author: ELLINGTON, Presiding Judge. DILLARD, Judge,

text:
    A15A0502.
    CLAYTON COUNTY v. SEGREST.
    (775 S.E.2d 579)
   ELLINGTON, Presiding Judge.

During a police pursuit, the suspect’s vehicle struck the motorcycle of James Segrest, who died from his injuries. Karen Segrest, James Segrest’s surviving spouse, filed this wrongful death action against Clayton County. Segrest contended that the County’s officer showed reckless disregard for proper law enforcement procedures in his decisions to initiate and continue the pursuit of the suspect, and so caused the decedent’s death. Following our grant of its application for interlocutory appeal, the County appeals from the trial court’s order denying its motions to disqualify Segrest’s experts and its motion for summary judgment. The County claims that the trial court erred in denying its motions to disqualify to the extent that the experts’ opinions are not reliable, do not assist the trier of fact, and amount to legal conclusions. The County further contends that, as its officer did not recklessly disregard proper law enforcement procedures, the trial court erred in denying its motion for summary judgment. For the reasons set forth below, we affirm the trial court’s order denying the County’s motion for summary judgment, and, as to the order denying the County’s motions to disqualify, we affirm in part and reverse in part.

Under OCGA § 9-11-56 (c),

[s]ummary judgment is warranted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. We review the grant or denial of a motion for summary judgment de novo, and we view the evidence, and the reasonable inferences drawn therefrom, in a light most favorable to the nonmovant.

(Punctuation and footnotes omitted.) Assaf v. Cincinnati Ins. Co., 327 Ga. App. 475, 475-476 (759 SE2d 557) (2014).

The evidence shows that on the evening of August 14, 2008, Lance Locke was driving south on 1-75 when he saw a Clayton County police officer parked on the side of the freeway. Locke saw the officer pull out and begin to accelerate behind him. The County’s officer testified that when Locke passed by he saw him speeding, change lanes, and “cut[ ] off” another vehicle, which was forced to brake in order to avoid a collision. The officer assessed that Locke was operating his vehicle with no regard for his safety or the safety of others, and that he had committed the offense of reckless driving. Locke averred that he did not make any abrupt lane changes, cut off any cars, or come close to causing or being in a wreck.

When Locke exited off of 1-75 onto State Route 54, the officer also exited the freeway. As Locke exited the highway, his car crossed the right fog line of the exit ramp. After Locke reached the end of the ramp, his car again crossed the fog line as he made a right turn from the ramp onto State Route 54, and at that time the officer activated the blue and red lights of his patrol car, signaling that Locke should pull over and stop. According to the officer, he initiated the traffic stop because of Locke’s multiple lane violations and reckless driving. He also maintained that he had reason to suspect Locke was driving under the influence.

Rather than stop, Locke accelerated and attempted to elude the officer. Locke averred that he had previously received a traffic citation for which he had failed to appear in court, and he assumed that the officer had signaled for him to stop because a warrant had been issued on the outstanding traffic ticket. According to Locke, he knew of no traffic violation that he had made from the time he first saw the officer until the officer signaled him to pull over and stop.

The officer pursued Locke on State Route 54, a 45 mph zone, through intersections and red traffic lights at up to 110 mph, but Locke was traveling even faster. During the pursuit, Locke’s vehicle struck the motorcycle driven by the decedent, who died from the resulting injuries. Locke averred that he would not have accelerated to the speeds which he reached had the officer not chased him; rather, Locke maintained, had the officer not initiated or had discontinued the chase, he would have slowed down and turned off the road within a few blocks.

1. As a preliminary issue, the County represents that the material facts, as shown by the deposition testimony of its officer, are undisputed because the conflicting portions of Locke’s affidavit are not competent evidence. The County shows that, in a June 26, 2009, hearing, Locke pled guilty to, among other charges arising out of his actions on August 14, 2008, driving under the influence, reckless driving, failure to maintain lane, and speeding. Therefore, the County argues, those portions of Locke’s affidavit in contradiction to his testimony at that hearing should not have been considered for purposes of summary judgment. The County does not present any legal authority to support its argument that portions of Locke’s affidavit are not competent evidence. Accordingly, we deem the argument abandoned. See Court of Appeals Rule 25 (c) (2); Dixon v. MARTA, 242 Ga. App. 262, 266 (4) (529 SE2d 398) (2000) (Rhetoric is not a substitute for legal analysis, which requires “a discussion of the appropriate law as applied to the relevant facts.”).

2. The County claims that the opinions of Segrest’s experts, Geoffrey Alpert and Andrew Scott, are unreliable, would not assist the trier of fact, and amount to legal conclusions, and that the trial court therefore erred in denying its motions to disqualify these experts. OCGA § 24-7-702 (b) provides that if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence, or to determine a fact in issue, an expert may testify thereto if “[t]he testimony is based upon sufficient facts or data,” “[t]he testimony is the product of reliable principles and methods,” and “[t]he witness has applied the principles and methods reliably to the facts of the case which have been or will be admitted into evidence before the trier of fact.” The proffering party bears the burden of presenting evidence of reliability. See HNTB Ga. v. Hamilton-King, 287 Ga. 641, 646 (2) (697 SE2d 770) (2010). And “[t]he determination of whether a witness is qualified to render an opinion as an expert is a legal determination for the trial court and will not be disturbed absent a manifest abuse of discretion.” (Citation and punctuation omitted.) Id. at 642 (1).

(a) The County first asserts that the trial court erred in failing to exclude Alpert’s and Scott’s testimony because their opinions were based on their own unsupported beliefs. See, e.g., L-3 Communications Titan Corp. v. Patrick, 317 Ga. App. 207, 213-214 (1) (729 SE2d 505) (2012) (“[T]he trial court abused its discretion in admitting opinion evidence which is connected to existing data only by the ipse dixit of the expert.”) (punctuation and footnote omitted). More specifically, the County asserts that Alpert’s and Scott’s testimony as to what constitutes proper law enforcement procedures in the context of police pursuits is not supported by reliable principles and methods.

“In determining the admissibility of expert testimony, the trial court acts as a gatekeeper, assessing both the witness’ qualifications to testify in a particular area of expertise and the relevancy and reliability of the proffered testimony.” (Citations omitted.) HNTB Ga. v. Hamilton-King, 287 Ga. at 642 (1).

Reliability is examined through consideration of many factors, including whether a theory or technique can be tested, whether it has been subjected to peer review and publication, the known or potential rate of error for the theory or technique, the general degree of acceptance in the relevant scientific or professional community, and the expert’s range of experience and training.

(Citations omitted.) Id. See generally Daubert v. Merrell Dow Pharmaceuticals, 509 U. S. 579 (113 SCt 2786, 125 LE2d 469) (1993). However, “[t]here are many different kinds of experts and many different kinds of expertise, and it follows that the test of reliability is a flexible one, the specific factors neither necessarily nor exclusively applying to all experts in every case.” (Citation and punctuation omitted.) HNTB Ga. v. Hamilton-King, 287 Ga. at 643 (1). “It is the possession of special knowledge derived either from experience, study, or both in a field of expertise that makes one an expert.” (Punctuation and footnote omitted.) Brady v. Elevator Specialists, 287 Ga. App. 304, 306 (1) (653 SE2d 59) (2007).

The record shows that both Alpert and Scott possess specialized knowledge concerning police pursuits, as well as the policies and procedures applicable thereto, and that the foundation for their knowledge is derived from study or experience. Alpert, a professor of criminology, has conducted extensive research in the field of police pursuits, including applicable policies and procedures, for approximately 30 years, and in the course thereof he has interviewed hundreds of officers and hundreds of suspects and has evaluated thousands of official police pursuit records. Alpert has also authored numerous peer reviewed articles on the subject of police chases. Scott has over 30 years of law enforcement experience, including extensive experience with police chases and the policies and procedures applicable thereto. See Kumho Tire Co. v. Carmichael, 526 U. S. 137, 156 (119 SCt 1167, 143 LE2d 238) (1999) (“[N]o one denies that an expert might draw a conclusion from a set of observations based on extensive and specialized experience[.]”). He has also served as an assessor for two law enforcement accreditation bodies and conducted over 100 assessments of law enforcement agencies, including their pursuit policies. Thus, the evidence shows that the experts based their opinions on their extensive study regarding, or experience with, the specific law enforcement procedures and practices at issue, and, under the circumstances, the trial court could conclude that their opinions were the product of reliable principles and methods and not generalized or subjective beliefs. See Champion v. Outlook Nashville, 380 F3d 893, 909 (II) (D) (6th Cir. 2004) (Because the expert had considerable experience in the field of criminology and was testifying concerning a discrete area of police practices about which he had specialized knowledge, the district court did not abuse its discretion in admitting the testimony.); Savannah Cemetery Group v. DePueWilbert Vault Co., 307 Ga. App. 206, 213 (3) (704 SE2d 858) (2010) (“The appropriate standard for assessing the admissibility of the opinion of the expert is not whether it is speculative or conjectural to some degree, but whether it is wholly so.”). Compare HNTB Ga. v. Hamilton-King, 287 Ga. at 644-645 (2) (The trial court did not abuse its discretion in excluding opinion testimony of an expert who had no personal experience with the procedure at issue and conceded that he based his conclusions on “his engineering judgment,” entirely unsupported by any criteria by which the trial court could measure its reliability.). We find no abuse of discretion in the trial court’s failure to exclude Alpert’s and Scott’s opinions as to proper law enforcement procedures in the context of a police pursuit.

