Georgia Cases ©   Coverage   Help   Search Westlaw   Topic: AllBusiness Organizations LawCivil RightsCommercial Law & ContractsCriminal JusticeEducationEstate Planning & ProbateFamily LawFinance & BankingGovernment BenefitsHealth & MedicineInsuranceLabor & EmploymentLegal EthicsPension & Retirement BenefitsProfessional MalpracticeReal PropertySecurities & Blue Sky LawTaxationTort LawWorkers Compensation STATON et al. v. STATE FARM AUTOMOBILE INSURANCE COMPANY. , Ga.App., November 20, 2009 ELLINGTON, Judge. In this underinsured motorist coverage case, the trial court found as a matter of law that Cecil Staton was not entitled to "stack" underinsured motorist ("UM") coverage from his employer's automobile insurance policies which covered vehicles that were not involved in the car accident in which he was injured. Staton appealed, and we reversed the trial court's decision in Staton v. State Farm Auto. Ins. Co., 294 Ga.App. 208 (669 S.E.2d 164) (2008). The Supreme Court of Georgi... ALLEN v. SPIKER. State Farm Mutual Automobile Insurance Company v. Spiker. , Ga.App., November 20, 2009 Hugh M. Worsham Jr., for Samuel K. Allen. George L. Lewis, for Steven Spiker. Mason White and James David Kreyenbuhl, for State Farm Insurance. MIKELL, Judge. Steven Spiker sued Samuel K. Allen to recover damages for injuries sustained in a rear-end collision. Spiker served his uninsured motorist carrier, State Farm Mutual Automobile Insurance Company, with a copy of the lawsuit. State Farm filed an answer in its own name but dismissed its answer before trial and entered an appearan... The STATE v. HOGANS. , Ga.App., November 20, 2009 Peter J. Skandalakis, Melissa Lee Himes, for The State. Charles Demisses Graham, for Hogans. MILLER, Chief Judge. Following an evidentiary hearing, the trial court granted Randall Sebastian Hogans's motion to suppress the contraband seized from his vehicle. The State appeals, claiming that the trial court erred in finding that a law enforcement officer was not permitted to ask a third party for consent to search Hogans's vehicle during a first-tier encounter. We agree with the State th... In the Interest of A.Z., a child. , Ga.App., November 20, 2009 James N. Finkelstein, for A.Z. Gregory W. Edwards, for Appellee. PHIPPS, Judge. The juvenile court adjudicated 16-year-old A.Z. delinquent for possession of firearms by a person under the age of 18 and for aggravated assault, and it entered an order of commitment placing him in restrictive custody for these actions. The court also adjudicated A.Z. a designated felon. [FN1] On appeal, A.Z. asserts that the juvenile court erred in denying his motion to suppress evidence seized from his ... RENEE UNLIMITED, INC. et al. v. CITY OF ATLANTA. , Ga.App., November 20, 2009 Jule Clifton Lassiter, for Appellant. Gary William Diamond, Lashawn Williams Terry, for Appellee. MILLER, Chief Judge. The City of Atlanta (the "City") filed a complaint against Simbic, Inc. ("Simbic"), Renee Unlimited, Inc. ("Renee"), Joseph T. Bickers, MGG Properties, Inc. ("MGG"), and Onward Financial, Inc. ("Onward") alleging its entitlement to recover money the City loaned to Simbic under a federal housing loan program that was never repaid. The case proceeded to a jury trial on ... STATE v. PICKETT. , Ga.App., November 20, 2009 Paul L. Howard Jr., John O. Williams, for Appellant. Marilyn Primovic, Ashleigh Bartkus Merchant, for Appellee. PHIPPS, Judge. The state appeals an order dismissing, for violation of the constitutional right to a speedy trial, Phillip Pickett's indictment on charges of child molestation, aggravated sexual battery, criminal attempt to commit rape and criminal attempt to commit incest. For the following reasons, we affirm. In examining an alleged denial of the constitutional right to ... KIMBLE v. The STATE. Loury v. The State. , Ga.App., November 20, 2009 David Michael Burns Jr., for Kimble. Steven Lee Sparger, for Loury. Larry Chisolm, Russell Barnard Mabrey Jr., Jeffrey S. Hendrix, for The State. MILLER, Chief Judge. Following the July 14, 2006 execution of a search warrant, Roy Loury and four other individuals, Travis Kimble, Dedrick Pierce, Rashawn Stewart, and Leola Waters, were indicted for various drug-related offenses. Following a trial of all of the co-defendants but Waters, a Chatham County jury convicted Kimble and Loury o... AMERICA'S HOME PLACE, INC. v. CASSIDY et al. , Ga.App., November 20, 2009 W. Pope Langdale III, Christina Labell Folsom, James M. Walters, for America's Home Place, Inc. John G.C. Durham, Jacob Michael Zuniga, for Cassidy et al. ADAMS, Judge. This Court granted the application of residential contractor America's Home Place, Inc. for interlocutory review of the trial court's order denying its motion to confirm an arbitration award in its favor. Because we find that the trial court erred in refusing to confirm the award, we reverse. Dennis and Ashley Cassid... HOWARD v. The STATE. , Ga.App., November 20, 2009 James W. Bradley, for Appellant. Anece Baxter White and Jewel Charmain Scott, for Appellee. BARNES, Judge. Michael Howard appeals the separate sentences [FN1] imposed for his convictions of reckless driving and reckless conduct. Howard contends the trial court erred by failing to merge all three counts into a single conviction of reckless driving, because each arose from the same car chase, a single transaction, each conviction rested on the same evidence, and reckless conduct is itse... MOORE v. The STATE. , Ga.App., November 20, 2009 Katherine Morgan Mason, for Moore. Rebecca Ashley Wright, Charles R. Sheppard, for The State. ADAMS, Judge. Chastin Moore was convicted by a jury of aggravated assault, kidnapping, aggravated sexual battery, aggravated sodomy, terroristic threats and robbery. He appeals following the denial of his motion, as amended, for new trial. Construed to support the jury's verdict, the evidence adduced at trial showed the following: On the date of the incident, the victim in this case was hea... EMORY-ADVENTIST, INC. v. HUNTER. Hunter. v. Emory-Adventist, Inc. , Ga.App., November 20, 2009 Joseph H. King Jr., for Hunter. Michelle M. Rothenberg-Williams, for Emory-Adventist, Inc. MILLER, Chief Judge. Laura Hunter's late husband, Charles Hunter, died while a patient at Emory Adventist Inc. d/b/a Emory Adventist Hospital (the "Hospital"). On June 13, 2008, Hunter filed this medical malpractice action against the Hospital and Dr. Michaele Brown (the "Emory defendants"), alleging that Dr. Brown was negligent in providing medical care to her husband. Hunter supplemented her co... LAYTART v. The STATE. , Ga.App., November 20, 2009 DOYLE, Judge. Michael S. Laytart appeals the revocation of his probation and denial of his motion for new trial on the grounds that his general and special probation conditions did not provide sufficient notice of what was expected of him in order to remain unincarcerated, the conditions did not proscribe the conduct supporting the revocation, and a probation guideline itself is unconstitutionally vague and over-broad. For reasons that follow, we affirm. On April 3, 1996, at the age of fif... PURVIS v. The STATE. , Ga.App., November 20, 2009 John Gee Edwards, for Purvis. Catherine Harris Helms, Albert Henry Tester, for The State. BARNES, Judge. Following the denial of his motion for new trial, Robert Carroll Purvis appeals his conviction for child molestation. He contends the evidence was insufficient, that the trial court erred in denying his motion for new trial based on what he alleged to be several instances of ineffective assistance of counsel; that his rights were violated because his trial was held in the county jai... ATKINS et al. v. MRP PARK LAKE, L.P. et al. , Ga.App., November 20, 2009 Eric Chapman White, Nicholas S. Papleacos, for Atkins et al. Robert L. Shannon Jr., Mary Dickinson Trammell, James T. Budd, Brian W. Sprinkle, Thomas George Tidwell, for MRP Park Lake, L.P. et al. BLACKBURN, Presiding Judge. In this personal injury action, plaintiffs Sandra Atkins and her husband appeal the summary judgment granted to defendants MRP Park Lake, L.P. and Realty Management Corporation, claiming that disputed issues of fact precluded the grant of summary judgment. We agre... STRICKLAND v. The STATE. , Ga.App., November 20, 2009 Hugh Morris Hadden, Sam B. Sibley Jr., for Strickland. Rebecca Ashley Wright, Charles R. Sheppard, for the State. MILLER, Chief Judge. A jury convicted Tammy Denise Strickland of one count of trafficking in methamphetamine (OCGA § 16-13-31(f)(1)), whereby the trial court sentenced her to ten years confinement. Thereafter, the trial court held a hearing and resentenced Strickland to ten years confinement and a $200,000 fine. Strickland appeals, contending that the trial court erred in i... VADDE v. BANK OF AMERICA. , Ga.App., November 20, 2009 Subbamma Vadde, pro se. Michael J. Cohen, Craig R. Goodman, for Bank of America. MIKELL, Judge. Subbamma Vadde appeals pro se from the grant of summary judgment to Bank of America concerning her indebtedness under a bank account agreement. For the reasons set forth below, we affirm. "To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable t... JOHNSON v. RANDOLPH COUNTY et al. , Ga.App., November 20, 2009 PHIPPS, Judge. Edward Johnson sued Randolph County (the "County"), the Board of Elections of Randolph County (the "BOE"), and board members in their official and individual capacities (the "Board Members"), alleging that they had violated his rights under the United States and Georgia Constitutions and conspired to commit fraud against him by attempting to have his name removed from the ballot in an election for county commissioner. The alleged attempt did not succeed, Johnson's name remained... MILLER v. The STATE. , Ga.App., November 20, 2009 Timothy Lee Eidson, for Appellant. Denise D. Fachini, for Appellee. BLACKBURN, Presiding Judge. Following the partial revocation of his probation, Terry Lynn Miller appeals, challenging the sufficiency of the evidence supporting the revocation and arguing that the trial court erred in failing to make a written statement setting forth the evidence upon which the revocation relied and in denying his motion for a State-provided transcript of the revocation hearing for use in his motion fo... DUNAWAY et al. v. UAP/GA AG. CHEM., INC. , Ga.App., November 20, 2009 MIKELL, Judge. UAP/GA AG. Chem., Inc. ("UAP"), an agricultural product supplier, filed suit against WLD Farms, Inc., Wendell S. Dunaway ("Dunaway"), and Dunaway Brothers, Inc. (collectively, "appellants") on a Real Estate Note (the "Note") executed by Dunaway and WLD Farms. Appellants disputed the amount of the debt and asserted claims of set-off and breach of contract. The trial court granted summary judgment as to appellants' liability under the Note and ordered arbitration of their remaini... KOLLIE v. The STATE. Brandt v. The State. , Ga.App., November 19, 2009 Glynn Richard Stepp, Mark Allen Yurachek, for appellants. Daniel J. Porter, Lisa Ann Jones, for appellee. SMITH, Presiding Judge. William Kollie and Ryan Brandt were jointly tried by a jury and found guilty on 24 counts of a 29-count indictment for crimes that occurred on October 22, 2005 and November 4, 2005. Following the denial of their respective motions for new trial, Kollie and Brandt appeal, citing several claims of error. We have consolidated their separate appeals for purposes... BRIGHT v. The STATE. , Ga.App., November 19, 2009 Christopher Gordon Paul, for Bright. Thomas Joseph Campbell, for The State. BLACKBURN, Presiding Judge. Following a jury trial, Stephen Bright was convicted on two counts of child molestation. [FN1] He appeals his convictions and the denial of his motion for new trial, challenging the sufficiency of the evidence and arguing that the trial court erred by instructing the jury on the law of voluntary intoxication. For the reasons set forth below, we affirm. FN1. Former OCGA § 16-6... THOMAS v. The STATE. , Ga.App., November 19, 2009 Clark Coleman Adams Jr., for Thomas. Plez Higdon Hardin, Daniel Patrick Bibler, for The State. BLACKBURN, Presiding Judge. Demetrius Thomas appeals from his convictions of possession of cocaine with intent to distribute, [FN1] possession of marijuana with intent to distribute, [FN2] and felony obstruction of an officer, [FN3] asserting that the trial court erred in: (1) denying his motion to suppress certain evidence; and (2) excluding certain impeachment evidence that Thomas sought to... CRAIGO et al. v. AZIZI et al. , Ga.App., November 19, 2009 Ronald