text:
    A11A0712.
    MATHESON v. BRADEN.
    (713 SE2d 723)
   Miller, Presiding Judge.

This case involves a vicarious liability action brought by Clyta and Howard Matheson (the “Mathesons”) against Mark Braden for injuries the Mathesons received from a vehicle collision caused by Braden’s employee, Daoberto Peres. The trial court granted Braden’s motion for summary judgment, finding that the direct, positive and uncontradicted testimony showed that at the time of the collision, Peres was driving to his own residence for the purely personal purpose of having lunch, and that therefore, there was no genuine issue of material fact as to whether Peres was acting within the scope of his employment at the time the accident occurred. We agree and find that, as a matter of law, Braden cannot be held vicariously liable for the Mathesons’ injuries under the doctrine of respondeat superior.

“Summary judgment is appropriate when the court, viewing all the facts and evidence and reasonable inferences from those facts in a light most favorable to the non-movant, concludes that the evidence does not create a triable issue as to each essential element of the case.” (Citations and punctuation omitted.) Rubin v. Cello Corp., 235 Ga. App. 250, 251 (510 SE2d 541) (1998). On appeal of a grant of summary judgment, we must review the evidence de novo to determine whether the trial court erred in concluding that no genuine issue of material facts remain and that the party was entitled to judgment as a matter of law. Id. at 250.

So viewed, the record reflects that Braden is a farmer/rancher who lives and works on his farm. Braden testified that individuals would often come to his farm looking for work, and that in March 2007, Peres approached Braden’s farm for a job. Braden needed assistance on the farm at that time and hired Peres to perform duties, which included driving a tractor, feeding and working with cows, working on fences, and other general tasks. Every day during the first six months of Peres’ employment, Peres brought his own food and ate his lunch onsite.

Approximately six months after Peres started working at Braden’s farm, Peres informed Braden that the increasing cost of gas was negatively impacting his daily commute to the farm. Given his financial troubles, Peres asked whether he could live in a vacant house that was located in the center of Braden’s farm (hereinafter referred to as the “Farmhouse”). Having deemed Peres as “a dependable worker” and “trustworthy,” Braden agreed to let Peres live at the Farmhouse. Braden’s farm spanned both sides of a four-lane highway, and Braden testified that the Farmhouse is “right there in the center of the farm, and it’s always kind of nice to have someone looking after things, making sure, you know, nobody comes up in the middle of the night.” Once Peres moved into the Farmhouse, Peres would return there for his lunch break every day.

On the morning of June 12, 2008, the date of the collision, Peres had been working on a part of the farm that was located across the highway from the Farmhouse. Peres’ job tasks that day had required him to drive one of Braden’s tractors across the highway to the part of the farm on which Peres was working. Braden testified that when it was time for Peres to break for his 30-minute lunch, he decided that he did not want Peres using the tractor to return to the Farmhouse, stating that it “would take another ten minutes or whatever,” and that “just tire wear on roads, you just. . . try to avoid that.” Accordingly, Braden permitted Peres to use his truck to travel back across the highway to the Farmhouse for lunch. Before Peres reached the Farmhouse, however, he collided with another vehicle driven by the Mathesons.

The Mathesons commenced their personal injury lawsuit against Braden and Peres, contending that Peres was acting as an agent for Braden at the time of the collision. Braden moved for summary judgment, which the trial court granted. In its order, the trial court analyzed Braden’s motion under the burden-shifting framework set forth in Allen Kane’s Major Dodge v. Barnes, 243 Ga. 776, 777-778 (257 SE2d 186) (1979) and concluded that the Mathesons were unable to overcome Braden’s uncontradicted testimony that Peres was driving the truck to lunch at the time of the collision. The Mathesons now appeal from the trial court’s order with respect to the issue of vicarious liability.

The Mathesons argue that there were genuine issues of material fact as to whether Peres was acting within the scope of his employment at the time of the collision. We disagree.

“When a servant causes an injury to another, the test to determine if the master is liable is whether or not the servant was at the time of the injury acting within the scope of his employment and on the business of the master.” (Citation and punctuation omitted.) Hicks v. Heard, 286 Ga. 864, 865 (692 SE2d 360) (2010). “[WJhere a tort occurs while an employee has stepped aside from his employer’s business to do an act entirely disconnected from that business, the employer has no liability.” (Citation omitted.) Nelson v. Silver Dollar City, Inc., 249 Ga. App. 139, 145 (4) (547 SE2d 630) (2001). As such, “Georgia courts have consistently held that where an employee takes a break for lunch and is not otherwise engaged in his employer’s business, the employee is on a purely personal mission.” Gassaway v. Precon Corp., 280 Ga. App. 351, 353 (634 SE2d 153) (2006). Where a tort occurs as a result of a vehicle collision in which the employee was driving his employer’s vehicle, however, the employer’s liability must be analyzed pursuant to the burden-shifting framework espoused by the Supreme Court of Georgia in Allen Kane.

Under this framework, a presumption arises that the employee was acting in the course and scope of his employment at the time of the collision, and the burden is then on the employer to show otherwise. Hicks, supra, 286 Ga. at 865. An employer can overcome this presumption as a matter of law by coming forward with uncon-tradicted evidence showing that the employee was not acting in the course and scope of his employment. Id.; see also Farzaneh v. Merit Constr. Co., 309 Ga. App. 637, 639 (710 SE2d 839) (2011). The employer is thereafter entitled to summary judgment unless “other facts” are proffered — that is, additional evidence other than the fact that the vehicle was owned by the employer — from which a jury could reasonably infer that the employee was acting within the course and scope of his employment when the accident occurred. Farzaneh v. Merit Constr. Co., supra. Where the “other facts” are direct evidence, such is sufficient for the case to go to the jury. Allen Kane, supra, 243 Ga. at 780. Where the “other facts” are circumstantial evidence, however, such evidence will not defeat the employer’s motion for summary judgment, unless it is sufficient to support a verdict in the employee’s favor. Id.

The trial court’s summary judgment order properly applied this burden-shifting analysis to the facts of this case. The fact that Peres was employed by Braden and was driving a vehicle owned by Braden at the time of the collision raised a presumption that Peres was acting in the scope of his employment at the time of the accident. Braden rebutted this presumption by providing uncontradicted testimony that Peres was not acting within the scope of his employment at the time of the collision. The burden then shifted back to the Mathesons to show some “other fact” indicating that Peres was acting within the scope of his employment.

The Mathesons attempted to meet their burden by proffering two “other facts”: (i) that “Peres was instructed to use the truck for specific reasons which provided a benefit to [Braden] (to save time and to avoid wear on the tractor tires)”; and (ii) that “Peres’ mere presence at the house was part of his job for [Braden] and that he was traveling from one job function to perform another.” The Mathesons characterize these purported “other facts” as direct evidence. We disagree. In support of their contention, the Mathesons cite the following testimony given by Braden:

We were working . . . across the highway. I have a farm on both sides of the four-lane. I was over at the work site. . . .
And [Peres] brought the tractor over, which has an endloader on it, brought it across the highway over to that side of the farm. At 12:00 o’clock he — we both knew it was lunchtime, and we — I knew he needed — I was already on the side where the house was ... so I could just walk to lunch.
And at that time I decided it was not — I didn’t want him to take the tractor back across, which would take another ten minutes or whatever. I mean, just tire wear on roads, you just to try to avoid that. And he took my truck . . . across . . .
... To his house, which is across the highway.

They also point to the additional testimony that Braden provided, that “[Peres] asked if he could live [in the Farmhouse], And it is right there in the center of the farm, and it’s always kind of nice to have someone looking after things, making sure, you know, nobody comes up in the middle of the night.”

We believe Braden’s deposition testimony speaks for itself insofar as it shows the Mathesons’ “other facts” fall short of direct evidence — that is, “if true, [they] prove[ ] a fact without inference or presumption.” (Citation and punctuation omitted.) Hicks, supra, 286 Ga. at 868. Rather, the “other facts” proffered by the Mathesons consist only of the inferences they themselves drew from Braden’s deposition testimony. Thus, the Mathesons’ “other facts” are circumstantial evidence. Id. (“Indirect evidence or circumstantial evidence means evidence which only tends to establish the issue by proof of various facts, sustaining by their consistency the hypothesis claimed.”) (Citation and punctuation omitted.).

Moreover, not only is the deposition testimony upon which the Mathesons rely circumstantial evidence, but it is also consistent with the direct, uncontradicted testimony that Braden provided. Accord Allen Kane, supra, 243 Ga. at 781.

Decided July 6, 2011

Circumstantial evidence from which the existence of a fact might be inferred, but which did not demand a finding for the plaintiff to that effect, will not support a verdict when by positive and uncontradicted testimony of unimpeached witnesses, which was perfectly consistent with the circumstantial evidence relied on by the plaintiff, it was affirmatively shown that no such fact existed.

(Citation and punctuation omitted.) Id. Here, the fact that Braden might have expressed a preference for Peres to use Braden’s truck rather than the tractor in returning to Peres’ Farmhouse residence is not inconsistent with Braden’s testimony showing that despite this fact, Peres was on his lunch break and traveling to his residence to eat lunch at the time of the accident in question. Nor is the fact that Peres resided at the Farmhouse or that Braden thought it was “kind of nice to have someone looking after things” inconsistent with Braden’s testimony showing that Peres was not acting within the scope of his employment at the time of the collision. Accordingly, the Mathesons’ circumstantial evidence does not demand a finding that Peres was acting in the scope of his employment. It in fact constitutes nothing more than “mere inconclusive inference[s],” and as such, the Mathesons’ “other facts” are insufficient to survive Braden’s motion for summary judgment.

In sum, the trial court properly analyzed and dismissed this case under the Allen Kane burden-shifting framework. Any presumption raised by the fact that the employee was driving his employer’s vehicle at the time of the collision was overcome as a matter of law through the employer’s positive and uncontradicted testimony that the employee was in fact driving to his own residence for the purely personal purpose of having lunch. Because the Mathesons offered no other evidence from which a jury could reasonably infer otherwise, there was no genuine issue of material fact that the employee was acting outside the scope of his employment at the time of the collision. Accordingly, the employer cannot be held vicariously liable as a matter of law, and the trial court’s grant of summary judgment to the employer was proper.

Judgment affirmed.

Ellington, C. J., and Doyle, J., concur.

Daniel, Hadden & Alford, Peter T Alford, for appellant.

