text:
    A13A2432.
    PAMPATTIWAR v. HINSON et al.
    (756 SE2d 246)
   BARNES, Presiding Judge.

Vivek A. Pampattiwar hired Jan V. Hinson, Esq., and her law firm, Jan V. Hinson, PC. (collectively, “Hinson”) to file a divorce action on his behalf. Hinson ultimately terminated the representation and brought this action against Pampattiwar, alleging, among other things, that Pampattiwar had committed fraud by intentionally misleading Hinson during his initial consultation with her, and had published statements about her and her firm on the Internet that were libelous and placed her in a false light. Pampattiwar filed a motion to dismiss for failure to state a claim for fraud, which the trial court denied. The case proceeded to trial, and the jury returned a verdict in favor of Hinson on her claims for fraud, libel per se, and false light invasion of privacy. Pampattiwar filed motions for judgment notwithstanding the verdict and for new trial, which the trial court denied. Pampattiwar now appeals, challenging the trial court’s denial of his motions. For the reasons discussed below, we affirm.

“When we review the denial of a motion for new trial or judgment notwithstanding the verdict, we must affirm the denial if there is any evidence to support the verdict.” Wellons, Inc. v. Langboard, Inc., 315 Ga. App. 183, 187 (2) (726 SE2d 673) (2012). In making this determination, we construe the evidence and every inference arising therefrom in the light most favorable to the prevailing party. Fletcher v. C. W. Matthews Contracting Co., 322 Ga. App. 751 (746 SE2d 230) (2013). “The determinative question is not whether the verdict and the judgment of the trial were merely authorized, but. .. whether a contrary judgment was demanded.” (Citation and punctuation omitted.) Wright v. Apartment Investment & Mgmt. Co., 315 Ga. App. 587, 588 (726 SE2d 779) (2012).

Viewed in this manner, the evidence adduced at trial showed that on July 2, 2010, Pampattiwar met for an initial consultation with Hinson about filing for a divorce. Pampattiwar told Hinson that he was currently represented by other counsel and that he had filed a separate maintenance action against his wife in Fulton County because both of them had lived there at the time the action was filed. Although the separate maintenance action remained pending, Pampattiwar told Hinson that he now desired a divorce and that both he and his wife currently resided in Gwinnett County. Pampattiwar wanted Hinson to take over the representation of his case and file a petition for divorce on his behalf. He did not inform Hinson that she would be the sixth attorney to represent him in the litigation with his wife.

During the initial consultation, Hinson repeatedly asked Pampattiwar if his wife had filed a counterclaim for divorce in the separate maintenance action. Pampattiwar insisted that a divorce counterclaim had not been filed and invited Hinson to check the online Fulton County docket. Hinson then checked the docket while Pampattiwar watched, and the docket reflected that no divorce counterclaim had been filed. Pampattiwar had documents with him relating to the Fulton County case, but Hinson did not review them as part of the initial consultation.

Hinson advised Pampattiwar that venue for the divorce would be in Gwinnett County given that both parties now lived there and that the filing of a divorce petition would abate the separate maintenance action. Hinson told Pampattiwar that she was willing to represent him in the divorce in Gwinnett County, but not in the separate maintenance action pending in Fulton County in which he already had retained counsel. Pampattiwar agreed to this arrangement, and Hinson subsequently filed a petition for divorce on his behalf in Gwinnett County.

Almost immediately after filing the divorce petition in Gwinnett County, Hinson received what she characterized as a “scathing” response from opposing counsel informing her that Pampattiwar’s wife had in fact filed a counterclaim for divorce in the separate maintenance action almost a year earlier. Hinson confronted Pampattiwar, who assured her that he had not known about the divorce counterclaim or the error on the Fulton County docket. Pampattiwar also told Hinson that the attorney who had been representing him in the Fulton County case had now withdrawn and he was currently unrepresented. Believing that Pampattiwar had simply been confused about the filing of the counterclaim, Hinson agreed to represent him in the divorce proceedings in Fulton County.

After entering an appearance in the Fulton County action, Hinson obtained a copy of Pampattiwar’s deposition that had been taken earlier in that case. It was clear from the deposition transcript that Pampattiwar knew that his wife had counterclaimed for divorce. Hinson confronted Pampattiwar with the deposition transcript and accused him of knowing about the counterclaim in their initial consultation. She accused him of “playing fast and loose with [her] bar license” and of “making a fool out of [her] in the courts in which [she] practice[d]” by having her file a divorce petition in Gwinnett County when one was already pending in Fulton County. Pampattiwar responded, “You can’t get out now. We’re on a trial calendar.”

In light of the divorce counterclaim pending in Fulton County, Hinson advised Pampattiwar that the divorce petition filed in Gwinnett County was improper and would need to be voluntarily dismissed. Pampattiwar responded that he did not want to dismiss the Gwinnett County action and instead wanted to “take [his] chances” in Gwinnett and was “willing to pay extra for that.” However, Hinson insisted that Pampattiwar agree to the dismissal or she would seek to withdraw from representing him. Pampattiwar then signed a dismissal drafted by Hinson, but he returned to her office after she left for lunch and took the document with him so that she could not file it. After another confrontation, Pampattiwar signed a new dismissal drafted by Hinson, which she was able to file successfully. The divorce petition filed in Gwinnett County ultimately was dismissed while the divorce case proceeded in Fulton County.

Over the ensuing months, Hinson and Pampattiwar had multiple heated confrontations over billing issues and other matters relating to the Fulton County divorce case. Hinson moved to withdraw from representing Pampattiwar, but the trial court denied her motion. Hinson later filed a motion for reconsideration, which the trial court granted on the eve of arbitration that had been scheduled between Pampattiwar and his wife. However, Pampattiwar pleaded with Hinson to represent him in the arbitration that was set to commence in three days, and she acquiesced to his request.

Hinson ended her representation of Pampattiwar on September 15, 2010 after the arbitration. In October 2010, Pampattiwar contacted Hinson’s law firm because he was upset over his legal bills. Pampattiwar spoke with a paralegal at the firm and accused Hinson and her staff of being “crooks” and claimed that they had “duped” him.

In November 2010, Hinson became concerned because “the phones just stopped ringing” in her office. One of Hinson’s assistants “Googled” Hinson’s name on the Internet and discovered a review of her law firm that had recently been posted on the website Kudzu.com under the screen name “STAREA.” The reviewer described Hinson as “a CROOK Lawyer” and an “Extremely Fraudulent Lady.” The reviewer claimed that Hinson “inflates her bills by 10 times” and had “duped 12 people i[n] the last couple of years.” Further investigation revealed that the Internet protocol (“IP”) address used for the STAREA review matched the IP address used by Pampattiwar in several e-mails that he had sent to Hinson.

Hinson subsequently filed the instant action against Pampattiwar, alleging, among other things, that he had published statements about her and her firm on Kudzu.com that constituted libel per se. Hinson also alleged that Pampattiwar had committed fraud during his initial consultation with her by falsely representing that no divorce counterclaim had been filed in the Fulton County case and by encouraging her to confirm this fact on the online docket, even though Pampattiwar knew that his wife had filed a counterclaim and that the docket was inaccurate. Hinson further alleged that she detrimentally relied on Pampattiwar’s misrepresentation about the counterclaim by improperly filing a petition for divorce on his behalf in Gwinnett County, leading her to suffer professional embarrassment and humiliation.

After Hinson filed her lawsuit, an additional review was posted on Kudzu.com under the screen name “REALPOLICE.” The reviewer warned viewers not to “trust” positive reviews appearing for Hinson on Kudzu.com because she “asks her office staff to post bogus reviews every where on the [IJnternet.” Further investigation revealed that the Kudzu.com user accounts for STAREA and REALPOLICE had the same password, “pampa012.” As with the STAREAreview, the IP address used for the REALPOLICE review matched the IP address used by Pampattiwar in his e-mails with Hinson. After the posting of the REALPOLICE review, Hinson amended her complaint to include a claim for false light invasion of privacy.

Pampattiwar filed a motion to dismiss Hinson’s fraud claim for failure to state a claim upon which relief could be granted, and the trial court denied the motion. The case proceeded to trial, where Hinson testified to the events as set out above. Hinson called several additional witnesses, including an information technology (“IT”) communications expert who traced the source of the two Kudzu.com reviews to the IP address associated with Pampattiwar. On her claims for fraud, libel per se, and false light invasion of privacy, Hinson did not assert that she suffered any pecuniary loss from the misrepresentations and instead sought damages for “wounded feelings” under OCGA § 51-12-6.

Pampattiwar moved for a directed verdict on several of Hinson’s claims, which the trial court denied. During the defense’s case-in-chief, Pampattiwar testified that he had been aware that his wife had filed a counterclaim for divorce in the separate maintenance action in Fulton County when he met for his initial consultation with Hinson. But Pampattiwar claimed that he told Hinson about the counterclaim and showed her pleadings from the Fulton County case during the initial consultation. Pampattiwar also denied posting the two reviews on Kudzu.com.

After hearing all of the evidence, the j ury found in favor of Hinson and, among other things, awarded her damages for fraud, libel per se, and false light invasion of privacy using a special verdict form. Pampattiwar filed motions for judgment notwithstanding the verdict and for new trial, which the trial court denied. This appeal followed.

1. Pampattiwar contends that the trial court erred in denying his motion for judgment notwithstanding the verdict on Hinson’s claim for fraud predicated on his alleged misrepresentation about the divorce counterclaim because Hinson failed to prove justifiable reliance. Hinson testified that she checked the online docket in the Fulton County action to confirm Pampattiwar’s statement that no divorce counterclaim had been filed in that action, but Pampattiwar contends that checking the docket was insufficient due diligence on her part. According to Pampattiwar, Hinson should have investigated further into what claims were being asserted in the Fulton County action before she filed the divorce petition in Gwinnett County, such as by reviewing the documents from the Fulton County action that Pampattiwar brought with him to the initial consultation. We are unpersuaded that the evidence demanded a finding in favor of Pampattiwar on the issue of reasonable reliance.

“One of the essential elements of an action for fraud is justifiable reliance by the plaintiff.” (Citation and punctuation omitted.) Bithoney v. Fulton-DeKalb Hosp. Auth., 313 Ga. App. 335, 344 (2), n. 23 (721 SE2d 577) (2011). “Blind reliance precludes a fraud claim as a matter of law.” Baxter v. Fairfield Financial Svcs., 307 Ga. App. 286, 294-295 (4) (704 SE2d 423) (2010). But

[wjhile a party must exercise reasonable diligence to protect himself against the fraud of another, he is not bound to exhaust all means at his command to ascertain the truth before relying upon the representations. Ordinarily the question whether the complaining party could have ascertained the falsity of the representations by proper diligence is for determination by the jury.

