author: DOYLE, Chief Judge.

text:
    A17A0485.
    FAYETTE COUNTY NURSING HOME, LLC v. PRI X-RAY, LLC et al.
    (801 SE2d 116)
   DOYLE, Chief Judge.

This appeal arises from a breach of contract case filed by Fayette County Nursing Home, LLC d/b/a Southland Health & Rehabilitation and Clinical Services, Inc. (collectively “Southland”), against PRI X-Ray, LLC, and Georgia Ultrasound, LLC (collectively “PRI”), alleging PRI failed to defend and indemnify Southland as required under the parties’ service contract against claims filed in connection with the death of Lois Jorgenson. The trial court granted summary judgment to PRI after finding that the claims alleged against Southland in Jorgenson’s death did not fall under the indemnity provision of the service contract between Southland and PRI. For the reasons that follow, we reverse the trial court’s order granting summary judgment to PRI.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

So viewed, the record shows that Southland is a long-term nursing facility, which provides residence, skilled care, treatment, and convalescent and rehabilitative services. In 2011, Southland contracted PRI to perform various x-ray services at the facility The agreement between the parties contains the following relevant clauses. All employees of PRI would be appropriately trained, follow pertinent regulations, and “uphold the ethics of the profession.” All exams, including mobile x-ray, ultrasound, and EKG services, performed by PRI would be “on the order of a duly licensed and authorized physician” and would be “interpreted by a duly licensed and qualified [r]adiologist.” Under services, PRI would “provide [Southland] with true and accurate records of services provided for ... and inspection of charts, if necessary, to assure compliance with physician orders and any and all state, federal, and/or fiscal intermediary rules and regulations as they apply to mobile ultrasound services.” PRI was also required to utilize licensed radiologists and cardiologists to interpret the exams, and the contract noted that “[t]he [r]adiologist will dictate a report for each examination and will promptly fax the full written report to [Southland].” Clause 5, titled “Insurance,” stated the amount of insurance each party was required to maintain.

Section 12 of the agreement covers “Indemnification and Cooperation In Defense of Claims.” Clause 12.1 states:

PRI . . . covenants and agrees to fully defend, protect, indemnify[,] and hold harmless [Southland], its officers, directors, agents, trustees, heirs, employees, servants, affiliated organizations, subsidiaries, successors, assigns[,] and representatives against each and every claim, workers’ compensation claim, lien, demand[,] or cause of action and any liability, costs, payment of benefits, expenses (including reasonable attorney fees and expenses) damage[,] or loss[,] or connection therewith that may be made or asserted by any third parties, additional subcontractors hired by PRI[,]... or employees of PRI . . . , including additional subcontractors and their employees as contemplated by OCGA § 34-9-8 on account of personal injury, death, property damage[,] or worker’s compensation claim caused by, arising out of or in any way incidental to, or in connection with the independent contractor relationship between PRI.. . and [Southland] or in the performance of laboratory services hereunder; and PRI . . . agrees that it maintains, at PRI[’s] . . . sole cost and control, valid, ongoing workers’ compensation coverage for PRI . . . and all PRI[’s] . . . employees, subcontractors[,] and subcontractor’s employees throughout the length of time it takes PRI... to perform the work or radiology services and to provide a valid ongoing certificate of worker’s compensation insurance to [Southland] .

Clause 12.2 more fully articulated the reimbursement mechanism from PRI to Southland for workers’ compensation claims, and Clause 12.3 defined the cooperation practices between the parties to defend against medical malpractice and other claims.

In 2013, Jorgenson broke her hip and underwent reparative surgery. Jorgenson did not experience complications from surgery while at the hospital, and on May 22, 2013, she was discharged and sent to Southland for a 30-day rehabilitation stay. When Jorgenson was admitted to Southland, it was noted that she had a bowel movement on May 21, 2013, and she had a soft, flat, non-tender, abdomen that was positive for bowel sounds. Southland’s records indicated that between May 25-29, Jorgenson did not have a bowel movement, was given a laxative without results, and began experiencing degrading function during rehabilitation exercises. On May 30, after Jorgenson received additional treatment but continued to deteriorate, Jorgenson’s treating physician ordered a chest x-ray and a kidney, ureter, and bladder (“KUB”) x-ray to rule out an obstruction.

The KUB and chest x-rays were performed at 8:30 p.m. by PRI, and the films were evaluated and interpreted by Dr. Farah Williams. Dr. Williams dictated her findings, and they were faxed to Southland by 12:03 a.m. Dr. Williams’s practice also contacted PRI directly and informed it of a “critical finding” in Jorgenson’s x-ray and expressed that Jorgenson’s treating physician needed to know about the finding immediately Neither PRI, nor Dr. Williams, or her practice directly contacted Southland or Jorgenson’s treating physician about the finding in the x-rays in order to notify them of the critical finding.

At 12:03 a.m., a Southland nurse noted that she contacted via answering service Jorgenson’s treating physician, but the complaint did not state whether the treating physician received the x-ray information at that time or until making rounds later that morning at 11:30 a.m., which is when she requested Jorgenson be transferred to the hospital to rule out a bowel perforation. Jorgenson underwent surgery for the perforation and later died from sepsis.

Jorgenson’s estate filed a complaint against various parties, including Southland, Williams, and Williams’s practice, but did not name PRI as a defendant. The complaint alleged, inter alia, that Williams’s practice contacted PRI and informed it that the KUB x-ray had a critical finding about which the treating physician should be immediately informed. The report allegedly was sent to Southland from Williams’s practice, but neither Williams nor her practice contacted Southland or the treating physician to inform them of the critical finding; although PRI knew of the critical finding and contacted Southland to ensure the report arrived, it did not explain to Southland that there was a critical finding in the report or explain that the treating physician should be immediately informed. The treating physician moved Jorgenson to the hospital for treatment some 12 hours later. Based on these facts, Jorgenson alleged claims of negligence, professional negligence, breach of contract, and wrongful death.

Southland notified PRI of Jorgenson’s lawsuit, but PRI refused to indemnify Southland against Jorgenson’s claims. Thereafter, South-land settled with Jorgenson, and Southland filed the instant case against PRI for breach of contract based on the failure to defend and indemnify Southland under the agreement.

The parties filed cross-motions for summary judgment. The trial court granted summary judgment in favor of PRI, finding that PRI contracted with Southland to provide mobile imaging services, not radiology services, and therefore, Jorgenson’s injury did not arise out of a breach of PRI’s duties under the contract in order to trigger the duties to defend or indemnify Southland under the agreement.

Southland argues that the trial court erred by granting summary judgment to PRI. We agree.

As a matter of law, the scope of the written indemnification provisions must be strictly construed against [Southland], the indemnitee. In addition, it is well established in Georgia that contractual indemnities do not extend to losses caused by an indemnitee’s own negligence unless the contract expressly states that the negligence of the indemnitee is covered.

Specifically, Southland challenges the trial court’s conclusion that Southland failed to show that PRI’s actions proximately caused the patient’s injuries in order to trigger the indemnity clause. In support of its argument, Southland relies primarily on JNJ Foundation Specialists v. D. R. Horton, Inc. Although that case is not binding precedent, the propositions within that case upon which Southland relies are based upon prior case law in this Court, including BBL-McCarthy, in which this Court explained that “[sjimilar to our interpretation of the phrase ‘arising out of’ in insurance policies, we construe this phrase in an indemnity clause to mean ‘had its origins in’ or ‘grew out of’ and to encompass ‘almost any causal connection or relationship.’ ” Thus, despite the trial court’s determination otherwise, in this case, the origination of at least some of the claims against Southland arguably arose from PRI’s communication between South-land and the radiologist PRI contracted to interpret the films as required in Clause 1.7. Additionally, PRI contracted to “use” certified radiologists under both Clause 1.2 and Clause 1.7. Based on the broad language of the indemnity clause of 12.1, PRI was responsible for providing indemnity for all claims “caused by, arising out of or in any way incidental to, or in connection with the independent contractor relationship between PRI . . . and [Southland] or in the performance of laboratory services hereunder.” This broad language encompasses the communication between the radiologist and Southland because PRI was responsible for acting as an intermediary between the radiologist and Southland under the contract. The radiologist’s communication to Southland, especially when the radiologist’s concern was known to PRI, is “incidental to” PRI’s duties under the contract.

Moreover, PRI specifically contracted to provide consultation to Southland regarding “ancillary health matters and inspection of charts, if necessary, to assure compliance with physician orders,” and its employees were required to be trained to uphold ethical obligations of the profession. The contractual obligation of “consultation with Southland ... to ensure compliance with orders” is not limited to the time period prior to the x-ray or ultrasound. When read in conjunction with the broad duty to indemnify Southland in connection with the services under the contract, Jorgenson’s claims are included, and PRI breached the indemnity agreement by failing to provide a defense. Accordingly, we reverse the grant of summary judgment to PRI.

Judgment reversed.

Miller, P. J., and Reese, J., concur.

Decided June 2, 2017

Reconsideration denied June 28, 2017

Hanks Brookes, Jerald R. Hanks, Brandon G. Day, for appellant.

Carlock, Copeland & Stair, Eric J. Frisch, for appellees.

        BBL-McCarthy, LLC v. Baldwin Paving Co., 285 Ga. App. 494-495 (646 SE2d 682) (2007), citing OCGA § 9-11-56 (c); Britt v. Kelly & Picerne, Inc., 258 Ga. App. 843 (575 SE2d 732) (2002); Phillips v. First Bank of Ga., 257 Ga. App. 342 (571 SE2d 410) (2002).

       (Emphasis supplied.)

       (Citation and punctuation omitted.) BBL-McCarthy, 285 Ga. App. at 500 (2).

       311 Ga. App. 269 (717 SE2d 219) (2011) (physical precedent only).

       285 Ga. App. at 500-501 (2).

       See id. at 501 (2).

       See id.; JNJ Foundation Specialists, 311 Ga. App. at 279-280 (4) (physical precedent only).