Jenkins, Olson & Bowen, Frank E. Jenkins III, Robert L. Walker, Magruder & Sumner, J. Clinton Sumner, Jr., for appellee.

       The complaint filed by the Mathesons named both Braden and Peres as defendants. The record reflects that subsequent to the vehicle collision with the Mathesons, Peres was arrested for failure to yield and driving without a license. The record further reflects that after Braden bailed Peres out of prison, Peres fled the jurisdiction to his home country of Guatemala and failed to appear for his court date. He was not a party to the underlying summary judgment proceedings and is not a party to this appeal.

       Peres had used Braden’s truck on previous occasions, but such occasions were limited to the purpose of carrying out certain job tasks and only at Braden’s request and with Braden’s permission.

       Thus, the Mathesons’ alternate grounds for liability under respondeat superior, that Peres was allegedly engaged on a “special mission” for Braden at the time of the collision, must also fail as a matter of law.


source: Caselaw Access Project

author: Dillard, Judge.

license: Public Domain

text:
    A11A0739.
    WEEMS v. THE STATE.
    (714 SE2d 119)
   Dillard, Judge.

David Lee Weems was arrested for child molestation and aggravated sexual battery. After 38 months had passed, Weems filed a plea in bar and motion to dismiss the indictment based on a violation of his constitutional right to a speedy trial. Weems now appeals the trial court’s order denying his motion, arguing that the court erred in ruling that his right to a speedy trial had not been violated by the State. For the reasons noted infra, we affirm.

The record shows that Weems was arrested on July 28, 2007, by Paulding County authorities on charges of child molestation and aggravated sexual assault for the molestation of his four-year-old granddaughter. Shortly thereafter, he acquired counsel and was released on bond on August 30, 2007. On October 6, 2009, he was indicted by a Paulding County Grand Jury for aggravated sexual battery and child molestation. Weems waived his arraignment on November 2, 2009, and discovery was served and provided to him on July 20, 2010, based on his election to proceed under the reciprocal discovery statute.

On October 5, 2010, the morning of the calendar call for his trial, Weems filed a plea in bar and motion to dismiss, contending that his constitutional right to a speedy trial had been violated. A hearing on the motion was then held on November 16, 2010, during which Weems and his wife testified regarding the alleged anxiety Weems suffered as a result of the charges. Additionally, one of the State’s prosecutors testified regarding the State’s backlog of cases and identifying same as the cause for the delay in bringing Weems’s case to trial. On November 29, 2010, the trial court denied Weems’s motion. This appeal follows.

In his sole enumeration of error, Weems contends that the trial court erred in denying his plea in bar and motion to dismiss based on the State’s alleged failure to provide him a speedy trial. We disagree.

The United States and Georgia Constitutions both guarantee a criminal defendant the right to a speedy trial and “[t]hese rights attach at the time of arrest or when formal charges are brought, whichever is earlier.” The test for determining whether the constitutional right to a speedy trial has been violated is set forth in Barker v. Wingo and clarified further in Doggett v. United States.

The Barker-Doggett test consists of a two-stage analysis. In the first stage of the analysis, “the court must determine whether the pretrial delay is sufficiently long to be considered presumptively prejudicial.” The pretrial delay is measured from the arrest of the accused or initial formal accusation brought against the accused to the beginning of the trial. In a case where the accused has filed a motion to dismiss the indictment, the delay is measured from the initial formal accusation to the time the trial court denies the motion. And if the trial court finds that the delay has passed the point of presumptive prejudice, it must then engage in the second stage of the analysis, which requires the court to carefully balance four factors to determine if the accused has been deprived of his or her constitutional right to a speedy trial. The four factors that comprise the second stage of the Barker-Doggett test are

(i) whether [the] delay before trial was uncommonly long, (ii) whether the government or the criminal defendant is more to blame for that delay, (iii) whether, in due course, the defendant asserted the right to a speedy trial, and (iv) whether he or she suffered prejudice as the delay’s result.

These factors “do not constitute an exhaustive list; they have no talismanic qualities and must be considered together with such other circumstances as may be relevant given the animating principles behind the speedy trial guarantee.” Indeed, when employing these factors, a court must engage in a difficult and context-sensitive balancing process tailored to the unique circumstances of the case at hand. Furthermore, “we review the trial court’s denial of a motion to dismiss an indictment on speedy trial grounds for abuse of discretion and defer to the trial court’s findings of fact and its weighing of disputed facts.”

1. Presumptive Prejudice. Here, the record shows that 40 months elapsed between Weems’s arrest on July 28, 2007, and the trial court’s ruling on his motion to dismiss on November 29, 2010. The trial court correctly found, and the State concedes, that this 40-month delay raised a threshold presumption of prejudice. Indeed, as a delay approaches one year, it generally is presumptively prejudicial. As a result, the trial court proceeded to the second stage of the analysis, which we will now review.

2. The Barker-Doggett Balancing Test.

(a) Whether the delay was uncommonly long. When addressing the first factor of the Barker-Doggett test, the length of delay plays a different role than in the first stage of this analysis and is not given the same degree of weight. Rather, the length of delay is considered in balance with the three other factors. Nevertheless, Weems contends that the trial court erred in weighing the pretrial delay only slightly against the State and argues that because the length is presumptively prejudicial, this factor should be weighed heavily against the State. However, “presumptive prejudice simply marks the point at which courts deem the delay unreasonable enough to trigger the Barker enquiry.” Indeed, “[t]he mere passage of time is not enough[, without more,] to constitute a denial of due process.” And here, the trial court found that Weems “fail[ed] to show that the delay was purposeful on the part of the [S ítate or that he was harmed by the loss of evidence.” In fact, Weems does not contend that he was injured by a purposeful delay or a loss of evidence. Accordingly, the trial court did not abuse its discretion in weighing the length of the delay only slightly against the State.

(b) Whether the government or the defendant was more to blame for the delay. The State concedes that the cause of the delay in bringing Weems to trial rests solely upon its shoulders, but in doing so notes that the delay was not purposeful. Specifically, the State points to an overcrowded docket and budget constraints as the reason for the delay in bringing Weems to trial. And while “[a] deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government,” there is no evidence that the State intended to hamper Weems’s defense with delay, nor does Weems argue that the delay was caused by anything more than an overcrowded docket. Because there is no evidence that the State deliberately tried to hamper Weems’s defense with delaying his trial, the State’s negligence in not bringing the case to trial sooner is considered “relatively benign.” Thus, the trial court did not abuse its discretion in weighing this factor lightly against the State.

(c) Whether, in due course, the defendant asserted the right to a speedy trial. Weems argues that the trial court erred in weighing the timing of his assertion of his constitutional right to a speedy trial — i.e., the morning of his trial’s calendar call — heavily against him. We disagree.

Given that a defendant may benefit by delaying his trial, “this Court has recognized that a defendant has a responsibility to assert his [or her] right to a speedy trial.” Thus, while a defendant can assert his or her right to a speedy trial at any time before trial, this does not mean the trial court cannot and should not consider the timing of the defendant’s assertion of that right in weighing the factors of the Barker-Doggett test. In fact, “a . . . failure to assert his [or her right to a speedy trial] in a timely manner can be weighed heavily against him [or her] as part of the Barker analysis.” Furthermore, the court can weigh this factor more heavily against a defendant if he or she obtained counsel shortly after being arrested.

Here, Weems — who has had the benefit of counsel since shortly after his arrest — did not file a statutory demand for speedy trial pursuant to OCGA § 17-7-170 and did not assert his constitutional right to a speedy trial until 38 months after his arrest, waiting to do so on the day of his trial’s calendar call. Weems’s failure to assert this right in a timely manner can certainly be weighed heavily against him, and the trial court’s decision to do so does not amount to an abuse of discretion.

(d) Whether the defendant suffered prejudice as a result of the delay. Evaluating the final Barker-Doggett factor, “we consider three interests which the speedy trial right is designed to protect: preventing oppressive pretrial incarceration, minimizing anxiety and concern of the defendant, and, most importantly, limiting the possibility that the defense will be impaired.” The trial court found in favor of the State with regard to all three of these interests. But on appeal, Weems focuses only on the second interest, arguing that the trial court failed to consider or properly weigh the anxiety and concern he suffered as a result of the delay.

When addressing the interest of minimizing the anxiety and concern of the defendant, a court must remember that anxiety and concern “[are] always present to some extent, and thus absent some unusual showing [are] not likely to be determinative in defendant’s favor.” Here, Weems presented some evidence of his alleged anxiety and concern, and he argues that the trial court did not sufficiently take this evidence into account when weighing the fourth factor of the Barker-Doggett test.

Specifically, Weems contends that he has suffered anxiety based on the condition of his bond that no children, including his grandchildren, were allowed to come to his home and visit without supervision. However, Weems presented no specific evidence as to how his inability to have unsupervised visits with his grandchildren, or any other children for that matter, caused him significant anxiety.

Next, Weems asserts that the police confiscated several personal items, including a phone and a few computers, causing him anxiety and concern; but there is no evidence in the record demonstrating that Weems contacted anyone other than his own counsel about retrieving those items.

Weems further argues that he suffered anxiety and concern because he was required to call his bonding company once a week and his agreement with that company prevented him from leaving Georgia. However, these restrictions were not the result of his court-issued bond order, but were instead restrictions placed upon him by his agreement with a private bail bonding company. Additionally, we have previously held that a criminal defendant’s inability to leave the State due to a bond condition is not sufficient to demonstrate the level of anxiety and concern necessary to constitute a violation of a defendant’s speedy trial rights because such restrictions are not unusual for a defendant pending trial. Given Weems’s failure to present evidence of any extraordinary circumstances, we find no abuse of discretion by the trial court here.

Additionally, Weems asserts that he has been unable to find steady work due to the pending charges and bond restrictions. But contrary to his claim, the record shows Weems has been employed by his brother during the relevant time period and that he has not applied for work elsewhere. And even if Weems had been unable to find steady work, there was no evidence demonstrating that his alleged employment struggle was unusual for someone in his circumstance.

Weems also argues that members of his family had to put up three separate homes as collateral for his bond and have faced hardship because they have been unable to refinance or sell their homes during this case. But Weems failed to proffer any evidence that there has been any attempt to sell or refinance these homes, which was thwarted because of his bond.

