text:
    A15A1334.
    CRUMPTON v. VICK’S MOBILE HOMES, LLC et al.
    (779 SE2d 136)
   Boggs, Judge.

This appeal involves the interpretation of OCGA § 14-11-601.1 (b) (4) (D), a portion of the Code section governing the cessation of membership in a limited liability company. The trial court granted partial summary judgment in favor of appellees, holding that appellant Sharon Crumpton ceased to be a member of two limited liability companies by filing a petition seeking dissolution of those companies. While the statute is not a model of clarity, construing the relevant language in its context and in light of our decision in Sayers v. Artistic Kitchen Design, LLC, 280 Ga. App. 223 (633 SE2d 619) (2006), we conclude that the trial court misinterpreted the meaning of this provision. We therefore reverse.

Sharon A. Crumpton (“Sharon”) and Raymond C. Crumpton (“Raymond”) are brother and sister who inherited a mobile home park from their father. Two limited liability companies, Vick’s Mobile Homes, LLC and Crumpton Holdings, LLC, were formed in connection with the ownership and management of the park. The siblings have an acrimonious relationship. Sharon has accused Raymond of mismanaging the finances of the mobile home park and preventing her from accessing the park bank account. Raymond for his part has alleged that Sharon is interfering with the park manager, who was appointed by the trial court pending resolution of the dispute and was given exclusive authority to manage the park with no interference from the siblings. Raymond submitted the affidavits of tenants who averred that Sharon harassed, stalked, and threatened them, drove and parked erratically while wearing indecent attire, fed numerous stray cats and raccoons, and “danc[ed] backward in a Michael Jackson moon-walking manner along the streets of Vick’s, wearing a belly dancer costume, in an inappropriate and bizarre manner.”

Sharon initiated this action by filing a “Petition for Equitable Relief, Accounting, and Dissolution” against the LLCs and Raymond. She alleged that Raymond has failed “to properly protect and manage the assets and business interests of the LLCs,” causing “dangerous conditions for the residents” and “possible financial loss.” She further alleged that she “faces immediate and irreparable harm and loss unless the Court grants her the sole authority to manage and protect the assets of the LLC[s].” Her prayer for relief asked in part “that Vick’s Mobile Homes, LLC and Crumpton Holdings, LLC be dissolved, all of their assets be distributed equally to its members, and this Court declare the rights and obligations of the parties to this proceeding.”

Raymond moved for judgment on the pleadings or in the alternative for partial summary judgment on the basis of standing, arguing that Sharon’s petition for dissolution of the companies disassociated Sharon as a member under OCGA § 14-11-601.1 (b) (4) (D).The trial court granted partial summary judgment, citing Sayers, supra, 280 Ga. App. at 224-225, for the proposition that subsection (b) (4) (D) established “a default rule that a member who seeks reorganization ‘for the member’ ceases to be a member of the company.” It then concluded: “Here, plaintiff seeks dissolution of the LLCs. Clearly, she is seeking relief as a member for herself and not for defendant. As such, OCGA § 14-11-601.1 (b) (4) (D) is applicable and plaintiff ceased to be a member when she filed for dissolution.” This appeal followed. OCGA § 14-11-601.1 (b) provides in pertinent part:

A person ceases to be a member of a limited liability company upon the occurrence of any of the following events:
(4) Subject to contrary provision in the articles of organization or a written operating agreement, or written consent of all other members at the time, the member (A) makes an assignment for the benefit of creditors; (B) files a voluntary petition in bankruptcy; (C) is adjudicated a bankrupt or insolvent; (D) files a petition or answer seeking for the member any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief under any statute, law, or regulation-, (E) files an answer or other pleading admitting or failing to contest the material allegations of a petition filed against the member in any proceeding of this nature; or (F) seeks, consents to, or acquiesces in the appointment of a trustee, receiver, or liquidator of the member or of all or any substantial part of the member’s properties [.]

(Emphasis supplied.) The trial court here concluded that the phrase “for the member” in subsection (b) (4) (D) is intended to apply whenever a member has filed a petition or answer in an action against an LLC, seeking, in a general sense, relief or some other benefit for the member rather than for the LLC itself. But the relevant rules of statutory construction demand the conclusion that this subsection applies when the member has filed a separate action seeking its own “reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief.” This conclusion is consistent with our holding in Sayers, supra.

As we observed there:

In construing a legislative act, a court must first look to the literal meaning of the act. If the language is plain and does not lead to any absurd or impracticable consequences, the court simply construes it according to its terms and conducts no further inquiry. Further,... statutory construction must square with common sense and sound reasoning.
Moreover, language in one part of the statute must be construed in light of the legislature’s intent as found in the whole statute.

(Citations, punctuation and footnotes omitted.) 280 Ga. App. at 224 (1). Therefore, as in Sayers, we examine OCGA § 14-11-601.1 (b) (4) (D) in the context of the Code section as a whole, and subsection (b) in particular.

In Sayers, one group of individual members of an LLC sought to reorganize the LLC and remove another set of individual members from the company. Id. at 223. We rejected the contention that filing the petition caused the movants to cease to be members of the LLC under OCGA § 14-11-601.1 (b) (4) (D), observing:

That subsection establishes a default rule that a member who seeks reorganization “for the member” ceases to be a member of the company. The subsection does not say that a member who seeks reorganization for a different member ceases, himself, to be a member of the company. The [appel-lees] sought the disassociation of the [appellants], not of themselves. Thus, subsection 14-11-601.1 (b) (4) (D) does not apply here.

(Emphasis in original.) Id. at 224-225 (1).

In the case before us, we must examine subsection (b) as a whole, and the provisions of subsection (b) (4) in particular, to determine the meaning of “for the member.” Looking at subsection (b) as a whole, it recites a list of actions that a member of a limited liability company may take — or undergo — that result in a change of that member’s own status so as to render the member unable to continue as a member of the company. These actions include some that the member may take on its own behalf, and others that are taken against it, as well as events that occur to affect the member. They include some events that only occur to an individual, such as dying or being judged incompetent to manage his or her affairs. OCGA § 14-11-601.1 (b) (6). They also include many things that either an individual or an artificial person may do, for example filingbankruptcy, OCGA § 14-11-601.1 (b) (4) (B); assigning the member’s entire interest in the company, OCGA § 14-11-601.1 (b) (1); or as provided in the company’s articles of organization or operating agreement, OCGA § 14-11-601.1 (b) (2) and (c). Finally, subsection (b) (4) (D), at issue here, lists actions more proper to an artificial person, such as “reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief.” So a consistent reading of subsection (b) as a whole requires that “for the member” in subsection (b) (4) (D) refers to an action by or against the member affecting that member.

This reading is consistent with the language of OCGA § 14-11-601.1 (b) (4) (E), which provides for cessation of membership when a member files a pleading that admits or fails to contest such allegations, and that of OCGA § 14-11-601.1 (b) (5), which similarly provides for cessation of membership when “any proceeding against the member seeking reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief” has not been dismissed, vacated or stayed within a certain time. (Emphasis supplied.) And as we observed in Sayers, this reading is also consistent with OCGA § 14-11-601.1 (b) (5), providing for actions against a member:

Under [appellants’] interpretation, one member could never seek the disassociation of another, because the very act of doing so would disassociate the first member. That construction makes no sense, and it fails to harmonize with subsection 14-11-601.1 (b) (5), which plainly contemplates that one member may initiate a proceeding to disassociate another.

Decided November 17, 2015

Reconsideration denied December 7, 2015

Ray C. Smith, Billy E. Tomlinson, for appellant.

William G. Maston, for appellees.

Id. at 225 (1).

This reading is also consistent with the decisions of the North Carolina Court of Appeals in Crouse v. Mineo, 189 N.C. App. 232, 241-242 (I) (B) (658 SE2d 33) (2008) (citing Sayers; similar statute “provides that a business entity member who seeks dissolution for itself ceases to be a member of an LLC. The statute does not cause the disassociation of a member who files a petition for dissolution of the LLC of which he is a member” (emphasis in original)), and of the Ohio Court of Appeals in Darwin Limes, LLC v. Limes, No. WD-06-049, 2007 Ohio 2261, 2007 Ohio App. LEXIS 2105 (Ohio Ct. App., May 11, 2007) (citing Sayers; similar provision not applicable to individual member who “did not seek dissolution for himself. He filed an alternative complaint for dissolution for the LLC.” (Emphasis in original.))

The trial court therefore erred in determining that Sharon’s petition to dissolve the LLCs caused her to cease to be a member of those companies, and its grant of partial summary judgment to that effect must he reversed.

Judgment reversed.

Doyle, C. J., and Phipps, P. J., concur.

       Raymond filed a motion for contempt making these assertions, supported by affidavits from tenants of the park. The trial court continued the motion while instructing Sharon to turn over her keys to the drop box, make a list of delinquent tenants, deliver certain rent checks, cooperate with the manager, and avoid contact with tenants. It also assessed attorney fees against Sharon.

       We note that the Georgia Limited Liability Company Code defines a “member” as “a person who has been admitted to a limited liability company as a member as provided in Code Section 14-11-505 and who has not ceased to he a member as provided in Code Section 14-11-601 or 14-11-601.1.” OCGA § 14-11-101 (16). It further defines a “person” as “an individual, business entity, business trust, estate, trust, association, joint venture, government, governmental subdivision or agency, or any other legal or commercial entity.” OCGA § 14-11-101 (19).


source: Caselaw Access Project

author: Branch, Judge.

license: Public Domain

text:
    A15A1454.
    REDMON et al. v. DANIEL et al.
    (779 SE2d 778)
   Branch, Judge.

