text:
    A02A0522.
    RUSHING v. GOLD KIST, INC. et al.
    (567 SE2d 384)
   Ruffin, Judge.

Robert Rushing appeals from the trial court’s order compelling him to arbitrate a dispute he has with Gold Kist, Inc. and AgraTrade Financing, Inc. (“AgraTrade”). Finding no error, we affirm.

The facts are largely undisputed. Rushing was a member of Gold Kist, an agricultural cooperative. On August 12, 1985, Rushing executed a membership agreement with Gold Kist, which provided that the agreement was “subject to and include [d] all of the applicable provisions contained in Gold Kist’s charter and By-Laws now or hereafter in effect.” On October 28, 1993, Gold East’s board of directors adopted an “Arbitration Policy,” declaring that, effective January 1, 1994, the following matters shall be subject to arbitration:

All disputes of fact or law between Gold Kist and members arising during the period of a member’s membership, even if resolution of the dispute is attempted after termination of the member’s membership, and even if the facts or events alleged in the dispute arose or existed prior to the disputing party’s becoming a member. This arbitration policy is intended to cover all types of disputes to the maximum extent permissible by the law in effect at the time a dispute arises, whether the dispute arises under federal or state statutes or common law, except that this arbitration policy shall not include, nor shall it permit any arbitrator to decide, disputes relating to matters in the discretion of management or the Board of Directors, disputes concerning what matters fall within the discretion of management or the Board of Directors, nor patronage or corporate power or governance matters since they could involve questions affecting the membership as a whole. Neither shall it apply to any purchases or sales between Gold Kist and members, or contracts for such purchases or sales, if the transactions were completed or the contracts executed prior to the effective date of this policy.

The arbitration policy also provided that, “[ujnless otherwise agreed to by the parties, all arbitrations hereunder shall be subject to and governed by the Federal Arbitration Act.”

Consistent with its arbitration policy, Gold East’s Amended and Restated By-Laws, dated October 25, 1996 (“By-Laws”), include an arbitration clause providing:

Gold Kist and members will submit to binding arbitration all disputes between the parties, whether governed by federal, state, or international contract law, tort law, statute, or treaty, and irrespective of the form of relief sought, relating to or arising out of matters of a type declared by Gold Kist’s Board of Directors before the dispute arises to be of a type covered by Gold Kist’s arbitration policy. All such arbitrations shall be according to rules and procedures adopted from time to time by Gold Kist’s Board of Directors. . . . This section shall continue to govern all disputes that arise during or relate to the member’s period of membership in Gold Kist, even after such membership might be terminated for any reason.

On August 28, 1997, Rushing executed a promissory note in favor of Gold Kist, which the company assigned to AgraTrade. Claiming that Rushing had defaulted on his obligations under the note, Gold East sent Rushing a certified letter on May 3, 2000, demanding that the parties submit the matter to arbitration. Rushing failed to respond to the demand, and Gold Kist and AgraTrade filed a motion to compel arbitration. Rushing opposed the motion, arguing that he had never agreed to the arbitration clause, that it was unenforceable because it lacked mutuality, and that the Georgia Arbitration Code does not apply. The trial court granted the motion, concluding that, because Rushing had not timely moved to stay arbitration proceedings after receiving the certified demand letter, he was precluded from denying the validity of the agreement under OCGA § 9-9-6 (d) (Supp. 2001). This appeal ensued.

On appeal, Rushing contends that the court erred in relying on the Georgia Arbitration Code in precluding him from challenging the validity of the agreement because it is not governed by the state Act but by the Federal Arbitration Act (“FAA”). Rushing also argues that the agreement is unenforceable because the parties never agreed to arbitrate and because it is unsupported by consideration and lacks mutuality.

1. In addressing Rushing’s contention that the agreement is governed by the FAA, we must determine the import of the arbitration policy adopted by Gold Kist’s board, which purports to subject all arbitrations to the federal Act. The parties do not contend that the board was without authority to adopt the provision, and the By-Laws clearly grant the board such rule-making power.

Where the bylaws of a corporation, regularly adopted at a meeting of the stockholders, not shown to be inconsistent with the corporation’s charter or contrary to law, confer the management of the corporation’s business upon a board of directors, that body is vested with the authority and charged with the responsibility of managing the corporation for the benefit of the stockholders, and becomes the governing authority of the corporation. . . . The members of a corporation are as a general rule conclusively presumed to have knowledge of its bylaws and cannot escape a liability arising thereunder, or otherwise avoid their operation, on a plea of ignorance of them. . . . Further, the bylaws of a corporation are binding on the parties who enact them as contracts and must be construed according to the principles of the law of contracts.

The cardinal rule of contract construction is to ascertain the parties’ intent. “A contract must be enforced if that intention is clear and it contravenes no rule of law and sufficient words are used to arrive at the intention.”

In this case, the record shows that Rushing intended to be bound by the rules and regulations adopted by Gold Kist’s board. Rushing’s membership agreement expressly provided that his membership was subject to the By-Laws, which gave the board rule-making authority. Moreover, although Gold Kist now argues that the FAA does not control the agreement, the company’s own board of directors expressly determined that the agreement was controlled by the FAA, and it is self-evident that Gold Kist consented to being governed and bound by the determinations of its board. “Thus, as with any other contract, the parties’ intentions control.”

Gold Kist argues that, even if the FAA generally controls the arbitration agreement, such did not preclude the trial court from relying on OCGA § 9-9-6 (d) in ruling that Rushing could not challenge its enforceability. According to Gold Kist, OCGA § 9-9-6 (d) still applies in this case because it is a procedural rule, and “a state may apply its own procedural rules in its own courts, if those procedures do not defeat the objectives of the federal law.” Pretermitting whether OCGA § 9-9-6 (d) is such a procedural rule, Rushing had the opportunity to challenge the validity of the arbitration agreement on appeal, and for reasons discussed in Divisions 2 and 3, we conclude that his challenges are without merit.

2. Rushing contends that the agreement is unenforceable because he never agreed to be subject to the clause. Considering the authority we addressed in Division 1, however, it is obvious that he did agree. Again, the arbitration clause is contained in the By-Laws, and Rushing expressly consented to be bound by the By-Laws. It is inconsequential that the By-Laws did not contain the arbitration clause when Rushing signed his membership agreement — he agreed to be subject not only to existing By-Laws, but also to By-Laws “hereafter in effect.” Such is consistent with a provision in the By-Laws that specifically authorized the membership to amend provisions and adopt new ones. Thus, Gold Kist, through its members, was permitted to amend its By-Laws to require Rushing to arbitrate disputes even though no arbitration clause existed when Rushing joined the cooperative.

And, contrary to Rushing’s argument, this does not mean that the arbitration clause was “unilaterally imposed by Gold Kist.” Rather, it was enacted under a governing scheme to which Rushing voluntarily subjected himself when he joined Gold Kist. Inasmuch as the arbitration clause was adopted well before Rushing executed his promissory note to Gold Kist, he presumably entered the latter transaction with notice that any dispute arising out of the note would be subject to arbitration. Accordingly, the requirement was not unilaterally imposed by Gold Kist, and we can discern no reason why Rushing should now be permitted to escape its reach based on his claim that he never agreed to arbitration. The By-Laws provision is binding on Rushing as a contract.

3. Finally, Rushing argues that the arbitration clause is unenforceable because it lacks mutuality of obligation and consideration. In support of this contention, Rushing relies on the Eleventh Circuit’s decision in Hull v. Norcom, Inc. and argues that the arbitration clause lacks consideration and is not mutually binding because it allows the board to determine which types of disputes will be subject to arbitration. We disagree.

In Hull, the court ruled that “the consideration exchanged for one party’s promise to arbitrate must be the other party’s promise to arbitrate at least some specified classes of claims.” But the mutuality requirement in Hull was imposed under New York law, and the court’s decision has not been widely accepted. Furthermore, under Georgia law, a promise is good consideration for another promise if there

is an absolute mutuality of engagement, so that each party has the right at once to hold the other to a positive agreement. And in cases of mutual promises, where the promise of one party is relied on as a consideration for the other, the promises must be concurrent and obligatory upon each at the same time, in order to render either binding.

“It has long been the rule in Georgia that the test of mutuality is to be applied as of the time the contract is to be enforced.”

Decided June 25, 2002.

Edenfield, Cox, Bruce & Classens, Gerald M. Edenfield, Marc M. Bruce, William R. Bryant, for appellant.

John A. Dana, for appellees.

The arbitration clause at issue here is supported by such consideration. Although the clause allows Gold Kist’s board to declare which types of disputes are subject to arbitration, when this action arose, the Board’s arbitration policy included essentially all conflicts except those concerning matters within the board’s discretion and certain contracts preexisting the date of the policy. It is clear that the dispute over Rushing’s promissory note must be arbitrated under the existing By-Laws and arbitration policy, and nothing in either document permits the parties to unilaterally decline arbitration. To the contrary, Gold Kist and its members are equally bound to arbitrate those categories of cases designated by the board, to comply with the same arbitration procedures, and to abide by the results.

Accordingly, Rushing’s arguments that the clause was unenforceable are without merit.

Judgment affirmed.

Pope, P. J., and Barnes, J., concur.

       The Code section provides that, “[a]fter service of the demand, or any amendment thereof, the party served must make application within 30 days to the court for a stay of arbitration or he will thereafter be precluded from denying the validity of the agreement or compliance therewith or from asserting limitation of time as a bar in court.”

       9 USC § 1 et seq.

       (Citations and punctuation omitted.) Gwin v. Thunderbird Motor Hotels, 216 Ga. 652, 658 (2) (119 SE2d 14) (1961).

        See Irvin v. Laxmi, Inc., 266 Ga. 204, 205 (1) (467 SE2d 510) (1996); Choate Constr. Co. v. Ideal Elec. Contractors, 246 Ga. App. 626, 627 (2) (541 SE2d 435) (2000).

       (Punctuation omitted.) Choate Constr. Co., supra at 627-628.

       See Primerica Financial Svcs. v. Wise, 217 Ga. App. 36, 37 (1) (456 SE2d 631) (1995).

