author: Dillard, Judge.

text:
    A15A1209.
    SCHECTER v. AUTO-OWNERS INSURANCE COMPANY.
    (779 SE2d 69)
   Dillard, Judge.

Micah Schecter appeals the trial court’s denial of his motion for summary judgment in Auto-Owners Insurance Company’s (“Auto-Owners”) suit to recover workers’ compensation benefits that it paid to injured worker David Larios. On appeal, as he argued below, Schecter contends that (1) Auto-Owners’s failure to intervene in Larios’s action against Schecter forfeited the company’s right to enforce a subrogation lien and (2) the terms of Schecter’s settlement agreement with Larios bar Auto-Owners’s suit. Because we agree that Auto-Owners’s failure to intervene in Larios’s action bars its current lawsuit against Schecter, we reverse.

Viewed in the light most favorable to Auto-Owners (i.e., the nonmovant), the record reflects that while acting in the scope of his employment, Larios was injured in an automobile accident with Schecter. Under a workers’ compensation insurance policy that Larios’s employer maintained, Auto-Owners paid benefits to Larios for the injuries he sustained in the collision.

On February 4,2013, Larios filed suit against Schecter to recover damages for pain and suffering. Larios’s complaint explicitly stated that he did not (1) seek to recover workers’ compensation/subrogation damages, or (2) object to the workers’ compensation carrier’s right to join in the action to recover such damages. Nevertheless, Larios’s prayer for relief sought recovery for “special damages for past and future medical expenses and loss of income in the past and future in such an amount as shall be proven at trial[.]”

Thereafter, on March 20, 2013, Auto-Owners filed a motion to intervene in Larios’s action and submitted a proposed order, providing, inter alia, that Auto-Owners not be namedin the style of the case; that Larios be required to “introduce evidence of all special damages at the trial of this action”; that the jury return a special verdict separating the various damages; and that there be a bifurcated trial for subrogation recovery.

Although a signed order granting Auto-Owners’s motion to intervene does not appear in the appellate record, it is undisputed that Auto-Owners was permitted to intervene in Larios’s action. Nevertheless, Larios later moved to set aside and modify the order permitting Auto-Owners to intervene, objecting to “the request for bifurcated trials and [Larios] to sue for intervenor’s special[ ] [damages]” because Larios did “not intend to prove or offer specials in evidence at the trial and does not have any one [sic] to testify to same or the amounts.” In response, Auto-Owners voluntarily dismissed its request to intervene. In doing so, Auto-Owners asserted that its withdrawal was “in no way a waiver or abandonment or should otherwise prejudice of the [sic] subrogation rights” of the company.

On August 13, 2013, while Larios’s lawsuit against Schecter remained pending, Auto-Owners filed suit against Schecter seeking to recover $22,535.98 for indemnity benefits and $122,907.04 for medical bills related to Schecter’s automobile accident with insured-employee Larios. Schecter answered, asserting in defense that Auto-Owners’s suit was barred by its failure to comply with OCGA § 34-9-11.1. On November 22, 2013, Schecter filed a motion to dismiss on those same grounds, but the trial court denied his motion and likewise denied a motion seeking a certificate of immediate review.

Almost one year later, on October 3,2014, Schecter filed a motion for summary judgment against Auto-Owners, making the same argument from his earlier motion to dismiss and also asserting that he had settled the lawsuit brought by Larios, and that the settlement agreement with Larios barred a separate lawsuit by Auto-Owners. Exhibits attached to Schecter’s motion show that Larios dismissed his action with prejudice on November 25, 2013, asserting that a settlement had been reached between the parties, and that on December 11, 2013, Larios signed an agreement to settle the claims that were made in his lawsuit for $600,000. The agreement provided that it satisfied “any and all claims [ ] which were asserted or could have been asserted by [Larios] against Micah Schecter and/or Progressive Northern Insurance Company” in Larios’s lawsuit. The agreement further provided that it was a

full settlement, accord and satisfaction of any and all claims for negligence, abusive litigation, bad faith, fraud, breach of duty, penalties, attorney’s fees or punitive damages, as well as for any and all claims for injuries, damages, costs, interest, expenses and compensation of every kind sustained or which may be hereafter accrued or sustained by [Larios]....

The trial court denied Schecter’s motion for summary judgment, but issued a certificate of immediate review, after which this Court granted Schecter’s application for interlocutory appeal. This appeal follows.

Once again, on appeal, Schecter makes the same contentions before this Court that he made before the trial court, namely that (1) Auto-Owners’s failure to intervene in Larios’s action against Schecter forfeited the company’s right to enforce a subrogation lien and (2) the terms of Schecter’s settlement agreement with Larios bar Auto-Owners’s lawsuit against him. We agree with Schecter that Auto-Owners’s failure to intervene in Larios’s action bars its current lawsuit and, thus, the trial court erred in denying summary judgment to Schecter on this ground.

At the outset, we note that OCGA § 34-9-11.1 provides, in relevant part, that when a third party causes an employee’s injury or death, and the liability of the employer has been fully or partially paid, the employer or the employer’s insurer “shall have a subrogation lien, not to exceed the actual amount of compensation paid pursuant to this chapter, against such recovery.” And to protect this interest, the employer or the employer’s insurer “may intervene in any action to protect and enforce such lien.” But the recovery of the employer or employer’s insurer is

limited to the recovery of the amount of disability benefits, death benefits, and medical expenses paid under this chapter and shall only be recoverable if the injured employee has been fully and completely compensated, taking into consideration both the benefits received under this chapter and the amount of the recovery in the third-party claim, for all economic and noneconomic losses incurred as a result of the injury.

If the injured employee fails to bring suit against the third party within one year, OCGA § 34-9-11.1 (c) permits the employer or such employer’s insurer to “assert the employee’s cause of action in tort, either in its own name or in the name of the employee.” The employee must be given notice if the employer or employer’s insurer files suit, and the employee has the right to intervene. Additionally, if the employee files suit against the third party more than one year after the date of the injury, the employee must give notice to the employer or its insurer, and the employer or its insurer may intervene. But in any event, “if the employer or insurer recovers more than the extent of its lien, then the amount in excess thereof shall be paid over to the employee.”

As we have previously noted, the workers’ compensation statute is in derogation of the common law and, as a result, it must be strictly construed. Moreover, any claim by an employer or its insurer “asserting subrogation rights against a third-party tortfeasor to the extent of workers’ compensation payments made to the employee arises solely by operation of statute.” Thus, an employer or employer’s insurer’s right to seek subrogation is not absolute. And under the express terms of OCGA § 34-9-11.1, Auto-Owners had two options: (1) intervene in Larios’s suit against Schecter, or (2) file suit against Schecter itself if Larios had not filed suit within one year of the injury. With either option, Auto-Owners’s right of action against Schecter was derivative of Larios’s claims, and under the facts of this case, Auto-Owners had no right to pursue its own independent action against Schecter when Larios was already pursuing an action.

A plain reading of the statute evinces that nothing in OCGA § 34-9-11.1 permitted Auto-Owners to file a separate suit against Schecter when a suit by Larios remained pending. Instead, Auto-Owners should have maintained its intervention in Larios’s suit if it wished to enforce and protect its interest in the subrogation lien. Auto-Owners nevertheless argues that because Larios did not seek to recover economic damages in his action against Schecter, Larios’s choice of recovery precluded Auto-Owners from intervening under the statute. But OCGA § 34-9-11.1 permits an employer or employer’s insurer to intervene in “any action,” and requires only that the employee assert “his or her cause of action in tort” before an employer or employer’s insurer may intervene to protect and enforce its lien.

As we have previously held in the context of workers’ compensation subrogation, intervention under OCGA § 34-9-11.1 “gives the intervenors rights against the defendants and the plaintiffs which are analogous to cross-claims.” Furthermore, we have also suggested that “[s]hould an intervenor seek to litigate issues different from those already pending between the parties, to claim additional damages, or to raise additional defenses, .. . the intervenor’s ability to raise these matters would be controlled by OCGA §§ 9-11-21 and 9-11-15 (c).” And finally, although an intervenor’s choice of pleadings or argument “may on occasion conflict with a plaintiff’s choice,” the trial court’s “ability to referee such disagreements and conflicts will have to be decided on a case-by-case basis.”

Decided October 30, 2015

Reconsideration denied November 23,2015

Carlock, Copeland & Stair, Frederick M. Valz III, Melissa L. Bailey, for appellant.

Moore Ingram Johnson & Steele, Christopher C. Mingledorff, Carey E. Olson, for appellee.

We make no pronouncement today as to whether Auto-Owners may pursue recovery from Larios because that question is not before us. We hold only that Auto-Owners’s action against Schecter is barred by its failure to comply with OCGA § 34-9-11.1 and, as such, the trial court erred in denying summary judgment to Schecter.

For all of the foregoing reasons, we reverse.

Judgment reversed.

Ellington, P. J., and McFadden, J., concur.

        See, e.g., Blake v. KES, Inc., 329 Ga. App. 742, 742 (766 SE2d 138) (2014) (“On appeal from the grant of summary judgment this Court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.” (punctuation omitted)).