I. Kaplan, Jay D. Lukowski, for Appellant. Wade K. Copeland, Ashley Everhart Sexton, for Appellee. MIKELL, Judge. Deborah and Robert Craigo sued Dr. Mohammad Daud Azizi and his employer, Gwinnett Anesthesia Services, P.C. (defendants), for medical malpractice and loss of consortium. The Craigos alleged that on October 16, 2006, Dr. Azizi served as the anesthesiologist when Deborah Craigo underwent orthopedic surgery; that Dr. Azizi administered a general anesthetic to Ms. Craigo... DUPREL v. The STATE. , Ga.App., November 19, 2009 George W. Weaver, Barbara Alison Sosebee, for Duprel. Carrie Allene McCurdy, David Lee Cannon Jr., for the State. MIKELL, Judge. After a jury trial, John Michael Duprel was convicted of driving under the influence per se (DUI) and driving under the influence to the extent that he was less safe (DUI less safe) and sentenced to serve 12 months, 90 days of which were served in confinement and the remainder on probation. On appeal, Duprel charges that the trial court erred when it: (1) err... WRIGHT v. The STATE. , Ga.App., November 19, 2009 Douglas Patrick Smith, for Wright. David Eugene Slemons, Tommy Kenneth Floyd, Atha Helen Pryor, for The State. BARNES, Judge. Following the denial of her motion for new trial, Marsha Wright appeals from her felony shoplifting conviction, contending that the trial court erred in admitting a video surveillance tape ("videotape") of her husband committing the crime of shoplifting, and in allowing a witness to narrate the videotape as it was viewed by the jury. For the reasons that follow,... PIERCE v. The STATE. , Ga.App., November 19, 2009 Donald Jason Slider, for Pierce. Kenneth W. Mauldin, Jon Richard Forwood, for the State. BARNES, Judge. Michael Pierce appeals his convictions for aggravated battery, aggravated assault, terroristic threats, false imprisonment, family violence battery (three counts), simple battery (two counts), and criminal trespass. Pierce contends the trial court erred by (1) finding the evidence sufficient to sustain the convictions of aggravated battery, criminal trespass, and false imprisonment; ... HENRY v. BEACHAM. , Ga.App., November 19, 2009 Randall Mark Kessler, David Alfred Webster, for Henry. Robert G. Wellon, Keisha R. Lance Bottoms, for Beacham. DOYLE, Judge. This appeal arises from an order of support entered against Travis Deon Henry in Dekalb Superior Court. On appeal, Henry challenges the trial court's creation of a $250,000 trust to fund future child support payments in the event that he fails to pay support as ordered. For the reasons that follow, we affirm. In 2004, Jameshia L. Beacham filed an action for pa... DAVIS v. The STATE. , Ga.App., November 19, 2009 Rodney Alan Williams, for appellant. Daniel J. Porter, Nigel Robin Lush, for appellee. DOYLE, Judge. Christopher Antonio Davis appeals from the trial court's order denying his motion to dismiss the indictment on the ground that his constitutional right to a speedy trial had been violated. For the reasons that follow, we reverse. We review the trial court's determination for an abuse of discretion. [FN1] "The deference owed the trial court's ruling is diminished, however, where it c... In the Interest of M.D.P., a child. , Ga.App., November 19, 2009 David Joseph Walker, for M.D.P. Tracy Graham Lawson and R. Christopher Montgomery Jr., for Appellee. DOYLE, Judge. The Juvenile Court of Clayton County adjudicated 16-year-old M.D.P. delinquent based upon acts that would have constituted the crimes of armed robbery [FN1] and aggravated assault [FN2] if committed by an adult, and the court committed him to the custody of the Georgia Department of Juvenile Justice until his 21st birthday. M.D.P. appeals, contending that the evidence pr... BDI LAGUNA HOLDINGS, INC. v. MARSH. Marsh v. BDI Laguna Holdings, Inc. , Ga.App., November 19, 2009 Tiana Scogin Mykkeltvedt, Jeffrey O. Bramlett, David A. Donohoe, Daniel F. McInnis, Corey Fleming Hirokawa, for BDI Laguna Holdings, Inc. Steven Gordon Hall, Robert G. Brazier, for Marsh. DOYLE, Judge. These consolidated appeals arise from a dispute over employee compensation. In Case No. A09A0990, BDI Laguna Holdings, Inc. ("BDIL") appeals from a jury verdict in favor of Charles Marsh, a former company employee, awarding him the value of certain company stock promised to him. Specifi... ONBRAND MEDIA et al. v. CODEX CONSULTING, INC., et al. , Ga.App., November 19, 2009 Levi Breedlove, for Onbrand Media. Mark Lawrence Seigel, Mitchell Gardner Weatherly, for Codex Consulting, Inc. DOYLE, Judge. OnBrand Media, Inc., and Lisa Jones began negotiations with Codex Consulting, Inc., and Open Systems, Inc. ("OSI"), to form a joint venture agreement for the development of a software program that they would market to a specific company. After the negotiations were ultimately unsuccessful, OnBrand and Jones filed suit against Codex and OSI, alleging multiple cla... RIDDLE v. The STATE. , Ga.App., November 19, 2009 Dante Leshawn Hudson, for Riddle. Stephen D. Kelley, for the State. DOYLE, Judge. Following a jury trial, Richard Riddle appeals from his conviction of influencing the winning of a lottery prize [FN1] (two counts), arguing that (1) the criminal statute proscribing the offense did not apply to his conduct, and (2) the evidence was insufficient to show he committed the offense as alleged. For the reasons that follow, we affirm. FN1.OCGA § 50-27-27(b). Construed in favor of t... HUDSON v. EASTERLING. , Ga.App., November 19, 2009 Christopher Todd Adams, for Hudson. Hope Easterling, pro se. MIKELL, Judge. Wesley Hudson appeals from the trial court's order granting the petition for modification of their divorce decree filed by Hope Easterling, his former wife. Hudson argues that the court lacked personal jurisdiction over him due to insufficient service of process and that the court's order went beyond the relief requested in the petition. We affirm the judgment of the trial court. Hudson and Easterling [FN1]... DITMAN v. The STATE. , Ga.App., November 19, 2009 Timothy Bryan Lumpkin, for Ditman. Patrick H. Head, Allen Rust Knox, John Richard Edwards, Marc David Cella, for the State. BLACKBURN, Presiding Judge. Cory Lee Ditman was arrested and indicted on one count of aggravated child molestation [FN1] and one count of child molestation. [FN2] After nearly 20 months passed without a trial, Ditman filed a motion for discharge and acquittal on the basis that the State had violated his Constitutional right to a speedy trial. He appeals the order... CLARK et al. v. CHAPMAN. , Ga.App., November 18, 2009 William Ray Oliver, for Clark et al. Brett Davis Turner, Alan Marc Briskin, Alfred Wei-Keung Chang, Byron M.G. Sanford, for Chapman. ADAMS, Judge. Reliford Clark, Jr. a/k/a Reliford Clark a/k/a Buster J. Clark a/k/a Buster J. Clark, Jr. appeals the trial court's order granting Clyde Hayward Chapman's "Motion to Produce All Property of Clark Land Development, Inc. and Set Aside Transfer of Property." Chapman initiated this action by filing a "Complaint for Injunctive Relief and Levy... GRAVITT v. The STATE. , Ga.App., November 18, 2009 Stephen Jay Lichtenstein, for Gravitt. Lee Darragh, for The State. BARNES, Judge. Kent Lawrence Gravitt appeals his convictions of eight counts of serious injury by vehicle, driving under the influence, reckless driving, failure to maintain lane, and improper passing. Gravitt's sole enumeration of error is that his defense counsel's performance deprived him of the effective assistance of counsel. We must agree and reverse the trial court's ruling to the contrary. Gravitt's convictio... CLEMENTS v. WEAVER. , Ga.App., November 18, 2009 Anthony Brent Erwin, for Clements. Lance T. McCoy, Thomas Neal Brunt, for Weaver. BERNES, Judge. This case arises out of a dispute over whether the decedent, Vivian Weaver Waits, entered into an oral contract to make a will leaving her son, Edward Gerald Weaver, the family farm. Following the decedent's death in 2004, Jolene Clements, the executrix of the decedent's estate, sued Weaver in order to obtain a declaration that there was no valid contract between the decedent and Weaver tha... SANTIBANEZ v. The STATE. , Ga.App., November 18, 2009 Randall Scott Estes, for Santibanez. Daniel J. Porter, Rodney Keith Miles, for The State. PHIPPS, Judge. A jury found Pedro Arroyo Santibanez guilty of trafficking in methamphetamine, possession of cocaine with the intent to distribute, conspiracy to possess methamphetamine with intent to distribute, and conspiracy to possess cocaine with the intent to distribute. On appeal, Santibanez challenges the denial of his motion to suppress the drug evidence, the sufficiency of the evidence un... STATE v. LUPULOFF. , Ga.App., November 17, 2009 Kimberly Ann Gallant, Daniel J. Porter, for State. Walter Michael Britt, for Lupuloff. ADAMS, Judge. Max Morris Lupuloff was charged with one count of financial transaction card theft under OCGA § 16-9-31(a)(1) and one count of theft by taking under OCGA § 16-8-2. Lupuloff pled "not guilty" and filed a motion to suppress evidence seized from his person and automobile and a motion in limine to exclude statements he made to police at the time of his arrest. The trial court granted these ... KELLEY v. PURCELL. , Ga.App., November 17, 2009 Bruce Robert Millar, for Kelley. Jane Natalie Wilkes, for Purcell. ADAMS, Judge. Shirley Kelley brought suit against David Purcell, as personal representative and/or next friend and/or administrator of the Estate of Clyde Edward Turner for personal injuries arising from a collision. The jury originally returned a verdict in favor of Kelley, and Purcell appealed. In Purcell v. Kelley, 286 Ga.App. 117 (648 S.E.2d 454) (2007), [FN1] this Court reversed and remanded the case for a new tria... RICHARDS v. DAVIS. , Ga.App., November 17, 2009 B. Thassanee Gutter-Parker, for Richards. Archie Irwin Grubb II, Gary Oman Bruce, for Davis. PHIPPS, Judge. Rex Richards appeals the judgment entered against him in favor of Brenda Davis after a car collision on October 24, 2005 in which Richards attempted an improper left turn and struck Davis's vehicle. Davis sustained injuries to her head, back and torso, and experienced pain that limited her daily activities for approximately one year after the collision. At a bench trial, the muni... WORKS v. The STATE. , Ga.App., November 17, 2009 Charles H. Frier, for Works. Gwendolyn Keyes Fleming, for The State. JOHNSON, Presiding Judge. A jury found Robert Works guilty of aggravated assault, aggravated battery, and giving a false name to a law enforcement officer. Works appeals, contending (1) the evidence was insufficient to prove guilt beyond a reasonable doubt on the aggravated assault and aggravated battery charges, (2) the trial court erred in denying his speedy trial demand, (3) the trial court erroneously involved its... TAYLOR v. The STATE. , Ga.App., November 17, 2009 James B. Stewart III, for Taylor. Louie Craig Fraser, for State. MIKELL, Judge. Kendrick Taylor was convicted of two counts of cocaine distribution and was sentenced to a total of 20 years, including 14 to serve. On appeal from the denial of his motion for new trial, Taylor contends that the trial court erred by concluding that his trial counsel rendered effective assistance. We disagree and affirm. Taylor asserts that trial counsel was ineffective by failing to impeach two witnesse... BANKS et al. v. BROTHERHOOD MUTUAL INSURANCE COMPANY. , Ga.App., November 17, 2009 David L. Hudgins, for Banks et al. Robert Alan Luskin, Adam Charles Joffe, for Brotherhood Mutual Insurance Company. MIKELL, Judge. James Gregory Banks and his wife, Donna (collectively, "Banks"), appeal the grant of summary judgment to Brotherhood Mutual Insurance Company ("Brotherhood") in this declaratory judgment action. Because the trial court correctly determined that Brotherhood was not obligated to pay uninsured motorist ("UM") benefits to Banks, we affirm. To prevail on a m... PAINE et al. v. NATIONS. Cochran et al. v. Nations. , Ga.App., November 17, 2009 S. Bradley Shipe, for Paine et al. Donald Lee Mize, Russell Donald King, Matthew Michael Wilkins, for Nations. Ira Keith McKee, for Cochran et al. ADAMS, Judge. Charles M. Paine, Jr., Lynn J. Paine, William Terrell Cochran and Charlene C. Cochran appeal an order of permanent injunction entered in favor of Gregory Lance Nations on July 22, 2008. The Cochrans also attempt to appeal, for the first time, a monetary judgment entered by the trial court in 2005. Nations initiated this a... The STATE v. MOSES. , Ga.App., November 