Elliott v. Marshall, 179 Ga. 639, 640 (176 SE 70) (1934). See Morgan v. Morgan, 193 Ga. App. 302, 304-305 (5) (388 SE2d 2) (1989); Adkins v. Lee, 127 Ga. App. 261, 264 (4) (193 SE2d 252) (1972).

In the present case, Hinson testified that she had practiced domestic law for 16 years and had performed civil case searches on the online Fulton County docket for “hundreds” of cases. Hinson testified that based on her experience, the online docket normally would reflect that a divorce counterclaim had been filed in a domestic case in the pleadings index and in the description of the case type. According to Hinson, she relied on the online docket as confirmation of what Pampattiwar had told her about the Fulton County case because the docket “always” listed “answer and counterclaim” in the pleadings index and listed “divorce” as the case type if a divorce counterclaim had been filed, but here the docket listed the responsive pleading simply as “answer” and the case type as “separate maintenance action.” Hinson further testified that she declined to review the documents from the Fulton County case that Pampattiwar brought with him to the initial consultation because Pampattiwar already had counsel representing him in that case and she did not want to become involved in the separate maintenance action, which she had believed would be dismissed upon the filing of the divorce petition in Gwinnett County. Hinson also noted that while clients in domestic cases are stressed and sometimes are forgetful, they do not usually forget that they are “going through a divorce,” and she does not “typically assume that a client is lying” to her about such a basic fact.

In light of this testimony, it was for the jury to determine whether Hinson exercised sufficient due diligence by checking the online docket to confirm Pampattiwar’s statement that his wife had not filed a counterclaim for divorce in the Fulton County case. “Justifiable reliance generally is a question for the jury, and jury resolution [was] necessary here.” Catrett v. Landmark Dodge, 253 Ga. App. 639, 641 (1) (560 SE2d 101) (2002). The trial court therefore did not err in denying Pampattiwar’s motion for judgment notwithstanding the verdict on Hinson’s fraud claim. See Johnson v. GAPVT Motors, 292 Ga. App. 79, 83 (1) (663 SE2d 779) (2008) (although the evidence would have “authorized” the jury to find that plaintiff should have discovered the alleged misrepresentation, “this conclusion was not demanded by the evidence”) (emphasis in original). See also Catrett, 253 Ga. App. at 641 (1) (whether plaintiff reasonably relied upon defendant’s misrepresentation that the car was “new” should be submitted to the jury, where plaintiff relied upon documents reflecting that the car was “new,” but there were other documents available that referred to the car as “used”); Parks v. Howard, 197 Ga. App. 405, 407-408 (4) (398 SE2d 308) (1990) (whether plaintiff exercised due diligence by relying upon the inspection report presented by defendant, or whether plaintiff should have obtained an independent inspection report, was for the jury to resolve).

Pampattiwar’s reliance upon Isbell v. Credit Nation Lending Svc., 319 Ga. App. 19, 25-26 (2) (b) (735 SE2d 46) (2012), is unpersuasive. In Isbell, the buyers of a used truck asserted fraud claims against the seller and the seller’s financier, contending that the condition of the truck had been misrepresented to them. Id. at 19-21. The uncontroverted evidence showed that the buyers failed to obtain a vehicle history report or have their own mechanic inspect the truck even though they “were specifically warned that the vehicle may have a bent frame” and were offered an opportunity to have the truck inspected. Id. at 26 (2) (b). Consequently, we concluded that, as a matter of law, the buyers had failed to exercise due diligence to discover that the used truck had suffered frame damage in a prior automobile accident. Id. We reasoned that the buyers’ “blind reliance on the salesman’s representations when the means of knowledge were at hand show[ed] an unjustified lack of due diligence.” (Citation and punctuation omitted.) Id.

Relying on Isbell, Pampattiwar argues that Hinson ignored the documents from the Fulton County case that he brought with him to the initial consultation and thus blindly relied on his representation that there was no divorce counterclaim “when the means of knowledge were at hand.” Notably, however, the plaintiff buyers in Isbell were put on notice that there might be a defect in the used truck that they were purchasing, but nevertheless failed to take additional steps to determine if a defect existed that were readily available to them. See Isbell, 319 Ga. App. at 26 (2) (b). But Hinson was never put on notice that a divorce counterclaim might have been filed in the Fulton County case; to the contrary, the online docket reviewed by Hinson reflected that no such counterclaim had been filed and thus appeared to confirm Pampattiwar’s representation to her. Hence, unlike in Isbell, this is not a case of “blind reliance.” Under these circumstances, it was for the jury to resolve whether Hinson should have reviewed the documents that Pampattiwar brought to the initial consultation before filing the divorce petition in Gwinnett County.

2. Pampattiwar also contends that the trial court erred in denying his motion for new trial on Hinson’s fraud claim because she failed to show “actual damages” resulting from the alleged misrepresentation about the divorce counterclaim. Hinson did not allege that she suffered any pecuniary losses from improperly filing the divorce petition in Gwinnett County in reliance on Pampattiwar’s misrepresentation about the counterclaim. Rather, Hinson alleged that the entire injury she suffered from the misfiling of the divorce petition was to her peace, happiness, and feelings and sought damages pursuant to OCGA § 51-12-6. According to Pampattiwar, damages for “wounded feelings” under OCGA § 51-12-6 are not “actual damages” and thus could not be recovered by Hinson for her fraud claim. We disagree.

As we have recently reiterated,

[i]n order to recover for fraud, a plaintiff must prove that actual damages, not simply nominal damages, flowed from the fraud alleged. The expression “actual damages” is not necessarily limited to pecuniary loss, or loss of ability to earn money. General damages are those which the law presumes to flow from any tortious act, and they may be awarded on a fraud claim. Wounding a man’s feelings is as much actual damage as breaking his limbs. Injury to reputation is a personal injury, and personal injury damages can be recovered in a fraud action.

(Emphasis in original.) Kelley v. Cooper, 325 Ga. App. 145, 150 (4) (c) (751 SE2d 889) (2013), quoting Zieve v. Hairston, 266 Ga. App. 753, 759 (2) (c) (598 SE2d 25) (2004). See also Johnson, 292 Ga. App. at 83 (1). Thus, we have held that recovery for “wounded feelings” under OCGA § 51-12-6ispermittedforfraudulentmisrepresentationwhere, as here, the plaintiff claims that the entire injury she suffered from the misrepresentation was to her peace, happiness, or feelings. See Mallard v. Jenkins, 186 Ga. App. 167, 168 (1) (366 SE2d 775) (1988). Compare Kent v. White, 238 Ga. App. 792, 794 (1) (c) (520 SE2d 481) (1999) (plaintiff could not recover damages under OCGA § 51-12-6for fraud because “at no point did [the plaintiff] claim that the entire injury to him was to his peace, happiness, or feelings”). It follows that the trial court did not err in determining that Hinson could recover damages under OCGA § 51-12-6 on her fraud claim and in denying Pampattiwar’s motion for new trial.

3. As with Hinson’s fraud claim, Pampattiwar contends that the trial court erred in denying his motion for new trial on Hinson’s claim for libel per se because Hinson could not recover “wounded feelings” damages under OCGA § 51-12-6 for the alleged defamatory statements. In this regard, Pampattiwar notes that the trial court ruled before trial that Hinson could not recover punitive damages on her libel claim because she never made a written request for correction or retraction of the defamatory statements before filing her complaint. See OCGA § 51-5-11; Mathis v. Cannon, 276 Ga. 16, 28 (4) (573 SE2d 376) (2002). In light of the failure to request retraction, Pampattiwar argues that OCGA § 51-12-6 damages could not be recovered on Hinson’s libel claim because the damages awarded under that statute are in part punitive. We again disagree.

It is true that before the passage of the Tort Reform Act of 1987 (the “Act”), Ga. L. 1987, p. 915, § 6, “wounded feelings” damages awarded under OCGA § 51-12-6 were in part punitive because the statute authorized the jury to consider “circumstances relevant to deterrence of the wrongdoer.” Westview Cemetery v. Blanchard, 234 Ga. 540, 546 (2) (B) (216 SE2d 776) (1975). Specifically, the pre-1987 version of OCGA § 51-12-6 stated:

In a tort action in which the entire injury is to the peace, happiness, or feelings of the plaintiff, no measure of damages can be prescribed except the enlightened consciences of impartial jurors. In such a case, the worldly circumstances of the parties, the amount of bad faith in the transaction, and all the attendant facts should be weighed; and the verdict of the jury should not be disturbed unless the court suspects bias or prejudice from its excess or its inadequacy.

(Emphasis supplied.) Because the statute allowed for consideration of all the attendant circumstances, including the “worldly circumstances of the parties” and any “bad faith in the transaction,”

the jury [was] not restricted to consideration of circumstances relevant to compensation (i.e., the extent of the injury) but [was] entitled to consider as well circumstances relevant to deterrence (i.e., any aggravated aspects of the defendant’s misconduct plus the defendant’s “worldly circumstances”).

Westview Cemetery, 234 Ga. at 545 (2) (B). As such, damages under the pre-1987 version of OCGA § 51-12-6 were, “at least in part, punitive damages.” Id.

However, the 1987 Act significantly revised OCGA § 51-12-6, as our Supreme Court recently explained:

In the Act, the General Assembly . . . enacted the current version of OCGA § 51-12-6, and deleted from the pre-1987 statute the language: “the worldly circumstances of the parties, the amount of bad faith in the transaction, and all the attendant facts should be weighed.” In its place, the legislature inserted the text: “In such an action, punitive damages under Code Section 51-12-5 or Code Section 51-12-5.1 shall not be awarded.” And, the General Assembly specifically encompassed within the term “punitive damages” those damages that might be “awarded ... in order to . . . deter a defendant.” OCGA § 51-12-5.1 (a). Thus, the General Assembly eliminated from OCGA § 51-12-6 the language that was intended to deter misconduct....

Holland v. Caviness, 292 Ga. 332, 334-335 (737 SE2d 669) (2013). Given the elimination of the statutory language aimed at deterrence, the current version of OCGA § 51-12-6, applicable in the present case, does not contain “a punitive award provision.” Id. at 335, n. 8. Consequently, Pampattiwar’s argument that OCGA § 51-12-6 damages could not be recovered for Hinson’s libel claim because of the failure to request retraction is misplaced because it is predicated on an obsolete version of the statute.