(b) The County further contends that Alpert’s and Scott’s opinions that its officer violated the County’s pursuit policy should have been excluded because that determination was not beyond the understanding of the average lay person. OCGA § 24-7-702 (b) requires that expert testimony “will assist the trier of fact to understand the evidence or to determine a fact in issue.” Under this requirement, “expert testimony is admissible if it concerns matters that are beyond the understanding of the average lay person.” (Citation omitted.) United States v. Frazier, 387 F3d 1244, 1262 (III) (A) (11th Cir. 2004). “Properly qualified expert witnesses may render an opinion on any matter within their realm of expertise, so long as it is based upon conclusions drawn by the expert that the jury could not ordinarily determine for themselves.” (Footnote omitted.) Johnson v. Knebel, 267 Ga. 853, 855 (1) (485 SE2d 451) (1997).

Here, the County’s chase policy allowed its officer to pursue suspected violators of criminal or traffic laws, other than minor traffic offenses, “if the vehicle being pursued will present a serious danger to the community if not apprehended,” but subject to the limitation that

pursuits are not authorized if conditions prevail by which the heightened risk of injury to third parties is unreasonable in relation to the interest in apprehending the suspect and where the risk of injury to third parties caused by the initiation or continuation of the pursuit is unreasonable under the circumstances.

Alpert and Scott possessed specialized knowledge of police pursuits which could inform the trier of fact as to both sides of that balancing test in light of the evidence. Further, a lay person who is not a law enforcement professional is unlikely to have any personal experience with either high speed police pursuits or law enforcement policy. See Champion v. Outlook Nashville, 380 F3d at 908 (II) (D) (“Courts have permitted experts to testify about discrete police-practice issues when those experts are properly credentialed and their testimony assists the trier of fact”) (citation omitted). As Alpert and Scott could draw conclusions from the evidence that a lay person could not, the trial court did not abuse its discretion in failing to preclude their opinions that the County’s officer violated the County’s pursuit policy.

(c) The County also argues that the trial court erred in failing to exclude opinions that its officer “proximately caused” the decedent’s death or acted in “reckless disregard” of a standard, as those opinions amount to legal conclusions. Ournew Evidence Code provides: “[Testimony in the form of an opinion or inference otherwise admissible shall not be objectionable because it embraces an ultimate issue to be decided by the trier of fact[.]” OCGA § 24-7-704 (a). However, an expert may not merely tell the jury what result to reach and may not testify to the legal implications of conduct. Montgomery v. Aetna Casualty & Surety Co., 898 F2d 1537, 1541 (II) (B) (11th Cir. 1990).

Here, Alpert acknowledged in his deposition testimony that “reckless disregard” is a legal term, without any accepted definition in the field of pursuit policy. In an affidavit, however, Alpert deposed that the County’s officer “recklessly disregarded proper police procedures ... in his decision to initiate and continue the pursuit of Locke.” Similarly, Scott acknowledged in his deposition that “reckless disregard” does not have an accepted meaning in the field of police practices, and is a legal standard, but deposed in an affidavit that the County’s officer’s “actions show reckless disregard of proper police procedures.” As to “proximate cause,” Scott stated that he could not give an exact legal definition but he could apply a working definition to give a proximate cause opinion. We agree with the County that the trial court abused its discretion in failing to exclude opinions that the County’s officer acted in “reckless disregard” of a standard, or “proximately caused” the decedent’s injuries, as Alpert’s and Scott’s opinions, to the extent they incorporate these phrases, speak to legal conclusions and would not assist the trier of fact. See Flickinger v. Toys “Я” Us-Delaware, 492 Fed. Appx. 217, 224 (II) (B) (3) (a) (3rd Cir. 2012) (The trial court did not exceed its discretion in prohibiting opinion testimony as to legal terms of art, which are commonly held to be inappropriate for expert testimony.). Accordingly, we reverse in part the trial court’s denial of the County’s motions to disqualify Alpert and Scott.

3. The County contends that its officer did not recklessly disregard proper law enforcement procedures in the pursuit of Locke and that, as a result, the trial court erred in denying its motion for summary judgment. We find that the County’s arguments lack merit.

(a) First, the County contends that the trial court erred in concluding that there remained a genuine issue of material fact as to whether its officer was a contributing proximate cause of the decedent’s death because “proper law enforcement procedures,” for purposes of OCGA § 40-6-6 (d) (2), remains undefined. The County further maintains that neither its pursuit guidelines nor the balancing standard advocated by Alpert and Scott should constitute such proper law enforcement procedures.

OCGA § 40-6-6 (d) (2) provides, in applicable part, that where a law enforcement officer in a law enforcement vehicle pursues a fleeing suspect in another vehicle, and the fleeing suspect damages property or injures or kills a person during the pursuit, then

the law enforcement officer’s pursuit shall not be the proximate cause or a contributing proximate cause of the damage, injury, or death caused by the fleeing suspect unless the law enforcement officer acted with reckless disregard for proper law enforcement procedures in the officer’s decision to initiate or continue the pursuit.

As the County points out, neither the General Assembly nor our appellate courts have defined what constitutes “proper law enforcement procedures” for purposes of OCGA § 40-6-6 (d) (2). In Strength v. Lovett, 311 Ga. App. 35 (714 SE2d 723) (2011), we noted that the issue was unsettled, and that those procedures could be “the procedures that a reasonable law enforcement agency would adopt, the standard procedures that most law enforcement agencies have adopted, or the actual procedures that the agency employing the pursuing officer in a particular case has adopted.” Id. at 41 (2) (a). We declined to settle the issue in that case, however, because evidence showed that the standard procedures of law enforcement agencies and the procedure of the agency which employed the deputy who pursued the fleeing suspect, “[b]oth require [d] that an officer balance the need to immediately apprehend a fleeing suspect against the risk to the officer and the public of initiating or continuing a pursuit.” Id. And in reviewing the record to ascertain if it contained evidence from which a jury could conclude that the pursuing deputy acted in reckless disregard of those law enforcement procedures, we cited provisions of the chase policy of the local government agency as well as expert testimony that the Sheriff’s deputy was in “clear violation” of that policy when he decided to continue the pursuit of the suspect. Id. at 42 (2) (a).

As in Strength, the record contains evidence that the policy of the local law enforcement agency at issue is not much different from the standard policy of law enforcement agencies. Segrest adduced evidence that Clayton County’s pursuit policy and nationally recognized law enforcement procedures require that an officer balance the need to immediately apprehend a fleeing suspect against the risk to the public of initiating or continuing a pursuit. Thus, if there is evidence that the County’s officer acted in reckless disregard of these law enforcement procedures in deciding to initiate or continue the pursuit of Locke, such evidence presents a jury question on the issue of proximate cause for purposes of OCGA § 40-6-6 (d) (2). See Strength, 311 Ga. App. at 41-43 (2) (a). Contrary to the County’s argument, the denial of summary judgment in this case does not indicate that the trial court resurrected a less stringent “due regard” or mere negligence standard that is inconsistent with the reckless disregard standard incorporated into OCGA § 40-6-6 (d) (2). See Ga. L. 1995, p. 855.

(b) Next, we turn to the County’s argument that the discretionary acts of police officers should not be subject to hindsight review, and that this Court should therefore define “reckless disregard,” for purposes of OCGA § 40-6-6 (d) (2), as requiring the same facts as necessary to overcome official immunity. Under that standard, the County would be liable for its officer’s actions only if he “acted with actual malice or with actual intent to cause injury.” (Footnote omitted.) Smith v. Chatham County, 264 Ga. App. 566, 570 (2) (591 SE2d 388) (2003). However, this Court has previously defined “reckless disregard,” in the context of OCGA § 40-6-6 (d) (2), to mean “conscious indifference to the consequences of an act.” (Citation and punctuation omitted.) Strength v. Lovett, 311 Ga. App. at 42 (2). Accordingly, we find the County’s argument has no merit.

(c) Having rejected the County’s argument that it cannot be liable absent evidence of its officer’s malice or intent to injure, there remains evidence from which a reasonable jury could conclude that the County’s officer acted with conscious indifference to whether initiating or continuing the pursuit violated proper law enforcement procedures. The County’s pursuit policy did not authorize a high speed pursuit of a driver suspected of minor traffic offenses. The County’s policy did authorize pursuits of persons suspected of serious traffic offenses, including reckless driving, which were classified as normally presenting a “moderate degree of risk to the public.” However, as noted above, that policy also provided that pursuits are nevertheless not authorized if “the risk of injury to third parties caused by the initiation or continuation of the pursuit is unreasonable under the circumstances.”

According to the County’s officer, he determined that Locke had been driving recklessly because Locke cut off another vehicle. Locke, however, averred that he did not cut off another car. See Rahmaan v. DeKalb County, 300 Ga. App. 572, 575-576 (685 SE2d 472) (2009) (For purposes of summary judgment, plaintiff’s version of events, which differed from that of the pursuing officer, constituted evidence from which a jury could conclude the officer acted with reckless disregard of law enforcement procedures in his decision to continue the pursuit.). Viewed in the light most favorable to Segrest, as the nonmovant, a trier of fact could conclude that the County’s officer knew that Locke had not committed any offense which would authorize a chase under the County’s pursuit policy. See Peach Blossom Dev. Co. v. Lowe Elec. Supply Co., 300 Ga. App. 268, 271 (684 SE2d 398) (2009) (on a motion for summary judgment, “testimony must speak for itself” and it is inappropriate for the appellate court to weigh that testimony or determine its credibility) (citation and punctuation omitted).

