author: ELLINGTON, Presiding Judge. BRANCH, Judge,

text:
    A13A0444.
    WALKER v. THE STATE.
    (747 SE2d 51)
   ELLINGTON, Presiding Judge.

A Houston County jury found Ernest Walker guilty beyond a reasonable doubt of possession of cocaine with intent to distribute, OCGA § 16-13-30 (b); and obstruction of a law enforcement officer, OCGA § 16-10-24 (a). Walker appeals, challenging the trial court’s denial of his motion to suppress and its grant of the State’s motion to quash subpoenas. For the following reasons, we reverse.

1. Walker contends that he was subjected to an investigatory detention when an officer stopped him as he stepped off the premises of an elementary school and instructed him to remove his hands from his pockets. Walker contends that the officer lacked a particularized and objective basis for suspecting that he was involved in criminal activity, as required for such a stop, and that, in the absence of any reasonable, articulable suspicion of criminal activity, he was entitled to refuse to comply with the officer’s demands and to end the encounter by running away from the officer. Because the officer lacked a reasonable, articulable suspicion of criminal activity, Walker contends, the detention violated his Fourth Amendment right to be free from unlawful searches and seizures, and the trial court erred in denying his motion to suppress a quantity of cocaine and other drug-related items that were obtained as a result of the illegal detention.

When reviewing a trial court’s decision on a motion to suppress,

this [Cjourt’s responsibility is to ensure that there was a substantial basis for the decision. The evidence is construed most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous. Further, since the trial court sits as the trier of fact, its findings are analogous to a jury verdict and will not be disturbed if there is any evidence to support them.

(Citation and punctuation omitted.) Brown v. State, 301 Ga. App. 82, 82-83 (686 SE2d 793) (2009). “[Wjhere the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, [however,] the trial court’s application of the law to undisputed facts is subject to de novo appellate review.” (Punctuation and footnote omitted.) Burgess v. State, 290 Ga. App. 24 (658 SE2d 809) (2008).

(a) We first consider whether the officer detained Walker in violation of the Fourth Amendment. Our Fourth Amendment jurisprudence recognizes three tiers of police-citizen encounters:

(1) communication between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment, (2) brief seizures that must be supported by reasonable suspicion, and (3) full-scale arrests that must be supported by probable cause. In the first tier, police officers may approach citizens, ask for identification, and freely question the citizen without any basis or belief that the citizen is involved in criminal activity, as long as the officers do not detain the citizen or create the impression that the citizen may not leave. The second tier occurs when the officer actually conducts a brief investigative ... stop of the citizen [under Terry v. Ohio, 392 U. S. 1 (88 SCt 1868, 20 LE2d 889) (1968)]. In this level, a police officer, even in the absence of probable cause, may stop persons and detain them briefly, when the officer has a particularized and objective basis for suspecting the persons are involved in criminal activity.... To make a second-tier stop,... a police officer must possess more than a subjective, unparticularized suspicion or hunch. The officer’s action must be justified by specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant intrusion. Further, the court must be able to determine that the detention was neither arbitrary nor harassing. . . . Moreover, in determining whether the stop was justified by reasonable suspicion, the totality of the circumstances — the whole picture — must be taken into account.

(Citations, punctuation and footnote omitted.) Brown v. State, 301 Ga. App. at 84-85. The exclusionary rule, which has been codified in Georgia,

prohibits introduction into evidence of tangible material seized during an unlawful search [or seizure], testimony concerning knowledge acquired during an unlawful search [or seizure], and both tangible and testimonial derivative evidence that is the product of the primary evidence or that is otherwise acquired as an indirect result of the unlawful search [or seizure], up to the point where the taint is dissipated by its attenuated connection with the unlawful search [or seizure]. The core rationale for extending the exclusionary rule to “fruit of the poisonous tree” is that the admittedly drastic and socially costly course is needed to deter police from violations of constitutional and statutory protections. On this rationale, the prosecution is not to be put in a better position than it would have been in if no illegality had transpired.

(Citations and punctuation omitted.) Teal v. State, 282 Ga. 319, 323 (2) (647 SE2d 15) (2007). See also United States v. Maryland, 479 F2d 566, 568 (5th Cir. 1973) (“If there is a nexus between lawless police conduct and the discovery of the challenged evidence which has not become so attenuated as to dissipate the taint, then the evidence should be suppressed”) (citation and punctuation omitted).

At the hearing on Walker’s motion to suppress, the arresting officer testified that, just after midnight on February 23,2011, he was searching the area around Pearl Stephens Elementary School in Houston County, looking for an unidentified man who had been seen trying to steal a motorcycle nearby. The suspect in the attempted theft was described as an African-American male in dark clothing. The officer saw Walker, who was wearing a blue sweatshirt and very light colored pants, walking off the school property. The officer approached Walker, who put his hands into his sweatshirt pockets. The officer commanded Walker to take his hands out of his pockets.

Walker did not remove his hands from his pockets as instructed but yelled at the officer that he was just trying to get home. Walker then ran away from the officer, who gave chase. As they ran, the officer saw Walker throw a pill bottle and a paper towel to the ground. Eventually, the officer caught up with Walker in a back yard and again instructed Walker to remove his hands from his pockets. When Walker failed to comply, the officer tasered and subdued him. Other officers responded to assist, and they placed Walker in custody. Officers found a pocket knife on the ground near Walker. Along the route of the chase, the arresting officer collected a pill bottle with Walker’s name and address on it that contained five pieces of what was later determined to be solid cocaine and a “crack” pipe and clothespin that were wrapped in a paper towel.

When asked at what point during his encounter he decided to arrest Walker, the officer responded, “when he takes off running from me after I attempt to stop him, because what is he doing at Pearl Stephens Elementary School at twelve minutes after midnight?” The officer testified that, once he commanded Walker to remove his hands from his pockets, Walker was not free to leave. Further, the officer testified that he did not stop Walker based on any observation that Walker’s race or clothing matched those in the report describing the theft suspect, nor did he identify any other factual basis for stopping Walker, other than his presence at that time and place.

Based on the officer’s testimony, the trial court concluded that “the officer initially made contact with [Walker] and instructed him to take his hands out of his pockets____This [was] a brief investigatory stop.” Further, the trial court concluded that, even though Walker’s clothing did not match the suspect the officer was looking for, the investigatory stop was supported by a reasonable, articulable suspicion, based on the fact that Walker was walking on the grounds of an elementary school after midnight.

