author: Rickman, Judge.

text:
    A16A1871, A16A1872.
    ENGELMAN v. KESSLER et al.; and vice versa.
    (797 SE2d 160)
   Rickman, Judge.

In these consolidated appeals, we must determine whether the trial court properly granted summary judgment in part, and denied it in part, in this case filed by a client, Andrea Engelman, against her former attorneys, Randall Kessler, Louis Tesser, Darren Tobin, (collectively, “the attorneys”) and her former law firm, Kessler, Schwarz & Solomiany, P.C. (“KSS”). The attorneys and KSS represented Engelman in a divorce action. Approximately three years after signing a settlement agreement in her divorce case, Engelman filed a lawsuit against the attorneys and KSS, alleging legal malpractice and breach of fiduciary duty/fraud. The trial court granted summary judgment in favor of the attorneys and KSS on Engelman’s claim for legal malpractice. Both parties’ motions for summary judgment on Engelman’s breach of fiduciary duty/fraud claim were denied.

For the following reasons, we affirm the trial court’s grant of summary judgment to the attorneys and KSS on Engelman’s claim for legal malpractice. We vacate the trial court’s denial of summary judgment on the breach of fiduciary duty/fraud claim and remand for proceedings consistent with this opinion.

To prevail at summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that the evidence and all reasonable inferences and conclusions drawn therefrom, viewed in the nonmovant’s favor, warrant judgment as a matter of law. We review de novo the trial court’s ruling on a motion for summary judgment.

(Citation and punctuation omitted.) Hart v. Sirmans, 336 Ga. App. 212 (784 SE2d 67) (2016).

So viewed, the record shows that prior to marrying her former husband, Engelman, a college graduate, signed a prenuptial agreement. At some point during the marriage, Engelman suspected that her former husband planned on seeking a divorce. Engelman did not want a divorce, but she met with Tobin because she wanted the attorneys to look at the prenuptial agreement. A few months after their initial meeting, Engelman retained the attorneys and KSS. Engelman signed a one-page legal services employment agreement.

The legal services employment agreement provided that Engel-man would pay “$25,000[ ] now as a general retainer to preclude adversaries from hiring KSS in this matter and for KSS to be available and ‘on call’ to represent [Engelman].... Retainers are earned when paid. Refunding funds not accounted for by time or expenses is in KSS’ sole discretion.” While there is a handwritten note on the agreement that states, “$15,000 to start representation,” Engelman actually gave the attorneys and KSS a check for $20,000 to begin representation. The hourly rates for each attorney in the firm were listed in the legal services employment agreement along with the caveat that the rates were “subject to increases.”

On the day after Engelman retained the attorneys and KSS, Kessler sent an interoffice e-mail which stated that the attorneys’ hourly rates would be increasing. Kessler requested that a memo be sent to all of KSS’s clients to inform them of the rate change. Engelman denied that she ever received this memo. Engelman did receive billing statements from KSS, and she acknowledged that on the statements the rates for each attorney were clearly listed.

Engelman believed that her former husband was wealthy, but she was not aware of his exact income. The attorneys advised Engelman that they would send a business valuation expert a copy of the prenuptial agreement in order to get an opinion regarding whether her former husband’s new businesses could be considered marital property and, thus, be exempt from the prenuptial agreement. The attorneys and Engelman’s former husband’s attorney began to communicate about the potential divorce case and the prenuptial agreement; the attorneys expressed an interest in trying to settle the case.

On February 5, 2010, Engelman’s former husband’s attorney sent Tesser a settlement offer. On February 8, 2010, a KSS paralegal sent an e-mail to Engelman with the settlement offer attached and indicated that after she read the offer she should call Tesser or Tobin to discuss it. On February 10, 2010, Engelman sent an e-mail to Tesser, Tobin, and the paralegal which stated, “I am working on two different agreements for you and I to go over at your earliest convenience.” On February 18, 2010, Tesser sent a letter to Engelman which stated that she “should seriously consider accepting the offer.” The letter went on to analyze the potential enforceability of the prenuptial agreement and also detailed what the attorneys believed was the strongest argument to have the prenuptial agreement declared invalid. The letter stated that its intent was not to “push” Engelman into accepting the offer and that the attorneys would “zealously advocate” on her behalf should she decide to decline the offer.

On February 23, 2010, at 11:35 p.m., Engelman sent the attorneys an e-mail detailing a counteroffer she wanted them to make to her former husband’s attorney Nine minutes later, Kessler sent a reply e-mail to Engelman stating, “We will look at this and talk. We can do as you wish, but given that any response other than ‘accepted’ may remove the offer from the table for good, perhaps we should arrange a meeting/mediation. ... I also want to compare your email with their offer very carefully” Engelman responded that she was working on the settlement agreement with the help of her family therapist. On February 24, 2010, Engelman sent another e-mail to Kessler and attached her proposed counteroffer. The following day, Engelman sent an e-mail to the attorneys in which she expressed her displeasure that she had not received a phone call in the 24 hours since her last e-mail and stated that, “I need for that counter offer to be presented to [her former husband’s] lawyer as soon as possible.”

After speaking with Engelman and her family therapist on the phone, Tobin sent an interoffice e-mail to Kessler detailing the terms of the offer that Engelman wanted the attorneys to present to her former husband’s attorney and noting that Engelman insisted that she be provided with a copy of the offer to review by the following day Kessler replied to Tobin that he “hate[d] that so be sure she knows there is risk and my perfrence [sic] is to get all parties together before we counter.” Tobin sent an e-mail to Engelman reflecting Kessler’s concerns:

We understand your desire to resolve this asap. However, [Kessler] still would prefer that we get [Engelman’s former husband] and his attorney to sit down with us and try and negotiate a better deal. We will of course proceed with sending them your proposal but we wanted to make you aware of our preference to try and have a meeting with them first. Who knows, there may be more we can get out of him.... In any event we will draft the offer and have it ready for you tomorrow. A meeting between all of us would allow us to explore all options.

Kessler also sent an e-mail to Engelman urging her to agree to meet with her former husband and his attorney in person. Engelman responded that she wanted the attorneys to “[p]lease send the counter” and noted that “[y]ou all seem to think I can’t get better.” Kessler responded that “[i]t’s not that we can’t make a good argument for more, it’s just that there is a big risk involved and it would be a significant one.” Engelman replied that she “can’t risk loosing [sic] this offer.”

Tesser sent Engelman an e-mail explaining that the attorneys would draft a proposed settlement offer for her to review and expressed an understanding that she was ready for the divorce to be over. Tesser also stated that, “while I think that there is a possibility that you could do better, by and large, what seems to be on the table significantly beats the terms of the prenup, which we believe would probably be enforced.” A proposed settlement agreement was e-mailed to her, and after a back and forth discussion regarding terms with the attorneys, she sent an e-mail to the attorneys that stated that the offer was “PERFECT!!!” and requested that they “[g]o for it asap[.]” In the following days, she sent e-mails to the attorneys stating, “[p]lease let me know you . . . are taking care of [an omission from the agreement] ASAP,” “Did it go out? Please say yes[,]” and “end this ASAP! I need to close on a house hopefully in 30-45 days.”

During the finalization of the settlement agreement, Engelman again stressed that she needed to get the agreement signed because she needed to close on a house. Upon receipt of the proposed final agreement by Engelman’s former husband’s attorney, Engelman sent an e-mail to Tobin and Tesser expressing her desire to sign the agreement the following day because “I am closing on a house ... and need the money to close.” Tobin sent Engelman an e-mail explaining that it was in her best interest to slow down, carefully look at the agreement, and urged her to move back the date of her closing. Tobin concluded the e-mail by stating, “[p]lease do not worry— [Tesser] and I want to ensure that you get everything that you discussed and that you deserve. Now, I would like you to please print the Agreement, read it and find your questions/revisions.”

The billing statements Engelman received from KSS reflect that the attorneys’ rates were raised during her case. Engelman was in possession of two final invoices, both bearing the same invoice number. The invoices were dated April 29, 2010 and September 7, 2010. The September invoice reflected a higher amount of money owed than the April invoice. Engelman requested a refund because her final bill reflected a balance in her account. In October 2010, KSS issued her a refund.

Engelman argues that the attorneys and KSS committed legal malpractice by failing to explain the terms of the prenuptial agreement and by not reviewing any of her former husband’s financial documents prior to advising her to seriously consider accepting the proposed settlement offer. Engelman’s breach of fiduciary duty/fraud claim centers around the legal services employment agreement which she argues was in violation of the Georgia Rules of Professional Conduct and several Formal Advisory Opinions and the fact that Engelman was charged higher rates than the rates specified in the employment agreement. As a result of the alleged negligence, breach of fiduciary duty and fraud, Engelman claims that she did not receive “fair value or equitable division of property” as part of the settlement agreement and that she was overcharged, resulting in damages exceeding $4 million. The trial court granted summary judgment to the attorneys and KSS on Engelman’s claim for legal malpractice. The trial court denied both parties’ motions for summary judgment on Engelman’s claim for breach of fiduciary duty/fraud. For the following reasons, we affirm the trial court’s grant of summary judgment to the attorneys and KSS on Engelman’s claim for legal malpractice. We vacate the trial court’s denial of summary judgment on the breach of fiduciary duty/fraud claim and remand for proceedings consistent with this opinion.

Case No. A16A1871

1. Engelman contends that the trial court erred by granting summary judgment to the attorneys and KSS on her legal malpractice claim. Specifically, Engelman argues that the trial court erred in holding that the attorneys and KSS were protected by the “judgmental immunity” doctrine. We disagree.