Decided July 13, 2015

Further, according to the County’s officer, after he pulled out and followed Locke on 1-75, he observed several “indicators” of unusual driving behavior, which included that Locke was then driving between 53 and 55 miles per hour (approximately 15 miles under the speed limit), that Locke was driving “with his hands locked at ten and two staring straight ahead,” as if he did not want to be seen by the officer, and that Locke exited the freeway. According to Alpert, none of these factors should have been considered by the County’s officer as cumulative or additive indications of a problem. Alpert also opined that, based on the County’s policy and its required consideration of the need to apprehend the subject versus the risk created by the chase, the pursuit should never have begun.

The evidence further shows that after the chase began the County’s officer pursued Locke in a commercially developed area at speeds of more than 110 mph in a 45 mph zone. The chase proceeded through intersections and red traffic lights. According to the officer, who was aware of the County’s chase policy, he did not even consider whether, under those circumstances, he might be required to stop the pursuit. Considering the foregoing, there was at least some evidence from which a jury could find that the County’s officer “acted with reckless disregard for proper law enforcement procedures in [his] decision to initiate or continue the pursuit,” OCGA § 40-6-6 (d) (2), and the officer’s actions are therefore not precluded as a proximate cause of the decedent’s injuries. The trial court did not err in denying the County’s motion for summary judgment.

Judgment affirmed in part and reversed in part.

McFadden, J., concurs. Dillard, J., concurs in judgment only.

DILLARD, Judge,

concurring in judgment only.

I concur in judgment only because I do not agree with all that is said in the majority opinion. Thus, the majority’s opinion decides only the issues presented in the case sub judice and may not be cited as binding precedent in future cases. See Court of Appeals Rule 33 (a).

Freeman, Mathis & Gary, Jack R. Hancock, Sun S. Choy, A. Ali Sabzevari, for appellant.

Larry E. Stewart, R. Andres Marierose, for appellee.

       Segrest contended that the County waived its sovereign immunity pursuant to OCGA § 33-24-51 hy purchasing liability insurance arising from the use of a County motor vehicle by a County employee, and this assertion was not challenged for purposes of the County’s motion for summary judgment. See Cameron v. Lang, 274 Ga. 122, 126 (3) (549 SE2d 341) (2001).

       The record shows that the County moved below to strike Locke’s affidavit, and the trial court denied the motion.

       Our new Evidence Code applied to the County’s motions to disqualify, which were filed in February 2013. See Ga. L. 2011, pp. 99, 214, § 101. “[B]ecause OCGA § 24-7-702 is ‘substantively identical’ to its predecessor statute, former OCGÁ § 24-9-67.1, cases decided under the former statute offer useful guidance when analyzing the current version of the statute.” (Citation omitted.) Dempsey v. Gwinnett Hosp. System, 330 Ga. App. 469, 471, n. 3 (765 SE2d 525) (2014).
      Further, in enacting the new Evidence Code, the General Assembly stated its intent “to adopt the Federal Rules of Evidence, as interpreted by the Supreme Court of the United States and the United States circuit courts of appeal as of January 1, 2013, to the extent that such interpretation is consistent with the Constitution of Georgia.” Ga. L. 2011, p. 99, § 1. See Parker v. State, 296 Ga. 586, 592 (3) (a) (769 SE2d 329) (2015) (“[W]here the new Georgia rules mirror their federal counterparts, it is clear that the General Assembly intended for Georgia courts to look to the federal rules and how federal appellate courts have interpreted those rules for guidance.”).

       According to Alpert, the national law enforcement standard with respect to pursuits is a “balancing test.” This test requires that, in order to justify a chase, the need to immediately apprehend the suspect should outweigh the risk to the public created by the chase. In his affidavit, Scott refers to the balancing test as “nationally adopted.” And in his deposition, Scott states that law enforcement officers are trained in the balancing test, which test is also part of the County’s chase policy.

       An exception to this rule is provided in OCGA § 24-7-704 (b) (“No expert witness testifying with respect to the mental state or condition of an accused in a criminal proceeding shall state an opinion or inference as to whether the accused did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto”).

       See also United States v. Long, 300 Fed. Appx. 804, 814 (II) (B) (2) (11th Cir. 2008) (“An expert witness may not testify as to his opinion regarding ultimate legal conclusions,” hut may testify to an ultimate issue of fact.) (citation omitted).

       The County’s arguments are pertinent to the issue of whether Segrest’s experts could opine that the County’s officer was a proximate, or legal, cause of the decedent’s injury and death, and not whether the experts could properly opine that the County’s officer was a cause in fact of the decedent’s injury and death. Accordingly, we do not address the latter issue.

       This does not mean that Alpert and Scott cannot provide opinions that are relevant to these legal issues. In determining the difference between permissible opinions and impermissible legal conclusions,
      [t]he example given in the Advisory Committee Notes to Rule 704 is helpful. The question “Did T have capacity to make a will?” should be excluded. The question “Did T have sufficient mental capacity to know the nature and extent of his property and the natural objects of his bounty and to formulate a rational scheme of distribution?” is permissible. The first question is phrased in such broad terms that it could as readily elicit a legal as well as a fact based response. A direct response, whether it be negative or affirmative, would supply the jury with no information other than the expert’s view of how its verdict should read.

        Owen v. Kerr-McGee Corp., 698 F2d 236, 240 (5th Cir. 1983).

       In Lang v. Becham, 243 Ga. App. 132, 133-134 (530 SE2d 746) (2000), we referenced as evidence expert testimony that an officer acted in reckless disregard for proper law enforcement procedures. However, it does not appear in that case that, as here, portions of the expert’s opinions were challenged as legal conclusions.


source: Caselaw Access Project

author: Dillard, Judge.

license: Public Domain

text:
    A15A0506.
    FENNELLY v. LYONS.
    (775 S.E.2d 587)
   Dillard, Judge.

William Fennelly appeals the trial court’s grant of summary judgment in favor of Samuel Lyons, his former landlord, as to his complaint alleging claims for invasion of privacy; trespass; wrongful eviction; trover and conversion; negligent and intentional infliction of emotional distress; and interference with enjoyment of property. On appeal, Fennelly argues that (1) the trial court’s decision was contrary to Georgia law; (2) the trial court erred in finding that Lyons could legally take possession of or destroy his personal property after obtaining a writ of possession; (3) the magistrate court had the authority to vacate Lyons’s writ of possession, and thus, the writ was void on its face; (4) the trial court erred in finding that Lyons was not liable for conversion; and (5) the trial court erred in finding that he could not recover damages for negligent or intentional infliction of emotional distress. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to Fennelly (i.e., the nonmoving party), the evidence shows that Lyons owned property located at 254 Acres Way in Woodstock, Georgia (the “Property”), and on May 1, 2010, he leased that residence to Fennelly with the option to purchase it. Then, on October 3, 2011, the parties amended the lease to be a month-to-month agreement, which allowed either party to terminate the lease at any time by giving the other party 30 days’ notice. And on July 12, 2012, Lyons sent such a notice to Fennelly, terminating the lease and informing him that he must vacate the Property on or before August 15, 2012. The notice, which misspelled Fennelly’s name as “Billy Fennell,” was sent to the leased address via certified mail.

On August 16, 2012, when Fennelly had still not vacated the Property, Lyons filed an affidavit for a summons of dispossessory, alleging that Fennelly owed $3,550 in past-due rent, that he had held the property over beyond the term of the lease, and that he refused to deliver possession of the premises to Lyons. In addition, Lyons requested that the summons — which also misspelled Fennelly’s surname as “Fennell” — be delivered via “tack and mail” if personal service was unsuccessful. The sheriff’s entry of service indicated that the summons was filed on August 17, 2012, and three days later, it was posted to the door of the Property and sent via first class mail to the leased address.

In a letter dated August 18, 2012, Fennelly informed Lyons that he was spending the month of August in New Jersey with family and that he planned to vacate the Property during the last week of September. The letter also notified Lyons of two mailing addresses for Fennelly, one of which was in Kennesaw, Georgia, and one of which was in Oceanport, New Jersey. The certified-mail receipt indicated that Fennelly’s letter was mailed on August 20, 2012, but Lyons testified that he did not receive the letter until after evicting Fennelly in mid-September.

Subsequently, on August 29, 2012, Lyons requested a writ of possession from the magistrate court, alleging that Fennelly had not filed an answer in the eviction proceedings. The court granted the request on September 6, 2012, and issued a writ of possession to Lyons’s attorney, who was acting as his agent. In a letter postmarked September 10, 2012, which was mailed to Fennelly’s New Jersey address, Lyons informed Fennelly that, unless he vacated the Property by September 15, 2012, Lyons would exercise his legal right under the writ of possession to remove and dispose of any personal property left inside the house.

On September 17, 2012, when Fennelly had still not vacated the leased residence, Lyons, along with a deputy sheriff, executed the writ of possession and evicted Fennelly from the Property. The sheriff advised Lyons that Fennelly had 24 hours to claim his property or it would be deemed abandoned and Lyons could then dispose of it in any manner that he saw fit. Lyons hired a moving company to remove Fennelly’s personal property from the home and place it in the driveway. Then, after 24 hours had passed and most of Fennelly’s property was still in the driveway, Lyons began disposing of it. Lyons testified that many of Fennelly’s personal items were donated to charity and some items, including several cars, were hauled off to unknown locations. Further, he testified that, at some point after the eviction, Fennelly returned to the Property and asked if he could have his dining-room table and chairs. Lyons offered to sell him the dining-room set for $200, but by the time Fennelly returned with the money, Lyons had already sold it to someone else. When asked why he would offer to sell Fennelly his own property, Lyons reiterated that he had been advised that, after the first 24 hours, he could dispose of Fennelly’s property in any manner he saw fit.