17, 2009 Paul L. Howard Jr., Peggy Ann Katz, for Appellant. Marilyn Primovic, Ashleigh Bartkus Merchant, for Appellee. ADAMS, Judge. According to the trial court's order and insofar as we can ascertain from the incomplete record before us, [FN1] it appears that appellee Dante Moses was arrested sometime around December 9, 2004 for the offenses of armed robbery, aggravated assault with intent to rob, possession of a firearm during the commission of a felony and possession of a firearm by a convi... ANGUS v. The STATE. , Ga.App., November 17, 2009 Brian Steel, for Angus. Garry Thomas Moss, Wallace W. Rogers Jr., Sara Anne Thompson, for State. ADAMS, Judge. Douglas Angus was indicted for rape, statutory rape, child molestation, enticing a child for indecent purposes, violation of the Georgia Controlled Substances Act, and contributing to the delinquency of a minor. Following a jury trial, he was convicted on all counts except for the drug charge and sentenced to serve 40 years in prison. In his only asserted error, Angus contends... ADCOX v. ATLANTA BUILDING MAINTENANCE CO. , Ga.App., November 16, 2009 Michael David St. Amand, for Adcox. David M. Vansant, Denise Weiner Spitalnick, John Christopher Hillis, Andrew J. Hamilton, for Atlanta Building Maintenance Co. ADAMS, Judge. Timothy Adcox alleges that he slipped and fell on ice in his employer's parking lot. He brought suit against his employer's janitorial services contractor and subcontractor because the ice allegedly formed when used mop water was discarded in the parking lot. Both contractor and subcontractor moved for summary j... HATHAWAY DEVELOPMENT COMPANY, INC. v. AMERICAN EMPIRE SURPLUS LINES INSURANCE COMPANY. , Ga.App., November 16, 2009 Craig N. Cowart, for Hathaway Development Company, Inc. John Frederick Kane, J. David Hopkins III, for American Empire Surplus Lines Insurance Company. BARNES, Judge. The issue in this case is whether a general contractor can recover a judgment against its plumbing subcontractor from the insurance company that issued the subcontractor's commercial general liability insurance policy. The trial court granted summary judgment to the insurer, and for the reasons that follow, we reverse. ... In the Interest of X. W., A Child. In the Interest of B. W., A Child. , Ga.App., November 16, 2009 Brian Steel, Scott L. Ballard, Robert Wright Smith Jr., for X. W. BARNES, Judge. The appellants in these appeals, X.W. and B.W. were involved in a fight at a Fayette County High School. Both were adjudicated delinquent for felony gang activity pursuant to OCGA § 16-15-4 and disrupting a public school. B.W. was also adjudicated delinquent based on the offense of affray. In considering an appeal from an adjudication of delinquency, this Court views the evidence in a light favorable to th... COOPER/T. SMITH STEVEDORING COMPANY, INC. v. GEORGIA PORTS AUTHORITY et al. , Ga.App., November 16, 2009 James William Scarbrough, for Appellant. Thurbert E. Baker, Col. George S. Zier, R. Dennis Withers, Austin L. Ramsey III, Thomas Langston Bass Jr. and Sandra E. Vinueza Foster, for Appellee. ANDREWS, Presiding Judge. This is a breach of contract action brought by the Georgia Ports Authority (GPA) [FN1] against Cooper/T. Smith Stevedoring Company, Inc. and Cooper/T. Smith Corporation (collectively referred to as CTS) to enforce a contract by which GPA leased a gantry crane to CTS to di... VAUGHN v. The STATE. , Ga.App., November 16, 2009 James C. Bonner Jr., for Vaughn. Gwendolyn Keyes Fleming, Daniel James Quinn, for The State. ADAMS, Judge. Terry Eugene Vaughn was convicted by a jury of aggravated stalking, aggravated assault (3 counts) and making terroristic threats. He appeals following the denial of his amended motion for new trial. We affirm. As acknowledged in his brief on appeal, Vaughn and his wife Kara, one of the victims in this case, had a "turbulent" relationship. Kara testified that Vaughn began hittin... RSN PROPERTIES, INC. v. ENGINEERING CONSULTING SERVICES, LTD. , Ga.App., November 16, 2009 Herman Clark, James Conway Morton, for RSN Properties, Inc. Gregory Howard Wheeler, Broderick Wardell Harrell, for Engineering Consulting Services, Ltd. ANDREWS, Presiding Judge. We consider the enforceability of a limitation of liability provision contained in a written contract by which a real estate developer hired an engineering firm to perform professional engineering services necessary for development of a residential subdivision. The provision limited the liability of the engine... KELLY v. The STATE. , Ga.App., November 16, 2009 Kelvin Lanell Kelly, for Kelly. Larry Chisolm, Christine Sieger Barker, for the State. BARNES, Judge. On March 25th, 1988, Kelvin L. Kelly negotiated a plea of guilty to one count of burglary. He was sentenced under the First Offender Act to five years, one to serve in prison and the balance probated. In November of 1988, the trial court revoked six months of Kelly's probation for failure to comply with certain conditions of his probation. However, his first offender status remained in... DAVIS et al. v. OVERALL. , Ga.App., November 13, 2009 Alton M. Adams, for Davis et al. William Ray Oliver, for Overall. ANDREWS, Presiding Judge. Lamar Davis and Howard Farmer sued Richard Overall for damages in a dispute over a family cemetery located on Overall's land. Davis and Farmer contended that Overall had interfered with the family's easement across Overall's land to and from the cemetery and had trespassed and created a continuing nuisance within the cemetery. The trial court granted Davis and Farmer's request for a permanent ea... JONES v. WARNER. , Ga.App., November 13, 2009 Michael Oliver Mondy, for Jones. Thomas Richard Mondelli, Dennis M. Young, for Warner. ANDREWS, Presiding Judge. Chastity Jones appeals from the trial court's grant of summary judgment to City of Atlanta Officer Adriane Warner concerning Jones's claims for false arrest, malicious prosecution, and intentional infliction of emotional distress. Jones argues that questions of fact remain as to whether Warner acted with actual malice and whether Jones herself suffered severe emotional distr... GIFFORD v. The STATE. , Ga.App., November 13, 2009 Harold D. McLendon, for Gifford. Richard Ernest Currie, for The State. BERNES, Judge. Chiquita Gifford appeals the trial court's denial of his motion for discharge and acquittal, alleging that the state violated his right to a speedy trial under OCGA § 17-7-170. [FN1] For the reasons set forth below, we reverse. FN1. A defendant may directly appeal the pre-trial denial of either a constitutional or statutory speedy trial claim. See Mayfield v. State, 264 Ga.App. 551, 554 (593 S... MOSLEY v. The STATE. , Ga.App., November 13, 2009 Holding: The Court of Appeals, Mikell, J., held that State's alleged defective notice did not render defendant's resulting life sentence void. Appeal dismissed. Shawn C. Mosley, pro se. Fredric Daniel Bright, Stephen Andrew Bradley, for The State. MIKELL, Judge. After a jury trial in October 1993, Shawn C. Mosley was convicted of sale of cocaine and was sentenced as a recidivist to life in prison. We affirmed Mosley's conviction in Mosely v. State. [FN1] Almost 13 years later, Mosl... DAVIS v. The STATE. , Ga.App., November 13, 2009 Davis, pro se. Peter J. Skandalakis, Robert Nicholas Peterkin, for The State. MIKELL, Judge. Dock Heard Davis, an attorney, was indicted on charges of driving under the influence of alcohol to the extent that he was a less safe driver ("DUI less safe"), OCGA § 40-6-391(a)(1) (Count 1); failure to maintain lane, OCGA § 40-6-48 (Count 2); violating the open container law, OCGA § 40-6- 253 (Count 3); violating a duty upon striking a fixed object, OCGA § 40-6- 272 (Count 4); leaving the sc... KELLEY v. The STATE. , Ga.App., November 13, 2009 Holdings: The Court of Appeals, Mikell, J., held that: (1) evidence of enticement satisfied asportation element of charge for enticing a child for indecent purposes; (2) evidence supported conviction, even though minor victim was a willing participant in a police sting operation; (3) defense counsel's non-specific request for a jury instruction on asportation failed to preserve instructional error for appeal. Affirmed. Jared Matthew Campbell, for Kelley. Leigh Ellen Patterson,... In the Interest of S.K. and A.K., Children. , Ga.App., November 13, 2009 John Francis Connolly, for S.K. Thurbert E. Baker, Shalen S. Nelson, Hope Merkert Pereira, Virginia B. Fuller, for Appellee. BARNES, Judge. The mother of S.K and A.K. appeals the Juvenile Court of Cherokee County's finding that her children are deprived. The mother essentially contends that the evidence was insufficient for the trial court to find her children deprived. Upon review, we affirm. A child is deprived "who ... [i]s without proper care or control, subsistence, education ... In the Interest of T.L.H. and O.D.H. , Ga.App., November 13, 2009 David William Brookshire, for Appellant. Thurbert E. Baker, Shalen S. Nelson, Lorie Ann Moss, Mary Faye McCord, Elizabeth M. Williamson, for Appellee. BARNES, Judge. We granted the father of T.L.H. and O.D.H.'s application for discretionary review of the order of the juvenile court terminating his parental rights. In his appeal, the father contends that there was no clear and convincing evidence of his present unfitness; that the juvenile court erred in terminating his parental rights ... HOLLIS & SPANN, INC. v. HOPKINS. , Ga.App., November 13, 2009 Vanice H. Sikes Jr., for Hollis & Spann, Inc. Richard H. Middleton Jr., for Hopkins. BERNES, Judge. Appellee May Catherine Hopkins was injured when she fell as she traversed a handicap access ramp leading to the parking lot of a hotel where she had been a guest. Hopkins filed suit seeking damages from the hotel owner, the hotel developer, and appellee Hollis & Spann, Inc., the independent contractor who constructed the allegedly defective ramp. Hollis & Spann filed a motion for summary... OGLE v. WATERS et al. , Ga.App., November 13, 2009 David Lloyd Tank, for Ogle. Steven Jay Strelzik, Mary Trachian-Bradley, for Waters et al. BARNES, Judge. H. Lance Ogle sued Scott Waters for breach of fiduciary duties and sued HQ Enterprises, Inc., a commercial construction corporation owned by the two men, for dissolution. Waters and HQ counterclaimed for breach of fiduciary duty, money had and received, and conversion. During trial the court directed a verdict for Waters on Ogle's claims against him for breach of duty. The jury then... TRANSPORTATION INSURANCE COMPANY v. PIEDMONT CONSTRUCTION GROUP, LLC. , Ga.App., November 13, 2009 Dennis Arnold Brown, for Transportation Insurance Company. Duke Riley Groover, G. Grant Greenwood, Stephen Louis A. Dillard, Patrick J. Wielinski, for Piedmont Construction Group, LLC. SMITH, Presiding Judge. In the main appeal presented here, Transportation Insurance Company denied not only coverage but a defense under a policy of liability insurance issued to a general contractor, based upon a novel and radical interpretation of a single Georgia case. This egregious conduct warrants... PAYNE v. The STATE. , Ga.App., November 13, 2009 Holdings: The Court of Appeals, Bernes, J., held that: (1) evidence was sufficient to support conviction for kidnapping, and (2) evidence was sufficient to support conviction for theft by taking. Affirmed. Peter Kent Odom, for Payne. Leigh Ellen Patterson, Finnis Kevin Salmon, for The State. BERNES, Judge. Following a jury trial, Kelvin Dennis Payne, Jr. was convicted of kidnapping, battery, theft by taking, and several other offenses. He contends that the trial court erred... NAIL v. STATE of Georgia et al. , Ga.App., November 13, 2009 Richard Phillips, for Appellant. Thurbert E. Baker, Claude McLaurin Sitton, for Appellee. BERNES, Judge. Carol G. Nail filed suit against the State of Georgia; the Department of Human Resources of the State of Georgia ("DHR"); Gateway Behavioral Health Services a/ka/ Gateway Mental Health; several pharmaceutical companies; and various unnamed defendants, alleging, in pertinent part, that the defendants had negligently prescribed and distributed medication to her without warning of the ... KRINGLE, as next friend of Steven Lloyd, a minor v. ELLIOTT. , Ga.App., November 13, 2009 John Craig Cotton, for Kringle, as next friend of Steven Lloyd, a minor. Charles A. Shenton IV, for Elliott. BARNES, Judge. Norma Kringle on behalf of her then seven-year-old son, Steven Lloyd, brought an action against Cindy Elliott for injuries the child sustained when