Danny Jermont Daniel died as a result of being struck by one or more motor vehicles while walking along an exit ramp on Georgia Highway 316 in Gwinnett County. Connie June Daniel, as Danny’s surviving spouse and administrator of his estate, sued Kelly Anne Gitaitis and Bobby Redmon, the drivers of the two vehicles involved in the incident. She also sued Redmon’s employer, Republic Services of Georgia, L.R, d/b/a United Waste Services (“Republic”). Daniel asserted a claim for wrongful death, alleging that the negligence of Gitaitis and Redmon proximately caused her husband’s death; she further alleged that Republic, as Redmon’s employer, was vicariously liable for his negligence. A jury found in favor of Daniel and apportioned 42 percent of the liability for Danny’s death to Redmon and his employer. Redmon and Republic now appeal from the trial court’s order of judgment as well as the denial of their motion for judgment notwithstanding the verdict, arguing that there was insufficient evidence to prove that any alleged negligence of Redmon proximately caused Danny’s death. For reasons explained more fully below, we agree and therefore reverse the judgment of the trial court.

“On appeal from the denial of a motion for a directed verdict or for j.n.o.v., we construe the evidence in the light most favorable to the party opposing the motion, and the standard of review is whether there is any evidence to support the jury’s verdict.” Park v. Nichols, 307 Ga. App. 841, 845 (2) (706 SE2d 698) (2011) (citation and punctuation omitted). So viewed, the evidence shows that at approximately 5:00 a.m. on the morning of September 16, 2009, Danny was walking in or next to the roadway of the exit ramp from Georgia Highway 316 to Georgia Highway 120. At the time, Danny was dressed in dark green shorts and a black tee shirt. As Danny was traveling the exit ramp on foot, Gitaitis, driving a Chevrolet Tahoe, exited Highway 316 and proceeded along the ramp toward Highway 120. Gitaitis was followed by a Mack garbage truck owned by Republic and driven by Redmon. The portion of Highway 316 from which the exit ramp runs is a controlled access highway on which pedestrians are not allowed. There are no street lights present on the tree-lined exit ramp, and several witnesses, including the officers who investigated the accident, testified that there is no ambient lighting on the ramp from any nearby street signs. The evidence also showed that the exit ramp was particularly dark on the morning in question, as it was cloudy with either a mist or light rain falling.

The speed limit on Highway 316 is 55 miles per hour, and Gitaitis and Redmon were moving along the exit ramp at between 40 and 50 miles per hour, with the garbage truck traveling approximately 200 feet behind the Tahoe. According to both Gitaitis and Redmon, Gitaitis was traveling along the middle of the exit ramp when she struck Danny, who Gitaitis said was in the middle of the road. Gitaitis testified that although she had her high-beam headlights on and was looking straight ahead, she did not see Danny until her car hit him.

Based on the evidence, both the police and the medical examiner believed that the initial impact was between the right, front side of Gitaitis’s vehicle and the left side of Danny’s lower body. Following this impact, Danny’s body was thrown onto the hood of Gitaitis’s Tahoe, with his head shattering her windshield and creating a large hole on the passenger side of the glass. Danny’s body then came off of the Tahoe and was airborne for a short time before landing on the pavement in the middle of the roadway. Although Redmon did not see the initial impact, he did see something that he believed was a deer come off Gitaitis’s vehicle and land in the roadway. Because the body was coming off the right side of the Tahoe, Redmon took the only evasive action available to him, which was to brake and swerve to the left. When Redmon felt the empty garbage truck begin to tip, he corrected the steering wheel back to the right. At some point, the rear tires of the garbage truck ran over Danny’s head.

With respect to the cause of her husband’s death, Daniel presented the testimony of Dr. Carol Terry, the Chief Medical Examiner for Gwinnett County. Based on the evidence available to her, Dr. Terry testified that there were three potential causes of Danny’s death: the blow to Danny’s head when he struck Gitaitis’s windshield; the blow to Danny’s head when he landed on the pavement; and the rupturing of Danny’s skull. Dr. Terry further testified that she could not say that one cause of death was more likely than any other and that she had no way to tell if Danny was alive when the garbage truck hit him. She explained that head injuries caused by hitting the windshield and striking the pavement would have been blunt force trauma injuries, both of which were potentially fatal. Dr. Terry testified that although in some cases a blow to the head can cause instantaneous death, in most such cases death is not instantaneous, and it takes longer than two to three seconds for a person suffering a blunt-force head trauma to die. Thus, Dr. Terry concluded that while it was a medical possibility that Danny was alive at the time the truck struck his head, she could not say that it was a reasonable medical probability.

Daniel’s theory of negligence as to Redmon was that he was following too closely behind Gitaitis’s vehicle and was therefore unable to stop in time to avoid hitting her husband. In support of this theory, Daniel presented evidence that as a commercial truck driver, Redmon was required to maintain a minimum four-second following distance between his truck and any other vehicle. Given Redmon’s statement to police that he was approximately 200 feet behind Gitaitis at the time of the accident and that he was traveling at between 45 and 50 miles per hour, however, his following distance behind Gitaitis was only between 2.7 and 3 seconds. And had Redmon had an additional 1 to 1.3 seconds of reaction time, Daniel argued, he could have avoided hitting her husband.

To counter this theory of liability, the defense presented evidence in the form of expert testimony and testimony from members of the accident investigation team that investigated the events surrounding Danny’s death. Those witnesses stated that it appeared from the location of the body and other debris that Gitaitis’s car struck Danny while he was in the middle of the roadway, rather than on the shoulder. Additionally, as explained more fully below, these witnesses uniformly testified that, given the circumstances, an increased following distance would not have allowed Redmon to avoid hitting Danny. Thus, each of the witnesses testified that they did not view Redmon’s speed or his following distance as a factor in Danny’s death.

At both the close of the plaintiff’s case and at the close of all evidence, Redmon and Republic moved for a directed verdict, arguing that Daniel had failed to prove the causation element of her negligence claim against them. The trial court denied each of these motions and allowed the case to go to the jury. The jury returned a $1.6 million verdict in favor of Daniel and apportioned liability as follows: 23 percent to Gitaitis, 35 percent to Danny, and 42 percent to Redmon and Republic. Redmon and Republic then filed a motion for j.n.o.v. After a hearing, the trial court denied that motion. Redmon and Republic now appeal from both the order denying their motion for j.n.o.v. and the order of judgment.

To prevail on her negligence claim against Redmon and Republic, Daniel was required to prove by a preponderance of the evidence that Redmon had a legal duty to conform to a certain standard of conduct so as to protect others against unreasonable risks of harm; that Redmon breached this standard; that Daniel suffered a loss or damages as a result of Redmon’s alleged breach of his legal duty; and that there was a legally attributable causal connection between Redmon’s conduct and the resulting injury. Anneewakee, Inc. v. Hall, 196 Ga. App. 365, 367 (1) (396 SE2d 9) (1990). A “preponderance of the evidence,” in turn, simply requires that the evidence show a rational factfinder that a particular fact is more likely than not. See Zwiren v. Thompson, 276 Ga. 498, 499 (578 SE2d 862) (2003) (the preponderance of the evidence “standard requires only that the finder of fact be inclined by the evidence toward one side or the other”) (citation and punctuation omitted). “[A]nd to prove causation, the plaintiff must show that the wrongdoing is both a cause in fact and a proximate cause of the injuries [alleged].” Strength v. Lovett, 311 Ga. App. 35,40 (2) (a) (714 SE2d 723) (2011). Thus, to prove the causation element of her negligence claim Daniel was required to introduce evidence which provided the jury with “a reasonable basis for the conclusion that it is more likely than not” that Redmon’s allegedly negligent conduct “was [both] a cause in fact” and a proximate cause of her husband’s death. Wolfe v. Carter, 314 Ga. App. 854, 856-857 (1) (726 SE2d 122) (2012) (citation and punctuation omitted). If the evidence presented only a “mere possibility” that Redmon’s conduct was either a cause in fact or a proximate cause of Danny’s death such that the question of causation remained “one of pure speculation or conjecture,” or if the evidence showed that “the probabilities [were] at best evenly balanced,” then Redmon and Republic were entitled to judgment in their favor as a matter of law. Id. at 857 (1) (citation and punctuation omitted).

1. Bearing the foregoing principles in mind, we turn to the claims of error asserted by Redmon and Republic.

We begin by addressing Redmon’s and Republic’s claim that Daniel failed to prove that any alleged negligence by Redmon was a cause in fact of the accident. As noted above, Daniel contended that Redmon acted negligently by failing to maintain at least a four-second following distance behind Gitaitis. She further contended that this negligence proximately caused her husband’s death because the proper following distance would have provided Redmon with additional reaction time, thereby allowing him to avoid Danny’s body as it lay on the exit ramp. The appellants, however, point to evidence showing that even had Redmon maintained a greater following distance, he nevertheless would have been unable to avoid running over Danny. In light of this evidence, Redmon and Republic contend that Daniel failed to prove that any negligent conduct by Redmon was a cause in fact of her husband’s death. We agree.

As we have explained previously,

it is axiomatic that the mere fact that an accident happened and [that] the plaintiff may have sustained injuries or damages affords no basis for recovery against a particular defendant unless the plaintiff carries the burden of proof and shows that such accident and damages were caused by specific acts of negligence on the part of that defendant.

Cromer v. Hodges, 216 Ga. App. 548, 549 (1) (455 SE2d 94) (1995) (citation and punctuation omitted; emphasis supplied). Thus, a “plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. Amere possibility of such causation is not enough.” Hunsucker v. Belford, 304 Ga. App. 200, 202-203 (1) (695 SE2d 405) (2010) (footnote omitted). And where an event would have occurred even in the absence of the defendant’s negligence, that negligence, as a matter of law, cannot be a cause in fact of the event. Cowart, 287 Ga. at 631 (3) (a); Strength, 311 Ga.App. at 44 (2)-(b).

At trial, the defense presented substantial and unrebutted evidence showing that Redmon’s alleged negligence in failing to maintain a following distance of four seconds or more did not cause or contribute to his running over Danny and that increasing his following distance would not have allowed Redmon to avoid hitting Danny. This evidence included the testimony of Officers Mark Dau and James Dobbins of the Lawrenceville Police Department accident investigation unit, as well as Captain Jeff Smith, the head of that unit. Dau was on the team that investigated the accident at issue, and Dobbins was the lead investigator. Smith was not involved in the investigation of this particular accident, but Republic hired him to serve as an expert witness on behalf of both Redmon and the company.