Finally, Weems claims that the police visited his home on a monthly basis and that he has suffered public ridicule due to the nature of the pending child molestation charges, all of which has caused him great embarrassment. While Weems likely has suffered from public ridicule and embarrassment, he has not demonstrated that this is unusual for someone facing such charges. Furthermore, Weems was already a registered sex offender prior to the State’s filing of the charges in this case. And “[t]his court has recognized that arrest is a public act that may seriously interfere with the defendant’s liberty!.]” While “such general burdens are always present to some extent, they fall short of establishing some unusual showing that would balance this factor significantly, if at all, in [Weems’s] favor.”

Decided July 6, 2011.

Ashleigh B. Merchant, for appellant.

Fred A. Lane, Jr., Eric K. Dunaway, for appellee.

In sum, based on our review of Weems’s claims, we hold that the trial court did not abuse its discretion in finding that he failed to present evidence of any significant anxiety or concern beyond that normally felt by someone facing criminal charges. Furthermore, the fact that Weems never filed a speedy trial demand “suggests that he was not suffering anxiety or stress from the delay.” Consequently, the trial court did not abuse its discretion in not weighing this factor against the State.

(e) Balancing the factors. While we in no way condone the State’s delay in bringing Weems’s case to trial, Weems’s late assertion of his constitutional right to a speedy trial “weighs heavily against him as does his failure to show prejudice in light of such delay.” Thus, after reviewing the trial court’s application of the Barker-Doggett analysis, we conclude that the trial court did not abuse its discretion in finding that Weems’s constitutional right to a speedy trial was not violated and in denying his plea in bar and motion to dismiss the indictment. Accordingly, for all of the foregoing reasons, we affirm the trial court’s ruling.

Judgment affirmed.

Smith, P. J., and Mikell, J., concur.

       OCGA § 17-16-1 et seq.

       A defendant may directly appeal from the pretrial denial of a speedy trial claim. Callaway v. State, 275 Ga. 332, 333 (1) (567 SE2d 13) (2002).

       U. S. Const, amend. VI; Ga. Const. (1983) art. I, § 1, ¶ XI (a).

        Disharoon v. State, 288 Ga. App. 1, 2 (1) (652 SE2d 902) (2007) (citation and punctuation omitted).

       407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972).

       505 U. S. 647 (112 SC 2686, 120 LE2d 520) (1992).

        Ferguson v. State, 303 Ga. App. 341, 342 (693 SE2d 578) (2010) (citation and punctuation omitted).

        Boseman v. State, 263 Ga. 730, 731 (1) (438 SE2d 626) (1994).

        Ferguson, 303 Ga. App. at 342.

        West v. State, 295 Ga. App. 15, 16 (670 SE2d 833) (2008).

        Teasley v. State, 307 Ga. App. 153, 157 (2) (704 SE2d 248) (2010) (citation and punctuation omitted).

        Ferguson, 303 Ga. App. at 343 (2) (citation and punctuation omitted).

        Id.

        Id. at 342 (citation omitted).

        Ferguson, 303 Ga. App. at 343 (1); see also State v. White, 282 Ga. 859, 861 (2) (a) (655 SE2d 575) (2008); State v. Reid, 298 Ga. App. 235, 238 (2) (a) (679 SE2d 802) (2009).

        See Ruffin u. State, 284 Ga. 52, 56 (2) (b) (i) (663 SE2d 189) (2008) (“The length of the pretrial delay in absolute terms plays a role in the threshold determination of presumptive prejudice. However, it also wears another hat as one of the four interrelated criteria that must be weighed in the balance at the second stage of the Barker-Doggett analysis.”).

        Williams v. State, 282 Ga. 561, 563 (4) (651 SE2d 674) (2007) (quoting Doggett, 505 U. S. at 652 n.1 (II)) (punctuation omitted).

        Mize v. State, 209 Ga. App. 15, 18 (3) (432 SE2d 621) (1993) (citation and punctuation omitted).

        Sanders v. State, 132 Ga. App. 580, 583 (2) (208 SE2d 597) (1974).

        Ingram u. State, 280 Ga. App. 467, 469 (1) (b) (634 SE2d 430) (2006) (punctuation and footnote omitted).

        See Ferguson, 303 Ga. App. at 344 (2) (b); see also West, 295 Ga. App. at 17-18 (b) (2) (noting that “although unintentional delay caused by overcrowded dockets, confusion, or the State’s negligence is still a negative that is weighed against the State, it is considered relatively benign and weighed more lightly than deliberate action by the State to harm the defense” (citations and punctuation omitted)).

        Hester v. State, 268 Ga. App. 94, 98 (3) (601 SE2d 456) (2004) (citation and punctuation omitted).

        See Nusser v. State, 275 Ga. App. 896, 898 (622 SE2d 105) (2005).

        Id. (citation omitted).

        See Moore v. State, 294 Ga. App. 570, 573 (1) (c) (669 SE2d 498) (2008). Compare Hester, 268 Ga. App. at 98-99 (3) (holding that the defendant’s untimely assertion of her right could not be weighed heavily against her due to the delay in the appointment of her counsel).

        See Nelloms v. State, 274 Ga. 179, 181 (549 SE2d 381) (2001) (holding that because appellant “did not raise his constitutional right to a speedy trial for the 51 months between his arrest and the filing of his motion to dismiss, in which he finally asserted the right,” the delay in asserting his right must be weighed against him).

        Ferguson, 303 Ga. App. at 345 (2) (d) (citation and punctuation omitted).

        Boseman, 263 Ga. at 733 (1) (d) (citation and punctuation omitted); see also Disharoon, 288 Ga. App. at 5 (1) (d); Christian v. State, 281 Ga. 474, 477 (2) (640 SE2d 21) (2007).

        See Disharoon, 288 Ga. App. at 5-6 (1) (d) (holding that defendant failed to show significant anxiety based on bond condition that prohibited unsupervised contact with anyone under the age of 16). Compare State v. Pickett, 288 Ga. 674, 678 (4) (c) (706 SE2d 561) (2011) (holding that it was within the trial court’s discretion to find that defendant’s bond condition requiring no contact with his children after a five and a half year delay was sufficiently prejudicial).

        See Disharoon, 288 Ga. App. at 5-6 (1) (d) (holding that a defendant’s bond conditions in a related but separate case in another county could not be weighed against the State because the trial court in which the defendant filed his plea in bar could not be held responsible for anxiety over which it had no control).

        See Watkins v. State, 267 Ga. App. 684, 686 (d) (600 SE2d 747) (2004).

        See Watkins, 267 Ga. App. at 686 (d) (holding that a loss of job opportunities due to a pending case is a general burden “always present to some extent” that is insufficient to establish an unusual showing of anxiety).

        Watkins, 267 Ga. App. at 686 (d) (citations and punctuation omitted).

        Id. (citations and punctuation omitted).

        Disharoon, 288 Ga. App. at 5 (1) (d) (citation and punctuation omitted); see also Mesaros v. State, 283 Ga. App. 337, 339 (641 SE2d 559) (2007).

        Ferguson, 303 Ga. App. at 346 (2) (e) (citation and punctuation omitted).


author: Smith, Presiding Judge.

text:
    A11A0769.
    A11A0770.
    A11A0771.
    A11A0772.
    CITY OF ATLANTA v. BENATOR et al. BENATOR et al. v. K & V METER AUTOMATION, LLC et al. K & V METER AUTOMATION, LLC et al. v. CITY OF ATLANTA. METALS & MATERIALS ENGINEERS, LLC v. CITY OF ATLANTA.
    (714 SE2d 109)
   Smith, Presiding Judge.

The consolidated cases in this interlocutory appeal come from a putative class action filed against the city of Atlanta (“the city”), K & V Meter Automation, LLC (“K & V”), Khafra Operations, LLC (“Khafra”), Metals & Materials Engineers, LLC (“MME”), and Neptune Technology Group, Inc. (“Neptune”) by residents who claim they were overcharged for water and sewage use. For the reasons set forth below, we affirm in part, and reverse in part in Case No. A11A0769; affirm in Case No. A11A0770, affirm in part, and reverse in part in Case No. A11A0771; and affirm in part, and reverse in part in Case No. A11A0772.

In their complaint against the defendants, the plaintiffs assert that they were overcharged for water consumption by the city after the city’s contractors (K & V and MME) installed new automatic meter reading technology designed to transmit meter readings to mobile or hand-held devices. They assert that “a programming malfunction in computer software provided by K & V . . . caused a large number of meters to miscalculate water usage . . . ”; that K & V and MME “failed to properly calibrate registers to correspond with the size of meters they were intended to read”; that Khafra improperly estimated water usage; and that the city was refusing to hear appeals from its water customers despite ostensibly providing an appeal process. The plaintiffs also assert that the city

failed to perform a proper investigation and survey of the existing meters prior to starting the project, causing the wrong equipment to be ordered and installed. Of the newly installed or refurbished meters sampled by auditors, more than 75% were found to be damaged in some way. Furthermore, the new meters which were functioning were found to be accurate only 87% of the time, far less than the 100 percent promised by the city.

After filing responsive pleadings, the city, K & V, Khafra, and MME filed motions to dismiss the complaint. In a single order, the trial court granted in whole or in part, and denied in whole or in part the various motions. The trial court granted a certificate of immediate review to MME, the plaintiffs, and the city, and this court granted the parties’ applications for interlocutory review.

In Case No. A11A0769, the city asserts the trial court erred by (1) denying its motion to dismiss each named plaintiff in the putative class action who failed to provide an ante litem notice under OCGA § 36-33-5; and (2) denying its motion to dismiss three counts in the complaint that do not seek money damages under OCGA § 36-33-5. In Case No. A11A0770, the putative class plaintiffs assert the trial court erred by concluding (1) that they were not third-party beneficiaries of the contracts between the city and its contractors (K & Y MME, and Khafra); and (2) that the economic loss rule precluded their negligence claims. In Case Nos. A11A0771 and A11A0772, the city’s contractors contend the trial court erred by denying their motion to dismiss the city’s cross-claims for indemnity and contribution as well as its claim for attorney fees.

Case No. A11A0769

1. The city asserts that the trial court should have granted its motion to dismiss all of the named plaintiffs who failed to provide the required ante litem notice under OCGA § 36-33-5. This statute provides, in relevant part:

(a) No person, firm, or corporation having a claim for money damages against any municipal corporation on account of injuries to person or property shall bring any action against the municipal corporation for such injuries, without first giving notice as provided in subsection (b) of this Code section.
(b) Within six months of the happening of the event upon which a claim against a municipal corporation is predicated, the person, firm, or corporation having the claim shall present the claim in writing to the governing authority of the municipal corporation for adjustment, stating the time, place, and extent of the injury, as nearly as practicable, and the negligence which caused the injury. No action shall be entertained by the courts against the municipal corporation until the cause of action therein has first been presented to the governing authority for adjustment.