he was bitten by Elliott's golden retriever. At trial, the trial court granted Elliott's directed verdict motion on the ground that because this was the dog's first bite of a human, under Georgia's "first bite" rule th... HARPER v. BARGE AIR CONDITIONING, INC. , Ga.App., November 13, 2009 Lloyd Noland Bell, Robert E. Mulholland, for Appellant. Harry W. Bassler, for Appellee. BARNES, Judge. Jocelyn Harper contends she suffered brain damage after being exposed to high levels of carbon monoxide at her former place of employment, AutoZone. She sued Barge Air Conditioning, Inc., whose technician had serviced one of the store's two heating, ventilating, and air conditioning (HVAC) units earlier in the day. At trial Harper presented circumstantial evidence and expert testimony... STRICKLAND v. The STATE. , Ga.App., November 13, 2009 Rand Jason Csehy, for Appellant. Rosanna M. Szabo, Mihae Park and Karen May Seeley, for Appellee. BARNES, Judge. Shana Strickland appeals the denial of her plea in bar based upon double jeopardy. She contends the imposition of certain bond conditions was punishment, and that any further criminal prosecution is prohibited under the double jeopardy clause of the Fifth Amendment of the United States Constitution. For the following reasons, we disagree and affirm the trial court's ruling. ... MELI et al. v. HICKS. , Ga.App., November 13, 2009 Holding: The Court of Appeals, Barnes, J., held that radiologist's failure to suggest follow-up magnetic resonance imaging (MRI) with intravenous contrast did not constitute deviation from standard of care. Reversed. Roger Edward Harris, Gretchen Holt Wagner, for Meli et al. Daniel R. Meachum, for Hicks. BARNES, Judge. Bobby R. Hicks was diagnosed with an epidural abscess in his lower back, and underwent two surgical procedures followed by a lengthy period of rehabilitation. He sue... In the Interest of S.P. et al., children. , Ga.App., November 12, 2009 Kevin Todd Butler, for Appellant. Thurbert E. Baker, Shalen S. Nelson, Robert Daniel Jewell, Kathryn Ann Fox, for Appellee. DOYLE, Judge. Following a hearing, a Colquitt County Juvenile Court terminated the parental rights of the natural mother of thirteen-year-old S. P., twelve-year- old A. P., and ten-year-old L.P. The mother now appeals, arguing that the evidence presented was insufficient to support the court's termination order. For the following reasons, we affirm. In reviewi... BRADFORD v. The STATE. , Ga.App., November 12, 2009 Christopher Gordon Paul, for Appellant. Thomas Joseph Campbell, for Appellee. JOHNSON, Presiding Judge. Following a bench trial, Nicholas Trent Bradford was convicted of violating the Georgia Controlled Substances Act, hindering a law enforcement officer, and several traffic offenses. Bradford was sentenced to a term of 45 years, of which 25 were to be served in custody. He appeals, claiming that he received ineffective assistance of trial counsel. Finding no error, we affirm. Bradf... LEWIS v. NICHOLAS FINANCIAL, INC. et al. , Ga.App., November 12, 2009 Andrew Howard Agatston, for Lewis. Scott Richard King, for Nicholas Financial, Inc. JOHNSON, Presiding Judge. Casey Lewis filed a lawsuit against Nicholas Financial, Inc. ["NFI"] after an independent contractor hired by NFI allegedly breached the peace when attempting to repossess Lewis' car. Lewis and NFI filed cross-motions for partial summary judgment regarding the issue of whether NFI could be held vicariously liable for the acts of the independent contractor. The trial court grant... CITY OF EAST POINT v. JORDAN. , Ga.App., November 12, 2009 William Randall Turner and Valerie Anne Ross, for Appellant. Andrew Woodruff Jones and Michael Louis Goldberg, for Appellee. JOHNSON, Presiding Judge. In January 2008, Johnathan Battle died after spending approximately 19 hours at the East Point Jail. Mia'Kesha Jordan, as the parent and natural guardian of Battle's two-year-old child, and Millicent Takyi, as administratrix of Battle's estate, filed suit against the City of East Point and the East Point Chief of Police, claiming that Ba... BOARD OF REGENTS OF the UNIVERSITY SYSTEM OF GEORGIA, et al. v. CASEY. , Ga.App., November 10, 2009 Thurbert E. Baker, Bryan F. Dorsey, Joan Gale Crumpler, for Board of Regents of the University System of Georgia, et al. George Devallon Bush, Martin C. Puetz, for Casey. DOYLE, Judge. This appeal arises from the trial court's denial of a motion to exclude expert testimony filed by the Board of Regents of the University System of Georgia ("BOR") d/b/a the Medical College of Georgia ("MCG") and Dr. Paul C. Houle (collectively "the Appellants") in an action alleging assault on the part o... ROBERTS v. POINTER et al. , Ga.App., November 10, 2009 Raymond Russell Grant II, Frederick M. Valz III, Erica L. Parsons, for Appellant. Randy J. Ebersbach, for Appellee. SMITH, Presiding Judge. Devin Roberts appeals from a judgment entered in favor of Michael and Debra Pointer on the Pointers' claim for damages arising out of an automobile accident. The parties did not dispute Roberts' liability, leaving the jury to determine the amount of damages to be awarded to the Pointers. [FN1] Roberts now appeals, claiming that the trial court erre... MOLINA v. The STATE. , Ga.App., November 10, 2009 Sharon Lee Hopkins, for Appellant. Daniel J. Porter and Margaret Bagley Benson, for Appellee. SMITH, Presiding Judge. A jury found Omar Arrizon Molina guilty of trafficking in methamphetamine and trafficking in cocaine. Following the denial of his motion for new trial, Molina appeals, challenging only the sufficiency of the evidence. We find the evidence sufficient and affirm. On appeal from a criminal conviction, we construe the evidence in the light most favorable to support the j... COTTON v. The STATE. , Ga.App., November 10, 2009 Stephen Jay Lichtenstein, for Cotton. Lee Darragh, for The State. SMITH, Presiding Judge. Omali Cotton appeals from his convictions for possession of marijuana with the intent to distribute, obstruction of an officer, giving false information to a police officer, driving with a suspended license, and failing to use a turn signal. In his sole enumeration of error, Cotton contends insufficient evidence exists to support his felony conviction for possessing marijuana with the intent to di... TORRES et al. v. PIEDMONT BUILDERS, INC. et al. , Ga.App., November 10, 2009 Kenneth Rob Ozment, for Torres. Carol V. Clark, for Piedmont Builders, Inc. DOYLE, Judge. William Torres and Jack Sawyer, Jr. ("Owners") appeal from the dismissal of their application to appoint an arbitrator pursuant to OCGA § 9-9- 7(b)(1), contending that the superior court erred in ruling that the arbitration of their construction dispute should be administered by the arbitration group named in their construction contract. Discerning no error, we affirm. Because the relevant fact... GEORGIA DEPARTMENT OF TRANSPORTATION v. MILLER et al. , Ga.App., November 10, 2009 Thurbert E. Baker, Paul R. Jordan, Donald Paul Boyle Jr., William Glen Bertram, for Appellant. Derek Chad Nuce, Manley F. Brown, John Christopher Clark, Charles W. Byrd, Charles Madden Cork III, for Appellee. DOYLE, Judge. Following a jury trial, the Georgia Department of Transportation ("DOT") appeals from a verdict in favor of plaintiffs Richard Miller (as administrator of the estate of Johnny Miller) and Linda Miller (Johnny Miller's surviving spouse), based on their claims arising ... OCONEE LAND & TIMBER, LLC v. BUCHANAN. , Ga.App., November 10, 2009 Thomas F. Richardson, Jason David Lewis, for Oconee Land & Timber, LLC. Carr G. Dodson, for Buchanan. DOYLE, Judge. Oconee Land & Timber, LLC, filed suit against Rene Buchanan, seeking specific performance of a contract to sell real property or, in the alternative, damages. The parties filed cross-motions for summary judgment, and the trial court ruled in favor of Buchanan, finding that the purchase agreement was unenforceable because it did not contain a legally sufficient description... IN RE: MESCAL LOUISE FENNELL. , Ga.App., November 10, 2009 (Court of Appeals Rule 4(b) and Rule 37(b), February 21, 2008) Smith, Presiding Judge. Melanie McCoy appeals from a probate court's order granting a petition filed by her brother for appointment of a conservator for their 84-year-old mother. [FN1] She also appeals the portion of the trial court's order requiring her to turn over a certificate of deposit to the conservator. For the reasons set forth below, we affirm in part and dismiss in part. FN1. The record before us contains no ... ST. JOSEPH'S HOSPITAL et al. v. WARD. , Ga.App., November 9, 2009 Todd Allen Brooks, Daniel Andrew Kiefer, for Appellant. Christopher James Hudson, Daniel Whitener Hamilton, for Appellee. Smith, Presiding Judge. In this discretionary appeal, St Joseph's Hospital appeals from a superior court's order reversing a decision of the Appellate Division of the State Board of Worker's Compensation. For the reasons set forth below, we reverse. In resolving this appeal, we must keep in mind the various standards of review applicable in this case. The Boa... WILLIAMS v. The STATE. , Ga.App., November 9, 2009 Green Berry Moore III, for Williams. Fredric Daniel Bright, for the State. DOYLE, Judge. After a jury trial, Scotty P. Williams was convicted of armed robbery, [FN1] two counts of aggravated assault, [FN2] burglary, [FN3] criminal attempt to commit aggravated sodomy, [FN4] and possession of a knife during the commission of a crime. [FN5] On appeal, Williams (1) challenges the sufficiency of the evidence as to each count; (2) argues that his trial counsel was ineffective; and contends ... CORBITT v. The STATE. , Ga.App., November 9, 2009 Holdings: The Court of Appeals, Smith, P.J., held that: (1) evidence was sufficient to support convictions for incest, rape, and four counts of child molestation; (2) similar transaction evidence regarding defendant's prior conviction for indecent exposure was admissible; (3) trial court error in instructing the jury that similar transaction evidence could be considered for the purpose of showing the crimes charged in the current case was harmless; and (4) trial court error, if a... In the Matter of Kevin SCHUMAKER. , Ga., November 9, 2009 In this disciplinary action, Kevin Schumaker has submitted a petition for voluntary discipline requesting the imposition of a Review Panel Reprimand with regard to four separate grievances brought against him (State Disciplinary Board Docket Numbers 5585, 5586, 5654, 5655). In its response, the State Bar of Georgia has recommended that Shumaker's petition be accepted. A review of Schumaker's petition, however, shows that, although it is complete with regard to Schumaker's violations in Docket Nu... ROSCOE v. The STATE. , Ga., November 9, 2009 MELTON, Justice. Tyshawn Roscoe was indicted for malice murder, felony murder, and hijacking a motor vehicle, and his trial date was set for April 27, 2009. Earlier, it had been discovered that Bernadette Davy, a firearms examiner for the State, had not been performing the required number of ballistics tests in each of her cases, and she was terminated for this breach of protocol. Davy had performed the testing on the alleged murder weapon in Roscoe's case. During pre-trial proceedings on ... LAWRENCE v. LAWRENCE. , Ga., November 9, 2009 NAHMIAS, Justice. This appeal involves the validity and enforceability of an antenuptial agreement. [FN1] The wife challenged the agreement on two grounds: (1) OCGA § 19-3-63 renders the antenuptial agreement void as a "marriage contract ... made in contemplation of marriage" not attested by at least two witnesses; and (2) the antenuptial agreement is unenforceable due to insufficient financial disclosure before it was executed. The trial court upheld the agreement. We affirm. FN1. Co... LACKEY v. The STATE. , Ga., November 9, 2009 HUNSTEIN, Chief Justice. Steven Bernard Lackey was convicted of malice murder and other crimes arising out of the shooting death of Larry Richardson. He appeals from the denial of his motion for new trial, challenging only the sufficiency of the evidence to support his convictions. [FN1] For the reasons that follow we reverse Lackey's conviction for misdemeanor obstruction of an officer and affirm his convictions for murder and the remaining crimes. FN1. The crimes occurred on Februar... COLEMAN v. The STATE Jackson v. The State. , Ga., November 9, 2009 BENHAM, Justice. Joseph Pernice and Sang Duk Lee suffered fatal gunshot wounds in Muscogee County in 2003. Appellant Farnsworth Coleman