        But see Canal Ins. Co. v. Liberty Mut. Ins. Co., 256 Ga. App. 866, 870 (1) (570 SE2d 60) (2002) (“Where the employer or insurer has intervened, the bifurcation of the tort action trial and determination of tort damages first is appropriate to avoid revealing to the jury that the employee has already recovered a collateral source, the workers’ compensation benefits. In the first portion of the bifurcated trial, a special verdict form rather than a general verdict should be used to determine what recovery is returned for medical expenses, lost wages, and pain and suffering, because the subrogation cannot he satisfied out of a noneconomic recovery.” (citations omitted)); Hammond v. Lee, 244 Ga. App. 865, 866 (536 SE2d 231) (2000) (noting that employee’s suit against third party, in which insurance company intervened “was tried before a jury and was bifurcated into two phases,” and that in the first phase, the employee’s claim against the third party “was tried before the jury under a ruling by the trial court to omit any reference to the fact that [the employee] had been reimbursed for lost wages and medical expenses by workers’ compensation coverage” and utilized a special verdict form; and in the second phase, the issue was whether the insurance company “was entitled to a subrogation lien pursuant to OCGA § 34-9-11.1 (b) against the amounts recovered by [the employee] in phase one”).

       In contrast with these dates, in the order denying Schecter’s motion to dismiss, the trial court said that Larios’s action was dismissed on December 31, 2013.

       OCGA § 34-9-11.1 (b).

         Id.

        Id.

       OCGA § 34-9-11.1 (c).

        Id.

        Id.

        See Canal Ins. Co., 256 Ga. App. at 867 (1) (“The General Assembly through OCGA § 34-9-11.1 creates a statutory subrogation lien in derogation of common law in the employer or workers’ compensation insurer against any third-party tortfeasor, causing the employee’s injury or recovery.”); Coker v. Deep S. Surplus of Ga., Inc., 258 Ga. App. 755, 756 (574 SE2d 815) (2002) (“Because the Workers’ Compensation Act is in derogation of common law, its provisions must be strictly construed.”).

        Canal Ins. Co., 256 Ga. App. at 867 (1) (punctuation omitted); accord Ga. Star Plumbing v. Bowen, 225 Ga. App. 379, 381-82 (484 SE2d 26) (1997); see also K-Mart Apparel Corp. v. Temples, 260 Ga. 871, 873 (1) (401 SE2d 5) (1991) (“[A]ny subrogation claim which an insurer under the Georgia Workers’ Compensation Act may have against a third-party tortfeasor who has caused the death or disability of an employee arises solely by operation of statute.” (punctuation omitted)).

        Anthem Cas. Ins. Co. v. Murray, 246 Ga. App. 778, 782 (2) (542 SE2d 171) (2000) (“The right of an employer or insurer to seek subrogation under OCGA § 34-9-11.1 is not absolute.”); see also N. Bros. Co. v. Thomas, 236 Ga. App. 839, 839-40 (513 SE2d 251) (1999) (“OCGA § 34-9-11.1, which provides a limited right of subrogation to workers’ compensation providers, was enacted in 1995. No subrogation thereunder could occur unless the injured employee had been fully and completely compensated.”).

        See OCGA § 34-9-11.1 (b), (c); see also Canal Ins. Co., 256 Ga. App. at 869 (1) (“OCGA § 34-9-11.1 is purely a statutory right of subrogation and requires that the subrogation lien be enforced against the third-party tortfeasor either by intervention in the employee’s suit, by suit against the tortfeasor within the statutory terms, or by a claim against the recovery; but the subrogation lien is lost against the third party if there is no suit or intervention in the employee’s suit, and the subrogation lien may only be asserted against the recovery in the hands of the employee after he has been made whole.”).

        See Anthem Ins. Co., 246 Ga. App. at 782 (2) (“In either case, the insurer’s right of action against a third party is derivative of the injured employee’s claim; the insurer has no right to pursue its own independent action against the third party.” (punctuation omitted)); accord Canal Ins. Co., 256 Ga. App. at 868 (1). Cf. Janet Parker, Inc. v. Floyd, 269 Ga. App. 59, 59-62 (603 SE2d 485) (2004) (holding that, notwithstanding fact that employer brought suit in its own name pursuant to OCGA § 34-9-11.1 (c) only for “the liquidated amount that had been paid to [the employee] in workers’ compensation benefits” after employee failed to file his own tort action within one year of injury, employee was not precluded from bringing his own separate action to recover for personal injuries and loss of consortium, but noting that employee received notice of employer’s suit only after filing his own action; suggesting that court in which employer’s action was pending had wrongly denied the employee’s motion to intervene (to which motion employer had objected); noting that if employee had not moved to intervene in other action, employee’s separate action would have been barred by laches; and holding that third-party tortfeasor could move for mandatory joinder of the employer in the employee’s action).

        Cf. Anthem Cas. Ins. Co., 246 Ga. App. at 782 (2) (“[The insurer] did not intervene in [the employee’s] lawsuit against [the third-party tortfeasor]. Instead, [the insurer] voluntarily relinquished its right to participate in the action to protect and enforce its subrogation lien. Nothing in OCGA § 34-9-11.1 gives [the insurer] the right to now file an independent action against [the third-party tortfeasor] for failing to pay the tort judgment to [the insurer], rather than to [the employee], the plaintiff.”).

       OCGA § 34-9-11.1 (a)-(e); see Canal Ins. Co., 256 Ga. App. at 866 (holding that workers’ compensation insurer was required to intervene in injured employee’s tort action to protect and enforce its subrogation lien and could not file a separate action). Cf. Ga. Elect. Mem. Corp. v. Hi-Ranger, Inc., 275 Ga. 197, 197 (563 SE2d 841) (2002) (holding that employee’s limited settlement of claims against third party did not extinguish claims of the insurer when employee and insurer had jointly filed suit against third party and settlement agreement provided that insurer’s claims would remain pending).

        See OCGA § 34-9-11.1 (b) (providing that employer or employer’s insurer “may intervene in any action to protect and enforce” a subrogation lien); see also OCGA § 9-11-24 (a) (1), (2) (“Upon timely application anyone shall he permitted to intervene in an action[ ]... [w]hen a statute confers an unconditional right to intervene; or . . . [w]hen the applicant claims an interest relating to the property or transaction which is the subject matter of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.”); Dep’t of Admin. Svcs. v. Brown, 219 Ga. App. 27, 28 (464 SE2d 7) (1995) (“[The employer] may intervene as of right under OCGA § 9-11-24 (a) (2). [The employer] possesses an interest in [the employee’s] recovery due to its subrogation lien on the workers’ compensation funds it paid [the employee]. As a practical matter, without intervention, [the employer’s] interest could he impaired should [the employee] settle and disperse her award without [the employer’s] knowledge. Nor does it appear that [the employer’s] interests are adequately represented by the existing parties, inasmuch as [the employee] argued below that [the employer] would not be entitled to any recovery if she was not first fully and completely compensated. Intervention is also warranted because under the instant circumstances [the employer] has no right to pursue its own independent action against the third parties.” (citation omitted)). Cf. Kroger v. Taylor, 320 Ga. App. 298, 298 (739 SE2d 767) (2013) (“[When] intervention appears before final judgment, where the rights of the intervening parties have not been protected, and where the denial of intervention would dispose of the intervening parties’ cause of action, intervention should be allowed and the failure to do so amounts to an abuse of discretion.” (punctuation omitted)); Payne v. Dundee Mills, Inc., 235 Ga. App. 514, 515 (1) (510 SE2d 67) (1998) (noting that denial of employee’s motion to intervene would bar his independent tort claim).

       We note, of course, that “[a] party may amend his pleading as a matter of course and without leave of court at any time before the entry of a pretrial order.” OCGA § 9-11-15 (a). And an amendment to a complaint relates back to the original filing date if “it asks for additional damages which arise out of the same transaction or occurrence that is the subject of the initial complaint.” P.F. Moon & Co., Inc. v. Payne, 256 Ga. App. 191, 193 (1) (568 SE2d 113) (2002); see also OCGA § 9-11-15 (c) (“Whenever the claim or defense asserted in the amended pleading arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.”).

       OCGA § 34-9-11.1 (b) (“The employer or insurer may intervene in any action to protect and enforce such lien.” (emphasis supplied)); see also OCGA § 34-9-11.1 (a) (“When the injury or death for which compensation is payable under this chapter is caused under circumstances creating a legal liability against some person other than the employer, the injured employee or those to whom such employee’s right of action survives at law may pursue the remedy by proper action in a court of competent jurisdiction against such other persons, except as precluded by Code Section 34-9-11 or otherwise.”); Janet Parker, Inc., 269 Ga. App. at 59 (“OCGA § 34-9-11.1 (a) provides that even though an employee may recover workers’ compensation benefits, he may still have a right of action against persons, other than the employer, arising out of the circumstances under which the employee was injured.” (punctuation omitted)).

       OCGA § 34-9-11.1 (c) (“If after one year from the date of injury the employee asserts his or her cause of action in tort, then the employee shall immediately notify the employer or its insurer of his or her assertion of such cause of action, and the employer or its insurer shall have a right to intervene.” (emphasis supplied)).

        Int’l Maint. Corp. v. Inland Paper Bd. & Packaging, Inc., 256 Ga. App. 752, 755 (1) (569 SE2d 865) (2002).

        AC Corp. v. Myree, 221 Ga. App. 513, 516 (2) (471 SE2d 922) (1996) (emphasis supplied); see supra note 18. Cf. P.F. Moon & Co., Inc., 256 Ga. App. at 193 (1) (“The issue remains ... as to whether the [injured employee and his wife], as intervenors, can stand in [the employer’s] shoes for purposes of amending the relief sought. Intervention is intended to allow the intervenor to protect its share of the recovery from another’s litigation. But due to the unique situation presented under OCGA § 34-9-11.1, an employee . .. may be intervening not only to secure his interest in any recovery, but also to protect the proper prosecution of his own cause of action. And here, [the employee] seeks only to add an additional damage claim arising out of the same occurrence upon which [the employer’s] complaint was based. Under these circumstances, we find that the claim for pain and suffering is a claim ‘arising out of the conduct, transaction, or occurrence’ set forth in the original complaint pursuant to OCGA § 9-11-15 (c) and may be treated as an amendment by a party plaintiff relating back to the date of the original complaint for statute of limitation purposes.” (citations omitted)).