Smith testified that if Redmon had maintained a four-second following distance, he would have been between 264 and 293 feet behind Gitaitis. Given the darkness of the exit ramp, however, Redmon could not have seen anything that was not illuminated by his headlights. And Redmon’s low-beam headlights would have illuminated a maximum of 200 feet in front of the garbage truck. In short, no matter how great the following distance, it would have been impossible for Redmon to see Danny until he was no more than 200 feet away from him. And all of the evidence showed that Redmon was approximately 200 feet away when he saw Danny’s airborne body after the first impact and that he immediately took evasive action, to no avail.

Moreover, as Smith explained, if Redmon’s following distance were changed, his entire perspective of the scene on the exit ramp would also have been changed. With a greater following distance, Redmon would not have been in a position to see Danny coming off of Gitaitis’s vehicle. Under such circumstances, in which Redmon had no way to know of Danny’s presence in the road, Redmon would have been coming upon a dark-clad body lying in the middle of the roadway. Thus, a greater following distance would have made it impossible for Redmon to know of Danny’s presence in the roadway until it was too late to take evasive action. It was Smith’s opinion, therefore, that Redmon’s running over Danny was unavoidable, even if the following distance increased.

Dau provided similar testimony, explaining that following distance plays a significant role in accidents that occur during daylight hours, when motorists can see a significant distance down the road and are not limited by the illumination provided by their headlights. In nighttime accidents such as this one, however, following distance plays less of a role because a driver can only react to that which he sees, and vision at night is more limited. Thus, Dau reiterated that unless Redmon’s following distance put him in a position to see Danny coming off of Gitaitis’s vehicle, he could not react at all to Danny’s presence in the road. As Dau explained, it would have been significantly more difficult for Redmon to perceive a dark-clad body lying in the middle of the roadway than to see that same body while airborne. And Redmon would have been unable to see Danny’s body until he got within 200 feet of it, too late to allow him to avoid running over Danny. Accordingly, Dau was also of the opinion that under the circumstances of the case, Redmon could not have avoided hitting Danny.

Dobbins’s testimony reenforced that of Smith and Dau, as he testified that the police did not view following distance as a factor in the accident. Instead, the conclusion of the accident investigation team was that the impact between Redmon and Danny could not have been avoided.

Notably, none of this testimony was refuted. Although Daniel elicited testimony from Dau that the greater the following distance, the more time a driver would have to react, that testimony assumed that the driver could see that which he was reacting to — i.e., the presence of Danny in the roadway. Daniel presented no testimony, however, that under the circumstances of this case an increased following distance would have allowed Redmon to avoid running over Danny. Rather, all of the testimony addressing the conditions present during this particular accident showed that Redmon’s collision with Danny was unavoidable. Accordingly, the evidence did not provide the jury with a reasonable basis for concluding that any negligence by Redmon was a cause in fact of Danny’s death. “A plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough.” Post Properties v. Doe, 230 Ga. App. 34, 39 (495 SE2d 573) (1997) (citations and punctuation omitted).

We recognize that questions of causation are normally for the jury. See Walker v. Giles, 276 Ga. App. 632, 639 (1) (624 SE2d 191) (2005). Nevertheless, there must be sufficient evidence to create a jury question on the issue of causation. See Reeves v. Mahathre, 328 Ga. App. 546, 550 (759 SE2d 926) (2014). Thus, the defendant will be entitled to judgment as a matter of law where “the record is devoid of any evidence that [the defendant’s negligence] was a cause in fact of’ the plaintiff’s injury. Jackson v. Wal-Mart Stores, 206 Ga. App. 165, 167 (424 SE2d 845) (1992). See also Cowart, 287 Ga. at 636 (3) (d). Here, the undisputed evidence showed that it was more likely than not that the accident between Redmon and Danny would have occurred even in the absence of any negligence by Redmon. Accordingly, Redmon’s conduct cannot, as a matter of law, be a cause of that accident. See Cowart, 287 Ga. at 636 (3) (d) (defendant in a wrongful death action was entitled to summary judgment where doctor testified that he could not say if decedent would have survived absent the defendant’s negligence); Hunsucker, 304 Ga. App. at 202 (1) (defendant entitled to summary judgment where evidence showed only that defendant was driving “within the alleged speed limit on a familiar road at night in mist and, after cresting a hill, could not avoid a black-clothed pedestrian stepping into his lane”). We therefore find that the trial court erred in denying Redmon’s and Republic’s motions for a directed verdict and their motion for j.n.o.v.

Decided November 20, 2015

Reconsideration denied December 7, 2015

Dennis, Corry, Porter & Smith, John D. Dixon, for appellants.

The Orlando Firm, Craig T. Jones, for appellees.

2. Redmon and Republic also assert that Daniel failed to prove proximate cause of her negligence claim. Specifically, they assert that to prove that Redmon’s alleged negligence was a proximate cause of Danny’s death, Daniel was required to prove that her husband had survived his collisions with Gitaitis’s car and the pavement and that he was alive when the garbage truck ran over him. Redmon and Republic argue that Daniel failed to meet this burden because she failed to come forward with any expert medical testimony which would have allowed the jury to conclude that Danny had survived the first two impacts. See Cowart, 287 Ga. at 626-627 (2) (a) (plaintiff must prove causation by expert testimony “where the existence of a causal link between the defendant’s conduct and the plaintiff’s injury cannot be determined from common knowledge and experience and instead requires the assistance of experts with specialized medical knowledge”). In light of our holding in Division 1, however, we need not address this claim of error.

For the reasons set forth above, we reverse the judgment of the trial court.

Judgment reversed.

Andrews, P. J., and Miller, J., concur.

       Danny’s death certificate listed the cause of his death as “generalized blunt force trauma with bursting rupture of the head” as the result of being “struck by . . . motor . . . vehicles.”

       Dr. Terry’s inability to determine whether either of the first two impacts was fatal resulted from the fact that because of the injury inflicted by the garbage truck, Danny’s skull and brain were not available for examination.

       Gitaitis also twice moved for a directed verdict, and the trial court denied each of those motions.

         In their second enumeration of error, Redmon and Republic assert that Daniel “failed to prove her negligence claim” because the evidence showed that the accident was unavoidable and not the result of any negligence by Redmon. They then argue that given the unavoidable nature of the accident, Daniel failed to prove that Redmon was negligent. As explained herein, however, this argument really goes to the issue of causation, and specifically whether Redmon’s alleged negligence was a cause in fact of the accident. In her reply brief, Daniel does not address the appellees’ arguments as to the unavoidable nature of the accident.

       In her brief, Daniel argues, without any citation to legal authority, that Redmon and Republic are precluded from asserting this claim of error because they did not raise “any issue of Redmon’s negligence” in the court below. However, a party is free to “contend on appeal that the evidence is insufficient to support a verdict even if the party failed to move for a directed verdict[, a j.n.o.v.,] or new trial in the trial court.” Aldworth Co. v. England, 281 Ga. 197, 199 (637 SE2d 198) (2006). Moreover, a party may challenge the denial of a motion for a directed verdict even if it does not file a motion for j.n.o.v., and “the essence of a motion for directed verdict is that there is insufficient evidence as a matter of law for a jury to find for a party’s opponent.” Id. at 200. Thus, a party who moved for a directed verdict as to a specific claim will be entitled to judgment as a matter of law on that claim “if she prevails on her [argument] on appeal that the evidence is insufficient to support the verdict” as to that claim. Id. at 199. Here, Redmon and Republic twice moved for a directed verdict on Daniel’s negligence claim. Accordingly, on appeal they are free to challenge the sufficiency of the evidence as to that claim, even if they did not raise in the court below the specific arguments set forth on appeal.

       Both Dau and Dobbins testified that by taking the evasive action of braking and swerving to the left, Redmon had exercised the best and only option available to him under the circumstances.

       The evidence showed a significant possibility that a greater following distance would have resulted in Redmon still being on Highway 316, rather than on the exit ramp, at the time of the initial impacts. Smith testified that Danny’s body was located 200 feet up the exit ramp. The evidence showed that the body most likely remained where it landed after coming off of Gitaitis’s car and at the same location where Redmon ran over it. There was no evidence showing that Redmon’s truck had dragged the body any distance. Additionally, Redmon had just exited Highway 316 and was at the bottom of the exit ramp when he witnessed Danny come off the right side of Gitaitis’s car. Thus, had Redmon been following at a distance greater than 200 feet, he may not have been present on the exit ramp at the time of the first and second impacts and would not have had the opportunity even to attempt evasive action.


author: Miller, Judge.

text:
    A15A1167.
    RYMER et al. v. POLO GOLF AND COUNTRY CLUB HOMEOWNERS ASSOCIATION, INC.
    (780 SE2d 95)
   Miller, Judge.

John and Diane Rymer and the Diane L. Rymer Family Irrevocable Trust (“the Rymers”) filed suit against Forsyth County (“the County”) and the Polo Golf and Country Club Homeowners Association (“Polo”), asserting, inter alia, claims for nuisance, promissory estoppel and breach of legal duty, after the basement of their home in the Polo Fields subdivision flooded several times. The trial court granted Polo’s motion for summary judgment as to all of the Rymers’ claims. The Rymers appeal, contending that the trial court erred in granting summary judgment to Polo because (1) Polo is estopped from denying that it has a duty to undertake repairs to the stormwater facilities, (2) Polo was obligated to either make repairs or force other residents to make repairs, and (3) Polo is liable for maintaining a nuisance. For the reasons that follow, we agree that Polo is entitled to summary judgment as to the Rymers’ claims for promissory estoppel, nuisance and breach of a legal duty arising under Polo’s restrictive covenants, and we affirm the trial court’s order as to those claims. We, however, find that there are genuine issues of material fact as to whether Polo voluntarily undertook to make repairs to other homeowners’ properties and, accordingly, we reverse the trial court’s grant of summary judgment to Polo on the Rymers’ claim for breach of legal duty based on a voluntary undertaking.