The record shows that the ante litem notice sent to the city by the named plaintiffs’ current counsel stated:

The persons filing claims will include at least Mrs. Lisa Cervera Webb and a class of currently unnamed plaintiffs. The class will consist of persons who have been victim to the City Water Department’s erroneous billing practices. . . . Atlanta resident Mrs. Webb has been over-billed an amount in excess of $2,500 over the past few months. Hundreds of other residents have suffered identical treatment.

According to the city, the only named plaintiff for whom this notice was adequate was Mrs. Webb. Because the other named plaintiffs failed to provide the required ante litem notice, the city argues its motion to dismiss those plaintiffs should have been granted.

This is an issue of first impression in Georgia, but existing case law provides guidance. Notice under the ante litem statute must be provided separately for each individual plaintiff in a non-class action lawsuit. See, e.g., Goen v. City of Atlanta, 224 Ga. App. 484, 485-486 (1) (481 SE2d 244) (1997) (rejecting claim that notice provided by a different plaintiff in another case “on behalf of the named plaintiff in that case and all other persons similarly situated” provided adequate notice under the ante litem statute for a plaintiff in a separate lawsuit). But with regard to analogous prerequisites to suit, action taken by a named plaintiff or plaintiffs is sufficient to satisfy the requirement for other unnamed class members generally. See Schorr v. Countrywide Home Loans, 287 Ga. 570, 571 (697 SE2d 827) (2010) (pre-litigation written demand for liquidated damages under former OCGA § 44-14-3); Barnes v. City of Atlanta, 281 Ga. 256, 257-258 (1) (637 SE2d 4) (2006) (pre-litigation claim for tax refund under OCGA § 48-5-380).

Based upon this law, the city concedes that all members of any class certified in the future would be entitled to participate as general class members. See id. It takes issue, however, with the named plaintiff (Webb) contending that she may represent the interests of other named plaintiffs without class certification and in the absence of an ante litem notice naming each plaintiff. Based upon the public policy expressed in both OCGA § 36-33-5 (ante litem notices) and OCGA § 9-11-23 (class actions), we agree.

The Georgia Supreme Court has held that the purpose and intent of the legislature in requiring ante litem notice to a municipality

was fourfold; to afford the officials of an offending city opportunity to investigate the complaint at a time when the evidence relative thereto is calculated to be more readily available, to afford them opportunity, if the complaint relates to a continuing nuisance, to take proper steps to abate it before the effects thereof become great or far reaching, to bar a claimant’s right of recovery for any and all claims arising by reason of matters that may have transpired or existed giving rise to a cause of action on dates more than six months prior to the giving of the required ante litem notice, and to afford the city an opportunity to negotiate a settlement of such claims as it may determine to be meritorious before litigation is commenced, thus protecting the interests of the general public by reducing the exposure of the funds in the city treasury to depletion from growing claims for damages.

City of Gainesville v. Moss, 108 Ga. App. 713, 715 (1) (134 SE2d 547) (1963), overruled on other grounds, City of Chamblee v. Maxwell, 264 Ga. 635, 638 (452 SE2d 488) (1994).

Requiring all of the named plaintiffs in a class action to comply with the ante litem notice requirements of OCGA § 36-33-5 will further the policy expressed in OCGA § 9-11-23 (a) (3), that the claims of the representative be typical of the claims of the class. Additionally, it will promote judicial economy in the event the proposed class is not ultimately certified because the individual claims of any named plaintiff who failed to comply with the ante litem notice provisions would have to be dismissed if attempted class certification fails. Finally, it will promote the public policy embodied in the ante litem statute by providing the city with an opportunity to investigate the individual claims of each named plaintiff seeking to represent the class as a whole. The identity of each named plaintiff may also provide information valuable to the city’s evaluation of the likelihood of class or subclass certification and its potential liability exposure.

Accordingly, we reverse the trial court’s denial of the city’s motion to dismiss the named plaintiffs who failed to comply with the ante litem notice provisions of OCGA § 36-33-5.

2. Named plaintiffs Kristen Edwards and Nannette Fisher urge this court to allow them to remain as named plaintiffs based upon written appeal forms submitted by them to the city which substantially complied with the requirements of OCGA § 36-33-5. We cannot consider the merits of this claim, however, because the alleged appeal forms do not appear in the record before us, and the trial court did not rule upon these contentions. See Atlanta Taxicab &c. v. City of Atlanta, 281 Ga. 342, 352 (5) (638 SE2d 307) (2006) (declining to determine whether party substantially complied with ante litem notice requirements when issue not ruled upon by trial court).

3. The city asserts the trial court erred by concluding that the named plaintiffs’ claims for unjust enrichment (Count 2), money had and received (Count 3), and breach of the city code to the extent it seeks monetary relief (Count 8) are exempt from the ante litem notice requirement because they do not seek “money damages’’ within the meaning of OCGA § 36-33-5. It asserts that all named plaintiffs other than Mrs. Webb should have been dismissed from all counts other than 1, 5, and 9.

The city’s characterization of the trial court’s order is not entirely accurate. The trial court’s order makes no reference to “money damages,” but states instead: “The Court notes the Plaintiffs also argue that ante litem notice is not required in the instant suit because the Plaintiffs do not allege injuries to persons or property but are rather seeking restitution of overpayment of water fees. The Court concurs in this analysis.”

The ante litem notice provides that notice must be given of “a claim for money damages against any municipal corporation on account of injuries to person or property.'” (Emphasis supplied.) OCGA § 36-33-5 (a). The notice must state “the time, place, and extent of the injury, as nearly as practicable, and the negligence which caused the injury.” (Emphasis supplied.) OCGA § 36-33-5 (b). “This statute is in derogation of the common law, which did not require such ante litem notice; therefore it must be strictly construed and not extended beyond its plain and explicit terms.” (Citation, punctuation and footnote omitted.) Neely v. City of Riverdale, 298 Ga. App. 884, 885 (1) (681 SE2d 677) (2009).

The issue before us, therefore, is not merely whether the complaint sought “money damages,” but also whether there has been a claim “on account of injuries to person or property.” OCGA § 36-33-5 (a).

“Property” at common law was limited to tangible realty or personalty, and therefore cannot be extended to include property rights in contracts. ... In the case of claims arising out of contracts, as contrasted with torts, the city, being a party to the contract, is already on notice as to the existence and the circumstances of the contract which is the basis of the claim; therefore the reason for such notice does not exist. Thus, the ante litem notice requirement of OCGA § 36-33-5 is not applicable to suits for breach of contract.

(Citations, punctuation and footnotes omitted.) Neely, supra, 298 Ga. App. at 885-886 (1).

In Count 2 (unjust enrichment), the named plaintiffs assert the city and its water department overcharged them and should be required to return the amounts overcharged. In Count 3 (money had and received), the named plaintiffs seek a refund of amounts overpaid. In Count 8 (breach of city code), the named plaintiffs sought damages “in an amount to be proven at trial” for the city’s failure to properly administer customer appeals.

We find that no ante litem notice was required for the claims asserted in Counts 2, 3, and 8 because they are not claims for injury to person or property. Neely, supra. We therefore affirm the trial court’s denial of the city’s motion to dismiss Counts 2, 3, and 8.

Case No. A11A0770

In this appeal, the plaintiffs assert that the trial court erred by granting the motion to dismiss filed by K & V, Khafra, and MME (collectively “the city contractors”). The trial court granted the motion to dismiss based upon its conclusion “that there is no privity of contract between Plaintiffs and these Defendants; nor can it be said that under Georgia law Plaintiffs are third party beneficiaries of the Contract between the City and [the city contractors]. The Court concurs with [the city contractors] . . . that the economic loss rule prohibits suit in tort in this case as to these purported defendants.”

On appeal, we review the trial court’s grant of a motion to dismiss de novo. South Point Retail Partners, LLC v. North American Properties Atlanta, 304 Ga. App. 419 (696 SE2d 136) (2010).

A motion to dismiss for failure to state a claim upon which relief can be granted should not be sustained unless (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought. In deciding a motion to dismiss, all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party’s favor.

Stendahl v. Cobb County, 284 Ga. 525, 526 (1) (668 SE2d 723) (2008).

4. After viewing the allegations of the plaintiffs’ complaint in this light, we conclude that it fails to allege a viable breach of contract claim against the city contractors as third-party beneficiaries of the contracts between the city and these entities.

The general rule, embodied in OCGA § 9-2-20 (a), requires that an action on a contract “shall be brought in the name of the party in whom the legal interest in the contract is vested. ...” The exception to the general rule allows “[t]he beneficiary of a contract made between other parties for his benefit [to] maintain an action against the promisor on the contract.” OCGA § 9-2-20 (b). “In order for a third party to have standing to enforce a contract under [this Code section] it must clearly appear from the contract that it was intended for his benefit. The mere fact that he would benefit from performance of the agreement is not alone sufficient.” (Citations and punctuation omitted.) Miree v. United States 242 Ga. 126, 135 (3) (249 SE2d 573) (1978). And “although the third-party beneficiary does not need to be specifically named in the contract, the contracting parties’ intention to benefit the third party must be shown on the face of the contract.” (Citations and punctuation omitted.) Donnalley v. Sterling, 274 Ga. App. 683, 685 (1) (618 SE2d 639) (2005) (member of sports team renting facility not third-party beneficiary of rental contract between the team and the property owner).

In the context of contracts entered into with a public entity, our courts have repeatedly recognized that such contracts benefit the public, but these benefits are typically incidental to the contract and do not create third-party beneficiary status. See Miree, supra, 242 Ga. at 135-136 (3) (contract to maintain airport); Backus v. Chilivis, 236 Ga. 500, 501-503 (II) (224 SE2d 370) (1976) (contract to perform tax appraisals); Mitchell v. Ga. Dept, of Community Health, 281 Ga. App. 174, 181 (3) (a) (635 SE2d 798) (2006) (contract to administer state health benefit plan); Page v. City of Conyers, 231 Ga. App. 264, 267-268 (1) (b) (499 SE2d 126) (1998) (customers not third-party beneficiary of franchise agreement for water and sewer services).