In order to prevail on a claim for legal malpractice the client has the burden of establishing three elements: (1) employment of the defendant attorney, (2) failure of the attorney to exercise ordinary care, skill and diligence, and (3) that such negligence was the proximate cause of damage to the plaintiff.

(Citation and punctuation omitted.) Hudson v. Windholz, 202 Ga. App. 882, 886 (3) (416 SE2d 120) (1992).

Under the Georgia doctrine of judgmental immunity, there can be no liability for acts and omissions by an attorney in the conduct of litigation which are based on an honest exercise of professional judgment. This is a sound rule. Otherwise every losing litigant would be able to sue his attorney if he could find another attorney who was willing to second guess the decisions of the first attorney with the advantage of hindsight. If this were permitted, the original trial would become a “play within a play” at the malpractice trial.

(Citation and punctuation omitted.) Mosera v. Davis, 306 Ga. App. 226, 232 (2) (701 SE2d 864) (2010).

The record clearly indicates that the attorneys and KSS analyzed the terms of Engelman’s prenuptial agreement and advised her as to the strengths and weaknesses regarding the enforceability of the agreement. In the letter sent to Engelman which advised her to “seriously consider accepting the [settlement] offer,” the attorneys explained, inter alia:

If you instruct us to engage in discovery and retain experts, our best hope is that we will be able to show that one or more of [Engelman’s former husband’s] businesses were started during the marriage, and also that the business(es) do not fall under the umbrella of his separate property. This would make the business(es) subject to equitable division which obviously increases what you would otherwise be entitled to receive.

This letter runs contrary to Engelman’s claim that she was never advised that she may be able to receive more than alimony under the terms of the prenuptial agreement. While the attorneys and KSS explained that it “[would] not necessarily be easy” to show that her former husband’s businesses were marital property, Engelman was certainly informed that there were avenues for her to receive more money under the prenuptial agreement or, in the alternative, that the prenuptial agreement could possibly be invalidated. Moreover, prior to Engelman even receiving this letter, she was already working on another settlement offer with her therapist.

Approximately three weeks after receiving the first settlement offer, Engelman had a counteroffer ready that she wished the attorneys to present to Engelman’s former husband’s attorney. Despite concerns from the attorneys about the counteroffer, Engelman demanded that the counteroffer be presented and did not heed the advice from the attorneys that she meet with her former husband and his attorney in person prior to presenting a counteroffer. Throughout the process of presenting the counteroffer and the drafting of the proposed settlement agreement, Engelman urged the attorneys to move at a faster pace while the attorneys expressed how important it was to slow down “to ensure that [she] get[s] everything that [she] discussed and that [she] deserve[s].”

Under the facts and circumstances of this case, the trial court correctly concluded that KSS was entitled to judgmental immunity See Hudson, 202 Ga. App. at 886-887 (3) (“Because the evidence of record clearly indicates that defendant assessed the relative strengths and weaknesses of the plaintiffs’ claims . . . and exercised his best, informed judgment prior to recommending that plaintiffs execute the release . . . any error or mistake in judgment by defendant as to this recommendation is protected by the doctrine of judgmental immunity and may not serve as the basis for a legal malpractice action against defendant.”); see also Mosera, 306 Ga. App. at 230-233 (2). Accordingly, Engelman has failed to establish negligence on the part of the attorneys or KSS.

Furthermore, Engelman also failed to establish that the attorneys’ actions were the proximate cause of her alleged damages. Engelman voluntarily signed the divorce agreement, which she negotiated and begged her attorneys to get ready for her to sign. As detailed above, Engelman insisted on going forward with presenting a counteroffer to her former husband’s attorney in spite of the advice from the attorneys to slow down and try to mediate. Kessler felt that this decision to not follow his advice was so significant that he urged Tobin to put in writing for Engelman the risks of sending the counteroffer. Throughout the negotiations regarding the proposed settlement agreement, Engelman continued to communicate to the attorneys that it was urgent the settlement agreement get finalized because she needed the money she would receive from the divorce in order to buy a house. Tobin even tried to get Engelman to move back her closing date on the house because it was in her best interest to slow down.

There are few rules of law more fundamental than that which requires a party to read what he signs and to be bound thereby This rule has particular force when the party is well educated and laboring under no disabilities. To hold otherwise is to create the potential for malpractice litigation in every contract dispute.

(Citation omitted.) Hudson, 202 Ga. App. at 887 (3).

The settlement agreement plainly states that Engelman is signing the agreement “without conducting the usual discovery and without disclosure of the income and assets of the other.” Engelman initialed that she “acknowledge[d] that she ... read each page of th[e] Agreement carefully before signing same; that she . . . obtained legal counsel of her own choosing and such legal counsel’s services have been satisfactory and adequate.” Engelman voluntarily settled her divorce and failed to follow the advice of her attorneys who opined that mediating the case or meeting with Engelman’s former husband’s attorney in person could lead to a more favorable settlement. “[Engelman] made an independent, well-informed and deliberate decision that, in retrospect, [she] now regret[s] and desire[s] to rescind. Thus, [Engelman’s] choice to execute the [settlement agreement] is an intervening event which caused [her] alleged damages.” (Punctuation omitted.) Hudson, 202 Ga. App. at 887 (3).

Thus, we affirm the trial court’s grant of summary judgment to the attorneys and KSS on Engelman’s legal malpractice claim. See Mosera, 306 Ga. App. at 230-233 (2); see also White v. Rolley, 225 Ga. App. 467, 468-470 (2) (484 SE2d 83) (1997); Hudson, 202 Ga. App. at 886-887 (3).

2. Engelman contends that the trial court erred in denying her motion for summary judgment as to her claim for breach of fiduciary duty/fraud.

“It is well settled that a claim for breach of fiduciary duty requires proof of three elements: (1) the existence of a fiduciary duty; (2) breach of that duty; and (3) damage proximately caused by the breach.” (Citation and punctuation omitted.) Nash v. Studdard, 294 Ga. App. 845, 849-850 (2) (670 SE2d 508) (2008). “In order to prove fraud, the plaintiff must establish five elements: (1) a false representation by a defendant, (2) scienter, (3) intention to induce the plaintiff to act or refrain from acting, (4) justifiable reliance by plaintiff, and (5) damage to plaintiff.” (Citation and punctuation omitted.) Sun Nurseries v. Lake Erma, LLC, 316 Ga. App. 832, 835 (1) (730 SE2d 556) (2012).

The trial court held that genuine issues of material fact exist as to the breach and damage elements of Engelman’s claim for breach of fiduciary duty and all five elements of fraud. The trial court found that both parties’ experts disagreed as to whether the attorneys’ and KSS’s legal services employment agreement violated the Georgia Rules of Professional Conduct and certain Formal Advisory Opinions.

The threshold issue for Engelman’s breach of fiduciary duty/fraud claim is whether or not the terms of the legal services employment agreement violate Georgia law. “The construction of a contract is peculiarly well suited for disposition by summary judgment because, in the absence of an ambiguity in terms, it is a question of law for the court.” (Citation omitted.) Tucker Materials (Georgia) v. Devito Contracting & Supply, 245 Ga. App. 309, 310 (535 SE2d 858) (2000). See Precision Planning v. Richmark Communities, 298 Ga. App. 78 (679 SE2d 43) (2009) (“The issues of contract construction and enforceability are generally questions of law for a court to resolve[.]”) (citations omitted). The question of whether a lawyer’s retainer agreement violates public policy is a question of law. See Brandon v. Newman, 243 Ga. App. 183, 186 (3) (a) (532 SE2d 743) (2000). Because the question of whether or not KSS’s legal services employment agreement was enforceable is a question of law, it was improper for the trial court to rely upon the parties’ experts’ opinions. See Dow Chemical Co. v. Ogletree, Deakins, Nash, Smoak & Stewart, 237 Ga. App. 27, 30 (2) (514 SE2d 836) (1999) (“A matter of law is not the subject, or a proper subject, of expert testimony.”) (citation and punctuation omitted).

Accordingly, we remand for the trial court to consider whether genuine issues of material fact exist with respect to Engelman’s breach of fiduciary duty/fraud claim, without reference to expert opinion.

3. Engelman contends that the trial court erred in denying her motions to compel discovery from a nonparty. Each of the motions is relevant to Engelman’s legal malpractice claim, and because the trial court correctly granted summary judgment in favor of the attorneys and KSS on Engelman’s claim for legal malpractice, the motions are now moot. See generally Hackney v. American Prescription Providers of Ga., 258 Ga. App. 130 (572 SE2d 765) (2002).

Case No. A16A1872

4. KSS and the attorneys contend that the trial court erred by denying their motion for summary judgment on Engelman’s breach of fiduciary duty/fraud claim. We need not address this issue due to our conclusion in Division 2.

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

Barnes, P. J., and Self, J., concur.

Decided February 16, 2017

Adkins Law, Tamela L. Adkins, George M. Cabaniss, Jr., for appellant.

Hawkins Parnell Thackston & Young, Christine L. Mast, Teresa E. Lazzaroni, for appellees.