We are cognizant that the trial court charged the jury on OCGA § 51-12-6 damages using language from the Georgia pattern jury instructions, which still includes reference to the “worldly circumstances of the parties” and “the amount of bad faith in the transaction” even though that language was deleted from the statute in 1987. See Suggested Pattern Jury Instructions, Vol. I: Civil Cases, § 66.600. Our Supreme Court has noted that “the jury should no longer be instructed using that language.” See Holland, 292 Ga. at 333, n. 3. Notably, however, in his reply brief, Pampattiwar concedes that he did not properly object to the charge at trial and expressly states that he is not claiming that the giving of the charge constituted “a substantial error . . . which was harmful as a matter of law” even absent objection. OCGA § 5-5-24 (c). Pampattiwar emphasizes that “he does not challenge any charge” on appeal and instead argues more broadly that “section 51-12-6 damages inherently incorporate punitive damages” and thus could not be awarded in this case as a matter of law in light of Hinson’s failure to seek retraction. Under these circumstances, Pampattiwar has abandoned any possible challenge to the jury charge on OCGA § 51-12-6 damages, and his broader argument regarding OCGA § 51-12-6 and retraction fails for the reasons previously discussed. The trial court therefore committed no error in denying Pampattiwar’s motion for new trial on the libel claim.

4. Lastly, Pampattiwar contends that the trial court erred in denying his motion for new trial on Hinson’s claim for “false light” invasion of privacy. Pampattiwar argues that Hinson’s false light claim was predicated on the second review on Kudzu.com submitted under the screen name “REALPOLICE,” and he contends that it was undisputed by the parties at trial that the review was flagged and rejected by Kudzu.com for violating its internal policy guidelines before the review was ever posted for the general public to see on the Internet. Given that the second review allegedly was never posted on the Internet, Pampattiwar asserts that Hinson failed to prove that the review was distributed to the public at large and thus could not establish the essential element of publicity as a matter of law. See Williams v. Cobb County Farm Bureau, 312 Ga. App. 350, 354 (2) (b) (718 SE2d 540) (2011); Assn. Sucs., Inc. v. Smith, 249 Ga. App. 629, 633-634 (4) (549 SE2d 454) (2001). We disagree.

Decided March 12, 2014

David A. Webster, for appellant.

Kevin T. Moore, for appellees.

Although Pampattiwar asserts that it was undisputed at trial that the second Kudzu.com review was never posted on the Internet, he cites to nothing in the record to support his assertion. And the record reflects that during closing argument, counsel for Hinson in fact argued that Pampattiwar twice posted reviews to the Internet:

And this claim [of] putting this on the Internet not once, understand, not once but twice. Once wasn’t good enough. He had to do it again. Each time she saw this, each time she was subjected to seeing this on Kudzu and then having to go to Kudzu and have them take it down . .. and then to see it pop back up again, you know, that caused injury to her peace, happiness, and feelings.

Thus, from the jury’s perspective, the issue of whether the second Kudzu.com review was posted on the Internet was in dispute.

Furthermore, there was at least some evidence from which the jury could find that the second review was posted on the Internet. Business records from Kudzu.com were admitted at trial that included a screen shot of the second review and a notation that the review was “Posted: 4/19/2011.” When asked what the date beside the word “Posted” field signified on these business records, the employee who handled site operations for Kudzu.com testified that it reflects “[t]he date the review was posted. Posted meaning you can view it on Kudzu.com.” When all inferences are interpreted in the light most favorable to the verdict, the jury could have inferred from the Kudzu.com business records and the employee’s testimony that the second review submitted under the user name “REALPOLICE” was posted to the Internet for the general public to see. Because there was evidence from which the jury could find that the element of publicity had been met, the trial court committed no error in denying Pampattiwar’s motion for new trial on Hinson’s claim for false light invasion of privacy.

Judgment affirmed.

Miller, J., concurs. Ray, J., concurs in Divisions 1, 2, and 4, and concurs in judgment only as to Division 3.

       “Although an action for separate maintenance and an action for divorce both grow out of the marriage relationship and relate to the same subject matter, they have different purposes and raise different questions.” Southworth v. Southworth, 265 Ga. 671, 673 (3) (461 SE2d 215) (1995). An action for separate maintenance is authorized “[w]hen spouses are living separately or in a bona fide state of separation and there is no action for divorce pending.” OCGA § 19-6-10.

       OCGA § 51-12-6, entitled “Damages for injury to peace, happiness, or feelings,” provides in relevant part: “In a tort action in which the entire injury is to the peace, happiness, or feelings of the plaintiff, no measure of damages can be prescribed except the enlightened consciences of impartial jurors.”

       Pampattiwar separately contends that the trial court erred in denying his motion to dismiss Hinson’s fraud claim for failure to state a claim upon which relief could be granted. In moving to dismiss the fraud claim, Pampattiwar argued that the element of reasonable reliance had not been pled with sufficient particularity in Hinson’s complaint. See OCGA § 9-11-9 (b). “However, the proper remedy for seeking more particularity is by motion for a more definite statement at the pleading stage or by the rules of discovery thereafter.” (Citation and punctuation omitted.) Odom v. Hughes, 293 Ga. 447, 455 (3), n. 6 (748 SE2d 839) (2013). Accordingly, the trial court committed no error in denying Pampattiwar’s motion to dismiss. See id.; Miller v. Lomax, 266 Ga. App. 93, 98 (2) (b) (596 SE2d 232) (2004).


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A13A2152.
    PARKER v. THE STATE.
    (754 SE2d 409)
   Miller, Judge.

Following a stipulated bench trial, the trial court found Male Parker guilty of armed robbery (OCGA § 16-8-41). On appeal, Parker challenges the trial court’s denial of his motion to suppress, contending that the trial court erred in allowing hearsay evidence and failing to suppress statements he made to police officers, evidence found during a search of his residence, and photographic identifications of Parker. Discerning no error, we affirm.

In reviewing a trial court’s ruling on a motion to suppress, we may consider all relevant and admissible evidence of record introduced at the motion hearing or during trial. See Walker v. State, 314 Ga. App. 67 (1) (722 SE2d 887) (2012). Additionally,

[w]hile a trial court’s findings as to disputed facts will be reviewed to determine whether the ruling was clearly erroneous, where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.

(Citation and punctuation omitted.) Id.

So viewed, the evidence shows that in April 2010, Parker and his girlfriend resided in apartment number 2203 at the Waterford Club Apartments in Lithia Springs. At that time, Parker owned a Hi Point semi-automatic 9mm pistol. Sometime before April 19, 2010, co-defendant Jabree Smith approached Parker with a plan to commit an armed robbery, and Parker agreed to participate in the armed robbery of the victim.

On April 19, 2010, the victim traveled to the Waterford Club Apartments, believing that he was meeting Smith to purchase one pound of marijuana for $1,300. Neither Parker, Smith, nor a third co-defendant, Matthew Bourassa, ever intended to sell marijuana to the victim, and no one in the trio had a pound of marijuana to sell. When the victim arrived at the apartment complex, he met Smith in the parking lot, and Smith directed the victim to the 2300 building. Parker and Bourassa were hiding in a basement level breezeway. Smith led the victim down some stairs and into the breezeway, whereupon Parker pointed his loaded gun at the victim and cocked it. Parker ordered the victim to get on the ground, and Bourassa then searched the victim. Upon taking the victim’s cell phone and a wallet, Parker told the victim, “[w]e ought to just shoot you.”

The victim told Parker and the co-defendants that a friend was holding the money for the victim at a nearby gas station. Parker gave his gun to Smith, and Smith held the victim at gunpoint while the victim drove to the gas station. Once they arrived at the gas station, Smith exited the car and fled on foot to apartment number 2203, where he returned the gun to Parker. Parker hid the gun in the closet of his master bedroom. Smith and Bourassa then went to Bourassa’s residence, Waterford Club apartment number 2222. The victim subsequently called the police.

The investigating officer spoke to the victim and, upon learning that the robbery occurred at the Waterford Club Apartments, the investigating officer, the victim, and other officers went to that apartment complex. The investigating officer then received a physical description of the suspects and began canvassing the complex in search for individuals matching that description. The investigating officer spoke to a leasing agent, and she identified Bourassa as an individual matching the physical description of one of the suspects. The agent directed the investigating officer to apartment number 2222.

The investigating officer and other officers proceeded to Bourassa’s apartment and knocked on the door. Bourassa answered the door, stepped outside, and briefly spoke to the investigating officer. The investigating officer told Bourassa that he was investigating an armed robbery and asked whether anyone else was in the apartment. Bourassa stated that Smith was inside the residence, and Smith was ultimately removed from the apartment. While Bourassa and Smith were outside the apartment, the victim positively identified them as his assailants. Bourassa and Smith were then arrested and transported to the Douglas County Sheriff’s Office.

After being advised of and waiving their Miranda rights, Bourassa and Smith both gave statements admitting that they and Parker were involved in the armed robbery. During these custodial interviews, Bourassa and Smith provided Parker’s physical description and information that Parker used the first name “Marquis,” he lived in apartment 2203 with his girlfriend, and his girlfriend drove a white Dodge Avenger.

The investigating officer then directed other police officers, who were still at apartment 2222, to conduct surveillance on Parker’s apartment — apartment number 2203. Police officers observed Parker’s girlfriend drive up to the apartment complex in a white Dodge Avenger, exit her vehicle, and enter apartment 2203. Police officers then heard the girlfriend tell someone that police officers were all over the place and were outside staring at her. A few minutes later, Parker exited the apartment and walked toward his girlfriend’s car. Since the police officers were looking for a suspect who lived in apartment 2203 and Parker matched the general description of that suspect, the police officers detained him. After Parker told the onsite officers his name, the investigating officer who was back at the sheriff’s office used an on-file photograph of Parker for the purpose of preparing a photo lineup. Bourassa and Smith then identified Parker during separate photo lineups.

Parker was arrested and transported to the sheriff’s office. Meanwhile, police officers obtained and executed a search warrant for Parker’s apartment. During the search, police officers found a loaded pistol and clothing similar to that described by the victim.

The investigating officer subsequently interviewed Parker at the sheriff’s office. The officer read Parker the Miranda warnings, and Parker waived his rights and agreed to talk to the officer. Parker then admitted that he was the gunman during the armed robbery.