       Clause 1.6.

       Clause 1.4.

       PRI agreed to
      fully ... indemnify and hold harmless ... against each and every claim ... or cause of action and any liability, costs, payment of benefits, expenses (including reasonable attorney fees and expenses), damage!,] or l°ss or connection therewith that may be made or asserted by any third parties, ... on account of personal injury, death, property damage!,] or worker’s compensation claim caused by, arising out of or in any way incidental to, or in connection with the independent contractor relationship between PRI . . . and [Southland] ....

       See Lawyers Title Ins. Corp. v. New Freedom Mtg. Corp., 285 Ga. App. 22, 30 (2) (645 SE2d 536) (2007) (explaining that if “as here, an indemnification clause requires indemnification of losses that arise out of certain specified events but does not explicitly mention the indemnitee’s negligence, the clause still requires full indemnification although the indemni-tee’s negligence may have partially caused the loss”) (punctuation omitted).


source: Caselaw Access Project

author: BARNES, Presiding Judge.

license: Public Domain

text:
    A17A1098.
    COATES v. THE STATE.
    (802 SE2d 65)
   BARNES, Presiding Judge.

A jury found Hubert Coates guilty of one count of possession of less than an ounce of marijuana and four counts of possession of a firearm by a convicted felon. The trial court sentenced Coates separately on each count, with the sentences to run consecutively Coates filed a motion for new trial and to amend his sentence, which the trial court denied. On appeal, Coates argues that the trial court should have merged his four firearm convictions. We disagree and affirm.

Following a criminal conviction, we construe the evidence in the light most favorable to the verdict. Anthony v. State, 317 Ga. App. 807, 807 (732 SE2d 845) (2012). So viewed, the evidence showed that in May 2014, the police executed a search warrant on two neighboring addresses in Coffee County Coates operated a make-shift store selling snack items and beverages at one of the addresses, and he lived at the other address next door with his wife. The police recovered less than an ounce of marijuana during the search inside and outside the make-shift store. They recovered four firearms during the search of Coates’ residence.

Coates was indicted on one count of possession of marijuana with intent to distribute and four counts of possession of a firearm by a convicted felon. A bifurcated trial ensued. During the first phase, Coates was tried on the marijuana distribution count and was convicted of the lesser included offense of possession of less than an ounce of marijuana. During the second phase, Coates was tried and convicted of the firearm-related counts. The trial court sentenced Coates to consecutive sentences on the five counts and denied Coates’ motions for new trial and to amend his sentence. This appeal followed.

Coates argues that the trial court should have merged his four convictions for possession of a firearm by a convicted felon under OCGA § 16-11-131 (b). According to Coates, the statute is ambiguous as to whether the possession of each firearm constitutes a separate unit of prosecution, and the statute therefore should be construed under the rule of lenity to mean that the simultaneous possession of multiple firearms constitutes only one offense. We are unpersuaded.

As our Supreme Court has explained:

The question of multiple punishments (as opposed to multiple prosecutions) for the same criminal conduct is addressed under the rubric of substantive double jeopardy. Whether multiple punishment is permissible requires examination of the legislative intent underlying the criminal statute. It is for the legislature to determine to what extent certain criminal conduct has demonstrated more serious criminal interest and damaged society and to what extent it should be punished. Typically, the question is whether the same conduct may be punished under different criminal statutes. In that situation, it is appropriate to apply the . . . “required evidence” test....f] However, a different, question is presented here: whether a course of conduct can result in multiple violations of the same statute. . . . [That] question requires a determination of the “unit of prosecution,” or the precise act or conduct that is being criminalized under the statute.

(Citations, punctuation and emphasis omitted.) State v. Marlowe, 277 Ga. 383, 383-384 (1) (589 SE2d 69) (2003). See Bell v. United States, 349 U. S. 81, 82-84 (75 SCt 620, 99 LE 905) (1955); Smith v. State, 290 Ga. 768, 772-773 (3) (723 SE2d 915) (2012).

To determine the unit of prosecution for a particular offense intended by the legislature, “the starting point must be the statute itself.” Marlowe, 277 Ga. at 384 (1). If the unit of prosecution for the offense is clear and unambiguous from the statutory text, “we attribute to the statute its plain meaning, and our search for statutory meaning is at an end.” (Citation and punctuation omitted.) Clinton v. State, 340 Ga. App. 587, 589 (798 SE2d 101) (2017). In contrast, if the legislature’s choice of the unit of prosecution is unclear from the statutory text, the ambiguous statute must be construed strictly against the State so as to impose the lesser punishment. Marlowe, 277 Ga. at 386 (2) (b) n. 24.

Mindful of these principles, we turn to the statutory language criminalizing possession of a firearm by a convicted felon, which provides:

Any person who is on probation as a felony first offender pursuant to Article 3 of Chapter 8 of Title 42 or who has been convicted of a felony by a court of this state or any other state; by a court of the United States including its territories, possessions, and dominions; or by a court of any foreign nation and who receives, possesses, or transports any firearm commits a felony and, upon conviction thereof, shall be imprisoned for not less than one nor more than five years; provided, however, that if the felony as to which the person is on probation or has been previously convicted is a forcible felony, then upon conviction of receiving, possessing, or transporting a firearm, such person shall be imprisoned for a period of five years.

(Emphasis supplied.) OCGA § 16-11-131 (b). Applying this provision, we have upheld a defendant’s convictions for three counts of possession of a firearm by a convicted felon based on evidence that the defendant constructively possessed three firearms in his home. See Layne v. State, 313 Ga. App. 608, 610, 612-613 (2) (722 SE2d 351) (2012). See also Gibson v. State, 319 Ga. App. 220, 220-221 (735 SE2d 290) (2012) (trial court erred in sentencing defendant on four counts of possession of a firearm by a convicted felon that pertained only to two firearms that he possessed on the same day; defendant should have been sentenced on two counts based on the two firearms).

Coates argues, however, that OCGA § 16-11-131 (b) is ambiguous as to whether it imposes a separate punishment for each individual firearm possessed, or whether it merely imposes one punishment for being armed regardless of the number of firearms, given the use of the phrase “any firearm,” and he further argues that our precedent has not directly addressed this issue. The word “any” found in the statute gives rise to ambiguity, Coates maintains, because it can mean one or some, and can encompass both the singular and plural. Consequently, Coates argues, a person in possession of a single firearm is in possession of “any firearm,” but a person in possession of more than one firearm also can be in possession of “any firearm,” and the statute does not make clear which of these two possible meanings should apply. Given this alleged ambiguity, Coates contends that OCGA § 16-11-131 (b) should lie strictly construed against the State so as to treat the simultaneous possession of more than one firearm as a single violation of the statute.

We do not agree. It is true that the word “any” can mean one or some and can designate singular or plural; hence, the phrase “any firearm,” considered in isolation, could refer to a single firearm or multiple firearms. See American Heritage Dictionary of the English Language (5th ed. 2016) (defining “any” as “one or some; no matter which”); Collins English Dictionary — Complete and Unabridged (12th ed. 2014) (defining “any” as “one, some, or several, as specified, no matter how much or many, what kind or quality, etc [.] ”). See also United States v. Kinsley, 518 F2d 665, 668-669 (B) (1) (8th Cir. 1975) (phrase “any firearm” is ambiguous because it can mean a single firearm or more than one firearm). But that does not end the matter in the present case because the phrase “any firearm” found in OCGA § 16-11-131 (b) must be read in the context of the words surrounding it to ascertain its specific meaning and determine whether there is any statutory ambiguity. We are “required to read a particular statute as a whole, considering specific words and phrases not in isolation, but in relation to each other.” Gary v. State, 338 Ga. App. 403, 405 (1) (790 SE2d 150) (2016). See Warren v. State, 294 Ga. 589, 590-591 (755 SE2d 171) (2014) (noting that “the words in [a statute] should be understood in relation to each other, since words, like people, are judged by the company they keep”) (citation and punctuation omitted). As we have emphasized, “the meaning of words or phrases in a statute may be ascertained from others with which they are associated and from which they cannot be separated without impairing or destroying the evident sense they were designed to convey in the connection used.” (Citations and punctuation omitted.) Burke v. State, 208 Ga. App. 446, 446-447 (1) (430 SE2d 816) (1993).

Applying these rules of construction, we conclude that when the phrase “any firearm” found in OCGA § 16-11-131 (b) is read in conjunction with the words surrounding it, the phrase clearly was intended to refer to a single firearm rather than multiple firearms. As noted above, OCGA § 16-11-131 (b) states that a convicted felon who possesses “any firearm” can be convicted and imprisoned from one to five years; “provided, however, that if the felony as to which the person is on probation or has been previously convicted is a forcible felony, then upon conviction of . . . possessing[ ] . . . a firearm, such person shall be imprisoned for a period of five years.” (Emphasis supplied.) Use of the article “a” in the proviso of subsection (b) “expresses an unambiguous . .. intent to make each firearm a unit of prosecution.” United States v. Alverson, 666 F2d 341, 347 (III) (A) (9th Cir. 1982); Sanders v. United States, 441 F2d 412, 415 (10th Cir. 1971). And because “all parts of a statute, including provisos, are to be construed together,” Cherokee Brick & Tile Co. v. Redwine, 209 Ga. 691, 693 (1) (75 SE2d 550) (1953), the language of the proviso in subsection (b) clarifies that punishment imposed under that subsection is predicated on possession of a single firearm.

Further clarification is provided by OCGA § 16-11-131 (b.l), the other subsection of the statute that creates a felony firearm offense and thus sheds light on the proper unit of prosecution. Subsection (b.l) provides:

Any person who is prohibited by this Code section from possessing a firearm because of conviction of a forcible felony or because of being on probation as a first offender for a forcible felony pursuant to this Code section and who attempts to purchase or obtain transfer of a firearm shall be guilty of a felony and shall be punished by imprisonment for not less than one nor more than five years.