       Engelman claims that the trial court erred by not addressing all of the alleged breaches of the standard of care raised by her experts. However, the record shows that the trial court addressed each of the breaches of standard of care posited by Jan McKinney. As to Engelman’s claim that the trial court erred by not considering the expert opinion of Alan Mullinax, her attorney suspended his deposition and later sent an e-mail to counsel for the attorneys and KSS confirming that, “[w]e will not be using Alan Mullinax as a trial expert in this case.” Regarding Clark Cunningham’s opinion, he deposed that he was not asked to give “an expert opinion on legal malpractice” and he acknowledged that he was not “giving opinions ... relating to whether [KSS and the attorneys] violated the standard of care.” He further deposed that he “was not offering an opinion that the hourly rate charged either in the employment agreement or subsequently was unreasonable . .. [and] he would be cautious to offer such an opinion. I think that opinion is better offered by an expert in the practice area, which I am not.”


source: Caselaw Access Project

author: Branch, Judge.

license: Public Domain

text:
    A16A1890.
    BURROWES v. BANK OF AMERICA, N.A.
    (797 SE2d 493)
   Branch, Judge.

After Bank of America, N.A. (“BOA” or “the Bank”), was served with a garnishment action naming Celio O. Burrowes as the defendant, the Bank stopped payment on a cashier’s check which was purchased with funds from Burrowes’s BOA checking account and which named Burrowes as the payee. Burrowes then filed suit against BOA in Fulton County Superior Court, asserting that the Bank had wrongfully refused to honor the check in violation of Georgia’s Commercial Code. The trial court granted BOA’s motion for summary judgment and denied Burrowes’s cross-motion. Burrowes now appeals from that order, arguing that as a matter of law, the Bank was required to honor the cashier’s check. For reasons explained more fully below, we find no error and affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). “On an appeal from a grant of summary judgment, we review the record de novo, construing the evidence and all reasonable inferences that can be drawn from it in the light most favorable to the party opposing the summary judgment motion.” Howerton v. Harbin Clinic, 333 Ga. App. 191-192 (776 SE2d 288) (2015) (citation omitted).

Here, the relevant facts are undisputed and show that in February 2015, Burrowes maintained a checking account with BOA. On February 6, 2015, Sheffield Properties, LLC, filed a garnishment action in DeKalb County State Court naming Burrowes as the defendant and BOA as the garnishee. The garnishment sought $143,199.85, and the Bank was served with this action at its office in Decatur at 9:20 a.m. on February 11, 2015. At that time, Burrowes’s checking account had a balance of $88,013.61. Shortly after 2:00 p.m. on February 11, Burrowes visited the Bank’s Peachtree Battle branch and sought to withdraw approximately $77,100 from his checking account. The Peachtree Battle branch did not have that amount of cash available, so the branch manager recommended that Burrowes take $10,000 in cash and the remainder in the form of a cashier’s check. Burrowes agreed, and at 2:35 p.m. the Bank issued Burrowes a cashier’s check in the amount of $67,100, with the check naming Burrowes as both the remitter and the payee. When it issued the cashier’s check, the Peachtree Battle branch was unaware of the garnishment action.

At 3:46 p.m. on that same afternoon (February 11, 2015), Jennifer Aldrich, the Lead Operations Representative in BOA’s Legal Order Processing and Fulfillment Department, placed a garnishment freeze on Burrowes’s checking account. At that time, Aldrich learned of the cashier’s check that had been purchased less than two hours earlier with funds from Burrowes’s account. Because the check had been purchased after the Bank had been served with the garnishment summons, Aldrich immediately placed a stop-payment order on the cashier’s check, which became effective the following day Aldrich also requested that a Bank employee from the Peachtree Battle branch contact Burrowes and ask him to return the check, and BOA’s records reflect that the employee complied with this request.

Burrowes did not return the check. Instead, on February 17, 2015, Burrowes deposited the cashier’s check in an account he had with New Bridge Bank in Greensboro, North Carolina. The following day, New Bridge informed Burrowes that BOA had refused to honor the check. Burrowes then filed the current lawsuit against BOA, asserting a claim under Georgia’s Commercial Code. After filing suit against the Bank, Burrowes filed a traverse to the garnishment, and the Bank subsequently paid all monies held on behalf of Burrowes into the court in the garnishment action. The court in the garnishment action thereafter denied Burrowes’s traverse and released the funds in question to the garnishment plaintiff (Sheffield).

In its answer to Burrowes’s complaint, BOA asserted a number of affirmative defenses, including failure of consideration and mistake. The Bank eventually moved for summary judgment, arguing that under the circumstances, its refusal to honor the cashier’s check was proper. Burrowes filed a cross-motion, arguing that the Bank was required to honor the check as a matter of law. Following a hearing on the parties’ cross-motions for summary judgment, the trial court granted the Bank’s motion, denied Burrowes’s motion, and granted judgment in favor of BOA on Burrowes’s claim. This appeal followed.

Burrowes’s claim against the Bank is based on OCGA § 11-3-411, which provides in relevant part:

(b) If [an] obligated bank[] wrongfully (i) refuses to pay a cashier’s check or certified check . . . the person asserting the right to enforce the check is entitled to compensation for expenses and loss of interest resulting from the nonpayment and may recover consequential damages if the obligated bank refuses to pay after receiving notice of particular circumstances giving rise to the damages.

OCGA § 11-3-411 (b). BOA defended against Burrowes’s suit by relying on subsection (c) of this same statute, which states:

(c) Expenses or consequential damages under subsection (b) of this Code section are not recoverable if the refusal of the obligated bank to pay occurs because . . . (ii) the obligated bank asserts a claim or defense of the bank that it has reasonable grounds to believe is available against the person entitled to enforce the instrument;... or (iv) payment is prohibited by law.

OCGA § 11-3-411 (c).

In its motion for summary judgment, BOA argued that its refusal to honor the cashier’s check did not constitute a wrongful refusal to pay because the defenses of mistake and failure of consideration couldbe asserted against Burrowes as the payee. See OCGA § 11-3-411 (c) (ii); Wright v. Trust Co. of Ga., 108 Ga. App. 783, 788-789 (3) (134 SE2d 457) (1963) (where an instrument “is in the hands of the original payee, where no holder in due course is involved, where the payee has not suffered any detriment or changed his position because of reliance on the instrument, the bank may properly defend itself on the basis of mistake and want of consideration”) . On appeal, Burrowes argues that the trial court erred in granting BOA’s motion for summary judgment (and in denying his cross-motion) because at the time he purchased the cashier’s check, the funds it represented were withdrawn from his account and therefore were not subject to garnishment. Burrowes therefore reasons that the Bank could not defend its refusal to honor the check based on mistake or failure of consideration. We disagree, and find that regardless of whether the affirmative defenses asserted by BOA apply in this case, Burrowes is not entitled to recover on his claim under OCGA § 11-3-411 (b) because payment of the cashier’s check was prohibited by law. See OCGA § 11-3-411 (c) (iv).

At the time of trial, Georgia’s garnishment law provided, in relevant part:

All property, money or other effects of the defendant in the possession or control of the garnishee at the time of service of the summons of garnishment upon the garnishee or coming into the possession or control of the garnishee at any time from the date of service of the summons of garnishment upon the garnishee to the date of the garnishee’s answer[] shall be subject to the process of garnishment^]

OCGA § 18-4-20 (c) (2015). Under the plain language of the garnishment statute, therefore, if the funds for the cashier’s check belonged to Burrowes even after they were transferred from his account, and if those funds were within the control of BOA, then they were subject to garnishment.

“A cashier’s check is a check drawn by a bank on itself.” Weldon v. Trust Co. Bank of Columbus, 231 Ga. App. 458, 460 (1) (499 SE2d 393) (1998) (citation omitted). See also OCGA § 11-3-104 (g) (defining “cashier’s check” as “a draft with respect to which the drawer and drawee are the same bank or branches of the same bank”). Thus, the funds given in exchange for such a check go into an account belonging to the bank. Weldon, 231 Ga. App. at 460 (1). See also Wright, 108 Ga. App. at 787 (3). And the issuance of the cashier’s check “operates as an assignment of funds to the payee” — i.e., those funds, although held by the bank, are viewed as the property of the payee. Weldon, 231 Ga. App. at 460 (1) (citation omitted). As Burrowes’s own brief acknowledges, therefore, at the time Burrowes purchased the cashier’s check, funds were debited from his account and transferred into an account belonging to BOA. The funds, however, were assigned to Burrowes and were viewed as Burrowes’s legal property Thus, because the funds represented by the cashier’s check were the property of Burrowes (the debtor) and were within the control of BOA (the garnishee), former OCGA § 18-4-20 (c) required that the Bank pay those funds into the court in the garnishment action. It follows, therefore, that BOA acted properly in refusing to honor the cashier’s check at issue. Accordingly, the trial court did not err in granting summary judgment to BOA on Burrowes’s claim, and we therefore affirm that order.

Decided February 16, 2017.

Martin & Martin, Thomas F. Martin, for appellant.

McGuireWoods, Michael T. Hosmer; Weissmann Zucker Euster Morochnik, Paul J. Morochnik, for appellee.

Judgment affirmed.

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

       “ ‘Remitter’ means a person who purchases an instrument from its issuer if the instrument is payable to an identified person other than the purchaser.” OCGA § 11-3-103 (a) (11). Thus, when a customer purchases a cashier’s check from a bank, “[t]he customer’s name may appear on the check as remitter to identify who bought it.” Black’s Law Dictionary (10th ed. 2014).

       The statute defines “obligated bank” as “the acceptor of a certified check or the issuer of a cashier’s check or teller’s check bought from the issuer.” OCGA § 11-3-411 (a).