Summary judgment is appropriate when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. We apply a de novo standard of appellate review and view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

(Punctuation and footnote omitted.) Community Marketplace Properties v. SunTrust Bank, 303 Ga. App. 403, 404 (693 SE2d 602) (2010).

So viewed, the evidence shows that “Polo is a mandatory homeowners association at Polo Fields, a subdivision in Forsyth County consisting of approximately 1,000 lots. The subdivision was completed in the mid-1980’s.” Polo Golf and Country Club Homeowners’ Assn. v. Rymer, 294 Ga. 489 (754 SE2d 42) (2014) (“Rymer I”).

Polo Fields is governed by a Declaration of Covenants, Restrictions, and Easements, executed in 1986 (“the Covenants”). Under the Covenants, the developer and its successors and assignees have the right to create perpetual easements for any purpose, including storm-water drains. In 1991, the developer assigned its interest in Polo Fields to Fairgreen Capital. In Rymer I, the Supreme Court held that the Covenants “provide that each homeowner is to maintain and repair the structures on his own property, including any stormwater facilities or device affecting or altering the natural flow of surface waters on any lot.” Rymer I, supra, 294 Ga. at 489. Polo does not own any stormwater facilities in the subdivision.

In 1998, the Rymers purchased a house at 5925 Polo Drive, Plat 11, in the Polo Fields subdivision (“the Property”). On the side yard of the Property, there is a 20-foot wide drainage easement that contains a 30-inch, metal underground pipe that drains stormwater from upstream properties. The typical life span of a metal pipe is 25 years, and the pipe that runs underneath the Property and Polo Drive was installed more than 25 years ago.

The side yard of the Property is the lowest point for miles, and stormwater drains onto the Property from every direction. Surface water from approximately 12.5 acres of surrounding land, including residences, pastureland, and roads, drains into the pipe running underneath the Property. From the Property, the pipe proceeds underneath Polo Drive and underneath the side yard of 5920 Polo Drive, which is across the street from and downstream of the Property. Underneath the side yard of 5920 Polo Drive, there is a junction box that connects the 30-inch pipe to a 24-inch pipe that runs underneath several residential lots and drains into Wellington Lake. Surface water from Polo Drive also drains from catch basins into the 30-inch pipe.

The basement of the Property flooded in 2003. In the fall of 2004, John Rymer first contacted Polo about the flooding. After the Property flooded again in 2005, the Rymers contacted Polo again and asked it to address the drainage problems. In 2006, Polo notified the Rymers that it took the position that the County, rather than Polo or any individual homeowner, should be responsible for maintenance of the stormwater facilities. In 2007, however, Polo commissioned an engineer to study the stormwater drainage facilities within Polo Fields and make recommendations for repairs. Polo then collected funds from homeowners to make repairs.

In July 2009, Polo notified the Rymers that it had identified the Property as needing minor repair work, which Polo offered to undertake as part of its efforts to address the drainage issues, provided that the Rymers agreed to release Polo from liability. Although the Rymers provided a release, these repairs were never made. The Rymers’ basement flooded again in September 2009. In February 2010, the Rymers filed their initial complaint in this suit.

The Rymers’basement flooded again on July 16 and 17, 2010. On July 17, 2010, the pipe that runs from the Property underneath Polo Drive collapsed in the yard of 5920 Polo Drive and a large sinkhole developed. Thereafter, the owner of 5920 Polo Drive repaired the collapsed pipe on her property, and the County replaced the portion of pipe underneath the shoulder of Polo Drive. No flooding has occurred on the Property since July 17, 2010.

1. The Rymers contend that the trial court erred in granting summary judgment to Polo because, under the law of the case, Polo is estopped from denying that it assumed a duty to make repairs to the Property and there was some evidence that the Rymers relied on Polo’s promises to make repairs. We disagree.

(a) With regard to the posture of this case, we note that after the Rymers filed their initial complaint, Polo counterclaimed against the Rymers for violation of the Covenants on the ground that the Rymers failed to maintain and repair the stormwater facilities on the Property. In Rymer I, the Supreme Court of Georgia affirmed the denial of summary judgment to Polo on its counterclaim seeking to compel the Rymers to make repairs. See Rymer I, supra, 294 Ga. at 492 (1).

Although the law of the case rule has generally been abolished in Georgia, “any ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court and in the Supreme Court or the Court of Appeals as the case maybe.” OCGA § 9-11-60 (h). If, however, “subsequentto an appellate decision, the evidentiary posture of the case changes in the trial court, the law of the case rule does not limit or negate the effect that such change would otherwise mandate.” (Citation omitted.) Brown v. Piggly Wiggly Southern, 228 Ga. App. 629 (1) (493 SE2d 196) (1997). The posture of the case can be changed by an amendment to the complaint or by the submission of additional evidence. See id.; May v. Macioce, 200 Ga. App. 542, 544 (2) (409 SE2d 45) (1991).

In concluding that the trial court properly denied Polo’s motion for summary judgment on its counterclaim against the Rymers, the Supreme Court of Georgia found:

When the Rymers brought their flooding problems to the attention of Polo, it took the position that neither the Rymers nor Polo was responsible for the management and upkeep of the stormwater facilities. Instead, Polo asserted responsibility rested with the [Cjounty. Moreover, Polo notified the Rymers that it was commissioning a study of the stormwater facilities in the subdivision seeking recommendations for repairs and it assured the Rymers that it would make repairs to the stormwater facilities at its own expense. John Rymer averred that he relied on Polo’s promises to make the necessary repairs, that the repairs were never made, and that the Rymers experienced additional flooding. Under these facts, a jury could find that the Rymers reasonably relied upon Polo’s promise.

(Citation omitted.) Rymer I, supra, 294 Ga. at 492 (1).

The Supreme Court’s ruling concerned the Rymers’ promissory estoppel defense to Polo’s counterclaim against the Rymers for their failure to make repairs pursuant to the Covenants. See Rymer I, supra, 294 Ga. at 491 (1). Upon remand, Polo dismissed its counterclaim against the Rymers, and the Rymers filed an amended complaint, asserting a new claim against Polo for promissory estoppel based on Polo’s promise to make repairs to the Property. New evidence, namely the Rymers’ 2014 depositions, was also submitted after remand. Since the posture of the case changed in the trial court, both because the Rymers added a new, distinct claim and because new evidence was submitted, the law of the case rule is inapplicable and the Supreme Court’s prior ruling is no longer binding. See Brown, supra, 228 Ga. App. at 629 (1).

(b) As to the merits of the Rymers’ claim, to prevail on a claim of promissory estoppel, the Rymers are required to show that (1) Polo made certain promises; (2) Polo should have expected the Rymers to rely on those promises; (3) the Rymers did in fact rely on those promises to their detriment; and (4) injustice could be avoided only by enforcement of the promises. See First Bank of Ga. v. Robertson Grading, 328 Ga. App. 236, 241-242 (1) (761 SE2d 628) (2014).

In July 2009, Polo notified the Rymers that it had identified the Property as needing minor repair work, which Polo offered to undertake after the Rymers signed a release giving the contractor permission to make repairs on the Property. Polo, however, never made any repairs to the Property. The trial court found that there was no evidence that the Rymers detrimentally relied on Polo’s assurances because they failed to provide Polo with access to the Property to make repairs. John Rymer, however, deposed that he signed a release. As Polo concedes, John Rymer’s statement creates a question of fact as to whether the Rymers executed a release to provide Polo with access to the Property.

Even if there is a question of fact as to the release, we may nevertheless affirm the trial court’s grant of summary judgment if it is right for any reason, whether stated or unstated, so long as the legal basis was fairly presented in the court below. See Georgia-Pacific, LLC v. Fields, 293 Ga. 499, 504 (2) (748 SE2d 407) (2013). As Polo argued in its motion for summary judgment, the Rymers’ 2014 deposition testimony shows that they did not detrimentally rely on Polo’s representations that it would make repairs to the Property.

In 2011, John Rymer averred that he and his wife relied on Polo’s representations that Polo was taking care of the stormwater drainage problems. During his 2014 deposition, however, John Rymer said that there were no repairs that could be made to the Property that would prevent flooding and that making minor repairs with hand tools to the Property, as Polo had offered to do, would not have fixed the flooding. Diane Rymer deposed that any repairs to the Property would not have fixed the flooding.

Under the rule set forth in Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986), a party’s unexplained self-contradictory testimony must be construed against him for purposes of summary judgment. See Thompson v. Ezor, 272 Ga. 849, 851 (1) (536 SE2d 749) (2000). Since the Rymers’ 2014 deposition testimony contradicts John Rymer’s 2011 averment, we must construe this evidence against the Rymers to mean that they do not believe that there are repairs that could be done on the Property that would fix the flooding problem and, thus, they could not have relied to their detriment on Polo’s promise to make repairs to the Property. See Prophecy Corp., supra, 256 Ga. at 30 (2). Accordingly, Polo is entitled to summary judgment on the Rymers’ promissory estoppel claim, and we affirm the trial court’s grant of summary judgment as to that claim.

2. The Rymers contend that the trial court erred in granting summary judgment to Polo as to their claim for breach of legal duty because Polo was required to enforce maintenance obligations on individual property owners and undertook its own obligation to make repairs itself. For the reasons that follow, we agree in part.

(a) The Covenants.

Although the Rymers have abandoned their earlier claim that the Covenants impose an affirmative duty on Polo to maintain the drainage easements and stormwater facilities itself, they contend on appeal that the Covenants require Polo to force other homeowners to undertake necessary repairs. We disagree.

Restrictive covenants on real estate run with the title to the land and are specialized contracts that inure to the benefit of all property owners affected. The construction, interpretation and legal effect of such a contract is an issue of law to which the appellate court applies the plain legal error standard of review. In construing a restrictive covenant, the trial court must decide whether the language is clear and unambiguous. If it is, the court simply enforces the contract according to its clear terms; the contract alone is looked to for its meaning.

