author: Boggs, Judge.

text:
    A14A0389.
    JAI GANESH LODGING, INC. et al. v. DAVID M. SMITH, INC. et al.
    (760 SE2d 718)
   Boggs, Judge.

Jai Ganesh Lodging, Inc. and Laxesh, L.R (collectively, “appellants”) appeal from the trial court’s order granting summary judgment in favor of David M. Smith, Inc. (“DMS”) and B & J Reed Construction, LLC (“B & J Reed”), an order rescinding its previous order allowing Baron Reed and Jeremy Reed to be added as defendants, and an order excluding the testimony of an expert witness. For the reasons explained below, we affirm the trial court’s order excluding the appellants’ expert, reverse its order dismissing the appellants’ complaint against Baron Reed and Jeremy Reed, affirm the grant of summary judgment on the breach of contract claims, and reverse the grant of summary judgment on the claims of negligent construction.

This case arises from structural damage to a newly constructed Holiday Inn Express resulting from settlement of the rear parking lot, pool areas, and one side of the building itself. The record shows that Laxesh, L.P. owns the real property on which the Holiday Inn Express is located and that Jai Ganesh Lodging, Inc. holds the franchise rights to and operates the Holiday Inn Express. In April 2007, site plans for the Holiday Inn Express were created by Rhodes Engineering Services, Inc., and the site plans list Anil Patel (“Patel”) as the “owner/developer/24-hour emergency contact” person.

In April 2007, DMS submitted an initial bid for grading work on the Holiday Inn Express site. In May 2007, the principal of DMS, David Smith, suffered a stroke, and told Patel that it would take him six to eight months to recover enough to supervise the grading job for DMS. Part of the job had to be performed with grading work under a separate contract between DMS and G. H. Riddle (“Riddle”), and Patel did not want to delay the work until Smith recovered. When Riddle was unable to hire another grading contractor, 3he asked Smith to find someone and enter into a subcontract for the work.

On August 7, 2007, Patel entered into a contract with DMS to be the grading contractor for the project. The contract states that it is between DMS, “the General Contractor,” and Anil Patel, “the owner.” Two days later, DMS entered into a contract with B & J Reed “to perform certain work as set forth on Proposal Nos. 259, and 260 . . . in connection with the construction of a road off of Highway 411, Rome Georgia and a Holiday Inn Express, respectively.” Proposal 259 involved the work for Riddle and Proposal 260 involved the work for Anil Patel. After B & J Reed completed the grading work, Jai Ganesh Lodging, Inc. entered into a contract with Enterprise Contractors to construct the hotel. Less than four months after the Holiday Inn opened in July 2008, problems with settling began.

In August 2010, appellants sued DMS, B & J Reed, Baron Reed, and Jeremy Reed and alleged causes of action for breach of contract, negligent construction, and continuing nuisance. All of the defendants moved for summary judgment in their favor on the appellants’ breach of contract and negligence claims. After withdrawing its order allowing the appellants to amend their complaint to add Baron Reed and Jeremy Reed as defendants, the trial court granted summary judgment in favor of DMS and B & J Reed on appellants’ claims for breach of contract, negligent construction, and continuing nuisance.

1. Appellants assert that the trial court erred in excluding their proffered expert, Steve Horridge, because Horridge had previously been retained by B & J Reed’s liability insurance carrier, Auto-Owners Insurance Company (“Auto-Owners”) to investigate the cause of soil settlement at issue in this case. According to appellants, the trial court misapplied OCGA § 9-11-26 (b) (4) and this court’s decision in Heyde v. Xtraman, Inc., 199 Ga. App. 303, 308 (404 SE2d 607) (1991). They urge this court to adopt and apply a two-part test for disqualification of experts used in other jurisdictions. See, e.g., Koch Refining Co. v. Boudreaux MV, 85 F3d 1178, 1181 (II) (A) (5th Cir. 1996).

The record shows that Todd Moore, a claims representative with Auto-Owners, hired SEA Ltd., a forensic engineering firm, and Horridge “to investigate the claims of [appellants]” before suit was filed. According to Foster,

[t]he investigation conducted by Steve Horridge and SEA was done specifically on behalf of Auto-Owners and its insured, B & J Reed, for the purpose of defense of any possible lawsuit and in anticipation of litigation, and discussions with them included our work product, thoughts, mental impressions, and theories of defense with respect to this matter, many of which were not contained in his written report____Neither Auto-Owners or its insured consent to the Plaintiffs or their attorneys retaining Auto-Owners’ consulting expert as their own, to using his report or opinion or materials, or to calling him as a witness.

According to Moore, he advised Horridge in a telephone call before November 12, 2009, “that Auto-Owners preferred that he not have any contact with the claimant Mr. Patel or his attorney.”

Horridge submitted an affidavit to the court in which he averred (1) that he never signed a confidentiality agreement precluding him from working for other persons involving the same subject matter; (2) that he never spoke with or sent his report to an attorney representing B & J Reed while working for Auto-Owners on the assignment; (3) that “Moore was [his] exclusive contact with Auto Owners ... and the only person with whom [he] communicated and who directed [his] work”; (4) that he “communicated with Moore regarding the progress of [his] work, and the results of [his] investigation”; (5) that while he spoke with the owners of B & J Reed about facts necessary to his investigation, he never spoke with them about potential strategies or defenses in the event of litigation; (6) that he did not discuss with B & J Reed or Auto-Owners “the strengths or weakness of any side or B & J Reed’s anticipated defenses to a lawsuit”; (7) that he was later retained by Mr. Patel “to provide an engineering design and consulting services for structural remediation of the Holiday Inn Express in order to stabilize the building”; (8) that he was later retained by appellants’ counsel to serve as an expert witness in appellants’ lawsuit against B & J Reed, but never gave appellants’ counsel a copy of the SEA Ltd. investigative report and refused to discuss the content of the report “unless it was voluntarily produced and disclosed during discovery in this litigation.”

The record also includes an e-mail from appellants’ counsel to insurers involved with the claim, including the insurer who had retained Horridge, stating:

Suit has been filed. ... If either Defendant is interested in resolving this matter early and/or pursuing mediation at the outset, please let me know. Our expert is Steve Horridge, which we believe will prove to be very problematic for, in particular, Auto-Owners as it relates to its bad-faith refusal to resolve and settle this matter, notwithstanding our previously tendered time-limited, policy-limits demands.

During discovery, B & J Reed voluntarily produced to all parties the SEA Ltd. report prepared by Horridge for Auto-Owners.

Two years after the lawsuit was filed, B & J Reed moved to disqualify Horridge as an expert on behalf of appellants. After conducting a hearing, the trial court granted the motion, but also concluded that “[t]o the extent he is a fact witness as to remediation, the Court is now inclined to allow him to testify so long as he shall not testify as to his opinions on any issue or of his having been first retained by any other party.”

OCGA § 9-11-26 (b) provides:

Unless otherwise limited by order of the court in accordance with this chapter, the scope of discovery is as follows: . . .
(4) . . .
(B) Aparty may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial... upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subj ect by other means [.]

“Trial courts have broad discretionary powers under the discovery provisions of the Civil Practice Act and appellate courts have consistently refused to interfere with the exercise of a trial court’s discretion except in cases of clear abuse.” (Citations and punctuation omitted.) Heyde, supra, 199 Ga. App. at 308 (2).

In Heyde, this court affirmed the trial court’s decision to prohibit an expert from testifying at trial for one party when that expert had originally been retained by an attorney for an opposing party. Id. at 307-309 (2). We concluded “that the exclusion of [the expert’s testimony was a proper sanction for the violation of the rules of discovery set forth in OCGA § 9-11-26 (b) (4).” Id. at 308(2). This Code provision “clearly sets forth the procedures a party must follow to obtain discovery from any expert, both those that the opposing party expects to call at trial and those that are not to be called as witnesses.” Id. One of the rationales for our decision was that the party seeking to call the expert “did not attempt to follow these procedures and should not now be allowed to circumvent them by engaging in ex parte communications with the opposing party’s expert and then asserting that they are not seeking to engage in discovery but seeking to call a witness at trial.” Id. We also found that the privileged relationships should be protected and that “[exclusion of expert testimony at trial when the expert was retained by the opposing party or his attorney has been recognized as proper in certain circumstances in two federal cases____ [Cits.]” Id. at 308-309 (2). Finally, we affirmed the trial court’s exclusion of the expert because the appellants failed to meet their burden of showing harm, noting that “[w]e do not know if [ ]appellants were able to produce the testimony of other experts whose testimony would render [the expert]’s statements merely cumulative.” Id. at 309 (2).

In this case, as in Heyde, appellants failed to follow the procedures set forth in OCGA § 9-11-26 (b) before hiring an expert formerly retained by the insurer of an opposing party. We therefore conclude that the trial court did not abuse its discretion by precluding appellants from calling Horridge as an expert witness on their behalf, particularly where the trial court expressly ruled that Horridge could testify “[t]o the extent he is a fact witness as to remediation.” Additionally, we conclude that appellants cannot demonstrate harm from the trial court’s decision because they were able to hire another expert to provide opinions and findings consistent with those of Horridge and the SEA Ltd. report. Heyde, supra.