       The Bank reasoned that the defense of mistake applied because at the time the Peachtree Battle branch issued the cashier’s check, it was unaware of the garnishment and therefore mistakenly believed that the funds in Burrowes’s checking account were available to purchase that check. Additionally, BOA asserted that because it was required to pay the funds in Burrowes’s checking account into the court in the garnishment action, the cashier’s check was issued without consideration.

       In his reply brief, Burrowes also argues that BOA breached a fiduciary duty it owed him as a customer when it failed to advise him that a cashier’s check could be dishonored. Burrowes contends that had he been informed of that fact, he would have declined the suggestion of a cashier’s check and would have insisted on receiving his entire withdrawal in cash. Burrowes, however, neither raised nor argued a breach of fiduciary duty claim in the trial court, and he cannot raise such a claim for the first time on appeal. See Pfeiffer v. Ga. Dept. of Transp., 275 Ga. 827, 828 (2) (573 SE2d 389) (2002).

       The trial took place in March 2016. Georgia’s garnishment statute, OCGA§ 18-4-1 et seq., was amended effective May 12, 2016.

       The former garnishment statute required that a garnishee’s answer “be filed . . . not sooner than 30 days and not later than 45 days after the service of the summons . . . .” OCGA § 18-4-62 (a) (2015).


author: Ray, Judge.

text:
    A16A1954.
    PERSON v. THE STATE.
    (797 SE2d 172)
   Ray, Judge.

Following a jury trial, Ladarius Person was convicted of one count each of aggravated assault, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon. Person appeals from his convictions and the denial of his motion for new trial, contending that the trial court erred (1) in admitting testimony of a prior difficulty involving a witness; and (2) by commenting on the evidence at trial. Person also contends that he received ineffective assistance of counsel. For the following reasons, we affirm.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to support the jury’s verdict, and the defendant no longer enjoys a presumption of innocence.” (Citation omitted.) Hall v. State, 335 Ga. App. 895, 895 (783 SE2d 400) (2016). The evidence at trial showed that on January 28, 2012, the victim, Jarvis Meadows, had just arrived at his residence when Person’s girlfriend, Kawantis Haynes, approached Meadows and asked him for gas money and a ride to the gas station. Haynes explained that she had taken Person’s car without permission and had run out of gas on the way to Meadows’s residence. Meadows agreed to assist Haynes, and the two drove to a gas station with a gas container to purchase some gas. Meadows then took Haynes back to Person’s car. As Meadows was pouring the contents of the gas container into the car, Person arrived in another vehicle and an argument between Person and Haynes ensued. When Person slapped Haynes, Meadows came to her defense by punching Person in the face. Person then pulled out a handgun and chased Meadows down the street.

An eyewitness, Bertha Harris, gave a consistent account of the incident. Harris testified that she was standing at her front door when she observed two men and a woman “scuffling” in the street in front of her home. Harris further testified that she observed one of the men pull out an object that looked like a handgun and chase the other man and woman down the street.

After Person pulled out the handgun, Meadows ran about three blocks toward his house before again encountering Person, who was now in a vehicle. According to Meadows, Person pointed the handgun out of the window and started shooting at him, striking him once in the hip.

At trial, the State was allowed to elicit testimony from Meadows concerning an earlier incident in which Meadows had intervened in a physical altercation between Person and Haynes.

In the indictment, Person was charged with two counts of aggravated assault, one for pointing a handgun at Meadows (Count 1) and the other for later shooting the handgun at him (Count 2). Person was also charged with possession of a firearm during the commission of a felony (Count 3) and possession of a firearm by a convicted felon (Count 4). The trial court had initially bifurcated the proceedings so that the jury would not be aware that Person had been charged with possession of a firearm by a convicted felon until it had reached a verdict on the other counts of the indictment. However, Person chose to testify in his own defense at trial and, during his testimony on direct, admitted that he had a prior felony conviction for possession of marijuana with intent to distribute. At the conclusion of Person’s testimony, the State asked the trial court to read to the jury Count 4 of the indictment, which charged Person with possession of a firearm by a convicted felon. The State then moved to admit a certified copy of his prior felony conviction into evidence for the purposes of impeachment, as well as for the purposes of proving Count 4 of the indictment. Person’s trial counsel stated that he had no objection to the State’s requests, and the trial court read Count 4 of the indictment to the jury and admitted the certified copy of Person’s prior felony conviction into evidence.

After considering the above evidence, the jury convicted Person of aggravated assault for pulling out the handgun and pointing it at Meadows, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon. The jury found Person not guilty of the remaining charge of aggravated assault, which alleged that Person shot at Meadows with a handgun. This appeal ensued.

1. Person contends that the trial court erred in admitting the evidence of the prior difficulty between Person and Haynes. Specifically, he argues that Haynes was not the alleged victim of the aggravated assault offenses for which Person stood charged and, thus, that the State was required to provide reasonable notice of its intention to introduce evidence of the prior difficulty pursuant to OCGA § 24-4-404 (b). We find his argument to be unavailing.

Pursuant to OCGA § 24-4-404 (b):

Evidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. The prosecution in a criminal proceeding shall provide reasonable notice to the defense in advance of trial, unless pretrial notice is excused by the court upon good cause shown, of the general nature of any such evidence it intends to introduce at trial. Notice shall not be required when the evidence of prior crimes, wrongs, or acts is offered to prove the circumstances immediately surrounding the charged crime, motive, or prior difficulties between the accused and the alleged victim.

(Emphasis supplied.) It is well settled that “[a] trial court’s decision to admit other acts evidence will be overturned only where there is a clear abuse of discretion.” (Citation and punctuation omitted.) Green v. State, 339 Ga. App. 263, 265 (1) (793 SE2d 156) (2016).

On the morning of trial, the State made a motion to allow the introduction of the prior difficulty in which Meadows observed Person physically attack Haynes, causing Meadows to come to Haynes’s defense. The State sought to introduce such evidence to show Person’s intent and motive, arguing that the prior difficulty between Person and Haynes “is what set the stage” for the crime against Meadows and the resulting charges for which Person was on trial. Over Person’s objection, the trial court allowed testimony concerning the prior difficulty to be admitted into evidence.

Meadows testified that, two or three months before the incident in question, he observed Person grabbing Haynes “like he’s fixing to choke her.” When Meadows intervened in that altercation, Person relented and left the scene. With regard to the incident for which Person was on trial, Meadows testified that Person physically assaulted Haynes, and Meadows intervened again, only this time Person pulled out a handgun.

For there to be a probative connection between the prior difficultly] and the present case, there must be some link of association, something which draws together the preceding and subsequent acts, something which gives color of cause and effect to the transaction, and sheds light upon the motive of the parties.

(Citation and punctuation omitted.) Sheppard v. State, 267 Ga. 276, 279 (3) (476 SE2d 760) (1996).

Although Person is correct that Haynes is not the victim of the crimes for which Person stood trial in this case, the prior difficulty that the trial court admitted into evidence did not involve only Person and Haynes. The prior difficulty also involved Meadows, who felt compelled to confront Person during both altercations between Person and Haynes. See Sheppard, supra at 277-279 (3) (testimony regarding defendant’s prior difficulties with a witness was admissible because the victim was involved in some of those prior difficulties, and the circumstances leading up to the charged crime stemmed from the defendant’s prior difficulties with the witness). Thus, Meadows’s acts of intervening in both of the physical altercations between Person and Haynes was admissible to show the circumstances surrounding the charged crimes and the state of feelings between Person and Meadows that existed at the time of the crimes in this case. Furthermore, evidence of the prior difficulty “draw[s] together the preceding and subsequent acts and give[s] color of cause and effect to the transaction,” shedding light upon the motive of the parties. (Citation and punctuation omitted.) Id. at 279 (3). Without showing Person’s previous physical abuse of Haynes, the State would have been unable to adequately explain Meadows’s decision to intervene in the subsequent altercation between Person and Haynes or to demonstrate the level of hostility that existed between Person and Meadows at the time of the physical confrontation which resulted in the charges for which Person was prosecuted. Id.

Based on the evidence of Meadows’s intervention in the two altercations between Person and Haynes, a jury would be authorized to conclude that Person’s actions toward Meadows were motivated by his desire to retaliate against Meadows for continuing to intervene in Person’s physical abuse of Haynes. Thus, the trial court was authorized to find that the prior difficulty was relevant to show motive, which is “the reason that nudges the will and prods the mind to indulge the criminal intent.” (Citation and punctuation omitted.) Anthony v. State, 298 Ga. 827, 832 (4) (785 SE2d 277) (2016).

Lastly, as the prior difficulty was offered to prove the circumstances immediately surrounding the charged crime and the motive, the State was not required to provide notice in advance of trial of its intent to introduce such evidence. See OCGA § 24-4-404 (b).

Based on the grounds asserted by Person on appeal, we conclude that the trial court did not abuse its discretion in admitting evidence of the prior difficulty

2. The more interesting issues in this case surround Person’s decision on direct examination to admit that he had previously been convicted of a felony, such conviction which was the predicate for the charge of possession of a firearm by a convicted felon (Count 4). The trial court had bifurcated the proceedings so that the jury would not be aware of Person’s conviction until it had passed judgment on the other charges.

(a) Following Person’s testimony on direct, the State moved to admit a certified copy of his conviction into evidence for the purposes of impeachment, as well as for the purposes of proving the offense of possession of a firearm by a convicted felon in Count 4 of the indictment. When defense counsel stated that he had no objection, the trial court ruled that the certified copy of the conviction would be admitted “in regard to each one of the elements that [the prosecuting attorney] just stated.” Person now contends that the trial court’s statement was an improper comment on the evidence and an expression of opinion as to Person’s guilt. We disagree.