         (Punctuation omitted.) Id.; see also Results Oriented v. Crawford, 245 Ga. App. 432, 437 (1) (a) (538 SE2d 73) (2000) (“if the intent of the parties indicates that arbitration would be governed by the FAA, this Court will enforce the intentions of the parties”), aff'd, Crawford v. Results Oriented, 273 Ga. 884 (548 SE2d 342) (2001); North Augusta Assoc. Ltd. Partnership v. 1815 Exchange, 220 Ga. App. 790, 791 (1) (469 SE2d 759) (1996) (recognizing the “sanctity of individual contracts” that contain a choice of laws provision governing arbitration clauses).

        Simmons Co. v. Deutsche Financial Svcs. Corp., 243 Ga. App. 85, 87 (1) (532 SE2d 436) (2000).

       See Ga. Turkey Farms v. Hardigree, 187 Ga. App. 200, 204 (2) (369 SE2d 803) (1988).

       See Gwin, supra.

       See id.; see also King v. Larsen Realty, 121 Cal. App.3d 349, 357 (1981) (“where one contracts to abide by bylaws which contain provisions for arbitration, one is bound to arbitrate").

       750 F2d 1547 (11th Cir. 1985).

       Id. at 1550.

       See Wright v. Circuit City Stores, 82 FSupp.2d 1279, 1284, n. 2 (N.D. Ala. 2000).

       (Citation, punctuation and footnote omitted.) Pabian Outdoor-Aiken, Inc. v. Dockery, 253 Ga. App. 729 (560 SE2d 280) (2002).

        Jones v. Quigley, 169 Ga. App. 862, 863 (1) (315 SE2d 59) (1984); see also Tattersall Club Corp. v. White, 232 Ga. App. 307, 311 (1) (c) (501 SE2d 851) (1998).

       See R. L. Kimsey Cotton Co. v. Ferguson, 233 Ga. 962, 965 (2) (214 SE2d 360) (1975); Wright, supra at 1284.


source: Caselaw Access Project

author: Mikell, Judge.

license: Public Domain

text:
    A02A0554.
    HARRIS v. THE STATE. HARMON v. THE STATE.
    A02A0555.
    (567 SE2d 394)
   Mikell, Judge.

Gloria A. Harris and Calvin J. Harmon were tried by a jury and convicted of conspiracy to defraud' the state, Medicaid fraud, and making false writings. They appeal separately. In Case No. A02A0554, Harris claims that the trial court erred by (1) refusing to hold an evidentiary hearing on her motion to dismiss the indictment, (2) denying her motion to exclude evidence of events that allegedly transpired prior to the indictment, (3) granting the state’s motion to exclude references to audits of other Medicaid transportation providers, and (4) denying her motions for mistrial and continuance. In Case No. A02A0555, Harmon contends that the trial court erred by (1) denying his motion for trial severance, (2) denying his motion for new trial on the ground of insufficient evidence, (3) holding that he lacked standing to challenge the validity of the search, and (4) denying his motion for continuance. We affirm.

The trial transcript reveals that Harris owned and operated Wise Choice Transportation, Inc. (Wise), a nonemergency transportation (NET) provider. Harmon was Wise’s vice-president and office manager. The state presented numerous witnesses who testified that Harris and Harmon recruited children covered by Medicaid for transportation to various entertainment venues and then submitted falsified billing reports, called “trip sheets,” to the state Department of Medical Assistance (DMA), which administers the Medicaid program, for these nonreimbursable services. One trip sheet listed Myrtle Beach, South Carolina, as its destination. In addition, Dr. William Brickhouse, a psychologist, testified that he did not sign the medical certification on the 35 trip sheets bearing his name that Wise submitted for reimbursement. “Calvin J. Harmon” is stamped underneath his purported signature on each report.

The allegedly fraudulent billing was discovered in October 1995, when the DMA conducted an audit of trip sheets submitted by Wise from July 1994 through June 1995. The auditor testified that she was unable to discover a valid destination on all 370 trip sheets she examined. An ongoing investigation led to the execution of a search warrant for Wise’s premises in March 1998. The Georgia Bureau of Investigation (GBI) seized thousands of documents.

State forensic auditor Michael Ufret, who analyzed the documents, testified that he conducted a random sample of 532 claims for one-way trips submitted by Wise on August 1, 1994, and found only 132 trip sheets for those claims. In addition, Ufret discovered that from July 1994 through September 1996, Wise submitted 234 claims for one child alone. The child’s mother testified that Wise took her son to the doctor a total of four times. Ufret testified that the DMA paid Wise $584,443.97 from July 1994 through September 1996.

Case No. A02A0554

1. In her first enumerated error, Harris claims that the trial court erred by denying her an evidentiary hearing on her motion to dismiss the indictment, which alleged selective prosecution. We disagree.

“Uniform Superior Court Rule 31.1 requires all motions in a criminal case to be filed at or before the time of arraignment, unless time therefor is extended by the judge in writing prior to trial.” The record in this case shows that Harris waived arraignment on October 14, 1998, and the case was originally placed on the November 1998 trial calendar. The trial was continued until January 4, 1999, specially set for March 22, 1999, then reset for November 29, 1999. The motion to dismiss was not filed until November 15, 1999, 13 months after arraignment. Therefore, the motion was untimely, and the record does not show that Harris received an extension. Accordingly, Harris was not entitled to an evidentiary hearing.

2. Harris next alleges that the trial court abused its discretion in refusing to exclude evidence relating to events that allegedly transpired prior to the indictment. However, Harris has failed to provide citations to the record identifying any evidence that was admitted concerning events outside the time alleged in the indictment. “We have repeatedly held that it is not the function of this court to cull the record on behalf of a party.” This is particularly true in a case such as this where the transcript alone exceeds 1,500 pages. Accordingly, this enumeration presents nothing for review.

3. Harris argues that the trial court erred by granting the state’s motion to exclude references to audits of other NET providers. Harris contended at trial that the evidence was necessary to support her selective prosecution defense. However, selective prosecution is a matter for the court to decide, not the jury, and the trial court had already denied Harris’s motion to dismiss on that ground. It follows that the trial court did not abuse its discretion in determining that the evidence at issue was irrelevant.

4. Finally, Harris argues that the trial court erred in denying two motions for mistrial and a request for continuance based upon the state’s alleged discovery violations.

(a) Harmon, joined by Harris, first moved for a mistrial after opening statements, when the prosecutor said that Wise was the tenth-highest Medicaid billing provider in Carrollton. The defendants argued that the state violated OCGA § 17-16-4 (a) (4) by failing to produce audit reports of other Medicaid providers, despite the defendants’ discovery request. The trial court denied the motion for mistrial. However, the court sustained Harmon’s objection to the prosecutor’s statement, Harmon withdrew the motion, and Harris said nothing. “A defendant dissatisfied with a trial court’s action on a motion for mistrial must renew the motion. The failure to do so amounts to a waiver.” Having failed to renew the motion, Harris has no cause to complain on appeal.

(b) The defendants next made a joint motion for a mistrial and requested a continuance based upon the state’s alleged violation of OCGA § 17-16-7, which requires the production of statements of witnesses no later than ten days prior to trial. Counsel for Harris sought the relief because the state failed to produce Dr. Brickhouse’s 12-page statement until the morning of his testimony.

Harris concedes that the state was not required to serve her with a copy of the statement but was merely required to make it available for inspection. The prosecutor stated that her office had an open file policy and that the statement had been in the file for a year preceding the trial. Harris’s counsel stated that he had examined the file twice and had not seen the statement. He argued that the statement was critical and that if he had seen it, he would have interviewed the witness. The court recessed the trial for an hour and fifteen minutes to allow defense counsel an opportunity to interview Dr. Brickhouse. After the interview, counsel for Harris renewed his request for a continuance and moved to exclude Dr. Brickhouse’s testimony. The trial court denied the motions.

When the state fails to comply with the discovery statute, “the court may order the state to permit the discovery or inspection, interview of the witness, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the state from introducing the evidence not disclosed or presenting the witness not disclosed, or may enter such other order as it deems just under the circumstances.” OCGA § 17-16-6. “In enacting this statute, the legislature did not impose a rigid formulation or grant an exclusive remedy for a defendant or a fatal consequence to the State for failure to comply with the discovery mandates. Instead, it cloaked the trial court with the discretion to use its own judgment to ensure a fair trial.” In order to ensure a fair trial, and in compliance with the statute, the trial court allowed defense counsel time to interview the witness. Moreover, even if Harris were able to show that the state acted in bad faith, she cannot demonstrate prejudice. Dr. Brickhouse testified that his signature had been falsified on 35 trip sheets that were stamped with Harmon’s signature. Dr. Brickhouse never testified directly against Harris, and Harris did not cross-examine Dr. Brickhouse. It follows that the trial court did not abuse its discretion in denying Harris’s motions for mistrial and a continuance based on the state’s alleged discovery violations.

Case No. A02A0555

5. In his first enumerated error, Harmon argues that the trial court abused its discretion in denying his motion for trial severance. We disagree.

The trial court must consider three factors in determining whether to grant a motion to sever:

(1) whether the number of defendants creates confusion as to the law and evidence to be applied to each; (2) whether a danger exists that evidence admissible against one defendant might be considered against the other notwithstanding instructions to the contrary; and (3) whether the defenses are antagonistic to each other or each other’s rights.

In addition, the burden is on the defendant requesting a severance of trials to make a clear showing of prejudice and a consequent denial of due process.

In the case at bar, Harmon has failed to make the required showings. He does not argue evidentiary confusion; rather, Harmon contends that the great weight of the evidence was admissible only against Harris. The transcript, however, belies this assertion. Witnesses testified without contradiction that both Harmon and Harris came to their homes to recruit Medicaid-covered children for enrollment in Wise’s “program.” Further, the jury was entitled to infer from Dr. Brickhouse’s testimony that Harmon falsified 35 trip sheets.

Harmon’s reliance on Price v. State is misplaced. In Price, “the evidence against one co-defendant was deemed to be so overwhelming and the evidence against the other so slight that the ‘spillover’ effect of the evidence against the former was viewed as an important factor in the latter’s conviction.” “In this case, the evidence against [Harris] was indeed overwhelming, but the evidence against [Harmon] was equally compelling.”