Based upon the particular facts and circumstances of this case, we decline to apply the two-part federal test advocated by appellants. As the Fifth Circuit noted in a case cited by appellants:

Initially, we point out that this is not a case in which the expert switched sides. If that were the case, no one would seriously contend that a court should permit a consultant to serve as one party’s expert where it is undisputed that the consultant was previously retained as an expert by the adverse party in the same litigation and had received confidential information from the adverse party pursuant to the earlier retention. This is a clear case for disqualification.... In disqualification cases other than those in which the expert clearly switched sides, lower courts have rejected a “bright-line” rule and have adopted the following test:
First, was it objectively reasonable for the first party who claims to have retained the expert to conclude that a confidential relationship existed? Second, was any confidential or privileged information disclosed by the first party to the expert?

(Emphasis supplied.) Koch Refining, supra, 85 F3d at 1181 (II) (A). This is a case in which the consulting expert clearly switched sides, and the two-part test in Koch Refining should not be applied.

2. The appellants contend that the trial court erred by granting summary judgment in appellees’ favor on their breach of contract claim based upon its conclusion that they were not third-party beneficiaries of the contract between B & J Reed and DMS. We disagree.

“The beneficiary of a contract made between other parties for his benefit may 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 OCGA § 9-2-20 (b), it must clearly appear from the contract that it was intended for his benefit. The mere fact that he would benefit incidentally from performance of the agreement is not alone sufficient. There must be a promise by the promisor to the promisee to render some performance to a third person, and it must appear that both the promisor and the promisee intended that the third person should be the beneficiary.

(Citations and punctuation omitted.) Rowe v. Akin & Flanders, Inc., 240 Ga. App. 766, 768 (1) (525 SE2d 123) (1999). “Because a third-party beneficiary may be created only by the express terms of the contract, a court does not generally consider parol evidence in its analysis.” (Citations and footnote omitted.) Perry Golf Course Dev. v. Housing Auth. of Atlanta, 294 Ga. App. 387, 388 (1) (670 SE2d 171) (2008).

Here, the contracts at issue never refer to Jai Ganesh or Laxesh. While the contracts state that a Holiday Inn Express would be constructed on the site, the site plan referenced in the contracts expressly states that Anil Patel is the owner/developer and Anil Patel listed himself as the owner in his contract with DMS. Based upon these express representations of ownership, we cannot find that DMS or B & J Reed intended a benefit for undisclosed corporate entities that, unbeknownst to them, were the actual owners of the property and the Holiday Inn franchise. See Dominic v. Eurocar Classics, 310 Ga. App. 825, 828-830 (1) (714 SE2d 388) (2011) (owner of car not third-party beneficiary of contract between mechanic and dealership that performed repair at mechanic’s request); Perry Golf, supra, 294 Ga. App. at 388-389 (1) (plaintiff not third-party beneficiary of contract because designation of owner in contract inconsistent with finding that plaintiff was the owner); Danjor, Inc. v. Corporate Constr, 272 Ga. App. 695, 697-698 (1) (613 SE2d 218) (2005) (corporate franchisee and its owners not third-party beneficiaries of contract between franchisor and contractor that constructed day care center). We therefore affirm the trial court’s grant of summary judgment on appellants’ breach of contract claim.

3. Appellants assert that the trial court erred by granting summary judgment on their negligent construction claims based upon its conclusion that privity of contract was required to assert a negligence claim, that the record contained no evidence of negligence by the defendants, and that the acceptance doctrine precluded appellants’ negligent construction claim.

(a) The trial court relied upon this court’s opinion in Dominic, supra, to conclude that the defendants owed no duty of care to the appellants. In Dominic, a case involving negligent car repair, we held:

While privity of contract is generally not necessary to support an action in tort, “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.” OCGA § 51-1-11 (a). Thus, “[wjhere privity of contract between the parties does not exist, to constitute a tort, the duty must arise independent of the contract.”

(Citations and punctuation omitted.) 310 Ga. App. at 830 (2). The rule applied in Dominic, however, has no application in negligent construction cases, because “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.) City of Atlanta v. Benator, 310 Ga. App. 597, 605 (5) (714 SE2d 109) (2011). See also Rowe, supra, 240 Ga. App. at 769 (2). The trial court therefore erred by granting summary judgment on appellants’ negligent construction claim based upon a lack of privity.

(b) Appellants contend the trial court erred by concluding that they failed to produce evidence of negligence by either defendant. We agree.

The law imposes upon building contractors and others performing skilled services the obligation to exercise a reasonable degree of care, skill, and ability, which is generally taken and considered to be such a degree of care and skill as, under similar conditions and like surrounding circumstances, is ordinarily employed by others of the same profession.

(Citations, punctuation and footnote omitted.) Schofield Interior Contractors v. Standard Bldg. Co., 293 Ga. App. 812, 814 (668 SE2d 316) (2008).

In support of their negligence claim, appellants relied upon the affidavit of James Ahlberg, a civil and geotechnical engineer who opined, based upon his review of soil reports before and after the grading work was completed, that

each of the failures, depressions, and settling or downward displacements and resulting damages found within the Holiday Inn Express site were directly caused by the grading contractor’s failure to properly and sufficiently compact the fill material used by the grading contractor as was required by the subject grading plans and as is required to be performed by grading contractors, generally, in similar circumstances and in accordance with accepted industry standards.
[E]ach of the defects resulting from the grading contractor’s failure to properly compact the fill material was concealed from view and below the surface, such that these defects would not have been observable or detectable by anyone observing the site immediately after the grading contractor had completed its work on site.

An engineer with Rhodes Engineering, the company that prepared the grading site plans, averred in his affidavit that the plans specified “that the grading work was to be compacted to achieve a density of 95 percent Proctor.” It is undisputed that a person with specialized training must perform tests as the grading work progresses to determine if soil is compacted to a density of 95 percent Proctor.

B & J Reed and DMS contend that they cannot be held liable for negligent grading because they were not contractually responsible for obtaining engineering tests and did not have the expertise to perform the tests. The record shows that B & J Reed performed the work pursuant to its contract with DMS. The contract between DMS and Patel defined DMS as the “general contractor” and stated that DMS “agrees to furnish all material, labor and equipment to perform work to standard as described on plans by Rhodes Engineering Services, Inc. dated April 27,2007 and inspected by the City of Rome.” This contract identified Patel as the “owner.” With regard to “grading,” the itemized list identified in and attached to the contract stated, “Grade site as shown in grading plan. All dirt must come from on site. Site must balance.”

The contract between DMS and B & J Reed was drafted by B & J Reed; this contract identified DMS as the “owner.” The construction contract obligated B & J Reed “to perform certain work as set forth on Proposals Nos. 259, and 260. . . .” The work description in Proposal 260 stated, in part: “Grade site as shown on grading plan. Site must balance ... Owner responsible for all testing.” The record contains no evidence that Patel or any other representative of the appellants was provided with a copy of Proposal 260 before construction of the hotel was completed.

Jeremy Reed testified that the purpose of the contract provision stating, “Owner responsible for all testing,” was to make someone else responsible for soil compaction testing; he did not do any compaction testing. He denied that the purpose of this provision was to make Smith or his company (DMS) responsible for compaction testing; he knew that DMS did not own the property. He never asked Smith to perform compaction testing and explained that the industry standard does not require grading contractors to perform compaction testing; it is a specialized trade for those certified to perform it. Jeremy Reed denied knowing that the grading plan for the Holiday Inn job required a compaction density of 95 percent Proctor, and denied that Giles Engineering, DMS, or Patel ever told him that he was required to reach this compaction density. He also testified that he did not work for Patel, but instead looked to DMS for “supervisory-related questions.” He explained that any direction regarding the scope of his work would have come from Smith and that he expected Smith to alert him if he felt B & J Reed’s work was inadequate.

Baron Reed testified that “[i]t is standard in the industry for the owner to hire a compaction company to give us a yes or a no” on whether their work was meeting compaction specifications. With regard to the contract between B & J Reed and DMS, he stated that he knew that Smith was not the owner of the property.

With regard to the provision in his contract with B & J Reed stating, “Owner responsible for all testing,” Smith testified that he did not know what testing was meant by this provision. He explained that testing usually done on similar jobs included preliminary testing and compaction testing as the job progressed. He was not aware of whether any soil compaction tests were performed during the Holiday Inn grading work. He never had any discussions with Patel about the importance of performing soil compaction studies. At the time he entered into the contract with Patel, Smith did not have any knowledge about Patel’s background or experience in the construction industry or with site grading in particular.

Smith testified that it is always the owner’s responsibility to obtain compaction testing and that he had never obtained such testing. In other grading jobs, the owner would share compaction test results with the grader as the job progressed and the grader “would have to do what was necessary to make it pass.” He acknowledged that 95 percent Proctor is the industry standard for structure foundations. He did not recall any conversations with B & J Reed about compaction on the site, but he believed that B & J Reed would have been aware of the industry standard of 95 percent Proctor. While he expected B & J Reed to grade the site to a density of 95 percent Proctor, he testified that he did not know how B & J Reed would know whether the density specification had been met. Smith performed no inspections on behalf of DMS after B & J Reed completed the work.

In his deposition, Patel admitted that he was aware that Smith and his company could not perform the grading work and had hired B & J Reed to do the grading. He testified that he told Smith that he was okay with this arrangement “[a]s long as you supervise it ’cause we — I have contracted with you.” He never had any conversations with Smith about soil compaction. He relied upon the grading contractors to compact the soil and testified that Jeremy Reed told him that the soil would be okay for the construction of the hotel because he was a professional who “kn[e] w the compaction.” He admitted that he did not have an agreement with Smith or his company for them to perform compaction testing in connection with the grading; he assumed that it was their responsibility because they were the grader.