Pursuant to OCGA § 17-8-57, a judge is not allowed to express or intimate to the jury an opinion as to whether a fact at issue has or has not been proved or as to the defendant’s guilt. On appeal, we review alleged violations of the statute under the plain error standard, even if the aggrieved party fails to object at trial. See State v. Gardner, 286 Ga. 633, 634 (690 SE2d 164) (2010).

After our review of the colloquy between the trial court and counsel, we conclude that the trial court did not express or intimate its opinion with regard to Person’s guilt or make a statement with respect to what had been proven. Rather, the trial court was announcing its ruling on the admissibility of the evidence and the purposes for which the jury could consider it. OCGA § 17-8-57 “does not generally extend to colloquies between the judge and counsel regarding the admissibility of evidence[,] . . . [and] remarks of a judge assigning a reason for his ruling are neither an expression of opinion nor a comment on the evidence.” (Citation and punctuation omitted.) Pyatt v. State, 298 Ga. 742, 748 (3) (784 SE2d 759) (2016). Accord Graves v. State, 322 Ga. App. 24, 27 (1) (743 SE2d 582) (2013) (“Pertinent remarks made by a trial court in discussing the admissibility of evidence or explaining its rulings do not constitute prohibited expressions of opinion”) (citations and punctuation omitted).

Furthermore, any perceived ambiguity in the trial court’s ruling was resolved by the trial court in its charge to the jury, wherein it instructed the jury, in pertinent part, as follows:

By no ruling or comment that the [c]ourt has made during the progress of the trial has the [c]ourt intended to express any opinion upon the facts of this case, upon the credibility of the witnesses, upon the evidence, or upon the guilt or innocence of the [defendant. Your verdict should be a true verdict based upon your opinion of the evidence according to the law given to you in this charge.

For the above reasons, Person’s argument provides no basis for reversal.

(b) Person also contends that his trial counsel was ineffective for failing to request that the trial court give a limiting instruction to the jury after his prior conviction was admitted into evidence. Again, we disagree.

To prevail on a claim of ineffective assistance of trial counsel, appellant must show counsel’s performance was deficient and that the deficient performance prejudiced him to the point that a reasonable probability exists that, but for counsel’s errors, the outcome of the trial would have been different,. The failure to show either prong is fatal to appellant’s ineffectiveness claim.

(Citations and punctuation omitted.) Massey v. State, 306 Ga. App. 180, 184 (4) (702 SE2d 34) (2010).

Where a defendant is on trial for the offense of possession of a firearm by a convicted felon, along with other unrelated criminal offenses, and the State introduces the defendant’s prior conviction for the purpose of proving the defendant’s status asa convicted felon, the trial court must, upon request, instruct the jurors not to consider evidence of the defendant’s prior felony conviction in deciding his guilt or innocence of any of the charges other than the possession of a firearm by a convicted felon charge. See Barnett v. State, 215 Ga. App. 46, 47 (2) (449 SE2d 651) (1994).

Decided February 16, 2017.

Gregory K. Johnson, Jr., for appellant.

Julia F. Slater, District Attorney, Jennifer E. Dunlap, Assistant District Attorney, for appellee.

In this case, however, it was Person himself, not the State, who first alerted the jury to his prior felony conviction. The certified copy of his conviction that was admitted was merely cumulative of the evidence that Person introduced. Even assuming that trial counsel was deficient in failing to request a limiting instruction after the State introduced the certified copy of his conviction, Person has not established that he was prejudiced by trial counsel’s performance. Given the testimony from Meadows and the eyewitness, Bertha Harris, as well as the fact that Person had himself first told the jury about his conviction, we conclude that it is highly probable that any failure to request a limiting instruction when the State introduced the certified copy of the conviction did not contribute to the guilty verdict.

Judgment affirmed.

Doyle, C. J., and Andrews, J., concur.

       We note that an argument could be made that trial counsel was deficient by soliciting testimony from Person on direct regarding his prior conviction. However, such alleged error was neither argued below nor raised as error in this appeal, and we will not consider the same.


author: MILLER, Presiding Judge.

text:
    A16A2084.
    ORDELT v. THE STATE.
    (797 SE2d 167)
   MILLER, Presiding Judge.

Following a jury trial, Matthew Ordelt was convicted of one count of aggravated stalking (OCGA § 16-5-91). Ordelt filed a motion for new trial, which the trial court denied. On appeal, Ordelt contends that there was insufficient evidence to sustain his conviction. After a thorough review of the record, we discern no error and affirm.

“On appeal from a criminal conviction, a defendant no longer enjoys the presumption of innocence, and the evidence is viewed in the light most favorable to the guilty verdict.” (Citation and punctuation omitted.) Scarborough v. State, 317 Ga. App. 523 (731 SE2d 396) (2012).

So viewed, the evidence shows that Ordelt and the victim met in the summer of 2012, and they moved in together about a year later. The apartment and utilities were in the victim’s name, and she was solely responsible for payment of rent and utilities.

Less than a month later, the victim found Ordelt unconscious on the porch of their home from a drug overdose. Ordelt was taken to the hospital, where he remained for approximately a month due to kidney failure. Ordelt made the victim feel very guilty and blamed his health issues on her failure to call 911 sooner. As a result of his hospitalization, Ordelt lost his job, and the victim had to work six days a week to try to support both herself and Ordelt. Ordelt and the victim began to drink heavily, and Ordelt resumed his drug use. Ordelt also stole money from the victim to sustain his habits.

In October 2013, Ordelt punched the victim in the face for turning on the light to look for something while he was sleeping. After punching the victim in the face, Ordelt laughed and crawled back into bed. From that time on, Ordelt was frequently violent toward the victim, including throwing the victim against the wall, holding her prisoner in her own home, and trying to choke her. On one occasion, Ordelt even tried to scratch out the victim’s left eye, leaving a scar under her eye. On that occasion the victim had to barricade herself in the bathroom and call her co-workers to come help her. Ordelt also threatened to kill the victim if she went to the police, so she let the abuse continue.

In December 2013, Ordelt left the apartment he shared with the victim and did not return for the next two days. The victim eventually found Ordelt at a hospital emergency room with stitches from the middle of his forehead down to the tip of his nose due to a cut he sustained while he was high on methamphetamine and was running from the police. The victim decided she had enough, and she unsuccessfully attempted to evict Ordelt. In January 2014, after Ordelt learned of the victim’s attempt to evict him, he told her that if she tried to evict him again, he would make her life hell. From that time on, Ordelt’s violence toward the victim increased.

On February 12, 2014, Ordelt coerced the victim into giving him money to go out to eat even though she had past due bills. When Ordelt returned, he and the victim argued. The victim tried to walk out of the kitchen, but Ordelt shoved her back against the wall and she fell. The victim again tried to walk out, and Ordelt pushed her again, twice as hard. The third time the victim tried to walk out, Ordelt kicked her legs out from under her. The victim then tried to run past him, but Ordelt tackled her onto the bed. The victim kicked and screamed and asked for help. Ordelt finally got off of the victim after she bit him, and then the victim locked herself in the bathroom.

The victim’s neighbors called the police; however, Ordelt ran from the scene when officers arrived. The officers met with the victim, who initially told them that she had been watching a movie. The victim, however, had fresh marks on her cheeks and redness on her chin, as well as fresh bruising and abrasions on her arms. The officers noted the fresh bruising and abrasions on the victim, and she eventually told them that she and Ordelt had a verbal dispute that escalated to physical violence. The officers obtained a warrant against Ordelt for family violence battery, and they told the victim to call if Ordelt returned to the apartment. The victim called police when Ordelt returned a few hours later and tried to gain entry to the apartment. By the time officers arrived, Ordelt had fled. Ordelt was charged with battery against the victim, but eventually pled guilty to disorderly conduct.

After he was released from jail for his attack on the victim, Ordelt appeared at the victim’s job. That same day, the victim petitioned for and obtained an ex parte Family Violence Protective Order (the “Protective Order”), which prohibited Ordelt from

doing, or attempting to do, or threatening to do, any act of injury, maltreating, molesting, following, harassing, harming or abusing the [victim] in any manner. [Ordelt] is not to interfere with [victim’s] travel, transportation, or communication. [Ordelt] shall not follow, place under surveillance, or contact the [victim] at any place of the [victim] for the purpose of harassing and intimidating the [victim].

The victim was awarded sole possession of the apartment she once shared with Ordelt, and he was ordered to stay away from the apartment and her workplace. Ordelt was further ordered not to have “any contact, direct, indirect, or through another person with [the victim], by telephone, pager, fax, e-mail or any other means of communication except as specified in [the Protective Order].” The Protective Order also contained a section concerning removal of Ordelt’s property from the apartment; however, nothing is filled in the blanks of that section.

The Cobb County Sheriff’s Department served the Protective Order on Ordelt the same day that it was issued. Ordelt told the sheriff that he would call the following day to schedule a time for the supervised removal of his belongings from the apartment. The Sheriff’s Department arranged with the victim to have Ordelt pick up his belongings on July 7, 2014, however, Ordelt never responded to confirm this time.

After entry and service of the Protective Order, and despite the provision prohibiting him from indirectly contacting the victim, Ordelt sent Facebook and text messages to the victim’s mother and best friend professing his love for the victim. He also had a mutual friend contact the victim about having the friend pick up Ordelt’s property Although the friend never showed up, the victim agreed to this arrangement.