(a) With regard to K & V, the plaintiffs support their third-party beneficiary claim by pointing to various contract provisions regarding K & V’s contract responsibilities during installation of the equipment. They also point to the following provision regarding K & V’s meter reading duties: “The Contractor is responsible for ensuring that all City customers and their properties are treated with respect and consideration and providing professional customer service.”

We decline to find that these contract provisions regarding installation and customer service manifest a clear intent to confer the specific benefit claimed by the plaintiffs in this case with regard to the accuracy of their water bills. The named plaintiffs in this case have “no more standing that any other member of the public, and we cannot conclude that the contract was intended for the individual benefit of any claimant.” Miree, supra, 242 Ga. at 136. “Like all contracts entered into by government entities, these agreements benefited all citizens indirectly . . . but these benefits were only incidental. Merely entering into a contract for the benefit of the public does not create third-party beneficiary status under Georgia law.” Page, supra, 231 Ga. App. at 267-268 (1) (b).

(b) The plaintiffs rely upon only one specific contract provision with regard to Khafra, and it is one we have already considered above in Division 4 (a). Specifically, the provision regarding meter reading customer service based upon Khafra’s assumption of K & V’s contractual obligation to perform meter reading. For the same reasons stated in Division 4 (a), we conclude that the plaintiffs were not third-party beneficiaries of the contract between Khafra and K & V

(c) In support of its claim against MME, the plaintiffs point to various provisions in MME’s contract with the city to repair and replace water meters. After reviewing each of these provisions, we find they do not manifest a clear intent to confer the benefit claimed by the plaintiffs in this case for the same reasons stated in Division 4 (a).

Based on all of the above, we affirm the trial court’s grant of a directed verdict to the city contractors on the plaintiffs’ breach of contract claims.

5. The plaintiffs also assert that the trial court erred by granting the city contractors’ motion to dismiss based upon the economic loss rule. They claim the trial court misapplied the rule to the facts of the present case. We disagree.

OCGA § 51-1-11 (a) provides:

Except as otherwise provided in this Code section, no privity is necessary to support a tort action; but, if the tort results from the violation of a duty which is itself the consequence of a contract, the right of action is confined to the parties and those in privity to that contract, except in cases where the party would have a right of action for the injury done independently of the contract and except as provided in Code Section 11-2-318.

“Although a tort is the unlawful violation of a private legal right other than a mere breach of contract, OCGA § 51-1-1, private duties may arise from relations created by contract, and the violation of a private duty accompanied by damage shall give a right of action. OCGA § 51-1-8.” Unger v. Bryant Equipment &c., 255 Ga. 53, 54 (1) (335 SE2d 109) (1985). In negligent construction cases, our courts have concluded that these claims arise “not from a breach of contract claim but from breach of a duty implied by law to perform the work in accordance with industry standards. This cause of action arises in tort and exists independently of any claim for breach of contract.” (Citations and punctuation omitted.) Rowe Dev. Corp. v. Akin & Flanders, Inc., 240 Ga. App. 766, 769 (2) (525 SE2d 123) (1999). See also Schofield Interior Contractors v. Standard Building Co., 293 Ga. App. 812, 814 (668 SE2d 316) (2008) (independent cause of action exists for negligent supervision of construction work).

When an independent cause of action exists and there is no allegation that a product is defective, our courts have traditionally held that “[t]he ‘economic loss’ versus ‘physical damage’ dichotomy that is used in products liability cases can find no application. . . .” (Citations omitted.) Unger, supra, 255 Ga. at 54 (1). More recently, however, both the Georgia Supreme Court and this court have applied the economic loss rule outside of product liability cases. See Gen. Elec. Co. v. Lowe’s Home Centers, 279 Ga. 77 (608 SE2d 636) (2005) (applying economic loss rule to preclude suit for lost profits when land development contract for business expansion cancelled due to alleged contamination by defendant of adjacent non-owned property needed for expansion); J. Kinson Cook of Ga. v. Heery/Mitchell, 284 Ga. App. 552, 555-556 (a) (644 SE2d 440) (2007) (applying economic loss rule to preclude negligent supervision claim seeking recovery for increased costs in construction contract); Remax the Mountain Co. v. Tabsum, Inc., 280 Ga. App. 425, 427-428 (634 SE2d 77) (2006) (precluding tort suit for economic losses caused by damage to real property not owned by plaintiffs). The Georgia Supreme Court reasoned that application of the economic loss rule outside the product liability context was appropriate because it “provides the certainty of a bright-line rule, affords predictability to courts and parties alike, and avoids the unfairness to defendants that would come with duplicative liability for the same damage.” Gen. Elec., supra, 279 Ga. at 80 (2). It appears, therefore, that the economic loss rule can be used to provide guidance here as to whether a claim exists independent of the contract.

The plaintiffs contend that the city contractors violated a duty owed to them independent of the contract based upon the negligent construction cases. In the cases relied upon by the plaintiffs, however, the breach of the duty resulted in damage to or defects in property in which the plaintiffs held a protected interest. See, e.g., Young u. Oak Leaf Builders, 277 Ga. App. 274 (626 SE2d 240) (2006) (property damage to homeowners in form of lost value due to negligent construction of home on easement); Rowe, supra, 240 Ga. App. at 766 (plaintiffs’ parking area deteriorated and collapsed due to defendant’s negligent paving work); Fussell v. Carl E. Jones Dev. Co., 207 Ga. App. 521 (428 SE2d 426) (1993) (property damage in form of construction defects in home owned by plaintiffs).

In this case, the only specific damages alleged by the plaintiffs are overpayments to the city for which they seek a refund. They do not seek damages due to injury to their persons or to their real or personal property. Based upon the particular facts and circumstances of this case, we decline to find the existence of a duty independent of the contract and affirm the trial court’s dismissal of the plaintiffs’ negligence claims against the city contractors.

Case No. A11A0771

K & V and Khafra assert that the trial court erred by denying their motion to dismiss the city’s claims against them for contribution, indemnity, and attorney fees and expenses under OCGA § 13-6-11.

6. We find no merit in K & V and Khafra’s contention that the trial court erred by denying their motion to dismiss the city’s claim for contribution on the ground that “there is no longer a claim for contribution in Georgia.” In support of their argument, they point to the requirement of apportionment in OCGA § 51-12-33 (b):

Where an action is brought against more than one person for injury to person or property, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall after a reduction of damages pursuant to subsection (a) of this Code section, if any, apportion its award of damages among the persons who are liable according to the percentage of fault of each person. Damages apportioned by the trier of fact as provided in this Code section shall be the liability of each person against whom they are awarded, shall not be a joint liability among the persons liable, and shall not be subject to any right of contribution.

(Emphasis supplied.) This Code section does not apply to the case before us because we have already determined that this case does not involve “injury to person or property.”

7. K & V and Khafra assert that the trial court should have dismissed the city’s claim for contractual indemnity. The indemnity provision at issue provides:

In addition to its agreement to obtain and maintain the insurance as set forth herein above, Contractor agrees to indemnify and hold harmless the City of Atlanta, its officers, agents and employees from any and all claims against the City of Atlanta, its officers, agents or employees which arise out of any negligent act or omission of Contractor or any sub-contractor employed by the Contractor or any of their officers, agents or employees, and any and all claims which result from any condition created or maintained by the Contractor or any sub-contractor employed by the Contractor or any of their officers, agents or employees, which condition was not specified to be created or maintained by this Agreement. Contractor further agrees that its agreement to indemnify and hold harmless the City of Atlanta, its officers, agents, and employees shall not be limited to the limits of the liability insurance under this Agreement and the attached specifications.

(Emphasis supplied.)

(a) They assert that this indemnity agreement does not include the plaintiffs’ non-negligence claims against the city because those claims do not “arise out of a negligent act or omission” of a contractor or any sub-contractor as a matter of law. We disagree. “Under Georgia law, where a contract provides that a loss must ‘arise out of’ a specified act, it ‘does not mean proximate cause in the strict legal sense,’ but instead encompasses ‘almost any causal connection or relationship.’ ” (Citations omitted.) Lawyers Title Ins. Corp. v. New Freedom Mtg. Corp., 285 Ga. App. 22, 30 (2) (645 SE2d 536) (2007). Under this analysis, the plaintiffs’ claims against the city could have a causal connection or relationship to the appellant’s negligence even though they are not direct negligence claims against the city or the appellants in the strict legal sense. The trial court did not err by denying this portion of appellants’ motion to dismiss.

(b) K & V and Khafra contend the indemnity agreement should not be construed to indemnify the city for any portion of the city’s negligence. We disagree.

[W]here, as here, an indemnification clause requires indemnification of losses that “arise out of” certain specified events but does not explicitly mention the indemnitee’s negligence, the clause still requires full indemnification although the indemnitee’s negligence may have partially caused the loss.

(Citations omitted.) Lawyers Title, supra, 285 Ga. App. at 30 (2). The plaintiff s complaint sets forth facts from which it could be inferred that their losses resulted from negligent acts on the part of both the city and appellants. The trial court did not err by denying this portion of the appellants’ motion to dismiss.

(c) K & V and Khafra contend this court should conclude that the indemnity agreement is void based upon OCGA § 13-8-2 (b), which provides that an indemnity agreement in a construction contract is against public policy and void if it requires one party to indemnify another “against liability or claims for damages, losses, or expenses, including attorney fees, arising out of bodily injury to persons, death, or damage to property caused by or resulting from the sole negligence of the indemnitee. . . .” (Emphasis supplied.) We find no merit in this contention because as noted in Division 6 above, the damages asserted in this case do not arise “out of bodily injury to persons, death, or damage to property.” Id. See West Side Loan Office v. Electro-Protective Corp., 167 Ga. App. 520 (306 SE2d 686) (1983).

[I]t is well settled that contracts will not be avoided by the courts as against public policy, except where the case is free from doubt and where an injury to the public interest clearly appears. In examining this case we also follow the rule that the courts must exercise extreme caution in declaring a contract void as against public policy and should do so only in cases free from doubt.

(Citations, punctuation and footnotes omitted.) Hayes v. Lakeside Village Owners Assn., 282 Ga. App. 866, 871 (5) (640 SE2d 373) (2006).

8. K & V and Khafra assert the trial court should have dismissed the city’s claim for equitable or common law indemnity. We agree.

The duty to indemnify may arise by operation of law, independently of contract. If a person is compelled to pay damages because of negligence imputed to him as the result of a tort committed by another, he may maintain an action for indemnity against the person whose wrong has thus been imputed to him.