Under Terry v. Ohio and its progeny, the officer was entitled to approach Walker and to attempt to question him, and Walker was free to walk — or run — away and avoid such a first-tier encounter. Brown v. State, 301 Ga. App. at 84. What the officer may have intended as a first-tier encounter, however, almost immediately escalated into a second-tier stop when the officer commanded Walker to remove his hands from his pockets; as such, the detention had to be supported by articulable suspicion. Id.

In this case, implicit in the officer’s stated basis for detaining Walker is an assumption that Walker was trespassing on school property. The officer, however, simply lacked enough information to elevate such an assumption to a reasonable suspicion. Specifically, there is no evidence that the officer had any information that Walker was present on school property without the consent of the school, for an unlawful purpose, after receiving notice from the school that his presence was forbidden, after receiving notice from the school to depart, or without a legitimate cause or need to be there. That is, the officer had no information that Walker’s presence was connected with a criminal, rather than with an innocent, purpose, such as maintenance work that needed to be completed when the school was not open. Further,

[i]t is well established that mere presence in an area of suspected crime is not enough to support a reasonable, particularized suspicion that the person is committing a crime. Moreover, an officer’s feeling that a person is acting in a suspicious way does not amount to a particularized and objective basis for suspecting him of criminal activity.

(Punctuation and footnotes omitted.) Ewumi v. State, 315 Ga. App. 656, 661 (1) (727 SE2d 257) (2012). In this case, even considering the totality of the circumstances, we conclude that the officer’s observation of an unidentified person exiting school property shortly after midnight did not “amount to an objective, articulable suspicion of criminal activity. At best, they represent an officer’s well-honed intuition, or hunch.” (Citation and punctuation omitted.) Brown v. State, 301 Ga.App. at 86. See Ewumi v. State, 315 Ga.App. at 659-663 (1) (Where the defendant was present in a high-crime area, wore a hooded sweatshirt in early March, walked in a slumped position away from an officer’s attempted first-tier questioning, and ignored the officer and refused to identify himself to the officer, such conduct did not justify an investigatory detention.); Brown v. State, 301 Ga. App. at 83-85 (The arresting officer’s past experience with the defendant, the defendant’s presence in an apartment complex where he was not a resident, the fact that the area was known for its drug and criminal activity, the fact that the defendant was wearing both a hooded sweatshirt and a jacket, and the defendant’s actions in quickly walking in a direction that was away from his residence, taken together with their rational inferences, did not amount to articulable suspicion of criminal activity because there was no objective manifestation that the defendant was either committing, or was about to commit, a crime.); State v. Harris, 261 Ga. App. 119, 120-122 (581 SE2d 736) (2003) (When a police officer approached the defendant after seeing him go into a hotel room and then walk back into the breezeway, the officer lacked the reasonable suspicion required to escalate the initial first-tier encounter, during which the defendant was nervous, stuttering, and unable to give coherent answers to the officer’s questions, to an investigatory detention.).

Further, we note that, to the extent that flight from an officer might contribute to a suspicion of criminal activity where such behavior is not provoked by illegal police conduct, Walker’s flight happened after and as a result of the officer’s violation of Walker’s constitutional rights in initiating a second-tier investigatory detention without any reasonable suspicion of criminal activity. Walker’s exercise of his right to avoid a first-tier encounter,

even if accomplished by running, cannot constitute obstruction. [] That is to say, even though the officer was lawfully discharging his duties at the time [Walker] fled, those official duties during the first-tier encounter did not include detaining [Walker] or preventing him from leaving.

(Punctuation and footnote omitted.) Ewumi v. State, 315 Ga. App. at 663 (1) (a). See also State v. Jones, 303 Ga. App. 337, 340 (693 SE2d 583) (2010) (A suspect’s decision to exercise his or her right to avoid an officer in a first-tier encounter “can hardly give rise to a reasonable suspicion of criminal activity; otherwise, a citizen could never exercise his right to avoid an officer without that officer then claiming that the exercise of that right gave the officer a reasonable suspicion of criminal activity. Such logic would automatically escalate every first-tier encounter (where a citizen exercised his right to walk away or to ignore the officer) to a second-tier encounter.”) (citation omitted); State v. Dukes, 279 Ga. App. 247, 251 (630 SE2d 847) (2006) (At the time the defendant fled from police officers, the officers were engaged in a proper first-tier encounter with him, and thus they were lawfully discharging their official duties. Nevertheless, the defendant’s flight from that encounter did not obstruct or hinder the officers’ discharge of their official duties, because the officers’ duties during such a first-tier encounter did not include detaining the defendant or creating the impression that he was not free to leave.). Because Walker’s flight at that juncture did not constitute the additional offense of obstruction, his flight was not relevant to the determination of whether the officer had reasonable suspicion of criminal activity when the officer escalated the encounter. Ewumi v. State, 315 Ga. App. at 663 (1) (a); State v. Dukes, 279 Ga. App. at 251. Thus, the second-tier encounter between Walker and the officer was unlawful for lack of articulable suspicion, and the seizure of the challenged evidence was directly and immediately related to the illegal detention. Ewumi v. State, 315 Ga. App. at 660-661 (1); Brown v. State, 301 Ga. App. at 85; State v. Harris, 261 Ga. App. at 122.

(b) In its order denying Walker’s motion to suppress the contraband, the trial court found that, as argued by the State, by pulling the contraband from his pocket and discarding it as he ran away from the officer, Walker “lost any [Fjourth [A]mendment protection, as [the contraband was] not recovered pursuant to a search but [was] picked up off the ground.”