Instead of scheduling supervision through the Sheriff’s Department, Ordelt called the Marietta Police Department to request that an officer immediately meet him at the victim’s apartment for purposes of obtaining his belongings. When the first officer arrived on the scene, she talked to Ordelt outside the apartment and proceeded to the victim’s unit. The victim showed the first officer the Protective Order and explained that she wanted Ordelt to leave immediately The first officer then spoke to Ordelt again, explained to him that he needed to arrange a time through the Sheriff’s Department, not the Marietta Police Department, and told him he needed to leave. Ordelt indicated he would schedule a time through the Sheriff’s Department and left without incident.

On July 13,2014, Ordelt again called the Marietta Police Department and asked them to meet him immediately at the victim’s apartment to retrieve his property. Upon hearing this dispatch, the first officer radioed the second officer, who was en route to the call, and advised that Ordelt knew the proper procedure to follow, and he had been told not to return. Dispatch attempted to call Ordelt back to tell him to leave; however, he did not answer his phone.

When the second officer arrived, she did not immediately locate Ordelt, so she drove around looking for him, then parked her patrol car and headed to the victim’s apartment. While the second officer was talking to the victim, Ordelt walked up the stairs and came within approximately 150 feet of the victim and the second officer. The second officer testified that the victim “looked very afraid and told me, that’s him right there. And she started shaking.”

The second officer told the victim to close the door, and she took Ordelt outside. Ordelt stated that he saw the empty patrol car and assumed that the officer was waiting inside the victim’s apartment for him. The second officer told Ordelt that he knew he needed to go through the Sheriff’s Department. Ordelt responded that he was aware that he needed to schedule through the Sheriff’s Department, “but [that] they only work Monday through Friday and that didn’t work for him.” The second officer then arrested Ordelt for violating the Protective Order. Even after his arrest, the victim remained deeply concerned about when Ordelt would be released because she feared he would come after her.

Ordelt was subsequently indicted for and convicted of aggravated stalking for violating the Protective Order by unlawfully contacting the victim at her apartment without her consent for the purpose of harassing and intimidating her. On appeal, Ordelt contends that the evidence was insufficient to support his conviction. After a thorough review of the record, we disagree.

When a defendant alleges that the evidence is insufficient to support his conviction, we review the evidence in the light most favorable to the jury’s verdict to determine if a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

A person commits the offense of aggravated stalking when such person, in violation of a . . . temporary protective order... contacts another person at or about a place or places without the consent of the other person for the purpose of harassing and intimidating the other person.

OCGA § 16-5-91 (a).

This Court looks to the definitions contained in the simple stalking statute to analyze the elements of the aggravated stalking statute. Seibert v. State, 321 Ga. App. 243, 244 (739 SE2d 91) (2013) (“[t]he definitions contained in the simple stalking statute are applicable here, because the legislature has made clear that the simple stalking statute defines terms for the purposes of the entire article on stalking in the Georgia Code”) (punctuation omitted) (citing State v. Burke, 287 Ga. 377, 378 (695 SE2d 649) (2010) and quoting OCGA § 16-5-90 (a) (1)).

(a) Contact

The statute defines “contact” as “any communication including without being limited to communication in person, by telephone, by mail, by broadcast, by computer, by computer network, or by any other electronic device[.]” OCGA § 16-5-90 (a) (1). We find the evidence sufficient to establish that Ordelt contacted the victim in person when he arrived unannounced at her apartment without coordinating with the Sheriff’s Department after he was explicitly informed by the Marietta Police Department that they would not assist him in retrieving his property Even though Ordelt was not able to speak to the victim directly before the second officer stopped him, Ordelt’s ambush appearance at the victim’s apartment under these circumstances is sufficient evidence of in-person “contact” under the aggravated stalking statute. See Jackson v. State, 334 Ga. App. 368, 371 (1) (a) (779 SE2d 427) (2015) (the crime of aggravated stalking was completed when the defendant arrived uninvited at the door of the victim’s house in violation of the conditions of his pretrial release).

Moreover, Ordelt’s argument that he did not contact the victim because they did not exchange words imposes an overly narrow definition of “contact.” Under Ordelt’s interpretation of the statute, a stalker could terrorize his victim with impunity so long as he remained silent upon showing up at her residence. We will not interpret the aggravated stalking statute this way as it would lead to a clearly absurd result. See State v. Mussman, 289 Ga. 586, 589 (1) (713 SE2d 822) (2011) (we do not interpret statutes in ways which lead to absurd results).

(b) Harassing and Intimidating

Next we must determine whether Ordelt acted with the purpose of harassing and intimidating the victim. “Harassing and intimidating” is defined as

... a knowing and willful course of conduct directed at a specific person which causes emotional distress by placing such person in reasonable fear for such person’s safety or the safety of a member of his or her immediate family, by establishing a pattern of harassing and intimidating behavior, and which serves no legitimate purpose. . . .

OCGA § 16-5-90 (a) (1).

“Even a single violation of a protective order may violate [the aggravated stalking statute] if that violation is part of a pattern of harassing and intimidating behavior.” (Citation omitted.) Brooks v. State, 313 Ga. App. 789, 792 (1) (723 SE2d 29) (2012).

In considering whether evidence shows [a pattern of harassing and intimidating behavior], the jury can consider a number of factors, including the prior history between the parties, the defendant’s surreptitious conduct, as well as his overtly confrontational acts[ ] and any attempts by the defendant to contact, communicate with, or control the victim indirectly.

(Citation and punctuation omitted.) Slaughter v. State, 327 Ga. App. 593, 596 (1) (a) (760 SE2d 609) (2014). Moreover, it is unnecessary for a defendant’s behavior to be overtly hostile to constitute harassment and intimidation. Id.

Ordelt argues that his behavior cannot be considered harassing and intimidating because he went to the victim’s apartment for the legitimate purpose of obtaining his property. The evidence was sufficient, however, for the jury to find that Ordelt’s behavior was a continuation of his pattern of harassing and intimidating behavior toward the victim without a legitimate purpose, even though Ordelt called the police before going to the victim’s apartment, because he knew he had to schedule with the Sheriff’s Department and deliberately failed to follow this procedure on two occasions. Baker v. Williams, 279 Ga. 782, 785 (621 SE2d 449) (2005) (two related instances of stalking behavior within the span of a single week were sufficient to establish aggravated stalking).

Further, Ordelt’s intent in arriving unannounced at the victim’s apartment was for the jury to determine. Davidson v. State, 295 Ga. App. 702, 705-706 (673 SE2d 91) (2009). The jury did not have to find Ordelt’s purportedly legitimate reason for being present at the victim’s apartment to be credible. See Oliver v. State, 325 Ga. App. 649, 653 (2) (753 SE2d 468) (2014) (trier of fact not required to believe defendant’s testimony that she arrived at her mother’s house in violation of protective order for purpose of seeking medical help).

Decided February 16, 2017

Strickland Webster, Sydney R. Strickland, for appellant.

D. Victor Reynolds, District Attorney, Michael S. Carlson, John R. Edwards, Assistant District Attorneys, for appellee.

Here, soon after he was served with the Protective Order, Ordelt twice appeared unannounced at the victim’s apartment in express violation of the procedure he was told to follow to retrieve his possessions. In addition to considering the behavior that resulted in his arrest, the jury was authorized to consider the other evidence of Ordelt’s prior behavior toward the victim, including the extensive evidence of Ordelt’s prior physical and psychological abuse, which placed the victim in reasonable fear for her safety; Ordelt’s promise to make her life hell if she tried to evict him from the apartment; the evidence showing that Ordelt’s abuse only stopped because he was incarcerated; the fact that Ordelt resumed his contact with the victim upon his release; and the evidence showing that, even after entry of the Protective Order, Ordelt attempted to indirectly contact the victim through her family and friends. Taking this evidence as a whole, the evidence was sufficient for the jury to conclude that Ordelt intended to harass and intimidate the victim by showing up unexpectedly and that he was not there for a legitimate purpose.

Accordingly, we find that the evidence was sufficient for the jury to find the essential elements of aggravated stalking beyond a reasonable doubt, and thus, we affirm Ordelt’s conviction.

Judgment affirmed.

McFadden, P. J., concurs. McMillian, J., concurs in judgment only.

       The Protective Order contains a misnomer in the victim’s name; however, Ordelt has never raised this misnomer as a challenge to his conviction.

       The Protective Order has a paragraph which was intended to be a more specific restriction as to how far away from the victim Ordelt was required to stay; however, that paragraph contains a typographical error and, thus, fails to designate a distance.

       For personnel reasons, this Sheriff’s Department typically only will provide supervision for property removal during Monday through Friday. If an individual is interested in scheduling a time on the weekend, the Sheriff’s Department will instruct him or her to call the local police to see if the local police are willing to provide the necessary supervision.

       Ordelt told the second officer that he did not have a phone; however, his friend saw him with his phone when she dropped him off that day, and a phone was on his person when he was arrested.

       Ordelt had no car and was staying with a friend who was only able to bring him to the victim’s apartment on weekends.

       After Ordelt’s arrest for violating the Protective Order, the Superior Court of Cobb County held a final hearing on the victim’s petition and entered a Family Violence Twelve Month Protective Order. There is no allegation on appeal that Ordelt has violated this order.

       Ordelt does this through several enumerations, which we address collectively.

       Ordelt does not argue on appeal that he had the victim’s consent to appear at her apartment.