        Int’l Maint. Corp., 256 Ga. App. at 754 (1); see also Austell Healthcare, Inc. v. Scott, 308 Ga. App. 393, 396 (3) (707 SE2d 599) (2011) (quoting Int’l Maint. Corp. to note that “[w]e have previously held that an intervenor may file ‘whatever briefs, evidence, or other papers it chooses,’ and also ‘may choose discovery tactics different from those of a plaintiff.. ..’ ”).

        Int’l Maint. Corp., 256 Ga. App. at 755 (1).

        Cf. Anthem Cas. Ins. Co., 246 Ga. App. at 778 (considering, after judgment was reached in suit between injured employee and third-party tortfeasor and in which insurer agreed with employee that it would have a subrogation lien against any recovery but would not intervene, whether insurer could recover from employee and third-party tortfeasor for reimbursement of the workers’ compensation amounts paid to employee when neither party paid any amount of the judgment to insurer).


source: Caselaw Access Project

license: Public Domain

text:
    A15A1613.
    DOWDELL v. FITZGIBBON.
    (778 SE2d 414)
   Dillard, Judge.

In this discretionary appeal, Mark Dowdell appeals from the Superior Court of Fulton County’s reversal of a decision by the Fulton County Personnel Board (“the Board”) to suspend his employment with the Fulton County Board of Tax Assessors rather than terminate him. Dowdell argues on appeal that the superior court erred in (1) concluding that the Board had made an “indirect” finding as to his violation of the personnel regulation at issue, (2) holding that the Board lacked the authority to reduce a termination to a suspension, and (3) holding that the Board lacked discretion to reduce the severity of the remedy for the violation at issue. But because neither the record before us nor the record before the superior court contains properly proved personnel regulations, we are constrained to reverse without reaching the merits.

The record reflects that Dowdell was terminated from his employment with the Fulton County Board of Tax Assessors after a meeting with his immediate supervisor and with the deputy chief appraiser who supervises the entire residential staff, including Dowdell and his immediate supervisor. During the meeting, Dowdell was asked about his mishandling of files that were left in a hallway outside of his supervisor’s door. Dowdell became defensive and stood up over his supervisor, yelling at her. The deputy chief appraiser told Dowdell to sit down several times, but he only complied with this directive after the deputy chief appraiser threatened to call security.

David Fitzgibbon, the chief appraiser, investigated the incident and concluded that Dowdell violated three Fulton County personnel regulations and one Fulton County policy. Eventually, Fitzgibbon terminated Dowdell, who appealed to the Board.

After its review, the Board concluded that there was insufficient evidence and testimony to uphold the discipline in connection with two of the three regulations and with the county policy; however, it concluded that the evidence warranted suspension rather than dismissal for Dowdell’s violation of the remaining regulation — i.e., Personnel Regulation 1800, Article 11 (B) — Insubordination. Fitzgibbon then filed a petition for a writ of certiorari in the superior court.

The superior court reversed the Board, concluding that the Board erred as a matter of law by imposing its own less severe discipline despite determining, indirectly, that Dowdell violated Personnel Regulation 1800, Article 11 (B), which was his third offense in less than two years. And according to the superior court, the regulation required dismissal for a third violation. Dowdell then filed an application for discretionary appeal, seeking review of the superior court’s decision, which we granted. This appeal follows.

Initially, we note that the appropriate standard of review to be applied to “issues of fact on writ of certiorari to the superior court is whether the decision below was supported by any evidence.” Then, on appeal to this Court, our duty is “not to review whether the record supports the superior court’s decision but whether the record supports the initial decision of the local governing body or administrative agency.” But in the case sub judice, we are required to reverse without reaching the merits of this appeal because neither the record before this Court nor the record before the superior court contained properly proved copies of the regulations at issue. Indeed, in supplemental briefs — which this Court invited the parties to file in order to address this issue — both parties agree that the record does not contain a certified copy of the relevant personnel regulations.

It is well established that neither this Court, nor the superior courts, may take judicial notice of city or county ordinances, which instead must be alleged and proved. And likewise, “rules and regulations of a state agency, county, municipality, or private agency, unless published by authority, cannot be judicially noticed.” The proper method of proving a county regulation is by production of the original or of a properly certified copy. And here, although copies of the relevant regulations appear in the certified copy of the proceedings before the Board, which were then transmitted to the superior court, a certified copy of the regulations was neither filed with nor tendered to the superior court. Thus, because the record contains “no proper proof of the [relevant personnel regulations], we cannot consider its language.”

The superior court’s order reflects that it found “that there was sufficient evidence to support the ... Board’s finding of insubordination under Personnel Regulation 1800, Article 11 (B); however the Personnel Board made an error of law with regard to the discipline imposed for this third (3rd) instance of insubordination in less than two years.” The superior court then looked to the relevant Fulton County personnel regulations to evaluate their discipline structure and to reach its conclusion that the Board erred as a matter of law by substituting its own judgment to determine the appropriate level of discipline. Then, once again, the superior court concluded that the evidence supported the Board’s conclusion that Dowdell had violated the relevant regulation but, according to the court, the regulation itself provided for the minimum level of discipline in the instance of a third violation.

Decided October 23, 2015

Reconsideration denied November 23, 2015.

Seth N. Katz, for appellant.

Cheryl M. Ringer, Frank M. Gaither, Jr., for appellee.

In looking to the superior court’s order and to the initial briefs by the parties on appeal, it is readily apparent that the issues focus entirely on whether there is sufficient evidence to support the Board’s decision as to whether Dowdell violated specific county regulations and, if so, whether these regulations mandate a particular level of discipline and/or impact any discretion the Board may have in imposing such discipline. But because copies of the regulations at issue were not properly before the superior court, the court erred in basing its decision on those regulations.

Accordingly, for all of the foregoing reasons, we reverse.

Judgment reversed.

Ellington, P. J., and McFadden, J., concur.

        Tax Comm’r of Fulton Cty. v. Williams, 267 Ga.App. 139, 139 (598 SE2d 862) (2004) (punctuation omitted); accord Coweta Cty. v. Henderson, 270 Ga. App. 153, 154 (606 SE2d 7) (2004).

        Williams, 267 Ga. App. at 139 (punctuation omitted); accord Henderson, 270 Ga. App. at 154.

        See Childers v. Richmond Cty., 266 Ga. 276, 277 (467 SE2d 176) (1996) (“[I]t is well established by numerous decisions of this court that judicial notice can not be taken by the superior court or this court of city or county ordinances, but they must be alleged and proved.” (punctuation omitted)); see also Morrow v. Angkawijana, LLC, 327 Ga. App. 1, 5 (1) (755 SE2d 561) (2014) (“[W]e are unable to review the merits of the [appellants’] arguments in this regard because they have failed to prove the Gwinnett County regulations upon which they rely to support their claim. The [appellants] fail to cite us to any certified copy in the record of the Gwinnett County regulations, and we have found none.”).

        Outdoor Sys., Inc. v. Cherokee Cty., 243 Ga. App. 406, 407 (1) (533 SE2d 446) (2000).

        Morrow, 327 Ga. App. at 5 (1); see also Thorsen v. Saber, 288 Ga. 18, 19 (1) (701 SE2d 133) (2010) (“The proper method of proving a city ordinance is by production of the original or of a properly certified copy.”).

        Thorsen, 288 Ga. at 19 (1) (punctuation omitted).

        See, e.g., Childers, 266 Ga. at 277 (“It is well established by numerous decisions of this court that judicial notice can not be taken by the superior court or this court of city or county ordinances, but they must be alleged and proved.”).

        See Barrett v. Sanders, 262 Ga. App. 63, 66 (2) (584 SE2d 676) (2003) (holding that superior court erred in reaching conclusions based upon regulations that were not properly before the court); see also Childers, 266 Ga. at 277 (“[T]he trial court erred in ordering appellants to comply with the terms of an ordinance not properly before the court.”).


author: BARNES, Presiding Judge.

text:
    A15A1544.
    McFARLAND v. ROBERTS et al.
    (778 SE2d 349)
   BARNES, Presiding Judge.

Robert P. McFarland appeals the superior court’s order confirming an arbitration award and entry of judgment against him. He argues that the court erred because the award by the State Bar Committee on the Arbitration of Attorney Fee Disputes (“the Committee”) did not correctly interpret well-established contract law and because one of the parties to which the panel granted the award was not a party to the fee contract. For the reasons that follow, we affirm.

The State Bar’s Fee Arbitration program is designed to provide a convenient mechanism to resolve disputes between lawyers and clients over fees, and is administered by the State Bar Committee on the Arbitration of Fee Disputes (“Committee”). See State Bar Rules, Part VI, Arbitration of Fee Disputes, Preamble, 247 Ga. A-2. A petitioner seeking arbitration, whether lawyer or client, must agree to be bound by the award, [former] Rule 6-201 (h) (4), and the respondent may either agree to be bound or not agree to be bound. The arbitration process differs depending on whether the respondent agrees to be bound by an award or not. If both parties agree to be bound by the arbitration, “the award of the arbitrators is final and binding upon them and may be enforced as provided by the general arbitration laws of the state.” [Former] Bar Rule 6-417.