(Citations omitted.) Crouch v. Bent Tree Community, 310 Ga. App. 319, 320 (1) (713 SE2d 402) (2011).

The Covenants establish an Architectural Control Committee (the “ACC”) with “the power and duty to approve or disapprove plans and specifications for any installation, construction or alteration of any [structure on any [l]ot.” The ACC is also tasked with adopting design standards, both governing the form, content, and procedure for the submission of plans and specifications and “establishing guidelines with respect to the approval or disapproval of design features, architectural styles, exterior color and materials, details of construction, location and size of [s] fractures and all other matters that require” ACC approval, as well as “assuring the conformity and harmony of external design and general quality of” Polo Fields. The Covenants give Polo and the ACC the right to enter any lot or structure, after giving reasonable notice, to inspect it in order to determine whether it is being maintained in compliance with the Covenants. The ACC may impose and collect fees to cover the cost of inspections.

As set forth above, sections 1.12 and 6.14 of the Covenants “provide that each homeowner is to maintain and repair the structures on his own property, including any stormwater facilities or device affecting or altering the natural flow of surface waters on any lot.” Rymer I, supra, 294 Ga. at 489. Section 6.14 of the Covenants — the maintenance provision — further provides:

If in the opinion of the ACC, any Owner shall fail to perform the duties imposed by this Section, the ACC shall notify [Polo]. If the Board shall agree with the determination of the ACC with respect to the failure of said Owner to perform the duties imposed by this Section, then [the] Board shall give written notice to the Owner to remedy the condition in question.... 1/ the Owner shall fail to take reasonable steps to remedy the condition within [30] days..., then [Polo] shall have the Right of Abatement as provided in Section 8.02[.]

(Emphasis supplied.) The ACC and the Board are similarly empowered to request owners to take remedial action if any structure that is not in accordance with the plans and specifications approved by the ACC is placed or maintained on a homeowner’s property.

The Covenants set forth various enforcement methods, including the right of enforcement and the right of abatement. Section 8.01 states that the Covenants are enforceable (1) by the declarant as long as it is an owner, (2) by each owner, and (3) by the holder of any deed to secure debt upon any lot. As set forth above, the declarant assigned its interest in Polo Fields to Fairgreen Capital. Accordingly, Polo is neither a declarant, a property owner, nor a holder of any deed to secure debt.

Pursuant to section 8.02, “in the event of a violation or breach” of the Covenants, Polo “shall give written notice” to the owner setting forth the violation and required remedial actions. If the owner fails to take reasonable steps to remedy the violation, then Polo has the right of abatement. The right of abatement is defined as Polo’s right to “enter at all reasonable times” a lot or structure that is in violation of the Covenants and take the remedial actions specified in the notice previously sent to the homeowner. Pursuant to the right of abatement, if Polo takes remedial action, it is not deemed to have committed a trespass and may file suit to collect the costs of the remedial action, as well as the costs of collection, reasonable attorney fees and interest.

The Covenants do not limit the rights of the declarant, Polo, or any homeowner to file suit seeking money damages or an injunction in an effort to enforce the Covenants. Polo also has the power to impose reasonable monetary fines on homeowners for violations of the Covenants. If any cost is not paid as required under the Covenants, Polo may enforce a lien or bring suit.

The Rymers argue that because Polo has the right to abate violations of the Covenants, it had an obligation to force homeowners to make repairs to the stormwater drainage facilities within Polo Fields, or make the necessary repairs itself. The Covenants, however, do not impose on Polo a mandatory duty to abate. Rather, the Covenants permit Polo the right to abate. See Rymer I, supra, 294 Ga. at 489 (“If the covenants are violated by a homeowner, Polo can pursue these remedies: file suit against the homeowner; levy fines against the homeowner; [or] enter the homeowner’s lot to make necessary repairs at the homeowner’s expense.”) (emphasis supplied).

Pursuant to the Covenants, Polo can exercise its right to abatement only after it has determined that a homeowner is in violation of the Covenants’ maintenance provision, notified the homeowner of the violation at issue and asked the homeowner to remedy the violation. “No principle of law is more firmly fixed in our jurisprudence than the one which declares that the courts will not interfere in matters involving merely the judgment of the majority in exercising control over corporate affairs.” (Citation and punctuation omitted.) Vernon Bowdish Builder v. Spalding Lake Homeowners Assn., 196 Ga. App. 370, 371 (396 SE2d 24) (1990). Moreover, the Covenants vest the decision as to whether homeowners are in violation of the maintenance provision of the Covenants with Polo. Accordingly, this Court cannot substitute its judgment for that of Polo. See King v. Baker, 214 Ga. App. 229, 235 (5) (447 SE2d 129) (1994) (where restrictive covenants gave neighborhood committee discretion to determine whether the number of animals on a particular property is reasonable, trial court cannot substitute its own judgment).

The essence of the Rymers’ complaint is that Polo should have exercised its right of abatement by forcing other homeowners to make repairs to the stormwater drainage facilities. Thus, the controversy turns on a difference in judgment between the Rymers and Polo and does not create a cause of action in favor of the Rymers. See Vernon Bowdish Builder, supra, 196 Ga. App. at 371 (controversy between homeowner and homeowners’ association over whether association had done enough to maintain common area was not actionable). Accordingly, the trial court did not err in granting summary judgment to Polo on the Rymers’ claim that Polo violated its duty, under the Covenants, to force other homeowners to undertake necessary repairs.

(b) Voluntary Undertaking.

The Rymers also argue that, aside from the Covenants, Polo breached a legal duty to make repairs when it announced that it was going to repair the drainage facilities and then did not do so. We agree.

Under well-established Georgia law, a person may be held liable for the negligent performance of a voluntary undertaking. See Osowski v. Smith, 262 Ga. App. 538, 540 (1) (586 SE2d 71) (2003).

Under this principle, one who undertakes to do an act or perform a service for another has the duty to exercise care, and is liable for injury resulting from his failure to do so, even though his undertaking is purely voluntary or even though it was completely gratuitous, and he was not under any obligation to do such act or perform such service, or there was no consideration for the promise or undertaking sufficient to support an action ex contractu based thereon. When one undertakes an act that he has no duty to perform and another person reasonably relies upon that undertaking, the act must generally be performed with ordinary or reasonable care.

(Citations omitted.) Id.; see also Restatement (Second) of Torts § 323 (1965).

Contrary to the Rymers’ argument, Polo did not undertake a legal duty to repair the drainage facilities in its 2006 letter to the Rymers since Polo disavowed any responsibility for repairs in that letter. Nevertheless, there is evidence that in 2004, a homeowner whose lot was downstream of the Rymers’ lot developed sinkholes on his property. Some time later, Polo indicated that it would replace pipes on the homeowner’s property, and although that homeowner consented to allow Polo to inspect his property, it made no repairs. Additionally, in 2007, Polo commissioned a study of the stormwater drainage facilities and began collecting funds to make repairs to these facilities within Polo Fields.

Moreover, in the 2009 letter to the Rymers, discussed above in Division 1 (b), Polo not only promised to make repairs to the Property, it also indicated that it had “worked extensively to evaluate and address [stormwater drainage] issues affecting our neighborhood.” Polo also wrote that it was finalizing the selection of a contractor, and would “soon be ready to move forward with a number of repairs.” As set forth above, John Rymer averred that he and his wife relied on these representations and, unlike Polo’s promise to repair the Property, there is no record evidence that the Rymers did not rely on Polo’s promise to make repairs to other properties in Polo Fields. Thus, the evidence is sufficient to raise a genuine issue of material fact as to whether Polo promised and voluntarily undertook to make repairs to other Polo Fields homeowners’ properties by commissioning a study, collecting funds, identifying properties, selecting a contractor, and obtaining the homeowners’ consent for inspection. Accordingly, we reverse the trial court’s grant of summary judgment to Polo on the Rymers’ claim for breach of legal duty based on a voluntary undertaking.

3. The Rymers contend that the trial court erred in granting summary judgment to Polo on their nuisance claim because Polo was obligated to repair the stormwater facilities. We disagree.

“The essential element of nuisance is control over the cause of the harm. The tortfeasor must be either the cause or a concurrent cause of the creation, continuance, or maintenance of the nuisance.” (Citation and punctuation omitted.) Grinold v. Farist, 284 Ga. App. 120, 122 (2) (643 SE2d 253) (2007). Here, although there is a genuine issue of material fact as to whether Polo promised to make repairs to the stormwater drainage facilities within Polo Fields, there is no evidence that Polo actually made any repairs to those facilities. Nor is Polo obligated, under the Covenants, to make such repairs, since the evidence clearly shows that Polo does not own or control any drainage facilities within Polo Fields. Accordingly, there is no evidence that Polo exercised control over the alleged cause of the harm, and the trial court did not err in granting summary judgment to Polo on the Rymers’ nuisance claim. See Futch v. Lowndes County, 297 Ga. App. 308, 313 (5) (676 SE2d 892) (2009) (holding that defendant was entitled to summary judgment where it exercised no control over any nuisance-creating instrumentality).

Decided November 18, 2015

Reconsideration denied December 8, 2015.

Teague & Chambless, J. Stuart Teague, Jr., Keisha M. Chambless, for appellants.

Lueder, Larkin & Hunter, John T. Lueder, Elina V. Brim; Temple, Strickland, Dinges & Schwartz, William A. Dinges, Jason B. Schwartz, for appellee.

Thus, we affirm the trial court’s grant of summary judgment to Polo on the Rymers’ promissory estoppel claim; we affirm the trial court’s grant of summary judgment to Polo on the Rymers’ claim for breach of legal duty based on the Covenants; we reverse the trial court’s grant of summary judgment to Polo on the Rymers’ claim for breach of legal duty based on a voluntary undertaking; and we affirm the trial court’s grant of summary judgment to Polo on the Rymers’ nuisance claim.

Judgment affirmed in part and reversed in part.