       Contrary to Ordelt’s argument, the present case is distinguishable from Seibert, supra, 321 Ga. App. at 244-245 because, in that case, there was no evidence that the victim received the letter which purportedly violated the protective order’s prohibition on contact. Here, there is no question that the victim was aware of Ordelt’s contact because she was the one who fearfully identified Ordelt to the second officer.


text:
    A16A1747.
    GILREATH v. SMITH et al.
    (797 SE2d 177)
   Branch, Judge.

While pet sitting for Bruce and Jodi Smith, Josephine Gilreath was attacked and injured by the Smiths’ rooster, which caused a serious infection with long-term consequences. Gilreath filed suit, but the trial court granted summary judgment in favor of the Smiths on the ground that Gilreath assumed the risk. Gilreath appeals.

A party is entitled to summary judgment if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). On appeal from the grant of summary judgment, we construe the evidence most favorably toward the nonmoving party, who is given the benefit of all reasonable doubts and possible inferences. The party opposing summary judgment is not required to produce evidence demanding judgment for it, but is only required to present evidence that raises a genuine issue of material fact.

Ansley v. Raczka-Long, 293 Ga. 138, 140 (2) (744 SE2d 55) (2013) (citations omitted); see also Home Builders Assn. of Savannah v. Chatham County, 276 Ga. 243, 245 (1) (577 SE2d 564) (2003). Our review is de novo. Ansley, 293 Ga. at 140 (2).

Construed in favor of Gilreath, the record shows that for approximately nine years prior to the incident, Gilreath was self-employed as a pet sitter doing business as Crabapple Critters. During that time, she took care of, in her own words, “horses, dogs, cats, all sorts of animals.” Gilreath belongs to the National Association of Professional Pet Sitters. Although she had worked briefly on two farms, taking care of horses, prior to working for the Smiths, Gilreath did not have any training or experience with chickens. Gilreath testified that as a pet sitter, she has a responsibility “to a point” to educate herself about the kind of animals she would be working with but that prior to accepting the job with the Smiths, she had not done any research on how to care for roosters and had not heard anything about their temperament.

For several years leading up to the incident, the Smiths had three dogs and some chickens, including at least one rooster named Sam. The chickens, including Sam, were kept in a coop that had two signs on it, one that said “WELCOME” and one that said “CAUTION AREA PATROLLED By Attack Rooster Security Co.” About one year prior to the incident at issue in this case, Sam chased Jodi Smith’s mother, “flew up at her, and hit her in the leg with one of his spurs.” And at some point prior to the incident, Sam had attacked Jodi Smith, as well. But the Smiths never told Gilreath that the rooster had in fact attacked Jodi and her mother.

Starting in about 2012 and prior to the incident at issue in this case, Gilreath provided pet sitting services to the Smiths on at least two occasions, including taking care of the chickens. In October 2013, for example, the Smiths hired Gilreath to watch the animals for four days. On that occasion, Gilreath was instructed, among other things, to feed the chickens, which required Gilreath to open the door to the coop and fill up the water dishes. As a part of the instructions, Jodi Smith informed Gilreath, “You do not have to fill them up if you feel uncomfortable with Sam the Rooster. I use a garbage can lid to separate myself from him.” In January 2014, Gilreath again took care of the Smith animals. In connection with that job, Jodi Smith gave instructions to Gilreath in a Facebook message to “Just throw food into cages. Rooster will attack!” which Gilreath admitted was not vague. In a verified interrogatory response, Gilreath admitted that the Facebook message conveyed that there was “danger of a rooster attack.” Gilreath further admitted that although she had a choice not to take the job, she agreed to feed the chickens, including Sam, after receiving that warning.

Then in April 2014, Jodi Smith again hired Gilreath to pet sit for the same animals, including the rooster. Because Gilreath was also asked to retrieve eggs, Smith knew that Gilreath would have to open the door to the coop to perform her job. Smith did not give Gilreath any additional warnings about the rooster on this occasion. On April 5, Gilreath came to the Smith house and opened the door to the coop to feed the chickens, whereupon the rooster “charged through the upper door,... set upon [her], spurring and pecking her and inflicting deep wounds on her legs.” Gilreath developed infections as a result of the attack and had to undergo months of antibiotic treatments, following which she developed a secondary infection that caused further complications.

In November 2014, Gilreath filed suit, alleging that the Smiths failed to perform their duties to her as owners of land under OCGA § 51-3-1, as keepers of a vicious or dangerous animal under OCGA § 51-2-7, and as required by a Roswell city ordinance. The Smiths answered; raised defenses, including that Gilreath had assumed the risk of the rooster attack; and, following discovery, moved for summary judgment on that ground and others. The trial court granted the motion based on assumption of the risk. The court found that the Smiths had advised Gilreath about the rooster’s propensity to attack on two occasions prior to the incident: in October 2013, when they suggested using a garbage can lid to fend Sam off, and in January 2014, when they warned Gilreath that the “[r]ooster will attack!” The court found that the warnings “were plain, palpable, indisputable and accurately related the risk of the rooster attacking [Gilreath].” The court concluded, therefore, that in April 2014 Gilreath assumed the risk of injury because she had actual knowledge of the danger posed by the rooster yet chose to accept the job to feed the chickens and rooster anyway. Gilreath appeals that ruling.

1. The trial court correctly held that Gilreath assumed the risk of injury based on the law of that doctrine:

The defense of assumption of the risk of danger applies when the plaintiff, with a full appreciation of the danger involved and without restriction of his freedom of choice either by the circumstances or by coercion, deliberately chooses an obviously perilous course of conduct. A defendant asserting an assumption of the risk defense must establish that the plaintiff (1) had knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed himself to those risks. The knowledge requirement does not refer to a comprehension of general, non-specific risks. Rather, the knowledge that a plaintiff who assumes the risk must subjectively possess is that of the specific, particular risk of harm associated with the activity or condition that proximately causes injury.

Bodymasters Sports Indus. v. Wimberley, 232 Ga. App. 170, 173-174 (1) (c) (501 SE2d 556) (1998) (citation and punctuation omitted). In short, “[a] ssumption of the risk isa matter of knowledge of the danger and intelligent acquiescence in it.” Griffiths v. Schafer, 223 Ga. App. 560, 562 (478 SE2d 625) (1996) (citation omitted).

Here, in connection with prior pet sitting at the Smiths, Gilreath had been warned of the relevant danger — that the rooster would attack and that a garbage can lid was useful for controlling the rooster. Gilreath claims that if she had known that the rooster had actually attacked Jodi Smith and Jodi’s mother, she “probably” would not have taken the job. But we fail to see a difference from being warned that the rooster “will attack” from a warning that others had already been attacked. See Lundy v. Stuhr, 185 Ga. App. 72, 74 (363 SE2d 343) (1987) (sign on kennel stating that dog “[w]ill bite” required kennel attendant at a minimum “to exercise special caution to prevent the dog from escaping, to be aware that the dog was unpredictable ..., and might bite”); see also Farmer v. Brannan Auto Parts, 231 Ga. App. 353, 354, 356 (1) (498 SE2d 583) (1998) (summary judgment upheld based in part on warning plaintiff received three months before the injury).

Second, Gilreath has not raised an issue of fact regarding whether the Smiths had superior knowledge of the risks associated with the danger. Although the Smiths knew that the rooster had attacked two people, there is no evidence that they knew that the rooster could cause wounds or infections of the sort that Gilreath suffered. See generally The Landings Assn. v. Williams, 291 Ga. 397, 399 (728 SE2d 577) (2012) (“true ground of liability is the proprietor’s superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property”) (citations and punctuation omitted). Thus even though Gilreath testified that if she had known how dangerous the rooster was, she would not have taken the job, she did not show that the Smiths knew of a greater danger than she did. Moreover, “[o]rdinarily, there is no duty to give warning to the members of a profession against generally known risks.” Lundy, 185 Ga. App. at 74 (citation and punctuation omitted). And Gilreath, a professional pet sitter with at least nine years of experience, admitted that she had a responsibility to educate herself about the animals she takes care of yet failed to do so for roosters. The Smiths cannot be blamed if Gilreath failed to inform herself of those risks.

Third, Gilreath admitted that she chose to take the job knowing that she had been told that the rooster would attack. She admitted that she could have turned down the job but chose not to.

In short, Gilreath had equal knowledge of the danger and risks and acquiesced in exposing herself to the risk without taking any precautions. “Whether a party assumed the risk of his injury is a jury question that should not be decided by summary adjudication unless the defense is conclusively established by plain, palpable and undisputed evidence.”Bodymasters, 232 Ga. App. at 174 (1) (c) (citation and punctuation omitted). But here, as the trial court held, the defense was established in accordance with that standard. See Lundy, 185 Ga. App. at 74 (experienced kennel attendant assumed the risk of being bit when he was warned by sign on dog’s kennel that dog “[wjill bite” yet proceeded to open kennel and care for dog); compare Sutton v. Sutton, 145 Ga. App. 22, 25 (1) (243 SE2d 310) (1978) (defendant knew dangerous and vicious nature of bull to charge a person but failed to warn invitee of this peril).

Decided February 17, 2017.

Lamar, Archer & Cofrin, Robert C. Lamar, Keith A. Pittman, for appellant.

Sharon W. Ware & Associates, Jay F. Eidex, for appellees.

2. Gilreath contends that summary judgment should not have been granted because the Smiths violated OCGA § 51-2-7, which provides:

Aperson who owns or keeps a vicious or dangerous animal of any kind and who, by careless management or by allowing the animal to go at liberty, causes injury to another person who does not provoke the injury by his own act may be liable in damages to the person so injured. In proving vicious propensity, it shall be sufficient to show that the animal was required to be at heel or on a leash by an ordinance of a city, county, or consolidated government, and the said animal was at the time of the occurrence not at heel or on a leash. The foregoing sentence shall not apply to domesticated fowl including roosters with spurs. The foregoing sentence shall not apply to domesticated livestock.