(Citation omitted.) Farley v. Bothwell, 306 Ga. App. 801, 802 (703 SE2d 397) (2010).

This action arose out of a fee dispute between Doris Roberts and McFarland, her former counsel. The procedural history is complicated. Mrs. Roberts’ executor and widower, Raymond Roberts, filed a petition for fee arbitration with the Committee in July 2008, seeking the return of $30,537 in attorney fees paid to McFarland. Mr. Roberts claimed that McFarland had been hired to recover funds “from Woodrow Thomas Roberts on behalf of the Estate of Laura Mae Smith,” and asserted that the $30,537 fee was not correct because:

(a) Client did not win any judgment or receive any compromise settlement proceeds [;]
(b) Client lost at trial, causing the money previously paid to the attorney to be owed to the Estate of Laura Mae Smith [; and]
(c) The attorney already received real estate commissions for the sale of estate property.

Under former State Bar Arbitration Rule 6-201, the Committee “may” accept jurisdiction over a fee dispute if certain requirements were met, including the client’s agreement to be bound by the results of the arbitration. Former Rule 6-201 (f) and (h) (4). Mr. Roberts agreed to be bound.

McFarland answered the petition, also agreeing to be bound by the results of the arbitration. In his answer, McFarland summarized his representation of Mrs. Roberts after she came to him because she thought that one of her three sons had “taken advantage” of Mrs. Roberts’ mother, Laura Mae Smith, before she died, and had removed money from Smith’s bank account. McFarland explained in his fee arbitration answer that he had “reluctantly” agreed to advance expenses to Mrs. Roberts and accept half of any funds recovered, and drew up the fee contract that Mrs. Roberts signed.

Mrs. Roberts was the only child and sole heir at law of Smith, who was a widow when she died. McFarland subsequently filed a petition in probate court for Mrs. Roberts to obtain Letters of Administration to settle Smith’s estate, and also filed suit in superior court against Mrs. Roberts’ son, seeking to recover $228,000 the son allegedly took from Smith before she died. The probate court issued Letters of Administration to Mrs. Roberts in November 2005, which she used to withdraw $59,666 from two bank accounts that had belonged to Smith. On December 5, 2005, Mrs. Roberts paid McFarland $30,537, representing half of the proceeds from Smith’s bank accounts plus expenses of $1,408, and signed a document McFarland prepared that was titled “Attorney/Client Settlement Agreement.”

In April 2006, Mrs. Roberts’ son filed a petition to probate the Last Will and Testament of Laura Mae Smith, under which Mrs. Roberts’ three sons would share equally in their grandmother’s estate and Mrs. Roberts would get nothing. McFarland filed a caveat to the will on Mrs. Roberts’ behalf. Funds were paid into the registry of the probate court pending resolution of the will’s validity. In January 2007, Mr. Roberts was appointed to serve as Mrs. Roberts’ guardian and conservator. Mrs. Roberts died in May 2007, and Mr. Roberts was appointed as executor of her estate and has continued to represent her interests in these claims.

A jury determined in November 2007 that the will of Laura Mae Smith propounded by Mrs. Roberts’ son was valid, and the probate court admitted the will to probate. The probate court issued letters testamentary to the son, and in February 2008, the probate court ordered the clerk of court to transmit the funds in the court registry to the son as the executor of Smith’s estate. The probate court also granted McFarland’s request to withdraw as counsel of record for Mrs. Roberts.

On November 30, 2007, the day after the probate court jury returned its verdict, McFarland sent a letter to Mr. Roberts, reminding him that Mrs. Roberts had signed a fee agreement on August 4, 2005, that obligated her to pay actual expenses incurred in the litigation regarding Smith’s estate, which totaled $13,161. McFarland asked Mr. Roberts, as Mrs. Roberts’ executor, to make arrangements to pay the debt. In July 2008, Mr. Roberts filed his petition with the Committee, seeking repayment of the $30,537 paid to McFarland from the estate of Laura Mae Smith while Mrs. Roberts was the administrator of that estate. McFarland responded as previously described.

Following a hearing that was not transcribed, the arbitrators issued the following award on July 10, 2009, in favor of Mr. Roberts:

Arbitrators find that a contract is in place. Arbitrators find that the contract was between Doris Geneva Roberts and Robert P. McFarland. Arbitrators find that the contract was a contingent fee contract “in connection with the estate of [Mrs. Roberts’] mother: Laura Mae Smith and proceeding against her son, Woodrow Thomas Roberts.” Contract entitled Mr. McFarland to receive “one half (50%) of the net amount paid in satisfaction of any ultimate judgment or compromise settlement proceeds.” Arbitrators find that on December 5, 2005, an Attorney/Client Settlement Agreement was signed. On that date, Doris Geneva Roberts, in her capacity as administrator of the estate of Laura Mae Smith[,] disbursed $30,537 to Mr. McFarland. Arbitrators find that there was no ultimate judgment or proceeds from a compromise settlement in existence at that time. Therefore, Arbitrators find for Estate of Doris Geneva Roberts, Respondent to refund $30,537 to Estate of Doris Geneva Roberts.

Although he agreed to be bound by the result of the arbitration, McFarland decided to appeal the decision and reconstructed a transcript of the hearing from his recollection as authorized by OCGA § 5-6-41 (c). He hired new counsel, who asked the Committee in July 2009 to determine whether the transcript was correct, but the Committee did not respond.

McFarland’s attorney also asked the State Bar’s director of fee arbitration to file the award with the clerk of the Forsyth County Superior Court, thus initiating a civil action per Rule 6-501. In November 2009, McFarland filed a document titled “Objection of Appellant to Award” in the superior court action. He argued that the court should vacate the arbitration award because under State Bar Arbitration Rule 6-412, the arbitrators had no authority to enter an award contrary to the terms of an executed written contract between the parties unless they find fraud, accident, mistake, or that the contract was contrary to Georgia contract law. McFarland and Mrs. Roberts had two written contracts, he argued, one being their contingency fee agreement and the second being their “Settlement Agreement” disbursing the funds that Mrs. Roberts removed from Smith’s estate while she was the estate administrator. McFarland argued that the arbitrators apparently had determined, incorrectly, that neither contract was valid.

After a hearing in superior court on May 2012, Mr. Roberts filed an “emergency motion for reconsideration and continuance,” asking the superior court to reconsider a proposed ruling it had pronounced orally. The court had pointed out at the hearing that the attorney fees McFarland had collected had not actually belonged to Mrs. Roberts, but had come from bank accounts belonging to Smith’s estate. In his motion, Mr. Roberts asked the court to allow the executor of Laura Mae Smith’s estate to intervene or substitute for Mr. Roberts in the fee arbitration proceeding and then seek a modification of the award so the payment could be properly directed to the estate rather than to Mr. Roberts. Mr. Roberts also filed a motion to join the executor of Smith’s estate as the real party in interest based on the court’s questioning whether Mr. Roberts actually had standing to pursue the claim.

The superior court issued a written order in October 2012, finding that it sat as an appellate court in this proceeding under the authority of the Fee Arbitration Rules adopted by the Supreme Court of Georgia in 1980. The court denied the motion to join Smith’s estate as a party, finding that it had no authority to do so because the Civil Practice Act had no application to the judicial review of an administrative hearing when the superior court sat as an appellate judge. It further denied Mr. Roberts’ motion for reconsideration as premature, as the court had not previously entered a written order. As to the merits of the award, the court determined that under the Fee Arbitration Rules, it could only render a decision “from the record without a de novo trial on the merits” and either affirm, vacate, or “return the award to the arbitrators with specific directions for further consideration.” Rule 6-501.

The trial court chose to return the award, directing the arbitrators to further consider the award in light of specific facts and legal principles set out in the order. Basically, the superior court concluded that the money McFarland had received was not paid to him out of Mrs. Roberts’ personal funds, but out of Smith’s estate, and that Mrs. Roberts obtained the funds while acting as the administrator of Smith’s estate. The cause of action for improper disbursement of estate funds by a previous personal representative vests in the successor personal representative, the court held. Therefore, the issue for the arbitration panel to determine upon remand was whether the successor personal representative of the Smith estate, who was not a party to the arbitration proceedings, could intervene upon remand “as a party who paid [Mrs.] Roberts’ fees for representation by McFarland, pursuant to [Rule 6]-201 (c).”

Former Rule 6-201 provided that the Committee “may accept jurisdiction over a fee dispute only” if certain requirements were satisfied. The trial court wanted the arbitration panel to consider this requirement of the Arbitration Code:

At the time the legal services in question were performed there existed between the lawyer and the client an express or implied contract establishing between them a lawyer/client relationship. A relative or other person paying the legal fees of the client may request arbitration of disputes over those fees provided both the client and the payor join as co-petitioners or co-respondents and both agree to be bound by the result of the arbitration.

(Emphasis supplied.) Former Fee Arbitration Rule 6-201 (c).

The panel reconvened, and a transcript of the June 19, 2013, hearing is included in the appellate record. After determining that the applicable Fee Arbitration Rules were those in place at the prior hearing in March 2009, the panel heard argument and proffers of evidence. McFarland, through counsel, argued that the Rules contained no provision for intervention, no motion had been filed in the arbitration proceedings to add a party, and the record contained no evidence that the party who sought to be added agreed to be bound by the arbitration results. Further, McFarland objected to applying former Rule 6-201, which was no longer in effect after the Rules were amended in December 2012.

