allow her to testify and then would determine whether she had laid a sufficient foundation for her opinion as to the car’s value in 2005.

It is undisputed that Sevostiyanova has no education or experience in the valuation of vehicles. Further, she presented no evidence of the price she paid for the car in 2004, the condition of the car at the time it was repossessed, the potential market for such cars in 2005, or other relevant factors to be considered in reaching a conclusion about the car’s value. It follows that her conclusions about the car’s value were not her opinions at all. Instead, she reached her conclusions solely by seeking out the opinions of other people who she believed had the requisite expertise to weigh the relevant factors before forming an opinion as to the car’s value. But Sevostiyanova presented no evidence as to when she consulted these alleged experts and neither identified them nor called them to testify at trial. Essentially, her testimony is simply the restatement of the opinions of others who were not subject to cross-examination about how they reached their opinions.

Under these circumstances, we find that the trial court was authorized to conclude that Sevostiyanova’s “opinion” testimony about the value of the car in July 2005 was based entirely upon hearsay and that, absent any evidence to show that the hearsay was reliable, she failed to demonstrate a sufficient foundation for her conclusions. Consequently, Sevostiyanova’s testimony, standing alone, was insufficient to establish the fair and reasonable value of the car at the time it was repossessed.

3. Sevostiyanova contends that the trial court erred in ruling in favor of Tempest on her claim for damages arising from the sale of her car without the proper notice required by Georgia law. This claim fails for the same reasons explained in Division 1, supra.

4. Sevostiyanova contends that the trial court erred in ruling in favor of Tempest on her claims for abusive litigation and libel. Pretermitting whether Sevostiyanova abandoned these claims at trial, for the following reasons, there was no error.

(a) Under OCGA § 51-7-81, “[a]ny person who takes an active part in the initiation, continuation, or procurement of civil proceedings against another shall be liable for abusive litigation if such person acts: (1) [w]ith malice; and (2) [w]ithout substantial justification.”

(i) Sevostiyanova could not prevail on her abusive litigation claim because she failed to present any evidence that Tempest pursued its claim against her with malice. For the purposes of OCGA § 51-7-81, “malice” is defined as

acting with ill will or for a wrongful purpose and may be inferred in an action if the party initiated, continued, or procured civil proceedings or process in a harassing manner or used process for a purpose other than that of securing the proper adjudication of the claim upon which the proceedings are based.

OCGA § 51-7-80 (5).

(ii) Moreover, OCGA § 51-7-84 (a) specifically requires notice to the opposing party as a condition precedent to any claim for abusive litigation, so that the party will have the opportunity to voluntarily discontinue the proceeding at issue. It is undisputed that Sevostiy-anova did not provide Tempest with the requisite advance notice of her abusive litigation claim.

She argues, however, that the clerk of the bankruptcy court provided notice to Tempest to cease all collection actions directed against her and that this notice gave Tempest the opportunity to change its position in order to avoid liability under OCGA § 51-7-81. Thus, according to Sevostiyanova, any additional notice she provided pursuant to OCGA § 51-7-84 (a) would have been “superfluous.”

However, Georgia’s abusive litigation statute is in derogation of the common law and must be strictly construed against the party asserting the right of action. Land v. Boone, 265 Ga. App. 551, 552 (594 SE2d 741) (2004). Sevostiyanova has failed to cite to any authority which supports her argument that the notice provided to a creditor during a bankruptcy action in the federal court system is sufficient to warn the creditor that it must cease its collection efforts in order to avoid liability on a state claim of abusive litigation.

Consequently, the trial court did not err in granting judgment in favor of Tempest on the abusive litigation claim.

(b) Sevostiyanova’s libel claim was based upon Tempest’s allegations in the deficiency claim against her, which was filed in January 2007, and Tempest’s subsequent failure to dismiss the claim after the debt was discharged in bankruptcy in March 2008. It is undisputed that Sevostiyanova first asserted the claim in September 2009.

(i) Under OCGA § 9-3-33, the statute of limitation for a libel claim is one year. Barnwell v. Barnett & Co., 222 Ga. App. 694, 695-696 (2) (476 SE2d 1) (1996). Consequently, Sevostiyanova’s libel claim was untimely.

(ii) Further, the complaint’s allegations are privileged under OCGA § 51-5-8, and, as such, are not libelous as a matter of law.

Therefore, the trial court did not err in ruling in favor of Tempest on Sevostiyanova’s libel claim.

5. Sevostiyanova claims that the trial court erred by issuing an order that did not include findings of fact and conclusions of law and that it abused its discretion in failing to amend its order to include such findings and conclusions after she filed a request pursuant to OCGA § 9-11-52. We disagree.