Patel retained Giles Engineering before grading began “[t]o make sure the soil under the building was okay,” and no one from Giles Engineering informed him that there were subsurface problems on the lot before the grading work began. He admitted that he did not read the report prepared by Giles Engineering, because it was “scientific stuff that I don’t understand.” While Patel may have provided a copy of this report to Enterprise Contractors, he did not believe he provided it to or discussed it with DMS or B & J Reed.

Based upon our review of evidence in the record, we conclude that genuine issues of material fact exist with regard to whether DMS negligently supervised the grading work and whether B & J Reed negligently failed to grade the property to the specifications in the grading design plan. The record contains evidence that both of these defendants understood the importance of testing to ensure that the grading work complied with the design specifications. Consequently, issues of fact exist as to whether they allowed the grading work to be completed without tests confirming sufficient compaction of the entire job site. While these defendants may not have been responsible under the terms of the contract for personally performing or paying for the tests, issues of fact exist as to whether they were negligent in failing to take steps to request that such testing be performed as the job progressed, particularly when the contract between the two grading companies specifying that the owner was responsible for testing was never provided to the property owner. While DMS and B & J Reed rely heavily upon the 2006 Giles Engineering report in support of their claim that they are entitled to summary judgment, the expert witnesses disagree about the meaning of the report. The report, as testified to by experts, raises genuine issues of material fact as to whether the property did or did not have existing compaction issues below the surface before it was graded by B & J Reed.

Except in plain, palpable and undisputed cases where reasonable minds cannot differ as to the conclusions to be reached, questions of negligence, proximate cause, including the related issues of foreseeability, assumption of risk, lack of ordinary care for one’s own safety, lack of ordinary care in avoiding the consequences of another’s negligence, contributory and comparative negligence are for the jury.

(Citations, punctuation and footnote omitted.) McCray v. FedEx Ground Package System, 291 Ga. App. 317, 322 (1) (661 SE2d 691) (2008).

(c) We also find merit in appellants’ contention that the trial court erred in applying the acceptance doctrine to bar their negligent construction claims. Even if we were to assume that the acceptance doctrine applies both to owners and to third parties, the acceptance doctrine protects a negligent contractor only “if the defect is not hidden but readily observable on reasonable inspection.” (Citations and punctuation omitted.) Lumsden v. Williams, 307 Ga. App. 163, 171 (2) (f) (704 SE2d 458) (2010). In this case, appellants’ expert opined that “the grading contractor’s failure to properly compact the fill material was concealed from view and below the surface,” and thus not “observable or detectable,” and evidence in the record shows that testing by a specialist was required to determine if the grading contractor had sufficiently compacted the site. Issues of fact therefore exist as to whether the defect was “readily observable on reasonable inspection.” Id.

(d) We find no merit in DMS’ assertion that appellants’ negligent construction claim is barred by a failure to give a notice of a claim under the law governing certain construction defect claims, OCGA § 8-2-35 et seq. By its express terms, these Code provisions apply only to a dwelling defined as “a single-family house, duplex, or multifamily unit designed for residential use in which title to each individual residential unit is transferred to the owner under a condominium or cooperative system. . . .” OCGA §§ 8-2-36 (1), (7); 8-2-38 (a). As the hotel does not fall within this definition, these Code sections do not apply.

4. Appellants assert that the trial court erred by withdrawing its previous order that allowed them to amend their complaint to add Baron Reed and Jeremy Reed as defendants. We agree.

The record shows that five months after filing their complaint, appellants moved to add Baron Reed and Jeremy Reed as defendants for two reasons: (1) their belief that the Reeds may have disregarded the separate legal status of B & J Reed, Inc. and (2) the Reeds’ “personal involvement, misconduct, and active negligence.” At the time of the motion, the statute of limitation had not run, and no depositions had been taken. The Reeds opposed the motion, in part, because appellants “offered no excuse or justification for having failed to name and serve the new parties previously.” The trial court promptly granted the motion, stating:

The Complaint in this action is filed within the Statute of Limitations so that if the Motion for Leave to Add Party Defendants were denied, Plaintiffs could merely dismiss and refile against all the proposed defendants. There is no discernable prejudice to Defendants by granting this motion.

In September 2012, Baron Reed moved for summary judgment in his favor on the grounds that he did not personally participate in the alleged negligent construction and that privity was lacking for a breach of contract claim. A year later, while all of the summary judgment motions were pending, the trial court entered the following order sua sponte:

Before ruling on Defendant’s Motion for Summary Judgment, it is necessary to enter an order with regard to those parties whose interests remain for resolution in this case. Two problems in that regard need to be addressed.
First, [the Patels are dismissed for the reasons previously stated in footnote 6 of this opinion].
The Second problem in regard to the parties in the case involves the presence of Baron Reed and Jeremy Reed as Defendants individually. As has become increasingly obvious to the Court, it has mistakenly allowed an amendment to the complaint which allowed Plaintiffs to add claims against each of them individually. It is now obvious that the sole reason Plaintiffs sought to add the Reeds, individually, as defendants was to try to pierce the corporate veil if damages were awarded. This has only obfuscated and wasted time and detracted attention from the real issues of liability. Any claims of Plaintiff against B & J Reed Construction, LLC would raise any alleged negligence of all of the LLC’s employees which would include the alleged negligence of the two Reeds individually. The error in adding these two individuals as Defendants became apparent as Plaintiff’s discovery regarding the Reeds, individually, focused solely on issues in an attempt to pierce the corporate veil of the LLC. The Court, on September 27, 2011, verbally ordered that discovery was to be limited, and the issue of piercing the corporate veil would be bifurcated. The bifurcated second part of the trial as envisioned by the Court would have occurred only if Plaintiff received a verdict against the LLC which was never paid. By necessity the same Floyd County jury could not decide this additional issue because whether a judgment against the LLC had been paid could not be determined for some time. Couple this with the fact that neither of the Reeds, nor their LLC are residents of this County and the problem is apparent. Each of them is entitled to have that separate issue, if it ever becomes an issue, litigated pursuant to the Georgia Constitution in the County of their residence. The Court has inadvertently created this result, which it now deems improper, by its original Order allowing Plaintiffs to sue the Reeds individually. Their absence as defendants in this case in no way hinders Plaintiffs from presentation of their case; their presence adds nothing except an extraneous issue over which this Court may not have personal jurisdiction.

Decided July 16, 2014 —

Reconsideration denied July 31, 2014 —

Brinson, Askew, Berry, Seigler, Richardson & Davis, I. Stewart Duggan, A. FranklinBeacham III, Samuel L. Lucas, LeeB. Carter, for appellants.

Therefore, the Court’s order [allowing appellants to add parties] is WITHDRAWN. The Plaintiffs’ Complaints, as Amended and Recast against Baron Reed and Jeremy Reed are DISMISSED.

We conclude that the trial court abused its discretion by withdrawing its order allowing the appellants to add the Reeds as individual defendants for several reasons. The record shows that the appellants’ claims are not based solely upon an attempt to pierce the corporate veil, that the trial court withdrew its order after the statute of limitation had expired, and that it dismissed the appellants’ claims against the Reeds based upon venue concerns instead of issuing a transfer order under OCGA § 9-10-31.1 (a).

Judgment affirmed in part and reversed in part.

Barnes, P. J., and Branch, J., concur.

Temple, Strickland, Dinges & Schwartz, William D. Strickland, Downey & Cleveland, G. Lee Wellborn, for appellees.

       Anil Patel is the husband of Anita Patel. Laxesh acquired the property on March 22,2007 fromAnita Patel. Jai Ganesh acquired the franchise rights from Anita Patel on September 14, 2007. Anita Patel had entered into an earlier agreement with Holiday Inn Express on December 2, 2005.

       There is some evidence in the record suggesting that Riddle had a reputation in the industry for not paying contractors.

       This contract was signed by Anita Patel.

       While Anita and Anil Patel were also named as plaintiffs in the initial complaint, the trial court later entered an order dismissing them as plaintiffs based upon plaintiffs’ counsel representation in oral argument that he would dismiss them from the case. The Patels did not appeal from this order.

       Appellants’ continuing nuisance claim was asserted after the defendants moved for summary judgment in their favor. App ellants do not contend on appeal that the trial court erred by granting summary judgment in favor of the appellees on their continuing nuisance claim.

       The eases cited in appellants’ brief do not require a different result as none of them involved an affirmative representation in the contract and documents referenced therein that someone other than the plaintiff was the owner of the property at issue. See Dillon v. Reid, 312 Ga. App. 34 (717 SE2d 542) (2011); Rowe, supra, 240 Ga. App. at 766; Plantation Pipe Line Co. v. 3-D Excavators, 160 Ga. App. 756 (287 SE2d 102) (1981).

       The appellants’ fourth amended complaint alleged individual acts of negligence, and the record shows that Jeremy Reed supervised the work on the job site on a daily basis and also ran the bulldozer and compactor. Jeremy Reed testified in his deposition that he thought it was unusual when he saw concrete, stumps, and old building material on the site because he “thought it was virgin ground.” The record also shows that Baron Reed was often on the job site and claimed to have assisted a technician to take soil samples for compaction testing. Baron Reed instructed a track hoe operator where to place debris removed from a ditch, informed Patel about concrete and organic debris removed from a ditch, and performed grading work while Jeremy Reed was on vacation.

       Settlement problems were noticed in late 2008, and the trial court’s dismissal order was entered in August 2013. See OCGA § 9-3-30.