McFarland then reviewed the underlying facts of the claim, and proffered that he had recommended that Mrs. Roberts settle the dispute with her sons about Smith’s will by settling for three-quarters of the estate, almost $300,000, but Mr. Roberts, acting on Mrs. Roberts’ behalf under a power of attorney, declined to do so. As noted earlier, a jury then determined that Smith’s will was valid, and the result of that determination was that instead of being a sole heir at law entitled to the entire estate, Mrs. Roberts took nothing under the will. The probate court removed her as the estate administrator and installed one of her sons as the executor of Smith’s estate. McFarland also proffered a list of $13,161 in actual expenses his firm paid to prosecute these cases, in addition to the $1,408 in expenses that had been included in the payment in dispute here. Finally, he argued that if the panel determined he was not entitled to the money based on the parties’ fee agreement, he should be allowed to prove the value of his services under quantum meruit, which would have exceeded the amount he received.

In response, Mr. Roberts’ counsel stated that he was making an oral locum tenens motion to intervene, that the executor of Smith’s estate was present and agreed to be bound by the panel’s determination, and that the superior court remanded this case to the panel because it determined that the Civil Practice Act did not empower the superior court to add parties but the panel did have that authority. Further, Roberts’ counsel emphasized that, while McFarland was arguing that the money came from Smith’s estate and the estate’s claim shouldbe against Mrs. Roberts’ estate rather than her attorney, the panel had already determined the merits and awarded the money. The parties were present before the panel simply “trying to fix the record so that we have an award that the Court can confirm.” Further, McFarland had consented to the panel’s jurisdiction and agreed to be bound by its determination, so the purpose of the hearing was simply to allow the panel to exercise its jurisdiction and substitute a real party in interest. Consonant with former Rule 6-201 (c), Mr. Roberts argued, a person paying the legal fees of the client was permitted to request arbitration of those fees if both the person and the client agreed to be bound by the panel’s decision, which was exactly the issue in this case.

In June 2013, the panel issued a written decision allowing the representative of Smith’s estate to intervene, noting that it had been clear in the first phase of these proceedings that the fees McFarland obtained from Mrs. Roberts had actually come from Smith’s estate. Exercising its power under Rule 6-423 to interpret the Rules related to the arbitrators’ powers and duties, the panel determined that under former Rule 6-201 (c), the estate was permitted to join the claim, as it had agreed to be bound by the arbitration decision. The panel further held that McFarland could not revoke his consent to be bound by the panel’s decision. Subsequently, pursuant to Mr. Roberts’ motion, the panel issued an amended award in October 2013, finding for Mr. Roberts and Smith’s estate, and directing McFarland to refund $30,537 to Smith’s estate.

In January 2014, Mr. Roberts and Smith’s estate petitioned the superior court to confirm the amended arbitration award under OCGA § 9-9-12, asserting that McFarland had not refunded the fee or responded to telephone calls or e-mail messages. This petition was filed under a new civil action number and assigned to a different superior court judge. McFarland responded to the petition and objected to the award, arguing that he had not contracted with Smith’s estate, which had been Mrs. Roberts’ “opponent [ ] in legal matters, not being on the same side.” He further contended that any claim of Smith’s estate was time-barred, that the motion for the amended award was time-barred, that a “compromise settlement” satisfied the fee contract requirements, and that the panel erred by allowing the estate to join the proceedings after the case was remanded by the superior court. McFarland also filed a motion to dismiss the case.

Shortly after a hearing in January 2015, the superior court issued an order confirming the amended award. The court noted that McFarland orally withdrew his motion to dismiss during the hearing, and directed the clerk to enter judgment in favor of the executor of Smith’s estate against McFarland for $30,537.

1. The appellees argue that this court lacks jurisdiction over this direct appeal because it should have been brought by application for a discretionary appeal seeking review of a superior court’s confirmation of an arbitration award issued by the State Bar of Georgia, a governmental agency, citing Beckman v. Black, 170 Ga. App. 193 (316 SE2d 784) (1984). But Mr. Roberts and Smith’s estate brought this appeal under the general arbitration law, OCGA § 9-9-12, not just the Fee Arbitration Rules.

“Rule 6-501 does not provide the exclusive means for enforcing an arbitration award issued by the State Bar arbitration committee in a dispute over attorney fees.” Prince v. Bailey Davis, LLC, 306 Ga. App. 59, 61 (701 SE2d 492) (2010). The Fee Arbitration Rules Preamble and Rule 6-417 provide that, when both attorney and client agree to be bound by the decision, the award is enforceable under the general arbitration laws of the state. Rules Preamble; Rule 6-417; Prince, 306 Ga. App. at 61. Under OCGA § 9-9-16, “[a]ny judgment or any order considered a final judgment under this [Arbitration Code] may be appealed pursuant to Chapter 6 of Title 5.” As the superior court has issued a final order and judgment in this case, “we conclude that this appeal is from a final judgment directly appealable under OCGA § 5-6-34 (a) (1).” Torres v. Piedmont Builders, Inc., 300 Ga. App. 872, 872-873 (686 SE2d 464) (2009).

Decided October 1, 2015

Reconsideration denied November 24, 2015

Robert P. McFarland, Sr., pro se.

2. McFarland argues that the trial court erred in confirming the arbitration award because the three-attorney panel “did not correctly interpret well[-] established contract law” and because one of the parties to whom the award was made was not a party to the fee contract. We find no error.

Pretermitting the validity of all of the preceding proceedings, McFarland’s objections to the amended award were filed too late. After the panel issued its amended award, Mr. Roberts and the Smith estate filed a timely application in superior court under OCGA § 9-9-12 to confirm the award within one year of its delivery to them. McFarland filed an objection to the award in March 2014. Aparty who seeks to modify or vacate an arbitration award must file an application to the court “within three months after delivery of a copy of the award to the applicant.” OCGA §§ 9-9-13 (a), 9-9-14 (a). The amended award was issued in October 2013, and McFarland’s objection to the award was filed in March 2014, well outside the three-month statutory time limit allowing such a claim. See Fulton County v. Lord, 323 Ga. App. 384, 390-391 (2) (746 SE2d 188) (2013); Cypress Communications, Inc. v. Zacharias, 291 Ga. App. 790, 793-795 (2) (662 SE2d 857) (2008); cf. Galindo v. Lanier Worldwide, Inc., 241 Ga. App. 78, 84 (4) (526 SE2d 141) (1999) (construing similar provision in Federal Arbitration Act, defenses that were raised in response to confirmation petition more than three months after arbitration award issued were untimely). Accordingly, the trial court did not err in confirming the award.

Judgment affirmed.

Ray and McMillian, JJ., concur.

Sutherland, Asbill & Brennan, Samuel J. Casey, for appellees.

       The State Bar Rules related to fee arbitration were amended in their entirety effective December 1, 2012. The rules followed by the arbitration panel throughout these proceedings were those in effect before the December 1, 2012, amendments.

       Mr. Roberts actually signed the document under a Power of Attorney Mrs. Roberts signed on December 5, 2005.

       Locum tenens is a Latin phrase that means “holding the place,” and it connotes “a deputy; a substitute; a representative.” Black’s Law Dictionary 1025 (10th ed. 2014).

       An order simply confirming an arbitration award is not a final, appealable judgment, and until recently, this court required the confirmation order and the final judgment on an arbitration award to be entered on separate documents. In Green Tree Servicing, LLC v. Jones, 333 Ga. App. 184, 185 (1) (775 SE2d 714) (2015), however, we determined that, “although OCGA § 9-9-15 of the Georgia Arbitration Code (GAC) contemplates entry of a judgment separate from the order confirming the award, it does not require that the order and the judgment be entered on separate documents.” Accordingly, we have jurisdiction to consider McFarland’s appeal.


text:
    A15A1608.
    PLATT v. THE STATE.
    (778 SE2d 416)
   BARNES, Presiding Judge.

This case arises out of a gunfight that resulted in the death of two of the shooters. Based on circumstantial evidence of his role as a party to the crimes that were committed, a jury found James Platt guilty of voluntary manslaughter and other related offenses. Platt filed a motion for new trial, as amended, which the trial court denied. On appeal, Platt challenges the sufficiency of the evidence to support his convictions and contends that the trial court erred by failing to strike a prospective juror for cause. For the reasons discussed below, we affirm.

1. In reviewing Platt’s challenge to the sufficiency of the evidence, we ask only “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citation omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 660) (1979). The jury rather than this Court “resolves conflicts in the testimony, weighs the evidence, and draws reasonable inferences from basic facts to ultimate facts.” Butler v. State, 284 Ga. App. 802, 803 (644 SE2d 898) (2007). “So long as there is some competent evidence, even though contradicted, to support each element of the State’s case, the jury’s verdict will be upheld.” McLeod v. State, 246 Ga. App. 668, 669 (1) (538 SE2d 759) (2000).

Viewed in this manner, the record shows that on the afternoon of September 28, 2009, Antonio Clark, Jarrett Dixon, and an unidentified third male entered an apartment in Sandy Springs where they engaged in a gunfight with several men, including Delman Higuera-Hernandez, who lived in the apartment, and his associate, Santos Palacios-Vasquez. When the police arrived at the apartment after the gunfight, they found the walls riddled with bullet holes and blood stains inside and outside the apartment. Shell casings from four different types of ammunition were scattered through several rooms. A box of .380 ammunition was in a bedroom closet. Cocaine, digital scales, and other drug-related paraphernalia were in the hallway closet, dining room, and kitchen.