In several enumerations of error, Parker contends that the trial court erred in denying his motion to suppress his custodial statements, evidence found during a search of his apartment, and his co-defendants’ pre-trial identifications of him. Parker’s arguments lack merit.

1. Parker first contends that the trial court erred in allowing the investigating officer to testify about another officer’s custodial interview of Bourassa and Smith. Parker specifically argues that the hearsay evidence could not be used to prove the lawfulness of the State’s actions and violated his right to confront witnesses. We discern no error.

“A defendant may seek to suppress evidence seized during a warrant search if the warrant was not supported by probable cause.” (Footnote omitted.) Shivers v. State, 258 Ga. App. 253, 253-254 (573 SE2d 494) (2002). Similarly, in order for a warrantless arrest to be valid, police officers must have probable cause to believe the accused has committed or is committing a criminal act. Devega v. State, 286 Ga. 448, 451 (4) (b) (689 SE2d 293) (2010).

It has long been recognized that hearsay is admissible in determining the existence of probable cause. Admission of hearsay for that purpose does not violate the constitutional right of a defendant to confront the accusing witnesses, because guilt or innocence is not the issue for determination. There is a great difference between what is required to prove guilt in a criminal case and what is required to show probable cause for arrest or search. A finding of probable cause may rest upon evidence which is not legally competent in a criminal trial.

(Citations and punctuation omitted.) Banks v. State of Ga., 277 Ga. 543, 544 (1) (592 SE2d 668) (2004). Consequently, the trial court did not err in admitting hearsay testimony at the suppression hearing, giving it such weight and credit it deemed proper. See McDaniel v. State, 263 Ga. App. 625, 627-628 (1) (588 SE2d 812) (2003).

2. Parker also contends the photographic identifications by his co-defendants should have been suppressed because his photograph was obtained as a result of and tainted by his illegal arrest. Parker argues that he was arrested when he exited his apartment and was confronted by police. We disagree.

It is well settled that a police officer

may stop persons and detain them briefly, when the officer has a particularized and objective basis for suspecting the persons are involved in criminal activity. In doing so, the officer’s action must be justified by specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion, and the officer must have some basis from which the court can determine that the detention was neither arbitrary nor harassing. Detention beyond that... is an arrest, and, to be constitutional, such an arrest must be supported by probable cause.

(Citations, punctuation and footnotes omitted.) Galindo-Eriza v. State, 306 Ga. App. 19, 22 (1) (701 SE2d 516) (2010). The test of whether a detention amounts to a custodial arrest depends upon whether a reasonable person in the suspect’s position would have thought the detention would not be temporary. Buford v. State, 312 Ga. App. 411, 412 (1) (718 SE2d 605) (2011). Since this determination is a mixed question of fact and law, we construe the evidence most favorably to uphold the trial court’s findings and accept those findings unless they are clearly erroneous, but we independently apply the legal principles to those facts. Id. at 413 (1).

Viewed in the light most favorable to the trial court’s ruling, the evidence shows that when police officers made contact with Parker, they had a reasonable suspicion to believe he was the third suspect involved in the armed robbery. Notably, Bourassa and Smith gave incriminating statements that they were involved in the armed robbery and provided information regarding the physical description and apartment number (2203) of the third assailant (Parker). The officers observed Parker coming out of apartment 2203, and Parker matched the physical description provided by Bourassa and Smith. Additionally, police officers saw a woman drive up to the apartment complex in a white Dodge Avenger and enter apartment 2203, and those observations were consistent with information provided by the co-defendants. Consequently, the officers had a reasonable suspicion to detain Parker as they investigated whether he was involved in the robbery.

During this investigation, Parker provided his full name to the police officers, who relayed this information to the investigating officer. The investigating officer then searched a police database and found a picture of Parker to prepare a photo lineup. Contrary to Parker’s claims, although he was not free to leave, the evidence does not conclusively show that he was under arrest, as opposed to being detained, at the time he provided his name. Since the evidence did not show that Parker was handcuffed, placed in a patrol car, or otherwise physically restrained, the trial court was authorized to find that he was not under arrest at the time he provided his name to officers. See Tune v. State, 286 Ga. App. 32, 35 (1) (b) (648 SE2d 423) (2007) (holding that a temporary detention where defendant was not handcuffed or otherwise restrained did not constitute an arrest); Harper v. State, 243 Ga. App. 705, 706 (1) (534 SE2d 157) (2000) (noting that “not every detention is an arrest”) (citation omitted). Consequently, the trial court did not err in denying his motion to suppress the photograph identifications.

3. Parker contends that the trial court erred in denying his motion to suppress evidence seized pursuant to his arrest, including his custodial statements, because police officers lacked probable cause to arrest him. We disagree.

Probable cause to arrest “exists if the arresting officer has knowledge and reasonably trustworthy information about facts and circumstances sufficient for a prudent person to believe the accused has committed an offense.” (Citation and punctuation omitted.) Devega, supra, 286 Ga. at 451 (4) (b). The facts necessary to establish probable cause for arrest are much less than those required to prove guilt beyond a reasonable doubt at trial, and the test for probable cause merely requires a probability that the suspect committed a crime under the totality of the circumstances. See Armour v. State, 315 Ga. App. 745, 746 (728 SE2d 270) (2012).

As described above, police officers had a reasonable suspicion to believe that Parker was involved in the armed robbery. Their suspicion developed into probable cause that Parker committed a crime when both Bourassa and Smith positively identified Parker as the third assailant during a photo lineup. Under the totality of the circumstances, police officers had the authority to arrest Parker. Therefore, the trial court did not err by denying his motion to suppress evidence seized as a result of his arrest. See Alatise v. State, 291 Ga. 428, 430-431 (3) (728 SE2d 592) (2012) (co-defendant’s confession and incriminating statements, which were consistent with information gained from independent investigation, provided officers probable cause to conclude that defendant had committed a crime).

Decided February 4, 2014

Reconsideration denied March 13, 2014

Michael P. Pryor, for appellant.

4. Parker next contends that the trial court erred in denying his motion to suppress the physical evidence seized from his apartment, because the State never introduced into evidence the search warrant or supporting affidavit. Again, we disagree.

Preliminarily, in Parker’s motion to suppress, he never identified that one of the legal issues to be addressed was the existence of the search warrant. Consequently, Parker waived the issue. See Young v. State, 282 Ga. 735, 736-738 (653 SE2d 725) (2007) (defendant waived issue regarding existence of search warrant by not providing notice that this would be one of issues for the trial court to address).

Even if not waived, Parker’s claim is belied by the record. The record shows that the search warrant and affidavit were filed on June 9, 2011, almost two weeks before Parker’s hearing on his motion to suppress. Additionally, the trial court stated that it had reviewed the search warrant and affidavit, and Parker’s attorney conceded at the suppression hearing that he had copies of the same. Since the subject materials were in the record and Parker had an opportunity to confront and cross-examine witnesses about the contents of the supporting affidavit, his claim affords no basis for reversal. See Bowman v. State, 205 Ga. App. 347, 348 (422 SE2d 239) (1992); see also Flint v. State, 308 Ga. App. 532, 535 (2) (707 SE2d 498) (2011) (State met initial burden of proof where copies of affidavit and warrant were in the record and submitted to the trial court during the hearing). Compare Sosebee v. State, 303 Ga. App. 499, 501 (1) (693 SE2d 838) (2010) (where State failed to produce search warrant and police officer did not have personal knowledge of the warrant, the trial court erred in denying motion to suppress on ground that search was conducted without valid search warrant). Accordingly, the trial court did not err in denying Parker’s motion to suppress.

Judgment affirmed.

Barnes, P. J., and Ray, J., concur.

David McDade, District Attorney, Rachel D. Ackley, Assistant District Attorney, for appellee.

       Parker does not otherwise challenge the lawfulness of the search and seizure conducted pursuant to the search warrant.


author: MCFADDEN, Judge.

text:
    A13A1691.
    COLLINS v. THE STATE.
    (756 SE2d 269)
   MCFADDEN, Judge.

After a jury trial, Jamal Collins was convicted of armed robbery, possession of a firearm during the commission of a crime and possession of an article with an altered identification mark. He appeals, challenging the sufficiency of the evidence, the failure to have him psychologically evaluated before trial, an alleged comment on his co-defendant’s right to remain silent, the imposition of sentence by a substitute judge, the judge’s failure to exercise discretion in imposing sentence and the trial court’s refusal to grant a new trial based on the admission of allegedly improper evidence. However, there is enough evidence to support the verdict, Collins failed to obtain a ruling as to an evaluation and acquiesced in trying the case without an evaluation, he was not prejudiced by the comment regarding the co-defendant, a substitute judge was necessitated by the death of the trial judge and Collins has shown no harm in the substitute judge imposing sentence, the sentencing judge properly exercised his discretion, and Collins has not specified any purportedly improper evidence and has thus abandoned any such claim of error. Accordingly, we affirm.

1. Sufficiency of the evidence.

Collins claims that there is insufficient evidence to support his convictions. The claim is without merit.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence. We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Brown v. State, 318 Ga. App. 334, 334-335 (733 SE2d 863) (2012) (citations and punctuation omitted).

So viewed, the evidence shows that the victim was sitting in his truck when a car pulled up beside him. Collins got out of the passenger side of the car, approached the victim with a handgun, ordered him to turn off his truck, and demanded his keys and wallet. The victim complied, and Collins told him that since “we have got your ID, don’t tell anybody or we’ll get you.” Collins got back in the car and fled with the accomplice driver. Collins and his co-defendant were subsequently stopped by deputy sheriffs who had received a call to be on the lookout for the car. Inside the car, investigators found the victim’s wallet and keys, and the handgun, which had the serial number scraped off of it. The evidence was sufficient to authorize a rational trier of fact to find Collins guilty beyond a reasonable doubt of charged offenses. See Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

2. Psychological evaluation.

Collins contends that the trial court erred in failing to have him psychologically evaluated prior to trial. Although his attorney filed a petition for an evaluation, he never obtained a ruling from the trial court on it. Rather, counsel and Collins proceeded to trial without an evaluation, fully participated in the trial, had Collins testify at trial, never objected to the lack of a ruling by the trial court on the petition, and did not raise the matter as an issue in his motion for new trial. Under these circumstances, there is nothing for us to review. “Appellate courts exist to review asserted error but where the defendant makes no objection or obtains no ruling of the trial court, the contended problem cannot be made the basis of appellate review as there is no ruling to review.” Fennell v. State, 271 Ga. App. 797, 799 (2) (611 SE2d 96) (2005) (citation and punctuation omitted). See also Wilson v. State, 277 Ga. 195, 200 (2) (586 SE2d 669) (2003) (claim that trial court’s failure to allow pre-trial psychiatric evaluation prevented effective representation not preserved for appellate review where it was not raised on motion for new trial).