Finally, we disagree with Harmon’s characterization of the defenses as antagonistic. Neither Harmon nor Harris presented any evidence at trial, and Harris did not accuse Harmon of criminal activity, either during opening statements or closing arguments. With regard to Harris, Harmon argued only that she was responsible for enrolling Wise as a Medicaid provider and complying with the regulations, while Harmon was a mere employee. Harris admitted making “mistakes” but attributed them to the complexity of Medicaid regulations. Although these defenses were not identical, they were not antagonistic. Accordingly, the trial court did not abuse its discretion in denying Harmon’s motion for severance.

6. Harmon challenges the sufficiency of the evidence to support his convictions. Specifically, he contends that the state failed to prove that he conspired with Harris to defraud the state of Medicaid assistance payments or that he committed the offense of false writings. We disagree.

On appeal, we view the evidence in the light most favorable to support the verdict, and the defendant no longer enjoys a presumption of innocence. Moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(a) According to OCGA § 16-10-21 (a),

A person commits the offense of conspiracy to defraud the state when he conspires or agrees with another to commit theft of any property which belongs to the state or to any agency thereof or which is under the control or possession of a state officer or employee in his official capacity. The crime shall be complete when the conspiracy or agreement is effected and an overt act in furtherance thereof has been committed, regardless of whether the theft is consummated.

An express agreement need not be shown in order to establish a conspiracy. Rather, “the state need only prove that two or more persons tacitly came to a mutual understanding to accomplish or to pursue a criminal objective.” “The essence of [a] conspiracy is a common design, and conduct which discloses a common design may give rise to an inference of conspiracy.” Moreover, a conspiracy may be inferred from the nature of the acts done, the relationship and interest of the alleged conspirators, and other circumstances.

In this case, the state presented ample evidence from which the jury could infer that Harmon conspired with Harris to defraud the state. For instance, Kim Gage, a former employee of Wise, testified that when the company was notified that it would be audited, Harris and Harmon instructed her to falsify missing information on trip sheets. The witness also testified that Harmon told her that he would have the trip sheets signed by “whatever doctor that they knew.” According to this witness and others, Harris and Harmon recruited children covered by Medicaid for transportation to various entertainment venues. The evidence of a conspiracy satisfied the appellate standard.

(b) The crime of false writings is committed when a person “knowingly and willfully falsifies ... a material fact ... or makes or uses any false writing or document, knowing the same to contain any false, fictitious, or fraudulent statement or entry, in any matter within the jurisdiction of any department or agency of state government.” In this regard, another former employee of Wise, Angela Lawson, testified that she witnessed Harris and Harmon falsifying mileage on trip sheets. The testimony of Lawson, Gage, and Dr. Brickhouse provides overwhelming evidence that Harmon committed the crime of false writings.

7. Harmon next asserts that the trial court erred in holding that he lacked standing to challenge the validity of the search of Wise’s premises. Harris had filed a motion to suppress evidence seized as a result of the search, and Harmon filed a motion to adopt Harris’s pleadings.

An evidentiary hearing was held on the motion to suppress. After hearing testimony from the GBI special agent who supplied the affidavit for the search warrant, the trial court permitted Harmon to testify for the limited purpose of determining whether documents belonging to Harmon had been seized. The trial court found that Harmon had moved his business from Wise’s premises and had no ownership or possessory interest in the premises at the time the search warrant was executed. Accordingly, the court ruled that Harmon lacked standing to challenge the validity of the search. Based on the testimony of the GBI agent, the court also held that the search was valid and denied the motion to suppress.

On appeal from the denial of a motion to suppress, we view the evidence in a light most favorable to support the trial court’s judgment, and the court’s findings on disputed facts and credibility must be accepted unless clearly erroneous. Harmon testified that he moved from Wise’s premises in mid-1997. It is undisputed that the warrant was executed in March 1998. Accordingly, the evidence supports the trial court’s finding that Harmon had no ownership or possessory interest in the premises meriting Fourth Amendment protection.

Decided June 25, 2002.

Allen M. Trapp, Jr., for appellant (case no. A02A0554).

Nathaniel L. Smith, for appellant (case no. A02A0555).

Thurbert E. Baker, Attorney General, Harrison W. Kohler, Senior Assistant Attorney General, for appellee.

8. Finally, Harmon argues that the trial court erred by denying his motion for a continuance to interview a “surprise” witness, Eleanor Smith. At the outset, we note that the witness was not a surprise, as her name appears on the witness list that was served on Harmon on December 4, 1998. Harmon’s true complaint is that the state did not provide him with a copy of the witness’s statement prior to trial. Apparently, a copy of the statement was supplied to Harris, who gave it to Harmon mid-trial. Harmon requested a recess to interview Smith, which the trial court granted. After the interview, Harmon requested a continuance, which the court denied.

Smith testified extensively against Harris, while her sole mention of Harmon was that she had “only met him once or twice.” Smith testified that she was not even aware that Harmon was an employee of Wise. Given that Smith testified favorably for Harmon, we cannot conclude that the trial court erred in denying his motion for a continuance.

Judgment affirmed.

Andrews, P. J, and Phipps, J., concur.

       NETs are reimbursed for transporting patients covered by Medicaid to “medically necessary” appointments, as that term is defined in Medicaid regulations.

       (Citation and punctuation omitted.) Fetterolf v. State, 223 Ga. App. 744, 747 (6) (478 SE2d 889) (1996).

       See id.

       (Citation and punctuation omitted.) Jackson v. State, 252 Ga. App. 268, 271 (3) (555 SE2d 908) (2001); Court of Appeals Rule 27 (c) (3).

        Rolleston v. Cherry, 226 Ga. App. 750, 753 (1) (b) (487 SE2d 354) (1997).

        Morrison v. State, 272 Ga. 129, 130 (3) (526 SE2d 336) (2000).

        Braswell v. State, 245 Ga. App. 602, 606 (6) (b) (538 SE2d 492) (2000).

        Lawson v. State, 224 Ga. App. 645, 647 (3) (a) (481 SE2d 856) (1997).

        Blankenship v. State, 229 Ga. App. 793, 794 (494 SE2d 758) (1997).

        London v. State, 247 Ga. App. 618, 620 (1) (544 SE2d 525) (2001).

        Stephens v. State, 245 Ga. App. 823, 827 (8) (538 SE2d 882) (2000),

       155 Ga. App. 844 (273 SE2d 225) (1980).

        Saleem v. State, 169 Ga. App. 952, 954 (2) (315 SE2d 487) (1984).

        Thomas v. State, 274 Ga. 156, 159 (2) (549 SE2d 359) (2001).

        Sharpe v. State, 272 Ga. 684, 686 (2) (531 SE2d 84) (2000).

        Spivey v. State, 243 Ga. App. 785, 786 (534 SE2d 498) (2000).

        Freeman v. State, 273 Ga. 137, 139 (2) (a) (539 SE2d 127) (2000).

       (Citation omitted.) Thurman v. State, 249 Ga. App. 390, 391 (2) (a) (547 SE2d 715) (2001).

       (Citation and punctuation omitted.) Freeman, supra.

        Thurman, supra.

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

       OCGA § 16-10-20.

        Thomas v. State, 274 Ga. 156, 159 (3) (549 SE2d 359) (2001) (“When, an individual has no ownership or possessory interest in the premises, the individual has no expectation of privacy, and therefore, lacks standing to challenge the validity of a search”).

        Buckley v. State, 254 Ga. App. 61 (561 SE2d 188) (2002).


author: Andrews, Presiding Judge.

text:
    A02A0430.
    THOMAS v. MORRISON.
    (567 SE2d 692)
   Andrews, Presiding Judge.

Willie Sam Thomas appeals from the trial court’s grant of summary judgment to Richard Morrison on Thomas’s claim for damages after the logging truck he was driving struck one of Morrison’s cows in the roadway. Because the trial court correctly found that Morrison had introduced sufficient evidence showing that he was not negligent in the maintenance of his livestock and Thomas came forward with no evidence to the contrary, we affirm.

This case arose when Thomas’s truck struck a 750-pound cow belonging to Morrison on the road in front of the pasture where Morrison kept his cows. Morrison said that he had separated the cows from their calves the day before and the cow must have gotten out looking for her calf. Morrison said he walked almost the whole perimeter of his fenced-in pasture the morning after the accident and later that afternoon rode around the entire perimeter in his truck. He said that he was unable to determine where the cow got out. Morrison and his son both checked the fences regularly, but there was no “system” for doing so. Morrison said that “in going about the farm we always look at the fences,” but he could not state when the fences were last checked.

Morrison said the only other time one of his cows escaped was ten years ago and the cow was in a different pasture. He said it was never discovered how that cow got out, either.

The pasture fence along the road where the cow was struck was four feet high and made of hogwire with two strands of barbed wire on top. Morrison testified that he had seen a 750-pound cow jump that type of fence.

The only evidence submitted by Thomas in opposition to Morrison’s motion for summary judgment was the affidavit of a veterinarian who was also a farmer and owner of cows. The veterinarian stated that “it is my opinion that a cow weighing 750 pounds would not be able to jump the five foot high barbed wire fencing without leaving some indication as to where it made its exit.”

In ruling on Morrison’s motion for summary judgment, the trial court noted that after Morrison introduced evidence that his fences and gates were in good repair and there were no gates open or fences down after the accident, Thomas failed to come forward with any evidence that Morrison had been negligent in maintaining his fences or his cows. This appeal followed.

“The mere fact that livestock is running at large permits an inference that the owner is negligent in permitting the livestock to stray; but when the owner introduces evidence that he has exercised ordinary care in the maintenance of the stock, that permissible inference disappears.” (Punctuation and footnote omitted.) John Hewell Trucking Co. v. Brock, 239 Ga. App. 862, 863 (522 SE2d 270) (1999); Green v. Heard Milling Co., 119 Ga. App. 116 (166 SE2d 408) (1969).

Here, Morrison has introduced evidence that his fence was in good repair and that the gates to the pasture were all closed and latched. This evidence is undisputed by Thomas. On the other hand, Thomas, apparently in an effort to show that somehow the cow was never put back in the pasture, has submitted opinion testimony that a cow could not jump the fence without leaving some sign. But, there is no evidence the cow was not put back in the pasture. The only evidence in the record is Morrison’s testimony that there were no cows left outside the fenced pasture after the cows and calves were separated the night before the accident.

Decided May 3, 2002

Reconsideration denied June 26, 2002.

Hinton & Powell, Andrew J. Hinton, Jr., for appellant.