On December 7,2012, approximately three months after the writ of possession was issued, Fennelly filed a motion with the magistrate court asking the court to reconsider its dispossessory judgment and arguing that there were numerous deficiencies in the eviction process. Subsequently, on December 17, 2012, the magistrate court granted Fennelly’s motion and vacated the September 2012 writ of possession. In relevant part, the court found that the writ of possession was a nullity because the supporting affidavit and sheriff’s return of service both used the name “Billy Fennell,” which is different than “William A. Fennelly,” the name used in Fennelly’s lease and in all of his correspondence. Thus, because the affidavit and return of service were addressed to the wrong party, the court found that it lacked “jurisdiction” over Fennelly and the Property when it issued the writ of possession.

On April 10, 2013, Fennelly filed the instant action against Lyons, alleging claims of wrongful eviction, trespass, and conversion. Discovery ensued, and on April 1,2014, Lyons filed a motion for summary judgment as to all of Fennelly’s claims. But before responding to the motion, Fennelly filed an amended complaint, adding claims for invasion of privacy, negligent and intentional infliction of emotional distress, and interference with enjoyment of property. After Fennelly responded to the summary-judgment motion, Lyons filed a reply, seeking summary judgment as to the new claims raised in the amended complaint.

Ultimately, the trial court granted summary judgment in favor of Lyons, finding that, as to the claims of invasion of privacy, trespass, and interference with enjoyment of property, none of the alleged tortious conduct occurred before the writ of possession was executed, and that once a writ of possession is issued, a “landlord should not be liable for his subsequent entry onto the property, eviction, and removal of [the] tenant’s property.” The court further determined that, even though the writ of possession was later vacated, it was nevertheless a valid court order when it was executed by law enforcement under the color of law. Thus, because Lyons had a valid writ of possession at the time of the eviction, the court found that he was not liable for the alleged tortious conduct stemming from the eviction. Further, as to Fennelly’s conversion claim, the trial court noted that, after the writ of possession was executed, his pérsonal property was deemed abandoned and Lyons was not liable to him for the disposition of that property. In addition, the court found that Fennelly could not recover for negligent infliction of emotional distress because he did not suffer a physical injury, which is a prerequisite to recovery. Finally, as to Fennelly’s claim for intentional infliction of emotional distress, the court determined that no rational trier of fact could find that Lyons’s conduct was “extreme and outrageous” because his actions in evicting Fennelly were taken based on the issuance of a writ of possession.

Thereafter, Fennelly filed a motion for the trial court to reconsider its grant of summary judgment to Lyons. On August 21, 2014, the court denied this motion, but the next day, contemporaneously with his notice of appeal, Fennelly filed new evidence — i.e., an affidavit and three depositions. Lyons moved to dismiss Fennelly’s appeal or to strike the post-judgment evidence from the record. This motion was denied, but the court noted that an appellate court will not consider evidence that the trial court did not have in the record when an appealed decision was rendered. This appeal by Fennelly follows.

To begin with, we note that summary judgment is appropriate when the moving party can show that there is “no genuine issue of material fact and that the movant is entitled to judgment as a matter of law.” A defendant meets this burden when the court is shown that “the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of the plaintiff’s case.” Finally, if the moving party satisfies this burden, the nonmoving party cannot rest on its pleadings, but must “point to specific evidence giving rise to a triable issue.” With these guiding principles in mind, we turn now to Fennelly’s specific claims of error.

1. Fennelly first contends that the trial court’s order included statements that were contrary to Georgia law. But in support of this nebulous claim, Fennelly merely cites to two excerpts from the trial court’s summary-judgment order, and without further explanation, summarily argues that the court’s legal findings were “patently contrary to Georgia law.” Suffice it to say, Fennelly has failed to provide any cogent argument or legal authority to support this enumeration of error. As a result, he has abandoned this claim, and we need not address it any further.

2. Next, Fennelly argues that the trial court erred in finding that Lyons could legally take possession of or destroy Fennelly’s personal property after he obtained the writ of possession, and in any event, the writ in this case was “unquestionably void.” We disagree.

In Georgia, the exclusive method that a landlord may use to evict a tenant is through a properly instituted dispossessory action filed under OCGA § 44-7-50 et seq.* And a demand for possession is a “condition precedent to the landlord’s right to dispossess the tenant summarily under OCGA § 44-7-50.” Further, OCGA § 44-7-55 (c) provides:

Any writ of possession issued pursuant to this article shall authorize the removal of the tenant or his or her personal property or both from the premises and permit the placement of such personal property on some portion of the landlord’s property or on other property as may be designated by the landlord and as may be approved by the executing officer; provided, however, that the landlord shall not be a bailee of such personal property and shall owe no duty to the tenant regarding such personal property. After execution of the writ, such property shall be regarded as abandoned.

We have interpreted the latter portion of this statutory provision as being “contingent upon the landlord first placing the tenant’s property on some portion of the landlord’s property or on other specific property designated by the landlord and approved by the executing officer.” Because in the absence of this requirement, the landlord would have “carte blanche to do whatever he or she liked with the tenant’s personal property, including even destroying it, at the moment the writ of possession is issued.” Thus, if the landlord evicts a tenant without first filing a dispossessory action and obtaining a writ of possession, or without following the dispossessory procedures for handling the tenant’s personal property, the landlord “can be held liable for wrongful eviction and trespass.”

Here, Lyons followed each of the foregoing statutory requirements for evicting Fennelly from the Property. First, on July 12,2012, Lyons sent Fennelly a demand for possession of the Property, terminating the lease and informing him that he must vacate the Property on or before August 15, 2012. And although the notice misspelled Fennelly’s name as “Billy Fennell,” it was properly sent to the leased address via certified mail. In this respect, it is of no consequence that Fennelly was living in New Jersey at the time the notice was mailed. As we have previously explained, an inference arises at the time when a lease is executed that the “tenant consented to constructive delivery of a demand for possession by the due mailing thereof to the tenant at the address of the leased residence.” This inference, of course, makes perfect sense. The most logical place to serve a resident, private tenant is at the leased residence.

Lyons also obtained a writ of possession from the magistrate court, and before disposing of Fennelly’s personal property, he complied with OCGA § 44-7-55 (c) by placing it on some portion of the Property — the driveway of the residence — for a period of 24 hours. Nevertheless, Fennelly maintains that Lyons (his landlord) may still be held liable for wrongful eviction even though he obtained a writ of possession before taking or removing his property. And in support of this argument, Fennelly relies heavily on this Court’s decisions in Higgins v. Benny’s Venture, Inc and Washington v. Harrison. But his reliance on these cases is misplaced. Indeed, unlike the case sub judice, the landlords in Higgins and Washington wholly failed to comply with the statutory requirement that, before a tenant’s property is deemed abandoned, the landlord must first place the tenant’s personal items on some portion of the landlord’s property.

Specifically, in Higgins, the property in question was “left in place when the writ was executed, with an instruction to the landlord by the executing officer to allow the tenant to later remove it.” Under such circumstances, we held that the property was “not placed on some portion of the landlord’s property as required by the statute, and it was therefore not abandoned.” And in Washington, we held that a landlord, who had obtained a writ of possession, could be liable for conversion because, instead of placing the tenant’s property on some portion of the land, the landlord “hired a salvage crew to simply remove [the tenant’s] personal property . . . with no consideration given as to its ultimate fate.” Thus, the tenant’s property was not deemed abandoned. But here, as previously noted, Lyons satisfied the statutory requirement that he place Fennelly’s personal property on some portion of the Property after the writ was issued. Thus, the trial court properly found that Fennelly’s personal property was abandoned, and Lyons owed no duty to Fennelly with regard to the disposal of that property.

Fennelly also argues that, even if a landlord with a writ of possession may dispose of or destroy a tenant’s personal property, the writ of possession in this case was “unquestionably void.” Specifically, he contends that the writ of possession was void because it was vacated three months after it was issued. However, as we have previously explained, when an eviction is carried out under a writ of possession issued by the magistrate court, the writ is lawful until it is vacated, and any eviction taking place before that time is not wrongful. Thus, although the writ of possession in this case was ultimately vacated, Lyons evicted Fennelly under a writ of possession that was lawful at the time it was executed.

Nevertheless, Fennelly contends that our decision in Davis v. Hybrid Industries, Inc. stands for the general proposition that tort claims arising from an alleged wrongful eviction may survive summary judgment when a writ of possession is vacated after its execution. It is true that, in Davis, this Court summarily held that “[o]nce the trial court set aside its earlier judgment granting the writ of possession, it was proper to allow [the tenant’s] counterclaim” for conversion. However, the facts of Davis are easily distinguishable from those in the case sub judice in several respects. First, Davis concerned a dispossessory action between two businesses involving the lease of “a 1,000 square foot warehouse cubicle,” not a leased residence. Second, once the writ of possession issued, the landlord in Davis removed the tenant’s personal property from the cubicle, moved some of the property to a different warehouse for “safekeeping,” and gave other pieces of property to the movers as “compensation for their services.” Third, the writ of possession in Davis was later vacated because the trial court concluded that the plaintiff in the dispossessory action was “a mere stranger to the action, and that service by tacking [on the storage cubicle] was insufficient because personal service had been possible.” Thus, while it may very well have been appropriate for this Court to affirm the trial court’s decision in Davis allowing a conversion claim to go forward under the particular circumstances presented in that case, they bear no resemblance to those at issue here. Finally, and most significantly, the division of Davis relied upon by Fennelly to support his argument (i.e., Division 2) is entirely bereft of any reasoning or citation to authority, and therefore is of little (if any) precedential value. Indeed, Davis does not even identify the nature of the claim of error that Division 2 was apparently intended to resolve.