Most of the men involved in the gunfight had fled by the time the police arrived. However, when the police entered the apartment, they discovered the fatally wounded Clark and Palacios-Vasquez on the floor. Clark had been shot in the head with a .380 caliber pistol and was taken to the hospital, where he died later that evening. Palacios-Vasquez had been shot multiple times, including in the chest with a 5.7 mm pistol, and was pronounced dead at the scene. Dixon was no longer at the apartment when the police arrived, but a blood stain from the hall bathroom was tested and matched his DNA profile.

Defendant Platt was friends with Clark and Dixon, and he lived with Dixon in Decatur. On the day of the gunfight, Clark had been dropped off by his girlfriend at the residence of Platt and Dixon. It is undisputed that Platt was not inside the Sandy Springs apartment later that day when the gunfight occurred. However, the State argued that Platt was an accomplice of Clark, Dixon, and the unidentified third male who had entered the apartment and engaged in the gunfight with Palacios-Vasquez and his associates. The State contended that Platt had provided his Infiniti for use in the encounter and had waited outside the apartment in his silver Grand Prix while the other three men went inside. Because no participants or eyewitnesses to the gunfight testified at trial, the State relied upon circumstantial evidence gathered by the police during their investigation to link Platt to the gunfight, as discussed below.

Platt’s Infiniti at the Apartment. Clark did not own a car, but would sometimes borrow one of Platt’s cars. Platt had an Infiniti sport sedan. After the gunfight, the police photographed Platt’s Infiniti parked outside the Sandy Springs apartment as part of their processing of the crime scene. After connecting the Infiniti to the case and obtaining a search warrant, the police searched the car, which by then had been driven back to Platt’s residence, and the police seized a box of 5.7 mm ammunition with blue polymer tips from the glove compartment. The State’s expert firearm examiner later testified that blue polymer tips are uncommon in pistol rounds.

Multiple 5.7 mm cartridge cases were recovered from the Sandy Springs apartment. The State’s firearm examiner testified that all of the 5.7 mm cartridge cases were shot from the same handgun. Palacios-Vasquez was shot with 5.7 mm ammunition, and the State’s forensic pathologist extracted a blue polymer tip from his chest cavity.

The Apartment Neighbor. In addition to the Infiniti, Platt had a silver Pontiac Grand Prix. Clark’s girlfriend saw the Grand Prix parked outside Platt’s residence on the day of the gunfight when she dropped Clark off there.

A neighbor in the same Sandy Springs apartment building was at home later that day when the gunfight occurred. Sometime between 3:30 p.m. and 4:00 p.m., the neighbor recalled hearing “unusually loud thumping or noisy sounds” coming from another apartment followed by loud footsteps on the outside staircase. The neighbor looked out the window and saw two men coming from the direction of the staircase jump into the passenger seats of a silver car that had approached the apartment building at a high rate of speed. Because the windows of the car were tinted, the neighbor was unable to identify the driver, but she was able to generally describe the two men who jumped into the car by race, age, and clothing. The car sped off after picking up the two men.

The Grady Hospital Surveillance Footage. The police obtained video surveillance footage from Grady Hospital in Atlanta, which was about 17-18 minutes from the Sandy Springs apartment, that corroborated the testimony of the apartment neighbor. The video footage showed Platt, Dixon, and an unknown male getting out of a silver car, consistent in appearance with a Grand Prix, outside Grady Hospital at 4:08 p.m. Platt and the unknown male are then seen carrying Dixon into the hospital, where he was treated for a gunshot wound to his chest. The appearance of Dixon and the unknown male on the video was consistent with the neighbor’s general description of the men who jumped into the silver car outside the apartment.

Platt left the hospital after dropping off Dixon for treatment. A white t-shirt with Dixon’s blood on it was later found at Platt’s residence when the police executed a search warrant there.

The Cell Phone Records. The police obtained cell phone records for several phones associated with the gunfight, including cell phones linked to Dixon and Clark. The records reflected that on the day of the gunfight, Dixon sent a text message to Clark at 3:22 p.m., informing Clark that “we went 2 da apt across da street” and that Clark should meet them there. Then, at 3:41 p.m., Clark sent a text message to Dixon informing him that an “amigo” was “on the steps” and “we right here already.” Cell phone tower information for the two phones indicated that the text messages were sent and received in Sandy Springs.

Calls made to and from a prepaid cell phone with the number 404-510-0981 appeared on both Clark and Dixon’s cell phone records. Cell phone records for the 404-510-0981 number showed several calls with Clark and Dixon on the day of the gunfight, including a number of calls in quick succession from 3:42 p.m. until 3:51 p.m., the time period when the gunfight occurred.

Cell phone tower information for the 404-510-0981 number showed that the holder of the cell phone was in Sandy Springs at the time of the aforementioned calls, and that the phone was pinging off the same cell phone tower as the cell phones of Dixon and Clark. The cell phone tower information further showed that, after the gunfight occurred, the holder of the phone traveled south to the area of Grady Hospital. Additionally, cell phone records for the 404-510-0981 number showed that there were two calls with Platt’s girlfriend shortly after 4:00 p.m.

At trial, the State argued that the prepaid cell phone associated with the 404-510-0981 number belonged to Platt. To support its argument, the State relied upon the cell phone tower information and the phone records reflecting calls with Clark, Dixon, and Platt’s girlfriend.

Based on the circumstantial evidence of his role in the gunfight, Platt was indicted and tried on two counts of malice murder for the shooting deaths of Palaeios-Vasquez and Clark, and two counts of possession of a firearm during the commission of a felony, among other offenses related to the gunfight. At the close of trial, the trial court instructed the jury on the charged offenses and on voluntary manslaughter as a lesser included offense of the malice murder charges. The court also instructed the jury on the law of party to a crime. The jury found Platt guilty of two counts of voluntary manslaughter and of the two firearm possession counts.

(a) Platt contends that the circumstantial evidence was insufficient to support his convictions as a party to the crime of voluntary manslaughter. He maintains that the State’s evidence was based “solely on assumptions and inferences” and did not prove that he was “waiting in the parking lot for Dixon, Clark, and the unidentified male.” Platt further maintains that even if there was evidence from which a jury could find that he was parked outside the apartment, the evidence showed nothing more than his mere presence at the scene and failed to rule out every other reasonable hypothesis except his guilt. We are unpersuaded.

A jury can find a defendant guilty of voluntary manslaughter

... when he causes the death of another human being under circumstances which would otherwise be murder and if he acts solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable personf.]

OCGA § 16-5-2 (a).

“If, upon a sudden quarrel, the parties agree to a fight, and one of them is killed, such killing is voluntary manslaughter, no matter who strikes the first blow.” (Citation and punctuation omitted.) White v. State, 179 Ga. App. 276, 277 (1) (346 SE2d 91) (1986). “A mutual intention to fight need not be proved directly, but may be inferred by the jury from the conduct of the parties.” (Citations and punctuation omitted.) Harris v. State, 183 Ga. App. 219, 220 (1) (358 SE2d 634) (1987). If there is any evidence that both parties were armed and “intended to resolve their differences by fighting each other with deadly weapons,” a defendant can be convicted of voluntary manslaughter in lieu of murder. Sanders v. State, 283 Ga. 372, 375 (2) (c) (659 SE2d 376) (2008).

Furthermore, “[a] person who does not directly commit a crime may be convicted upon proof that a crime was committed and that person was a party to it.” (Citation and punctuation omitted.) Copeny v. State, 316 Ga. App. 347, 349 (1) (a) (729 SE2d 487) (2012). See OCGA § 16-2-20 (a).

A person who intentionally aids or abets in the commission of a crime or intentionally advises, encourages, hires, counsels or procures another to commit the crime may be convicted of the crime as a party to the crime. Mere presence at the scene is not sufficient to convict one of being a party to a crime, but criminal intent may be inferred from conduct before, during, and after the commission of a crime.

(Footnote omitted.) Dunn v. State, 248 Ga. App. 223, 224-225 (1) (546 SE2d 27) (2001). See OCGA § 16-2-20 (b). So long as “the defendant had knowledge of the intended crime and shared in the criminal intent of the principal actor, he is an aider and abettor.” (Citation, punctuation and emphasis omitted.) Copeny, 316 Ga. App. at 349 (1) (a). Whether a defendant was a party to the charged crime is normally a question for the jury. Dunn, 248 Ga. App. at 225 (1).

“Applying these principles, we have held that a getaway driver who waits for his co-defendant to return to the car can be found guilty as a party to the crimes committed by the co-defendant.” Wise v. State, 325 Ga. App. 377, 380 (1) (752 SE2d 628) (2013). See also Jordan v. State, 281 Ga. App. 419, 422 (1) (636 SE2d 151) (2006) (defendant who waited at scene in a second car and then assisted in escape could be found guilty as a party to the crime). Moreover, a defendant who accompanies a co-defendant to the crime scene and serves as a lookout also can be convicted as a party to the crime, see Campbell v. State, 314 Ga. App. 299, 304 (724 SE2d 24) (2012), and evidence that a defendant provided a weapon, ammunition, or other supplies to another party for use in mutual combat can be found guilty as a party to the crime of voluntary manslaughter. See Mitchell v. State, 225 Ga. App. 26, 27-28 (1) (482 SE2d 419) (1997).