Bowles & Bowles, Jesse G. Bowles, Swift, Currie, McGhee & Hiers, Robert B. Peery, Kenneth B. Still, for appellee.

Accordingly, there is no evidence of negligence by Morrison on this basis, only impermissible speculation. “Guesses or speculation which raise [s] merely a conjecture or possibility [is] not sufficient to create even an inference of fact for consideration on summary judgment.” (Punctuation omitted.) John Hewell Trucking Co., supra at 864. Therefore, the trial court did not err in granting Morrison’s motion for summary judgment.

Judgment affirmed.

Phipps and Mikell, JJ., concur.


author: Blackburn, Chief Judge.

text:
    A02A0044.
    FAULKNER v. THE STATE.
    (567 SE2d 754)
   Blackburn, Chief Judge.

Thomas Faulkner was convicted of possession of less than one ounce of marijuana. On appeal, Faulkner contends the trial court erred by denying his motion to suppress evidence discovered during a search of his motor vehicle. For the reasons set forth below, we reverse.

On appeal from a denial of a motion to suppress, this Court must construe the evidence most favorably to uphold the ruling of the trial court. State v. Winnie. The trial court’s application of law to facts which are undisputed, however, is subject to de novo review. Id.

The record shows that Faulkner was stopped by a police officer for traveling more than 300 feet in a center turn lane. After informing Faulkner of the reason for the stop and obtaining Faulkner’s license and proof of insurance, the officer returned to his patrol car to run a records check. When the check was completed, the officer asked Faulkner to step to the rear of his vehicle and informed Faulkner that he was going to ticket him for driving in the center turn lane.

The officer then returned Faulkner’s license and insurance card. The officer had Faulkner sign for the ticket and return it to him. He held it as he interrogated Faulkner, a clear indication that Faulkner was not free to leave. The officer asked whether Faulkner had anything in the vehicle that he should know about. Faulkner replied no. Then, the officer asked if Faulkner would mind if the officer searched him and his truck. Faulkner consented, and less than an ounce of marijuana was discovered.

On appeal Faulkner contends that the search of his car was improper because the police officer illegally detained him following the completion of the original traffic stop. Based on the specific facts of this case, we agree.

This Court has held, if an “officer continues to detain the subject after the conclusion of the traffic stop and interrogates him or seeks consent to search without reasonable suspicion of criminal activity, the officer has exceeded the scope of a permissible investigation of the initial traffic stop.” State v. Sims. Therefore, once the tasks related to the investigation of the traffic violation and processing of the traffic citation have been accomplished, an officer cannot continue to detain an individual without articulable suspicion.

An officer who questions and detains a suspect for reasons other than those connected with the original purpose of the stop exceeds the scope of permissible investigation unless he has reasonable suspicion of other criminal activity. This reasonable suspicion must be based on more than a subjective, general suspicion or hunch. The detention must be justified by specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the detention, and the trooper must have some basis from which the court can determine that the detention was neither arbitrary nor harassing.

(Citations and punctuation omitted.) State v. Gibbons.

The facts of record show that Faulkner was being detained at the time the police officer questioned him about the contents of his car. “[S]o long as a reasonable person would feel free to disregard the police and go about his business, the encounter is consensual and no reasonable suspicion is required.” (Punctuation omitted.) Sims, supra at 278. Contrary to the State’s argument, no reasonable person in Faulkner’s position would have felt free to leave prior to receiving his copy of the ticket. To the contrary, a reasonable person would wait for the ticket which contains the details of the stop, the identity of the officer, and the date and time of the hearing on the matter.

The facts of record also show that Faulkner’s continued detention was improper. “An officer who questions and detains a suspect for [reasons unrelated to the initial stop] exceeds the scope of permissible investigation unless he has reasonable suspicion of other criminal activity.” (Punctuation and emphasis omitted.) Sims, supra at 280. There is no question that the initial stop for driving in the center lane was over at the time the police officer began to question Faulkner about the contents of his vehicle, and the police officer indicated that he asked these questions because he had seen a beer bottle cap on the floor of Faulkner’s car and that Faulkner seemed nervous. The officer also stated, however, that it was clear to him that Faulkner had not been drinking. And, nervousness, alone, was an insufficient basis to detain Faulkner. Holmes v. State Accordingly, the police officer improperly detained Faulkner without the prerequisite reasonable suspicion.

Decided June 26, 2002.

Sexton & Morris, Lee Sexton, for appellant.

Keith C. Martin, Solicitor-General, Michael T. Lesutis, Brian M. Johnston, Assistant Solicitors-General, for appellee.

Because Faulkner’s consent to search was the product of an illegal detention, it was not valid. Accordingly, the judgment of the trial court must be reversed.

Judgment reversed.

Johnson, P. J., and Miller, J., concur.

        State v. Winnie, 242 Ga. App. 228, 229 (529 SE2d 215) (2000).

        State v. Sims, 248 Ga. App. 277, 279 (546 SE2d 47) (2001).

        State v. Gibbons, 248 Ga. App. 859, 863-864 (2) (547 SE2d 679) (2001).

        Holmes v. State, 252 Ga. App. 286, 289 (556 SE2d 189) (2001).


text:
    A02A0065.
    COBB VENTURE, LLC v. DONALDSON.
    (567 SE2d 750)
   Mikell, Judge.

Cobb Venture, LLC d/b/a Somer Point Apartments (“Cobb Venture”) appeals the denial of its motion for summary judgment in this premises liability case. The trial court signed a certificate of immediate review, and this Court granted the application for interlocutory appeal. For the reasons that follow, we reverse.

To prevail at summary judgment, 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 to the nonmoving party, warrant judgment as a matter of law.

A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. ... If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.

We review de novo a trial court’s grant or denial of summary judgment.

Viewed in favor of Donaldson, the evidence showed that Donaldson, a tenant of Cobb Venture, fell on some debris at the apartment complex on April 22, 1997. Donaldson walked her dog to the woods near the apartment complex two to three times a day. During the days before her fall, Cobb Venture was refurbishing the kitchens in all of the apartments. Donaldson testified that for two or three days before she fell, there had been a pile of debris from the new construction on the walkway that she used to take her dog to the woods. On the first two days, Donaldson estimated that the part of the pile of debris that she stepped over was three to four inches high. According to Donaldson, on the morning that she fell, it appeared that the pile was the same size that it had been on the previous evening when she took her dog out. Donaldson stepped over the pile with her right foot, but her left foot caught on a piece of metal and she fell. She testified that she realized that the pile was larger after she fell.

Cobb Venture filed a motion for summary judgment, arguing that Donaldson’s claim was barred because she had equal knowledge of the hazard. The trial court denied Cobb Venture’s motion, finding that questions of fact remained as to Donaldson’s equal knowledge and as to whether she had a reasonable alternative to encountering the hazard. Cobb Venture appeals the trial court’s order.

1. Robinson v. Kroger Co. sets forth the elements of a trip and fall case. In order to recover, the plaintiff must prove:

(1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier. However, the plaintiff’s evidentiary proof concerning the second prong is not shouldered until the defendant establishes negligence on the part of the plaintiff — i.e., that the plaintiff intentionally and unreasonably exposed self to a hazard of which the plaintiff knew or, in the exercise of ordinary care, should have known.

A defendant can prevail on summary judgment by showing an absence of evidence as to an essential element of a plaintiff’s prima facie case.

This case hinges on the second prong of the Robinson test. The evidence is undisputed that Donaldson saw and stepped over the pile of debris two or three times a day for at least two days before her fall. Also, she saw the pile on the morning that she fell and chose to step over it. There was no evidence offered to suggest that Donaldson was somehow prevented from evaluating the size of the pile of the debris before she stepped over it that morning. Thus, we find the evidence that Donaldson had equal knowledge of the debris and that she failed to exercise ordinary care for her own safety to be plain, palpable, and undisputed.

A writ of certiorari was granted in Robinson to examine the appellate decisions which have “as their crux a determination as a matter of law that an invitee failed to exercise ordinary care for personal safety.” Though most of the opinion discusses a plaintiff’s failure to look, the “plain view” doctrine, “the distraction doctrine,” and such matters, the decision did not focus on cases such as the case at bar in which a plaintiff admitted knowledge of the hazard and voluntarily tempted it. As explained by Robinson,

The plaintiff’s behavior on each of these occasions constituted “voluntary negligence,” classified by the Second Restatement of Torts as a “type” of contributory negligence: “an intentional and unreasonable exposure of (the plaintiff) to danger created by the defendant’s negligence, of which danger the plaintiff knows or has reason to know. . . .” Restatement of Law 2d, Torts, § 466 (a).

Although Robinson recognizes the continuing validity of summary adjudications of cases involving a plaintiffs undisputed, actual knowledge of the hazard, it is applicable to this type of case as to all slip and fall cases because it reallocated, in Division 2 (b) of the opinion, the burdens of proof on motions for summary judgment. According to Robinson, a plaintiff faced with a motion for summary judgment does not have to disprove her negligence until and unless it is proved that the defendant was negligent and that “the plaintiffs injuries were proximately caused either by the plaintiff’s voluntary negligence ... or by the plaintiff’s causal negligence. . . .” In the case at bar, there is undisputed evidence that the defendant was negligent in allowing debris to accumulate on the walkway and also evidence of Donaldson’s voluntary negligence. Therefore, according to Robinson, she was required to produce “rebuttal evidence that [her] failure to ascertain the existence of the hazard was due to actions or conditions within the control of the defendant. . . .” There is no such rebuttal evidence in the record because Donaldson does not claim that she failed to perceive the existence of the hazard. Therefore summary judgment for the defendant was warranted.

We are mindful of Robinson’s guidance that “routine issues of premises liability . . . are generally not susceptible of summary adjudication.” But occasional cases may arise in which the evidence is plain and palpable that the plaintiff had, in the words of Robinson, “knowledge of the hazard equal to or greater than that of the owner/ occupier, making it impossible for the plaintiff to prove that the owner/occupier had the superior knowledge necessary for the plaintiff to prevail.” On those rare occasions, the present state of statutory and case law in Georgia will make summary judgment appropriate, except when there are extenuating circumstances such as that discussed in Division 2 of this opinion.