“While it is true that a criminal defendant’s voluntary abandonment of evidence can remove the taint of an illegal stop or arrest, it is equally true that for this to occur the abandonment must be truly voluntary and not merely the product of police misconduct.” (Citations and punctuation omitted.) United States v. Beck, 602 F2d 726, 729-730 (II) (5th Cir. 1979). Where a person, who has been unlawfully detained, is motivated by the expectation of an impending arrest to throw away contraband, which agents of the State later collect, there is no voluntary abandonment of the contraband sufficient to dissipate the taint of the illegal detention. Id. at 730 (II) (Where police officers stopped an automobile without a reasonable suspicion of criminal activity, after which the occupants of the car threw a marijuana cigarette and a small plastic bag which contained more drugs and a syringe, the contraband was tainted by the illegal stop. The car’s occupants’ “acts of abandonment [did] not reflect the mere coincidental decision of [them] to discard their narcotics; it would be sheer fiction to presume they were caused by anything other than the illegal stop.”); Lawrence v. Henderson, 478 F2d 705, 708 (5th Cir. 1973) (Where police officers arrested the defendant without probable cause, and then found drug paraphernalia in the back of the patrol car used to transport the defendant to jail, the habeas court correctly determined that the illegal arrest prompted the defendant to conceal the contraband in the police vehicle and, therefore, that the defendant did not voluntarily abandon the drug paraphernalia, which should have been excluded from evidence at the defendant’s trial as the fruit of the unlawful arrest.). Again, there was no attenuation of the taint because the seizure of the challenged evidence was directly and immediately related to the illegal detention.

Based on the foregoing, we conclude that the trial court erred in denying Walker’s motion to suppress the evidence derived from the illegal second-tier detention. Ewumi v. State, 315 Ga. App. at 660-661 (1); Brown v. State, 301 Ga. App. at 85-86; State v. Harris, 261 Ga. App. at 122.

2. Walker contends that the trial court erred in granting the State’s motion to quash his subpoenas for the production of the tangible evidence that was collected and seized after his arrest on February 23, 2011. Because this alleged error may recur in the event of a retrial, we will address it on the merits, under the abuse of discretion standard of review. See Bazemore v. State, 244 Ga. App. 460, 463-464 (2) (535 SE2d 830) (2000).

The record shows that the subpoenas in question were served on three employees of the Warner Robins Police Department and directed them to produce the items of tangible evidence at 9:00 a.m. on May 4, 2012 (when motions in multiple cases were scheduled to be heard), at the Superior Court of Houston County. See OCGA § 24-13-23 (a) (former OCGA § 24-10-22 (a)) (“A subpoena may . . . command the person to whom it is directed to produce the evidence designated therein.”). In moving to quash the subpoenas, the State argued that the subpoenas were unreasonable and oppressive. See OCGA § 24-13-23 (b) (1) (former OCGA § 24-10-22 (b)) (“The court, upon written motion made promptly and in any event at or before the time specified in [a] subpoena for compliance therewith, may . . . [qjuash or modify the subpoena if it is unreasonable and oppressive [.]”). Specifically, the State argued, given that Walker had opted into reciprocal discovery under Georgia’s Criminal Procedure Discovery Act, OCGA § 17-16-1 et seq., it had complied with the statutory requirements for reciprocal discovery by making the evidence available for his inspection at another time and place. Further, the State argued that transferring many items of evidence that were involved in multiple cases from the custodial agency to the courthouse on a busy motions calendar day provided the subpoenaing party little time to inspect and photograph the evidence, required the involvement of many government employees, and created a risk of loss or corruption of the evidence.

In quashing the subpoenas, the trial court held that “[t]he issue of whether a subpoena is unreasonable or oppressive [under Georgia law] presupposes that use of a subpoena is otherwise appropriate. In this case it is not.” Rather, the court ruled, because Walker had opted into reciprocal discovery pursuant to the Act, his counsel was required to contact the appropriate agency and schedule an appointment at their mutual convenience to inspect and photograph the tangible objects. See OCGA § 17-16-4 (a) (3) (A) (Except as otherwise provided, “the prosecuting attorney shall, no later than ten days prior to trial, or as otherwise ordered by the court, permit the defendant at a time agreed to by the parties or ordered by the court to inspect and . . . photograph ... tangible objects ... which are within the possession, custody, or control of the state or prosecution and are intended for use by the prosecuting attorney as evidence in the prosecution’s case-in-chief or rebuttal at the trial or were obtained from or belong to the defendant.”).

It is clear that the Act regulates discovery in felony criminal cases when the defendant opts into reciprocal discovery and imposes upon both the prosecution and the defense a duty to disclose evidence beyond that which the parties would, apart from the Act, otherwise have a means to compel. State v. Lucious, 271 Ga. 361, 361-362 (1) (518 SE2d 677) (1999). It does not follow, however, that a defendant who elects to have the Act apply thereby waives the right to use means of discovery that are otherwise available to any party, such as the subpoena power. The State may then respond or may move to quash the subpoena, as it did in this case. “When a motion to quash is filed, the party serving the subpoena has the initial burden of showing the [items of evidence] sought are relevant.” (Citation and punctuation omitted.) Bazemore v. State, 244 Ga. App. at 460 (1). If the party serving the subpoena makes the requisite showing of relevancy, the party moving to quash then has the burden of showing that the subpoena is unreasonable and oppressive under OCGA § 24-13-23 (b) (1). Id. at 464 (2). “Whether the trial court should quash a subpoena depends on the nature and scope of the discovery request.” (Citation and punctuation omitted.) Id.

In this case, the record shows that defense counsel had little, if any, reason to insist that the tangible evidence be produced at the courthouse in conjunction with the motions calendar, other than to challenge the district attorney’s authority to implement policies and procedures for making such evidence available for inspection at the agency having custody of the evidence. Still, Walker’s point is well taken that, by ruling that defense counsel’s use of subpoenas was not “appropriate,” simply because Walker had elected to proceed under the Act, the trial court failed to resolve the State’s motion to quash Walker’s subpoenas under the applicable standard. Any future motions to quash will be subject to the proponent’s burden of showing relevancy and, if that burden is met, the opponent’s burden of showing that the subpoena is unreasonable and oppressive.

Judgment reversed.

Phipps, C. J., Barnes, P. J., and Miller, J., concur. Andrews, P. J., Ray and Branch, JJ., dissent.

BRANCH, Judge,

dissenting.

The trial court properly denied Walker’s motion to suppress evidence discarded in his flight from an officer investigating why he was on the property of an elementary school after midnight, and it did not abuse its discretion when it granted the State’s motion to quash Walker’s subpoenas concerning evidence already made available to him. I therefore dissent to both divisions of the majority opinion.

1. The arresting officer first testified that he saw Walker “walking off” the property of an elementary school shortly after midnight. Although this testimony alone would have supported a reasonable inference that the officer saw Walker trespassing, the officer later testified under cross-examination that he had seen Walker on school property. Obviously, then, the trial court had evidence to support its explicit factual conclusion that Walker “was walking on the grounds of an elementary school after midnight.”