(Emphasis supplied.) OCGA § 16-11-131 (b.l). Through its reference to “a firearm,” subsection (b.l) confirms that the legislature intended to link conviction and punishment under the statute to a single firearm.

Accordingly, we conclude that the phrase “any firearm” found in OCGA § 16-11-131 (b), when read in conjunction with the statutory proviso and with subsection (b.l), is unambiguous and was intended by the legislature to refer to a single firearm rather than multiple firearms. It follows that the unit of prosecution under OCGA § 16-11-131 (b) is possession of a single firearm, and Coates could be separately punished for his possession of each of the firearms seized from his house. The trial court therefore committed no error in declining to merge Coates’ four firearm-related convictions for purposes of sentencing.

Decided June 15, 2017

Reconsideration denied June 28, 2017

Joshua A. Larkey, for appellant.

George E. Barnhill, District Attorney, Ian L. Sansot, Assistant District Attorney, for appellee.

Judgment affirmed.

McMillian and Mercier, JJ., concur.

        See Drinkard v. Walker, 281 Ga. 211, 215-217 (636 SE2d 530) (2006).

       While OCGA § 16-11-131 has been amended since the offenses occurred in this case in May 2014, subsection (b) remains the same. See Ga. L. 2014, p. 426, § 4/HB 770; Ga. L. 2014, p. 444, § 2-5/HB 271; Ga. L. 2016, p. 443, § 6C-2/SB 367.

       Coates emphasizes that several federal courts have held that the phrase “any firearm” is ambiguous with respect to the federal statute prohibiting possession of a firearm by a convicted felon. See, e.g., United States v. Verrecchia, 196 F3d 294, 297-298 (II) (A) (1st Cir. 1999); United States v. Dunford, 148 F3d 385, 389-390 (II) (4th Cir. 1998); Kinsley, 518 F2d at 668-669 (B) (1). However, the language of the federal firearms statute is materially different from OCGA § 16-11-131 (b) because it does not contain a proviso that clarifies the meaning of the phrase “any firearm.” See 18 USC § 922 (g) (1) (“It shall be unlawful for any person . . . who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year[,] ... to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.”).


author: McFADDEN, Presiding Judge. BETHEL, Judge,

text:
    A17A0084.
    In the Interest of C. W., a child.
    (803 SE2d 91)
   McFADDEN, Presiding Judge.

The state filed a delinquency petition against C. W. for driving under the influence of alcohol, OCGA § 40-6-391 (a) (1), (k) (1), underage possession of alcohol, OCGA § 3-3-23, reckless driving, OCGA § 40-6-390, and speeding, OCGA § 40-6-181. The juvenile court granted C. W.’s motion to suppress evidence of his blood-alcohol level obtained through a warrantless blood test, finding that the state did not show C. W. voluntarily consented to the blood test. The state appeals. Because the evidence presented at the hearing on the motion to suppress does not demand a finding contrary to the juvenile court’s ruling, we affirm.

A blood test is a search within the meaning of the Fourth Amendment. Williams v. State, 296 Ga. 817, 819 (771 SE2d 373) (2015). A warrantless search is “per se unreasonable under the Fourth Amendment, subject only to a few specifically established and well-delineated exceptions. Thus, a warrantless search is presumed to be invalid, and the [sjtate has the burden of showing otherwise.” Id. (citation omitted). Here, the state argued that C. W. consented to the blood test, so no search warrant was needed. See id. at 821 (“it is well settled in the context of a DUI blood draw that a valid consent to a search eliminates the need for ... a search warrant”). To meet its burden of showing consent, the state was required to show that C. W. acted freely and voluntarily in giving actual consent. Id. at 821-822; State v. Brogan, 340 Ga. App. 232, 233 (797 SE2d 149) (2017). After receiving evidence at a hearing, the juvenile court granted the motion to suppress, finding that C. W.’s consent to the blood test was not voluntary.

“When the facts material to a motion to suppress are disputed, it generally is for the trial judge to resolve those disputes and determine the material facts.” Hughes v. State, 296 Ga. 744, 746 (1) (770 SE2d 636) (2015).

An appellate court generally must (1) accept a trial court’s findings unless they are clearly erroneous, (2) construe the evidentiary record in the light most favorable to the factual findings and judgment of the trial court, and (3) limit its consideration of the disputed facts to those expressly found by the trial court.

State v. Bowman, 337 Ga. App. 313 (787 SE2d 284) (2016).

The evidence presented at the motion to suppress hearing, construed in favor of the trial court’s factual findings and judgment, showed that a trooper with the Georgia State Patrol saw 16-year-old C. W. driving his car at a speed of 79 miles per hour on a road with a posted speed limit of 55 miles per hour. The trooper stopped C. W.’s car and asked him to get out. C. W. smelled of an alcoholic beverage. His speech was slow and slurred, his eyes were bloodshot, glossy, and watery, and he seemed withdrawn. Although he initially denied drinking, C. W. eventually told the trooper that he had drunk three beers earlier in the day. The trooper administered field sobriety tests and a portable breath test, which indicated the presence of alcohol on C. W.’s breath. At that point, the trooper arrested C. W. and handcuffed him. He read C. W. the implied consent notice for persons under the age of 21. C. W. agreed to submit to a state-administered chemical test. The trooper drove C. W. to a police precinct to undergo a blood test. More than an hour passed between the reading of the implied consent warning and the blood test. The officer testified that he was “very stern” while interacting with C. W.

A paramedic drew C. W.’s blood at the precinct. The paramedic had the trooper sign the consent form on C. W.’s behalf because C. W. is a minor, their protocols prohibit a minor from consenting, and C. W. was in the trooper’s custody. C. W. did not read the consent form, and neither the paramedic nor the trooper read it to him. C. W.’s parents were not present when his blood was drawn; the paramedic did not recall that C. W.’s parents had been notified that his blood would be drawn; and C. W.’s father arrived after his blood had been drawn.

Based on these facts, the juvenile court found that C. W.’s consent to the blood test was not voluntary. The court concluded that although C. W. was not threatened with physical harm, “given his youth and the other circumstances, a reasonable person would not have felt free to decline the [trooper’s] request to submit to the blood test.”

Evaluating the totality of these circumstances, we are reminded that in the absence of evidence of record demanding a finding contrary to the judge’s determination, the appellate court will not reverse the ruling sustaining a motion to suppress. And here, the evidence supports the trial court’s findings and certainly does not demand a conclusion contrary to the court’s ruling.

Bowman, supra, 337 Ga. App. at 318 (citations and punctuation omitted; emphasis supplied and in original).

The state argues that the fact the trooper read the implied consent notice to C. W. does not per se mean that his consent was coerced. It also argues that, contrary to C. W.’s contention, a juvenile may consent to a blood test. But the juvenile court did not rule that C. W.’s consent was coerced, as a matter of law, due to the reading of the implied consent notice. Nor did the court rule that C. W.’s age meant that, as a matter of law, he could not consent to a blood test. So those issues are not before us.

The state also

argues that the evidence supported a finding of voluntary consent. Were we reviewing a denial of a motion to suppress, this argument might be persuasive. But we are reviewing a grant of a motion to suppress, and the evidence did not demand a finding contrary to the trial court’s decision. For this reason, we must affirm.

Brogan, 340 Ga. App. at 236 (citation and punctuation omitted).

Judgment affirmed.

Branch, J., concurs. Bethel, J., concurs specially.

BETHEL, Judge,

concurring specially

I concur in Presiding Judge McFadden’s opinion because it provides the required deference to the trial court. I am, however, concerned that the opinion could be used to support the proposition that a defendant’s age may provide the exclusive basis for a motion to suppress based on a finding of a lack of voluntariness with regards to a consent to a blood draw in future cases. Because I do not believe the age of the defendant can or should provide the sole basis for such a finding or motion, I concur specially.

The Presiding Judge correctly notes that the trial court did not rule that C. W, based on age, could not consent to a blood test as a matter of law. Nevertheless, a review of the circumstances and findings recounted in the trial court’s order and in the Presiding Judge’s opinion make it difficult, to see what else might have supported the suppression. In fact, other than the use of a “stern voice” (hardly a rarity among the law enforcement community), it is difficult, to discern anything in the order’s findings that depart from a normal and typical DUI stop and arrest. Thus, the factors identified by the trial court include:

Decided June 28, 2017.

Meg E. Heap, District Attorney, Kimberly Rowden, Assistant District Attorney, for appellant.

Scheer, Montgomery & Call, Donald L. Montgomery, Jr., Craig A. Call, for appellee.

(1) C. W. was 16 years old at the time;

(2) the officer spoke sternly to C. W.;

(3) the stop lasted long enough for the trooper to conduct three field sobriety tests;

(4) upon a finding of probable cause, C. W. was arrested and handcuffed;

(5) the trooper advised C. W. of the statutorily-required advised consent standard applicable to drivers under the age of 21; and

(6) the trooper transported C. W. to the precinct for the blood draw.

Factors (3)-(6) are normal, expected, and functionally essential elements of a lawful DUI stop and arrest. Thus, it seems difficult, to imagine a lawful stop that would not include these factors (or something nearly identical). I struggle to see how these factors could be the basis of fear, intimidation, threat of physical punishment, or lengthy detention that would call into question an otherwise voluntary consent to search. This leaves C. W.’s age and a stern voice, which seems like a very short distance from age alone being the determining factor.

Allowing age alone to be the determining factor would leave law enforcement with no lawful means of conducting this sort of search on young drivers, and I do not believe that the Fourth Amendment requires such a rule. I do not believe that the Presiding Judge explicitly suggests that standard. But, I fear his opinion could be read to support that conclusion. Accordingly, I concur specially.


author: Branch, Judge.

text:
    A17A0202.
    CHOICE v. FLORIDA MEN’S MEDICAL CLINIC.
    (802 SE2d 405)
   Branch, Judge.