Sevostiyanova did not file a motion asking the trial court to enter findings of fact and conclusions of law until after the court had entered its judgment on her counterclaim. Thus, the provisions of OCGA § 9-11-52 (c) apply. Under that subsection, the entry of findings of fact and conclusions of law is permissive, not mandatory. Mackey v. Fed. Nat. Mtg. Assn., 294 Ga. App. 495, 497 (4) (669 SE2d 397) (2008). We will interfere with the trial court’s decision on whether to make such findings only if such decision demonstrates an abuse of its discretion. Vernon Library Supplies v. Ard, 249 Ga. App. 853, 854 (1) (550 SE2d 108) (2001). Because the issues presented in the court below are clearly reflected in the record, the only witness to testify at trial was Sevostiyanova, and, as shown above, the resolution of the issues depends on the law as applied to the undisputed facts, we find no abuse of discretion. Id.

Judgment affirmed.

Andrews and Doyle, JJ., concur.

Decided January 26, 2011

Reconsideration denied February 16, 2011.

Ekaterina Sevostiyanova, pro se.

Lefkoff, Rubin & Gleason, Craig B. Lefkoff, for appellee.

       See OCGA § 10-1-36 (a) (When a lien holder repossesses a motor vehicle after default, the holder must send, within ten days after repossession, a notice of its intention to pursue a deficiency claim against the buyer. If the holder fails to do so, it is not entitled to recover a deficiency judgment against the buyer for the difference between the buyer’s outstanding debt on the vehicle and the sale proceeds.); see also OCGA § 11-9-611 (b) (notice to debtor required before sale or disposition of collateral).

       See OCGA § 11-9-610 (b) (“Every aspect of a disposition of collateral, including the method, manner, time, place, and other terms, must be commercially reasonable.”); see also OCGA § 11-9-607 (c) (requiring commercially reasonable collection and enforcement).

       See OCGA §§ 11-9-625 (b) (“a person is liable for damages in the amount of any loss caused by a failure to comply” with the requirements of OCGA § 11-9-601 et seq., which addresses default and the requirements for the enforcement of a security interest in a secured transaction); 11-9-625 (c) (2) (“If the collateral is consumer goods, a person that was a debtor or a secondary obligor at the time a secured party failed to comply with this part may recover for that failure in any event an amount not less than the credit service charge plus 10 percent of the principal amount of the obligation or the time price differential plus 10 percent of the cash price.”); 11-9-625 (d) (“A debtor whose deficiency is eliminated under Code Section 11-9-626 may recover damages for the loss of any surplus. However, a debtor or secondary obligor whose deficiency is eliminated or reduced under Code Section 11-9-626 may not otherwise recover under subsection (b) of this Code section for noncompliance with the provisions of this part relating to collection, enforcement, disposition, or acceptance.”); see also OCGA § 11-9-615 (d) (1) (After the disposition of collateral, a secured party must apply the cash proceeds to the expenses of the disposition, to the satisfaction of the secured debt, and to other parties having secured interest in the collateral; the secured party shall then account to and pay the debtor any surplus funds.).

         See Division 2, infra.

       During trial, Sevostiyanova affirmatively stated to the court, “In this case, I just would like to maintain just [the] claim with regard to [Tempest’s] unfair sale and incompliance [sic] with [OCGA §] 11-9-1611].”

       See also OCGA § 51-7-80 (8) (The term “wrongful purpose,” when used with reference to any civil proceeding, claim, or other position, is such purpose that “results in or has the effect of: (A) [alttempting to unjustifiably harass or intimidate another party or witness to the proceeding; or (B) [alttempting to unjustifiably accomplish some ulterior or collateral purpose other than resolving the subject controversy on its merits.”).

      As a condition precedent to any claim for abusive litigation, the person injured by such act shall give written notice by registered or certified mail or statutory overnight delivery or some other means evidencing receipt by the addressee to any person against whom such injured person intends to assert a claim for abusive litigation and shall thereby give the person against whom an abusive litigation claim is contemplated an opportunity to voluntarily withdraw, abandon, discontinue, or dismiss the civil proceeding, claim, defense, motion, appeal, civil process, or other position. Such notice shall identify the civil proceeding, claim, defense, motion, appeal, civil process, or other position which the injured person claims constitutes abusive litigation.
      OCGA § 51-7-84 (a).

       Under OCGA § 51-5-8,
      [a]ll charges, allegations, and averments contained in regular pleadings filed in a court of competent jurisdiction, which are pertinent and material to the relief sought, whether legally sufficient to obtain it or not, are privileged. However false and malicious such charges, allegations, and averments may be, they shall not be deemed libelous.

       OCGA § 9-11-52 (a) provides, in relevant part, that “in all nonjury trials in courts of record, the court shall upon request of any party made prior to such ruling, find the facts specially and shall state separately its conclusions of law.” (Emphasis supplied.) In contrast, subsection (c) provides, in relevant part, as follows: “Upon motion made not later than 20 days after entry of judgment, the court may make or amend its findings or make additional findings and may amend the judgment accordingly.” (Emphasis supplied.)