Jr., was convicted of and sentenced for the malice murder and aggravated assault of Pernice, as well as possession of a firearm during the commission of a crime and two violations of the Georgia Controlled Substances Act. Coleman was acquitted of the murder and aggravated assault of Sang Duk Lee. Appellant Anthony Jackson was convicted of and sentenced for th... WILSON v. The STATE. , Ga., November 9, 2009 CARLEY, Presiding Justice. Webster Wilson and two co-defendants were tried before a jury, which found Wilson guilty of felony murder, two counts of aggravated assault, two counts of possession of a firearm during the commission of a crime, and theft by receiving stolen property. The trial court entered judgments of conviction and sentenced Wilson to life imprisonment for felony murder, and to consecutive terms of imprisonment of 20 years for aggravated assault with a deadly weapon, 10 years f... ALLEN v. STATE. , Ga., November 9, 2009 BENHAM, Justice. This appeal is before the Court upon grant of a writ of certiorari. See Allen v. State, 292 Ga.App. 133 (663 S.E.2d 370) (2008). In 1987, appellant Joseph E. Allen pled guilty to theft by taking, robbery by sudden snatching, robbery by force, aggravated assault, and simple battery and was sentenced to twenty years, ten to serve. He was eventually released on parole; however, in March 2000, his parole was revoked and he returned to prison to serve the remainder of the sentenc... LEGGETTE v. LEGGETTE. , Ga., November 9, 2009 THOMPSON, Justice. This marks the second appearance of this case before this Court. Previously, in Leggette v. Leggette, 284 Ga. 432 (668 S.E.2d 251) (2008), we affirmed the final decree of divorce between Lester and Susan Leggette, but remanded the case on the issue of attorney fees. On remand, in addition to considering attorney fees, the trial court awarded wife 40 percent of the parties' retirement plans' value as of January 24, 2006, the date on which the final judgment of divorce was en... In the Matter of Coleman C. EATON, Jr. , Ga., November 9, 2009 PER CURIAM. Because this Court disbarred Coleman C. Eaton, Jr. from the practice of law in Georgia in Case No. S09Y0704 on [October 19,2009], we hereby order that these cases be transferred to inactive status and, in the event respondent petitions for reinstatement, be considered in conjunction with such petition. Placed on inactive status. In The Matter of Charles A. THOMAS, Jr. , Ga., November 9, 2009 Daniel Bruce Greenfield, Jack F. Witcher, for Charles A. Thomas, Jr. PER CURIAM. This matter is before the Court in Case No. S10Y0233 on the petition of Charles A. Thomas, Jr., for voluntary surrender of his Bar license. On September 16, 2009, Thomas pleaded guilty to 55 counts of theft by taking and forgery in the Superior Court of Carroll County. He acknowledges that by virtue of his convictions he has violated Rules 8.4(a)(2) and (a)(3) of the Georgia Rules of Professional Conduct foun... ARRINGTON v. The STATE. , Ga., November 9, 2009 HINES, Justice. A jury convicted Robert Owen Arrington of malice murder and felony murder and recommended a death sentence. The trial court denied Arrington's motion for new trial, and he appeals. [FN1] For the reasons set forth below, this Court affirms. FN1. The murder occurred on or about April 4, 2001. Arrington was indicted for malice murder and felony murder by a Richmond County grand jury on July 10, 2001. The State filed written notice of its intent to seek the death penalty o... HAROLD v. HAROLD. , Ga., November 9, 2009 THOMPSON, Justice. Susan and Randall Harold were married in 2003. In 2008 Susan (wife) filed an action for divorce and Randall (husband) timely filed an answer and counterclaim for divorce. After wife failed to respond to husband's discovery requests, husband filed a motion to compel, which the trial court granted. Wife failed to provide discovery responses in compliance with the trial court's motion to compel order and husband moved for sanctions and a default judgment against wife. On Janua... In the Interest of C.B., a child. , Ga., November 9, 2009 THOMPSON, Justice. In this juvenile case, the child, C.B., appeals from an adjudication of delinquency based upon his violation of the cruelty to animals statute, OCGA § 16-12-4(b). [FN1] He asserts, inter alia, that the statute is void because it is unconstitutionally vague. We find the statute to be constitutional, and affirm. FN1. The statute reads, in pertinent part: "A person commits the offense of cruelty to animals when he or she causes death or unjustifiable physical pain or s... BURNETT v. SLATTER et al. , Ga., November 9, 2009 MELTON, Justice. This is a quiet title action regarding property located at 2166 Rollingview Drive in DeKalb County. The facts, as found by the special master and adopted by the trial court, show that, on December 23, 1975, Zindi Mims acquired the property while engaging in drug trafficking activities. On May 18, 1977, Mims transferred the property to Lorenzo Callahan, her brother-in-law, and, on August 2, 1977, Lorenzo transferred the property to Sabrina Callahan Burnett, who was Mims' four-... COLEMAN et al. v. RETINA CONSULTANTS, P.C. et al. , Ga., November 9, 2009 MELTON, Justice. Brendan Coleman appeals from an order from the Superior Court of Richmond County, which enforced a non-compete clause in an employment agreement that Coleman had entered into with Retina Consultants, P.C. d/b/a The Retina Eye Center ("TREC"). The order enjoined Coleman from marketing certain software in competition with TREC and further ordered Coleman to pay certain money into the court registry. On appeal, Coleman contends that the trial court erred in upholding the non-com... BOYD v. The STATE. , Ga., November 9, 2009 Holdings: The Supreme Court, Hines, J., held that: (1) evidence was sufficient to support conviction; (2) the trial court's admission of a recorded statement of the victim's three-year-old brother was harmless; and (3) trial court did not violate statute that prohibited a judge in a criminal case from expressing an opinion as to what has or has not been proved or as to the guilt of the accused when the court stated that it would admit into evidence and allow the publication of two of... CITY OF SANDY SPRINGS v. KAPLAN et al. , Ga., November 9, 2009 THOMPSON, Justice. Ronnie and Richard Kaplan filed suit against Fulton County, the City of Sandy Springs and the Fulton County School District ("FCSD"), seeking, inter alia, damages for nuisance and trespass stemming from the flow of water across their land, as well as mandamus to order defendants to repair a 36-inch drainage pipe under their driveway. The case focuses on the question of whether the city impliedly accepted an easement for the drainage pipe on the Kaplans' property. The pip... STEVENS v. CLAYTON COUNTY DETENTION CENTER et al. , Ga., November 9, 2009 Daquan L. Stevens, pro se. Billy J. Dixon, A.D.A., Tracy Graham Lawson, D.A., for Clayton County Detention Center et al. HINES, Justice. Daquan L. Stevens, incarcerated while awaiting trial, sought a writ of habeas corpus. The superior court dismissed his petition. Stevens appeals and this Court affirms the dismissal. In two indictments that named a total of eleven defendants and set forth ninety-four counts, Stevens was charged with eight counts of malice murder, as well as associa... KLAUB v. BATTLE. , Ga., November 9, 2009 BENHAM, Justice. Appellant Ronald Klaub is currently serving a term of imprisonment following his convictions in 2001 for driving with a suspended license and for first degree vehicular homicide with failure to stop and render aid as the predicate offense. OCGA § 40-6-393(a) (1999); OCGA § 40-6-270(b) (1999). Following the affirmance of his convictions on appeal, [FN1] Klaub filed a petition for writ of habeas corpus in which he contended he was being unlawfully detained in light of a substan... WASHINGTON v. The STATE. , Ga., November 9, 2009 Barbara Barnett Claridge, Claridge Law Firm, Augusta, GA, for Washington. Thurbert E. Baker, A.G., Elizabeth Anne Harris, A.A.G., Department of Law, Atlanta, GA, Madonna Marie Little, A.D.A., Rebecca Ashley Wright, D.A., Augusta, GA, for The State. NAHMIAS, Justice. Sandy Washington was indicted along with Vernon Ryans, Jeremy Williams, and Andre Madison for malice murder, felony murder, and the possession of a firearm during the commission of a crime, all stemming from the shooting of... RUIZ v. The STATE. , Ga., November 9, 2009 Brian Steel, The Steel Law Firm, P.C., Atlanta, GA, for Ruiz. Thurbert E. Baker, A.G., Benjamin Henry Pierman, A.A.G., Department of Law, Bettieanne C. Hart, Deputy D.A., Paul L. Howard Jr., D.A., Marc A. Mallon, Senior A.D.A., Atlanta, GA, for The State. THOMPSON, Justice. Judgments of conviction were entered against Emmanuel Ruiz after a jury found him guilty of three counts of malice murder and possession of a handgun during the commission of a felony in connection with the shooting... INGRAM v. The STATE; two cases. , Ga.App., November 6, 2009 Holding: The Court of Appeals, Johnson, P.J., held that trial court erred by denying defendant's motion to allow out of time appeal without considering whether initial failure to pursue timely direct appeal was attributable to trial counsel or defendant. Affirmed in part; vacated and remanded with directions in part. Reginald Ingram, pro se. Gregory W. Edwards, M. Brumby McGehee Dwyer, for The State. JOHNSON, Presiding Judge. Reginald Ingram filed these pro se appeals from the deni... LESSER v. DOUGHTIE et al. , Ga.App., November 6, 2009 Donald W. Johnson, for Lesser. Stephen P. Fuller, Peter Alexander Durham, James R. Fortune Jr., David Frank Root, Julia Ann Merritt, The Forest Creek Inc., for Doughtie et. al. BERNES, Judge. In this civil action, Gayle Lesser sued appellees, Chris S. Doughtie; James E. Crane and D. Michael Duffey; Bowmac, LLC; and Dodson Creek, LLC, for specific performance or, alternatively, for monetary damages, based upon the breach of a promise to build a fence on the land running between Lesser'... EAYRS v. ABSOLUTE ROOFING, INC., et al. , Ga.App., November 6, 2009 Grover C. Bailey, for Eayrs. Ernest Dewitt Napier III, for Absolute Roofing, Inc., et al. BARNES, Judge. Allan F. Eayrs appeals the grant of partial summary judgment to Donn T. Harris. Eayrs contends the trial court erred by dismissing Harris as a defendant because genuine issues of material fact exist for a jury to determine. Finding no reversible error, we affirm. On appeal from a grant of summary judgment, the appellate court must review the evidence de novo to determine whether ... BROCK BUILT, LLC v. BLAKE. , Ga.App., November 6, 2009 Joshua David Jewkes, for Brock Built, LLC. Benjamin Alexander Stone, Thomas J. Munger, for Blake. BERNES, Judge. In this employment dispute, appellee Henry Blake, the former president of appellant Brock Built, LLC, sued Brock Built alleging that Brock Built breached his contract of employment by terminating him and failing to pay the severance and incentive compensation due under the terms of the contract. Blake further alleged that Brock Built tortiously breached its duty of good fait... FIELD v. LOWERY. , Ga.App., November 6, 2009 Michael Rene Braun, for Field. William D. Strickland, for Lowery. BARNES, Judge. Mark Field sued Mary Lowery for personal injuries he incurred when Lowery hit him with her car while he was walking down the road. Both parties moved for partial summary judgment, and the trial court granted Lowery's motion, holding that OCGA § 40-6-92 requires pedestrians to walk on the shoulder of the road when no sidewalk was available. The court further held that the area where Field had been walking w... MORGAN et al. v. PROPST et al. , Ga.App., November 6, 2009 John Thomas Morgan III, Louis Levenson, Dylan Littlejohn, for Robin Morgan. Bobby Lee Cook, Preyesh Kantilal Maniklal, Terry Dale Jackson, for Floyd Propst. PHIPPS, Judge. This appeal involves an action brought by Floyd Propst, the administrator of an estate, against Robin Morgan, the administrator of another estate. The suit renewed an earlier action voluntarily dismissed by Propst. A jury returned a verdict in favor of Propst and the court entered a judgment thereon. Morgan filed a n... SMITH v. The STATE. , Ga.App., November 6, 2009 Jimmonique R.S. Rodgers, for Smith. Paul L. Howard Jr., Bettieanne C. Hart, Elizabeth A. Baker, for The State. BERNES, Judge. Following a jury trial, Donald Frank Smith was convicted of aggravated assault on a peace officer, obstruction of a law