3. Co-defendant’s right to remain silent.

Collins complains that the trial court erred in failing to grant him a mistrial after the state impermissibly commented on his co- defendant’s right to remain silent. We disagree.

While cross-examining the co-defendant about his testimony concerning a set of car keys, the prosecutor said, “And you haven’t told anyone this story until this morning; isn’t that right?” The co-defendant’s attorney objected and moved for a mistrial on the ground that it was an improper comment on the co-defendant’s right to remain silent. The trial court sustained the objection, but denied the motion for a mistrial. After that ruling, counsel for Collins moved for a mistrial “to the extent [Collins’] rights may be prejudiced by the fact that this question was asked to [the co-defendant].” The trial court asked how Collins was prejudiced by the question posed to the co-defendant, and counsel for Collins offered no showing of prejudice. The trial court then denied Collins’ motion.

“Whether to grant a motion for a mistrial is within the sound discretion of the trial court, and this [c] ourt will not disturb the ruling on appeal unless it resulted from a manifest abuse of that discretion. [Cit.]” Dulcio v. State, 292 Ga. 645, 648 (2) (740 SE2d 574) (2013). Here, the trial court did not abuse its discretion in denying Collins’ motion for a mistrial based on a question posed to his co-defendant, which Collins has failed to show prejudiced him in any way. See Sheats v. State, 231 Ga. 362, 363-364 (3) (201 SE2d 420) (1973) (no error in refusing to grant mistrial where prosecutor referred to co-indictees’ right not to testify, but made no reference to appellant); Mayfield v. State, 220 Ga. App. 19, 20 (2) (467 SE2d 352) (1996) (no prejudice where appellant failed to show that evidence admitted against co-defendant was considered against him).

4. Substitute judge for sentencing.

After the jury returned its verdict, but before sentence was imposed, the superior court judge who presided over the trial died. Collins moved to set aside the verdict, but a judge of the same court denied the motion and imposed sentence. Collins claims it was error for the substitute judge to deny the motion and impose sentence. The claim is without merit.

As an initial matter, we note that a court may seek assistance from another judge in the same county where a judge of the court “is unable to preside because of disability, illness, or absence.” OCGA § 15-1-9.1 (b) (2) (B). See also McIntyre v. State, 266 Ga. 7, 18 (4) (463 SE2d 476) (1995) (Sears, J., concurring in part and dissenting in part) (substitution of a judge may be necessitated by incapacitation of the judge by death or debilitating illness or trauma). Nevertheless, even if we assume some error in seeking such assistance in the instant case, “any error in the substitution of judges is subject to harmless error analysis. [Cits.]” McIntyre, supra at 9 (2). Collins has shown “no harm resulting from the substitution [after the death] of the trial judge[ ].” Speed v. State, 270 Ga. 688, 698 (42) (512 SE2d 896) (1999) (citation omitted) (no harm where trial judge left town due to family member’s illness and substitute judge gave charge to jury and presided over deliberations). See also Cooper v. State, 281 Ga. 760, 761 (3) (642 SE2d 817) (2007) (no harm where, after unspecified emergency, substitute judge accepted verdict from the jury); McIntyre, supra at 8-9 (2) (no harm where trial judge left to attend funeral and substitute judge presided over end of trial). Accordingly, this enumeration provides no basis for reversal of the trial court’s judgment.

5. Exercise of sentencing discretion.

Collins contends that the sentencing judge did not exercise any discretion in sentencing him to 20 years for the armed robbery, pointing to the judge’s comments that “[i]n this circuit you ain’t going to get 10 years if you get out with a loaded gun and stick it in somebody’s face and take their money” and that “[t]he only question is life or 20 years no parole.” Indeed, a court’s use of a mechanical sentencing formula amounts to a refusal to exercise its discretion. Cottingham v. State, 206 Ga. App. 197, 199 (3) (424 SE2d 794) (1992). The test is “whether the statement by the court clearly, i.e., unambiguously, shows a misunderstanding of the law or a general policy of not exercising discretion.” McCullough v. State, 317 Ga. App. 853, 854-855 (733 SE2d 36) (2012) (citation and punctuation omitted; emphasis in original). Moreover, we consider the judge’s remarks as a whole. Id.

Decided March 13, 2014.

Kimberly L. Copeland, for appellant.

C. Paul Bowden, District Attorney, Ronnie A. Wheeler, Assistant District Attorney, for appellee.

The transcript of the sentencing hearing shows that prior to the remarks in question, the judge gave a lengthy summary of the evidence and noted the minimum possible sentence of ten years. Considered as a whole, we do not believe the trial court’s remarks indicate either a misunderstanding of the law or a general policy of not exercising discretion. Rather, he clearly knew the possible sentencing range and, based on the manner in which the armed robbery was committed, determined that neither the minimum nor maximum sentence was appropriate, and that instead a 20-year sentence was authorized. Accordingly, we find that the trial court did not employ a mechanical formula in imposing the sentence in this case. See Williams v. State, 221 Ga. App. 98, 99 (470 SE2d 489) (1996).

6. New trial.

Collins enumerates that the trial court abused its discretion when it failed to grant him a new trial, claiming that he objected to hearsay and other illegal evidence. However, he has not indicated any specific evidence upon which this enumeration is based and he has made no citations to the record or transcript. “In the absence of such reference [to the record or transcript], the Court will not search for or consider such enumeration.” Court of Appeals Rule 25 (c) (2) (i). See Massey v. State, 278 Ga. App. 303, 307 (3) (628 SE2d 706) (2006) (enumeration of error abandoned where appellant failed to specify allegedly improper evidence).

Judgment affirmed.

Doyle, P. J., and Boggs, J., concur.


text:
    A13A1698.
    HAYES v. SNS PARTNERSHIP, LP et al.
    (756 SE2d 273)
   Miller, Judge.

Bobbie Ann Hayes injured her knee while entering a Steak ’n Shake restaurant when the door closed on her shoe, causing her to fall. Hayes sued SNS Partnership, LP, the owner of the premises, and Steak ’n Shake Operations, Inc., operator of the restaurant. Hayes contends that the trial court erred in granting summary judgment to the defendants and in an evidentiary ruling.

On appeal from a grant or denial of summary judgment, we conduct a de novo review of the law and evidence. Rubin v. Cello Corp., 235 Ga. App. 250 (510 SE2d 541) (1998). In applying the standard of review on a motion for summary judgment, this Court views the evidence in the light most favorable to the nonmovant to determine whether a genuine issue of material fact exists and whether the moving party is entitled to judgment as a matter of law. Id. A defendant may prevail on summary judgment “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.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

So viewed, the evidence shows that Hayes had been to this Steak ’n Shake on two or three occasions before her fall, although she had not opened the door for herself on those visits. On April 6,2010, Hayes went to the restaurant by herself and

opened the door, and I stepped in. And immediately, the door, like, started pushing me. And it was pushing me really hard, and I was trying to keep from falling down. And the door had caught my shoe, and the shoe was hung in it. But I didn’t realize that the shoe was hung in it because I was just. . . trying to keep from falling down because ... it was, like, pushing me,. . ., and I’m trying to get my balance. And so I go to take a step, you know, to get on out of the way, and my shoe was hung under the door, so that made me fall real hard.

Hayes suffered a fractured knee cap as a result of her fall. The shoe Hayes was wearing was a hard soled open-backed sandal with no heel strap. Following her fall, a Steak ’n Shake employee removed her sandal from under the door.

Justin Rozar, the operations supervisor that evening, was in the office when an employee advised him a woman had fallen. Rozar went to the foyer, where he found Hayes on the floor. Rozar and the other employee helped Hayes into a chair, and Hayes’s daughter came and took her to the hospital. Hayes told Rozar she opened the door and the door closed on her sandal, catching her heel and causing her to fall.

Following Hayes’s fall, Rozar opened and closed the door, which he used everyday coming to work, and found that it operated as it always had. Rozar said no one had complained about the door prior to Hayes’s fall.

Kenneth Smith, general manager at this Steak ’n Shake, was not on site that day but, following his notification of the fall, also inspected the door and noted nothing out of the ordinary. As he observed, the door is a self-closing door and “when you open it, if someone’s not holding it, it’s going to close itself.”

Hayes deposed Collin Braynard, who became the district manager for Steak ’n Shake in July 2010, following Hayes’s fall. Braynard explained the policy regarding maintenance and upkeep of the buildings. Managers are to conduct a daily walk-around looking for cleanliness and repair issues. The district manager also conducts a quarterly inspection, looking at every detail of the restaurant, which can take up to six hours. The proper closing time for the doors, seven seconds, would be checked on these quarterly inspections.

1. In her first enumeration, Hayes contends that the trial court erred in denying her motion to strike the sworn statements of Justin Rozar and Kenneth Smith. We address this issue first in order to determine if these statements were properly considered by the trial court in ruling on the motion for summary judgment.

Counsel for appellees questioned Rozar and Smith in the presence of a certified court reporter who gave the oath to the two witnesses and took down their testimony. Hayes argues that, because the two statements do not qualify as “affidavits” under OCGA § 9-11-56 (e), they should have been stricken.

This Court reviews the denial of a motion to strike an affidavit for abuse of discretion. Cox v. Mayan Lagoon Estates Ltd., 319 Ga. App. 101, 102-103 (1) (a) (734 SE2d 883) (2012). We will use this same standard in reviewing the denial of a motion to strike sworn statements.

While Hayes is correct that the two sworn statements do not qualify as affidavits under OCGA § 9-11-56 (e), that does not end our consideration of whether they should have been stricken from the record for purposes of considering appellees’ motion for summary judgment. In Dalton v. City of Marietta, 280 Ga. App. 202 (633 SE2d 552) (2006), we determined that excluding a doctor’s medical narrative report from consideration on a motion for summary judgment was error and found that

it is well settled that the trial court on summary judgment need not limit its inquiry to the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits set out in OCGA § 9-11-56 (c). Those forms of evidence are not the exclusive means of presenting evidence on a motion for summary judgment. The trial court may consider any material which would be admissible or usable at trial.