Construed in the light most favorable to the verdict with all inferences drawn in favor of the prosecution, the combined circumstantial evidence presented by the State in this case reflected that Platt supplied his Infiniti stocked with ammunition for use at the Sandy Springs apartment; accompanied Clark, Dixon, and the unknown male to the apartment in his silver Grand Prix; remained parked outside while maintaining cell phone contact with Clark and Dixon after they and the unknown male went inside the apartment; and served as the getaway driver who facilitated the escape of the wounded Dixon and the unknown male. Based on this circumstantial evidence and the case law previously discussed, we conclude that a rational jury was authorized to find Platt guilty beyond a reasonable doubt as a party to the crime of voluntary manslaughter. Jackson, 443 U. S. at 319 (III) (B). The jury reasonably could have inferred that Platt, Clark, Dixon, and the unknown male “were engaged in a common enterprise at the time of the shooting” and that they “shared a criminal intent with respect to the shooting.” Powell v. State, 291 Ga. 743, 745 (1) (733 SE2d 294) (2012). See Wright v. State, 296 Ga. 276, 277, 284 (3) (766 SE2d 439) (2014) (evidence was sufficient to show that defendant was party to shooting committed by co-defendant, where defendant drove his co-defendants to the scene, communicated with his co-defendants at the scene after they got out of the car, and served as the getaway driver after the shooting); Jordan v. State, 281 Ga. App. 419, 422 (1) (636 SE2d 151) (2006) (evidence was sufficient to support defendant’s conviction as party to the crime, where defendant waited at the scene and then assisted his co-defendants in their attempted escape).

While Platt argues that the evidence did not exclude every reasonable hypothesis except his guilt, the circumstantial evidence “need not exclude every conceivable inference or hypothesis — only those that are reasonable.” (Emphasis in original.) Merritt v. State, 285 Ga. 778, 779 (1) (683 SE2d 855) (2009). The totality of the evidence summarized above, although circumstantial, was sufficient to allow the jury to find that every other reasonable hypothesis except the guilt of Platt had been excluded and to convict him of voluntary manslaughter.

(b) Platt further contends that even if he could be found guilty for the voluntary manslaughter of Palacios-Vasquez, he could not be found guilty of the voluntary manslaughter of Clark. Platt emphasizes that Clark was shot and killed by Palacios-Vasquez or one of his associates, rather than by someone with whom Platt was aligned in the gunfight. Again, we find no basis for reversal.

Where there is evidence that the parties mutually agreed to engage in a gunfight to settle a dispute, a rational jury can find that all of the “participants in the gun battle shared a common criminal intent — to assault each other with guns.” Emmanuel v. State, 300 Ga. App. 378, 380 (1) (685 SE2d 361) (2009), quoting Taylor v. State, 296 Ga. App. 212, 213 (1) (a) (674 SE2d 81) (2009). See also Coe v. State, 293 Ga. 233, 235 (1) (748 SE2d 824) (2013); Coker v. State, 209 Ga. App. 142, 143 (433 SE2d 637) (1993). Given this shared criminal intent, a defendant who was a party to the gun battle can be held criminally liable for a shooting injury or death caused by the battle, even if the shot was fired by an opponent of the defendant. See id. See also State v. Spates, 779 NW2d 770, 780-781 (Iowa 2010) (“The primary distinction between garden-variety aiding and abetting and mutual-combat aiding and abetting is that the existence of mutual combat provides a factual basis for holding a defendant combatant vicariously liable for the murderous conduct of any other combatant, even an opponent of the defendant.”).

A shooting injury or death “caused” by the gun battle means one that was proximately caused by the battle. See Walker v. State, 251 Ga. App. 479, 481 (1) (553 SE2d 634) (2001) (applying proximate cause in context of voluntary manslaughter conviction). See also State v. Jackson, 287 Ga. 646, 648 (2) (697 SE2d 757) (2010) (noting that “proximate cause is the standard for homicide cases in general”). “Proximate causation imposes liability for the reasonably foreseeable results of criminal conduct if there is no sufficient, independent, and unforeseen intervening cause.” (Citation and punctuation omitted.) State v. Ogilvie, 292 Ga. 6, 11 (2) (d) (734 SE2d 50) (2012).

As already explained, from the circumstances proven in this case, a rational jury could have inferred that Platt aided and abetted the gunfight that occurred in the apartment. Platt thus could be held criminally liable for his friend Clark’s death, even if the shot was fired by a rival gang member, so long as the death was proximately caused by the gunfight. See Coe, 293 Ga. at 235 (1); Emmanuel, 300 Ga. App. at 380 (1); Taylor, 296 Ga. App. at 213 (1) (a); Coker, 209 Ga. App. at 143. And a rational jury was entitled to find that Clark’s death was a reasonably foreseeable result of the gunfight, and thus that proximate causation had been shown. The evidence therefore was sufficient to support Platt’s conviction as a party to the voluntary manslaughter of Clark.

2. Platt also contends that the trial court erred by failing to strike a prospective juror for cause. We do not agree.

Under Georgia law, there is a presumption that potential jurors are impartial, and the burden of proving partiality lies with the party seeking to have the juror disqualified. Furthermore, whether to strike a juror for cause lies within the sound discretion of the trial court, and a trial court is not obligated to strike a juror for cause in every instance in which the potential juror expresses doubts about his or her impartiality or reservations about his or her ability to set aside personal experiences. Indeed, the trial judge is uniquely positioned to observe a potential juror’s demeanor and thereby to evaluate his or her capacity to render an impartial verdict. But the trial court must excuse a potential juror for cause based on the juror’s partiality, if an opinion held by the potential juror is so fixed and definite that the juror will be unable to set the opinion aside and decide the case based upon the evidence or the court’s charge upon the evidence.

(Punctuation and footnotes omitted.) Wheeler v. State, 327 Ga. App. 313, 314-315 (1) (758 SE2d 840) (2014).

Here, during voir dire, the prospective juror in question indicated that she was scared of guns. The juror stated that she was unsure if she could overcome her bias because she believed that someone would have a gun only for self-defense or “to hurt somebody,” and she did not know any other reason someone would have a gun. When asked if she would find someone guilty just because she did not like guns, the juror responded, “No.” The juror then was asked if she would listen to the evidence before finding someone guilty, and she responded:

I would listen to the evidence. I would love to listen to the evidence, but my question would always be, well, why does this person need a gun. And so I would need to understand that there’s a good reason for having a gun, other than saying having to defend somebody, which means hurting somebody else, or I’m going to defend my business, [or] a drug company, by hurting somebody else. We would need to overcome that burden to understand why someone would have one.

Later in her exchange with counsel, the juror stated:

I think I am capable of coming in and taking instructions of how to view — [the prosecutor] just went through innocent until proven guilty and taking the facts that are in the courtroom and making a decision of those facts presented beyond a reasonable doubt.

The jury also stated that it was her “hope” that she could set her bias aside.

Based on the juror’s responses, Platt moved to strike the prospective juror for cause. The State objected, arguing that the juror “was simply being candid” and could be fair and impartial when her comments were viewed in their totality. The trial court agreed with the State and denied the motion to strike. Ultimately, Platt used one of his peremptory strikes to exclude the prospective juror.

A prospective juror’s statement that she “hopes” she could decide the case in an unbiased manner based on the trial court’s instructions and evidence does not require the juror to be excused. See Ellis v. State, 292 Ga. 276, 283-284 (4) (b) (736 SE2d 412) (2013); Amador v. State, 310 Ga. App. 280, 281-282 (1) (713 SE2d 423) (2011). See also Johnson v. State, 291 Ga. 621, 624 (2) (732 SE2d 266) (2012) (“When a potential juror testifies that he or she will ‘try’ to decide the case based upon the court’s instructions and the evidence, excusing that prospective juror for cause is not mandated.”). Furthermore, “it is not an abuse of discretion to seat a juror who questions her ability to set aside biases so long as the juror indicates she has no unalterable fixed prejudices.” (Punctuation and footnote omitted.) Wheeler, 327 Ga. App. at 316 (1).

Decided October 27, 2015

Reconsideration denied November 24, 2015.

Kenneth D. Kondritzer, for appellant.

Paul L. Howard, Jr., District Attorney, Arthur C. Walton, Assistant District Attorney, for appellee.

Based on the prospective juror’s comments, taken as a whole, the trial court was authorized to find that the juror’s opinion was not so fixed and definite as to preclude her from service on the jury. The trial court therefore did not abuse its discretion in denying Platt’s motion to strike the prospective juror for cause.

Judgment affirmed.

Ray and McMillian, JJ., concur.

       As previously noted, Clark sent a text message to Dixon at 3:41 p.m. informing him of his location, and the Grady Hospital surveillance video showed Platt, Dixon, and the unknown male arriving at the hospital at 4:08 p.m. Because there was testimony that it would take about 17-18 minutes to travel to Grady Hospital from the Sandy Springs apartment, the gunfight would have occurred between approximately 3:41 p.m. and 3:51 p.m.

       Six other co-defendants were indicted for multiple offenses arising out of the gunfight. Dixon was tried with Platt and was convicted of voluntary manslaughter and several other crimes. Dixon is not a party to this appeal. Higuera-Hernandez was tried jointly with another co-defendant and was convicted of malice murder, felony murder, and other offenses. See Higuera-Hernandez v. State, 289 Ga. 553 (714 SE2d 236) (2011). Whether and to what extent the remaining co-defendants’ cases have been resolved is unclear from the record.

       Platt’s remaining convictions were merged into the two voluntary manslaughter convictions for sentencing purposes. We do not consider the sufficiency of the evidence with respect to the merged offenses. See Nelson v. State, 277 Ga. App. 92, 96 (1) (b) (625 SE2d 465) (2005).