Andrews, P. J., and Branch, J., concur.

       While this case was on appeal, the Rymers settled their claims against Forsyth County.
      The Rymers also sought punitive damages and attorney fees in their suit against Polo. The trial court granted summary judgment to Polo on the Rymers’ claim for punitive damages and reserved ruling on the Rymers’ claim for attorney fees. The Rymers do not challenge these rulings on appeal and we do not address them here.

       This is the second appearance of this case on appeal. In Polo Golf and Country Club Homeowners’Assn. v. Rymer, 294 Ga. 489, 495 (2) (754 SE2d 42) (2014), the Supreme Court of Georgia held that a 2004 County ordinance requiring a homeowners association to maintain its subdivision’s stormwater drainage facilities applied only to new developments and redevelopments and, therefore, did not apply to pre-existing developments, such as Polo.


author: DOYLE, Chief Judge.

text:
    A15A1281.
    GLISPIE v. THE STATE.
    (779 SE2d 767)
   DOYLE, Chief Judge.

In connection with a traffic stop, Jaylend Glispie was convicted of violating the Georgia Controlled Substances Act for possession with intent to distribute cocaine and 3, 4-methylenedioxymethcath-inone (methylone) (2 counts), obstruction of a law enforcement officer, fleeing or attempting to elude, failure to stop at a stop sign, and driving an unsafe and improperly equipped vehicle. He appeals from the denial of his motion for new trial, arguing that the trial court erred by denying his motion to exclude evidence of text messages purportedly extracted from a cell phone he possessed, denying his motion for a mistrial after a witness gave inadmissible testimony in response to a question propounded by Glispie’s trial counsel on cross-examination, and denying his motion to suppress drugs taken from his person during a search. Glispie also contends that the evidence presented at trial was insufficient to support his convictions. For the reasons that follow, we affirm Glispie’s convictions for violating the Georgia Controlled Substances Act, obstruction of a law enforcement officer, fleeing or attempting to elude, and driving an unsafe and improperly equipped vehicle. We reverse his conviction for failure to stop at a stop sign because there was no evidence of venue with regard to that charge.

The evidence shows that on February 7,2013, at about 2:00 a.m., Nathan Watts, a Rockdale County sheriff’s deputy, was on patrol in a marked patrol cruiser on Flat Shoals Road when he observed a vehicle without a working headlight in the left turning lane of Salem Road. As Watts continued to travel on Flat Shoals Road, he crossed Salem Road and peered into the vehicle. Watts did not observe any of the driver’s facial features, but he did observe that the driver, the sole occupant of the vehicle, was a black male wearing a “bright red[-]like sweater shirt.” Watts turned his patrol cruiser around and followed the vehicle, which had turned onto Flat Shoals Road in the opposite direction in which Watts had been traveling.

Watts got behind the vehicle and activated his cruiser’s emergency lights and siren to initiate a stop of the vehicle, which then turned onto a side street and stopped. Watts testified that he “aired [his] situation over the radio,” reporting his location and giving “a short description of the vehicle,” including the tag number and color and body type of the vehicle. Watts then exited his patrol cruiser. As Watts “started moving [toward the vehicle], the vehicle started moving too,” and was driven away “in a hurry” before Watts could make contact with the driver. Watts returned to his cruiser, pursued the vehicle, and announced his pursuit over the radio, giving a description of the vehicle and the direction in which it was being driven. When the vehicle proceeded through an intersection without stopping at the stop sign, Watts stopped his cruiser, deactivated its emergency lights, and in the interest of safety, ended his pursuit.

On his computer, Watts obtained the address associated with the driver’s license of the registered owner of the vehicle. The address was in Rockdale County, not far from Watts’s location, and Watts drove to the residence; approximately seven minutes passed from the time he stopped pursuing the vehicle to the time he arrived at the residence. Deputy Curtis Thompson, who had heard Watts’s broadcast, arrived at the residence before Watts. Thompson exited his cruiser and started walking toward the home. The vehicle that Watts had pursued was parked in the driveway, and two black men were in front of the residence. One man wore a white t-shirt and flannel plaid-looking pajama pants. The other man, who wore jeans and a red and black shirt, ducked into some bushes as Thompson’s cruiser approached. Thompson testified that as he walked past the vehicle, he could “smell the brakes still burning on the car from it having been in the chase, applying the brakes.”

Thompson ordered both men to approach him. The man wearing the white t-shirt complied, but the man wearing the red and black shirt, later identified as Glispie, did not. It appeared that Glispie was “about to run,” but Watts approached from behind Thompson at “a different angle in case something happened,” and Thompson was able to handcuff Glispie. As Thompson “reached up to start to pat him down[,]... [Glispie] tried to take off.” Thompson testified that Glispie “stood on his left foot. Picked his right leg up and tried to kick my knee cap out.” Thompson stepped to the side, and Glispie’s “heel grazed from [Thompson’s] knee cap all the way down the side of [Thompson’s] leg to [Thompson’s] ankle,” leaving a red mark. Glispie then “went hopping across the yard with [Thompson] hanging on to the handcuffs.” Thompson pulled the handcuffs, “[l]eg swept” Glispie, knocking his feet out from underneath him, and sat down on top of Glispie. Watts positively identified the shirt that Glispie wore in the photograph as the shirt he had seen the driver of the pursued vehicle wearing.

Thompson searched Glispie’s pockets. Located therein was one plastic bag containing fourteen rocks of suspected crack cocaine; another plastic bag contained five clear capsules, each filled with a white powder; a “couple of lighters”; two cell phones; some cash; and a razor or box cutter. The rocks had a total net weight of 2.07 grams and later tested positive for cocaine. The capsules had a total weight of less than one gram and later tested positive for 3, 4-methyl-enedioxymethcathinone, commonly known as methylone or “Molly.”

At trial, Thompson opined that the amount of drugs recovered and the manner in which the drugs were packaged were consistent with an intent to sell or distribute, rather than for personal use. A third law enforcement officer, Sergeant Jason Welch, testified that text messages were extracted from one of the cell phones found on Glispie’s person, and the texts indicated that Glispie used the cell phone to sell drugs. Welch testified that part of one text message appearing on January 25, 2013, read, “Kristy, this Jaylend.” A text message sent from the phone on February 1, 2013, read, “what is good, babe. This is the dude. I got your number. Everybody calls me Sane or Insane but my real name is Jaylend.” Welch was asked whether there were conversations he had seen (in the text messages) which were “particularized toward the distribution or sale of either Mollies or cocaine,” and he testified as follows.

A: Absolutely. Molly is mentioned numerous times within these pages. I just flip through at random.
Q: Can you give an example of one of those times?
A: Yes. For instance, you mentioned cocaine. Just flip through a random page. I see this right here. I got some concrete you might like. Hit me when you are ready. That’s text number 2433 on January 26th, 2013, at21:30. That text message was sent to this phone. Basically, someone trying to order up and another one on text message 2479. This was sent to the phone on January 27th, 2013, at 23:59 hours. It states you say a G. which is slang for a gram was 80. And then again from the same number, I need a G. of Molly. What’s the move. Basically, I need a gram of Molly and what are you going to do for me.
Q: Are there any other ones that you found that kind of caught your attention primarily?
A: This individual time, they are talking about a dime. Another one from — now the cell phone data that we use to pull this information, we pull contacts too. Some of the numbers are just numbers, random customers ordering up to the phone but other people are listed as contacts. This was sent from an individual they have as Little Rod. It’s 2599 sent to the phone and it plainly reads, you got Mollies? Asking if the individual has Mollies.

Welch also testified as to other text messages “about the drug trade.” On cross-examination, Welch testified that based on his knowledge, training, and experience, “[ajnyone in possession of narcotics, especially in a manner of intent to sell and has a cell phone in his possession typically uses that cell phone to conduct trades.” When asked whether he had any information prior to the issuance of the search warrant that the particular cell phone he sought to search was used in arranging the purchase or sale of drugs, Welch replied, “No. I was not on the scene.”

Glispie was convicted on all counts. The trial court denied his motion for new trial, and this appeal followed.

1. Glispie contends that the trial court erred by denying his motion in limine to exclude evidence of text messages extracted from one of the cell phones found on him at the scene and by admitting the evidence over his objections. This enumeration presents no basis for reversal.

(a) Search warrant. Glispie argues that the search warrant application for the cell phone failed to provide probable cause sufficient to justify the issuance of the warrant. We disagree.

“A defendant aggrieved by an unlawful search and seizure may move the court... to suppress as evidence anything so obtained on the grounds that... [t]he search and seizure with a warrant was illegal because . . . there was not probable cause for the issuance of the warrant. . . .” “[T]he burden of proving the lawfulness of a search warrant is on the State[,] and that burden never shifts.”

The magistrate’s task in determining if probable cause exists to issue a search warrant is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Our duty in reviewing the magistrate’s decision in this case is to determine if the magistrate had a “substantial basis” for concluding that probable cause existed to issue the search warrants. A magistrate’s decision to issue a search warrant based on a finding of probable cause is entitled to substantial deference by a reviewing court.

Further,

doubtful cases should be resolved in favor of upholding the determination that issuance of a warrant was proper, reflecting both a desire to encourage use of the warrant process by police officers and a recognition that once a warrant has been obtained, intrusion upon interests protected by the Fourth Amendment is less severe than otherwise may be the case.

Here, in the affidavit upon which the search warrant was based, Welch listed his experience and training with narcotic sales and stated that one of the cell phones found on Glispie had been “recovered as evidence related to a violation of Georgia’s controlled substance act.” Welch averred that he had reason to believe that the cell phone contained certain items, namely “[t]ext messages, phone numbers in call history, digital phone book, digital pictures, digital video, voice [ ] mails, times of phone calls and text messages, which are being possessed in violation of OCGA § 16-13-30 (b)[:] Possession of cocaine with intent to distribute.” After detailing the events leading up to Glispie’s arrest, including the attempted traffic stop, Glispie’s flight, the officers’ interactions with the owner of the vehicle, and Glispie’s striking one of the officers during his attempt to escape, the affidavit listed the items found on Glispie’s person after a pat-down of his pockets, including the drugs, two cell phones, and cash.