(Citations and punctuation omitted; emphasis in original.) Id. at 204 (1). See also Glisson v. Morton, 203 Ga. App. 77, 77-78 (2) (416 SE2d 134) (1992) (excerpts from plaintiff’s personnel file did not have to be certified or be part of a sworn affidavit to be considered in support of defendant’s motion for. summary judgment).

Certainly, at trial, the sworn statements could be admissible as prior consistent statements or for impeachment purposes. OCGA § 24-6-613. Therefore, we find no error in the trial court’s denial of Hayes’s motion to strike.

2. In determining whether the trial court properly granted summary judgment to appellees, we note that

[p]roof of the occurrence of an injury, without more, is insufficient to establish liability on the part of a proprietor. In order to recover, the plaintiff must prove that the defendant had superior knowledge of a dangerous condition that was unknown to the plaintiff and that caused the plaintiff’s injuries. Without evidence of the existence of a dangerous condition, there can be no evidence that the defendant had any knowledge of the danger, and therefore no recovery for the plaintiff.

(Citations and punctuation omitted; emphasis supplied.) Metts v. Wal-Mart Stores, 269 Ga. App. 366, 367 (604 SE2d 235) (2004).

In Metis, a customer was injured when boxes fell off a display-rack. There was, however, no evidence that the display rack was defective in design or construction, and this Court affirmed summary judgment to Wal-Mart. Id. at 367-368. Similarly, in Siegel v. Park Avenue Condominium Assn., 322 Ga. App. 337, 338 (1) (744 SE2d 876) (2013), Siegel stood within the “barrel” of a revolving door holding an oxygen canister while a friend got in a car. When Siegel signaled the valet to come and get the canister, her movement triggered the door’s sensor, causing the door to rotate and hit her foot, whereupon she fell and broke her hip and elbow. In the face of the Association’s evidence that the door was operating normally, “Siegel presented no evidence to the contrary, such as expert testimony that the speed or force of the automatic doors was excessive or the sensor that triggered the movement was too sensitive or sited improperly.” Id. at 339. This Court affirmed the summary judgment to the Association.

Here, in addition to her own testimony, the only evidence offered by Hayes in support of her contentions was the affidavit of her daughter that the door at Steak ’n Shake was “heavy” on prior occasions when she had visited the restaurant as well as when she went to get her mother after her fall and that, on a later occasion, she returned and found that the door was closing “at a slower speed and it feels lighter.” These lay opinions of Hayes and her daughter, however, fall short of providing evidence of a defect in the door when Hayes fell and do not create any issue of fact which would preclude summary judgment. See Johnston v. Grand Union Co., 189 Ga. App. 270, 270-271 (1) (375 SE2d 249) (1988) (solitary fact that doors closed on a customer, for no ascertainable reason, did not constitute evidence from which it could be inferred that the store knew or should have known doors might close unexpectedly and no evidence of previous malfunction of doors was shown); Warner v. Hobby Lobby Stores, 321 Ga. App. 121, 124 (1) (741 SE2d 270) (2013) (plaintiff failed to present evidence that misaligned brackets constituted a dangerous condition or were more prone to break; summary judgment to defendant affirmed) (physical precedent only).

Where, as here, the question of whether the allegedly dangerous condition caused the plaintiff’s injuries

remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to grant summary judgment for the defendant. Likewise, it is a well settled principle of negligence law that the occurrence of an unfortunate event is not sufficient to authorize an inference of negligence.

Decided March 13, 2014

O. Wayne Ellerbee, for appellant.

Young, Thagard, Hoffman, Smith, Lawrence & Shenton, J. Holder Smith, Jr., for appellees.

(Citation, punctuation and footnote omitted.) Hardnett v. Silvey, 285 Ga. App. 424, 426 (646 SE2d 514) (2007).

Therefore, we find no error in the trial court’s grant of summary judgment for appellees.

Judgment affirmed.

Barnes, P. J., concurs. Ray, J., concurs fully as to Division 2 and concurs in judgment only as to Division 1.

       Two exterior doors opened into the foyer and then a second door was opened into the interior of the restaurant.

       The content of their testimony is set forth above.

       We note that, in addition to his sworn statement, the deposition of Justin Rozar is also included in the record.


author: McFadden, Judge.

text:
    A13A1741, A13A1742.
    DIAMOND v. DEPARTMENT OF TRANSPORTATION (two cases).
    (756 SE2d 277)
   McFadden, Judge.

Christy and Jay Diamond each filed a negligence action against several defendants, including the Department of Transportation (“DOT”). The DOT filed a motion to dismiss and for summary judgment in each case, arguing that certain claims were barred by the doctrine of sovereign immunity and that it owed no duty to the plaintiffs. The trial court dismissed the Diamonds’ claims of negligent inspection on sovereign immunity grounds and granted summary judgment to the DOT on the remaining claims, including the negligent failure to include adequate signs or other warning devices on the roadway and the negligent failure to construct the roadway so as to diminish the appearance of its being a functioning roadway, due to lack of duty.

We have combined the Diamonds’ appeals for purposes of this opinion. They argue that the DOT’s waiver of immunity on their negligent design claims also waived immunity on their negligent inspection claims. But we find that a waiver of immunity on one claim does not amount to a waiver of immunity on all claims. The Diamonds also argue that whether the DOT owed them a duty to notify them that the roadway was no longer operable is a fact question. But whether a party owes another a duty is a legal question. And the Diamonds have pointed to no statutory or case law authority demonstrating that the DOT owed them a duty in the circumstances of this case. We therefore affirm.

The Diamonds were injured when their car plunged into a ditch. At the time of the accident, a road construction project was underway in the area. As part of the project, a county road, Lakeshore Drive, was rerouted. Mr. Diamond drove the car on what he thought was Lakeshore Drive but was actually a grassy area where the road formerly had existed but then had been removed. The Diamonds continued along for 90 to 100 feet on the grass and dirt surface before plunging into the ditch.

1. Sovereign immunity.

The Diamonds argue that the trial court erred in dismissing their negligent inspection claims because the DOT’s waiver of immunity on the negligent design claims also waived immunity on the negligent inspection claims. We disagree.

The Georgia Constitution authorizes the legislature to waive the state’s sovereign immunity. Ga. Const. of 1983, Art. I, Sec. II, Par. IX (a) and (e). The Georgia Tort Claims Act, OCGA § 50-21-20 et seq., declares the public policy of this state to be “that the state shall only be liable in tort actions within the limitations” set out in the Act. OCGA § 50-21-21 (a). Consequently,

[ajlthough the [Act] waives the state’s sovereign immunity, OCGA § 50-21-23, that waiveris limited by certain specified exceptions and limitations, which are also set forth in the [Act]. Or, stated succinctly, the state is only liable in tort actions within the limitations of the [Act]. Further, any suit brought to which an exception applies is subject to dismissal pursuant to OCGA § 9-11-12 (b) (1) for lack of subject matter jurisdiction. The party seeking to benefit from the waiver of sovereign immunity has the burden of proof to establish waiver, and the trial court’s pre-trial ruling on factual issues necessary to decide the OCGA § 9-11-12 (b) (1) motion is reviewed on appeal under the any evidence rule.

Hagan v. Ga. Dept. of Transp., 321 Ga. App. 472, 474-475 (1) (739 SE2d 123) (2013) (citations and punctuation omitted).

Under the Act, the state waives its sovereign immunity

for the torts of state officers and employees while acting within the scope of their official duties or employment and shall be liable for such torts in the same manner as a private individual or entity would be liable under like circumstances; provided, however, that the state’s sovereign immunity is waived subject to all exceptions and limitations set forth in this article. The state shall have no liability for losses resulting from conduct on the part of state officers or employees which was not within the scope of their official duties or employment.

OCGA § 50-21-23 (a). An exception to the state’s waiver of sovereign immunity concerns losses resulting from inadequate or negligent inspections of nonstate property. OCGA § 50-21-24 (8) provides:

The state shall have no liability for losses resulting from... [inspection powers or functions, including failure to make an inspection or making an inadequate or negligent inspection of any property other than property owned by the state to determine whether the property complies with or violates any law, regulation, code, or ordinance or contains a hazard to health or safety[.]

In accordance with the exception set out in this provision, the trial court granted the DOT’s motion to dismiss the Diamonds’ claims to the extent they were based on a theory of negligent inspection of the county-owned area in which the accident occurred. The Diamonds argue that the trial court erred because the DOT’s waiver of sovereign immunity on their negligent design claim, see OCGA § 50-21-24 (10) (waiving immunity for losses resulting from construction design that is not prepared in substantial compliance with generally accepted engineering or design standards in effect at the time of preparation of the plan or design), means that it also waived immunity on the negligent inspection claim.

The DOT argues that simply because it may have waived immunity on the design claim does not mean that it waived immunity on the inspection claim. We agree. We so held in Reidling v. City of Gainesville, 280 Ga. App. 698, 701-703 (1) (634 SE2d 862) (2006). In that case, the trial court granted summary judgment to the DOT on the plaintiffs’ claims for both negligent design and negligent inspection. We reversed the grant of summary judgment on the negligent design claim but affirmed the grant of summary judgment on the negligent inspection claim. The plaintiffs had contended that the DOT’s design plans for a road project did not comply with generally accepted engineering and design standards and that the DOT either negligently approved a disposal site for the excess fill soil from the construction site or negligently inspected the site. We held that whether the DOT’s design plans complied with generally accepted engineering and design standards, thereby supporting a waiver of sovereign immunity under OCGA § 50-21-24 (10), was a fact question. Id. But we expressly affirmed the grant of summary judgment to the DOT on the claim that the DOT either negligently approved the disposal site for the excess fill soil or negligently inspected the site, agreeing with the trial court that these claims were barred by OCGA § 50-21-24 (8) and (9). Id. at 703 (1). In short, we held that the DOT waived sovereign immunity on some but not all claims. We did not hold, as the Diamonds would have it, that a waiver of immunity on some claims amounts to a waiver of immunity on all claims.

The Diamonds cite Ga. Dept. of Transp. v. Heller, 285 Ga. 262 (674 SE2d 914) (2009), in support of their argument that a waiver of immunity under one provision of the Tort Claims Act waives immunity for all claims asserted. But Heller does not so hold. The Diamonds’ argument reverses the argument at issue in Heller. There the DOT argued that, “as long as any one of the causes connected to a plaintiff’s loss is a cause for which the [s]tate would be immune from suit, the [s]tate would always be immune from any suit stemming from such loss.” Id. at 266 (1).