2. Cobb Venture also enumerates as error the trial court’s reliance on Carey v. Bradford. We agree with the appellant that Carey is inapposite. In that case, the plaintiff fell down the only stairway from his second-floor apartment to the bottom level, after repeated requests to management to replace the stairway lights. We held that “[w]hen the dangerous area is the plaintiff’s only access or only safe or reasonable access to his home, the tenant’s equal knowledge of the danger does not excuse the landlord of damages caused by his failure to keep the premises in repair.” In this case, there was no evidence presented that the walkway to the woods was Donaldson’s only access to her home. It was the place she chose to walk her dog because as Donaldson testified, “I don’t just take her anyplace. She, in fact, won’t go no place except out there.” Thus, the “captive tenant” rule discussed in Carey is not applicable to the instant case.

Decided June 26, 2002.

Seacrest, Karesh, Tate & Bicknese, Karsten Bicknese, Daniel S. Wright, for appellant.

Louis Levenson, Thomas R. Holbird, Jr., for appellee.

Judgment reversed.

Andrews, P. J., and Phipps, J., concur.

       OCGA § 9-11-56 (c).

       (Citations and emphasis omitted.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

        Ethridge v. Davis, 243 Ga. App. 11, 12 (530 SE2d 477) (2000).

       268 Ga. 735 (493 SE2d 403) (1997).

        Williams v. Park Walk Apts., 253 Ga. App. 429 (559 SE2d 169) (2002).

        Robinson, 268 Ga. at 748-749 (2) (b). See generally Adams & Adams, Ga. Law of Torts (2000 ed.), § 4-6.

        Steele v. Rosehaven Chapel, 233 Ga. App. 853, 855 (505 SE2d 245) (1998).

       See Robinson, 268 Ga. at 748.

       Id. at 739 (1).

       Id. at 737-738 (1). This rule, based on contributory negligence, would be inapplicable if the legislature adopted the suggestion of Justice Hunstein to resolve all slip and fall cases on the basis of pure comparative negligence. Id. at 749 (Hunstein, J., concurring).

       Id. at 748 (2) (b).

       Id. See generally Ga. Law of Torts, supra at pp. 168-170.

       (Punctuation omitted.) Robinson, 268 Ga. at 748 (2) (b).

       Id. at 737 (1).

       218 Ga. App. 325 (461 SE2d 290) (1995).

       (Citation omitted.) Id. at 326 (2).


text:
    A02A0435.
    MYERS v. THE STATE.
    (567 SE2d 742)
   Mikell, Judge.

A Gwinnett County jury convicted James Taber Myers and his co-defendant, William Riley Putnam, of burglary. The court sentenced Myers to seven years confinement and thirteen years probation. After his motion for new trial was denied, Myers filed the present appeal, arguing that the trial court erred in admitting hearsay testimony regarding the custodial confession of another co-defendant, Andrew Muehleman, in preventing the defense from calling Muehleman as an exculpatory witness, in admitting similar transaction evidence, and in denying Myers’ motion for directed verdict. For reasons explained below, we reverse Myers’ conviction and remand the case for a new trial.

On appeal from a criminal conviction, the evidence is viewed in the light most favorable to the verdict. Paul v. State, 231 Ga. App. 528 (499 SE2d 914) (1998). We do not weigh the evidence or determine witness credibility but only determine whether the evidence is sufficient under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Williams v. State, 233 Ga. App. 217 (1) (504 SE2d 53) (1998).

So viewed, the evidence shows that Charlene Conley Smith and her husband returned to their apartment at approximately 8:30 p.m. on May 2,1999, to find that the door had been forcibly opened. Smith testified that it appeared to have been “kicked in.” The couple soon discovered that a shotgun had been taken from their bedroom, but that no other valuables had been removed from the apartment. The shotgun was kept in a bag which was also missing. Smith testified that after calling the police, she immediately checked the caller identification service on her telephone and saw that a call had been received from Karona Man’s residence at 8:00 p.m. that night. Smith knew defendants Myers and Putnam through mutual friends, and she recalled that Myers resided at Man’s home. Smith testified that Myers had visited her apartment approximately one week before the burglary occurred and that he had admired the shotgun. Smith called the number on her “caller I.D.” unit and reached Myers. When she asked him about the burglary, he denied breaking into her apartment and explained that he had been at a Mexican restaurant that night.

Man testified that Myers and several other men and women in their early twenties were living at her home at the time in question. According to Man’s testimony, Muehleman, her former boyfriend, lived in the house as well. Man did not testify at all about the burglary or the whereabouts of Myers and Muehleman on that night.

Investigator Clemons of the Gwinnett County Police Department began investigating the burglary approximately one week after it occurred. Clemons focused his investigation on the individuals residing in Man’s home. Clemons testified that during a search of Man’s home, he discovered a shotgun bag matching the description of the one taken from Smith’s apartment in Muehleman’s bedroom. Muehleman was subsequently arrested. Clemons interrogated Muehleman and obtained a statement implicating Myers, Muehleman, and Putnam. Based on Muehleman’s confession, the police arrested Myers and Putnam.

Muehleman entered a guilty plea prior to the trial of Myers and Putnam. When the state called him as a witness at trial, Muehleman asserted his Fifth Amendment right against self-incrimination in response to certain questions. The state moved to have Muehleman declared unavailable so that his custodial statement to Investigator Clemons would be admissible under the necessity exception to the hearsay rule. After defense counsel had the opportunity to voir dire Muehleman outside the presence of the jury, the court ruled that the witness was unavailable. Next, the court ruled that Investigator Clemons could testify about Muehleman’s statement after the state made a proffer of what the testimony would include.. The state presented evidence outside the presence of the jury that after the burglary, Myers, Muehleman, and Putnam went to DeKalb County to confront a drug dealer and that the stolen shotgun accidentally discharged in their vehicle. The court appeared to find that Muehleman could be implicated for the crime of being in possession of stolen property in DeKalb County and was therefore unavailable to testify at all based on his Fifth Amendment privilege against self-incrimination. The court expressly found that Clemons’ testimony was reliable.

Clemons then testified for the jury that Muehleman confessed that he went to Smith’s apartment with Myers and Putnam to obtain a weapon that Myers had seen there; that before they left Man’s home, Myers called the Smith residence to confirm that no one was home, and then the three men drove the short distance to the apartment; that Myers went to Smith’s door first; that Myers tried to force entry twice but was unsuccessful; that Myers became afraid and asked to be taken to a nearby apartment complex in case Smith returned home, so Muehleman and Putnam took him there and then returned to Smith’s apartment; and that Putnam actually forced entry into the apartment and retrieved the gun while Muehleman stood watch outside. A videotape of Clemons’ interview with Muehleman was played for the jury later in the course of the trial.

The state also introduced evidence of a similar transaction that occurred in July 1995, when Myers purchased a firearm that had been stolen from a Gwinnett County police officer’s vehicle and subsequently entered a guilty plea to theft by receiving. At the close of the state’s evidence, Myers moved for a directed verdict, and the court denied the motion.

Myers’ counsel attempted to recall Muehleman as a witness. Although it had declared Muehleman unavailable earlier in the trial, at this time the court instructed the witness that he would be required to testify about his involvement in the burglary, but that he would not have to testify about the events that took place afterward in DeKalb County. The court further explained that Muehleman could not assert his Fifth Amendment privilege against self-incrimination to charges he had already pled guilty to. Next, the court appointed a lawyer to advise Muehleman. After conferring with his new client, counsel announced that Muehleman would testify only about the burglary to which he pled guilty and for which Myers and Putnam were charged. However, contrary to its earlier instruction to the witness, the court ruled that because Muehleman had asserted his Fifth Amendment privilege in response to certain questions, he could not testify to anything, including his involvement in the burglary.

In order to present statements made by Muehleman during his plea colloquy that might be exculpatory for Myers, defense counsel had to call as a witness the assistant district attorney who represented the state when Muehleman entered his plea. After a transcript of the proceeding was admitted as evidence, assistant district attorney Thomas Ned Davis, Jr. read from that transcript and testified as follows:

A: Questions was [sic], who wanted the shotgun, did Taber [Myers] want the shotgun.
Q: And Mr. Muehleman’s answer?
A: No it was Riley [Putnam] that wanted it; Riley had gotten, I don’t know what the exact thing was, he seemed like he was upset about something and he was exacting revenge on somebody and he asked me did I want to come along and I said sure, why not.
Q: And your next question?
A: Tell me what happened when you all got over there.
Q: His answer?
A: Well, we were on the way and me and Mr. Putnam were the ones who entered the house.
Q: Next question?
A: All right, where was Taber [Myers]?
Q: His answer?
A: He wasn’t even there, he was in the apartment complex down the road. He asked if he could be dropped off at his friend’s house.

Davis further testified that Muehleman told the court that Myers may not have known that Muehleman and Putnam were going back to rob Smith’s apartment after they took him to the apartment complex down the street.

Myers testified that it was Putnam who wanted a gun for protection because he had some problems with a drug dealer; that Myers planned to ask Smith’s husband, Justin, if he could borrow the shotgun; that it was Putnam’s idea to steal the gun; that Myers remained in the car while the other two men attempted to kick the apartment door in; that he became “jittery” and asked the others to abandon the plan to steal the gun; that the three of them drove to a nearby apartment complex where he exited the car and told the others that he did not want to be involved in the burglary; that Muehleman and Putnam returned to pick him up fifteen minutes later; and that the two men were in possession of the Smiths’ gun when they returned to Man’s home.

1. First, Myers contends that the trial court erred in allowing Investigator Clemons to testify regarding Muehleman’s custodial confession. The court allowed the testimony under the necessity exception to the hearsay rule after finding that Muehleman was unavailable because he asserted his Fifth Amendment privilege against self-incrimination to certain questions about the incident in DeKalb County.

OCGA § 24-3-52 provides that “[t]he confession of one joint offender or conspirator made after the enterprise is ended shall be admissible only against himself.” The Supreme Court has expressly recognized that OCGA § 24-3-52 was designed to protect a defendant from the hearsay confession of a co-defendant who does not testify at trial. Livingston v. State, 268 Ga. 205, 211 (4) (486 SE2d 845) (1997).