Further, although Fennelly relies solely on Davis, we acknowledge that, in Stringer v. Bugg, this Court ultimately allowed various tort claims against a residential landlord to survive summary judgment when the eviction was carried out under a writ of possession that was later vacated because the trial court erroneously found that the relevant claims were barred by res judicata. But in Stringer, we expressly stated that when an eviction was “carried out under a writ of possession issued by the magistrate court, and until that writ was vacated, it was lawful and the eviction was not wrongful” Moreover, it appears that there was evidence that the landlord in Stringer engaged in unlawful conduct in procuring the writ of possession. Indeed, the magistrate court that set aside the writ of possession in Stringer found that the landlord initiated the dispossessory action in violation of an agreement with the tenant, misled the tenant into failing to file an answer in that proceeding, and essentially “perpetrated a fraud on the court” by requesting a writ of possession to which he was not entitled. But here, unlike in Stringer, Fennelly has presented no evidence that Lyons engaged in anything other than lawful conduct in obtaining and executing the writ of possession.

In sum, neither Davis nor Stringer expressly holds that, when a landlord follows all of the legal requirements for obtaining a writ of possession and executes that writ in compliance with the law, a tenant can then sue the landlord in tort solely because the writ was later vacated (even when there is no evidence of wrongdoing in the procurement or execution of the writ). Regardless, to the extent that our decisions in these cases can possibly be read as standing for such a proposition, they are no longer of any precedential utility on that particular point of law.

To be clear, our holding today is a limited one: A landlord who obtains a writ of possession and follows all of the legal requirements for executing that writ may not be held liable in tort for those lawful actions on the sole basis that the writ was later vacated. Indeed, to hold otherwise would make a mockery of the law. That said, nothing in this opinion should be construed as immunizing landlords who engage in unlawful conduct, either in the procurement or execution of a writ of possession, from liability.

3. Fennelly also argues that the magistrate court that vacated the writ of possession had the authority to do so, and thus, the writ was void on its face. However, contrary to Fennelly’s suggestion, the trial court did not find that the magistrate court lacked jurisdiction or authority to vacate the writ of possession. Instead, the court merely found that, even though the writ of possession was later vacated, it was nonetheless valid at the time it was executed. Thus, Fennelly’s argument bears no relevance to the order being appealed. Moreover, as we already explained in Division 2 supra, the writ of possession in this case was valid until it was vacated, and thus, Fennelly’s argument that Lyons evicted him under a “void” writ of possession is meritless.

4. In his fourth claim of error, Fennelly argues that the trial court erred in finding that Lyons was entitled to summary judgment as to his conversion claim. However, Fennelly’s conversion claim is based solely on the fact that Lyons disposed of his personal property under a writ of possession that was later vacated, and given our holding in Division 2 supra, the trial court properly found that Lyons was entitled to summary judgment as to this claim.

5. Finally, Fennelly argues that, in light of the manner in which Lyons disposed of his property, the trial court erred in finding that he could not recover damages for negligent or intentional infliction of emotional distress. Again, we disagree.

As to his claim for negligent infliction of emotional distress, the trial court found that Fennelly could not recover for such a claim because there was no evidence of a physical impact or physical injury. On appeal, Fennelly argues that the trial court erred in this regard because Georgia has a recognized “pecuniary loss” exception to the “impact rule.” In this regard, we have held that “[a] claim for emotional-distress damages caused by negligence must be supported by evidence that the plaintiff suffered an impact resulting in physical injury or pecuniary loss resulting from an injury to the person.” Under the pecuniary-loss rule, a plaintiff may recover damages for emotional distress based upon “an injury to property that results in pecuniary loss if injury to the person is also present, even if that injury is not physical.”

Although the trial court based its grant of summary judgment as to Fennelly’s claim for negligent infliction of emotional distress solely on the absence of a physical injury, Fennelly also cannot show that he suffered a nonphysical injury resulting from pecuniary loss related to his eviction. Nevertheless, Fennelly argues that he suffered public humiliation and damage to his reputation because “a large crowd of neighbors” gathered and observed the eviction for a “considerable period of time.” However, the record is simply devoid of any evidence to support these allegations. Indeed, Fennelly has not identified any evidence in the record showing an injury to himself, physical or otherwise, related to his eviction, and therefore, he cannot recover for negligent infliction of emotional distress under the pecuniary-loss rule.

Finally, as to his claim of intentional infliction of emotional distress, Fennelly provides no cogent argument and cites to no relevant legal authority to support his contention that the trial court erred in granting summary judgment to Lyons with respect to that claim. As a result, he has abandoned this claim of error, and we need not address it. Regardless, to recover for intentional infliction of emotional distress, Fennelly was required to show that Lyons’s conduct inflicted emotional distress “so severe that no reasonable person could be expected to endure it.” And here, while Fennelly makes reference to some of Lyons’s conduct during the eviction (such as his offer to sell Fennelly his own property back), he cites to no record evidence remotely suggesting that this conduct caused him to suffer emotional distress, severe or otherwise. Indeed, the only evidence before the trial court were excerpts from Lyons’s deposition, the correspondence between the parties, and portions of the record from the earlier dispossessory proceeding. Thus, the trial court did not err in granting summary judgment to Lyons as to Fennelly’s claims for negligent and intentional infliction of emotional distress.

Decided July 13, 2015.

Pekor & Associates, Charles B. Pekor, David A. Cox, for appellant.

Carlock, Copeland & Stair, Douglas W. Smith, William K. Owens, Jr., for appellee.

For all of the foregoing reasons, we affirm the trial court’s grant of summary judgment to Lyons.

Judgment affirmed.

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

        See, e.g., Miller County Bd. of Educ. v. McIntosh, 326 Ga. App. 408, 415 (2) (756 SE2d 641) (2014) (“We review the grant or denial of a motion for summary judgment de novo, and we view the evidence, and the reasonable inferences drawn therefrom, in a light most favorable to the nonmovant.” (footnotes omitted)).

        See infra footnote 29.

       Fennelly’s complaint also named two other defendants, but they were ultimately dismissed as parties.

       The affidavit and three depositions that Fennelly filed in the trial court after the court issued its summary-judgment order and denied his motion for reconsideration are included in the record on appeal. However, as recognized by the trial court, we will not consider facts or evidence that were not before the trial court at the time of its ruling. See Atkinson v. City of Atlanta, 325 Ga. App. 70, 72, n. 3 (752 SE2d 130) (2013) (“[W]e do not take evidence from the briefs of parties, we do not get evidence from outside the record, and we do not accept assertions of fact or evidence which were not before the trial court.” (punctuation omitted)). Accordingly, in evaluating Fennelly’s claims of error, we have not considered any evidence that was not before the trial court at the time when the summary-judgment order was issued.

        Albertson v. City of Jesup, 312 Ga. App. 246, 248 (718 SE2d 4) (2011) (punctuation omitted).

        Id. (punctuation omitted).

        Id. (punctuation omitted).

        See Ware v. Multibank 2009-1 RES-ADC Venture, LLC, 327 Ga. App. 245, 251 (3) (758 SE2d 145) (2014) (declining to address a claim of error when appellant failed to provide any cogent argument or citation of authority); Blanton v. State, 324 Ga. App. 610, 615 (2) (a), n. 10 (751 SE2d 431) (2013) (finding that appellant abandoned a claim by failing to cite any authority to support it); Court of Appeals Rule 25 (c) (2) (“Any enumeration of error which is not supported in the brief by citation of authority or argument may be deemed abandoned.”).

       In the argument section for this enumeration of error in his brief, Fennelly provides no cogent argument, references totherecord,or citation to authority to support his contention that the writ of possession in this case was void. However, he does so in other sections of his brief, and thus, he has not abandoned this argument. See supra footnote 8.

       Our analysis in this division of the opinion applies to Fennelly’s claims for wrongful eviction, trespass, invasion of privacy, interference with enjoyment of property, and conversion.

        See Metro Atlanta Task Force for the Homeless, Inc. v. Premium Funding Solutions, LLC, 321 Ga. App. 100, 101 (1) (741 SE2d225) (2013); accord Ikomoni v. Executive Asset Mgmt., LLC, 309 Ga. App. 81, 84 (2) (709 SE2d 282) (2011); Steed v. Fed. Nat. Mortgage Corp., 301 Ga. App. 801, 805 (1) (a) (689 SE2d 843) (2009).

        Sandifer v. Long Investors, Inc., 211 Ga. App. 757, 758 (2) (c) (440 SE2d 479) (1994); see Metro Mgmt. Co. v. Parker, 247 Ga. 625,629 (278 SE2d 643) (1981) (holding that “in every case, a timely demand for possession is a condition precedent to the institution of dispossessory proceedings”); OCGA § 44-7-50.

        Higgins v. Benny’s Venture, Inc., 309 Ga. App. 102, 104 (709 SE2d 287) (2011) (punctuation omitted); see also Ikomoni, 309 Ga. App. at 84 (2) (“After instituting a dispossessory action and obtaining a writ of possession, the landlord is authorized to evict the tenant, hut the landlord must place the tenant’s property on some portion of the landlord’s property or on other specific property designated by the landlord and approved by the executing officer.”) (punctuation omitted)).