On June 8,2015, plaintiff Willie Choice voluntarily dismissed his first complaint against defendant Florida Men’s Medical Clinic d/b/a Georgia Men’s Medical Clinic (the “Clinic”). Choice’s first complaint alleged assault and battery, negligent hiring, and other torts arising from his visit to the Clinic on August 6, 2012. On December 8, 2015, Choice filed a renewal action, but Choice did not serve the renewal summons and complaint on the Clinic until January 4, 2016. The Clinic moved to dismiss the renewal action on grounds including that Choice was insufficiently diligent in effecting service, and the trial court granted the motion. On appeal, Choice’s arguments include that the evidence does not support the trial court’s judgment. We vacate and remand for further proceedings because the trial court erroneously held Choice accountable for the delay in effecting service from the date of the first attempted filing of the complaint rather than from the date the clerk provided file-stamped copies of the complaint and summons for service.

Atrial court’s finding that a plaintiff was not sufficiently diligent in effecting service is a discretionary determination that will not be disturbed if there is some evidence to support the court’s finding. Williams v. Bragg, 260 Ga. App. 377, 379 (579 SE2d 800) (2003). Although we thus view the record in favor of the judgment, the undisputed and relevant facts are that on August 6, 2012, Choice, who had been treated by the Clinic for more than a year, was allegedly touched inappropriately by a Clinic employee, Christopher Vickery, during a scheduled appointment. On April 25, 2014, Choice filed his original complaint against the Clinic and Vickery for imputed liability, assault and battery, negligent hiring and retention, invasion of privacy, and punitive damages. On June 8, 2015, Choice voluntarily dismissed his complaint.

On December 8, 2015, or exactly six months after the voluntary dismissal of his first complaint, Choice attempted to file his renewal action electronically, adding counts including professional negligence, violation of the Fair Business Practices Act, and fraud, and naming three additional defendants (two doctors at and one employee of the Clinic). On December 9, Choice learned that the Fulton County State Court had rejected his filing due to an incorrect filing code. On December 16, the complaint was accepted and stamped filed as of December 8. On December 23, Choice submitted the file-stamped complaint and summons to a process server. On that day, an assistant at Choice’s counsel’s office e-mailed to the process server a copy of the complaint and a list of four defendants, including the Clinic. On December 29, when the process server attempted to serve the Clinic at its Atlanta office, he was told by another occupant of the building that the Clinic’s office had been vacant for “a couple of weeks.” The process server then consulted the Georgia Secretary of State’s website and found that Lawrence Haber was listed as the registered agent for the Clinic. A different process server served Haber on the afternoon of January 4, 2016. On February 3, 2016, the Clinic acknowledged service in writing, and this acknowledgment was filed the same day

Later in February 2016, the Clinic moved to dismiss Choice’s complaint on two grounds: for failing to attach a professional affidavit to his original complaint in support of the claim for professional negligence included in the renewal action and for failing to exercise reasonable diligence in serving the renewal action on the Clinic within the six-month period authorizedby OCGA § 9-2-61 (a). In July 2016, the trial court held that because the two-year statute of limitation governing personal injury actions had expired before renewal, Choice “was unable to allege additional claims in this refiled action” that were not “substantially the same as the original.” The court also found itself “unable to say that the record establishes diligence in accomplishing service” of the renewal action. Specifically, the court noted that Choice had failed to file successfully by December 8 and that “the computer problem associated with filing [his] renewal action” caused the complaint not to be file-stamped until “December 16, 2015[,] already eight days after expiration of the renewal period.” The court also found that Choice had failed to contact a process server until December 23, had not attempted service by means of that server until December 29, and had not succeeded in effecting service on the Clinic until January 4, or “27 days after expiration of the renewal period.” The court concluded that because “the record contains significant periods of time during the month of December during which [Choice’s] diligence is essentially unexplained,” Choice had “failed to act with reasonable diligence in effecting service as quickly as possible after [the] expiration of the renewal period.” The court dismissed the complaint for this reason.

On appeal, Choice argues that the trial court erred in dismissing his complaint because Choice acted diligently in serving the complaint.

In the course of concluding that Choice had been insufficiently diligent in serving the summons and complaint, the trial court noted that the computer problem on filing caused an eight-day delay until outside of the renewal period, apparently following the rule that a plaintiff’s “diligence in perfecting service should be measured from the time of filing [a] renewal action.” See Fusco v. Tomlin, 285 Ga. App. 819, 820 (648 SE2d 137) (2007) (punctuation omitted), citing Magsalin v. Chace, 255 Ga. App. 146 (564 SE2d 554) (2002). OCGA § 9-11-4 (c) provides as follows, however:

Where the service of process is made outside of the United States, after an order of publication, it may be served either by any citizen of the United States or by any resident of the country, territory, colony, or province who is specially appointed by the court for that purpose. When service is to be made within [Georgia], the person making such service shall make the service within five days from the time of receiving the summons and complaint; but failure to make service within the five-day period will not invalidate a later service.

(Emphasis supplied.)

In Giles v. State Farm Mut. Ins. Co., 330 Ga. App. 314 (765 SE2d 413) (2014), we noted the Supreme Court of Georgia’s holding in Ga. Farm Bureau Mut. Ins. Co. v. Kilgore, 265 Ga. 836 (462 SE2d 713) (1995) that OCGA § 9-11-4 (c)’s “person making such service” identifies the process server rather than the plaintiff. 330 Ga. App. at 317 (1), citing Kilgore, 265 Ga. at 837. We also pointed out the error of statements like that made in Fusco to the extent that they fail to take account of the portion of OCGA § 9-11-4 (c) granting the “person making such service” a grace period of “five days from the time of receiving the summons and complaint.” (Emphasis supplied.) As we noted, “[N]umerous [decisions] have incorrectly stated that the plaintiff must serve the defendant within five days of the filing of the complaint rather than [within five days of] receipt of the summons and complaint by the person making service.” Giles, 330 Ga. App. at 319 (2). We thus stated the proper rule as follows: “If the filing of the [complaint] is followed by timely service perfected as required by law, although the statute of limitation runs between the date of the filing of the [complaint] and the date of service, the service will relate back to the time of filing so as to avoidthe limitation.” Id. at 317 (2) (citation and punctuation omitted); see also Kilgore, 265 Ga. at 837. We also overruled numerous cases that had misstated the rule, adding that “any other precedent not identified in this opinion” that misstated the rule “should also be considered overruled to the extent the rule is misstated.” Giles, 330 Ga. App. at 321 (2) n. 5.

This complaint was eventually stamped as filed on December 8, 2015, the last day of the six-month renewal period allowed under OCGA § 9-2-61 (a), and service was not effected until January 4, 2016. This case may thus fall into the category identified in Giles: where “ ‘a complaint is filed near the statute of limitation and service is made after the statute expires and after the five-day safe harbor provision contained within OCGA § 9-11-4 (c), the relation back ofthe service to the date of filing is dependent upon the diligence exercised by the plaintiff in perfecting service.’ ” 330 Ga.App. at 318 (2), quoting Moody v. Gilliam, 281 Ga. App. 819, 820 (637 SE2d 759) (2006); see also Milton V. Goins, 309 Ga. App. 865, 866 (2) (711 SE2d 415) (2011) (plaintiff bears burden of proving lack of fault when service is not timely perfected as required by law). In other words, and although “the pertinent process statutes place sole responsibility on the clerk to issue the necessary copies of the complaint and summons to the sheriff or marshal to accomplish service,” Giles, 330 Ga. App. at 316 (1) (punctuation omitted), the responsibility for exercising due diligence in effecting service remained Choice’s. Id. at 318 (2).

Under this law and these facts, the trial court was required to consider each part of the delay between December 8, 2015 and January 4, 2016, including the eight days from December 8 to December 16, in its determination of whether Choice exercised proper diligence in perfecting service. Given that the clerk could not have transmitted the summons and complaint for service until after that document had been file-stamped, the trial court thus erred in counting the eight days after the expiration of the renewal period against Choice. We therefore vacate the trial court’s order granting the Clinic’s motion to dismiss and remand for further proceedings, including an opportunity for both parties to submit and the court to consider evidence as to the date on which the clerk transmitted the file-stamped summons and complaint for service, as well as any other evidence tending to explain the delay in service here. After making a finding on the factual question of the date on which the clerk transmitted the summons and complaint for service, the trial court should make its discretionary determination as to whether Choice was sufficiently diligent in effecting service after the expiration of the statute of limitation, taking into account the evidence as to each period between December 16,2015, when the complaint was accepted and back-dated to December 8, and January 4, 2016, when the complaint was finally served.

Decided June 28, 2017.

The Weinstein Firm, Michael A. Weinstein, for appellant.

Swift, Currie, McGhee & Fliers, C. Bradford Marsh, Myrece R. Johnson, for appellee.

Judgment vacated and case remanded with direction.

McFadden, P. J., and Bethel, J., concur.

       See OCGA § 9-2-61 (a) (“When any case has been commenced in either a state or federal court within the applicable statute of limitations and the plaintiff discontinues or dismisses the same, it may be recommenced in a court of this state or in a federal court either within the original applicable period of limitations or within six months after the discontinuance or dismissal, whichever is later, subject to the requirement of payment of costs in the original action as required by subsection (d) of Code Section 9-11-41; provided, however, ifthe dismissal or discontinuance occurs after the expiration of the applicable period of limitation, this privilege of renewal shall be exercised only once.”).

       Although the Clinic disputes on appeal whether Haber was its registered agent, the trial court explicitly found that the Clinic was served on January 4 “after an unsuccessful attempt on December 29.”

       The misstated rule in both Fusco and Magsalin comes from Heard v. Hart, 241 Ga. App. 441 (526 SE2d 908) (1999), which we explicitly overruled in Giles. See 330 Ga. App. at 319 (2) n. 2. Both Fusco and Magsalin are thus among the cases already overruled.


text:
    A17A0230.
    GEORGIA PORTS AUTHORITY v. LAWYER.
    (803 SE2d 94)
   Branch, Judge.