In Livingston v. State, supra, the Supreme Court held that a trial court’s admission of a co-conspirator’s confession under the necessity exception to the hearsay rule was reversible error. There, the trial court allowed police officers to testify about custodial statements made by two co-indictees who had already been convicted and sentenced and who asserted their Fifth Amendment privilege against self-incrimination. Id. at 206 (1). The Supreme Court recognized that the necessity exception to the hearsay rule “authorizes the admission of hearsay when the declarant is unavailable and there exists a circumstantial guaranty of the trustworthiness of the offered evidence.” (Citation and punctuation omitted.) Id. at 211 (4). The Court then held that the necessity exception could not be used to allow the out-of-court confession of a co-conspirator to be used against another co-conspirator. Id. See also Price v. State, 239 Ga. 439, 441-442 (238 SE2d 24) (1977) (police officer’s testimony regarding a co-suspect’s confession implicating the defendant was inadmissible).

This Court has rendered similar decisions. In Crawford v. State, 203 Ga. App. 215, 216 (2) (416 SE2d 820) (1992), we held that the admission of the taped confession of a co-indictee who refused to testify at the defendant’s trial violated OCGA § 24-3-52 and the defendant’s Sixth Amendment right to cross-examine and confront witnesses against him. Similarly, in Hardy v. State, 223 Ga. App. 597, 598 (1) (478 SE2d 423) (1996), we reversed a conviction because the trial court admitted the custodial statement of a co-defendant who refused to testify at trial.

Based on the authority summarized above, we conclude that the trial court in the case sub judice erred in admitting the hearsay testimony of Investigator Clemons regarding Muehleman’s custodial confession. Furthermore, the error was not harmless beyond a reasonable doubt. See Price, supra at 443; Alexander v. State, 236 Ga. App. 142, 146 (1) (511 SE2d 249) (1999). Because there was not overwhelming evidence in the record, other than Muehleman’s confession, to connect Myers to the burglary, the erroneous admission of the hearsay testimony requires a new trial. Compare Crawford, supra.

2. Next, Myers contends that the court erred in preventing the defense from calling Muehleman as an exculpatory witness. Myers argues that because Muehleman asserted his privilege against self-incrimination only in response to questions involving collateral events in DeKalb County and not in connection with the burglary of the Smiths’ apartment, the trial court erred in determining that he was unavailable as a witness. See OCGA § 24-3-1 (b).

The law is clear that “if it appears that a witness intends to claim the privilege as to essentially all questions, the court may, in its discretion, refuse to allow him to take the stand.” (Citations and punctuation omitted.) King v. State, 202 Ga. App. 817, 819 (2) (415 SE2d 684) (1992). But in this case, the witness did not intend to claim the privilege as to essentially all questions; rather, he refused to testify only about events that occurred in DeKalb County after the burglary. As we noted above in our summary of the facts, when the state called Muehleman as a witness, he asserted his Fifth Amendment privilege against self-incrimination in response to a question regarding his reason for stealing the gun. When questioned by defense counsel, he indicated that he would testify about the burglary to which he had already pled guilty and for which Myers and Putnam were being tried, but not about the collateral events in DeKalb County. Despite Muehleman’s response, the court ruled that Muehleman was unavailable to testify at all. Additionally, when the defense attempted to recall Muehleman as a witness, the court went so far as to appoint counsel to advise him of his right against self-incrimination. After conferring with Muehleman, counsel reported the following to the court:

I have previously discussed the Constitutional rights with Mr. Muehleman about testifying. He has indicated to me that he will testify honestly and truthfully about the charges for which he has already entered a plea, and for which he has already received a sentence. ... So he is willing to state everything he knows about [the burglary].

In spite of Muehleman’s clear willingness to testify about the crime for which Myers and Putnam were charged, the court ruled that he was unavailable.

The issue is whether this ruling constituted an abuse of discretion. In a 1969 case where the state sought to admit the testimony of a witness who invoked her privilege against self-incrimination during cross-examination, the Supreme Court recognized that

a distinction must be drawn between cases in which the assertion of the privilege merely precludes inquiry into collateral matters which bear only on the credibility of the witness and those cases in which the assertion of the privilege prevents inquiry into matters about which the witness testified on direct examination.

(Punctuation omitted.) Smith v. State, 225 Ga. 328, 333 (7) (168 SE2d 587) (1969). That case is obviously distinguishable from the case sub judice, as here the witness was not allowed to give any testimony at all, and the precluded testimony may have been exculpatory; however, the Court’s reasoning is instructive. At a minimum, it implies that a witness may assert the privilege regarding “purely collateral matters” and still testify about events directly relevant to the guilt of the accused. See also Buford v. State, 162 Ga. App. 498, 501 (8) (291 SE2d 256) (1982).

However, in the absence of more conclusive authority, we cannot conclude that the court’s ruling amounted to an abuse of discretion. Based on our decision in Division 1, Myers will be given a new trial. It is likely that if he is called as a witness, Muehleman again will assert his Fifth Amendment privilege regarding the events following the burglary. When the trial court exercises its discretion to determine the availability of Muehleman as a witness, we strongly encourage it to consider whether his refusal to testify is limited to purely collateral matters and rule accordingly.

3. Myers also assigns error to the trial court’s admission of similar transaction evidence of Myers’ purchase of a firearm from an individual who had stolen it from a police car. Myers argues that the court erred in failing to conduct a hearing and in ruling that the evidence was admissible. We agree.

Before admitting similar transaction evidence, the court must hold a hearing where the state must make three affirmative showings about the independent offense it seeks to introduce. Gardner v. State, 273 Ga. 809, 810 (2) (546 SE2d 490) (2001); Uniform Superior Court Rule 31.3 (B).

In order for similar transaction evidence to be admissible, the State must show (1) that it seeks to introduce evidence of the independent offense or act, not to raise an improper inference as to the accused’s character, but for some appropriate purpose which has been deemed to be an exception to the general rule of inadmissibility, (2) that there is sufficient evidence to establish that the accused committed the independent offense or act, and (3) that there is a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter.

Frady v. State, 245 Ga. App. 832, 834-835 (4) (538 SE2d 893) (2000), citing Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991).

In this case, the trial court heard the argument of counsel regarding the admissibility of the similar transaction evidence; however, it did not conduct a USCR 31.3 (B) hearing before determining that the evidence was admissible, in violation of Williams v. State, supra, 261 Ga. at 640. In that case, the Supreme Court stated:

As we held in Stephens v. State, 261 Ga. 467, 468-469 (6) (405 SE2d 483) (1991), in its presentation to the trier of fact, the state must do more than merely introduce a certified copy of a conviction and/or indictment into evidence. The state must present the trier of fact with evidence establishing both that the accused committed an independent offense or act and that the connection and/or similarity between that offense or act and the crime charged is such that proof that the accused committed the former tends to prove that the accused also committed the latter.

Id. at 642 (2) (c).

Furthermore, there is insufficient similarity or connection between the theft by receiving offense and the crime charged; therefore, evidence of that independent crime was inadmissible. Weems v. State, 204 Ga. App. 352, 355 (419 SE2d 346) (1992) (prior burglary of single family home was not sufficiently similar to apartment burglary three years later). Proof that Myers bought a gun, which he knew was stolen, would not prove that he forced entry into the Smiths’ apartment and stole their shotgun. See Wilcox v. State, 174 Ga. App. 21 (1) (329 SE2d 244) (1985).

Thus, the trial court erred in failing to conduct a hearing and in concluding that the independent offense was sufficiently similar. We cannot conclude that the error was harmless, as there was little evidence connecting Myers to the burglary. Accordingly, Myers’ conviction must be reversed on this ground as well.

4. Based on Divisions 1 and 3, Myers’ conviction will be vacated, and he will be given a new trial. Therefore, we need not reach Myers’ last enumerated error, in which he argues that the trial court erred in denying his motion for directed verdict. It is possible that if presented with sufficient admissible evidence, the next jury would be authorized to find that Myers committed the crime charged.

Decided June 26, 2002.

Page A. Pate, for appellant.

Daniel J. Porter, District Attorney, David K. Keeton, Assistant District Attorney, for appellee.

Judgment reversed and case remanded.

Andrews, P. J., and Phipps, J., concur.

       Justin Smith was her boyfriend at the time of the events in question, but the couple later married.

       The state prosecuted the three defendants separately.


author: Barnes, Judge.

text:
    A02A0598.
    NASH et al. v. ALLSTATE INSURANCE COMPANY et al.
    (567 SE2d 748)
   Barnes, Judge.

The five children of a woman who was killed in a car wreck appeal the trial court’s order disbursing more than $18,000 out of $25,000 available insurance coverage to satisfy a hospital lien. Because the children made a claim for wrongful death and the decedent’s administratrix declined to make a claim on behalf of the estate, we reverse.

After surviving for one day, Winona Crissinger died as a result of injuries sustained in an automobile collision caused by Glenda Findley. The hospital bill for services rendered to Crissinger totaled $30,149.25, which was reduced to $18,039.50 due to the decedent’s organ donation. Findley had $15,000 liability insurance, and Crissinger had $10,000 underinsured motorist insurance, which was the total amount of coverage available.

Allstate Insurance Company and Shield Insurance Company filed an interpleader action against Crissinger’s daughter Penny Nash, individually and as Crissinger’s administratrix, the remaining four children individually, and Floyd Healthcare Management, Inc. d/b/a Floyd Medical Center. The insurance companies sought an order allowing them to pay these sums into the court registry, discharging them from liability, and determining the funds’ distribution. The parties agreed to a consent order discharging the companies on payment of their limits into the court registry. The hospital and the children stipulated the facts for the judge to determine how to distribute the funds.

The children moved the court to disburse the entire $25,000 to them individually, arguing that the hospital’s lien under OCGA § 44-14-470 did not attach. The hospital filed a cross-motion for disbursement, contending it was entitled to payment of its lien from the $25,000 in the registry. The trial court held that, even though Crissinger’s administratrix had not asserted a claim for medical payments, such a claim had accrued, and therefore the lien applied against the insurance funds. It ordered the clerk to disburse $18,039.50 to the hospital and the balance to Nash individually and as administratrix.

OCGA § 44-14-470 (b) provides:

Any person, firm, hospital authority, or corporation operating a hospital or nursing home in this state shall have a lien for the reasonable charges for hospital or nursing home care and treatment of an injured person, which lien shall be upon any and all causes of action accruing to the person to whom the care was furnished or to the legal representative of such person on account of injuries giving rise to the causes of action and which necessitated the hospital or nursing home care. . . .