        Higgins, 309 Ga. App. at 104 (punctuation omitted); accord Washington v. Harrison, 299 Ga. App. 335, 339 (1) (682 SE2d 679) (2009).

        Ikomoni, 309 Ga. App. at 84 (2); see also Steed, 301 Ga. App. at 805 (1) (a) (“[A] landlord who forcibly evicts a tenant without filing a dispossessory action and obtaining a writ of possession is subject to damages in tort for the wrongful eviction.”).

       We note that Fennelly points to no record evidence to suggest that, in July 2012, Lyons knew that he was living in New Jersey. To the contrary, the record shows that Fennelly first informed Lyons that he was spending the month of August in New Jersey in a letter dated August 18, 2012.

        Sandifer, 211 Ga. App. at 759 (2) (c).

        See Davis v. Hybrid Indus., Inc., 142 Ga. App. 722, 724 (1) (236 SE2d 854) (1977) (holding that notice sent to a commercial business was insufficient when the tenant did not reside there, but noting that “[t]he logical place to serve a resident, private tenant would be at the leased residence”).

       On appeal, Fennelly does not argue that 24 hours was an insufficient amount of time to satisfy the requirements of OCGA § 44-7-55 (c), and there appears to he no Georgia legal authority establishing the exact length of time required under the statute.

       309 Ga. App. 102 (709 SE2d 287) (2011).

       299 Ga. App. 335 (682 SE2d 679) (2009).

        See OCGA § 44-7-55 (c); Higgins, 309 Ga. App. at 104.

        Higgins, 309 Ga. App. at 104.

        Id. (punctuation omitted).

        Washington, 299 Ga. App. at 339 (1).

        See id.

        See OCGA § 44-7-55 (c) (providing that, after the execution of a writ of possession, a tenant’s personal property is deemed abandoned, so long as the landlord first places such property on some portion of the landlord’s property); Higgins, 309 Ga. App. at 104 (noting that property being deemed abandoned under OCGA § 44-7-55 (c) is “contingent upon the landlord first placing the tenant’s property on some portion of the landlord’s property or on other specific property designated by the landlord and approved by the executing officer” (punctuation omitted)); Washington, 299 Ga. App. at 339 (1) (noting that, while OCGA § 44-7-55 (c) provides that “the landlord shall not be a bailee and shall owe no duty to the tenant with regard to his personal property, we interpret that provision as being contingent upon the landlord first placing the tenant’s property on some portion of the landlord’s property or on other specific property designated by the landlord and approved by the executing officer”).

        See Stringer v. Bugg, 254 Ga. App. 745, 747 (2) (563 SE2d 447) (2002); see also Smith v. Republic Realty Serv., Inc., 216 Ga. App. 736, 736 (456 SE2d 55) (1995) (holding that, even though a magistrate court’s order — that a tenant must pay unpaid rent — was based on an erroneous finding, the “tenant was bound by that order and was not free to disregard it”); Munoz v. MacMillan, 195 Cal. App. 4th 648, 653 (124 Cal. Rptr. 3d 664) (2011) (“Alandlord evicting a tenant pursuant to a writ of possession cannot be held liable for damages under the principles governing actions for forcible entry and detainer, even if the writ of possession is subsequently deemed invalid ....”); Glass v. Najafi, 78 Cal. App. 4th 45, 51 (2) (92 Cal. Rptr. 2d 606) (2000) (holding that liability should not be imposed on parties who rely on a court order, which is ultimately determined to have been erroneously issued as a result of legal error).

       Moreover, while the propriety of the magistrate court’s order vacating the writ of possession is not before us, it is, nevertheless, worth noting that the fact Fennelly’s surname was misspelled as “Fennell” on both the Affidavit of Summons of Dispossessory and the sheriff’s return of service does not mean that the writ was void at the time it was executed by Lyons. Indeed, this Court has expressly held that “the misspelling of a person’s name in the summons” is not “vital in [an] action for a writ of possession [when] the premises in dispute were[, as in this case,] properly identified.” Cockerham v. Lake & Elliot, 149 Ga. App. 112, 112 (1) (253 SE2d 458) (1979). This is because, as our Supreme Court has explained, a proceeding for a writ of possession is quasi in rem, and therefore constructive, as opposed to personal, service is sufficient. See Pelletier v. Northbrook Garden Apartments, 233 Ga. 208, 210 (2) (210 SE2d 722) (1974); Cockerham, 149 Ga. App. at 112 (1). Thus, to the extent that Fennelly maintains that the writ was void even before being vacated, we flatly reject that argument.

       142 Ga. App. 722 (236 SE2d 854) (1977).

        See Davis, 142 Ga. App. at 725 (2).

        See id. at 723.

        See id.

        See id. at 723-24.

       2 54 Ga. App. 745 (563 SE2d 447) (2002).

        See Stringer, 254 Ga. App. at 747-48 (2).

        See id. at 747 (2) (emphasis supplied).

        Id. at 746 (punctuation omitted).

       As to Fennell/s claims for negligent and intentionáTinfliction of emotional distress, he argues that Lyons’s conduct in disposing of his personal property was tortious. However, for the reasons set forth in Division 5 infra, we find this argument to be wholly without merit.

        See generally Stringer, 254 Ga. App. at 747 (2); Davis, 142 Ga. App. at 722-25 (l)-(2).

        See Oduok v. Wedean Properties, Inc., 319 Ga. App. 785, 787 (1) (a) (738 SE2d 626) (2013) (holding that a tenant’s claims, which were premised on a wrongful eviction, failed as a matter of law when there was no dispute that the landlord obtained a writ of possession that entitled it to evict the tenant); see also Ikomoni, 309 Ga. App. at 84 (2) (“If the landlord evicts a tenant without filing a dispossessory action and obtaining a writ of possession, or without following the dispossessory procedures for handling the tenant’s personal property, the landlord can be held liable for wrongful eviction and trespass.” (emphasis supplied)); Glass, 78 Cal. App. 4th at 51 (holding that liability should not be imposed on parties who rely on a court order, which is ultimately determined to have been erroneously issued as the result of legal error and noting that an alternative holding “would undermine the policy favoring orderly judicial process by placing litigants in jeopardy of liability even though they acted under the authority of the court”).

        See Ne. Atlanta Bonding Co. v. State of Ga., 308 Ga. App. 573, 582 (2) (707 SE2d 921) (2011) (“People would laugh at the law if it required any such thing.”) (citation and punctuation omitted); Fletcher Guano Co. v. Vorus, 10 Ga. App. 380, 382 (73 SE 348) (1912) (same).

       Fennelly also suggests, in passing, that there was defective service in his eviction proceedings. However, the issue of defective service was neither raised before nor ruled upon by the trial court, and thus, we will not consider it. Spivey v. State, 272 Ga.App. 224, 228 (2) (612 SE2d 65) (2005) (“Inasmuch as we are a court for the correction of errors, we do not consider issues which were not raised below and ruled on by the trial court.” (punctuation omitted)).

        See supra footnotes 28 and 29.

        Phillips v. Marquis at Mt. Zion-Morrow, LLC, 305 Ga. App. 74, 76 (699 SE2d 58) (2010) (punctuation omitted); accord Grizzle v. Norsworthy, 292 Ga. App. 303, 306 (2) (664 SE2d 296) (2008).

        Grizzle, 292 Ga. App. at 306 (2) (punctuation omitted); see Montega Corp. v. Hazelrigs, 229 Ga. 126, 127 (189 SE2d 421) (1972) (“In cases where mere negligence is relied on, before damages for mental pain and suffering are allowable, there must also be an actual physical injury to the person, or a pecuniary loss resulting from an injury to the person which is not physical; such an injury to a person’s reputation, or the mental pain and suffering must cause a physical injury to the person.” (punctuation omitted)).

        See Fleming v. Advanced Stores Co., 301 Ga. App. 734, 735 (688 SE2d 414) (2009) (“It is not the function of this Court to cull the record on behalf of a party in search of instances of error. The burden is upon the party alleging error to show it affirmatively in the record.” (punctuation omitted)).

        See supra footnote 9.

        Ellison v. Burger King Corp., 294 Ga. App. 814, 818 (2) (b) (670 SE2d 469) (2008) (punctuationomitted); accord Udoinyion v. Re/Max of Atlanta, 289 Ga.App. 580, 584(657 SE2d 644) (2008).


author: Ray, Judge.

text:
    A15A0534.
    JEWELL v. McGINNIS et al.
    (775 S.E.2d 539)
   Ray, Judge.

Lindsey Jewell appeals from a final order entered by the superior court awarding joint legal custody of her daughter, C. M., to Jewell and to the child’s paternal grandparents, Stephen and Diane McGinnis, with primary physical custody to the grandparents. The mother asserts, inter alia, that the trial court erred in failing to produce findings of fact and conclusions of law in its order awarding custody, that it failed to incorporate a permanent parenting plan into its final custody decision, that it improperly consolidated two separate cases, and that it considered inadmissible evidence when coming to its conclusion. For the following reasons, we vacate and remand the case with direction.

The facts are as follows. The mother and father divorced on April 29, 2013. The divorce and custody agreement awarded joint legal custody of C. M. to the father and mother. The father was granted physical custody, and the mother was granted visitation rights.