The majority cites no authority, and we have found none, for the proposition that a member of the public not employed by or attending a school is authorized to be on school property in the middle of the night. On the contrary, Walker’s presence on school property at that time gave this officer the authority to make a brief investigatory stop in order to determine whether Walker was violating OCGA § 16-7-1 (b), which outlaws the “knowing” entry onto property for an unlawful purpose or after notice that such entry is forbidden, or OCGA § 20-2-1180 (a), which outlaws “any person” from “remaining” on school property “when that person does not have a legitimate cause or need to be present thereon.” See, e.g., In the Interest of R. C., 289 Ga. App. 293, 295 (2) (c) (656 SE2d 914) (2008) (evidence that juvenile remained on school property after having been advised against doing so was sufficient to sustain an adjudication of delinquency by reason of criminal trespass).

Here, the officer testified that Walker was not free to leave “until [the officer] figured out what [Walker] was doing” on the property of the elementary school, and the trial court explicitly held that Walker’s act of walking on school property after midnight warranted “a brief investigative detention.” This conclusion is entirely consistent with this Court’s holdings that a police officer gains the authority to make a second-tier investigatory stop when he obtains a reasonable and articulable suspicion that a defendant’s presence on a property “may have been unauthorized” and that the defendant “may have been engaging in some criminal activity,” including “criminal trespass,” on that property. Oglesby v. State, 311 Ga. App. 615, 619 (716 SE2d 742) (2011); see also Bishop v. State, 299 Ga. App. 241, 242-243 (682 SE2d 201) (2009) (officer had reasonable and articulable suspicion justifying a stop when the officer observed the defendant leaving the driveway of a vacant lot where there had been prior incidents of illegal dumping, abandoned vehicles, and thefts).

The majority relies on Brown v. State, 301 Ga. App. 82 (686 SE2d 793) (2009), for much of its analysis, including the conclusion that this encounter escalated into an impermissible second-tier detention when the officer commanded Walker to remove his hands from his pockets (maj. op. at 561). This reliance is not well-founded. In that case, defendant Brown was walking through the parking lot of an apartment complex at around 9:00 p.m. when he was seen and then stopped by a police officer who knew that he was not a resident there. Id. at 83. When the officer ordered Brown to take his hands out of his pockets, Brown did not comply until the officer drew a weapon on him, at which Brown discarded a crack pipe on the ground and walked to the officer’s patrol car, where he was arrested. Id. This Court held that when the officer told Brown to remove his hands from his pockets, the officer impermissibly initiated a second-tier encounter without any articulable suspicion that Brown had committed a crime. Id. at 85-86.

The distinction between Brown and other cases cited by the majority and the case before us is that the arresting officer in Brown should have known that even a nonresident of an apartment complex could be on the property in the evening with the permission of a resident such that walking through its parking lot would not amount to a crime, see Brown, supra at 86, whereas the officer who saw Walker on school property after midnight could reasonably assume, pending the outcome of a brief investigatory stop, that Walker was not on the property for any authorized purpose. See Oglesby, supra at 619 (officer drew a reasonable conclusion, based on his experience and the totality of the circumstances, that defendant may have been engaged in criminal behavior sufficient to justify a brief investigative detention); Burgess v. State, 290 Ga. App. 24, 26-27 (658 SE2d 809) (2008) (investigators responding to report of unauthorized persons on property in black pickup truck gained authority to detain two persons seen driving toward such a truck on the same property for purposes of a brief investigation). Compare Ewumi v. State, 315 Ga. App. 656, 659-663 (1) (727 SE2d 257) (2012) (defendant in hooded sweatshirt who walked away from officer’s attempted first-tier questioning was not subject to an investigatory detention); State v. Harris, 261 Ga. App. 119, 120-122 (581 SE2d 736) (2003) (officer who saw defendant walk into hotel room and then back out into breezeway lacked reasonable suspicion required for investigatory detention).

The record also shows that when the officer approached Walker with authority to detain him briefly for purposes of investigating whether a criminal trespass had occurred, Walker put his hands in his sweatshirt pockets, which the officer immediately and reasonably interpreted as indicating a possible threat to his safety. At this point, the officer “was authorized to continue the detention and to perform [a] pat-down search for his safety.” Oglesby, supra at 619; see also Lewis v. State, 307 Ga. App. 593, 595 (705 SE2d 693) (2011) (defendant’s detention and pat-down search was authorized when, while present in a high crime area near a closed convenience store at night, he appeared extremely nervous, grabbed his pants pocket, and provided an implausible explanation for his presence on a property).

Here, Walker not only disobeyed the officer’s repeated commands to take his hands out of his pockets, but yelled at the officer and fled the scene, discarding a pill bottle with crack cocaine in it as well as a crack pipe. A pocket knife was also found on the ground next to Walker after he was apprehended, which the officer interpreted as the object Walker had been “digging for” in his pockets. Finally, then, and as the trial court also held, Walker’s flight from a legal investigative detention, along with the contraband he discarded during that flight, provided sufficient justification for his arrest. See Arnold v. State, 304 Ga. App. 90, 92 (1) (695 SE2d 402) (2010) (officers were authorized to arrest a defendant who ran from approaching officers and threw away a pill bottle containing what appeared to be crack cocaine).

For all these reasons, I would affirm the trial court’s denial of Walker’s motion to suppress.

2. As the majority notes, we review a trial court’s ruling on a motion to quash a subpoena only for an abuse of discretion. Bazemore v. State, 244 Ga. App. 460, 463 (2) (535 SE2d 830) (2000).

Here, Walker subpoenaed the evidence custodians and the arresting officer to bring all seven items of tangible evidence seized in the case. It is undisputed, however, that after Walker opted into reciprocal discovery under OCGA § 17-16-4, he made “no effort” to inspect the same evidence when it was made available to him under the trial court’s established policy for reciprocal discovery. See OCGA § 17-16-4 (a) (3) (prosecutor shall permit a defendant “at a time agreed to by the parties or ordered by the court” to inspect tangible objects in the State’s custody and intended for use as evidence). It is also undisputed that Walker obj ects only to the discovery policy itself such that there is “no motion or controversy (but for the discovery policy) before the [trial court] in which the subpoenaed evidence would be needed by the defendant for consideration[.]”