The children argue that, under the plain terms of the statute, the hospital’s lien attaches only to causes of action accruing to their mother or their mother’s estate, which include those for Crissinger’s pain and suffering before her death, her burial expenses, and her hospital expenses. However, the lien does not attach to the children’s claim for the wrongful death of their mother, which is not an action “accruing to the person to whom the care was furnished or to the legal representative of such person.” Instead, the right to maintain an action for wrongful death belongs to a surviving spouse, or if as in this case there is no spouse, to the decedent’s children. OCGA § 51-4-2 (a). Because the estate has not laid claim to the funds and the children have filed a wrongful death suit, they argue, the lien should not be satisfied out of the funds paid into the registry.

The hospital argues that the insurers paid the policy limits into the court to extinguish their liability “on account of Ms. Crissinger’s bodily injury, medical expenses, and subsequent death.” Multiple causes of action had accrued to Crissinger, including one for medical expenses, and therefore, the hospital argues, it was entitled to recover from the money paid into the registry “based on the plain wording of the statute itself.”

The companies prayed in their interpleader for “an Order discharging the Plaintiff from any and all other liability to any Defendant to this action or to any other persons, firms or entities.” The trial court entered such an order, holding that, “upon payment of the said sums, [the insurance companies] will be discharged from all liability.” Neither the interpleader itself nor the order discharging the companies from liability characterizes the funds as being payment for any particular kind of claim.

The parties agree that the value of the plaintiffs’ wrongful death claim exceeds $25,000, and thus the pool of funds available is inadequate to cover all the claims that accrued as a result of this collision. The hospital argues that designating the funds as payment for wrongful death “would elevate form over substance by allowing the interested beneficiaries to escape valid legal claims by semantically calling policy benefits ‘wrongful death’ damages, instead of what they really are: insurance benefits payable upon the personal injury of Mrs. Crissinger.”

We have found no Georgia cases directly addressing how to determine which cause of action should be deemed to be satisfied out of insufficient available funds. But the funds themselves were paid into court in order to discharge the insurers’ liability, not to satisfy a particular claim. The funds were available as payment for any of the claims that could have been made against them, which includes the plaintiffs’ wrongful death claim as well as the estate’s medical expenses claim. The only evidence in the record establishing what the funds “really are” is the wrongful death complaint that the plaintiffs filed against the tortfeasor who caused their mother’s death, which was dismissed after the insurance funds were paid into court. See Holland v. State Farm &c. Ins. Co., 236 Ga. App. 832, 833-834 (1) (513 SE2d 48) (1999).

The trial court thus expanded the scope of the wrongful death action to include the expenses of Crissinger’s last illness, which it had no authority to do. As the Supreme Court of Georgia has held:

There is no common law right to file a claim for wrongful death; the claim is entirely a statutory creation. In Georgia, wrongful death claims are only permitted under the auspices of the Wrongful Death Act, OCGA_§ 51-4-1 et seq. Being in derogation of common law, the scope of the Wrongful Death Act must be limited in strict accordance with the statutory language used therein, and such language can never be extended beyond its plain and ordinary meaning. The express language of the Act will be followed literally and no exceptions to the requirements of the Act will be read into the statute by the courts.

(Punctuation and footnotes omitted.) Tolbert v. Maner, 271 Ga. 207, 208 (1) (518 SE2d 423) (1999).

For the court to designate the insurance proceeds as compensation for medical expenses in order to apply the hospital lien, despite the record evidence to the contrary, would be an unfair exercise in semantics. Someone has to determine which of the several causes of action will be satisfied out of the meager funds available, and the plaintiffs who have the right to bring those causes of action are the logical ones to make that choice.

Decided June 26, 2002.

Davidson & Strain, William E. Davidson, Jr., for appellants.

Smith, Shaw & Maddox, Julius W. Peek, Jr., David F. Guldenschuh, for appellees.

The hospital cites Thomas v. McClure, 236 Ga. App. 622, 624 (2) (513 SE2d 43) (1999), to support the proposition that its lien should be paid from the insurance funds paid into court. Thomas, however, holds only that a hospital lien is enforceable against uninsured motorist funds paid on account of personal injuries the insured suffered; it does not address the issue of how to determine which of several accrued claims should be paid from available funds.

We conclude that the trial court erred in holding that the hospital’s lien should be applied against the funds paid into the court registry. Accordingly, we reverse and remand with direction that the trial court order the clerk to make the funds available for distribution to the plaintiffs.

Judgment reversed.

Pope, P. J., and Ruffin, J., concur.


text:
    A02A0785.
    DOLE v. THE STATE.
    (567 SE2d 756)
   Barnes, Judge.

Following a bench trial, Edward Bernard Dole was found guilty of three counts of violating the Georgia Controlled Substances Act for possession of cocaine, possession with intent to distribute stanozolol, and possession with intent to distribute diazepam. On appeal Dole claims that the trial court erred in denying his motion to suppress certain evidence seized from his home pursuant to an invalid warrant. He also argues that the trial court erred in failing to grant his motion to dismiss the possession of diazepam indictment. Finding no error, we affirm.

1. In reviewing the denial of a motion to suppress, we construe the record to uphold the trial court’s findings and judgment. Davis v. State, 232 Ga. App. 450 (1) (501 SE2d 241) (1998). The trial court’s findings on issues of credibility and conflicting evidence are to be upheld unless they are clearly erroneous. Id. Further, because the trial court is the trier of fact, its findings are analogous to a jury verdict and will not be disturbed if any evidence supports them. Morgan v. State, 195 Ga. App. 732, 735 (3) (394 SE2d 639) (1990).

So construed, the evidence reveals that a Gwinnett County drug task force investigator sought a search warrant for Dole’s residence after Drug Enforcement Administration agents informed him that several packages containing two controlled substances, alprazolam and Valium, addressed to Dole, had been seized by the United States Customs Agency. After obtaining the warrant, the investigator conducted a controlled delivery of an additional package addressed to Dole containing 1,000 Valium pills. The female who signed for the package told the postal worker that Dole was there, but was asleep. Within ten to fifteen minutes of the delivery, the police executed the warrant.

The police recovered cocaine, marijuana, several vials of decadurabolin, and several hundred stanozolol pills. The cocaine was in an ashtray in plain view, the marijuana was in a box on a bedside table, and the other contraband was located in a file cabinet in the bedroom closet. Dole directed the police to the file cabinet after telling them that, “I can show you where the stuff is so you don’t tear everything apart.”

2. Dole first contends that the warrant violates OCGA § 17-5-21 “because the warrant erroneously describes items as ‘being possessed in violation of Georgia Law’ that are not contraband.” He argues that the warrant describes the items to be seized as “instruments of communication, computers, mail correspondence to facilitate the sale or purchase of Valium (Diazepam)” because they were being held “in violation of the law.” He argues that since the items described are not contraband, the warrant exceeds the scope of the search warrant statute, OCGA § 17-5-21, and is unlawful.

Dole has misinterpreted the statement in the warrant. The relevant part of the warrant states: “There is now located certain instruments, articles, person(s), or things, namely: INSTRUMENTS OF COMMUNICATION, COMPUTERS, MAIL CORRESPONDENCE TO FACILITATE THE SALE OR PURCHASE OF VALIUM (DIAZEPAM), which is being possessed in violation of Georgia Law.” Contrary to Dole’s assertion, the phrase “which is being possessed in violation of Georgia Law” refers to the Valium or diazepam, and not to the other items. Further, as the warrant states that these items were possessed to facilitate the illegal sale or purchase of Valium or diazepam, they clearly fall within the terms of OCGA § 17-5-21 (a) (1), as “instruments, articles, or things, . . . which are designed, intended for use, or which have been used in the commission of the offense in connection with which the warrant is issued.” Id. Therefore, there being no factual support for Dole’s arguments, this enumeration of error is without merit.

Dole’s argument that the trial court expanded the scope of the search warrant by referring to the warrant application is not reasonably included within his enumeration of error and was not otherwise enumerated as error. Accordingly, this issue cannot be considered, because matters not enumerated as error will not be considered on appeal. Rider v. State, 226 Ga. 14, 15 (2) (172 SE2d 318) (1970). “This court has no jurisdiction to consider grounds which though argued are not enumerated as error according to OCGA § 5-6-40. [Cits.]” Sunn v. Trophy Marine, 176 Ga. App. 68, 69 (2) (334 SE2d 884) (1985). Moreover, as the Valium was found in plain view when the officers entered the home, they were authorized to seize it. Nichols v. State, 210 Ga. App. 134, 136 (3) (d) (435 SE2d 502) (1993).

3. Dole’s second enumeration of error contends the trial court erred by denying his motion to suppress “because the items described in the warrant are not limited to the named participants in criminal activity.” He contends the warrant was overbroad because it allowed the seizure of items related to unnamed co-conspirators as the affidavit refers to unnamed co-conspirators. This argument is also without merit.

The items described in the warrant to search Dole’s house all involved a named participant — Dole. Officers sought to seize the means by which Dole may have communicated with others (whom they could not yet identify) regarding the sale or purchase of Valium. The items were described with the requisite particularity, so the warrant is not invalidated by the reference to unnamed co-conspirators in the application. This is not a case in which the warrant did not limit the items to be seized. Compare Grant v. State, 220 Ga. App. 604, 609 (2) (469 SE2d 826) (1996) (because the warrant did not clearly limit the items to be seized to those involving the named participants, it was overly broad and allowed for an impermissible exercise of discretion by the searching officers).

4. Finally Dole asserts that the trial court should have granted his motion to dismiss Count 3 of the indictment for possession of diazepam (Valium) with intent to distribute because the evidence was insufficient to warrant a conviction. He argues that he never had actual or constructive possession of the Valium.

This Court, however, does not weigh the evidence or address the credibility of the witnesses. Rather, we determine whether the evidence, viewed in the light most favorable to the verdict, was sufficient to authorize the finder of fact’s finding that the defendant was guilty of the crime charged beyond a reasonable doubt. James v. State, 238 Ga. App. 101, 102 (518 SE2d 142) (1999). From our review of the record, we find that the evidence from which the jury could infer that the Valium was delivered to Dole’s agent who accepted the Valium on his behalf was sufficient to support Dole’s conviction, and thus we find no error in the trial court’s denial of Dole’s motion. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided June 26, 2002.