(Citations, punctuation and footnotes omitted; emphasis supplied.) Nguyen v. Lumbermens Mut. Cas. Co., 261 Ga. App. 553, 557 (2) (583 SE2d 220) (2003). Because no allegations of imputed negligence or vicarious liability have been made in this case, “common law indemnity principles do not apply,” and the appellants’ obligations to indemnify are governed by contract. Id. The trial court therefore erred in denying this portion of K & V and Khafra’s motion to dismiss.

9. (a) In their final enumeration of error, K & V and Khafra argue that the city’s claim for attorney fees and expenses of litigation under OCGA § 13-6-11 should have been dismissed because the city failed to assert an independent claim against them. See Waters v. Glynn County, 237 Ga. App. 438, 440 (3) (514 SE2d 680) (1999) (OCGA § 13-6-11 does not create independent cause of action). Based on our holding in Division 7 (a) that the city’s claim for contractual indemnity survives, this argument has no merit.

(b) We likewise find no merit in K & V and Khafra’s contention that the city’s claim for attorney fees and expenses of litigation is subject to a motion to dismiss because the city allegedly “seeks recovery of expenses based solely on events which occurred after the underlying cause of action arose.” At this early stage of the litigation we cannot state “with certainty” what may be shown by the evidence, nor can we conclude that the city cannot recover “under any state of provable facts.” (Citation and punctuation omitted.) Stendahl, supra, 284 Ga. at 525 (1).

Case No. A11A0772

In its appeal, MME asserts the trial court should have granted its motion to dismiss the city’s cross-claims for indemnification and contribution.

10. MME asserts the trial court should have granted its motion to dismiss the city’s claim for equitable or common law indemnity. We agree for the reasons outlined in Division 8 of this opinion.

11. MME argues the trial court should have granted its motion to dismiss the city’s claim for contribution because the contract of indemnity defines “the relationship between the parties.” It cites no direct authority for this proposition, and we decline to so hold at this early stage of the proceedings and in the absence of any other argument as to why the city is not entitled to contribution under OCGA § 51-12-32 (a).

Decided July 6, 2011.

Sutherland, Laurance J. Warco, John H. Fleming, Allegra Lawrence-Hardy, Laura Sauriol-Gibris, Amanda M. Conley, for City of Atlanta.

Webb, Klase & Lemond, Edward A. Webb, Matthew C. Klase, Chamberlain, Hrdlicka, White, Williams & Martin, William L. Pratt, John M. Parsons, for Benator.

Griffin & Strong, Rodney K. Strong, Holland & Knight, Alfred B. Adams III, Vernon M. Strickland, for K & V Meter Automation et al.

12. MME contends that the trial court should have declared the indemnity provision in its contract void for violating public policy under OCGA § 13-8-2 (b). We find no merit in this argument for the same reasons stated in Division 7 (c) of this opinion.

Judgment affirmed in part and reversed in part in Case No. A11A0769. Judgment affirmed in Case No. A11A0770. Judgment affirmed in part and reversed in part in Case No. A11A0771. Judgment affirmed in part and reversed in part in Case No. A11A0772.

Mikell and Dillard, JJ., concur.

       Neptune is not a party to this appeal. The plaintiffs also sued the city of Atlanta Department of Watershed Management, but subsequently consented to its dismissal.

       The complaint sought injunctive relief (Counts 1 and 9), economic damages flowing from trespass to and dispossession of personalty (Count 4), breach of contract (Count 5), damages from negligence (Count 6), damages from fraud (Count 7) , and attorney fees and expenses of litigation under OCGA §§ 9-15-14 and 13-6-11 (Count 10). The city concedes on appeal that no ante litem notice was required for Counts 1, 5, and 9, but makes no argument and cites no authority with regard to Counts 4, 6, 7, and 10. It appears based upon the briefs and argument below that the only contested issue before the trial court related to Counts 2, 3, and 8. We therefore construe the trial court’s order denying this portion of the city’s motion to dismiss as applying only to these contested counts (2, 3, and 8).

       Because the contracts at issue were attached to the pleadings in this case and there is no dispute as to their authenticity, the trial court could properly consider them, and the motion to dismiss did not convert to a summary judgment motion. Milhollin v. Salomon Smith Barney, Inc., 272 Ga. App. 267, 268 (612 SE2d 72) (2005).

       OCGA § 11-2-318 extends warranties under the commercial code to members of a buyer’s family or household. It does not apply here.

       Our opinion in Schofield, supra, 293 Ga. App. at 812, does not alter this conclusion. The opinion is silent as to the interest of the plaintiffs and cites negligent construction cases in which the plaintiff held an interest in the damaged property. Id. at 814. See Howell v. Ayers, 129 Ga. App. 899, 900 (1) (a) (202 SE2d 189) (1973); Fields Bros. Gen. Contractors v. Ruecksties, 288 Ga. App. 674, 676 (1) (655 SE2d 282) (2007).


author: Miller, Presiding Judge.

text:
    A09A2170.
    A09A2171.
    HEDDEN v. THE STATE. HUTTO v. THE STATE.
    (713 SE2d 870)
    Decided July 7, 2011.

      H. Maddox Kilgore, for appellants.
   Miller, Presiding Judge.

In Hedden v. State, 288 Ga. 871 (708 SE2d 287) (2011), the Supreme Court of Georgia reversed the judgment of this Court in Hedden v. State, 301 Ga. App. 854 (690 SE2d 203) (2010). Therefore, we vacate our earlier opinion and adopt the opinion of the Supreme Court as our own.

Judgment reversed.

Barnes, P. J., and Andrews, J., concur.

Garry T. Moss, District Attorney, Lara A. Snow, Assistant District Attorney, for appellee.


text:
    A11A0002.
    CRAWFORD v. LAWYERS TITLE INSURANCE CORPORATION.
    (714 SE2d 137)
   Smith, Presiding Judge.

In the second appearance of this case before us, Linda Crawford appeals from the trial court’s order granting summary judgment to Lawyers Title Insurance Corporation (“Lawyers Title”) in this case involving coverage under a title insurance policy. Crawford contends issues of fact exist with regard to her lack of knowledge of a private access easement in a land purchase insured by Lawyers Title. Based upon both an exclusion in the title policy and Crawford’s actual knowledge of the easement, the trial court properly granted summary judgment in favor of Lawyers Title. We therefore affirm.

Summary judgment is only proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). “A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.” Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

So viewed, the record shows that Crawford purchased the property at issue by way of a warranty deed that stated that the conveyance was made “[s]ubject to all valid and enforceable restrictive covenants, reservations and easements of record applicable thereto.” The policy issued by Lawyers Title expressly provided: “This policy does not insure against loss or damage (and the Company will not pay costs, attorneys’ fees or expenses) which arise by reason of: . . . [a]ny easements or servitudes appearing in the public records.” It is undisputed that an affidavit of easement was filed in the public record for the subject property more than 15 years before Crawford’s purchase. The seller’s property disclosure form listed the easement and Crawford’s real estate agent averred that it would have been his custom and practice to provide the disclosure form to his client. Due to Crawford’s failure to timely answer Lawyers Title’s requests for admissions, she cannot dispute that she had actual notice of the easement based upon her receipt of the seller’s property disclosure form before the closing on the subject property. OCGA § 9-11-36 (b) (request for admission deemed admitted if party fails to answer within 30 days of service); Jackson v. Nemdegelt, Inc., 302 Ga. App. 767, 770-771 (691 SE2d 653) (2010).

Decided July 7, 2011.

John S. Crawford, for appellant.

Crawford sued Lawyers Title based upon her claim that it did not disclose the easement to her before the closing. She admits that she “did not make an independent inspection of the public records of Meriwether County, but relied on the title insurance company to handle this.”

On appeal she asserts that: “As a matter of law Appellant was entitled to rely upon the title insurance policy as a guarantee that there was no easement on the property that was not disclosed by the policy.” While Crawford attempted below to create a genuine issue of material fact with regard to her actual knowledge of the easement before closing, her late-filed response to the requests for admission and affidavits submitted during the summary judgment process cannot be considered. See Jackson, supra, 302 Ga. App. at 770-771 (matters deemed admitted under OCGA § 9-11-36 “ ‘are conclusive as a matter of law on the matters stated and cannot be contradicted by other evidence unless the admissions are withdrawn or amended on formal motion’ [Cits.]”). It is undisputed that Crawford did not seek to withdraw her admissions through the procedure provided in OCGA § 9-11-36 (b).

Based upon Crawford’s actual knowledge of the easement, she cannot establish any detrimental reliance upon any title examination performed on behalf of Lawyers Title. Cf. Hood v. Spruill, 242 Ga. App. 44, 45-46 (1) (b)-(d) (528 SE2d 565) (2000). And, based upon the policy exclusion for easements of public record, she cannot recover under the title insurance contract. See Security Union Title Ins. Co. v. RC Acres, 269 Ga. App. 359, 362 (1) (604 SE2d 547) (2004) (no title insurance coverage for easement based upon specific exclusion of title policy). Therefore, the trial court did not err by granting summary judgment in favor of Lawyers Title.

Judgment affirmed.

Mikell and Dillard, JJ., concur.

Franzen & Salzano, Therese G. Franzen, for appellee.

       In Crawford v. Lawyers Title Ins. Corp., 296 Ga. App. 459 (675 SE2d 232) (2009), we reversed the trial court’s order granting summary judgment to Lawyers Title because the record before the trial court did not include a complete copy of the title insurance policy issued to Crawford. Id. at 460. After this case returned to the trial court, Lawyers Title corrected this deficiency, and the trial court granted its second motion for summary judgment.


text:
    A11A0045.
    COLLINS v. THE STATE.
    (714 SE2d 249)
   Miller, Presiding Judge.

Following a jury trial, Eugene Collins was convicted of six counts of child molestation (OCGA § 16-6-4 (a)) and three counts of aggravated child molestation (OCGA § 16-6-4 (c)). On appeal from the denial of his motion for new trial, Collins contends that the trial court (i) erred in admitting testimony that violated the provisions of the rape shield statute, OCGA § 24-2-3; (ii) erred in admitting similar transaction evidence of his prior 1989 conviction for aggravated child molestation; (iii) erred in denying his motion for a mistrial; and (iv) erred in allowing the State to ask improper voir dire questions. He also contends that his trial counsel rendered ineffective assistance in failing to object to the similar transaction evidence on the basis of its lack of similarity and its prejudicial impact. We discern no error and affirm.

Viewed in the light most favorable to the verdict, Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the trial evidence shows that Collins was the stepfather of the female victim, J. H. Collins married J. H.’s mother in March 2002 and lived in the family residence.