Under these circumstances, the majority cannot refute the trial court’s explicit finding that Walker has not shown why he needed the evidence at issue delivered to the courthouse for inspection or how a quashing of the subpoenas would prejudice his preparation of the case. Thus I cannot agree that the trial court abused its discretion when it concluded that in light of Walker’s failure to avail himself of the opportunity for evidence review provided by the State, his use of subpoenas to protest the trial court’s reciprocal discovery policy was not “appropriate.” See Townsend v. State, 236 Ga. App. 530, 533 (3) (511 SE2d 587) (1999) (trial court did not abuse its discretion when it granted State’s motion to quash defendant’s subpoena for all documents concerning a blood sample when the State gave defendant access to perform his own tests on the sample).

For both of these reasons, I respectfully dissent. I am authorized to state that Presiding Judge Andrews and Judge Ray join in this dissent.

Decided July 12, 2013

Reconsideration denied July 30, 2013

Angela M. Coggins, for appellant.

George H. Hartwig III, District Attorney, Daryl E. Manns, Assistant District Attorney, for appellee.

       OCGA § 17-5-30 (a) (1) (“A defendant aggrieved by an unlawful search and seizure may move the court[, inter alia,] ... to suppress as evidence anything so obtained on the grounds that. . . [t]he search and seizure without a warrant was illegal[.]”).

       See also Anne E. Melley, 11 Ga. Proc. § 26:47 (December 2012 update) (the origin of the exclusionary rule); Wayne R. LaPave, 1 Search and Seizure, A Treatise on the Fourth Amendment, § 1.1 (f), pp. 23-29 (5th ed.) (purposes of the exclusionary rule); Wayne R. LaFave, 5 Search and Seizure, Á Treatise on the Fourth Amendment, § 11.4 (a), pp. 328-329 (5th ed.) (“The question of [an attenuated connection between a constitutional violation and evidence derived therefrom] is largely a matter of degree, and thus application of the test is dependent upon the particular facts of each case.” Relevant factors focus on the deterrence function of the exclusionary rule and include: (1) where the chain between the challenged evidence and the primary illegality is long or the linkage can be shown only by sophisticated argument, and, thus, it is highly unlikely that obtaining the challenged evidence motivated the police officers to commit the illegality, exclusion would seem inappropriate; (2) where the evidence is used for some relatively insignificant or highly unusual purpose, it is similarly unlikely that obtaining the challenged evidence motivated the police officers to commit the illegality, and exclusion would, therefore, effect no deterrence; and (3) where the undesirable police conduct is particularly offensive, the deterrence ought to be greater and, therefore, the scope of the exclusion broader.) (punctuation and footnotes omitted).

       See also Thomas v. State, 301 Ga. App. 198, 200-201 (1) (687 SE2d 203) (2009) (An encounter is deemed first tier if a reasonable person in the citizen’s position would feel “free to decline the officer’s request to speak with Prim or her] or otherwise terminate the encounter. Indeed, a citizen’s ability to walk away from or otherwise avoid a police officer is the touchstone of a first-tier encounter, and even running from police during a first-tier encounter is wholly permissible.”) (citations and punctuation omitted).

       We note that the trial court did not find, and the record does not support a finding, that Walker voluntarily stopped to speak with the officer. Further, the dissent posits that, when the officer first approached Walker and Walker first put his hands into his pockets, “the officer immediately and reasonably interpreted [Walker’s conduct] as indicating a possible threat to his safety.” The officer did not so testify, however, and, in fact made no comment about any feelings about his personal safety that he had before he escalated the encounter to a second-tier Terry stop. Cf. Santos v. State, 306 Ga. App. 772, 775-776 (1) (703 SE2d 140) (2010) (Where a person approached by an officer chose to stop and talk to the officer, rather than to end the encounter, and nervously fidgeted with his hands, put his hands in his pockets, removed his jacket and threw it on the patrol car, and continued to put his hands in his pockets after the officer told him to keep his hands where the officer could see them, and where the officer testified that he became concerned for his personal safety, such menacing conduct during the initial first-tier encounter gave rise to a reasonable suspicion that the person posed a threat to the officer’s safety and justified an escalation to an investigative detention.). Any feelings about his personal safety that the officer had after he impermissibly escalated the encounter cannot factor into our Fourth Amendment analysis.

       A person commits the offense of criminal trespass when he or she intentionally damages any property of another without consent of that other person and the damage thereto is $500.00 or less or knowingly and maliciously interferes with the possession or use of the property of another person without consent of that person [or when]... he or she knowingly and without authority... [ejnters upon the land or premises of another person... for an unlawful purpose;... [e]nters upon the land or premises of another person... after receiving, prior to such entry, notice from the owner, rightful occupant, or, upon proper identification, an authorized representative of the owner or rightful occupant that such entry is forbidden; or... [r] emains upon the land or premises of another person . . . after receiving notice from the owner, rightful occupant, or, upon proper identification, an authorized representative of the owner or rightful occupant to depart.
      OCGA § 16-7-21 (a), (b).
      It shall be unlawful for any person to remain upon the premises or within the school safety zone as defined [by statute] of any public or private school in this state or to remain upon such premises or within such school safety zone when that person does not have a legitimate cause or need to be present thereon. . . . Any person who... [i] s present upon the premises or within the school safety zone of any public or private school in this state and willfully fails to remove himself or herself from such premises after the principal or designee of such school requests him or her to do so . . . shall be guilty of a misdemeanor of a high and aggravated nature.
      OCGA § 20-2-1180 (a), (b).

       Cf. Burgess v. State, 290 Ga. App. at 26-27 (Where a property owner told narcotics investigators that unknown persons were growing marijuana on her property and gave them permission for entry onto her property to investigate whether trespassers were so engaged, and where the property owner’s son-in-law reported thát a black pickup truck with two occupants had recently entered the property, the investigators gained reasonable and articulable suspicion that two men were involved in criminal trespass or other criminal activity, and therefore had the authority to detain them in a brief investigatory stop, when they went to the property within about thirty minutes of the report of the presence on the property of two unauthorized persons in a black pickup truck, noted “No Trespassers” signs on the property, found an unoccupied black pickup truck on the property with tools in its bed useful for harvesting marijuana and with four-wheeler tracks leading away from it, and then spotted the two men riding a four-wheeler toward the black truck.).