This case arises out of injuries sustained by Bruce Lawyer while working aboard a ship docked at the Garden City Terminal in the Port of Savannah. A Chatham County jury found that these injuries were caused by the negligence of a Georgia Ports Authority (“GPA”) employee and awarded Lawyer $4.5 million in damages. After the jury returned its verdict, the trial court issued an order denying the GPA’s pretrial motion to dismiss Lawyer’s federal maritime claim for lack of subject matter jurisdiction and entered judgment in favor of Lawyer. The GPA now appeals each of these orders. The GPA argues that the trial court erred in finding that the GPA is not an instrumentality of the State and therefore is not entitled to immunity from suit under the Eleventh Amendment to the United States Constitution. Additionally, the GPA contends that the trial court erred in denying its motion for a directed verdict on Lawyer’s maritime claim because Lawyer failed to come forward with any evidence that his injury occurred on navigable waters. For reasons explained more fully below, we find no error and affirm.

The facts giving rise to this lawsuit are not in dispute, and the parties agree that Lawyer was injured while working aboard the MW Ibrahim Dede, a ship that was docked at a facility located on the Savannah River. Lawyer’s job on that day was to secure containers of cargo that were being transferred onto the ship via a ship-to-shore river crane operated by a GPA employee. During that process, the negligence of the crane operator caused one of the “twist locks” attached to the container being loaded to dislodge and fall into the ship’s cargo hold, where Lawyer was working. The twist lock — which is a metal piece weighing approximately 16 pounds — struck Lawyer in the head, inflicting permanent, life-changing injuries. Lawyer thereafter sued the GPA in superior court, asserting claims under both federal maritime law and the Georgia Tort Claims Act (“GTCA”), OCGA § 50-21-20 et seq. Prior to trial, the GPA moved to dismiss Lawyer’s maritime claim on the ground that because the GPA was an arm of the State, the Eleventh Amendment immunized it from suits for violations of federal law. The trial court reserved ruling on that motion until after trial.

The jury returned a verdict in which it found that GPA’s negligence was the sole cause of Lawyer’s injuries and awarding Lawyer damages of $4.5 million. The trial court thereafter considered GPA’s motion to dismiss and denied the same. That same day, the trial court entered the order of judgment in favor of Lawyer and against the GPA. This appeal followed.

1. The Eleventh Amendment to the United States Constitution provides that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” “It has long been settled” that the protections afforded by the Eleventh Amendment extend “not only [to] actions in which a State is actually named as the defendant, but also [to] certain actions against state agents and state instrumentalities.” Regents of the Univ. of California v. Doe, 519 U. S. 425, 429 (II) (117 SCt 900, 137 LE2d 55) (1997). Andin 1999, the United States Supreme Court held that the Eleventh Amendment also protects the states and any arm thereof from private suits brought against them in their own courts. Alden v. Maine, 527 U. S. 706, 754 (II) (B) (4) (119 SCt 2240, 144 LE2d 636) (1999).

Several years after the decision in Alden, this Court summarily held that “[f] or purposes of determining Eleventh Amendment immunity, the GPAis an instrumentality of the State of Georgia.” Ga. Ports Auth. v. Andre Rickmers Schiffsbeteiligungsges mbH & Co. KG, 262 Ga. App. 591, 593-594 (2) (585 SE2d 883) (2003), citing Hodges v. Tomberlin, 510 FSupp. 1280, 1281 (S.D. Ga. 1980). Our Supreme Court granted certiorari to consider “whether the Georgia Ports Authority is entitled to immunity under the Eleventh Amendment... for claims sounding in maritime law.” Hines v. Ga. Ports Auth., 21 & Ga. 631, 631 (604 SE2d 189) (2004). As part of its analysis, our Supreme Court adopted the three-part test articulated by the United States Court of Appeals for the Eleventh Circuit for determining whether an entity is an instrumentality of the state for purposes of the Eleventh Amendment. Id. at 634. Under that test, whether a state entity is entitled to Eleventh Amendment immunity depends upon three factors: “(1) how state law defines the entity; (2) what degree of control the state maintains over the entity; and (3) from where the entity derives its funds and who is responsible for satisfying the judgments against the entity.” Id., citing Vierling v. Celebrity Cruises, 339 F3d 1309, 1314 (II) (11th Cir. 2003). After considering these factors, the Hines court concluded that the GPA “is not an arm of the [S]tate.” Id. at 637 (2). In doing so, however, the court indicated that the evidentiary record in the case was not as substantial as the Court might have liked, noting that the GPA “chose to submit its contention of immunity to the trial court on a motion to dismiss [based on the plaintiffs’ failure to comply with the procedural requirements of the GTCA], rather than on a motion for summary judgment . . . Id. at 636 (1) n. 32 (further observing that “[a]n analysis of the [GPA] budget would be most useful in determining whether it was dependent upon the State” but that because of the case’s procedural posture, no such analysis had been presented).

Here, the GPA moved to dismiss Lawyer’s federal law claim under OCGA § 9-11-12 (b) (1) and (h) (3) for lack of subject matter jurisdiction. In support of this motion, the GPA filed a significant amount of documentary and testimonial evidence to demonstrate its argument that under the three-part test adopted in Hines, the GPA is an instrumentality of the State of Georgia. On appeal, therefore, the GPA asserts that the holding in Hines should be reconsidered in light of the evidentiary record in this case. Regardless of the merits of the GPA’s arguments on this issue, however, we are not at liberty to reconsider Hines, as “this Court has no authority to overrule or modify a decision made by the Supreme Court of Georgia.” Pak v. Ga. Dept. of Behavioral Health & Developmental Disabilities, 317 Ga. App. 486, 488 (731 SE2d 384) (2012). See also Ga. Const. of 1983, Art. VI, Sec. VI, Par. VI (“[t]he decisions of the Supreme Court shall bind all other courts as precedents”); Cargile v. State, 194 Ga. 20, 22 (1) (20 SE2d 416) (1942) (the constitutional provision that decisions of Supreme Court shall bind the Court of Appeals as precedents is applicable in all cases). Accordingly, because we are bound by the Supreme Court of Georgia’s holding that the GPA is not entitled to immunity under the Eleventh Amendment, we affirm the trial court’s denial of the GPA’s motion to dismiss Lawyer’s maritime claim.

2. In its second enumeration of error, the GPA contends that the trial court erred in denying its motion for directed verdict on Lawyer’s maritime claim because he failed to present any evidence that the accident in question occurred on navigable waters. This argument, however, ignores the admissions contained in the GPA’s answer to Lawyer’s complaint.

Lawyer alleged in his complaint that at the time of the accident, the Ibrahim Dede “was located on the navigable waters of the United States for the purpose of loading and discharge of cargo.” And in its answer, the GPA admitted this allegation. This part of the answer constitutes an admission in judicio, and because the GPA never sought to withdraw this admission or otherwise amend its answer, it is bound by the same. See Walker v. Jack Eckerd Corp., 209 Ga. App. 517, 519 (1) (434 SE2d 63) (1993) (“a party to a suit will not be allowed to [contest] an admission made in his pleadings, without withdrawing it from the record”); Four Square Constr. Co. v. Jellico Coal & Charcoal Co., 145 Ga. App. 650, 650 (244 SE2d 612) (1978); Evans v. Equico Lessors, 140 Ga. App. 583, 583 (231 SE2d 534) (1976). Moreover, because this admission is binding on the GPA, it operated to relieve Lawyer of the burden of coming forward with evidence to prove that his injury occurred on navigable waters. Jabaley v. Jabaley, 208 Ga. App. 179, 179 (1) (430 SE2d 119) (1993). See also OCGA § 24-8-821 (“[w]ithout offering the same in evidence, either party may avail himself or herself of allegations or admissions made in the pleadings of the other”); NationsBank v. Tucker, 231 Ga. App. 622, 624-625 (2) (500 SE2d 378) (1998) (an admission in defendant’s answer that defendant neither withdraws nor amends becomes an admission in judicio and requires no further proof at trial). Accordingly, we find no error in the trial court’s denial of the GPA’s motion for a directed verdict on Lawyer’s claim under federal maritime law.

Decided June 28, 2017

Christopher M. Carr, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Loretta L. Pinkston-Pope, Senior Assistant Attorney General, Jared M. Campbell, Victoria A. C. Powell, Assistant Attorneys General, Britt C. Grant, Solicitor-General, Sarah H. Warren, Assistant Solicitor-General, for appellant.

Savage & Turner, Brent J. Savage, Brent J. Savage, Jr., Kathryn H. Pinckney, for appellee.

For the reasons set forth above, we affirm both the denial of the GPA’s motion to dismiss for lack of subject matter jurisdiction and the denial of its motion for a directed verdict.

Judgment affirmed.

McFadden, P. J., and Bethel, J., concur.

       The deferred ruling appears to result from the fact that the GTCA caps damages at $1 million. See OCGA § 50-21-29 (b) (1). Thus, had Lawyer prevailed at trial but been awarded $1 million or less in damages, the question of Eleventh Amendment immunity would have been moot, as the GPA would be liable for that judgment under the GTCA. The $4.5 million award, however, made a decision on Eleventh Amendment immunity necessary because such immunity would allow the GPA to avoid paying $3.5 million of that amount. See In the Matter of State of New York, 256 U. S. 490, 497 (41 SCt 588, 65 LE 1057) (1921) (Eleventh Amendment immunity applies to federal admiralty and maritime claims.). In the absence of such immunity, however, the GPA is liable for the entire judgment. See Workman v. New York City, Mayor, Aldermen and Commonalty, 179 U. S. 552, 560 (21 SCt 212, 45 LE 314) (1900) (federal maritime law preempts any state-conferred immunity).

       Federal maritime law “governs only those torts occurring on the navigable waters of the United States.” Exec. Jet Aviation v. City of Cleveland, Ohio, 409 U. S. 249, 254 (I) (93 SCt 493, 34 LE2d 454) (1972) (citation and punctuation omitted). See also Minnie v. Port Huron Terminal Co., 295 U. S. 647, 648 (55 SCt 884, 79 LE 1631) (1935).
      The Supreme Court of the United States long ago defined “navigable waters” ... as waters that are capable for use in commerce!.] • • • [Waters] are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water.