In Heller, the plaintiff’s, wife was killed when the taxicab in which she was riding “spun out of control on a rain-slick interstate highway and hit a tree.” Id. at 262. The plaintiff alleged that the day before, the tires of the taxicab had been inadequately inspected and that the inspector had failed to suspend the taxi’s operating permit. He also presented evidence that “the DOT may have failed to maintain a proper clear zone for trees located near the edge of the highway, in possible violation of generally accepted engineering standards for the highway and standards set by the DOT itself.” Id. at 265 (1). The DOT argued that it could not be subjected to liability because the plaintiff’s loss resulted, at least in part, from either inadequate inspection or improper permitting of the taxicab in which his wife was killed. Under OCGA § 50-21-24 (8) and (9), the state is not liable for losses resulting from “[inspection powers or functions” or from “[licensing powers or functions.” Our Supreme Court observed, however, that “these exceptions were not the only provisions of the Tort Claims Act that were at issue in this case.” Id. at 264 (1). The state could be liable under OCGA § 50-21-24 (10), the design standards exception, which provides:

The state shall have no liability for losses resulting from . .. [t]he plan or design for construction of or improvement to highways, roads, streets, bridges, or other public works where such plan or design is prepared in substantial compliance with generally accepted engineering or design standards in effect at the time of preparation of the plan or design[.]

The court concluded that

[b]ecause [the] second event [, the allegedly improper highway design,] leading to the loss [did] not fall within any exception to the [s]tate’s waiver of sovereign immunity, . . . the [s]tate ha[d] waived its sovereign immunity in connection with the car accident that led to [the plaintiff’s wife’s] death.

Id. at 265 (1). The court did not expressly address whether the plaintiff could pursue his claims for negligent inspection and negligent permitting, notwithstanding the statutory prohibition to such liability. It simply rejected the DOT’s argument that “as long as any one of the causes connected to a plaintiff’s loss is a cause for which the [s]tate would be immune from suit, the [s]tate would always be immune from any suit stemming from such loss.” Id. at 266 (1) (emphasis supplied).

As the trial court here observed, “[t]here is nothing in OCGA § 50-21-24[, the Tort Claims Act,] that states that the waiver of immunity under one subsection works to waive immunity under all other subsections in connection with any given case.” Consequently, the DOT’s waiver of immunity under the design exception did not waive immunity on the negligent inspection claims.

2. Duty of care.

The Diamonds argue that the trial court erred in granting summary judgment on the ground that the DOT owed them no duty to install any curb, gutter, or warning signs or to remove any pavement marking in the area in which the accident occurred, because there was a fact question about whether or not the accident occurred on a commercial driveway. The trial court, however, did not grant summary judgment on the ground that the accident occurred on a commercial driveway. Rather, it ruled that regardless of whether the accident occurred on a commercial driveway, the evidence was undisputed that the accident did not occur on a part of the state highway system upon which DOT owed a duty to motorists. Because the Diamonds failed to point to legal authority establishing a duty under these circumstances, we affirm the grant of summary judgment.

“In order to have a viable negligence action, a plaintiff must satisfy the elements of the tort, namely, the existence of a duty on the part of the defendant, a breach of that duty, causation of the alleged injury, and damages resulting from the alleged breach of the duty.” Rasnick v. Krishna Hospitality, 289 Ga. 565, 566 (713 SE2d 835) (2011) (citation omitted). “The threshold issue in any cause of action for negligence is whether, and to what extent, the defendant owes the plaintiff a duty of care. Whether a duty exists upon which liability can be based is a question of law.” City of Rome v. Jordan, 263 Ga. 26, 27 (1) (426 SE2d 861) (1993). “The duty can arise either from a valid legislative enactment, that is, by statute, or be imposed by a common law principle recognized in the case[ ]law.” Rasnick, 289 Ga. at 566-567 (citation omitted).

The Diamonds argue that the DOT had a duty to use generally accepted engineering and design standards and that it breached this duty when it closed the road in that it failed to construct a curb and gutter on the roadway, it failed to inspect the project to ensure that a curb and gutter had been installed as specified in the plans, it failed to place adequate signs or other warning devices on the roadway, and it failed to remove the centerline striping on the roadway. The DOT counters that it had no duty of care because the roadway was a county road.

The Georgia Code of Public Transportation, OCGA § 32-1-1 et seq., establishes a system for delegating administrative and operational responsibilities for the public roads among the state, counties, and municipalities. OCGA § 32-1-2. Statutory and case law is clear that counties — not the DOT — “have control of and responsibility for all construction, maintenance, or other work related to the county road system.” Scarborough v. Hunter, 293 Ga. 431, 433 (2) (a) (746 SE2d 119) (2013) (citation and punctuation omitted). Indeed, OCGA § 32-4-41 (1) expressly delegates that responsibility to counties, providing that “[a] county shall plan, designate, improve, manage, control, construct, and maintain an adequate county road system and shall have control of and responsibility for all construction, maintenance, or other work related to the county road system.” And as we have explained, counties may not shift their responsibility to the DOT for county roads that will not become part of the state highway system

under OCGA § 32-2-61 (e) even if DOT enters into a contract with a state agency or political subdivision for construction of a public road not then, nor to become upon completion of the contract, part of the state highway system ... that shall not relieve the agency or the political subdivision of the responsibility for maintaining such public road as such duty is imposed by this Code section and by Code Sections 32-4-41 and 32-4-91. In addition, OCGA § 32-6-50 (c) (1) provides in relevant part that counties and municipalities must “place and maintain upon the public roads of their respective public road systems such traffic-control devices as are necessary to regulate, warn, or guide traffic.”

Ogles v. E. A. Mann & Co., 277 Ga. App. 22, 27 (2) (c) (625 SE2d 425) (2005) (citations and punctuation omitted). Cf. Barrett v. Ga. Dept. of Transp., 304 Ga. App. 667, 670 (1) (697 SE2d 217) (2010) (because a DOT-owned road was not part of the state highway system, DOT had no duty to maintain it).

In order to show the existence of a duty, the Diamonds presented the affidavit of their expert, Herman Hill. Hill testified that the DOT had the duty to use generally accepted engineering principles and standards when it closed a portion of Lakeshore Drive. Specifically, Hill testified that the DOT “should have utilized signage, including but not limited to, ROAD CLOSED signs or LEFT TURN arrows; or utilized TYPE III barricades to notify motorists that Old Lakeshore Drive was no longer operable” and that it should have “remove [d] the centerline striping on Old Lakeshore Drive as required by generally accepted engineering principles for obliterating old roadways. . . .” Further, Hill testified that the DOT should have “ensure [d] that the curb and gutter as shown on the approved construction plans [were] installed at the end of Old Lakeshore Dr.”

But duty arises either from statute or from a common law principle recognized in the case law. Rasnick, 289 Ga. at 566-567. The Diamonds’ “efforts to establish a duty through expert testimony fail[ ] because what duty a defendant owes is a question of legal policy to be decided as an issue of law.” Lawson v. Entech Enterprises, 294 Ga. App. 305, 310 (1) (669 SE2d 211) (2008) (citation and punctuation omitted). See also Adams v. APAC-GA, Inc., 236 Ga. App. 215, 217 (511 SE2d 581) (1999) (plaintiff could not establish the existence of a duty through expert testimony). Because the existence of a legal duty is a question of law, an expert “affidavit does not, and cannot, create a legal duty where none existed before.” McGarrah v. Posig, 280 Ga. App. 808, 811 (635 SE2d 219) (2006).

In their briefs to the trial court and to this court, the Diamonds point to no statute or case law that establishes a duty owed by the DOT in the circumstances of this case. They refer to OCGA § 32-2-2 (a) (1), but only for the general proposition that the DOT is obligated to plan, construct and maintain public highways. They cite Dept. of Transp. v. Brown, 261 Ga. 6 (471 SE2d 849) (1996), but that case did not concern the question of the existence of a duty in circumstances similar to those in this case. Rather, that case involved the DOT’s attempt to invoke the public duty doctrine, and our Supreme Court’s limitation of that doctrine “to the ... provision of police services.” Id. at 8-9 (3).

The Diamonds simply argue that whether the DOT owed them a duty is a question of fact. But whether such a duty exists is a question of law, and the Diamonds have pointed to no statute or case law establishing a basis for imposing a duty on the DOT to erect signs or to take other steps to inform drivers of the closure of a county-owned road.

Decided March 13, 2014

Charles H. McAleer, R. Scott Christopher, for appellants.

Samuel S. Olens, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Robert L. Bunner, Assistant Attorney General, for appellee.

Judgments affirmed.

Doyle, P. J., and Boggs, J., concur.


author: DOYLE, Presiding Judge.

text:
    A13A1752, A13A1753.
    SPH GLYNN, LLC v. GLYNN COUNTY BOARD OF TAX ASSESSORS; and vice versa.
    (756 SE2d 282)
   DOYLE, Presiding Judge.

In this property tax appeal, in Case No. A13A1752, SPH Glynn, LLC (“SPH”), appeals from an order of the Superior Court of Glynn County denying an award of attorney fees under OCGA § 48-5-311 (g) (4) (B) (ii). In Case No. A13A1753, the Glynn County Board of Tax Assessors (“the Board”) appeals from the same order granting partial summary judgment to SPH on the applicability of a moratorium on property tax increases under former OCGA § 48-5B-1. The two appeals arise from the same order on the same facts, so we have consolidated them for review. For the reasons that follow, we reverse and remand in Case No. A13A1752, and we affirm in Case No. A13A1753.

The record is not in dispute, and it shows that in September 2008, SPH purchased a 6,881-acre parcel of timberland (the “subject property”) from Plum Creek Timberlands LP. That parcel was carved out of a much larger parcel, the remainder of which was retained by Plum Creek. In 2008, the Board gave the subject property a fair market value of the equivalent of $379.60 per acre for a total fair market value of $2,612,027.6o. At the time of the 2008 sale, the subject property was not given a separate parcel number, but as of January 1,2009, the Board assigned the subject property a new parcel number (02-02828) and gave the property a fair market value of $8,257,200 ($1,200 per acre) as of January 1, 2009, as well as for the 2010 and 2011 tax years. SPH did not appeal the 2009 valuation, but it did contest the 2010 and 2011 valuations, which were ultimately appealed to the superior court and consolidated, and which are the subject of this appeal.