       See Illinois v. Wardlow, 528 U. S. 119, 124 (120 SCt 673, 145 LE2d 570) (2000) (Nervous, evasive behavior, including “headlong flight” upon seeing a police officer, where such behavior is not provoked by illegal police conduct, is a pertinent factor in determining reasonable suspicion.); Arnold v. State, 304 Ga. App. 90, 91-92 (1) (695 SE2d 402) (2010); Crowley v. State, 267 Ga. App. 718, 719-720 (601 SE2d 154) (2004).

       “[A] person who knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties is guilty of a misdemeanor.” OCGA § 16-10-24 (a).

       Cf. Barber v. State, 317 Ga. App. 600, 602 (1) (b) (732 SE2d 125) (2012) (Where an officer observed the defendant violating OCGA § 40-6-96 by walking down the center of the roadway, the officer had a reasonable suspicion sufficient to justify a brief investigatory detention, and no constitutional violation occurred before the defendant fled from the officer and discarded contraband along the way.); Reynolds v. State, 280 Ga. App. 712, 714-716 (1) (634 SE2d 842) (2006) (Although a traffic stop was illegal, attempting to flee from such stop is a separate crime altogether under Georgia law, that is, fleeing or attempting to elude under OCGA § 40-6-395 (a), regardless whether the investigative stop was proper. Consequently, the defendant’s flight from the traffic stop provided an independent basis for his arrest, and contraband that he discarded as he fled from officers was admissible.).

       See John Wesley Hall, Jr., 1-13 Search and Seizure (4th ed.) §§ 13.2 (“[A]bandonment is not presumed or inferred from the defendant’s actions or inactions. There must he a clear manifestation that the accused is relinquishing his right to privacy.”) (footnote omitted); 13.8 (“As a general rule, an act of apparent abandonment which was caused by illegal police conduct is legally ineffective as fruit of the poisonous tree. Thus, no abandonment has been found where the accused dropped an object, for example: as an officer reached for a gun during an unlawful detention, the officers were unlawfully in hot pursuit, or the officer made an invalid stop or arrest or search.”) (footnotes omitted); Wayne R. LaFave, 1 Search and Seizure, A Treatise on the Fourth Amendment, § 2.6 (b), pp. 887-889 (5th ed.) (“[Ajlthough abandoned property may normally be obtained and used for evidentiary purposes by the police, this is not so if the abandonment was coerced by or otherwise the fruit of unlawful police action. Property is not considered abandoned when a person throws away incriminating articles due to the unlawful activities of police officers. Thus, where a person has disposed of property in response to an illegal seizure or search by the police, courts have not hesitated to hold that property inadmissible.”) (punctuation and footnotes omitted).

       The record shows that issuing subpoenas for the production of evidence at the courthouse, rather than scheduling a time to inspect, copy, and photograph evidence at the custodial agency, was the routine practice of the public defender’s office. The court noted that Walker did not claim that his counsel and the prosecuting attorney had been unable to agree to a time for the inspection of the tangible evidence, nor had his counsel sought the court’s intervention regarding the scheduling of a time for inspection. Rather, Walker “freely concede [d] that [his counsel] made no effort” to inspect the evidence as provided under OCGA § 17-16-4 (a) (3), despite having received a list (via the police report) of the specific items of tangible evidence and notice that the evidence was available for inspection at the police department.


source: Caselaw Access Project

author: Branch, Judge.

license: Public Domain

text:
    A13A0494.
    LAMAR et al. v. ALL AMERICAN QUALITY FOODS, INC.
    (746 SE2d 665)
   Branch, Judge.

Joyce H. Lamar slipped, fell and was injured in one of the appellee’s stores. Lamar and her husband (collectively “Lamar”) brought suit and alleged that the appellee “knew or should have known” that the floor was wet and in a hazardous condition at the place where Lamar fell. Following a trial at which the defense did not put on any evidence, a jury returned a verdict in favor of the appellee. Lamar now appeals the denial of her motion for new trial contending the trial court erred by refusing to charge the jury on the law of constructive knowledge and by failing to respond to the jury’s question regarding the meaning of the term “constructive knowledge.”

Lamar presented evidence at trial to show that while shopping and pushing a cart at a Food Depot operated by All American Quality Foods, Inc., Lamar turned right into Aisle 10 at a place where the aisle ran both to her left and right. As she entered the aisle and turned to the right she saw Food Depot employees working to her left in the same aisle, as well as other customers nearby. Immediately thereafter, while she was looking up toward paper products located on the top shelf, she slipped and landed on her right knee but fell backward causing severe pain and injury. Lamar was not looking at the floor, did not see anything on the floor before her fall, and did not know what caused her fall, but the clothing on her back was “a lot wet” after she fell.

Randy Taylor, the acting store manager who was working close by, heard Lamar cry out and, together with another employee who was working on Aisle 10, responded to aid Lamar. When Taylor arrived, he saw a Burger King cup on the floor. Taylor wrote on the incident report, “Customer fell on aisle ten. Burger King cup in middle of floor along with clear liquid.” Shortly thereafter, Mr. Lamar came in from the parking lot after being notified of the fall and saw his wife lying in water on the floor. When Mr. Lamar asked Taylor what happened, the manager held up the cup, but Taylor did not respond verbally. When Taylor was asked if he investigated the incident, he replied “at the time that she fell... there was a Burger King cup there. So, you know, that was my inspection.”

Taylor testified that he had walked down Aisle 10 no more than 15 minutes earlier and that he and other employees inspect the store about every hour and at other times as well. He confirmed, however, that the store does not have a written inspection procedure and that employees do not log or otherwise record the time of any inspections. The only relevant written policies produced by the appellee state that employees have the “obligation to observe the safety rules and practices,” but the store manager admitted that there are no written safety rules and practices at the store and no other written safety policies related to inspections for hazards in the store. Taylor also confirmed that the employee who was working in Aisle 10 at the time of the fall was standing in a position to have seen down the aisle clearly.

At the charge conference after the presentation of evidence, Lamar’s counsel argued that the court should charge on constructive knowledge and added “[t]hat’s really our entire case. It’s not actual knowledge. There’s no evidence on the record that there is actual knowledge. It’s all about the constructive knowledge.” Lamar’s counsel proposed to handwrite a charge; he did not have one prepared in advance. Nevertheless, the trial court acknowledged in its order on the motion for new trial that Lamar had submitted a proposed request to charge No. 16 that stated in part that

constructive knowledge may be established by showing that (1) the substance had been there for such a time that ordinary diligence by the Defendant should have effected its discovery or (2) that an employee of the Defendant was in the immediate area of the dangerous condition and could have seen the substance.