       Because the trial court did not rule on the Reeds’ individual motions for summary judgment, we decline to exercise our discretion to do so for the first time on appeal. See City of Gainesville v. Dodd, 275 Ga. 834, 838-839 (573 SE2d 369) (2002); Medical Center of Central Ga. v. City of Macon, 326 Ga. App. 603, 607 (2) (757 SE2d 207) (2014).


source: Caselaw Access Project

author: Barnes, Presiding Judge.

license: Public Domain

text:
    A14A0455.
    CGL FACILITY MANAGEMENT, LLC v. WILEY.
    (760 SE2d 251)
   Barnes, Presiding Judge.

Keiana Wiley died when Michael Thad Clay crossed the center-line in his employer’s pickup truck and hit Wiley’s car head-on. Clay’s blood tested positive for methamphetamine. Bryant Wiley, acting as the administrator of his wife’s estate and her surviving spouse, sued Clay for wrongful death and sued Clay’s employer, CGL Facility Management, LLC, under theories of respondeat superior and negligent hiring, retention, entrustment, and maintenance. The defendants answered, and following discovery, CGL moved for summary judgment, arguing that Clay was not on the job when the collision occurred and that no evidence supported Wiley’s other claims. The trial court denied the motion without explanation but granted a certificate of immediate review, and this court granted CGL’s application for interlocutory appeal. For the reasons that follow, we reverse the trial court’s denial of summary judgment to CGL on Wiley’s claims of liability under theories of respondeat superior, negligent hiring and retention, and negligent training and maintenance, but affirm the denial of summary judgment on Wiley’s negligent entrustment claim.

On appeal from a grant of summary judgment, we conduct a de novo review, and we view the evidence and the inferences drawn from it in the light most favorable to the nonmoving party. A defendant demonstrates entitlement to summary judgment by showing that the record lacks evidence sufficient to create a jury issue on at least one essential element of the plaintiff’s case. The defendant does not need to affirmatively disprove the plaintiff’s case, but may prevail simply by pointing to the lack of evidence. If the defendant does so, the plaintiff cannot rest on his pleadings, but must point to specific evidence that gives rise to a triable issue of fact.

Upshaw v. Roberts Timber Co., 266 Ga. App. 135 (596 SE2d 679) (2004).

Viewed in the light most favorable to Wiley, the evidence showed that in 1995, Clay began working for the State at the Milledgeville Youth Detention Center (YDC), first in the warehouse, then in maintenance as an apprentice locksmith. In 2001, the State privatized the maintenance of its Department of Juvenile Justice (DJJ) facilities, and CGL obtained the contract. Clay applied for a job with CGL and underwent a criminal background check and drug test. When asked at deposition whether there were “any issues at all with either a drug test or [his] criminal background history when [he was] hired by CGL,” Clay invoked his Fifth Amendment right to not incriminate himself. He testified that after CGL ran a motor vehicle history report on him, he began working as a locksmith at the Milledgeville YDC and other facilities, specializing in locks and door.

The State closed the Milledgeville YDC in 2008, and Clay remained at the facility for a year as its sole maintenance man. In 2009 he accepted CGL’s offer of a management position in Augusta, overseeing the Augusta Regional Development Center, the Augusta YDC, and a Georgia Bureau of Investigation crime lab. CGL provided him with a vehicle beginning in August 2010, and Clay began commuting to Augusta to work.

Clay testified that the management position in Augusta involved “a lot of paperwork” and the supervision of four employees, and that after a year he was demoted after an audit revealed “a lot of deficiencies.” The Augusta YDC had no on-site vehicle and the facility was very large, so while Clay was allowed to keep the company truck after his demotion to commute to and from work, other employees used the truck to run errands after Clay arrived at the work site. CGL also continued to pay for insurance, gas, and maintenance on the truck. Clay’s co-worker testified that after the demotion, Clay began coming in 30 minutes to an hour late and was “griping” that the new supervisor told him he had to start being at work on time.

Clay testified that he had a motor vehicle accident in 1991 in Florida where he hit someone. He was not sure if anyone was injured or whether litigation ensued, and when asked if he was cited for criminal charges, he took the Fifth Amendment. He also “slid into” another car in a Walmart parking lot on an unspecified date, but he and the other driver just exchanged insurance information and let their insurers take care of it rather than involving the police. In 2004, he was hit from behind while driving the company truck, reported the wreck to CGL, and was off work for a week with whiplash.

In the December 11, 2011, collision that led to this lawsuit, Clay suffered serious injuries and was out of work for a time. CGL reassigned him to a facility in Macon closer to his house, and he returned to light duty work in January 2012. He was given a formal reprimand shortly afterward for using a state computer for personal reasons and using the company credit card to put gas in his personal car, then fired at the end of February 2012 for deficient performance.

CGL’s director of human resources, who was hired in March 2011, testified that before June 2012, either the company or the facility to which an employee was assigned ran pre-hiring drug tests and criminal background checks on all job applicants. It did not run subsequent background checks unless there was a reason to do so. CGL also ran motor vehicle reports (MVRs) on new hires, but after that first report it relied on its insurer to monitor its employees’ driving records. The company ran MVRs on all new employees regardless of whether they were given a company vehicle, because each facility had an on-site vehicle available to the employees to use as needed. CGL relied on its employees to self-report any subsequent arrests or tickets, and if they did so the company would then run a new MVR and background check.

When Clay was demoted from his supervisory position, CGL allowed him to keep the company truck due to his lengthy commute, but although typically when an employee was demoted his file contained related paperwork, there was no documentation about that in Clay’s file. The director had investigated a subordinate’s complaint about Clay’s attitude while he was a supervisor, but no documentation existed as to that investigation. Finally, CGL employees were supposed to receive annual reviews, but there were few written reports in any employees’ files regarding those reviews prior to the current director’s employment, and only one review in Clay’s file. Clay was not reviewed at the end of 2011 because he was out after the crash, and the director asked his supervisor not to review him when he returned because he was not at full capacity and she thought it would not be fair to review him then.

CGL enumerates three errors: the trial court erred in denying summary judgment on Wiley’s claim that CGL was liable for Clay’s negligence under respondeat superior, in finding an issue of fact as to whether CGL is liable for negligent hiring, retention, or entrustment, and in finding an issue of fact as to whether CGL is liable for negligent maintenance. We affirm the trial court’s denial of summary judgment on Wiley’s negligent entrustment claim but reverse as to the other claims.

1. CGL argues that the record contains no evidence to support Wiley’s claim that the company was vicariously liable for Clay’s negligence under a theory of respondeat superior. We agree.

When an employee is involved in a collision while operating a vehicle owned by his employer, a presumption arises that he is acting within the scope of his employment. Intl. Business Machines v. Bozardt, 156 Ga. App. 794, 794-795 (275 SE2d 376) (1980). The burden then shifts to the employer “to rebut the presumption by evidence that is clear, positive and uncontradicted and that shows the servant was not in the scope of his employment.” (Citations and punctuation omitted.) Id. If the employer presents evidence that the employee was not acting within the scope of his employment,

[t]he 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. Where the “other facts” are direct evidence, such is sufficient for the case to go to the jury. Where the “other facts” are circumstantial, however, such evidence will not defeat the employer’s motion for summary judgment, unless it is sufficient to support a verdict in the plaintiff’s favor.

(Footnotes omitted.) Littlefield Constr. Co. v. Bozeman, 314 Ga. App. 601, 603-604 (1) (725 SE2d 333) (2012).

Here, the fact Clay was employed by CGL and driving a company truck raised the presumption he was acting within the scope of his employment when the wreck occurred. CGL rebutted the presumption by showing that Clay was on his way from home to work, and the burden thus shifted to Wiley to show “other facts” from which a jury could infer that Clay was acting within the course and scope of his employment when the collision occurred, either with direct evidence or circumstantial evidence that would be sufficient to support a verdict. Clay testified that he was simply driving to work when the crash occurred. He was not on his cell phone to his employer, and he was not performing any errands for CGL on his way to work. The only evidence Wiley can summon is that the truck was occasionally used by other employees once Clay arrived at the YDC facility, but that usage does not change the fact that while he was driving to work, Clay was performing a purely personal errand.

“[Clay] was driving the [truck] to fulfill his duty of arriving at work on time, and no evidence showed that [Clay] was undertaking a duty at [CGL’s] direction at the time of the accident. In the absence of such evidence, [CGL] could not be held vicariously liable for [Clay’s] torts.” Dougherty Equip. Co. v. Roper, 327 Ga. App. 434, 437 (1) (a) (757 SE2d 885) (2014). Accord Banks v. AJC Intl., Inc., 284 Ga. App. 22, 24-25 (1), (2) (643 SE2d 780) (2007) (although driving company vehicle, employer entitled to summary judgment because employee was not prosecuting business of employer or undertaking special mission at employer’s direction); Braddy v. Collins Plumbing & Constr., 204 Ga. App. 862, 863-864 (420 SE2d 806) (1992) (insufficient evidence contradicted employee’s statement that he was driving work vehicle for the purpose of getting to work and nothing more).

Accordingly, the trial court erred in denying summary judgment to CGL on Wiley’s claim that CGL could be vicariously liable for Clay’s negligence.

2. CGL contends that the trial court erred in denying its motion for summary judgment based on Wiley’s negligent hiring, retention, and entrustment claims.

(a) Negligent Hiring and Retention.
[For] an employer to be liable for an automobile accident under the theory of negligent hiring and retention where, as here, the allegation is that the employee had a bad driving record and where the injured driver was merely a member of the general public on the public highway, the accident could not have occurred while the employee was simply commuting to work but had to occur while the employee was engaged in the employer’s business.