Meanwhile, in May 2009, the governor signed into law HB 233, codified at OCGA § 48-5B-1, which provided for a moratorium on increases in the assessed value of property for the taxable years beginning on or after January 1, 2009. Based on this, SPH moved for summary judgment in the superior court arguing that the fair market value of the subject property should be capped at the 2008 level, i.e., $2,612,027. In the same order, the superior court denied SPH’s motion for attorney fees under OCGA § 48-5-311 (g) (4) (B) (ii). In Case No. A13A1752, SPH appeals the denial of attorney fees; in Case No. A13A1753, the Board appeals the capped valuation. Because the award of fees depends on the outcome of the merits, we address Case No. A13A1753 first.

Case No. A13A1753

1. The Board argues that the trial court erred by ruling that the moratorium in OCGA § 48-5B-1 applied to the subject property because (a) SPH waived that argument, and (b) the subject property did not exist as a separate parcel until January 1, 2009, when the moratorium went into effect.

(a) Waiver. The Board argues that the superior court erred by ruling that the moratorium in OCGA § 48-5B-1 applied to the subject property because SPH failed to raise the moratorium issue before the Board of Examiners or in the arbitration during the administrative appeal process. SPH first raised the moratorium issue in an amended pre-trial order in the superior court and later in its motion for summary judgment. Therefore, the Board argues that the issue was not preserved for review by the superior court. We disagree.

As noted by the superior court, tax appeals to the superior court “shall constitute a de novo action.” In such an action,

the whole record is brought up from the court below, and all competent evidence shall be admissible on the trial thereof, whether adduced on a former trial or not; either party is entitled to be heard on the whole merits of the case. Such a case must be tried anew as if no trial had been had. It is not the province of the superior court on such an appeal to review and affirm or review the rulings of the trial tribunal, but to try the issue anew and pass original judgments on the questions involved as if there had been no previous trial.

We are mindful that cases have held that the superior court proceeding is a de novo review of

only those decisions of the Board of Equalization on questions presented to it or incident thereto .... [Thus,] the appeal... is a de novo investigation into the merits of the contentions of the taxpayers [in the lower administrative proceeding], with the right to introduce evidence and be heard on the questions incident thereto.

For this reason, our courts have held that if a taxpayer challenges only the valuation, then she cannot introduce a new ground, e.g., lack of uniformity, in the superior court, because that issue was not challenged in the lower administrative appeal.

But in this case, the Board’s value determination was consistently challenged throughout, and the applicability of the moratorium “unquestionably impacts the assessed values of the property at issue.” The Board’s notice of assessment sent to SPH explicitly referenced the moratorium and its impact on the 2009, 2010, and 2011 tax years, and it took the position that the moratorium value was greater than the 2008 value for the subject property. Likewise, the valuations arrived at during arbitration and by the Board of Equalization also exceeded the 2008 value. Therefore, the Board, the arbitrator, and the Board of Equalization had all made determinations as to value, and the applicability of the moratorium, as part of the valuation issue, was properly reached by the trial court in the de novo appeal of the value determination.

(b) January 1, 2009 creation of a new parcel number. OCGA § 48-5B-1 provided as follows:

(a) The General Assembly finds that the citizens and property owners of this state are experiencing a crisis in the reduction of value of tangible property of unprecedented magnitude and that it is in the best interests of this state that immediate action be taken to secure the economic stability of all Georgians. This crisis is having a devastating effect on the economy of the State of Georgia, and this Code section is enacted in order to provide for more effective regulation and management of the finance and fiscal administration of the state ....
(b) In recognition of the emergency situation and fiscal conditions set forth in subsection (a) of this Code section..., for taxable years beginning on or after January 1, 2009, and continuing only until the Sunday immediately preceding the second Monday in January, 2011, a moratorium is declared on all increases in the assessed value of all classes of all subj ects of property which are subj ect to ad valorem taxation property except as specifically permitted under this Code section. The rate of increase of the assessed value of property for county, county school district, municipal, or independent school district ad valorem tax purposes shall not exceed from one taxable year to the succeeding taxable year 0 percent except as otherwise permitted in this Code section.

The effect of this language was to cap the assessed value of real property, subject to certain exceptions, at the 2008 level.

The Board argues that it did not violate the moratorium essentially because the subj ect property had never been taxed as a separate property prior to 2009, so there was no 2008 value to freeze. But this misconstrues the statute, which by its plain language, applies to “all increases in the assessed value of all classes of all subjects of property.” It was not written in terms of “parcels,” but in terms of “property,” and with broad language including all property subject to ad valorem taxation. It is undisputed that the subject property existed in 2008 and was taxed in that year at a certain value. Thus, the fact that it was assigned a new parcel number does not negate its valuation history for purposes of the broadly-worded moratorium. In the statute, passed in 2009, the General Assembly made clear its intent to address the economic conditions at that time and the negative effect on property values. Allowing the Board to ignore the moratorium by assigning a new parcel number would frustrate this clearly stated purpose.

Further, the General Assembly apparently did contemplate that property values might change due to subdivision and redevelopment, and it accounted for such changes by carving out an exception to the moratorium when property is subdivided or combined with other property and the use of the property changes. It is undisputed that the uses of the subject property (timberland, recreational hunting, and wildlife management) did not change during the relevant period, so this exception does not apply. Therefore, the superior court correctly ruled that the moratorium’s cap applied to the Board’s assessed values for 2010 and 2011.

Case No. A13A1752

2. In this case, SPH appeals the denial of its request for attorney fees under OCGA § 48-5-311 (g) (4) (B) (ii). That Code section provides as follows:

If the final determination of value on appeal is 80 percent or less of the valuation set by the county board of equalization or hearing officer as to commercial property, or 85 percent or less of the valuation set by the county board of tax assessors as to other property, the taxpayer, in addition to the interest provided for by this paragraph, shall recover costs of litigation and reasonable attorney’s fees incurred in the action.

Decided March 13, 2014

Roberts Tate, James L. Roberts IV, Jason M. Tate, for appellant.

Brown, Readdick, Bumgartner, Carter, Strickland, & Watkins, G. Todd Carter, Aaron W. Mumford, for appellee.

Here, the trial court remanded the case to the Board for reassessment under the moratorium, so it concluded that a “final determination of value” had not been made and attorney fees were not warranted. But based on our (and the trial court’s) ruling that the moratorium applied, the proper valuation was capped at the BOA’s 2008 value, i.e., $2,612,027.60. When compared to the Board’s valuation ($8,257,200), the capped value meets the statutory threshold mandating that the taxpayer “shall recover costs of litigation and reasonable attorney’s fees incurred in the action.” SPH conceded that the 2008 value was not excessive, and it presented no evidence showing it to be an excessive valuation. Thus, absent this argument or evidence, the final determination of value in this case was $2,612,027.60, and this result required an attorney fee award under OCGA § 48-5-311 (g) (4) (B) (ii).

Accordingly, we remand the case to the superior court for determination of the attorney fee award.

Judgment affirmed in Case No. A13A1753. Judgment reversed and case remanded in Case No. A13A17S2.

McFadden and Boggs, JJ., concur.

       These figures are undisputed and based on the Board’s 2008 valuation of the land containing the parcel that became the subject property.

       SPH challenged the 2010 valuation which was sent to nonbinding arbitration resulting in a valuation of $4,564,680, and the Board appealed that valuation. SPH subsequently appealed the 2011 valuation, which was sent to the Board of Equalization, which valued the parcel at $6,258,591, and SPH appealed that valuation.

       In briefing on appeal andbelow, SPH concedes that it did not challenge the 2009 valuation “due to an internal oversight.”

       OCGA § 48-5-311 (g) (3).

       (Punctuation omitted.) Fulton County Bd. of Tax Assessors v. Nat. Biscuit Co., 296 Ga. App. 884 (676 SE2d 41) (2009), quoting Weeks v. Gwinnett County Bd. of Tax Equalization, 139 Ga. App. 37, 37-38 (1) (227 SE2d 865) (1976), overruled on other grounds by Gilmer County Bd. of Tax Assessors v. Spence, 309 Ga. App. 482, 483 (1) (711 SE2d 51) (2011).

       (Punctuation omitted.) Camp v. Boggs, 240 Ga. 127, 128 (1) (239 SE2d 530) (1977).

       See id.

        We, the Taxpayers v. Bd. of Tax Assessors, 292 Ga. 31, 33-34 (1) (734 SE2d 373) (2012). We note that this case also stated that “the applicability of OCGA § 48-5B-1 could, and should, have been raised in an appeal under OCGA § 48-5-311.” Id. at 34 (1). But this statement was in the context of determining the availability of a separate mandamus action on valuation grounds absent an administrative appeal under OCGA § 48-5-311. The Court held that the taxpayers were obligated to pursue the administrative remedy rather than seek equitable relief in the superior court. See id. at 34 (1). Because of that different context, we do not view that case as controlling the question before us.

       By its own terms, the Code section had a sunset date of January 10, 2011, and it was effectively repealed as of that date. See OCGA § 48-5B-1 (k).

       See 1 Pindar’s Ga. Real Estate Law & Procedure § 4:22, n. 1 (7th ed. 2013).

       OCGA § 48-5B-1 (b).

       The 2008 value was equivalent to $379.60 per acre for a total fair market value of $2,612,027, and an assessed value of $1,044,810.

       See OCGA § 48-5B-1 (g) (“If property is rezoned, subdivided, or combined with other property at the request of the owner of such property and the use of such property is changed to conform with the use authorized or caused by such rezoning, subdivision, or combination with other property, such property shall be valued for ad valorem tax purposes at its fair market value.”). See also subsection (e): “If property or interests therein are sold or transferred, the assessed value of such property for ad valorem tax purposes shall not exceed the most recent value established under [the moratorium).”

       The trial court ruled that the “final determination of value” had not been made, since, in theory, the BOA might value the property lower than the capped level of $2,612,027.60. But this ignores the fact that the BOA had already valued the property at nearly four times this value for the period in question.

       See Fulton County Bd. of Tax Assessors v. Lamb, 298 Ga. App. 618, 620 (680 SE2d 656) (2009) (approving of trial court’s analysis that it “is the public policy of this State... that if [the taxpayers have] to go to the mat and... extract that concession out of the County... then they... [are] entitled to recover attorney’s fees.”). See also Fulton County Bd. of Tax Assessors v. Calliope Properties, 315 Ga. App. 405, 408 (3) (727 SE2d 198) (2012) (Board cannot negate attorney fee mandate by stipulating to a valuation to avoid a “final determination”).