        Tundidor v. Miami-Dade County, 831 F3d 1328, 1331 (III) (11th Cir. 2016), quoting The Daniel Ball, 77 U. S. (10 Wall.) 557 (19 LE 999) (1870).


author: McFADDEN, Presiding Judge.

text:
    A17A0314.
    SOUZA v. BERBERIAN.
    (802 SE2d 401)
   McFADDEN, Presiding Judge.

John Souza appeals the partial grant of summary judgment to John Berberian in Souza’s action arising from a business dispute. The trial court granted Berberian’s motion for summary judgment on Souza’s claims that depend on the existence of a contract between them. The court also granted Berberian’s motion for summary judgment on Souza’s claim for breach of fiduciary duty; his claim alleging breach of a non-disclosure agreement entered into by two non-parties; and his claim for punitive damages. Souza’s claims for unjust enrichment, quantum meruit, and attorney fees remain pending in the trial court.

Souza appeals the grant of Berberian’s motion for summary judgment on the contract-based claims and on the claim for breach of a non-disclosure agreement. Souza argues that whether he and Berberian entered a contract depends on disputed facts, but the e-mail on which he relies to establish contract terms is too indefinite to be enforceable as a contract. Souza argues that the trial court erred by granting Berberian summary judgment on Souza’s claim for breach of the non-disclosure agreement, but as the trial court found, Berberian was not a party to that agreement, so it cannot be enforced against him. Accordingly, we affirm the trial court.

1. Contract-based, claims.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant or denial of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

Burns v. Dees, 252 Ga. App. 598, 599 (557 SE2d 32) (2001) (citation and punctuation omitted).

So viewed, the record shows that Souza knew both Berberian, who was associated with a company called United Allergy Services, and Jeff Gallups, the owner of Milton Surgical Associates d/b/a The ENT Institute. Souza introduced Berberian and Gallups, believing that they could enter a profitable business relationship whereby United Allergy Services would provide allergy testing services and treatment to ENT Institute patients.

According to Souza, he and Berberian agreed to form and co-own an entity that would sign a contract with ENT Institute to facilitate its relationship with United Allergy Services. He alleges that the terms of the agreement are set out in an August 19 e-mail from Berberian, which is the basis of his contract-based claims.

But while that e-mail sets out many details of the contemplated agreement, it does not set out the terms essential to a contract. And no other evidence fills the gaps. Berberian wrote that he and Souza “came to terms of what the deal points are.” He outlined what he referred to as the “unofficial points,” including that Souza would have 21 percent of “equity” but that his percentage was subject to change if Gallups “negotiate[d] a better deal on his side.” Berberian believed that the operating agreement for one of his companies could serve as a model operating agreement, but that they “will need to go over it in detail to maybe add or change some points.” He outlined some of the points that he “remember [ed] off the top of [his] head.” Berberian concluded that, “The [United Allergy Services] licensing agreement will be signed by our Newco which I will purchase tonight. It will have references to ENT Institute. .. . I’m certain I have not covered all the points, no[r] is this set in stone. But it is however a high level view of what we have discussed.”

Two days after sending this e-mail, on August 21, 2014, Ber-berian formed Pinnacle MSO, LLC. On September 13, 2014, Pinnacle entered an agreement with ENT Institute, and United Allergy Services began providing services to ENT Institute.

In the meantime, Souza and Berberian, themselves and through counsel, continued to exchange correspondence regarding their relationship. On August 22, 2014, Berberian e-mailed his counsel that “Deal has been accepted by all parties. Souza will not be a member of Pinnacle MSO. He will have phantom shares. Deal is at 55/45. Souza gets 16 percent.” In September or October, Berberian e-mailed Souza a draft of a “phantom unit agreement,” that granted Souza “phantom units” equal to 16 percent “of the Units of [Pinnacle].” Souza did not sign.

On November 11, Souza’s counsel e-mailed Berberian’s counsel that there was “an agreement on payment of 16% on allergy testing,” although the August 19 e-mail upon which Souza bases his contract claims stated that Souza’s interest was 21 percent. The parties continued to disagree about exactly what Souza had a percentage of. In December, his counsel e-mailed Berberian’s counsel that Souza “had never agreed to 16% net of anything.” (Emphasis supplied.) The next day, Souza’s counsel e-mailed Berberian’s counsel that “[r]ather than a phantom share agreement, Mr. Souza, through Reliant Biomedical Group, LLC, [apparently one of Souza’s companies] will enter into a fee sharing agreement with Pinnacle” under which “Pinnacle will pay to Reliant 16% of the invoiced amount by the 25th of each month. . . Counsel added that “[i]n the event of a sale of the company (assets or entity), Reliant will get 16% of the gross sales price at closing.” Berberian’s counsel responded that he would consult his client.

On December 5, Berberian’s counsel e-mailed Souza’s counsel a draft agreement between Souza and Pinnacle. The agreement provided that Souza would have an unspecified amount of phantom shares in Pinnacle and would “be paid 16% of the net profits of the Company.” Souza’s counsel responded with a draft of his own that omitted the references to phantom shares and provided that Reliant Biomedical Group would “be entitled to receive sixteen percent (16%) of the gross receipts paid to [Pinnacle] arising from the delivery of allergy services.”

Berberian’s counsel responded that “[t]he agreement was not to pay a percentage of gross. Distributions will be made out of net.” In January 2015, Souza’s counsel responded in turn with another draft. He followed up with an e-mail stating that Souza’s position was that “the parties had an enforceable oral agreement (the essential material terms of which were that Mr. Souza would get 16% of the revenue from allergy testing services plus 16% if the company got sold) that had not been reduced to writing.” Just over a month later, Souza filed this action. Two months after that, ENT Institute terminated the agreement with Pinnacle.

Souza argues that the parties entered an enforceable contract with all material terms defined by the August 19 e-mail. We disagree.

“It is well-established that a contract does not exist unless the parties agree on all material terms. OCGA § 13-3-2. A contract cannot be enforced if its terms are incomplete, vague, indefinite or uncertain.” Burns, 252 Ga. App. at 601-602 (1) (a) (citation and punctuation omitted). The August 19 e-mail is too indefinite to be enforceable as a contract. On its face, it states that the terms are not “set in stone.” It states that some terms may need to be added and others changed. It explicitly states that Souza’s percentage interest “will change if [Gallups] negotiates a better deal.” The e-mail does not even establish what Souza will have an interest in: a corporation? a partnership? a limited liability company? a share in revenue?

Further, the parties’ continued negotiations demonstrate that they had not reached agreement on all material terms. After the August 19 e-mail, the parties and their counsel discussed Souza’s interest in the enterprise as owning phantom shares in Pinnacle, as receiving a percentage of net profits, as receiving a percentage of gross profits, and as receiving a portion of the proceeds realized from any sale of the enterprise. See Aukerman v. Witmer, 256 Ga. App. 211, 214-215 (1) (568 SE2d 123) (2002) (oral agreement that one party would buy other’s stock for $1 million net was unenforceable where it did not provide for structure of transaction, pricing structure, or resolution of tax issues, and evidence showed parties continued to negotiate many of these terms and discuss alternative terms after entering into agreement).

As Souza tacitly concedes in his reply brief, the parties had not even reached agreement on a number, whether 16 percent or 21 percent. As detailed above, although Souza’s counsel repeatedly referred to 16 percent in his correspondence, the August 19 e-mail upon which Souza bases his contract claims stated that Souza’s interest was 21 percent, and in his complaint, Souza sought a declaration that he owns 21 percent of Pinnacle. Souza argues that “the portion of the agreement that would determine the ownership percentages are irrelevant to the question of assent.” But the size of Souza’s interest in any venture with Berberian is a material term. See McElvaney v. Roumelco, LLC, 331 Ga. App. 729, 733 (1) (771 SE2d 419) (2015) (although oral agreement may not have been sufficiently definite as to parties’ ownership interests in company, defendant twice admitted in writing that plaintiff owned 47 percent of the company, which was evidence that the parties had agreed on this material term).

“The facts in the record do not show with reasonable certainty what the parties intended to do in this agreement.” Burns, 252 Ga. App. at 604 (1) (a) (i) (oral agreement giving party 1/3 interest in profits and ultimate sale of business venture unenforceable because it lacked terms concerning allocation of costs and losses, frequency of payments, manner of calculating proceeds, and time of distribution). See also Massih v. Mulling, 271 Ga. App. 685, 686-687 (1) (610 SE2d 657) (2005) (defendant’s promise that plaintiff would have a 20 percent ownership in new corporation was unenforceable because details were never resolved, including how plaintiff would receive her ownership interest and how the corporation would be structured); Key v. Naylor, Inc., 268 Ga. App. 419, 425 (3) (602 SE2d 192) (2004) (agreement to transfer 20 percent of stock was unenforceable where agreement did not provide for when or if transfer was to be made, what stock was to be conveyed, and what the percentage related to). Consequently, the trial court did not err by granting Berberian summary judgment on Souza’s contract-based claims.

2. The non-circumvention provision of the non-disclosure agreement.

Souza argues that the trial court erred by granting Berberian summary judgment on Souza’s claim to enforce a non-circumvention provision in a non-disclosure agreement entered into by third parties. We disagree.

Before Souza introduced Berberian and Gallups, two non-party companies associated with Souza and Berberian, Paradise Media Ventures d/b/a Interactive Media Ventures, LLC and WellCorpRx, LLC, entered a non-disclosure agreement. The agreement included a non-circumvention provision that stated:

During the term of this [ajgreement and for 3 years thereafter, Recipient [defined in the agreement as WellCorp-Rx] will not attempt to do business with, or otherwise solicit any business contact or relationship created or referred by Owner [defined in the agreement as Paradise Media Ventures] during the term of the agreement.