Lamar also argued during the charge conference that the court should charge the jury that constructive knowledge can also be shown with evidence that the defendant did not have a reasonable inspection procedure in place at the time of the incident.

The court denied Lamar’s request in its entirety and reasoned, in part, as follows:

I’ll tell you my concern is that the danger of defining what is a reasonable inspection procedure, and you may have a case here, but I’m sure the case law is probably not absolutely consistent as to what a reasonable inspection procedure is. And it seems to me that that’s more of a factual argument that you make . . . with regard to whether it’s a reasonable inspection procedure or not.

The court later explained its opinion that even if constructive knowledge may be shown with evidence that the appellee lacked a reasonable inspection procedure or that an employee was in the immediate vicinity of the fall, these points were “jury arguments” and that jury instruction on these points would “serve to confuse the jury more than it will help them.”

Although the closing arguments were not taken down, the trial court, in its order denying the motion for new trial, and the appellee acknowledge that Lamar’s counsel read to the jury a definition of constructive knowledge from a legal dictionary. After the closing arguments and with regard to the substantive issues presented in the case, the court charged the jury on the definition of negligence and on the duties of an owner or occupier of land. The court referred to constructive knowledge only once, during a charge based on Robinson v. Kroger Co., 268 Ga. 735 (493 SE2d 403) (1997):

[I]n order to recover for injuries sustained in a slip-and-fall action, an invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier.

Id. at 748-749 (2) (b). The court continued by charging on a person’s duty to use ordinary care for his or her own safety, as well as contributory negligence and proximate cause.

Following the charge, Lamar again objected to the absence of a charge on the law of constructive knowledge. After the jury began deliberating, the court received the following question: “Can we get another meaning of constructive knowledge?” Lamar again stressed to the court that the jury had not been informed that a plaintiff could show constructive knowledge by showing that there was an employee in the immediate vicinity who could have seen the hazard and removed it and by showing the lack of a reasonable inspection program or failure to implement one. The court responded by instructing the jury that it had already been fully charged on the law. Later, the jury returned a verdict in favor of the appellee, and the court entered judgment for the appellee. The court denied Lamar’s motion for new trial or judgment notwithstanding the verdict.

1. Lamar argues the trial court erred by failing to charge the jury on “the essential elements of constructive knowledge.”

Lamar first contends the trial court should have charged the jury that it could find that the appellee had constructive knowledge of the hazard if there was evidence that the appellee failed to exercise reasonable care in inspecting the premises. But Lamar did not submit this portion of her requested charge in writing. And even when there has been a verbal request to charge, “where there has been no written request to charge, failure to give the charge is not error .’’ Bullock v. State, 202 Ga. App. 65, 66 (1) (413 SE2d 219) (1991), overruled on other grounds, Brewer v. State, 271 Ga. 605, 607 (523 SE2d 18) (1999). Here, Lamar submitted a written request to charge that did not refer to exercising reasonable care in the context of inspecting the premises, and therefore that aspect of Lamar’s appellate argument has been waived. See, e.g., Baker v. State, 238 Ga. App. 285, 288 (3) (518 SE2d 455) (1999) (trial court’s refusal to give defendant’s oral request to charge the jury on self-defense was not error). Arnold v. State, 210 Ga. App. 843, 848 (2) (437 SE2d 844) (1993) (court’s failure to charge on constructive notice was not reversible error where appellant’s request to charge was “merely oral rather than written”).

When considering whether the trial court should have given the charge Lamar requested in writing, we find that the charge was not adjusted to the evidence. See Lee v. Bartusek, 205 Ga. App. 551-552 (1) (422 SE2d 570) (1992) (“In order for a refusal to charge to be error, the requests must be entirely correct and accurate, and adjusted to the pleadings, law, and evidence, and not otherwise covered in the general charge.”) (citations and punctuation omitted). Lamar’s proposed charge No. 16 stated in part that constructive knowledge can be shown by presenting evidence that “the substance had been there for such a time that ordinary diligence by the Defendant should have effected its discovery.” At trial, no evidence was presented regarding how long the water and cup were on the floor. A trial court is not required to give a requested charge that is not adjusted to the evidence. State v. Johnson, 280 Ga. 511, 513 (630 SE2d 377) (2006).

2. Even if Lamar’s alleged error was not properly raised below, as we have discussed in Division 1, this Court nonetheless normally would be required to “consider and review erroneous charges where there has been a substantial error in the charge which was harmful as a matter of law.” OCGA § 5-5-24 (c). See also Pearson v. Tippmann Pneumatics, 281 Ga. 740, 742 (1) (642 SE2d 691) (2007). But pretermitting the question as to whether the failure to give part of the requested charge was substantial and harmful error, we conclude the trial court erred by failing to respond to the jury’s question asking for the meaning of the term “constructive knowledge” and that therefore, Lamar is entitled to a new trial.

Under Georgia law, “the need, breadth, and formation of additional jury instructions are left to the sound discretion of the trial court.” (Citation omitted.) Glisson v. Glisson, 268 Ga. 164, 166 (1) (486 SE2d 167) (1997). But the court’s discretion in this setting is measured by the court’s “duty... when faced with a question from the jury to clarify any confusion as to the applicable issues of law as raised by the evidence at trial.” (Citation omitted.) Brown v. City of Fitzgerald, 177 Ga. App. 859, 860 (1) (341 SE2d 476) (1986). See also Glisson, supra at 164 (“The necessity that the jury clearly understand the law in order to render a lawfully arrived-at verdict renders it imperative that pertinent points of law be repeated or clarified or both, to set the jury on the right course in the event of questions.”) (citation omitted).

Here, the evidence presented at trial raised the question of whether the appellee’s inspection procedure was reasonable and whether an employee in the vicinity could have discovered and removed the cup and water, both of which are authorized methods of proving constructive knowledge under Georgia law:

Constructive knowledge can be established in one of two ways: by evidence that an employee was in the immediate area of the hazard and could easily have discovered and removed it, or by showing that the owner did not use reasonable care in inspecting the premises.