(Citations and punctuation omitted.) Dougherty Equip. Co., 327 Ga. App. at 438 (1) (b). Because Clay was not acting in the scope of his employment when he crossed the centerline on his way to work and collided with the car driven by Wiley’s wife, CGL was also entitled to summary judgment on Wiley’s negligent hiring and retention claim.

(b) Negligent Entrustment.
Under the theory of negligent entrustment, liability is predicated not on the doctrine of respondeat superior but on a negligent act of the owner in lending his vehicle to another to drive, with actual knowledge that the driver is incompetent or habitually reckless, and this negligence must concur, as a part of the proximate cause, with the negligent conduct of the driver on account of his incompetency and recklessness.

(Citation and punctuation omitted.) Gill Plumbing Co. v. Macon, 187 Ga. App. 481, 482-483 (2) (370 SE2d 657) (1988). A plaintiff may present circumstantial evidence that an employer has actual knowledge of an employee-driver’s habitual negligence. Ed Sherwood Chevrolet v. McAuley, 164 Ga. App. 798, 802 (1) (298 SE2d 565) (1982). For example, when an employer’s insurer, acting as the employer’s agent, inquires into the employee’s driving record, a jury might “infer that the matters contained within that driving record would be discovered.” Id. “Furthermore, a plaintiff in a negligent entrustment action is not limited to showing actual knowledge of the entruster inasmuch as that plaintiff may show actual knowledge of a pattern of reckless driving or facts from which such knowledge could reasonably be inferred.” (Citation and punctuation omitted; emphasis in original.) Gill Plumbing Co., 187 Ga. App. at 483 (2).

In this case, Wiley introduced evidence that, in addition to testing positive for methamphetamine and amphetamine after the collision at issue here, Clay’s license was suspended in 1989 after his third conviction for driving under the influence. His previous DUIs occurred in 1984 and 1986, and in conjunction with the 1986 DUI he was also convicted of obstructing a police officer and simple battery. CGL’s human resources director testified that, although Clay’s personnel file contained no record of any pre-employment screening, company policy was to run MVRs on all potential new hires, and either CGL or the client in whose facility the employee would be working would run drug tests and criminal background checks. Additionally, Clay testified that when CGL hired him, he submitted to drug tests and the company ran a criminal background check on him.

Clay’s testimony, along with the testimony of the human resources director that company policy was to run an MVR on every prospective employee, creates a question of fact as to whether CGL had actual knowledge of Clay’s pattern of driving while impaired. Given this evidence, a jury must resolve the issue of whether Clay’s prior DUIs indicated that he would drive under the influence again and whether CGL negligently entrusted him with a company vehicle.

CGL argues that even if it knew about Clay’s driving or criminal history, the offenses were too remote in time to create any liability issues for the company. We conclude that whether this prior knowledge created a direct liability under a theory of negligent entrustment on CGL’s part for the damages resulting from Clay’s early morning head-on collision is a question of fact for the jury to determine rather than a question of law for this court to decide.

“Based on [circumstantial evidence of CGL’s actual] knowledge of a series of serious driving infractions by an employee, there is a question of fact on the issue of negligent entrustment.” Dougherty Equip. Co., 327 Ga. App. at 439 (2).

Decided July 16, 2014 —

Reconsiderations denied July 31, 2014 —

Chambless, Higdon, Richardson, Katz & Griggs, Mary M. Katz, for appellant.

Reynolds, Horne & Survant, John C. Fleming, for appellee.

3. Finally, CGL argues that the trial court erred in denying summary judgment on Wiley’s claims of negligent training and maintenance, and we agree. The record contains no evidence of negligent training, nor does Wiley argue the point in his appellate brief. As to the maintenance of the company truck, when asked if it had experienced any mechanical defects before the accident, Clay responded that he had had a flat tire and was driving on the full-size spare that came with the truck when the collision occurred. Wiley presented no evidence that the full-sized spare tire contributed in any way to the head-on collision. We therefore agree with CGL that the trial court erred in denying the company’s motion for summary judgment on Wiley’s negligent training and maintenance claims.

Judgment affirmed in part and reversed in part.

Boggs and Branch, JJ., concur.

       In June 2012, a new company bought CGL and now runs background checks on all potential employees.


author: Dillard, Judge.

text:
    A14A0474.
    SAMPSON v. GEORGIA DEPARTMENT OF JUVENILE JUSTICE.
    (760 SE2d 203)
   Dillard, Judge.

Thomas G. Sampson II (“Sampson”) appeals the trial court’s grant of the Georgia Department of Juvenile Justice’s (“D JJ”) motion to dismiss his complaint alleging violations of the Georgia Open Records Act. Sampson contends that the trial court erred in (1) finding that res judicata barred his complaint, (2) finding that the complaint should be dismissed for insufficient service, and (3) failing to find an ongoing violation of the Open Records Act and, instead, concluding that same was irrelevant as to whether res judicata barred the action. Because we agree with Sampson that the trial court erred in dismissing his complaint, we reverse.

The record reflects that Sampson filed suit against the DJJ, alleging violations of the Open Records Act with regard to more than 20 requests for records from different juvenile-detention centers. Sampson asked that the trial court issue an injunction ordering production of the requested documents, a declaration that the D JJ’s alleged failure to respond was unlawful, as well as an award of attorney fees and expenses.

The DJJ filed a special appearance and motion to dismiss, in which it contended that Sampson was the attorney who represented plaintiffs in a virtually identical action against a DJJ staff attorney with regard to the very same Open Records Act requests, which had previously been dismissed by the trial court. The DJJ contended that, as the attorney for the prior plaintiffs, Sampson was on notice for more than 30 days prior to the dismissal order in the previous action that the plaintiffs lacked standing to bring the claim and that the DJJ staff attorney was an improper party. The trial court ultimately found the same in its decision to dismiss the prior action, concluding that the action was initiated “without substantial justification.” Accordingly, the DJJ argued that Sampson’s action was barred by res judicata. The DJJ further contended that the action should be dismissed for failure to properly serve the DJJ, as well as for failure to state a claim upon which relief could be granted.

The trial court granted the DJJ’s motion to dismiss Sampson’s action, finding that res judicata applied to bar the action and that Sampson failed to properly serve the DJJ. Sampson now appeals the trial court’s dismissal of his action, which we review de novo.

1. Sampson first contends that the trial court erred in finding that the doctrine of res judicata barred his action because (1) there is no privity between the parties and (2) the cause of action is not identical. We agree that there is no privity between the plaintiffs in the prior action and the current action and, accordingly, res judicata cannot bar this lawsuit.

The record reflects that the prior action was brought by Quindarious Fleming and Demarko Moss against Andre Castaing in his official capacity as a staff attorney for the DJJ for alleged violations of the Open Records Act regarding the same record requests at issue here. It is undisputed that Fleming and Moss were represented by Sampson in that action. And in granting Castaing’s motion to dismiss, the trial court found that the record requests were made by Sampson and Demetra Ford, his co-counsel, and that no request indicated that it was made on behalf of Fleming or Moss. The trial court determined that the named plaintiffs in the prior action had interposed no Open Records Act requests and were instead “attempting to enforce requests interposed by other persons, more specifically, their attorneys in this action.” Accordingly, the court concluded that because no existing law permitted a “derivative” prosecution of an Open Records Act request, the action required dismissal because Fleming and Moss lacked standing.

The trial court in the previous action went on to conclude that, even if Fleming and Moss had standing, they failed to sue the proper defendant, and, further, that “[d]espite the notice provided to them by Defendant’s answer and motion to dismiss, [Fleming and Moss] [had] not sought to substitute a proper party plaintiff or defendant in this action in the more than thirty days that [had] since expired.” Thus, the trial court granted Castaing’s motion to dismiss on May 1, 2013.

On May 14, 2013, Sampson filed the present action in the trial court with himself named as plaintiff and the DJJ named as defendant. And, as further described supra, the DJJ subsequently filed a ■motion to dismiss the complaint on, inter alia, the grounds of res judicata. The trial court granted the motion, which we now reverse.

In Georgia, OCGA § 9-12-40 represents a codification of the common-law doctrine of res judicata, and provides as follows:

A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.

And the purpose of this doctrine is to prevent the “re-litigation of claims which have already been adjudicated, or which could have been adjudicated, between identical parties or their privies in identical causes of action.” Thus, three prerequisites must be satisfied before res judicata acts as a bar to subsequent litigation, those being the identity of the cause of action, identity of the parties or their privies, and a previous adjudication on the merits by a court of competent jurisdiction. The party invoking the doctrine of res judicata, of course, bears the burden of proving the defense.

Here, despite the trial court’s determination to the contrary, the first prerequisite has not been and cannot be established in this case. And as a result, the DJJ is unable to satisfy its burden of proof on this affirmative defense because, on the very face of the prior adjudication (and by the trial court’s own determination in dismissing the action), there is no privity between Sampson and the named plaintiffs in the prior suit. The trial court dismissed the prior action, inter alia, on the basis that Fleming and Moss lacked standing to pursue an alleged violation of the Open Records Act based on record requests made by Sampson.*

And in looking to the identity of parties for purposes of res judicata, our Supreme Court has held that

it is not required that all the parties on the respective sides of the litigation in the two cases shall have been identical, but it is sufficient as to identity of parties if those by and against whom the defense of res judicata is invoked in the latter case were real parties at interest or privies as to the controversy in the former case.