On April 24, 2014, the mother filed a complaint in the Superior Court of Newton County against the father seeking a temporary and permanent modification of the primary physical custody of C. M. due to the father’s incarceration (the “Parent Custody action”). On the same day, the paternal grandparents filed an emergency motion for custody (the “Third-Party Custody action”). An emergency hearing was held on April 24, 2014, at which the trial court required the attendance of the paternal grandparents and the mother. Although the mother was not served with the Third-Party Custody action until June, 2, 2014, there is nothing in the record to indicate that the mother objected to proceeding with both actions at the temporary hearing. At the conclusion of the hearing, the trial court entered an emergency order of custody, granting temporary custody of C. M. to the paternal grandparents until the end of the school year, with custody alternating between the mother and the grandparents on a weekly basis thereafter. The father was barred from contact with the child.

On June 2, 2014, the mother and the paternal grandparents appeared for a temporary hearing in the Third-Party Custody action. The trial court entered a temporary order in the Third-Party Custody action which continued the same custodial arrangement set forth after the emergency motion hearing in the Parent Custody action. The order further stated that it was joining the Parent Custody action and the Third-Party Custody action together under one action.

The mother and the paternal grandparents appeared on July 14, 2014, for a final hearing. At the hearing, the mother’s counsel stated that the cases had not been properly merged and that no motion for intervention had been filed. In response, the trial court initially stated that it was merging the two cases “on its own motion” for the purposes of judicial economy. However, when the issue of proper venue was raised, the trial court reconsidered the merger and instead granted the paternal grandparents’ motion to intervene in the Parent Custody action. The mother did not object. After the hearing, the trial court issued a final order granting joint legal custody of the child to the mother and the paternal grandparents, with primary physical custody to the paternal grandparents. The mother appeals from this order.

1. The mother contends that the trial court erred by improperly consolidating the Parent Custody action and the Third-Party Custody action. However, although the mother’s counsel brought to the trial court’s attention that the cases had not been properly consolidated, counsel did not object once the trial court orally consolidated them “on its own motion” or when it later retracted that ruling and allowed the paternal grandparents to intervene in the Parent Custody action. Accordingly, this enumeration has been waived. See Beloate v. Peden, 328 Ga. App. 64, 68 (2) (761 SE2d 487) (2014).

2. The mother asserts that the trial court’s decision was in error because it appears that the trial court improperly considered evidence presented during the emergency motion hearing in making its final custody decision. We disagree.

Although it is unclear what evidence the trial court utilized to make its decision because the final order contains no findings of fact or conclusions of law, the hearing transcript indicates that the trial court considered evidence presented at the temporary custody hearing. At the final hearing, prior to the call of the paternal grandparents’ first witness, the trial court stated that the witness “has already testified. What is she going to testify to that is different from what she testified before? . . . [She] testified at the temporary hearing, and if she is just going to reiterate that, there is no need for that.”

In Pace v. Pace, 287 Ga. 899, 901 (700 SE2d 571) (2010), our Supreme Court held that “absent express notice to the parties, it is error for a trial court to rely on evidence from the temporary hearing in making its final custody determination.” This is because “the nature and quality of the evidence presented at a temporary hearing is likely to be different than that which is ultimately presented at the final hearing[.]” Id. Yet, we find that the trial court’s indication to the parties that the witness need not testify at the trial if her testimony was going to be redundant unmistakenly notified the parties that he might rely on the witness’ prior testimony. Thus, the requirements of Pace were met.

3. Citing OCGA § 19-7-1 (b.l), the mother argues that the award of primary physical custody to the grandparents was in error because the trial court failed to make findings, by clear and convincing evidence, that custody with her would be harmful to the child and that custody with the grandparents best promoted the child’s welfare and happiness. We agree.

OCGA § 19-7-1 (b.l) provides, in pertinent part:

. . . [I]n any action involving the custody of a child between the parents or either parent and a third party [including] grandparent[s].. .parental power may be lost by the parent... if the court hearing the issue of custody, in the exercise of its sound discretion and taking into consideration all the circumstances of the case, determines that an award of custody to such third party is for the best interest of the child or children and will best promote their welfare and happiness. There shall be a rebuttable presumption that it is in the best interest of the child . . . for custody to be awarded to the parent . . . , but this presumption may be overcome by a showing that an award of custody to such third party is in the best interest of the child. . . . The sole issue for determination in any such case shall be what is in the best interest of the child. r. .

In order to satisfy the “best interest of the child” standard under OCGA § 19-7-1 (b.l), the third party must show by clear and convincing evidence:

(1) that parental custody would harm the child physically or emotionally (not socially or economically), this to rebut the statutory presumption in favor of the parent; and, upon meeting its initial burden, the third party must show (2) that an award of custody to him or her will best promote the child’s health, welfare and happiness.

(Citation, punctuation and footnote omitted.) Jones v. Burks, 267 Ga. App. 390, 392 (599 SE2d 322) (2004). See also Clark v. Wade, 273 Ga. 587, 589-593 (II) (544 SE2d 99) (2001) (construing the best interest standard).

The complained-of order awards primary physical custody of the child to the paternal grandparents without making any findings of fact or law to support its award. The award does not specify that the custodyawardisinthebestinterestofthechildunderOCGA § 19-7-1 (b.l), and it does not state that its findings were made under the required clear and convincing evidence standard. See Clark, supra at 599 (V). The transcript of the hearing reveals that the trial court did not make- any such findings orally at the time of the hearing. Accordingly, we vacate and remand the case for the trial court to make these findings under the required standard.

4. The mother also correctly asserts, and the grandparents concede, that the trial court failed to incorporate a permanent parenting plan pursuant to OCGA § 19-9-1. OCGA § 19-9-1 (a) provides, in pertinent part: “The final decree in any legal action involving the custody of a child... shall incorporate a permanent parenting plan.” Accordingly, upon remand, we also direct the trial court to comply with the requirements of OCGA § 19-9-1.

Decided July 13, 2015.

Turner & Lawrence, Kenneth G. Lawrence, for appellant.

Stephen McGinnis, pro se.

Diane B. McGinnis, pro se.

5. As a result of our holdings in Divisions 1-4, we need not address the mother’s remaining arguments.

Judgment vacated and case remanded with direction.

Barnes, P. J., and McMillian, J., concur.

       By his failure to respond to the mother’s request for admissions in the Parent Custody action, the father admitted that he was arrested on April 21,2014, on a felony warrant for child molestation relating to multiple incidents of child molestation alleged to have been committed on M. T., the mother’s child from a previous relationship.

       We note that neither party lodged any objection to the court’s indication that he did not need the witness to testify again as to matters which she had already testified to in the interlocutory hearing.


author: McFadden, Judge.

text:
    A15A0569.
    McCLARTY v. TRIGILD INCORPORATED et al.
    (775 S.E.2d 597)
   McFadden, Judge.

Emma McClarty brought an action against Trigild Incorporated, among others, alleging that she was injured when a ceiling in a motel operated by Trigild collapsed on top of her. The jury returned a verdict in favor of Trigild, and the trial court entered judgment on that verdict. On appeal, McClarty asserts errors related to four of her requests for admission, request numbers 26, 29, 30 and 31 (set forth in full in Division 1, infra).

McClarty argues that the trial court erred in ruling that her request number 26 was improper. In that request, she asked Trigild to admit that the condition of the ceiling was hazardous. After Trigild responded by denying knowledge of any alleged hazardous condition, McClarty moved the trial court to determine the sufficiency of Trigild’s response. Instead of doing so, the trial court held that McClarty’s request was inappropriate. We agree with McClarty that this holding was error and, accordingly, we vacate the trial court’s judgment and remand the case for the trial court to determine the sufficiency of Trigild’s response to request number 26 and for other proceedings not inconsistent with this opinion.

McClarty argues that the trial court erred in allowing Trigild to amend its response to request number 29 from a denial to a qualified, rather than an unqualified, admission. In that request, she asked Trigild to admit that it did not warn her of the condition that led to the collapsed ceiling. Trigild initially responded by denying knowledge of any alleged hazardous condition. After McClarty moved the trial court to determine the sufficiency of this response, the trial court permitted Trigild to amend its response to admit that it did not warn McClarty of the condition but to state that it did not know of the condition. We find that the trial court did not abuse his discretion in this ruling.

Finally, McClarty argues that Trigild improperly presented evidence at trial that contradicted its admissions to request numbers 29, 30 and 31, in which Trigild admitted that it did not warn McClarty of the condition and that, had it known of the condition, it would have had certain obligations toward McClarty and others. We find no error, because the evidence to which McClarty points does not contradict those admissions; rather, it concerned whether McClarty was hit in the head with drywall when the ceiling collapsed.

Because we find no merit in McClarty’s arguments concerning request numbers 29, 30 or 31, those claims of error pose no bar to the trial court reentering the judgment if such action otherwise would be appropriate after the trial court rules on the sufficiency of the first request.