Clark & Towne, David E. Clark, Wystan B. Getz, for appellant.

Daniel J. Porter, District Attorney, Frank A. Rardi, James M. Cavin, Assistant District Attorneys, for appellee.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.

       Stanozolol is a steroid. Several hundred pills of Winstrol, a common brand name for stanozolol, were recovered from Dole’s residence. Diazepam is also known as Valium.

       Deca-durabolin is also a steroid.


text:
    A02A0799.
    HUGHES v. PUTT PUTT GOLF & GAMES, INC.
    (567 SE2d 741)
   Mikell, Judge.

Frederick M. Hughes III filed a premises liability action against Putt Putt Golf & Games, Inc. (the “Park”) seeking damages for injuries he sustained when another patron collided with him on the Park’s go-cart track. The jury found in favor of the defendant. On appeal, Hughes argues that the trial court erred by reading during its charge to the jury the contentions of the defendant as stated in the pretrial order. We affirm.

The evidence shows that as a part of its charge to the jury, the trial court read verbatim from the consolidated pretrial order both parties’ outlines of the case. The trial court then charged: “Now, I have outlined to you briefly the written contentions of the parties as contained in the pleadings. These pleadings are not evidence. They are only claims or contentions of the parties.” At the conclusion of the charge, plaintiff’s counsel objected to the trial court’s reading of the portions of the defendant’s outline that referenced a witness who had not been called to testify and the accident report, which had not been admitted into evidence. In his sole enumeration of error, Hughes argues that the defendant’s outline should not have been read to the jury because it was not supported by the evidence presented in the case.

The cases cited by the defendant in its brief are dispositive of the issue in this case. In Opatut v. Guest Pond Club, 188 Ga. App. 478 (373 SE2d 372) (1988), the trial court read the contentions of the parties during the jury charge. As in the case sub judice, the trial court in Opatut instructed the jury that the allegations were merely the parties’ contentions, not evidence. We held that “[i]t is not improper in a charge to the jury to state the contentions of the parties, even though some of the contentions be unsupported by the evidence.” (Citations and punctuation omitted.) Id. at 481 (6). In Crawford v. Presbyterian Home, 216 Ga. App. 54, 56 (6) (453 SE2d 480) (1995), we held that “[a] trial court may state the contentions of the party and summarize the evidence in regard thereto.” Accordingly, we find no error in the instant case.

Decided June 26, 2002.

Paula K. Hanington, for appellant.

Hodges, Erwin, Hedrick & Coleman, William H. Hedrick, for appellee.

Judgment affirmed.

Andrews, P. J., and Phipps, J., concur.


author: Miller, Judge.

text:
    A02A0021.
    CARTER et al. v. MURPHEY.
    (567 SE2d 326)
   Miller, Judge.

Alexander Murphey won a jury verdict against C. E. and Margaret Carter in connection with a failed real estate development. The Carters did not receive a jury verdict in favor of their claim for money invested as alleged in the counterclaim. Pursuant to an appeal, Carter v. Murphey, 241 Ga. App. 340, 343-344 (1) (526 SE2d 149) (1999), this Court affirmed the award to Murphey and granted a new trial to the Carters on the counterclaim on procedural grounds. After the Carters rested in the second trial, Murphey successfully moved for a directed verdict on both counts of the counterclaim, and the Carters again appeal. Discerning no error, we affirm.

Murphey was the president of both Furey Development, Inc. (“Furey”), the owner of the property, and Murphey Real Properties, Inc. (“Properties”), the developer. Murphey was also the sole shareholder of Properties and owned half the stock of Furey, the Carters owning the other half.

The first count of the counterclaim sought to allege various breaches of fiduciary duty on Murphey’s part, but in fact alleged development contract breaches by Properties. In Murphey’s motion for a directed verdict as to that count, he successfully argued that the Carters could not maintain a direct, as opposed to a derivative, action against him. The second count relied on the theory that the Carters were the intended third-party beneficiaries of the development contract between Furey and Properties. In Murphey’s motion for a directed verdict as to that count, he successfully argued that the Carters were not third-party beneficiaries. The Carters’ appeals as to these substantive matters are addressed herein in Divisions 2 and 3, respectively.

1. The Carters first raise a procedural point. In the first trial, Murphey moved for a directed verdict on the counterclaim, which was denied. As noted, however, the jury awarded the Carters nothing on their counterclaim, and they appealed the denial of a continuance on it. Carter, supra, 241 Ga. App. at 340. Murphey did not cross-appeal the denial of his motion; therefore, this Court could not consider his assertions of the reasons he felt the counterclaim was not properly before the trial court. Id. at 344 (1).

The Carters contend that Murphey’s failure in Carter to cross-appeal the denial of his first trial motion for a directed verdict barred him from asserting at the second trial the defense he unsuccessfully presented at the first trial. A grant of a new trial, however, requires the case to be heard de novo unless the appellate court directs otherwise. Bankhead v. State, 253 Ga. App. 214, 215 (1) (558 SE2d 407) (2001). “The grant of a new trial eliminates everything which is pending in the old trial. When a new trial is granted, the effect is to set aside all proceedings in the old trial. Where a new trial has been granted, the case stands ready for trial as if there had been no trial.” (Citations and punctuation omitted.) Id. Thus, a trial court in a second trial is free to grant a directed verdict based on the new mix of evidence presented at the second trial, regardless of whether the denial of a directed verdict motion was appealed in the first trial. Cf. Tyson v. Cheek Mechanical &c. Svc., 218 Ga. App. 134, 135 (460 SE2d 536) (1995).

2. (a) Disputing the directed verdict granted on Count 1 of the counterclaim, the Carters argue that they had standing to plead that count directly, as contrasted with a shareholder’s derivative proceeding under OCGA § 14-2-740 et seq. asserting Furey’s claims. This count alleged that Murphey was the president of both Furey and Properties and was also the alter ego of the latter. It further alleged that he was the developer of a subdivision owned by Furey and that the Carters were 50 percent shareholders in Furey, to whom he owed fiduciary duties. It incorporated the development agreement between Furey and Properties and alleged that under it, Murphey was to do all the work in the development of the subdivision. The count alleged finally that the Carters lost their investment of over $300,000 due to Murphey’s various breaches of fiduciary duty.

The unsupported allegation that Murphey was the developer of the subdivision is contradicted by the express language of the development agreement that Properties was the developer of the subdivision and was to do the development work. All but one of Murphey’s alleged “fiduciary duty” breaches were breaches of duties owed to Furey (not to the Carters) by Properties as the developer. Furey may thus have had a cause of action for breach of contract against Properties.

The only way that Furey could have brought such an action directly against Murphey was on a theory that Murphey was Properties’ alter ego. Our review of the record, however, revealed no evidence attempting to pierce the corporate veil of Properties and to establish that Murphey was the alter ego of Properties. See Dews v. Ratterree, 246 Ga. App. 324, 327, n. 3 (540 SE2d 250) (2000) (stating elements of alter ego theory). Accordingly, even assuming the Carters could have brought a direct action against Properties {Parks v. Multimedia Technologies, 239 Ga. App. 282, 293 (5) (520 SE2d 517) (1999)), the direct action against Murphey that they have attempted in their counterclaim must fail for lack of proof of an alter ego theory.

(b) The remaining breach specified in the counterclaim was that when the development desperately needed money, Murphey on behalf of Furey refused to sell part of the development — ostensibly so his Properties company would receive more development fees — and then later had to sell it for less. This was possibly a breach of Murphey’s fiduciary duties owed as president to Furey (and indirectly to the Carters). The appropriate avenue to pursue this alleged breach was a derivative action. In Matthews v. Tele-Systems, 240 Ga. App. 871, 872 (2) (525 SE2d 413) (1999), we held that breaches of fiduciary duty are generally causes of action belonging to the corporation and may be asserted by a shareholder only in a derivative action. We noted that there was an “exception to this rule [only] where the plaintiff-shareholder can show that the wrongful acts caused a special injury unique to him, i.e., separate and distinct from that suffered by other shareholders of the corporation.” (Footnote omitted.) Id. at 872-873 (2). Grace Bros., Ltd. v. Farley Indus., 264 Ga. 817, 819 (2) (450 SE2d 814) (1994), agrees, holding that “[w]e adopt this test and hold that, outside the context of a close corporation, a shareholder must be injured in a way which is different from the other shareholders or independently of the corporation to have standing to assert a direct action.” (Footnote omitted.) Accord Jamal v. Pirani, 227 Ga. App. 713, 714 (2) (490 SE2d 140) (1997) (holding that the close corporation exception mentioned in Grace Bros., supra, requires a statutory close corporation). Here, as in Jamal, nothing in the record showed that Furey was a statutory close corporation. 227 Ga. App. at 714 (2); see OCGA § 14-2-902 (a).

Thus, even assuming that there was a viable claim against Murphey as president of Furey for breach of fiduciary duty in deciding, for a self-interested reason, to pass up an opportunity that allegedly would have been favorable to Furey, that claim belonged to Furey, and the Carters have not alleged or shown that they were injured in a way different from the other shareholder or independently of the corporation. See Grace Bros., supra, 264 Ga. at 819 (2); Jamal, supra, 227 Ga. App. at 714 (2). The Carters’ reliance on Division 2 oí Parks, supra, 239 Ga. App. at 286-288, is misplaced because except in statutory close corporation situations, both the most recent pertinent decision of this Court, Matthews, supra, 240 Ga. App. at 872-873 (2), and the most recent pertinent decision of the Supreme Court of Georgia, Grace Bros., supra, 264 Ga. at 819 (2), require a special injury unique to the complaining shareholder.

Decided June 14, 2002

Reconsideration denied June 27, 2002

William A. Trotter III, Jay M. Sawilowsky, for appellants.

A. Rowland Dye, for appellee.

3. The Carters also contend that the trial court erred in granting a directed verdict to Murphey on the second count of their counterclaim. That count asserted that (a) Murphey breached the development agreement by failing to do the work of a real estate developer in a skillful and workmanlike manner, and (b) the Carters were the intended third-party beneficiaries of the agreement. Even assuming that the Carters were such beneficiaries, however, that would only permit a potential recovery by them against Properties (the party to the development agreement), not Murphey. This claim also fails for lack of proof of the alter ego theory.

Judgment affirmed.

Blackburn, C. J., and Johnson, P. J., concur.