(Punctuation omitted.) The agreement was signed by Souza as “Chief Strategist” of Paradise Media Ventures and Berberian as “CEO and Co-Founder” of WellCorpRx.

As the trial court found, “ [t] he ND A on its face did not prohibit the conduct of Berberian and Souza individually The NDA was between two entities that are not parties to this lawsuit.” “As a general rule, an action on a contract. . . shall be brought. .. against the party who made it. . . OCGA § 9-2-20 (a). “[I]t is axiomatic that a person who is not a party to a contract is not bound by its terms.” Primary Investments v. Wee Tender Care III, 323 Ga. App. 196, 199 (1) (746 SE2d 823) (2013) (citations and punctuation omitted). Here, the parties to the non-disclosure agreement are Paradise Media Ventures d/b/a Interactive Media Ventures, LLCandWellCorpRx, LLC. Because Berberian was not a party to the agreement, Souza cannot enforce it against him. The trial court did not err in granting Berberian summary judgment on this claim. But see Rymer v. Polo Golf and Country Club Homeowners Assn., 335 Ga. App. 167, 170 (1) (a) (780 SE2d 95) (2015) (“If . . . subsequent to an appellate decision, the evidentiary posture of the case changes in the trial court, the law of the case rule does not limit or negate the effect that such change would otherwise mandate. The posture of the case can be changed by an amendment to the complaint or by the submission of additional evidence.”) (citation and punctuation omitted).

Decided June 28, 2017.

Isenberg & Hewitt, Ryan L. Isenberg, for appellant.

Carter Law, David G. Carter, for appellee.

Judgment affirmed.

McMillian and Bethel, JJ., concur.


author: Bethel, Judge.

text:
    A17A0370.
    McGLYNN v. THE STATE.
    (803 SE2d 97)
   Bethel, Judge.

James Harold McGlynn, Jr., appeals from the denial of his motion for a new trial following his conviction for one count of misdemeanor possession of marijuana. On appeal, he enumerates four errors. First, he claims that the trial court erred by denying his motion to disqualify the district attorney’s office from prosecuting his case based on an allegation that prosecutorial misconduct had deprived him of his right to due process. Second, he claims the trial court erred by denying his special demurrer to the marijuana possession count in the indictment. Third, he claims the trial court erred by admitting evidence relating to his purchase and use of marijuana the day before his arrest for possession pursuant to OCGA § 24-4-404 (b) (Rule 404 (b)) and as intrinsic evidence of the offense. Fourth, he claims that the trial court erred by denying his motion for a directed verdict on the marijuana possession charge based on the equal access doctrine. As each of these claims are without merit, we affirm his conviction.

On appeal, the defendant “is no longer presumed innocent and all of the evidence is to be viewed in the light most favorable to the jury verdict.” Batten v. State, 295 Ga. 442, 443 (1) (761 SE2d 70) (2014). So viewed, McGlynn and a co-defendant were stopped by a deputy sheriff for speeding and failure to maintain lane. The co-defendant was driving the vehicle, and McGlynn was seated in the front passenger seat.

After initiating the traffic stop, the deputy approached the passenger side window, which was rolled down. He immediately detected the smell of marijuana, and he asked the co-defendant to exit the vehicle. When asked by the deputy about the marijuana smell, the co-defendant denied knowing about any marijuana in the vehicle.

McGlynn was instructed to exit the vehicle, and the deputy began searching the vehicle. Under the front passenger seat (where McGlynn had been seated), the deputy located a blue container which held a green leafy substance which later tested positive as marijuana. Both McGlynn and the co-defendant denied owning the blue container. Under the same seat, he also located a potato chip bag which held a smoking pipe containing marijuana residue.

The deputy then began searching in the rear compartment of the vehicle, where he located an additional bag containing both marijuana and dried mushrooms — a Schedule I controlled substance. After the search was completed, McGlynn and the co-defendant were arrested and transported to the county jail.

McGlynn was interviewed by a police investigator later that day In that interview, he told the investigator that he had purchased and smoked some marijuana the day before the arrest. McGlynn also told the investigator that the blue container and the orange smoking pipe found by the officers during the search of the vehicle belonged to him but denied that the marijuana was his.

McGlynn and his co-defendant were indicted. In pre-trial proceedings, McGlynn filed a special demurrer as to the sole count against him for possession of marijuana. That count alleged that, on the day of his arrest, McGlynn “did unlawfully have under his control less than an ounce of marijuana in violation of the Georgia Controlled Substances Act.” At the hearing on the demurrer, McGlynn offered testimony regarding the three locations in the vehicle where marijuana had been located (the blue container, the orange pipe, and the bag in the rear compartment). He argued that the terms of the indictment failed to give McGlynn notice as to which marijuana the State alleged him to have been in possession of at the time of the traffic stop, as both McGlynn and the co-defendant were charged with the exact same offense in two different, counts of the indictment. The State countered that because McGlynn had admitted to owning the blue container and the orange pipe in his interview with the investigator and because he admitted to the recent purchase and consumption of marijuana, he had been placed on sufficient notice of the charge. The trial court denied the special demurrer.

McGlynn also filed a motion in limine to exclude evidence of his use and purchase of marijuana on the day before the traffic stop. The trial court denied this motion, ruling that McGlynn’s interview with the police investigator which contained this evidence could be played for the jury at trial. McGlynn also challenged the admission of the evidence on the basis that he had not received adequate notice from the State that it intended to introduce this evidence against him pursuant to Rule 404 (b). The trial court also rejected this argument, noting that McGlynn received a copy of the recorded interview and a transcript eight or nine months prior to trial. In addition, the trial court determined that notice was not required because, pursuant to Rule 404 (b), no notice is required when the evidence pertains to “circumstances immediately surrounding the charged crime.” The court therefore determined that the evidence could be presented both as intrinsic evidence and to show intent, motive, and knowledge pursuant to Rule 404 (b).

On the morning the trial was to begin, McGlynn made an oral motion to recuse any member of the district attorney’s office from prosecuting the case, alleging prosecutorial misconduct. He alleged that an assistant district attorney (ADA) had “confronted” the co-defendant, whom McGlynn planned to call as a witness at trial. McGlynn alleged that the ADA “threatened” and “intimidated” the co-defendant, suggesting that the co-defendant would be prosecuted for perjury if he elected to testify in the trial on McGlynn’s behalf. Clarifying the facts surrounding this claim, McGlynn’s attorney stated that the ADA who had handled the co-defendant’s case for the State had spoken to the co-defendant in a room outside the courtroom and asked him what his testimony would be in McGlynn’s trial. The co-defendant told the ADA that he planned to claim ownership of all ofthe marijuana seizedfromthe vehicle. TheADArepliedthat she did not believe him and indicated to him that false testimony could subject him to a perjury charge, that it would violate the terms of his First Offender probation, and that he could be sent to jail. The co-defendant spoke with his counsel, who advised him that he could be subject to indictment for perjury if he testified falsely in the trial. The co-defendant was advised by his counsel that he should assert his Fifth Amendment right against self-incrimination.

The trial court denied McGlynn’s motion to disqualify At trial, the co-defendant was called as a witness, and he testified regarding his background, his business, his connection to McGlynn, and the reason they were traveling at the time of the traffic stop. He also testified regarding the charges he faced stemming from the traffic stop, including his guilty plea to possession of marijuana. However, he asserted his Fifth Amendment privilege, and he refused to testify with regard to who owned the blue container and the orange pipe found in the vehicle or whether he brought marijuana into the vehicle.

McGlynn was found guilty on the sole count against him for misdemeanor possession of marijuana, for which he was sentenced to one year of probation, a fine, and community service. His motion for a new trial, alleging the same errors he enumerates on appeal, was denied, and this appeal followed.

1. With regard to McGlynn’s motion to disqualify the district attorney’s office from prosecuting the case, we note at the outset that this Court takes seriously its role both in addressing attorney misconduct and in holding those who allege such misconduct to a high standard of proof. In this case, McGlynn relies on the United States Supreme Court’s decision in Webb v. Texas, 409 U. S. 95 (93 SCt 351, 34 LE2d 330) (1972) to suggest that his rights to due process were violated. McGlynn argues that the ADA’s discussion with the co-defendant before trial ultimately resulted in his decision, on the advice of his own counsel, to assert his Fifth Amendment privilege.

While Webb dealt specifically with statements made by a trial judge, this Court has previously noted that either “judicial or pros-ecutorial intimidation that dissuades a potential defense witness from testifying for the defense can, under certain circumstances, violate the defendant’s right to present a defense.” Terry v. State, 308 Ga. App. 424, 426 (707 SE2d 623) (2011) (citations and punctuation omitted; emphasis supplied). However, such analysis must be undertaken on a case-by-case basis. Id. at 427. Here we note, as did the trial court, that nothing in the record suggests that the statements made by the ADA to the witness were legally inaccurate or misleading. In fact, the ADA’s comments seem to have been confirmed by the witness’s own attorney, who, unlike the ADA, is charged with acting on the witness’s behalf and protecting his rights and interests. As we observed in Terry, “the potential for unconstitutional coercion by a government actor diminishes when a defendant’s witness has consulted with an independent attorney” Id. at 428. That these statements by the ADA were later perceived by the witness as threatening is wholly irrelevant to our consideration of this matter. This Court has held that the State “[is] duty bound to inform [the witness] of the possible consequences of admitting under oath” facts that could place the witness in legal jeopardy, “including notifying [the witness] that the criminal law would be enforced to the full extent against those who violate[ ] it.” Murray v. State, 157 Ga. App. 596, 598 (2) (278 SE2d 2) (1981).