J. H. testified that at some point, when she was between 12 and 13 years old, Collins began molesting her. J. H. stated that one morning after her mother went to work, Collins entered her bedroom and started fondling her breasts and vagina. Collins then pulled down J. H.’s pants, unzipped his own pants, and inserted his penis into J. H.’s vagina. Collins held J. H.’s legs open while he had sexual intercourse with her, which J. H. described as being painful since she “wasn’t used to it” and it was “[her] first time.”

J. H. recounted several additional incidents in which Collins had sexual intercourse with her. She further described multiple incidents in which Collins penetrated her vagina with his finger, made her touch his penis, and made her engage in oral sex.

J. H. disclosed the molestation to three of her friends. She did not disclose the incidents to her mother, however, because she was afraid.

On September 27, 2003, a deputy with the Baldwin County Sheriffs Department responded to a call regarding a domestic dispute between Collins and J. H.’s mother. At that time, J. H. informed the deputy that Collins had been touching her inappropriately. The deputy documented J. H.’s allegations and referred the matter to a detective for further investigation.

On November 12, 2003, the molestation complaint was referred to an investigator with the Baldwin County Department of Family and Children Services (“DFACS”). During an interview with the DFACS investigator, J. H. disclosed the molestation incidents and stated that Collins had threatened to kill her and her family if she ever told her mother about the incidents.

Thereafter, on November 24, 2003, J. H. submitted to a forensic interview and a medical examination. A videotape of the forensic interview was admitted into evidence and played for the jury at trial. The pediatrician who performed the medical examination testified that she had observed a transection or tear with scar tissue on J. H.’s hymen, which was consistent with penetration and sexual abuse.

The State also presented evidence of similar transactions involving Collins’s acts of molestation against other child victims. S. R., a friend of J. H., testified regarding an incident that occurred in 2002, during which Collins had put his hand underneath her skirt and touched her vagina with his finger. S. R. also stated that on two other occasions, Collins exposed his penis to her.

The evidence further reflected that in December 1989, when Collins was 19 years old, he had anal sex with his nine- or ten-year-old male cousin, T. R., which caused the child to be hospitalized with injuries to his anus. Based upon that incident, Collins was charged with aggravated child molestation, and he entered a guilty plea to the offense in 1990. T. R.’s sister, C. R., testified that in 1990, when she was 11 years old, Collins entered her bedroom and touched her breasts.

As a part of his defense, Collins claimed that J. H.’s molestation allegations lacked credibility since she was unable to point to any dates when the incidents allegedly occurred. To the extent that J. H. had claimed that the incidents occurred between the end of July and August 2003, Collins presented witnesses who testified that he had moved out of the residence by that time.

At the conclusion of the trial, the jury returned a verdict finding Collins guilty as charged on all counts.

1. Collins contends that he is entitled to a new trial since the trial court erred in admitting J. H.’s testimony regarding her prior sexual history, reflecting that Collins was the first person with whom she had sexual intercourse. He argues that J. H.’s testimony was akin to stating that she was a virgin before the incident, which violated the provisions of the rape shield statute codified at OCGA § 24-2-3 (a). Notwithstanding his arguments, no ground for reversal has been shown.

In this regard, the record shows that J. H. testified that prior to the medical examination in November 2003, she had engaged in sexual intercourse with Collins and another male. Collins’s counsel requested a bench conference and interposed an objection to the extent that J. H. would be testifying about her virginity and that Collins had been her first sexual partner. After hearing the arguments of counsel, the trial court ruled that the line of questioning would be allowed, but noted Collins’s exception for the record. Upon resuming the direct examination, J. H. was permitted to testify that she had sexual intercourse with the other male after she had sex with Collins.

OCGA § 24-2-3 (a), Georgia’s rape shield statute, provides in pertinent part:

In any prosecution for a violation of . . . Code Section 16-6-4, relating to aggravated child molestation!] . . . , evidence relating to the past sexual behavior of the complaining witness shall not be admissible, either as direct evidence or on cross-examination of the complaining witness or other witnesses, except as provided in this Code section. For the purposes of this Code section, evidence of past sexual behavior includes, but is not limited to, evidence of the complaining witness’s . . . nonchastity[.]

(Punctuation omitted.) As an exception to the statute, however, evidence may be admitted to show that someone other than the defendant penetrated the victim and caused the victim’s injuries. See Tidwell v. State, 306 Ga. App. 307, 311-312 (5) (701 SE2d 920) (2010). Accordingly, we have ruled that evidence relevant to prove the extent of the victim’s injuries caused by the sex act is admissible. Id. However, there is a distinction between proper evidence pertaining to the cause and extent of the victim’s injuries, and improper evidence referring to the victim’s virginity prior to the sex act. See Herndon v. State, 232 Ga. App. 129, 132 (2) (499 SE2d 918) (1998). We have held that the latter amounts to an unnecessary comment on the victim’s prior sexual history and is inadmissible under the rape shield law. Id.

Here, the State contends that the challenged testimony was necessary to explain the pain that the victim felt during the first incident of sexual intercourse with Collins and was required to prove the aggravated child molestation charged in Count 9 of the indictment. The State further notes that no testimony ever referred to the victim as a “virgin.”

“Assuming arguendo the trial court improperly admitted the testimony, the error would have been harmless. By the time [Collins] interposed any objection, the jury had already heard similar testimony from [J. H.] which was admitted without challenge.” (Citations and punctuation omitted.) Maher v. State, 216 Ga. App. 666 (1) (455 SE2d 377) (1995). Significantly, before the challenged testimony was presented, J. H. had testified that during her first incident of sexual intercourse with Collins “[i]t was hurting because [she] wasn’t used to it” and it was her “first time and it was hurting.” Collins did not object to this testimony. Moreover, Collins’s counsel delved further into the issue during his cross-examination of J. H., which highlighted inconsistencies in the alleged dates when she claimed the sexual intercourse with Collins, as opposed to the other male, had occurred. Since the challenged testimony was cumulative of J. H.’s other testimony regarding the same fact, its admission was harmless. See id. See also Osmer v. State, 275 Ga. App. 506, 508 (1) (621 SE2d 519) (2005) (“The admission of cumulative evidence is harmless.”) (punctuation and footnote omitted).

2. Collins further contends that the trial court erred in admitting the similar transaction evidence of his prior 1990 aggravated child molestation conviction. He claims that the evidence was inadmissible because over thirteen years had elapsed since the date of the prior conviction, and because there was no similarity given that the prior incident involved a nine- or ten-year-old male. We disagree.

The exception to the general rule that evidence of other crimes is not admissible has been most liberally extended in the area of sexual offenses: In crimes involving sexual offenses, evidence of similar previous transactions is admissible to show the lustful disposition of the defendant and to corroborate the victim’s testimony. There need only be evidence that the defendant was the perpetrator of both crimes and sufficient similarity or connection between the independent crime and the offenses charged.

(Footnote omitted.) Brown v. State, 275 Ga. App. 281, 284 (2) (620 SE2d 394) (2005).

The trial court conducted a pretrial hearing to determine the admissibility of the similar transaction evidence pursuant to Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991), and ruled that the evidence of Collins’s 1990 guilty plea was admissible for the proper purpose of proving his intent and to corroborate the victim’s testimony. The trial court further ruled that the evidence was sufficiently similar and that its probative value outweighed its prejudicial impact. In addition, the trial court ruled that even having considered the 13-year lapse of time since the conviction, the evidence was nonetheless admissible.

“A trial court’s determination that similar transaction evidence is admissible will not be disturbed absent an abuse of discretion.” (Punctuation and footnote omitted.) Brown, supra, 275 Ga. App. at 284 (2). The trial court did not abuse its discretion in admitting the similar transaction evidence in this case. There is no requirement that similar transactions be absolutely identical to the charged crime. See Perkins v. State, 224 Ga. App. 63, 66 (3) (479 SE2d 471) (1996). The mere difference in the victims’ ages, sex, and specific acts of molestation did not render the similar transaction inadmissible. See Woods v. State, 304 Ga. App. 403, 406 (2) (696 SE2d 411) (2010) (generally, the sexual molestation of children, regardless of the type of act, is sufficiently similar to be admissible as similar transaction evidence; a mere difference in the ages of the victims does not render the evidence inadmissible); Copeland v. State, 276 Ga. App. 834, 835-837 (1) (625 SE2d 100) (2005) (defendant’s prior molestation of a 17-year-old girl was admissible as similar transaction evidence in his subsequent trial for the molestation of a 12-year-old boy). Rather, evidence that Collins had previously molested a child who was substantially younger than him was sufficient to establish the similarity. See id.

Moreover, the 13-year lapse of time between the prior conviction and the crimes at issue in this case did not require exclusion of the evidence. See Hall v. State, 287 Ga. 755, 757 (2) (699 SE2d 321) (2010) (admitting evidence of 13-year and 15-year-old prior incidents as similar transactions). “Where, as here, the similar transaction evidence is otherwise admissible, a time lapse such as this goes to the weight and credibility of the evidence and does not demand its exclusion.” (Punctuation and footnote omitted.) Copeland, supra, 276 Ga. App. at 837 (1).

3. Collins next contends that his trial counsel was ineffective for failing to challenge the similar transaction evidence of his 1990 conviction on the basis of lack of similarity and prejudicial impact. He otherwise acknowledges, however, that a determination that the evidence was properly admitted renders his claim meritless. Having determined that the 1990 conviction was admissible in Division 2 above, Collins’s claim for ineffective assistance of counsel fails.

4. Collins claims that the trial court erred in denying his motion for a mistrial after the DFACS investigator testified that Collins had sex with some of J. H.’s friends.

“We review the denial of a motion for mistrial under an abuse of discretion standard.” (Citation omitted.) Davis v. State, 263 Ga. App. 230, 233 (2) (587 SE2d 398) (2003). It is true that the DFACS investigator’s testimony constituted inadmissible double hearsay. See OCGA § 24-3-1 (a) (defining hearsay); Sullivan v. State, 295 Ga. App. 145, 151 (4) (671 SE2d 180) (2008). Nevertheless, the record reflects that the DFACS investigator’s improper remark was fleeting, unsolicited, and unresponsive to the prosecutor’s examination question. See Boatright v. State, 308 Ga. App. 266, 268 (1) (a) (707 SE2d 158) (2011) (a motion for a mistrial was not required since the improper remarks were fleeting, unsolicited, and unresponsive to the prosecutor’s questions); Quimbley v. State, 276 Ga. App. 174, 175 (1) (a) (622 SE2d 879) (2005) (same). Moreover, any prejudicial impact of the remark was lessened by properly admitted similar transaction evidence that Collins had molested J. H.’s friend, S. R. See Ranalli v. State, 197 Ga. App. 360, 364-365 (4) (398 SE2d 420) (1990). Under these circumstances, the trial court did not abuse its discretion in denying the motion for a mistrial. See id.