enforcement officer, possession of a firearm during commission of a felony, boarding a bus with a concealed weapon, and giving false information to a law enforcement officer. Smith appeals, claiming that the trial court erred (i) in failing to ... LOVETT v. CAPITAL PRINCIPLES, LLC et al. , Ga.App., November 6, 2009 Stephen M. Katz, for Lovett. Constance Melissa Ewing, G. Wayne Hillis Jr., Alicia Ann Timm, Bradley S. Wolff, for Capital Principles, LLC et al. ANDREWS, Presiding Judge. The trial court dismissed Katie Lovett's complaint against Capital Principles, LLC and other defendants on the basis that Lovett failed to file with her complaint the written verifications required by subsection (b) of OCGA § 9-11-11.1, Georgia's anti-SLAPP (Strategic Lawsuits Against Public Participation) statute. L... WILLIAMS v. The STATE. , Ga.App., November 6, 2009 Holdings: The Court of Appeals, Barnes, J., held that: (1) defendant's failure to assert her speedy trial right prior to moving to dismiss weighed against her, and (2) delay of 26 months in bringing defendant to trial did not violate her speedy trial right. Affirmed. Dasha Michelle Jackson, Kenneth D. Kondritzer, for Latasha Williams. Paul L. Howard Jr., John O. Williams, Artisha Charliea Johnson, for The State. BARNES, Judge. Latasha Williams appeals the denial of her moti... BERGEN v. The STATE. , Ga.App., November 6, 2009 Holding: The Court of Appeals, Andrews, P.J., held that trial court could not revoke the entirety of defendant's probation based on the harassing phone calls. Reversed and remanded. David James Dunn Jr., Deborah Lynn Allen, for Bergen. Herbert E. Franklin Jr., for The State. ANDREWS, Presiding Judge. We granted this application for discretionary appeal after a Catoosa County trial court revoked John H. Bergen's probation. As in Gamble v. State, 290 Ga.App. 37, 658 S.E.2d 785 (2008)... PERFORMANCE FOOD GROUP, INC. v. WILLIAMS et al. , Ga.App., November 6, 2009 Douglas Kevin Burrell, for Performance Food Group, Inc. Trevor Grant Hiestand, Ashley Giblin, Steven P. Gilliam, Robert P. Gritton, for Williams et al. ANDREWS, Presiding Judge. Performance Food Group, Inc. appeals from the trial court's order granting Charles G. Williams, III's and Jonathan W. Mikula's motion for summary judgment on Performance Food's claim to recover benefits it paid to its employee, Jesse Gunn, under Tennessee's workers' compensation law. We affirm because Performan... The STATE v. DELVECHIO et al. , Ga.App., November 6, 2009 Holding: The Court of Appeals, Barnes, J., held that hotel had justification to evict defendants from hotel room for cause, and thus defendants no longer had a reasonable expectation of privacy in the room. Reversed and remanded with direction. Paul L. Howard Jr., Marc A. Mallon, for State. Edward John Chase III, Scott Jackson Harrison, Jimmonique R.S. Rodgers, Kenneth D. Kondritzer, for Delvechio et al. BARNES, Judge. The State appeals the trial court's decision to suppress eviden... In the Interest of D.C.H., a child. , Ga.App., November 6, 2009 Gabriel Ronald Bradford, Dustin R. Marlowe, for D.C.H. Thurbert E. Baker, Shalen S. Nelson, Ashley Willcott, Kate McCann, Elizabeth M. Williamson, for Appellee. MILLER, Chief Judge. A juvenile court terminated the parental rights of the parents of the minor child, D.C.H. ("the child"), and awarded custody of the child to the Department of Human Resources through Barrow County Department of Family and Children Services ("the Department"). The maternal great-grandparents, Thomas and Dori... PRICE v. The STATE. Price v. The State. , Ga.App., November 5, 2009 Randy Bernard Price, for Price. Richard Ashley Mallard, for The State. ELLINGTON, Judge. In August 2008, an Effingham County jury found Randy Price guilty of possession with intent to distribute marijuana and possession with intent to distribute methylenedioxymethamphetamine, in violation of the Georgia Controlled Substances Act, OCGA § 16-13-20 et seq. In Case No. A09A2328, he appeals, pro se, contending that the trial court erred in denying his motion for an extension of time to file... In the Interest of T.S. & L. S., children. , Ga.App., November 5, 2009 Joseph Michael Winter, for T.S. Alan W. Connell, Larry Jack Overman II, Stephen Douglas Ott, for appellees. DOYLE, Judge. The juvenile court entered an order granting sole custody of son, T. S., to the mother and sole custody of daughter, L. S., to the father. The mother appeals the juvenile court's (1) order denying reunification; (2) findings of fact, conclusions of law, and order modifying custody, visitation, and child support; and (3) child support order. For the reasons that foll... CUNNINGHAM et al. v. GAGE III et al. , Ga.App., November 5, 2009 John Clayton Cheshire, for John Cunningham. Scott Lester Bonder, Jeffrey Hobart Schneider, for Walter Gage. ANDREWS, Presiding Judge. We granted John Cunningham's application for interlocutory appeal of the trial court's order denying his motion to dismiss claims brought against him for fraudulent conveyance and quia timet. Cunningham argues that the fraudulent conveyance claim is barred by the statute of limitation and also argues that the plaintiffs lack standing to bring a quia time... PEARCE v. The STATE. , Ga.App., November 5, 2009 Macklyn A. Smith, for Pearce. Daniel J. Porter, for The State. BERNES, Judge. Following a jury trial, James Pearce was convicted of aggravated sexual battery, incest, child molestation, and statutory rape. On appeal from the trial court's denial of his motion for new trial, Pearce contends that the trial court erred 1) in denying his motion for a directed verdict as to the aggravated sexual battery charge; 2) in failing to excuse a prospective juror for cause; 3) in failing to declare ... ADAMS v. The STATE. , Ga.App., November 5, 2009 Holdings: The Court of Appeals, Phipps, J., held that: (1) police officer's improper comment on defendant's silence did not require grant of a mistrial, and (2) defendant waived any challenge to trial court's failure to give a curative instruction. Affirmed. Ronald Richard Parker, for Adams. Joseph Kenneth Mulholland, for The State. PHIPPS, Judge. Mario Adams appeals his conviction for cocaine possession. He contends that the trial court erred by denying his motion for mist... HARPER v. The STATE. Williams v. The State. Reed v. The State. , Ga.App., November 5, 2009 James Bradley Smith, Richard King Bridgeman, for The State. Shelley Welch Cox, for Reed. William Hansel Kitchens Jr., for Williams. Christopher David Elrod, for Harper. PHIPPS, Judge. In connection with an armed robbery at a jewelry store, Chad Neal Harper, Kelvin Williams, and Deon Reed, along with two others, were co- indicted, tried together, and convicted of numerous crimes. The appeals of Harper, Williams, and Reed are consolidated herein; the other two cases are not at issu... KING et al. v. PIONEER REGIONAL EDUCATIONAL SERVICE AGENCY et al. , Ga.App., November 5, 2009 E. Wycliffe Orr Sr., for King et al. Phillip L. Hartley, Thurbert E. Baker, Harry W. Bassler, Jennifer L. Dalton, for Pioneer Regional Educational Service Agency et al. BLACKBURN, Presiding Judge. While attending the Alpine Psychoeducational Program ("Alpine"), which is a school for students with severe emotional behavior disorders, Jonathan King committed suicide. Pursuant to 42 USC § 1983, his parents, Donald and Tina King, sued Pioneer Regional Educational Service Agency ("Pioneer R... HERNANDEZ v. The STATE. , Ga.App., November 5, 2009 Holdings: The Court of Appeals, Coyle, J., held that: (1) evidence supported finding that defendant's Miranda waiver was knowing and voluntary, and (2) trial court error, if any, in sentencing defendant for felony sexual battery even though the jury failed to make a specific finding that the victim was under the age of 16, was harmless. Affirmed. Jad Baskin Johnson, David James Dunn Jr., for Hernandez. Herbert E. Franklin Jr., Christopher Allen Arnt, for The State. DOYLE, Judg... ATHENS-CLARKE COUNTY BOARD OF TAX ASSESSORS v. NUCI PHILLIPS MEMORIAL FOUNDATION. , Ga.App., November 4, 2009 Holding: The Court of Appeals, Smith, P.J., held that charitable organization did not use its building exclusively for its charitable purposes and, thus, was not an institution of "purely public charity." Reversed. William C. Berryman Jr., Amy S. Gellins, for Athens-Clarke County Board of Tax Assessors. James C. Warnes II, for Nuci Phillips Memorial Foundation. SMITH, Presiding Judge. The Athens-Clarke County Board of Tax Assessors appeals from the trial court's order granting exem... TRIAD DRYWALL, LLC. v. BUILDING MATERIALS WHOLESALE, INC. , Ga.App., November 4, 2009 David Jason Merbaum, Andrew Jacob Becker, for Appellant. Dock H. Davis, for Appellee. ADAMS, Judge. In this appeal, Triad Drywall, LLC asserts that the trial court erred in granting a directed verdict in favor of Building Materials Wholesale, Inc. ("BMW") on Triad's breach of contract claim. Previously, in Building Materials Wholesale v. Triad Drywall, 287 Ga.App. 772 (653 S.E.2d 115) (2007) ("Triad I "), [FN1] this Court affirmed the jury's verdict finding BMW liable to Triad for b... 3060 CORP. et al. v. CRESCENT ONE BUCKHEAD PLAZA, L.P. , Ga.App., November 4, 2009 Anna-Elisa Mackowiak, for 3060 Corp. Yoon Jae Ettinger, for Crescent One Buckhead Plaza, L.P. ADAMS, Judge. A server at Nava Restaurant [FN1] slipped and fell on some stairs at work and injured his left hand. He brought suit against the restaurant property owner, Crescent One Buckhead Plaza, L. P., claiming negligent maintenance of the stairs and breach of the duty to keep the premises safe. Crescent One tendered the suit to Nava and its insurer based on language in Nava's lease and b... BRADLEY v. JOHNSTON et al. , Ga.App., November 4, 2009 Holding: The Court of Appeals, Andrews, P.J., held that attorneys were entitled to a 20% undivided interest in the remaining 103.1-acre tract, rather than to 16.62 acres of the property or its value. Reversed. Lawrence Allyn Stockton Jr., for Bradley. G. Roger Land, James T. Johnston Jr., for Johnston et al. ANDREWS, Presiding Judge. James T. Johnston, Jr. and G. Roger Land, attorneys, sued their former client, Gail M. Bradley, to collect attorney fees due under a written contract. ... FINNERTY v. STATE BANK AND TRUST COMPANY. , Ga.App., November 3, 2009 John A. Christy, Elizabeth Louise Fite, for Finnerty. Richard James Dreger, Kenneth Paul Robin, for State Bank and Trust Company. JOHNSON, Presiding Judge. Donald Finnerty executed a promissory note payable to Security Bank of North Metro on August 15, 2007, in the principal amount of $1,160,000. Security Bank [FN1] filed the present complaint on September 30, 2008, alleging Finnerty defaulted on the note. Finnerty counterclaimed for invasion of privacy and other damages associated wi... CARRAGHER v. POTTS. , Ga.App., November 3, 2009 Joseph A. Carragher Jr., for Carragher. Troy R. Millikan, for Potts. BERNES, Judge. In this action to set aside an attorney's lien on real property, attorney Joseph A. Carragher, Jr. appeals the trial court's grant of summary judgment in favor of the property owner, Andrew Potts. The trial court's decision concluded that the attorney's lien was unenforceable since it was not timely filed prior to the settlement and dismissal of the underlying action in which the attorney fees had accru... LAWRENCE v. The STATE. , Ga.App., November 3, 2009 Holding: The Court of Appeals, Phipps, J., held that police officer lacked probable cause to arrest defendant, and thus the search performed incident to the arrest, which uncovered cocaine on defendant's person, was unconstitutional. Reversed. Steven Mitchell Harrison, for Lawrence. Timothy Grady Vaughn, Jason Oran Waters, for The State. PHIPPS, Judge. Following a bench trial, Jack Lawrence was convicted of possession of cocaine. On appeal, he challenges the trial court's denial of... LING v. The STATE. , Ga.App., November 3, 2009 DOYLE, Judge. Following a jury trial, Annie Ling was convicted of cruelty to a child. She appeals the denial of her motion for new trial in a single enumeration of error, arguing that her trial counsel provided ineffective assistance of counsel by failing to secure an interpreter for her both before and during the trial. We affirm, for reasons that follow. Viewed in favor of the verdict, [FN1] the record shows that the Spalding County Department of Family and Children Services ("DFCS") rec... COVINGTON SQUARE ASSOCIATES, LLC v. INGLES MARKETS, INC. , Ga.App., November 3, 2009 