1. Procedural posture.

Pursuant to OCGA § 9-11-36, McClarty propounded several requests for admission upon Trigild, to which Trigild responded. The requests and responses at issue in this appeal are as follows:

26. The condition on the premises that led to the ceiling’s collapse and fall on Ms. Emma McClarty was a hazardous condition.
Response[:] Defendant Trigild Incorporated denies actual and constructive knowledge of any alleged hazardous condition in the room cited in this request.
29. Prior to the ceiling’s collapse and fall on Ms. Emma McClarty on November 11, 2009, you, through your agents, employees, and/or delegates did not warn Ms. Emma McClarty of the condition that led to the ceiling collapsing and falling on her.
Response^ Defendant Trigild Incorporated denies actual and constructive knowledge of any alleged hazardous condition in the room cited in this request that would have triggered a duty to warn.
30. Prior to the ceiling’s collapse and fall on Ms. Emma McClarty on November 11, 2009, had you, through your agents, employees, and[/]or delegates known of the condition that ultimately led to the ceiling collapsing and falling on Ms. Emma McClarty[ ] you had an obligation to fix or alleviate the condition.
Response[:] Defendant Trigild Incorporated admits this request. . . . Defendant Trigild Incorporated denies actual and constructive knowledge of any hazardous condition in the room cited in the request.
31. Prior to the ceiling’s collapse and fall on Ms. Emma McClarty on November 11, 2009, had you, through your agents, employees, and/or delegates known of the condition that ultimately led to the ceiling’s collapse and fall on Ms. Emma McClarty, you had an obligation to warn Ms. Emma McClarty and others about the condition.
Response[:] Defendant Trigild Incorporated admits this request. . . . Defendant Trigild Incorporated denies actual and constructive knowledge of any hazardous condition in the room cited in the request.

Dissatisfied with Trigild’s responses to request number 26 and request number 29, McClarty moved the trial court to determine their sufficiency. See OCGA § 9-11-36 (a) (3) (“The party who has requested the admissions may move to determine the sufficiency of the answers or objections.”). She argued that Trigild’s responses, which concerned Trigild’s lack of knowledge of the ceiling’s condition, failed to fairly meet the substance of the requested admissions, which did not ask about Trigild’s knowledge. She also argued that Trigild’s responses were insufficient because they failed to state that Trigild had “made reasonable inquiry and that the information known or readily obtainable by [it was] insufficient to enable [it] to admit or deny.” OCGA § 9-11-36 (a) (2). The trial court ruled that request number 26 concerned a topic not appropriate for a request for admission and thus “denied” McClarty’s motion without determining the sufficiency of the response. The trial court ruled that Trigild’s response to request number 29 would be deemed a qualified admission and presented as such to the jury.

At trial, McClarty’s counsel read into evidence her request number 29, stated that Trigild admitted the request, and then, consistent with the trial court’s ruling, qualified that admission by reading Trigild’s original response to the request. McClarty’s counsel also read into evidence her request number 30 and request number 31 and stated that Trigild had admitted both requests.

On appeal, McClarty challenges the trial court’s ruling that request number 26 was inappropriate, the trial court’s ruling permitting the qualification of the admission to request number 29, and the admission at trial of evidence that McClarty argues contradicted the admissions to request numbers 29, 30 and 31.

2. Ruling that request number 26 was inappropriate.

McClarty argues that the trial court erred when, instead of determining the sufficiency of Trigild’s response to request number 26, the trial court ruled that the request was inappropriate. We agree and hold that this error requires that the judgment be vacated and the case remanded for the trial court to determine the sufficiency of that response.

Our Supreme Court addressed the permissible scope of requests for admission in G. H. Bass & Co. v. Fulton County Bd. of Tax Assessors, 268 Ga. 327 (486 SE2d 810) (1997), and concluded that “requests for admission under OCGA § 9-11-36 (a) are not objectionable even if they require opinions or conclusions of law, as long as the legal conclusions relate to the facts of the case.” Id. at 329 (1) (citations omitted). Accord Brown v. Morton, 274 Ga. App. 208, 209 (617 SE2d 198) (2005). Consequently, “even where the answering party lacks information or considers the requested matter to involve a genuine issue of fact, the party must nevertheless answer the request, in a manner consistent with the ways set forth in OCGA § 9-11-36 (a) (2).” G. H. Bass & Co., 268 Ga. at 329-330 (1). That Code provision, which is strictly construed, id. at 331 (2), requires the answering party to state in its response the reasons for any objection and to “fairly meet the substance of the requested admission” with any denial. OCGA § 9-11-36 (a) (2).

McClarty’s request number 26 asked Trigild to admit that there was a hazardous condition that led to the collapse of the ceiling. Even if the request sought the admission of opinions or conclusions of law rather than facts, it fell within the permissible scope of requests for admission described by the Supreme Court in G. H. Bass & Co. because it sought opinions or conclusions that related to the facts of this case. 268 Ga. at 329 (1); see also Wellstar Health System v. Green, 258 Ga. App. 86, 90-91 (2) (572 SE2d 731) (2002). In its response, Trigild did not object to the request on the ground that it was inappropriate or on any other ground. Instead, Trigild denied the request to admit in a manner that McClarty argues did not fairly meet the substance of the request. By erroneously rejecting the request as inappropriate, the trial court did not rule on the sufficiency of Trigild’s denial.

The issues of whether the response was insufficient and, if so, what course of action should be taken were determinations for the trial court to make in his discretion. OCGA § 9-11-36 (a) (3); see Wellstar Health System, 258 Ga. App. at 90-91 (2). Because the trial court did not make those determinations, which could have affected the evidence presented to the jury at trial on the key issue of the existence of a hazardous condition, we must vacate the judgment that the trial court entered on the jury’s verdict and remand the case for the trial court to rule on the sufficiency of Trigild’s response to request number 26. If on remand the trial court rules that Trigild’s response was sufficient, then the court may reenter the judgment on the jury verdict and McClarty may appeal from that judgment. (As explained in Divisions 3 and 4, infra, McClarty’s other claims of error do not merit reversal of the judgment entered on the jury verdict.) If the trial court rules that Trigild’s response was insufficient, however, he then “may order either that the matter is admitted or that an amended answer be served,” OCGA § 9-11-36 (a) (3), and conduct further proceedings consistent with his ruling and not inconsistent with this opinion.

3. Qualified admission to request number 29.

McClarty argues that the trial court erred in permitting Trigild to qualify its admission to request number 29. We disagree.

Request number 29 asked that Trigild admit that it did not warn McClarty about the condition of the ceiling. Trigild responded by denying knowledge of any hazardous condition that would trigger a duty to warn. In hearing McClarty’s motion for a determination of the sufficiency of that response, the trial court engaged in the following colloquy with Trigild’s counsel:

THE COURT: Well, if you didn’t know about it [a hazardous condition], you didn’t warn her, right?
[COUNSEL]: Correct.
THE COURT: So, it’s admitted but you have an explanation.
[COUNSEL]: Right.
THE COURT: So, you’re wanting me to admit it or to deem it admitted, but with an explanation, which I can do. . . . Twenty-nine, the response is deemed admitted with the explanation given.

McClarty did not object to this resolution of her motion.

A trial court faced with an insufficient response to a request for admission “may order . . . that an amended answer be served.” OCGA § 9-11-36 (a) (3). In lieu of an order, the trial court may “determine that final disposition of the request be made at a pretrial conference or at a designated time prior to trial.” Id. In this case, the trial court disposed of the request at a hearing immediately before trial. The trial court’s ruling at that hearing essentially permitted Trigild to amend its answer from a denial to a qualified admission. The Code section governing requests for admission permits a party to qualify an answer “when good faith requires.” OCGA § 9-11-36 (a) (2). And the record does not reflect that McClarty objected at trial to Trigild’s amended answer to the request. Under these circumstances, we find no abuse of discretion by the trial court. See Wellstar Health System, 258 Ga. App. at 90-91 (2) (applying abuse of discretion standard to review trial court’s disposition of request for admission).

4. Evidence allegedly conflicting with admissions to request numbers 29, 30 and 31.

McClarty argues that the trial court erred in permitting Trigild to admit evidence that conflicted with its admissions to request numbers 29, 30 and 31. Trigild argues that McClarty waived this objection by failing to raise it at the time the evidence was admitted. McClarty responds that she was not required to object because the admissions conclusively established the matters admitted. See OCGA § 9-11-36 (b) (“Any matter admitted under this Code section is conclusively established unless the court, on motion permits withdrawal or amendment of the admission.”); see also Fox Run Properties v. Murray, 288 Ga. App. 568, 569 (1) (654 SE2d 676) (2007); Pulte Home Corp. v. Woodland Nursery & Landscapes, 230 Ga. App. 455 (1) (496 SE2d 546) (1998). We need not determine the effect of a party’s failure to object to evidence that conflicted with an admission presented to the jury pursuant to OCGA § 9-11-36, however, because we discern no conflict between the admissions that Trigild made and the evidence it presented.

The admissions at issue (fully set forth in Division 1, supra) can be summarized as follows: Trigild admitted that it did not warn McClarty of the condition that led to the ceiling’s collapse (request number 29); Trigild admitted that, had it known of that condition, it would have had an obligation to fix it (request number 30); and Trigild admitted that, had it known of that condition, it would have had an obligation to warn McClarty and others of it (request number 31).

The allegedly contradictory evidence, however, did not address Trigild’s failure to warn or its obligations. Instead, that evidence — the testimony of an expert witness — questioned whether drywall actually struck McClarty’s head when the ceiling collapsed. Although each of the above requests did refer to the “ceiling collapsing and falling on [McClarty],” that language merely provided context for the matters being admitted — Trigild’s failure to warn and its obligations. We do not read the requests to seek admissions about the matter of the drywall striking McClarty’s head. Consequently, the trial evidence to which McClarty points did not contradict Trigild’s admissions and does not provide a ground for reversal. Compare Pulte Home Corp., 230 Ga. App. at 456 (1) (reversing jury verdict where, in response to request for admission, party admitted that it had agreed to perform terms of contract, but at trial party presented evidence that it was not bound by contract).

Decided July 13, 2015.

Sanders Law Group, Julian L. Sanders, for appellant.

Dodson & Associates, Joseph D. Perrotta, for appellees.

Judgment vacated and case remanded with direction.

Ellington, P. J., and Dillard, J., concur.