The affidavit “provided the issuing magistrate with sufficient information to make a practical, common sense decision that there was a fair probability that evidence of the crime would be found on the items to be searched.” As noted by our Supreme Court, “the test for probable cause is not a hypertechnical one to be employed by legal technicians, but is based on the factual and practical considerations of everyday life on which reasonable and prudent men act.” Given the nature of the items in Glispie’s possession at the time of his arrest, including a large number of suspected drugs, cash, a residue-laden razor, and two cell phones, the magistrate was authorized to conclude “based on... practical considerations of everyday life” that there was a fair probability that the phone he also possessed would contain evidence of drug sales. Considering the specific evidence in this case and giving the magistrate the requisite substantial deference, we conclude that the trial court did not err by denying Glispie’s motion in limine to exclude the text messages taken from the cell phone found on him at the time of his arrest, notwithstanding that police had no specific knowledge of Glispie’s use of the phone.

(b) Objections. Glispie contends that the trial court erred by admitting the text messages taken from his cell phone over various objections he made at trial. “On appeal, the admission of evidence is reviewed for an abuse of discretion.”

A proper application of the abuse-of-discretion review recognizes the range of possible conclusions the trial judge may reach, and that there will often be occasions in which we will affirm the evidentiary ruling of a trial court even though we would have gone the other way had it been our call.

(i) First, Glispie contends that the data taken from his cell phone was not properly authenticated. We disagree.

Pursuant to OCGA § 24-9-901 (a), “[t]he requirement of authentication or identification as a condition precedent to admissibility shall be satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.”

[T]here are no special rules under Georgia law governing the authentication of electronic documents or communications. Electronic records and e-mails are to be treated the same as ordinary writings for purposes of authentication and admission. As with all authentication issues, the trial court should admit the evidence if a reasonable jury could find that the evidence is what it is claimed to be. Every form of electronic communication can be “spoofed,” “hacked,” or “forged.” But this does not and can not mean that courts should reject any and all such communications. Indeed, the vast majority of these communications are just as they appear to be — quite authentic. The goal is to supply sufficient, nonhearsay evidence as to the identity of the source such that a reasonable factfinder could conclude that the evidence is what it is claimed to be.

As the Eleventh Circuit has held,

[t]o authenticate a document, Rule 901 only requires a proponent to present sufficient evidence to make out a prima facie case that the proffered evidence is what it purports to be. After meeting the prima facie burden, the evidence may be admitted, and the ultimate question of authenticity is then decided by the jury.... Evidence may be authenticated through the testimony of a witness with knowledge.

Here, Welch testified that he observed another officer recover and download the text messages taken from the cell phone found on Glispie, which messages were then printed out. According to Welch’s testimony, Glispie refers to himself in the text messages by his first name at least twice. This evidence establishes a prima facie case that “the evidence was what it purported to be — text messages between [Glispie and other individuals].” And although Welch testified that the cell phone was actually registered to another individual who had access to and had been using the cell phone, the State presented sufficient evidence to support a finding that the text messages were to and from Glispie. Accordingly, the trial court did not abuse its discretion by overruling Glispie’s authentication objection.

(ii) Next, Glispie argues that the text messages recovered from the phone should have been excluded as inadmissible hearsay. Again, we find no basis for reversal.

In Georgia, hearsay is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Pretermitting whether the text messages constituted hearsay, they were admissible as an admission by a party-opponent.

OCGA § 24-8-801 (d) (2) (A) provides that “[a]dmissions shall not be excluded by the hearsay rule. An admission is a statement offered against a party which is . . . [t]he party’s own statement.” “[A] defendant’s incriminating statement is admissible when it constitutes an admission against the defendant’s penal interest because a defendant’s declaration against penal interest is the admission of a party-opponent.”

Here, as we concluded in Division 1 (b) (i), the trial court did not abuse its discretion by concluding that the text message evidence was authenticated. And because the messages implicated Glispie and constituted statements against penal interest, they were admissible as party admissions.

2. Glispie contends that the trial court erred by denying his motion for mistrial after a witness gave inadmissible testimony in response to a question propounded by Glispie’s trial counsel on cross-examination. We disagree.

During the cross-examination of Deputy Thompson, defense counsel asked Thompson a series of questions regarding Glispie’s connection to the vehicle parked in the driveway, which vehicle was involved in the traffic infractions reported by Deputy Watts. Defense counsel then asked Thompson: “Did you find any of [Glispie’s] personal effects or anything, any identifying documents or anything of that nature involving Mr. Glispie inside the vehicle?” Thompson responded, “No, sir. [The man wearing the white t-shirt and flannel plaid-looking pajama pants] had said he had loaned [Glispie] the car[,] and I took him at his word.”

Defense counsel objected and asked the court to consider a matter outside the presence of the jury. The trial court excused the jury, and defense counsel moved for a mistrial on the basis that Thompson’s testimony was nonresponsive to the question asked and was inadmissible hearsay because the man who had worn the white t-shirt and pajama pants was not in court to testify. The trial court denied the motion, ruling that defense counsel had opened the door: “You asked a series of questions leading up to the question all around what evidence there was to link Mr. Glispie to the car,” and with “at least the two [questions] before the last one, it’s not unexpected that this would happen.”

Whether to grant a mistrial is a matter within the discretion of the trial court, and that discretion will not be interfered with on appeal unless it is apparent that a mistrial is essential to the preservation of the right to a fair trial. Although one may legitimately complain about illegal testimony which is not responsive to the question, one cannot take chances in propounding questions which may elicit damaging answers, otherwise inadmissible, and then demand a mistrial when such answer is given.

Here, defense counsel took chances by asking the officer a series of questions regarding Glispie’s connection to the vehicle involved in the earlier traffic infractions notwithstanding the fact that, as the trial court pointed out, defense counsel “knew that this conversation occurred from the discovery.” When the jury returned to the courtroom, the trial court gave the jury a curative instruction to disregard the answer Thompson had given just prior to the jury being excused. “Th[e] witness’s objectionable statement was not solicited by the prosecutor, and, considering the curative instructions given, the decision to deny the motion for mistrial was not an abuse of discretion and did not violate [Glispie’s] right to a fair trial.”

3. Glispie contends that the trial court erred by denying his pretrial motion to suppress the drugs police recovered after they searched him. But when defense counsel stated at trial that he had no objection to the admission of the drugs, Glispie “waived and failed to preserve his right to contest the admission of the evidence on appeal on the grounds raised in the motion to suppress,” or “any objection which might have been urged.”

4. Glispie contends that the evidence was insufficient to support his convictions. We disagree.

On appeal, [Glispie] no longer enjoys a presumption of innocence, and we view the evidence in the light most favorable to support the verdict. Our review is limited to determining whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(a) Violation of the Georgia Controlled Substances Act (2 counts). Given the items found in Glispie’s pockets, including large amounts of cocaine and 3,4-methylenedioxymethcathinone (methylone), cash, two cell phones, and a residue-laden razor blade, coupled with the evidence regarding the text messages between Glispie and other individuals, we conclude that the evidence was sufficient to support Glispie’s convictions for possession with intent to distribute cocaine and possession with intent to distribute 3,4-methylenedioxymethcath-inone (methylone).

(b) Obstruction of a law enforcement officer. Glispie was charged with wilfully obstructing, resisting, and opposing Deputy Thompson by kicking him. Glispie contends that the evidence was insufficient to support that conviction because it showed that he “ultimately failed to kick [Thompson]This assertion is belied by the record. Thompson testified that Glispie’s “heel grazed from [Thompson’s] knee cap all the way down the side of [his] leg to [his] ankle,” leaving a red mark and causing his leg to sting. This evidence was sufficient for a rational trier of fact to find that Glispie kicked Thompson.

(c) Fleeing or attempting to elude. Glispie was charged with fleeing or attempting to elude by wilfully failing and refusing to bring his vehicle to a stop after having been given a visual and an audible signal by a police officer. Glispie contends that the evidence was insufficient to support his conviction for this charge because the State failed to prove identity. Again, we disagree.

Watts did not observe any of the driver’s facial features, and Glispie argues that Watts’s identification of him as the driver of the vehicle based merely “upon an apparent similarity of clothing and race to that of the perpetrator” was insufficient to establish his identity. Glispie also points out that the vehicle involved in the chase was not registered to him, police did not recover any car keys on his person when they searched him, and police did not recover any of his personal effects in the vehicle.

Identity is a question for the tri[e]r of fact, and where a witness identifies a defendant (whether the identification be based on the defendant’s eyes, clothes, hairline or some intangible factor not capable of description), the credibility of the witness making such identification is not to be decided by this [C]ourt.

Accordingly, Glispie’s contention that Watts’s testimony was insufficient to establish his identity is without merit, and we conclude that the evidence was sufficient to support his conviction for fleeing or attempting to elude.

(d) Failure to stop at a stop sign. Glispie contends that the evidence was insufficient to support his conviction for failing to stop at a stop sign because the State failed to prove venue. We agree.

Our Georgia Constitution requires that venue in all criminal cases must be laid in the county in which the crime was allegedly committed. Venue is a jurisdictional fact, and is an essential element in proving that one is guilty of the crime charged. Like every other material allegation in the indictment, venue must be proved by the prosecution beyond a reasonable doubt. Proof of venue is a part of the State’s case, and the State’s failure to prove venue beyond a reasonable doubt renders the verdict contrary to law, without a sufficient evidentiary basis, and warrants reversal.

“If in any case it cannot be determined in what county a crime was committed, it shall be considered to have been committed in any county in which the evidence shows beyond a reasonable doubt that it might have been committed.”

No witness testified that the intersection of Avalon Boulevard and Ellington Road, where Glispie allegedly drove past a stop sign without stopping, was located in Rockdale County. Accordingly, his conviction for failure to stop at a stop sign must be reversed.