Holdings: The Court of Appeals, Mikell, J., held that: (1) former lessor converted check that former lessee mistakenly mailed to it; (2) sufficient evidence supported an award of attorney fees to former lessee; and (3) question of whether to impose such a punitive damages award is for the trier of fact. Affirmed in part and reversed in part. Michael A. Kessler, for Covington Square Associates, LLC. Samuel Robinson Arden, Jill Rhodes Johnson, for Ingles Markets, Inc. MIKELL... RAMOS-SILVA v. STATE FARM INS. CO. as Subrogee of and in the Name of Mary Reddy. , Ga.App., November 2, 2009 Russell B. Davis, Mary Elizabeth Priest, for Appellant. Candace Marie Boutwell, for Appellee. BERNES, Judge. The issue in this case is whether an uninsured motorist insurer can sue a tortfeasor for subrogation after the tortfeasor has been released from personal liability except to the extent that insurance coverage, other than the tortfeasor's personal liability policy, exists. Because we answer this question in the affirmative, we affirm the judgment of the trial court. The pertin... THOSE CERTAIN UNDERWRITERS AT LLOYDS LONDON v. DTI LOGISTICS, INC. , Ga.App., November 2, 2009 Gregory L. Mast, for those Certain Underwriters at Lloyds London. James S. Strawinski, for DTI Logistics, Inc. ADAMS, Judge. The entire cargo of three trailers was stolen while the trailers were parked in a Ryder Truck facility parking lot. DTI Logistics, Inc., the company transporting the cargo, had cargo insurance provided by Those Certain Underwriters at Lloyd's, London Subscribing to Policy No. C6120102 (the "Underwriters"). The policy covers loss of cargo owned by third parties, a... JERKINS v. JERKINS. , Ga.App., November 2, 2009 Holdings: The Court of Appeals, Bernes, J., held that: (1) letter from decedent's attorney to executor was admissible as a past recollection recorded, and (2) decedent's statement in letter was admissible as executor's admission by silence. Affirmed. J. Hue Henry, for Jerkins. David R. Montgomery, for Jerkins. BERNES, Judge. At issue in this appeal is whether the trial court erred in allowing the closing attorney in a real estate transaction to read to the jury a letter mem... KOHLER v. The STATE. , Ga.App., November 2, 2009 Holdings: The Court of Appeals, Bernes, J., held that: (1) evidence of marijuana recovered along with cocaine was admissible as part of res gestae of the crime, and (2) trial court did not abuse its discretion in deciding to give curative instructions, rather than grant a mistrial, after witness referred to defendant's prior arrest record. Affirmed. Roger L. Curry, for Kohler. Fred Andrew Lane Jr., Anthony Volkodav Jr., for the State. BERNES, Judge. A Paulding County jury c... OLIVARIA v. STATE. , Ga.App., November 2, 2009 Holding: The Court of Appeals, Phipps, J., held that retrial following mistrial due to prosecutorial misconduct did not violate double jeopardy. Affirmed. Rafe Banks III, for Olivaria. Penny Alane Penn, Sandra Ann Partridge, for State. PHIPPS, Judge. During the state's presentation of evidence against Joseph Olivaria on a drug-related charge, a police officer who was waiting to testify on behalf of the state wrote on a chalkboard in the jury room "James Dunn [the prosecutor] is my ... ADEM v. The STATE. , Ga.App., November 2, 2009 Jerome J. Froelich Jr., Adam Marshall Hames, for Adem. Daniel J. Porter, for The State. PHIPPS, Judge. Khalid Misri Adem was convicted of first degree child cruelty [FN1] and aggravated battery [FN2] for removing his daughter's clitoris. On appeal, he contends that the trial court erred in rejecting his claim of ineffective assistance of counsel. FN1.OCGA § 16-5-70(b). FN2.OCGA § 16-5-24. To prevail on an ineffectiveness claim, a defendant must establish, pursuant... SOUDER v. The STATE. , Ga.App., November 2, 2009 Charles H. Frier, for Souder. Paul L. Howard Jr., Marc A. Mallon, for The State. BERNES, Judge. Following a jury trial, Jacques Souder was convicted of hijacking a motor vehicle, OCGA § 16-5-44.1(b); armed robbery, OCGA § 16-8-41(a); possession of a firearm during the commission of a felony, OCGA § 16-11- 106(b); and carrying a concealed weapon, OCGA § 16-11-126(a). [FN1] Souder appeals from the denial of his motion for new trial, contending that the trial court erred in denying his mo... The STATE v. LYNCH. , Ga., November 2, 2009 CARLEY, Presiding Justice. After Kory Gore was stabbed to death in DeKalb County and his vehicle taken, law enforcement officers in Nash County, North Carolina spotted the vehicle being driven by Patrick Lynch, and a high-speed chase ensued. Lynch eventually left the vehicle and fled. The DeKalb County Police Department was notified, and Detectives Kevin Farmer and Shane Cheek traveled to Nash County to investigate. After a brief manhunt, Lynch was found, taken into custody, and transported t... HALL v. LEE. Lee v. Hall. , Ga., November 2, 2009 BENHAM, Justice. James Allyson Lee was convicted in 1997 of malice murder, felony murder, armed robbery, and possession of a firearm during the commission of a felony, and he was sentenced to death for the murder. This Court unanimously affirmed Lee's convictions and death sentence. Lee v. State, 270 Ga. 798 (514 S.E.2d 1) (1999). In 2000, Lee filed a petition for writ of habeas corpus, and he filed his amended petition on April 18, 2001. An evidentiary hearing was held on August 17, 2001, an... DAVIS v. The STATE. , Ga., November 2, 2009 Holdings: The Supreme Court, Hunstein, C.J., held that: (1) evidence was sufficient to support convictions, and (2) identification procedure was not impermissibly suggestive. Affirmed. HUNSTEIN, Chief Justice. Appellant Desmond Davis was convicted of malice murder, two counts of felony murder, aggravated assault, armed robbery and two firearm possession charges in connection with the shooting death of Jameson Bush. Finding no error in the denial of Davis's motion for new trial, [... PAREJA v. The STATE. , Ga., November 2, 2009 MELTON, Justice. In Pareja v. State, 295 Ga.App. 871 (673 S.E.2d 343) (2009), the Court of Appeals affirmed Pareja's conviction for one count of child molestation, finding that the evidence was sufficient to support the verdict and that the trial court properly admitted certain similar transaction evidence. We granted certiorari to determine whether the Court of Appeals erred in ruling that the trial court properly admitted, as a similar transaction, evidence of an act of molestation that Par... LEVENSON v. WORD et al. , Ga., November 2, 2009 Louis Levenson, pro se. Jack Freddie Witcher, Kevin B. Buice, Rita D. Carroll, for Word. HUNSTEIN, Chief Justice. This is a conversion case involving the interpretation of OCGA § 53- 1-5, a probate statute that addresses the inheritance rights of an individual who feloniously and intentionally kills or conspires to kill the decedent. Appellant Louis Levenson, the administrator c.t.a. of the estate of Jerry Post, brought suit in 2006 against appellees, two criminal defense attorneys and... HASKELL v. HASKELL. , Ga., November 2, 2009 Charla E. Strawser, Kathy L. Portnoy, Atlanta, GA, for Haskell. Miriam A. Arnold-Johnson, Decatur, GA, Divida Gude, Atlanta, GA, for Haskell. CARLEY, Presiding Justice. Angela Haskell (Wife) and Brian Haskell (Husband) were married in 2001, and their only child was born in 2004. When the child was three years old, Wife brought this divorce action and was awarded temporary primary physical custody. In May 2008, she moved to Philadelphia, Pennsylvania. After a final hearing in September ... The STATE v. FOLSOM. Folsom v. The State. , Ga., November 2, 2009 MELTON, Justice. This is the second appearance of this case in this court. In State v. Folsom, 285 Ga. 11 (673 S.E.2d 210) (2009), we set forth the facts of this case as follows: Kenneth Doyle Folsom is charged with the kidnapping and murder of Bobby Timms. [The State has filed a direct appeal from the trial court's pre-trial decision to suppress evidence (OCGA § 5-7-1(a)(4)), and Folsom has filed a cross-appeal. See OCGA § 5-7-1(b).) ] On the morning of July 31, 2007, Agent John Cobb of ... CENTURY BANK OF GEORGIA v. BANK OF AMERICA, N.A., et al. , Ga., November 2, 2009 MELTON, Justice. Century Bank of Georgia appeals from the entry of an injunction requiring it to pay $215,470.81 into the registry of the Superior Court of Gordon County, contending that the injunction was not authorized because any party with a potential claim against Century Bank has an adequate remedy at law. For the reasons that follow, we reverse. Although the issue raised on appeal primarily concerns Century Bank and Bank of America, N.A. ("Bank of America"), some additional facts in... COOPER v. The STATE. , Ga., November 2, 2009 Holdings: The Supreme Court, Carley, P.J., held that: (1) evidence was sufficient for convictions; (2) any difference between allegations in indictment and proof regarding cause of death was not fatal variance; and (3) defendant was party to crimes. Affirmed. CARLEY, Presiding Justice. The grand jury indicted Clifford Cooper for malice murder, felony murder, burglary, robbery and arson. The jury found him guilty of felony murder, burglary and robbery. The trial court entered ... WILLIAMS v. The STATE. , Ga., November 2, 2009 Carl P. Greenberg, Georgia Capital Defender, Atlanta, for Williams. Thurbert E. Baker, A.G., Department of Law, Bettieanne C. Hart, Deputy D.A., Paul L. Howard Jr., D.A., Christopher Robert Johnson, A .A.G., Department of Law, Atlanta, for The State. NAHMIAS, Justice. In 2008, a Fulton County jury convicted Alfred Williams of malice murder and other crimes in connection with the shooting death of BaKarry Bailey. On appeal, Williams contends the evidence presented at trial was insuffici... ANDERSON v. STATE. , Ga., November 2, 2009 Holdings: The Supreme Court, Hunstein, C.J., held that: (1) evidence was sufficient for convictions; (2) admission of hearsay did not violate defendant's Sixth Amendment right to confrontation; and (3) reasonable doubt jury charge with phrase that it was not "best possibility of doubts" did not alter state's burden of proof. Affirmed. Peter D. Johnson, for Anderson. Thurbert E. Baker, A.G., Christopher Robert Johnson, A.A.G., Richard Ashley Mallard, D.A., for State. HUNSTE... ALVISTA HEALTHCARE CENTER, INC., et al. v. MILLER. , Ga., November 2, 2009 Holding: After granting certiorari review, the Supreme Court, Carley, J., held that spouse was entitled to access the records accordance with federal Department of Health and Human Services regulation promulgated under Health Insurance Portability and Accountability Act of 1996 (HIPAA). Affirmed. Melton, J., filed a dissenting opinion. CARLEY, Presiding Justice. Mary Miller is the surviving spouse of Stanton Miller, who resided in a nursing care facility owned and operated by Alvista... ROGERS v. The STATE. , Ga., November 2, 2009 George Terry Jackson, Jackson & Schiavone, Savannah, GA, for Rogers. Thurbert E. Baker, A.G., Mary Kimmey Ware, A.A.G., Department of Law, Atlanta, GA, Denise D. Fachini, D.A., Barbara Anne Becraft, Chief A.D.A., Cordele, GA, for The State. HINES, Justice. James Robert Rogers appeals the denial of his motion to withdraw his plea of guilty to the felony murder of Cheryl Gilmore. For the reasons that follow, we affirm. [FN1] FN1. Gilmore was killed on July 7, 2001. On February 18, 2002, ... RUSSELL v. ARGENT MORTGAGE COMPANY, LLC et al. , Ga., November 2, 2009 Preston Lee Haliburton, Snellville, for Russell. Kyle Shigeyuki Kotake, Johnson & Freedman, LLC, Atlanta, for Argent Mortgage Company, LLC et al. HINES, Justice. Sandra Russell ("Russell") and her husband, now deceased, executed a promissory note and security deed concerning real property in DeKalb County, Georgia, in favor of Argent Mortgage Company, LLC ("Argent") on March 29, 2004. Argent assigned its rights in the note and security deed to Ameriquest Mortgage Company, which in turn... WILLIAMS v. HALL. , Ga., November 2, 2009 Holding: The Supreme Court, Carley, P.J., held that appearance for the first time in trial court's final order of issue of inadequacy of attorney's pretrial investigation deprived warden of opportunity to address inmate's alleged contention that his attorney's pretrial investigation was seriously lacking and deprived inmate of a true adversarial process. Reversed and remanded. Benham, J., dissented and filed opinion in which Hunstein, C.J., joined. Thurbert E. Baker, A.G., Amy E. Hawkins... MARTIN v. MARTIN. , Ga., November 2, 2009 Holding: The Supreme