Indeed, just as a State may not, consistent with the dictates of the Fourteenth Amendment to the United States Constitution, “enforce a judgment against a party named in the proceedings without a hearing or an opportunity to be heard, so it cannot, without disregarding the requirement of due process, give a conclusive effect to a prior judgment against one who is neither a party nor in privity with a party therein.” And while there is a recognized exception to this general rule when, “in certain limited circumstances, a person, although not a party, has his interests adequately represented by someone with the same interests who is a party,” the trial court in the prior action determined that Fleming and Moss could not represent any interest in that proceeding. As such, because the trial court made this determination, Fleming and Moss cannot be said to be in privity with Sampson, and res judicata does not bar Sampson’s action in the case sub judice.

2. Sampson further contends that the trial court erred in dismissing his complaint due to insufficient process. The DJJ moved to dismiss Sampson’s complaint on the ground that the service copy of the complaint lacked pages containing five paragraphs and the signature page with prayers for relief, and the trial court also granted dismissal on this ground pursuant to OCGA § 9-11-12 (b) (4).

To begin with, we note the distinction between OCGA § 9-11-12 (b) (4) and OCGA § 9-11-12 (b) (5), the former permitting dismissal for insufficient process and the latter for insufficient service of process. Neither the DJJ in its appellate brief nor the trial court in its order of dismissal cites to any case in support of the proposition that a motion to dismiss maybe granted pursuant to OCGA § 9-11-12 (b) (4) when a service-copy of a complaint is missing pages. And this Court’s own research has discovered no such authority. Instead, rather than deal with irregularities in a complaint, insufficiency of process challenges irregularities in the contents of the summons alone, whereas “insufficient service of process deals with the manner of delivery of summons and complaint.” At least insofar as federal courts are concerned, “[f]or sufficiency of process, a summons satisfies due process when it complies with the provisions of [Federal Rule of Civil Procedure Rule 4 (b)] or any other applicable provision that deals specifically with the content of the summons.” Accordingly, the trial court erred in granting the motion to dismiss on the ground of insufficient process when the DJJ made no allegation as to any insufficiency in the summons.

Nevertheless, service of an incomplete complaint can certainly constitute insufficient service of process. Indeed, a defendant is required to admit or deny each allegation contained within a complaint, and when a defendant fails to clearly deny an allegation, the defendant is deemed to have admitted same. Suffice it to say, a defendant who does not possess a complete copy of the complaint cannot possibly admit or deny each allegation contained therein. Accordingly, it is certainly conceivable that service of an incomplete complaint amounts to insufficient service of process.

A court’s finding of insufficient service of process is affirmed absent a showing of an abuse of discretion, and we will not disturb the trial court’s findings if they are supported by any evidence. But when a defendant in a lawsuit challenges the sufficiency of service, the defendant bears the burden of showing improper service. And although a return of service provides prima facie proof of proper service, “it is not conclusive and may be traversed by proof that such facts are untrue.” Nevertheless, the return of service can only be set aside “upon evidence which is not only clear and convincing, but the strongest of which the nature of the case will admit.”

Decided July 11, 2014 —

Reconsideration denied July 31, 2014 —

Thomas Kennedy Sampson & Tompkins, Thomas G. Sampson II, pro se.

And here, as the party challenging the sufficiency of service of process, the DJJ was required to support its contention with such evidence. This, it did not do. To be sure, attached to D JJ’s motion to dismiss was a copy of the service-copy complaint with missing pages; however, the DJJ did not attach an affidavit of the person who received service on its behalf. Accordingly, the DJJ did not submit sufficient evidence to show improper service of process, and we will not affirm the trial court’s dismissal under the right-for-any-reason standard.

For all of the foregoing reasons, we reverse the trial court’s judgment.

Judgment reversed.

Miller, J., concurs. Doyle, P. J., concurs fully in Division 1 and in judgment only as to Division 2.

Samuel S. Olens, Attorney General, Angelique B. McClendon, Assistant Attorney General, for appellee.

        See OCGA § 50-18-70 et seq.

        See Lee v. Owenby & Assocs., Inc., 279 Ga. App. 446, 447 (1) (631 SE2d 478) (2006) (“We review de novo the grant of a motion to dismiss.”).

       Because we hold that there is no privity between the plaintiffs, we need not address Sampson’s remaining contentions as to why res judicata should not apply. And because we reverse the trial court’s ruling on this ground, we also need not address Sampson’s third enumeration of error, which is that the trial court erred in failing to address whether the DJJ engaged in an ongoing Open Records Act violation when the trial court ended its inquiry on grounds of res judicata. Suffice it to say, as a general rule, an appellate court should avoid deciding issues that are unnecessary to the resolution of the suit at hand. See Johnson v. Morris, 557 P.2d 1299, 1305 (Wash. 1976) (“As a general rule, this court will decide only such questions as are necessary for a determination of the case presented for consideration, and will not render decisions in advance of such necessity . . . .”).

        See Worth v. Seldin, 422 U. S. 490, 498 (II) (95 SCt 2197, 45 LE2d 343) (1975) (“In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.”); Feminist Women’s Health Center v. Burgess, 282 Ga. 433, 434 (1) (651 SE2d 36) (2007) (“In the absence of our own authority, we frequently have looked to United States Supreme Court precedent concerning Article III standing to resolve issues of standing to bring a claim in Georgia’s courts.”).

        See OCGA § 9-11-17 (a) (“No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.”).

        Crowe v. Elder, 290 Ga. 686, 688 (723 SE2d 428) (2012); see also Body of Christ Overcoming Church of God, Inc. v. Brinson, 287 Ga. 485, 486 (696 SE2d 667) (2010) (same).

        Crowe, 290 Ga. at 688; Brinson, 287 Ga. at 486.

        Sanders v. Trinity Universal Ins. Co., 285 Ga. App. 705, 707 (3) (647 SE2d 388) (2007); see also Callaway v. Irvin, 123 Ga. 344, 351 (4) (51 SE 477) (1905) (“Upon the party setting up an estoppel by judgment rests the burden of proving it.”).

       We note that both below and on appeal, the DJJ’s sole argument in support of this prerequisite was that the plaintiffs in both suits were in privity because, as the original plaintiffs’ attorney, Sampson “claimed to make the open records requests on behalf of the [original] [p]laintiffs in the first case as well as the second case.” And the DJJ relied upon the factually and procedurally inapposite case of Ruth v. Herrmann, 291 Ga. App. 399, 401 (662 SE2d 726) (2008) (noting, for purposes of recovering under a lien, that an attorney was in privity with the client because “[i]t is a well-established principle that an attorney has the same right over an action, judgment or decree as his client had or might have had for the amount due the attorney” (punctuation omitted) (emphasis supplied)), in support of this contention. In its motion to dismiss filed with the trial court (and also in its brief before this Court) the DJJ made no argument that Sampson was in privity with the prior plaintiffs by reason of controlling the prior litigation. We are cognizant of the fact that some jurisdictions consider an attorney to be in privity with a former client for purposes of res judicata due to the control the attorney asserted over the prior litigation. See, e.g., Kinsky v. 154 Land Co., LLC, 371 SW3d 108, 113 (Mo. Ct. App. 2012); Smith v. Jenkins, 562 A2d 610, 615-16 (II) (A) (2) (D.C. App. 1989); Restatement (Second) of Judgments § 39 (1982) (“A person who is not a party to an action but who controls or substantially participates in the control of the presentation on behalf of a party is bound by the determination of issues decided as though he were a party.”). But see Restatement (Second) of Judgments § 39 cmt. e (1982) (“A person who undertakes to control litigation on behalf of another is affected only in the capacity in which he does so. Thus, a trustee who takes control of litigation involving another in order to protect the trust is not on that account bound in a subsequent action in which he appears in his individual capacity----”). However, because this argument was not raised before the trial court in the DJJ’s effort to prove its affirmative defense, nor was it raised by the DJJ in its appellate brief, we do not address it under the unique circumstances of this case and leave consideration of that question for another day.

        Cf. Waggaman v. Franklin Life Ins. Co., 265 Ga. 565, 566 (1) (458 SE2d 826) (1995) (“As [the proponent of the defense] clearly showed that [she] and the party against whom it was asserted were the parties engaged in the earlier action, the trial court did not err when it sustained the affirmative defense against the attack on identity of parties.”). See generally Comment, “Privity and Mutuality in the Doctrine of Res Judicata, 35 Yale L.J. 607, 608-09 (1926) (noting that “[a] privy within this rule must be one who claims an interest in the subject-matter affected by the judgment through or under one of the parties,” the concepts of privity and mutuality are “of ancient origin, being found in the Year Books and in the Roman law,” and that “[n]o satisfactory explanation for [the privity requirement] has been discovered other than some supposed and unprovable principle of ‘natural’ fairness”).

       We make no determination as to the appropriateness of this conclusion by the trial court because that order of dismissal is not on appeal before us. And in that regard, we note that Fleming and Moss did not appeal the trial court’s dismissal of their action and, as to Fleming and Moss, that dismissal is indeed res judicata. See Laosebikan v. Lakemont Community Ass’n, 302 Ga. App. 220, 221 (1) (690 SE2d 505) (2010) (holding that unappealed ruling in lower court was conclusive and “any claim raised concerning the merits of that ruling is barred by res judicata”).

        Darling Stores Corp. v. Beatus, 199 Ga. 215, 215 (3) (33 SE2d 701) (1945).

        Richards v. Jefferson County, Ala., 517 U. S. 793, 797 (II) n.4 (116 SCt 1761, 135 LE2d 76) (1996) (citations omitted); accord Postal Telegraph Cable Co. v. City of Newport, Ky., 247 U. S. 464, 476 (38 SCt 566, 62 LE 1215) (1918).