Likewise, since Collins did not request curative instructions to address the remark, there is no merit to his complaint that none were given. “In no case will the trial judge’s ruling be reversed for not going further than requested.” (Citations and punctuation omitted.) Davis, supra, 263 Ga. App. at 233 (2). “An assertion that the trial court erred in failing to give a curative instruction is not preserved for review when no curative instruction was requested at trial.” (Citation omitted.) Williams v. State, 236 Ga. App. 503, 504 (512 SE2d 387) (1999).

5. Lastly, Collins asserts that the trial court erroneously allowed the State to ask improper voir dire questions. In this regard, he argues that the following voir dire questions were improper:

Is there anyone on the panel that believes a child should have to physically resist an adult in order to hold the adult accountable? That they have to fight back? Kick, scream, bite, scratch? . . . Would you feel the same way even if the child went willingly?
Is there anyone on this panel [who] is of the opinion . . . that if a child does not disclose immediately, that they are less worthy of belief? ... Is there anyone on the panel [who] is of the opinion that victims always cry? ... Is there anyone on the panel [who] can tell me what they were doing specifically one year ago today? ... So the fact that you don’t specifically remember doesn’t mean that you weren’t at work?
When you have described your event or your son’s event,. . . has there ever come a time that you forgot a date? . . . Has there ever come a time that maybe you forgot some of the details of what happened? . . . Now, because you forgot the details and maybe forgot a date, does that mean that those events didn’t happen?
[I]n your capacity as a supervisor, have you ever had individuals who come before you and they’ve had opposing versions of events and as the supervisor, you had to determine what was the truth and what wasn’t the truth? . . . Were you able to make a determination as to who was telling the truth and who wasn’t? . . . Did you have DNA to help you? . . . Hair fibers?. . . A video tape?

The conduct and scope of voir dire is governed by OCGA § 15-12-133, which pertinently authorizes counsel for either party the right to

inquire of the individual jurors examined touching any matter or thing which would illustrate any interest of the juror in the case, including any opinion as to which party ought to prevail, the relationship or acquaintance of the juror with the parties or counsel therefor, any fact or circumstance indicating any inclination, leaning, or bias which the juror might have respecting the subject matter of the action[.]

Accordingly, counsel are allowed to ask questions which are designed to ascertain the prospective jurors’ ability to treat the cause on the merits with objectivity and freedom from bias and prior inclination. See Stewart v. State, 262 Ga. App. 426, 427 (1) (585 SE2d 622) (2003). However, “[qjuestions of a technical legal nature and questions that call for prejudgment are improper in a voir dire examination.” (Citation and punctuation omitted.) Id. at 427-428 (1).

Decided July 7, 2011.

John H. Bradley, for appellant.

Fredric D. Bright, District Attorney, Charles L. Guerin TV, Daniel B. Cochran, Assistant District Attorneys, for appellee.

Since there is often a fine line between asking potential jurors how they would decide the case and questions that merely seek to expose bias or prejudice, the scope of the voir dire examination, of necessity, must be left to the sound discretion of the trial court. And this Court does not interfere with such discretion absent manifest abuse.

(Citations and punctuation omitted.) Id. at 427 (1).

The challenged voir dire questions, as set forth above, were properly posed by the State “to determine whether [the] prospective jurors had preconceived notions regarding the subject matter of the case[.]” Davis v. State, 264 Ga. App. 128, 133 (3) (589 SE2d 700) (2003). The questions did not ask the jurors to prejudge the evidence or the factual issues in the case. See Childers v. State, 228 Ga. App. 214, 215 (2) (491 SE2d 456) (1997). As such, the trial court did not abuse its discretion in permitting the State to ask the voir dire questions. Id.

Judgment affirmed.

Ellington, C. J., and Doyle, J., concur.

       Although Collins does not enumerate the general grounds as error, we conclude that the evidence was sufficient to sustain his conviction. See OCGA § 16-6-4 (a), (c); Jackson, supra, 443 U. S. 307.

       Prior versions of the rape shield statute provided that it applied only to prosecutions for rape. See Robinson v. State, 308 Ga. App. 562, 566 (708 SE2d 303) (2011). In 2005, the rape shield statute was amended to extend its applicability beyond rape to prosecutions related to aggravated sodomy, aggravated child molestation, and aggravated sexual battery. See Ga. L. 2005, pp. 20, 27, § 13.1/HB 170. The amended statute applies to all trials which commenced on or after July 1, 2005. See Ga. L. 2005, pp. 20, 29, § 17. To the extent that Collins was charged with three counts of aggravated child molestation, for which he was tried in September 2005, the amended statute applied in this case. See id.; Robinson, supra, 308 Ga. App. at 567 (concluding that the amended rape shield statute applies to aggravated child molestation cases, but not to child molestation cases).

       Count 9 of the indictment pertinently charged that Collins had committed the offense of aggravated child molestation by engaging in sexual intercourse with J. H., which caused her to sustain physical injury.

       Compare Maynard v. State, 282 Ga. App. 598, 602-604 (3) (639 SE2d 389) (2006) (concluding that evidence of defendant’s sexual misconduct that occurred 20 years prior was inadmissible since defendant himself was a 12-year-old child at the time of the prior incidents). In the instant case, however, Collins was 19 years old, over the age of majority, when he committed the prior molestation acts. Moreover, the evidence reflected Collins’s pattern of molesting his child family members and their friends. See, e.g., Perkins, supra, 224 Ga. App. at 66 (3).


text:
    A11A0075.
    O’HARA et al. v. GILMORE.
    (713 SE2d 869)
   Miller, Presiding Judge.

Theresa Gilmore filed the underlying complaint against Robert and Sherrie O’Hara (the “O’Haras”) and their daughter, Caitlin, seeking damages for injuries sustained in an automobile accident. Gilmore alleged that Caitlin was liable for the accident under a theory of simple negligence and that the O’Haras were liable under a theory of derivative liability pursuant to the family purpose doctrine. Caitlin filed a special appearance, answer, and motion to dismiss on the grounds of insufficiency of process and the expiration of the statute of limitation. The O’Haras contemporaneously moved for summary judgment, contending that Gilmore’s inability to obtain a judgment against Caitlin foreclosed a derivative claim against the O’Haras for vicarious liability under the family purpose doctrine. The trial court thereafter granted Caitlin’s motion and dismissed her from the lawsuit with prejudice for lack of service and personal jurisdiction pursuant to OCGA § 9-11-12 (b) (2), (4) and (5).

Given its dismissal of Caitlin, the trial court concluded that it could not rule on the issue of whether the running of the statute of limitation barred the underlying action. Consequently, the trial court denied the O’Haras’ summary judgment motion. We granted the O’Haras’ application for interlocutory review from the trial court’s denial of such motion. The O’Haras now appeal, contending that in light of Caitlin’s dismissal, derivative liability against them was precluded. We agree and reverse the trial court’s decision.

“On appeal from the grant or denial of summary judgment, we conduct a de novo review, construing the evidence and all reasonable inferences most favorably to the nonmoving party.” (Citations and punctuation omitted.) Hall v. Hall, 303 Ga. App. 434 (693 SE2d 624) (2010).

So viewed, the evidence shows that the accident at issue occurred on October 18, 2006. Gilmore filed the underlying suit on September 26, 2008, alleging that Caitlin operated her vehicle in a negligent manner, causing her to run into the rear of Gilmore’s vehicle and, in turn, push Gilmore’s vehicle into another vehicle. Gilmore served the O’Haras with process on September 27, 2008. Thereafter, Gilmore traced Caitlin to a California address, but her attempt to serve process on Caitlin there failed. Finding that Gilmore made no additional attempts to serve Caitlin after Caitlin filed her special appearance and answer, which, among other defenses, raised the defense of insufficiency of process, the trial court concluded that Gilmore failed to exercise the “greatest possible diligence” and dismissed her with prejudice. Its denial of the O’Haras’ motion for summary judgment followed.

The O’Haras contend that the trial court erred in denying them summary judgment because Caitlin’s dismissal left Gilmore unable to obtain any judgment against Caitlin for negligence, which, in turn, barred a derivative claim against them as Caitlin’s parents under the family purpose doctrine.

Decided July 7, 2011.

Groth & Makarenko, Nikolai Makarenko, Jr., Laura D. Johnson, for appellants.

John G. Walrath, for appellee.

“Under [the family purpose] doctrine, the owner of an automobile who permits members of his household to drive it for their own pleasure or convenience is regarded as making such a family purpose his business, so that the driver is treated as his servant.” (Citations and punctuation omitted.) Medlin v. Church, 157 Ga. App. 876, 878 (2) (278 SE2d 747) (1981).

The same principles apply to a master and servant when sued jointly in an action based solely on the negligence of the servant... as would apply in cases of joint liability against joint tortfeasors[. Specifically,] the verdict and judgment must be valid against both or it is valid against neither.

(Citations and punctuation omitted.) Id. While the foregoing rule of indivisibility is not absolute in all cases, it is absolute here where, among other things, “some of the tortfeasors . . . are released therefrom for reasons other than on the merits, as shown by . . . evidence . . . such as . . . lack of service. ...” (Citation and punctuation omitted.) Id.

Here, since service was not perfected upon Caitlin, judgment against the O’Haras could not stand as a matter of law. Medlin, supra, 157 Ga. App. at 878 (2). Therefore, the trial court’s denial of the O’Haras’ motion for summary judgment was erroneous.

Judgment reversed.

Ellington, C. J., and Doyle, J., concur.

       We note that the trial court’s dismissal of Caitlin with prejudice was error. A ruling on a motion to dismiss for insufficient service of process does not reach the merits of the case because such deficiency constitutes a defense in abatement. South v. Montoya, 244 Ga. App. 52, 53 (1) (537 SE2d 367) (2000). Nor does it bar further action on an issue. Hemphill v. Con-Chem, Inc., 128 Ga. App. 590, 592 (197 SE2d 457) (1973). Thus, this case should have been dismissed without prejudice.