(e) Driving an unsafe and improperly equipped vehicle. Glispie was charged with driving an unsafe vehicle based on the fact that the passenger side headlight of the vehicle he was driving was not functioning. Glispie contends that venue in Rockdale County was not proved as to this offense. We disagree.

The evidence showed that Watts observed the vehicle with one of its headlights not working at the intersection of Flat Shoals Road and Salem Road. Watts followed the vehicle, activating his cruiser’s emergency lights, and the vehicle came to a stop on Avalon Boulevard (off Flat Shoals Road), which area Watts testified was in Rockdale County. But there was no testimony that after reaching Avalon Boulevard, Watts had the opportunity to observe the defective headlight that had initially prompted him to stop the vehicle; the evidence showed that the vehicle was driven away before Watts could make contact with the driver.

Decided November 20, 2015

Reconsideration denied December 8, 2015

Clifford L. Kurlander, for appellant.

Richard R. Read, District Attorney, Roberta A. Earnhardt, Assistant District Attorney, for appellee.

Nevertheless, “the State may establish the essential element of venue by means of direct and circumstantial evidence.” The jury was authorized to infer from the evidence that from the brief period of time that elapsed when Watts observed the vehicle without a working headlight at the intersection of Flat Shoals Road and Salem Road to the time the vehicle came to a stop at the intersection of Flat Shoals Road and Avalon Boulevard, in Rockdale County, the headlight was still not working. Thus, we conclude that the evidence supported Glispie’s conviction on this count.

Judgment affirmed in part and reversed in part.

Boggs, J., concurs. Phipps, P. J., concurs in judgment only.

       OCGA § 16-13-30 (b).

       OCGA § 16-10-24 (b).

       OCGA § 40-6-395 (a).

       OCGA §§ 40-6-72 (b); 40-6-1 (a).

       OCGA § 40-8-7 (a).

       Thompson testified regarding his 13 years of experience in law enforcement, as well as his training and experience in narcotics investigation. The trial court ruled that he was “qualified to talk about the way [he had] encountered drugs being packaged before, and give [his] opinion as to whether or not they [were] held with intent to distribute or for possession.”

       Glispie filed a motion in limine to exclude the text messages, hut the trial court denied the motion and permitted Welch to testify regarding the messages; the printout of the texts was not sent out with the jury.

       See State v. Johnston, 249 Ga. 413, 415 (3) (291 SE2d 543) (1982) (“Amotion in limine is a pretrial motion which may be used two ways: 1) The movant seeks, not a final ruling on the admissibility of evidence, but only to prevent the mention by anyone, during the trial, of a certain item of evidence or area of inquiry until its admissibility can be determined during the course of the trial outside the presence of the jury. 2) The movant seeks a ruling on the admissibility of evidence prior to the trial. The trial court has an absolute right to refuse to decide the admissibility of evidence, allegedly violative of some ordinary rule of evidence, prior to trial. If, however, the trial court decides to rule on the admissibility of evidence prior to trial, the court’s determination of admissibility is similar to a preliminary ruling on evidence at a pretrial conference),] and it controls the subsequent course of action, unless modified at trial to prevent manifest injustice.”) (citations, punctuation, footnote and emphasis omitted).

       OCGA § 17-5-30 (a) (2).

        Young v. State, 282 Ga. 735, 737 (653 SE2d 725) (2007).

       (Punctuation omitted.) State v. Hunter, 282 Ga. 278 (646 SE2d 465) (2007), quoting DeYoung v. State, 268 Ga. 780, 787 (7) (493 SE2d 157) (1997).

       (Punctuation omitted.) Smith v. State, 296 Ga. 731, 734 (2) (a) (770 SE2d 610) (2015), quoting Glenn v. State, 288 Ga. 462, 466 (2) (d) (704 SE2d 794) (2011).

       The affidavit listed the crimes Glispie had been charged with, including two counts of possession of a controlled substance with the intent to distribute.

        Smith, 296 Ga. at 734 (2) (a).

       (Punctuation omitted.) Id., quoting Hunter, 282 Ga. at 278.

       See Smith, 296 Ga. at 734-735 (2) (a) (holding that a magistrate judge had a substantial basis upon which to conclude that there was sufficient probable cause to support a search warrant authorizing the search of the cell phone of the defendant charged with murder, as well as the cell phones of four other individuals involved in the incident); Richbow v. State, 293 Ga. App. 556, 559 (667 SE2d 418) (2008) (“Multiple cell phones along with other elements may he sufficient” “to create a reasonable suspicion of criminal activity.”) See also Johnson v. State, 2015 Ark. 387 (2015) (upholding a search of defendant’s cell phone pursuant to a search warrant because “it is reasonable to infer that the cell phone that was in his possession was used to communicate with others regarding the shootings before, during, or after they occurred”). Compare Brown v. State, 330 Ga. App. 488, 494 (2) (767 SE2d 299) (2014) (reversing the denial of the defendant’s motion to suppress images of child pornography found on defendant’s cell phone because the defendant was suspected only of driving under the influence (“DUI”) and the affidavit filed in support of the search warrant contained no information whatsoever suggesting that the cell phone contained evidence of the DUI or any other crime).

       This case was tried on October 21, 2013. Thus, Georgia’s new Evidence Code, which applies to any motion made or trial commenced after January 1,2013, applies to this case. See Ga. L. 2011, pp. 99, 214, § 101.

       See Burgess v. State, 292 Ga. 821, 823 (4) (742 SE2d 464) (2013).

       (Punctuation omitted.) Williams v. State, 328 Ga. App. 876, 880 (1) (763 SE2d 261) (2014), quoting United States v. Frazier, 387 F3d 1244, 1259 (II) (11th Cir. 2004).

       (Punctuation omitted.) Koules v. SP5 Atlantic Retail Ventures, 330 Ga. App. 282, 287, n. 7 (767 SE2d 40) (2014), quoting Paul S. Milich, Ga. Rules of Evidence, § 7:6 (2014-2015 ed.). See also Moore v. State, 295 Ga. 709, 713 (3) (763 SE2d 670) (2014) (“ ‘Documents from electronic sources . . . are subject to the same rules of authentication as other more traditional documentary evidence and may be authenticated through circumstantial evidence.’ ”).

       (Citation and punctuation omitted.) United States v. Lebowitz, 676 F3d 1000, 1009 (III) (11th Cir. 2012).

        United States v. Sterlin, 466 Fed. Appx. 792, 797 (III) (B) (11th Cir. 2012). See also Burgess, 292 Ga. at 823 (4) (holding that a printout from a screen shot of the defendant’s profile page from a social media website was properly authenticated by the officer who printed the document and testified that the defendant used the nickname displayed on the profile page and that the page contained photographs of the defendant); United States v. Carr, 607 Fed. Appx. 869, 876 (III) (A) (11th Cir. 2015) (text messages sent by defendant were properly authenticated by the records custodian from the cell phone service provider); United States v. Mebrtatu, 543 Fed. Appx. 137, 140-141 (II) (B) (3d Cir. 2013) (holding that text messages taken from the defendant’s cell phone were properly authenticated based on the arresting officer’s testimony that the phone was found on the defendant’s person and based on evidence that some of the text message exchanges referred to the defendant and her boyfriend by name).

       OCGA § 24-8-801 (c).

       (Punctuation omitted; emphasis in original.) Bryant v. State, 288 Ga. 876, 888 (9) (a) (708 SE2d 362) (2011), quoting Teal v. State, 282 Ga. 319, 327 (3) (647 SE2d 15) (2007).

       See United States v. Siddiqui, 235 F3d 1318, 1323 (II) (B) (11th Cir. 2000) (affirming admission of e-mails sent by the defendant as admissions of a party pursuant to Fed. R. Evid. 801 (d) (2) (A)); United States v. Moore, 611 Fed. Appx. 572, 577 (I) (C) (1) (11th Cir. 2015) (“any out-of-court statements made by [the defendant] himself in the intercepted phone calls and text messages constitute prior party admissions”).

       (Punctuation and footnotes omitted.) Gorman v. State, 318 Ga. App. 535, 539-540 (3) (734 SE2d 263) (2012).

        Grissom v. State, 296 Ga. 406, 414 (6) (768 SE2d 494) (2015). See generally Gorman, 318 Ga. App. at 539-540 (3).

       (Footnote omitted.) Lightsey v. State, 316 Ga. App. 573 (730 SE2d 67) (2012).

       (Footnote omitted.) Id. at 574.

       (Citations omitted.) Anderson v. State, 238 Ga. App. 866 (1) (519 SE2d 463) (1999).

       See OCGA § 16-13-30 (b).

       See OCGA § 16-10-24 (a).

       (Citations and punctuation omitted.) Wimberly v. State, 233 Ga. 386, 387 (3) (211 SE2d 281) (1974).

       See id.; OCGA § 40-6-395 (a).

       (Punctuation and footnotes omitted.) Jones v. State, 272 Ga. 900, 901-902 (2) (537 SE2d 80) (2000).

       OCGA § 17-2-2 (h). See Short v. State, 276 Ga. App. 340, 342 (1) (a) (623 SE2d 195) (2005); OCGA § 17-2-2 (e).

       See Bell v. State, 291 Ga. App. 169, 171 (2) (661 SE2d 207) (2008) (reversing conviction where evidence showed that a particular crime occurred at a specified location but there was no evidence that the location was the county of conviction as alleged in the indictment).

        See Alexis v. State, 313 Ga. App. 283, 285 (1) (721 SE2d 205) (2011) (“[w]hile ‘area’near an ‘intersection’ is somewhat vague, the jury was nevertheless authorized to conclude that the officer was using the terms in a broad enough sense to encompass the location of the crime, based upon his familiarity with the area”) (citations and punctuation omitted).

       Bell, 291 Ga. App. at 171 (2).

       See id. (venue was proved where circumstantial proof was sufficient to eliminate every reasonable hypothesis save that crime was committed in county as alleged in indictment).

       See id.; OCGA § 40-8-7 (a).