Court, Benham, J., held that trial court was authorized to make changes to trust that would facilitate appointment of trustee. Affirmed. BENHAM, Justice. This appeal concerns a dispute over a trust in a will. Appellee Linda Faye Armstrong Martin's deceased husband's will established a "Residence Trust," the assets of which consisted of the marital residence and a bank account. [FN1] The trust bank account was to provide funds for expenses and maintenance of the resid... TAYLOR v. The STATE. , Ga., November 2, 2009 Holdings: The Supreme Court, Melton, J., held that: (1) State could not maintain a prosecution under both the involuntary manslaughter statute and the homicide by vehicle statute for a death that resulted from reckless driving; (2) trial court improperly usurped role of jury in re-casting jury's guilty verdict on improper involuntary manslaughter charge as a finding of guilt on an additional homicide by vehicle count; and (3) evidence supported conviction for serious injury by vehicle a... SWAN v. The STATE. , Ga.App., October 30, 2009 ADAMS, Judge. Virginia Louise Swan appeals after she was convicted by a jury of trafficking in methamphetamine (OCGA § 16-13-31), violating the Georgia Controlled Substances Act (OCGA § 16-13-30) and contributing to the delinquency of a minor (OCGA § 16-12-1). We affirm. Viewed in the light most favorable to the verdict, [FN1] the evidence showed that on July 28, 2004, five to six agents from the Cherokee County Multi-Agency Narcotics Squad ("C-MANS") arrived at Swan's house to ask for con... DAVIS v. BATCHELOR, et al. , Ga.App., October 30, 2009 ADAMS, Judge. Henry Davis brought suit against Officer Jason Batchelor and the city of Warner Robins for damages arising out of an incident when Batchelor ran over Davis's foot with his patrol car in connection with Davis's arrest. The trial court granted the defendants' motion for summary judgment, holding that Batchelor was performing a discretionary duty and that the city was protected by sovereign immunity for the state law negligence claim and that Davis was unable to show a Section 1983... WOOD v. The STATE. , Ga.App., October 30, 2009 Brandon Alexander Bullard, for Appellant. Fred Andrew Lane Jr. and Paul Ernst Hemmann, for Appellee. ADAMS, Judge. After a jury convicted Christopher Jimmy Wood on one count of burglary, he filed a motion for new trial. Wood appeals following the denial of that motion asserting as his sole ground that the evidence was insufficient to support the verdict. We affirm. In considering Wood's appeal, we must construe the evidence in a light most favorable to the verdict and "[Wood] no lon... FITZPATRICK v. HARRISON. , Ga.App., October 30, 2009 Julian H. Toporek, for Appellant. Wallace Eugene Harrell, for Appellee. ADAMS, Judge. Richard C. Fitzpatrick filed a complaint asserting claims for legal malpractice and intentional infliction of emotional distress against Anthony L. Harrison in connection with Fitzpatrick's divorce. In response, Harrison filed a motion to dismiss the complaint on the grounds that (1) the claims were barred by the doctrine of collateral estoppel; (2) the complaint failed to state a claim for legal malp... JOHNSON v. The STATE. , Ga.App., October 28, 2009 MIKELL, Judge. In Johnson v. State, 292 Ga.App. 752 (665 S.E.2d 431) (2008), we reversed Joshua Johnson's conviction for possessing more than one ounce of marijuana and remanded the case for a new trial. On certiorari, the Supreme Court reversed our ruling. Johnson v. State, 285 Ga. 571 (679 S.E.2d 340) (2009). Accordingly, our prior opinion is vacated, the judgment of the Supreme Court is made the judgment of this court. Judgment affirmed. MILLER v. The STATE. , Ga.App., October 28, 2009 MIKELL, Judge. Greg Miller was charged with cruelty to children for maliciously causing cruel and excessive physical and mental pain to a child under the age of 18 and with family violence battery for intentionally causing visible bodily harm to Wintress Goodrum, with whom he had previously resided. A jury acquitted Miller of cruelty to children and convicted him of simple battery as a lesser included offense of family violence battery in connection with the offense against Goodrum. In Miller... STETZ v. The STATE. , Ga.App., October 28, 2009 Holdings: The Court of Appeals, Smith, P.J., held that: (1) defendant was not entitled to the additional information he requested from state pursuant to statute providing that, upon request of person submitting to chemical test, full information concerning the test shall be provided to that person or his attorney, and (2) trial court denial of defendant's discovery request was not an abuse of discretion. Affirmed. Jerry Lee Webb Jr., for Stetz. Robert D. James Jr., for The State. ... GARNER PLUMBING, INC. v. SLATE CONSTRUCTION, INC. , Ga.App., October 28, 2009 SMITH, Presiding Judge. Garner Plumbing, Inc. (Garner) appeals from a judgment on a jury verdict in favor of Slate Construction, Inc. (Slate) on its claim against Slate for breach of contract. Garner appeals, challenging the denial of its motions for directed verdict and for a new trial. Because the trial court denied Garner's motion for a new trial without holding a hearing, we vacate the judgment and remand this case for the required hearing. 1. The record reveals that on April 30, 2008,... CLARK v. The STATE. , Ga.App., October 28, 2009 BLACKBURN, Presiding Judge. On March 2, 2009 Alvin D. Clark pled guilty to theft by shoplifting [FN1] and pled nolo contendre to simple battery. [FN2] The trial court sentenced him to twelve months confinement on each count, but suspended the sentence upon service of 180 days, with credit for time served since January 22, 2009. With additional credit for good behavior, Clark was apparently released on April 22, 2009, after serving only 90 days in jail. FN1.OCGA § 16-8-14(a). ... COLLINS v. The STATE. , Ga.App., October 28, 2009 Brian Keith Ross, for Collins. William Kendall Wynne Jr., David Edward Boyle, for the State. BLACKBURN, Presiding Judge. Following a jury trial, Eddie Collins was convicted on two counts of aggravated battery, [FN1] four counts of aggravated assault, [FN2] one count of reckless driving, [FN3] one count of reckless conduct, [FN4] and one count of leaving the scene of an accident. [FN5] He appeals his convictions and the denial of his motion for new trial, arguing that his trial counsel ... WEBB v. The STATE. , Ga.App., October 27, 2009 Thomas Alan Camp, for Webb. Robert W. Lavender, for The State. DOYLE, Judge. A jury convicted Kassie Webb of the lesser-included offense of cruelty to children in the second degree. [FN1] In her sole enumeration of error, Webb contends that the trial court erred by refusing to allow testimony by a witness whom she failed to identify on her witness list without a showing of bad faith and harm to the State and where the witness was identified as a potential witness by the State on the St... CLINE v. The STATE. , Ga.App., October 27, 2009 DOYLE, Judge. Following a jury trial, James Cline appeals his conviction of aggravated sexual battery [FN1] and cruelty to children, [FN2] contending that (1) the trial court erroneously granted the State's motion in limine regarding a State's witness's first-offender guilty plea to a drug offense; (2) the court erred in admitting evidence of three similar transactions involving Cline's prior sexual abuse of underage girls; (3) the court erred in denying his motion for new trial based on a c... SHEPPARD v. The STATE. , Ga.App., October 27, 2009 James Webster Krembs, for Appellant. Larry Chisolm, Isabel M. Pauley, for Appellee. DOYLE, Judge. Duaine Ralph Sheppard was convicted of one count of felony theft by taking, [FN1] and he was sentenced to serve ten years, five in confinement. [FN2] Following the denial of his motion for new trial, Sheppard appeals, arguing that the trial court erred by: (1) admitting evidence regarding his arrest; (2) admitting a videotape of the theft at issue without a proper foundation; (3) sentenci... CLARY et al. v. CITY OF STOCKBRIDGE. City of Stockbridge v. Clary et al. , Ga.App., October 27, 2009 DOYLE, Judge. Sarah D. Clary, individually, and as executrix of the Estate of J .D. Clary; the Estate of J.D. Clary; and J.H. Thurman ("condemnees") appeal from a jury award for compensation in a taking of a tract of land in Henry County, arguing that the trial court erred by admitting certain evidence and by excluding other evidence. The City of Stockbridge cross-appeals, alleging that the trial court erred by failing to award attorney fees under OCGA § 22-2- 84.1. We consolidate these appea... GRISSOM v. The STATE. , Ga.App., October 26, 2009 DOYLE, Judge. Following a jury trial, Jerry Grissom appeals his conviction of three counts of possessing a controlled substance [FN1] (methamphetamine, alprazolam, and hydrocodone) and contends that the trial court erred in denying his motion for new trial based on the State's improper comments about his pre- and post-arrest silence. Because the Georgia Supreme Court has held that such comments violate a criminal defendant's right to remain silent, and because the evidence of Grissom's guilt... WESBY v. The STATE. , Ga.App., October 26, 2009 ELLINGTON, Judge. A Richmond County jury found Tyrone Wesby guilty of two counts of armed robbery, OCGA § 16-8-41(a); and two counts of possession of a firearm during the commission of a crime, OCGA § 16-11-106(b)(1). Wesby appeals from the denial of his motion for new trial, contending the trial court erred in denying his motion to suppress evidence, in refusing to suppress identification testimony, and in failing to require further jury deliberations after a juror expressed reservations abo... KELLEY v. BLUE LINE CARRIERS, LLC. Aquilar, et al. v. Kelley. , Ga.App., October 23, 2009 DOYLE, Judge. Following a collision in which a tractor-trailer hit her car from behind, Laverne Kelley filed suit against the truck driver, Alvaro Enrique Aquilar; the company which owned the truck, Blue Line Carriers, LLC; Blue Line's insurance company, Aequicap Insurance Company; and John Doe. In Case No. A09A1070, Kelley appeals the trial court's grant of partial summary judgment to Blue Line on her negligent hiring, entrustment, supervision, and retention claim. In Case No. A09A1071, the ... LEWIS v. The STATE. , Ga.App., October 23, 2009 Darrell Lewis, pro se. Louie Craig Fraser, for The State. ELLINGTON, Judge. Darrell Lewis appeals from the trial court's denial of his motion for an out-of-time appeal. Finding no error, we affirm. An out-of-time appeal serves as the remedy for a frustrated right of appeal for a criminal defendant whose conviction has not been reviewed by an appellate court. It is the means by which a criminal defendant who lost his right to direct appeal of his criminal conviction due to counsel's... WEST v. The STATE. , Ga.App., October 23, 2009 JOHNSON, Presiding Judge. On October 5, 2005, an officer with the Cordele Police Department effected a traffic stop on Scottie West because his car had two burned out brake lights. While speaking with West, the officer noticed the odor of alcohol emanating from West and that West had watery eyes. The officer also noticed a can of beer in the center console, a nearly-empty bottle of liquor on the seat, and a small child sleeping in the back seat. The officer asked West if he had been drinking,... BROWN v. The STATE. , Ga.App., October 23, 2009 Jeffrey Walker Frazier and Kenneth Raymond Croy, for Appellant. Patrick H. Head, Gregory Lee Epstein and John Richard Edwards, for Appellee. ELLINGTON, Judge. A Cobb County jury found James Thomas Brown guilty of possession of cocaine, in violation of the Georgia Controlled Substances Act, OCGA § 16- 13-30(a). Brown appeals, challenging the trial court's denial of his motion to suppress. For the following reasons, we reverse. When reviewing a trial court's decision on a motion to s... PERDUE v. The STATE. , Ga.App., October 23, 2009 D. Duston Tapley Jr., for Glenn Perdue. Louie Craig Fraser, for The State. MIKELL, Judge. Glenn Edward Perdue was convicted of theft by taking, OCGA § 16-8-2, and criminal trespass, a misdemeanor, and was sentenced to an aggregate of ten years, including six in confinement. On appeal from the order denying his motion for new trial, Perdue contends, inter alia, that the evidence does not support his sentence for felony theft by taking because the state failed to prove that the value of ... © 2009 West, a Thomson business Westlaw Integration Solutions  /  Westlaw.com