       It is true that “driving a criminal perpetrator away from a crime scene with knowledge that he has committed the crime does not, in and of itself, render one guilty as a party to the crime (although it could result in criminal liability as an accomplice after the fact at common law).” Ratana v. State, 297 Ga. App. 747, 750 (678 SE2d 193) (2009) (evidence insufficient to support defendant’s conviction as party to the shooting of the victim hy co-defendant, where defendant drove the co-defendant from the scene after the shooting, but there was no evidence that the defendant had driven the co-defendant to the scene or “did anything on the scene to advise or encourage [the co-defendant] to commit the crimes”). But here, as discussed above, the evidence, construed in favor of the verdict, showed that Platt did more than simply drive the others from the scene after the shooting.

       For the same reasons, we conclude that the evidence was sufficient to support Platt’s convictions for possession of a firearm during the commission of a felony. “Where a party has possessed a firearm during the commission of a felony, an accomplice who is concerned in the commission of the crime under OCGA § 16-2-20 is likewise guilty of both offenses.” (Citations and punctuation omitted.) Anderson v. State, 237 Ga. App. 595, 596 (2) (516 SE2d 315) (1999).


author: ELLINGTON, Presiding Judge.

text:
    A15A1837.
    MILLER v. THE STATE.
    (778 SE2d 424)
   ELLINGTON, Presiding Judge.

A Whitfield County jury found Samantha Miller guilty of two counts of criminal trespass, OCGA § 16-7-21 (a), (b) (1); simple assault, OCGA § 16-5-20 (a) (2); andbattery, OCGA § 16-5-23.1. Miller appeals from the order denying her motion for a new trial, contending that the trial court erred in failing to give jury charges on the affirmative defense of justification and that her trial counsel was ineffective for failing to request those charges. Finding no error, we affirm.

Viewed in the light most favorable to the jury’s verdict, the record shows the following. On November 3, 2012, Floyd Head received a phone call from Miller, his former girlfriend, asking him for a ride. According to Head, Miller had been “wrestling” with her sister and needed to get away from her house. Head, who had been drinking, asked his friend Trevor Beebe to drive him to pick up Miller, and Beebe agreed. When Head and Beebe arrived at Miller’s sister’s house, Miller was outside, walking along the road. As soon as Beebe pulled over, Miller “dove into the back seat.” Head and Beebe testified that Miller was behaving erratically, that she was “all over the place,” and that she was talking nonsensically about the FBI. During the ride to Head’s home, Miller bit Beebe twice. She also talked about having sex with Head and she tried to wrap her legs around his neck from the back seat of the car.

Head testified that he had seen Miller behave like this before and that he had hoped she would eventually calm down when Beebe went home. After Beebe left, Miller asked if she could launder her clothes and take a bath, and Head agreed. While Miller was in the laundry room, Head sat down in his recliner. Moments later, Miller, now naked, “c [a] me running at [him],” knocked him out of his recliner, and started biting and scratching him. Head hit Miller to get her to stop biting him, and Miller ran out of the house naked.

Miller ran toward the home of Yuliana Solis, which was about 55 feet away from Head’s home. She started beating her face against Solis’ air conditioning window unit and screaming: “Angel, come out of the room.” Worried for the safety of his neighbor and her baby, Head called the police.

Solis testified that she was startled by the sounds of very loud banging near her front door. Miller then broke the window, pulled the air conditioning unit out, and climbed in to the home. Solis testified that Miller’s face was bloodied, that she wanted “Angel” to come out, and that she screamed: “I’m going to kill you, you... bitch!” Solis ran with her baby to the kitchen and wedged a chair under the door. Solis called 911 and hid until the police arrived.

When law enforcement officers arrived, they heard glass breaking and items being thrown around inside Solis’ home and someone yelling for “Angel.” A detective with the Whitfield County sheriff’s office testified that, as he entered Solis’ home, Miller, who was naked, ran at him. He had to subdue her with a taser. Miller told the detective that she had pulled the air conditioning unit out so that she could get inside the house and get Angel. The detective testified that Miller’s behavior was very erratic, that she disobeyed his orders to sit still, that she was “scooting around... on her knees and sliding around all over the floor, continually coming out of the cover that [they] were trying to keep her covered with until [they] could get a female [officer] there.” The deputy who had accompanied the detective described Miller as aggressive. The detective eventually had to use his taser a second time to subdue Miller.

The detective and the deputy testified that they believed Miller was under the influence of a drug, possibly methamphetamine, synthetic marijuana, or “bath salts.” During the 40 minutes that Miller was with the responding officers, including a female corree-tions officer, she did not tell any of them that she was fleeing from an assailant, nor did she indicate that anyone had sexually assaulted her. Beebe had returned at Head’s request, and they both spoke with the deputy about Miller’s behavior.

At trial, Miller claimed that she had broken in to Solis’ home to escape Head, whom she claimed had spiked her drink with Rohypnol and had sexually assaulted her. However, she also testified that, when she decided to enter Solis’ home, her alleged assailants had already stopped chasing her and had gone back home.

1. Miller contends the trial court erred in failing to charge the jury on the concepts of “affirmative defense” and “justification.” Although the record shows that the court did, in fact, charge on the concept of justification as it pertained to using reasonable force to protect oneself from an assault, Miller argues that the trial court’s charge was insufficient because it did not adequately address her sole defense to criminal trespass, that is, that she was justified in entering Solis’ home and damaging her property to escape from an ongoing assault. For the following reasons, we disagree.

“A criminal defendant is ordinarily required to present written requests for any desired jury instructions.” (Citation and punctuation omitted.) Woods v. State, 291 Ga. 804, 809 (3) (733 SE2d 730) (2012). See also OCGA § 5-5-24 (b). However, “[i]f an affirmative defense is raised by the evidence... the trial court must present the affirmative defense to the jury as part of the case in its charge, even absent a request.” (Citation and punctuation omitted.) Watts v. State, 259 Ga. App. 531, 533 (3) (578 SE2d 231) (2003). See also Price v. State, 289 Ga. 459 (2) (712 SE2d 828) (2011) (“The trial court must charge the jury on the defendant’s sole defense, even without a written request, if there is some evidence to support the charge.”) (citation and punctuation omitted). “[A]n affirmative defense is one that admits the doing of the act charged but seeks to justify, excuse, or mitigate it.” (Punctuation and footnote omitted.) Strickland v. State, 267 Ga. App. 610, 611 (600 SE2d 693) (2004).

In this case, Miller testified that she bit and scratched Head to escape a sexual assault and that she damaged Solis’ home and broke into it in order to escape her assailant. Miller’s counsel orally requested and the trial court gave the jury a charge on justification, but it pertained specifically to the use of force against another person and did not address justification for other criminal acts such as trespass. The trial court, in its order denying Miller’s motion for a new trial, explained that it was not required to give a justification charge with respect to the criminal trespass counts because the evidence was insufficient to support such a charge. The court explained:

Here, upon leaving Mr. Head’s residence, Ms. Miller had options available to her apart from breaking into a neighbor’s residence: she could have called the police, she could have requested entry to a nearby house to call the police, or she could have just run down the street and hid. There was no immediate threat such that she needed to damage the air conditioner and break into Ms. Solis’ residence.

Indeed, Solis’ home was a mere 55 feet away from Head’s home. In the time it took Miller to rip an air conditioning unit from the window and break in, her allegedly pursuing assailants should have been able to catch her. More significantly, however, Miller’s own testimony supported the court’s findings. She admitted that, when she entered Solis’ home, her assailants had stopped chasing her and had gone home. Given this evidence, the court did not err in declining to give a charge on justification as it pertained to the criminal trespass counts. See Moon v. State, 244 Ga. App. 443, 446 (3) (535 SE2d 771) (2000) (The trial court did not err in failing to charge, sua sponte, on justification where the evidence showed that the defendant, a drug addict, had options available to him other than stealing a car in order to drive to a clinic to get his medication.).

2. Miller contends that her trial counsel was ineffective because he did not request the jury charges discussed in Division 1, supra. However, where the evidence does not support the giving of a charge, counsel’s failure to request the charge does not amount to ineffective assistance. See, e.g., Alston v. State, 277 Ga. App. 117, 117-118 (1) (a) (625 SE2d 475) (2005) (withdrawal of request for jury charge on an affirmative defense was not ineffective assistance where the evidence did not support such a defense); Davis v. State, 209 Ga. App. 187, 190 (6) (433 SE2d 366) (1993) (counsel was not ineffective based on jury charge where defendant failed to show that the charges in question were erroneous). Consequently, the trial court did not err in denying Miller’s claim of ineffective assistance of counsel.

Decided November 3, 2015

Reconsideration denied November 24, 2015

William B. Mills, for appellant.

Herbert M. Poston, Jr., District Attorney, John S. Helton, Assistant District Attorney, for appellee.

Judgment affirmed.

Dillard and McFadden, JJ., concur.

        Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

       The court was not required to instruct the jury on the definition of “affirmative defense” absent a written request when, as in this case, the charge as a whole would not mislead a jury of average intelligence as to what was required to prove the affirmative defense of justification. See Redd v. State, 232 Ga. App. 666, 667 (2) (b) (502 SE2d 467) (1998).

       The court gave the following charge:
      A person is justified in threatening or using force against another person when and to the extent that she reasonably believes that such threat or force is necessary to defend herself or a third person against the other’s imminent use of unlawful force. Aperson is justified in using force that is intended or likely to cause death or great bodily harm only if that person reasonably believes that such force is necessary to prevent death or great bodily injury to herself or a third person or to prevent the commission of a forcible felony. The State has the burden of proving beyond a reasonable doubt that the defendant was not justified.