Moreover, we fail to see how McGlynn’s due process rights were in any way abridged by the witness’s decision to assert his Fifth Amendment privilege following his conversation with the ADA and his own counsel. As we discussed in Terry, 308 Ga. App. at 426-427, a criminal defendant’s right to present his defense is not absolute, as it must give way to other considerations in the judicial process, including a witness’s right to assert testimonial privileges. Although McGlynn’s defense may have been hampered by the witness’s eve-of-trial decision not to testify regarding ownership of the marijuana and associated paraphernalia, McGlynn was obliged to find other means of making the argument to the jury that he did not own, and was not in possession of, those materials at the time of the arrest.

For these reasons, we agree with the trial court that the record before us does not establish sanctionable conduct on the part of the ADA and affirm the trial court’s denial of McGlynn’s motion to disqualify

2. McGlynn next argues that the trial court erred by denying his special demurrer with regard to the marijuana possession charge. He argues that because marijuana was found in various locations and containers throughout the vehicle and because the co-defendant was also charged with marijuana possession in a separate count using identical language, the indictment failed to adequately apprise McGlynn of which marijuana the State claimed he possessed at the time of the traffic stop.

“In reviewing a ruling on a special demurrer, we apply a de novo standard of review, because it is a question of law whether the allegations in the indictment are legally sufficient.” State v. Corhen, 306 Ga. App. 495, 497 (700 SE2d 912) (2010) (citation and punctuation omitted).

[W]hen determining whether an indictment is sufficient to withstand a special demurrer, the applicable standard is not whether the indictment could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet.... When presented with a special demurrer, the court should examine the indictment from the perspective that the accused is innocent, for this is what the law presumes. Nevertheless, the language of an indictment is to be interpreted liberally in favor of the State, while the accused’s objections to the indictment, as presented in a special demurrer, are strictly construed against the accused.

Id. at 497 (punctuation omitted).

McGlynn’s argument essentially asks us to require, in drug possession cases where multiple items of contraband are seized from multiple defendants, that the language of an indictment identify with specificity the exact items of contraband the State believes a particular defendant to have possessed. We find no support in our case law for this proposition.

Applying the Corhen test, we find that the language of the indictment adequately described the elements of the charged offense, as it identified the specific Code section under which McGlynn was charged.

We also find that this language sufficiently apprised McGlynn of the charge he would be required to meet at trial. Under our state’s laws, possession of any amount of marijuana is punishable as an offense. Thus, a jury’s finding that McGlynn was in possession of any of the marijuana found in the vehicle would have been sufficient to convict him, and his only viable defense was to deny possession of all of the marijuana found in the vehicle. In the record and his briefs before this Court, McGlynn indicates that he planned to defend the allegations of the indictment by claiming that all of the marijuana found in the vehicle belonged to the co-defendant. McGlynn called the co-defendant to the stand with the intention of having him claim responsibility for, and ownership of, the marijuana and to exonerate McGlynn. The co-defendant’s choice to exercise his Fifth Amendment privilege and not respond to questions on these issues does not change the fundamental strategy that McGlynn employed. We thus fail to see how additional clarification of the indictment would have altered McGlynn’s defense.

Because the language in the indictment meets both prongs of the test we outlined in Corhen, we affirm the trial court’s denial of the special demurrer.

3. McGlynn also argues that the trial court’s decision to admit evidence from his interview with the investigator in which he admitted to purchasing and smoking marijuana the day before his arrest violated Rule 404 (b). McGlynn filed a motion in limine to exclude such evidence, arguing that the State could not satisfy the requirements of Rule 404 (b). He also challenged the admission of the evidence on the basis that he had not received adequate notice from the State that it intended to introduce this evidence against him pursuant to Rule 404 (b). The trial court rejected this argument, noting that McGlynn received a copy of the recorded interview and a transcript eight or nine months prior to trial. In addition, the trial court determined that notice was not required because, pursuant to Rule 404 (b), no notice is required when the evidence pertains to “circumstances immediately surrounding the charged crime.” The trial court ruled that the evidence could be presented both as intrinsic evidence and for the purpose of showing intent, motive, and knowledge.

Rule 404 (b) provides, in pertinent part:

Evidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, . . . [or] knowledge .... The prosecution in a criminal proceeding shall provide reasonable notice to the defense in advance of trial, unless pretrial notice is excused by the court upon good cause shown, of the general nature of any such evidence it intends to introduce at trial. Notice shall not be required when the evidence of prior crimes, wrongs, or acts is offered to prove the circumstances immediately surrounding the charged crime, motive, or prior difficulties between the accused and the alleged victim.

OCGA § 24-4-404 (b). Decisions by the trial court with regard to admission of evidence under Rule 404 (b) are reviewed for abuse of discretion. Reeves v. State, 294 Ga. 673, 676 (2) (755 SE2d 695) (2014).

Here, the trial court was within its discretion to determine that McGlynn’s statements regarding his purchase and use of marijuana the day before the traffic stop were intrinsic to the charged offense of possessing marijuana. The traditional concept of res gestae provided that all the acts and circumstances surrounding the charged offense were admissible even if they reflected upon the defendant’s character. Baughns v. State, 335 Ga. App. 600, 602 (1) (782 SE2d 494) (2016). This rule of admissibility has been carried forward to the new rules of evidence “under the concept of ‘intrinsic’ evidence, as opposed to ‘extrinsic’ evidence, i.e., evidence of ‘other crimes, wrongs, or acts,’ which is subject to the admissibility requirements of OCGA § 24-4-404 (b).” Satterfield v. State, 339 Ga. App. 15, 19 (1) (a) (792 SE2d 451) (2016) (citation and footnote omitted). “Evidence is intrinsic ‘if it is (1) an uncharged offense which arose out of the same transaction or series of transactions as the charged offense, (2) necessary to complete the story of the crime, or (3) inextricably intertwined with the evidence regarding the charged offense.’ ” Brooks v. State, 298 Ga. 722, 726 (2) n. 11 (783 SE2d 895) (2016) (citation omitted). Here, because of the close temporal connection between McGlynn’s purchase and use of marijuana (the prior day) and the traffic stop at which he was found to be in possession of marijuana, the trial court did not abuse its discretion in determining that such evidence was intrinsic to the charged offense.

As the trial court was within its discretion to admit these statements as intrinsic evidence of the offense, it is not necessary for us to consider whether such statements were properly admitted to show McGlynn’s intent, motive, and knowledge pursuant to Rule 404 (b) or whether the State provided McGlynn with sufficient notice of its intention to introduce the evidence pursuant to Rule 404 (b).

4. McGlynn next argues that the trial court erred by denying his motion for a directed verdict based on the equal access doctrine. McGlynn argues that the location of the marijuana in the vehicle was open, notorious, and easily accessible by the co-defendant and that the State failed to introduce evidence to the contrary McGlynn similarly argues that the State did not present evidence that the area where the marijuana was located was under McGlynn’s exclusive control.

Decided June 28, 2017.

Hogue & Hogue, J. Travis Griffin, for appellant.

For the equal access rule to rebut the inference of possession, affirmative evidence must show that a person other than the defendant had equal access to the specific location where the contraband was found. Cochran v. State, 190 Ga. App. 884, 885-886 (1) (380 SE2d 319) (1989) (physical precedent only). However, when evidence of equal access is shown but “there is evidence connecting the defendant to the contraband other than his own equal access,” the jury must resolve the question of guilt or innocence. Sing v. State, 217 Ga. App. 591, 592 (1) (458 SE2d 493) (1995). In Sing, the defendant’s equal access defense was a jury issue because, although he testified that he had no knowledge of the drugs found in his residence, he had admitted to investigators that he knew drugs were being sold there and that he knew who was selling them. Id.

In this case, the location at issue is the area beneath the passenger seat where McGlynn was seated at the time of the traffic stop. A search of that area revealed a blue container containing marijuana as well as a potato chip bag with a pipe containing marijuana residue. It appears that both McGlynn and the co-defendant had access to that area and that it was not under McGlynn’s exclusive control. However, because McGlynn admitted to the investigator that he owned the blue container and the pipe, there is additional evidence in the record connecting McGlynn to those items other than his access to the area where they were found. Although he denied ownership of the marijuana contained in those items, he admitted that he had purchased and smoked marijuana the day before. Accordingly, as in Sing, McGlynn was free to raise equal access as a defense, but because other evidence connected him to those items, it was the province of the jury, and not the trial judge, to determine whether the facts support the defense. We therefore affirm the trial court’s denial of McGlynn’s motion for directed verdict.

Judgment affirmed.

McFadden, P. J., and Branch, J., concur.

Bradford L. Rigby, District Attorney, Lauren W. Fletcher, Assistant District Attorney, for appellee.

       See OCGA § 16-13-30 (j) (1).

       The co-defendant is not a party to this appeal. McGlynn was charged with a single count of possession of marijuana, and the co-defendant was charged with five offenses, which also included possession of marijuana. The co-defendant pled guilty to a number of those offenses, and his case was completed by the time McGlynn’s trial began. The co-defendant was called by McGlynn to testify at trial.

       In Webb, a trial judge directed a number of statements to the defendant’s only witness, essentially threatening the witness with perjury charges. Webb, 409 U. S. at 97. The judge also implied his personal view that the witness would testify falsely and that a conviction for perjury would affect his supervised release on a sentence from a prior conviction. Id. The Supreme Court found that these statements, which prompted the witness to refuse to testify, deprived the defendant of due process and required reversal of his conviction. Id. at 98.

       OCGA § 16-13-30 (j) (1) provides that “[i]t shall be unlawful for any person to possess, have under his or her control, manufacture, deliver, distribute, dispense, administer, purchase, sell, or possess with intent to distribute marijuana.” OCGA § 16-13-2 (b) provides that “any person who is charged with possession of marijuana, which possession is of one ounce or less, shall be guilty of a misdemeanor and punished by imprisonment for a period not to exceed 12 months or a fine not to exceed $1,000.00, or both, or public works not to exceed 12 months.”

       As we discussed in Division 3, the trial court had discretion to admit this statement before the jury as intrinsic to the crime and as extrinsic evidence of his intent, motive, and knowledge to possess marijuana at the time of the traffic stop.