But applying this statute, this Court has held that “[i]f the plaintiff does not present evidence that the owner had superior knowledge of [the animal’s] temperament, then the owner is entitled to summary judgment.” Durham v. Mason, 256 Ga. App. 467, 468 (1) (568 SE2d 530) (2002) (citation omitted). As shown above, Gilreath failed to present any such evidence. Thus Gilreath has provided no evidence to show that the Smiths engaged in careless management of the rooster by asking a professional pet sitter to take care of the rooster, which was kept in a coop, and warning the sitter that the rooster “will attack” and that a garbage can lid can be useful in dealing with the rooster.

3. Gilreath also contends that the Smiths violated a Roswell city ordinance, but she has failed to introduce a certified copy of the ordinance and thus has failed to prove this claim. Sweeney v. Lowe, 325 Ga. App. 883, 883 (755 SE2d 813) (2014).

Judgment affirmed.

Ellington, P. J., and Self, J., concur.

       The Smiths occasionally had additional roosters, but not at the time of the incident in this case.

       Gilreath relies on Shepard v. Street man, 198 Ga. App. 474 (402 SE2d 87) (1991), for the proposition that summary judgment should not be granted because an employer has a duty not to give orders that subject the worker to an unreasonable risk of injury. But that case is distinguishable because Gilreath was asked not simply to perform work near the rooster but to take care of the chickens, which included the rooster, including opening the coop door to do so.


author: DOYLE, Chief Judge.

text:
    A16A1813.
    THE STATE v. MARTINEZ-ARVEALO.
    (797 SE2d 181)
   DOYLE, Chief Judge.

Gerardo Martinez-Arvealo was charged with driving without a license after a traffic stop precipitated by an officer’s check of the vehicle’s license plate. Martinez-Arvealo filed a motion to suppress, arguing that the officer had no reasonable articulable suspicion to stop him despite the fact that the officer’s license plate check returned information that the owner of the vehicle, who was not the same gender as Martinez-Arvealo, was not a licensed driver. The trial court granted the motion to suppress, and the State appeals this order. For the reasons that follow, we affirm.

When reviewing a trial court’s ruling on a motion to suppress, an appellate court must construe the evidentiary record in the light most favorable to the factual findings and judgment of the trial court. This means that the reviewing court generally must accept the trial court’s findings as to disputed facts unless they are clearly erroneous .... Viewed in this way, the evidence at the suppression hearing . . . shows the following.

Officer Tabitha Denson was parked beside a four-way stop at approximately 10:30 p.m. one evening when a vehicle driven by Martinez-Arvealo came to the stop. The officer explained that she often parked her patrol car in a church lot beside the four-way stop to run license plates. The officer ran the license plate number in her cruiser’s computer, and it returned as being registered to an unlicensed owner, Laura Patricia Martinez. The officer explained that the computer system returns information on the owner, including name, which she testified was “clearly” a female name in this instance. Officer Denson testified that “[m]ost times we don’t go that far [to look at the owner’s name or gender]She initially testified “that the information [about the driver’s gender] would have been on the computer, but [she] [couldn’t] say that at this time [whether she] knew ... if [she] looked at the identity, like the gender, of who was actually driving.”

Although there is a light at the four-way stop, Officer Denson testified that at that time of night “you can’t see the driver of a vehicle clearly.” She followed the vehicle after it left the stop, and after the results of the license plate scan came back, she pulled the vehicle over. The officer approached the vehicle, which was occupied by a male driver, later learned to be Martinez-Arvealo, and he presented an international identification card but could not show that he was licensed to drive in the state.

In its order, the trial court found that although the officer was presented with the gender of the unlicensed owner associated with the license plate search, the officer did not attempt to ascertain the driver’s gender prior to proceeding to stop the vehicle even though there was some lighting in the area. Because of these failures, the trial court found that the officer lacked a reasonable articulable suspicion for continuing the stop based on the results of a license plate search revealing an unlicensed owner of the vehicle.

The State appeals, arguing that the trial court erred by granting the motion to suppress because an officer does not have a duty to corroborate the gender of the driver with the gender of the owner prior to effectuating a traffic stop based on a report of prior violation of the law connected to that owner.

As an initial matter, we note that the word “duty” is found in the trial court’s summary of the defendant’s argument and is not a term used by the trial court in announcing its ruling. Instead, the trial court’s analysis was conducted under the reasonable articulable suspicion standard.

[A] brief investigative stop of a vehicle is justified “when an officer has a reasonable and articulable suspicion that the driver or vehicle is subject to seizure for violation of the law.” In this regard, we have held that reasonable and articulable suspicion must be “an objective manifestation that the person stopped is, or is about to be, engaged in criminal activity, and that this determination can only be made after considering the totality of the circumstances.” And in viewing the totality of the circumstances, the officer must be able to point to “specific and articulable facts which, taken together with rational inferences from those facts, provide a particularized and objective basis for suspecting the particular person stopped of criminal activity.”

In support of its argument, the State cites to this Court’s opinions in Hernandez-Lopez v. State and Humphreys v. State. In Humphreys, the suppression hearing showed that the officer checked a vehicle license plate and discovered that the owner of the vehicle “was male and had a suspended driver’s license.” In that case, prior to effectuating a stop of the vehicle, the officer observed that the driver was male. This Court reasoned that the stop was authorized because the officer had a “particularized and objective basis for the initial stop [based on the] information from [the Georgia Crime Information Center] — in this case, that the male owner of the registered vehicle Humphreys was operating had a suspended driver’s license.”

In Hernandez-Lopez, this Court addressed the issue of whether an officer lacked a reasonable articulable suspicion to support a stop of a vehicle based on an alert from the officer’s on-board license plate reader, which notified the officer that the vehicle was linked to an individual with an outstanding warrant. The facts in that case showed that the officer received a wanted-person alert for a male driving a specific vehicle, and the officer confirmed prior to conducting the stop that the driver was “an adult male.”

Neither of those cases, however, address a situation in which the officer had or easily could have had knowledge of the discrepancy between the gender of the unlicensed owner as shown in the license plate search and the observed driver of the vehicle.

Here, the trial court found that the officer lacked a reasonable articulable suspicion for making the stop because she completely failed to note the unlicensed owner’s name and gender as listed in the license plate search report, and she made no attempt to observe the driver’s gender prior to the stop, even though, as the court specifically noted in its order, there was a light at the intersection. Based on the evidence presented at the hearing on the motion to suppress, there is no clear error in the trial court’s findings.

[W]hen deciding whether to grant or deny a motion to suppress, a trial court sits as the trier of fact, and its findings are akin to a jury verdict and will not be disturbed unless no evidence exists to support them. Accordingly, we cannot, and will not, usurp the authority of the trial judge to consider such factors as demeanor and other credibility-related evidence in reaching its decision.

Decided February 17, 2017.

JamieK. Inagawa, Solicitor-General, Joseph B. Myers, Jr., Assistant Solicitor-General, for appellant.

Jean C. Sperling, Matthew K. Winchester, for appellee.

It is clear from the language used in the order that the trial court found the officer’s testimony questionable. And while the trial court could have accepted the officer’s testimony that she was wholly unable to observe the driver’s gender prior to the stop, and based on such credited testimony, the trial court could have determined that the officer had reasonable articulable suspicion to effectuate the stop, the trial court was not required to do so.

Accordingly, based on our standard of review and the current law of this State, we discern no error in the trial court’s grant of Martinez-Arvealo’s motion to suppress.

Judgment affirmed.

Andrews and Ray, JJ., concur.

       OCGA § 40-5-29.

       (Punctuation omitted.) State v. Allen, 298 Ga. 1, 2 (1) (a) (779 SE2d 248) (2015), quoting Hughes v. State, 296 Ga. 744, 746 (1) (770 SE2d 636) (2015).

       (Citations and emphasis omitted.) Lewis v. State, 323 Ga. App. 709, 711 (747 SE2d 867) (2013).

       319 Ga. App. 662 (738 SE2d 116) (2013).

       304 Ga. App. 365 (696 SE2d 400) (2010). This Court did not address “the issue of whether officers are authorized to use the Georgia Crime Information Center computers for random checks of the status of vehicles or drivers who are otherwise lawfully driving on the roadway because that issue was not raised below.” Id. at 366, n. 1.

       Id. at 365.

       See id.

       Id. at 367.

       See Hernandez-Lopez, 319 Ga. App. at 662.

       See id.

       (Citation and punctuation omitted.) Id. at 663.

       Compare with People v. Cummings, _ Ill. _ (46 NE3d 248) (2016) (on remand from the United States Supreme Court after its decision in Rodriguez v. United States, 575 U. S. _ (135 SCt 1609, 191 LE2d 492) (2015), holding that an officer can ask for a driver’s identification because initial stop based on a license plate search returning a female unlicensed owner was valid and officer could not discover until approaching the stopped vehicle that the driver was male). See also State v. Candelaria, 149 N. M. 125, 129-130 (A) (245 P3d 69) (2010) (collecting cases showing that a majority of jurisdictions presume that the owner of the vehicle is operating the vehicle “absent additional facts suggesting otherwise,” and therefore return of a license plate check showing the owner is unlicensed or has an outstanding warrant constitutes reasonable articulable suspicion under normal circumstances).