        Richards, 517 U. S. at 798 (II) (punctuation omitted).

        Cf. In re Cutty’s-Gurnee, Inc., 133 B.R. 969, 973 (2) (Bank. N.D. Ill. 1991) (applying principles of res judicata and “finding] that there is no such identity since Great American lacked standing to litigate the Trustee’s avoidance claim as his agent and this Court expressly held in the prior proceeding that it could not decide the avoidance issue on the merits absent some action by the Trustee”).

        But see Faulknor v. Virgin Islands, Case No. ST-13-CV-137, 2014 WL 773055, at *3 (I) (V.I. Feb. 19, 2014) (discussing a motion to dismiss based on missing page in complaint while citing to Rule 12 (b) (4) but analyzing in terms of “insufficient service of process”).

        See Fairfax v. Wells Fargo Bank, N.A., 312 Ga. App. 171, 173-74 (2) (718 SE2d 16) (2011) (“Any deficiency in the summons is in the nature of the defense of ‘insufficiency of process.’ ”); accord In re Endeavor Highrise, L.P., 432 B.R. 583, 667 (iii) (Bank. S.D. Tex. 2010) (“Insufficiency of process challenges irregularities in contents of summons.”); cf. Brown v. Way, 33 Ga. 190, 191 (1862) (“Process is a mandatory precept, issuing from a Court. The mandate is set forth in the body of the instrument, which we call a process, and this may be printed, or written out by any scrivener, but it is the signature of the proper officer which gives it efficacy. From the instrument itself, the person to whom it is addressed, or who is to be affected by it, learns what is required of him; from the official signature he learns that it emanates from a Court authorized so to command him.”); Philip Weltner II, Georgia Process & Service § 1-1 (1993 ed.) (“Prior to the enactment of the Civil Practice Act of 1966, the summons was known as ‘process.’ ”); Richard C. Ruskell, Georgia Practice & Procedure § 8:1 (2013-2014 ed.) (“Technically, ... process is the means whereby the court compels the appearance of a defendant before it for compliance with its demands. The term ‘process,’ in fact, includes any and every writ, rule, order, notice, or decree, including any process of execution, that may issue in or upon any action, suit, or legal proceedings. The object and purpose of process is to bring the defendant into court.”).

        In re Endeavor Highrise, L.P., 432 B.R. at 667 (iii); see also In re Dairy Farmers of Am., Inc. Cheese Antitrust Litigation, 767 FSupp2d 880, 892 (2) n.5 (N.D. Ill. 2011) (“Essentially, a motion under 12 (b) (4) challenges the form of the summons, whereas a 12 (b) (5) motion challenges the service of the summons.”).

        In re Endeavor Highrise, 432 B.R. at 667 (iii) (punctuation omitted).

        Cf. In re Endeavor Highrise, L.P., 432 B.R. at 667 (iii) (finding that process was sufficient when answer “[did] not allege any defect in the summons which would prevent it from complying with [Federal Rule of Civil Procedure 4 (b)] or any other applicable provision that deals specifically with the content of the summons”).

        Compare Cherry v. Spence, 249 F.R.D. 226, 229 (II) (E.D. N.C. 2008) (dismissing action when plaintiff served defendants with only one page of the complaint), with Young v. Car Rental Claims, Inc., 255 FSupp2d 1149, 1153 (I) (D. Haw. 2003) (declining to dismiss action when defendants were initially served with partial complaint but were later served with complete amended complaint and “suffered no great prejudice”).

        See OCGA § 9-11-8 (b) (“Aparty shall state in short and plain terms his defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies.”); see also Cherry, 249 F.R.D. at 229 (II) (“This rule is important, because a defendant is required to admit or deny each allegation contained in the complaint, and where a defendant fails to clearly deny an allegation, he is deemed to have admitted it.”).

        Cherry, 249 F.R.D. at 229 (II); see also Am. Mobile Imaging, Inc. v. Miles, 260 Ga. App. 877, 878 (581 SE2d 396) (2003) (“Due process requires notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” (punctuation omitted) (emphasis supplied)).

        See Furness v. Mills, No. 2:12-cv-00256 DN, 2013 WL 3995258, at *3, *4 (D. Utah Aug. 5, 2013) (acknowledging dearth of case law on this issue but concluding that “[a] complaint missing a page of alleged facts and the beginning of the first claim would likely not constitute sufficient service of process in the Utah courts”).

        See Nesmith v. Landmark Dodge, Inc., 302 Ga. App. 315, 315 (691 SE2d 240) (2010) (“Absent a showing of an abuse of discretion, a trial court’s finding of insufficient service of process must be affirmed. Those findings will not be disturbed on appellate review when supported by any evidence.” (punctuation omitted)).

        Nesmith, 302 Ga. App. at 316.

        Oglesby v. Deal, 311 Ga. App. 622, 626 (1) (716 SE2d 749) (2011) (punctuation omitted).

        Id. (punctuation omitted).

        See Nazli v. Scott, 203 Ga. App. 523, 524 (2) (417 SE2d 187) (1992) (“Appellants were required to support their defenses of insufficiency of process and service of process with evidence.”).

        See Patterson v. Brown, Civil No. 3:06cv476, 2008 WL 219965, at *9 (III) (C) (1) (W.D. N.C. 2008) (defendants who claimed insufficient service by receipt of incomplete complaints attached to motion to dismiss affidavits averring same in addition to the partial copies), reversed on other grounds by Patterson v. Whitlock, 392 Fed. Appx. 185, 191 (II) (4th Cir. 2010) (holding that defendants waived right to assert insufficient service of process with incomplete complaint); cf. Bohorquez v. Strother, 287 Ga. App. 98, 99 (650 SE2d 765) (2007) (recognizing that “ ‘a return of service may be impeached by sworn statements made on personal knowledge’ ” and citing cases in which sworn affidavits provided sufficient evidence to contradict return of service).

        See C.C. Leasing Corp. v. Bd. of Tax Assessors of Hall County, 143 Ga. App. 520, 520 (239 SE2d 204) (1977) (affirming motion to dismiss when judgment was right for any reason).


author: Phipps, Chief Judge.

text:
    A14A0539.
    LUCAS v. THE STATE.
    (760 SE2d 257)
   Phipps, Chief Judge.

Christopher Lucas was convicted of two counts of burglary, criminal damage to property (second degree), theft by taking, and possession of tools for the commission of a crime. He contends that the trial court erred by (1) sentencing him for both burglary counts, because they were part of a single continuous act and should have merged; and (2) denying his motion for new trial based on his claim of ineffective assistance of trial counsel. Because the two burglaries merged as a matter of fact, we vacate one burglary conviction and sentence and remand the case for resentencing. We affirm Lucas’s remaining convictions because Lucas failed to show that his trial counsel provided ineffective assistance.

1. Lucas contends that the trial court erred by sentencing him for two burglary counts instead of only one. He asserts that the charged burglary offenses merged because they were committed at the same time and place, were part of a continuous criminal act, and were inspired by the same criminal intent.

Count 1 of the indictment alleged that Lucas committed burglary when, on March 28, 2012, without authority and with intent to commit a theft therein, he entered and remained within a building of another (to wit: a Huddle House restaurant at a specified location). Count 5 alleged that Lucas committed burglary when, on the same date, without authority and with intent to commit a theft therein, he entered and remained within that same building (the Huddle House restaurant). The indictment stated that the offense alleged in Count 1 was “separate and apart from the offense alleged in Count 5” of the indictment, and that the offense alleged in Count 5 was “separate and apart from the offense alleged in Count 1.”

The evidence showed the following. On March 28,2012, a Huddle House restaurant waitress arrived at work shortly after 5:00 a.m., and found the glass on the front door broken. The waitress telephoned police and the manager. When the manager arrived, she entered the store and observed that the frame of the office door was broken, the safe that had been in the office was gone, and the cash register had been pried, but not opened. A “change jar” that was kept inside the safe, containing about $400, was also missing.

A police detective arrived and spoke with the owner, who had also arrived. The owner showed the detective a surveillance video taken from the restaurant’s cameras; the video was later shown to the jury. The video showed the glass on the front door break and a person enter the building. The person attempted to open the cash register, but could not. He left and returned between five and twenty minutes later. When he returned, he broke into the office with “some sort of metal thing,” dragged a safe out of the office, put the safe in a vehicle, then left. A second police detective saw still photographs taken from the video and told the first detective that he recognized the person depicted therein as Lucas.

The two detectives then went to Lucas’s home to interview him. Lucas told the detectives that he would return the safe to them and possibly some cash or the contents of the safe. The detectives went to the police station and waited for Lucas, but he did not arrive.

The detectives later returned to Lucas’s house, which he shared with his girlfriend, T. H. T. H. told the detectives that she and Lucas took the safe from the restaurant. She also told the detectives where the safe could be found. Based on their conversation with T. H., the detectives were able to locate the safe; it was in a ravine by a roadside, and a section of the safe had been cut out. T. H. consented to a search of the home, and directed detectives to a duffle bag in the home’s crawlspace. The bag contained a crow bar, a power saw, and cutting blades capable of cutting through pipes and “just about anything.” Detectives also found in the crawlspace ajar like the cashjar that had been inside the safe.

“Under Georgia law, offenses merge and multiple punishment is prohibited if one offense is included in the other as a matter of law or fact.”

For separate offenses charged in one indictment to carry separate punishments, they must rest on distinct criminal acts. If they were committed at the same time and place and [were part] of a continuous criminal act, and inspired by the same criminal intent, they are susceptible of only one punishment.

“Whether offenses merge is a legal question, which we review de novo.”

The version of OCGA § 16-7-1 (a) in effect when the offenses were committed (March 2012) provided, in pertinent part: “A person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains . . . within any . . . building ... or any room or any part thereof.” The question presented here, then, is whether Lucas’s acts of entering, exiting, and reentering the same restaurant twice within a five to twenty-minute period for the purpose of committing theft can be punished as two “separate units of prosecution” under the burglary statute. The state contends that the two burglary counts did not merge, because the conduct at issue was not part of a single continuous act. According to the state, “the continuum of [Lucas’s] act was broken when he left the premises of Huddle House for a period of time and returned to take the store’s safe.” We disagree.

Here, both burglary counts charged Lucas with entering the same building on the same date with the intent to commit the same crime—theft. And the evidence showed that the acts were committed at the same location, were inspired by the same criminal intent (to commit theft in the Huddle House restaurant building), and were part of a continuous criminal act spanning a matter of minutes. The criminal acts were not “separated by a meaningful interval of time or with distinct intentions.”* The interval of minutes between the acts “did not signal the completion of a separate criminal act but signified only the temporary failure to accomplish the one intentional criminal transaction.” The criminal conduct constituted a single course of conduct, not separate offenses. Further, without evidence of a legislative intent to allow multiple punishments for the same course of conduct, acts that constitute a continuing criminal course of conduct are not punishable separately; there is no evidence of such legislative intent regarding the burglary statute. Thus, the trial court erred by failing to merge the two counts. Accordingly, we vacate the conviction and sentence on one of the burglary counts, and remand the case to the trial court for resentencing.

2. Lucas contends that his trial counsel provided ineffective assistance by not moving to suppress incriminating statements that he had made to detectives at his house. At trial, the detectives testified that when they interviewed Lucas at his house, Lucas told them that he knew where the safe was and promised to return the safe and some of its contents. He also said that the safe was “heavier than we thought.”

Citing OCGA § 24-8-824, Lucas asserts that the incriminating statements were inadmissible because they had been induced by the detectives’ promise to obtain a bond for him and their suggestion that he would not be prosecuted if he returned the property. When it denied Lucas’s motion for new trial based on the ineffective assistance claim, the court found that Lucas had not shown, inter alia, a reasonable probability that the outcome of the trial would have been different had his statements been suppressed.

[I] n order to prevail on his claim of ineffective assistance of counsel, [Lucas] must show under Strickland v. Washington,[ ] that his attorney’s performance was deficient, and that, but for such deficiency, there is a reasonable probability that the proceeding would have ended differently. Moreover, in order to meet this burden, [Lucas] must overcome the strong presumption that his attorney’s representation fell within the wide range of reasonable professional conduct.

This court reviews a trial court’s legal conclusions de novo, and will uphold a trial court’s findings of fact on a claim of ineffective assistance of counsel unless those findings are clearly erroneous.

“When trial counsel’s failure to file a motion to suppress is the basis for a claim of ineffective assistance, the defendant must make a strong showing that the damaging evidence would have been suppressed had counsel made the motion.”

Further, a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies____If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.

The detectives testified at trial about their interview of Lucas at his residence; a portion of the interview was recorded, and a video and audio recording of the interview was played at trial. The evidence showed that during the interview, the detectives told Lucas that: the restaurant owners wanted the safe back; “[t]hat’s all they want, is their safe back. That’s all you gotta do. Give these people their safe hack”; “[i]f Huddle House gets their safe, and their little hit of cash back, they’re good to go”; if Lucas helped them get the safe back, Huddle House, the detectives, their boss, and the district attorney (DA) would be happy; and the detectives would tell the DA that Lucas had “worked with us, and see if they can help you out.” The detectives added that if the DA’s office “wanted” Lucas, it would have prosecuted him on an unrelated burglary charge, but had not, and that the DA’s office “doesn’t care about Chris Lucas.” The detectives also purportedly promised to arrange for bond for Lucas.

Assuming that the detectives’ statements to Lucas suggested that he would not be prosecuted if he returned the property, and assuming further that the statements constituted an impermissible hope of benefit (and that Lucas was induced thereby to make the incriminating statements), and that Lucas has thus made a strong showing that the evidence would have been suppressed had counsel made the motion, his ineffective assistance claim still must fail. This is because Lucas has failed to show a reasonable probability that the outcome of the trial would have been different had his statements been excluded, given the other substantial evidence of his guilt.

Decided July 16, 2014 —

Reconsideration denied July 31, 2014.

Margaret E. Flynt, S. Cindy Wang, Roger L. Curry, for appellant.

Leigh E. Patterson, District Attorney, Emily G. Johnson, Assistant District Attorney, for appellee.

Judgment affirmed in part and vacated in part, and case remanded for resentencing.

Ellington, P. J., and McMillian, J., concur.

       OCGA § 16-7-1 (a) (2012) (former version).

       OCGA § 16-7-23.

       OCGA § 16-8-2.

       OCGA § 16-7-20.

       Citing technical difficulties, the state did not show at trial the entire video. In addition to showing parts of the video, the state introduced still photographs taken from the video and the testimony of the owner and detectives who had viewed the video, regarding what it showed.

        McConnell v. State, 263 Ga. App. 686, 693 (7) (589 SE2d 271) (2003).

        Hawkins v. State, 302 Ga. App. 84, 86 (2) (690 SE2d 440) (2010); York v. State, 242 Ga. App. 281, 295 (8) (528 SE2d 823) (2000); Hubbard v. State, 168 Ga. App. 778, 779 (2) (310 SE2d 556) (1983).

        Nosratifard v. State, 320 Ga. App. 564, 570 (2) (740 SE2d 290) (2013) (citation and punctuation omitted).

       See Withrow v. State, 275 Ga. App. 110, 114 (4) (619 SE2d 714) (2005); Smith v. State, 290 Ga. 768, 773 (3), n. 4 (723 SE2d 915) (2012). See Nosratifard, supra at 570 (2), n. 8 (“Because the instant case does not involve two distinct statutory provisions, the ‘required evidence’ test does not apply.”) (citations and punctuation omitted).

       (Emphasis omitted.)

        Thompson v. State, 291 Ga. App. 355, 361 (5) (662 SE2d 135) (2008) (citations omitted); see generally Bonner v. State, 308 Ga. App. 827, 831 (2) (709 SE2d 358) (2011) (three batteries were part of a continuous criminal act and thus merged into one).

        Ingram v. State, 279 Ga. 132, 133-134 (2) (610 SE2d 21) (2005) (citations omitted); Crowley v. State, 315 Ga. App. 755, 759-760 (3) (728 SE2d 282) (2012).

       See generally Withrow, supra.

       Id.

       See generally Hubbard, supra at 779-780 (2).

       See Curtis v. State, 275 Ga. 576, 577 (1) (571 SE2d 376) (2002); Crowley, supra at 757, 760 (3), n. 4; Withrow, supra; Mack v. State, 283 Ga. App. 172, 175-176 (3) (641 SE2d 194) (2007); Ratledge v. State, 253 Ga. App. 5, 7 (3) (557 SE2d 458) (2001); McConnell, supra. Compare Crumley v. City of Atlanta, 68 Ga. App. 69, 72-73 (22 SE2d 181) (1942) (convictions for two counts of disorderly conduct were authorized and were not part of one continuous criminal transaction, where acts occurred two to three hours apart and at different locations).

       OCGA § 24-8-824 (former OCGA § 24-3-50) provides: “To make a confession admissible, it shall have been made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury.” See Woodall v. State, 294 Ga. 624, 628 (4), n. 5 (754 SE2d 335) (2014) (noting that former OCGA § 24-3-50 is now codified as OCGA § 24-8-824 as part of the new Georgia Evidence Code which took effect on January 1, 2013). Ga. L. 2011, pp. 99, 214, § 101. The trial in this case commenced in January 2013.

       466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984).

        White v. State, 281 Ga. 20, 23 (4) (635 SE2d 720) (2006) (citations omitted).

       See id.; Harris v. State, 314 Ga. App. 816 (726 SE2d 455) (2012).

        Ross v. State, 313 Ga. App. 695, 697 (1) (b) (722 SE2d 411) (2012) (citation and punctuation omitted).

        Coney v. State, 316 Ga. App. 303, 306 (3) (a), (b) (728 SE2d 899) (2012) (citation and punctuation omitted).

       See Canty v. State, 286 Ga. 608, 610-611 (690 SE2d 609) (2010) (reversing conviction where trial court admitted appellant’s incriminating statement which had been induced by the promise of a hope of benefit; appellant had been told that confessing to the crime could result in a shorter term of punishment). Regarding whether a promise to secure bond is a hope of benefit which would render a confession inadmissible, see generally Pounds v. State, 189 Ga. App. 809, 810 (1) (377 SE2d 722) (1989) (a reduction of bond is a collateral benefit, not the hope of lighter punishment which renders a confession inadmissible).

       See generally Ross, supra at 697 (1) (b).

       See Miller v. State, 293 Ga. 638, 640 (2) (748 SE2d 893) (2013); Wallace v. State, 272 Ga. 501, 503-504 (3) (530 SE2d 721) (2000); Askea v. State, 153 Ga. App. 849, 851-852 (3) (267 SE2d 279) (1980). Compare Suluki v. State, 302 Ga. App. 735, 738 (1) (691 SE2d 626) (2010).