(Citation omitted.) KMart Corp. v. Jackson, 239 Ga. App. 176, 177 (521 SE2d 93) (1999), cert. denied, 239 Ga. App. 905. See also Alterman Foods v. Ligon, 246 Ga. 620, 622 (272 SE2d 327) (1980) (same); J. H. Harvey Co. v. Reddick, 240 Ga. App. 466, 470 (1) (b) (522 SE2d 749) (1999) (constructive knowledge may be proven by showing “that a foreign substance remained on the floor for such a time that ordinary diligence by the proprietor should have effected its discovery,” but “a plaintiff need not show how long a substance has been on the floor unless the defendant has established that reasonable inspection procedures were in place and followed at the time of the incident”) (citations and punctuation omitted).

Although “[t]he existence of constructive knowledge is a matter for the jury when there is evidence from which it may be inferred,” KMart, supra at 178 (citation and punctuation omitted), the inference a jury is permitted to make regarding the evidence is a question of law. See Dyer v. State, 6 Ga. App. 390, 392 (65 SE 42) (1909). As explained in Dyer,

it would be error for [a] judge to instruct the jury [that] they would be bound to act upon [an] inference. ... It is quite a different thing, however, for the judge to instruct the jury that they might, if they saw proper, act upon the inference which could be drawn from the given facts established to their satisfaction.

Id. (considering an inference regarding proof of venue). See also Kinnebrew v. State, 80 Ga. 232, 238-239 (5 SE 56) (1887).

In the present case, the trial court categorized Lamar’s request — that the trial court should answer the jury’s question by instructing the jury on the meaning of constructive knowledge — as an argument for the jury. The court failed to recognize the difference between the relevant questions of fact and law as explained in Dyer. And the jury clearly was confused regarding the meaning of constructive knowledge, despite receiving a definition during closing argument from Lamar’s counsel. The jury asked for “another meaning of constructive knowledge.” Without further clarification from the trial court, the jury had no instruction from the court regarding the permissible inferences it was allowed to draw from the evidence presented. And although the trial court charged the jury on the fundamentals of the law of negligence, the duties of an owner or occupier of land, and the fact that an invitee must prove that the defendant had actual or constructive knowledge of the hazard, it neither instructed the jury on the inferences authorized by law that allow a plaintiff to establish the defendant’s constructive knowledge of a hazard nor gave any instruction regarding a proprietor’s duty to inspect for hazardous conditions. Compare Fowler Properties v. Dowland, 282 Ga. 76, 81 (5) (646 SE2d 197) (2007) (charge as a whole adequately covered concept that naturally occurring ice did not negate the owner’s duty to inspect when court charged that owner had a duty to make premises safe, including “inspecting the premises to discover possible dangerous conditions”). Thus, the charge as a whole in this case was inadequate on this point. See Harrison v. State, 309 Ga. App. 454, 457 (2) (a) (711 SE2d 35) (2011) (this Court “must look to the jury charge as a whole” to determine whether it “accurately and fully apprised the jury of the law to be applied”) (citation omitted).

Decided July 16, 2013

Reconsideration denied July 30, 2013

Dozier & Zahler, Scott M. Zahler, for appellants.

Waldon, Adelman, Castilla, Hiestand & Prout, RussellD. Waldon, John E. Alday, Rakhi D. McNeill, for appellee.

Finally, this Court has upheld a jury instruction on constructive knowledge based on the law as stated in Alterman Foods. See Compton v. Huddle House, 284 Ga. App. 367, 369 (2) (644 SE2d 182) (2007).

“A trial court must instruct a jury on the law as to every controlling, material, substantial and vital issue in the case.” (Citation and punctuation omitted.) Duffield v. Chui, 314 Ga. App. 214-215 (723 SE2d 506) (2012). In this case, we conclude that the trial court breached its discretion by failing to respond to the jury’s question regarding the meaning of constructive knowledge and failed to provide other instruction sufficient to apprise the jury accurately and fully of the applicable law. We therefore reverse the judgment below and remand for a new trial. See id. at 216.

Judgment reversed and case remanded.

Phipps, C. J., and Ellington, P. J., concur.

       The transcript shows that Lamar submitted some written proposed jury instructions, but there are none in the record. See generally Pearson v. Tippmann Pneumatics, 281 Ga. 740, 742 (1) (642 SE2d 691) (2007) (“A party in a civil case generally must present written requests for jury instructions and complain of the giving or failure to give an instruction before the jury returns its verdict in order to preserve the issue for appeal. OCGA § 5-5-24 (a), (b).”).

       The Suggested Pattern Jury Instructions (5th Ed.) do not include a charge on the meaning of the term “constructive knowledge.”


text:
    A13A0692, A13A0693.
    EATMON v. WEEKS et al.; and vice versa.
    (746 SE2d 886)
   Branch, Judge.

On the early afternoon of June 29, 2010, Princess Eatmon was driving her car in the left northbound lane of Dawson Road toward Albany when a pickup truck traveling in the opposite direction and driven by Fla val Weeks veered across the turning lane separating the road’s two northbound and two southbound lanes and hit Eatmon’s car. Eatmon sustained a broken leg and other injuries. Weeks, who suffered a head wound in the crash, could not tell a responding police officer anything about the accident, was diagnosed as having suffered a stroke on the day in question, and died a few weeks later. Eatmon brought a negligence action against Weeks’s estate, which counterclaimed for the same. After the trial court denied cross-motions for summary judgment, this Court granted both parties’ applications for interlocutory review. We reverse the trial court’s denial of summary judgment in both cases because there is no evidence showing that either Eatmon or Weeks was responsible for the accident.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.... [T]he burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.

(Citations omitted.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). In Eatmon’s appeal from the denial of her motion for summary judgment (Case No. A13A0692), we view the evidence in the light most favorable to Weeks’s estate as the nonmovant; in the estate’s appeal from the denial of its motion for summary judgment (Case No. A13A0693), we view the evidence in the light most favorable to Eatmon as the nonmovant.

Case No. A13A0692

Eatmon argues that the undisputed evidence shows that she had no opportunity to avoid Weeks’s truck as it veered into her lane, and that the estate therefore cannot show that she drove negligently in the moments before the accident. We agree.

Georgia law “imposes a duty on all drivers to exercise ordinary care with regard to other drivers on or users of the highway.” McKissick v. Giroux, 272 Ga. App. 499, 501 (612 SE2d 827) (2005). Specifically, “[e]very driver is under a duty to keep a proper lookout for potential hazards. A driver has no right to assume that the road ahead of him is clear of traffic, and it is his duty to maintain a diligent outlook ahead.” (Citation and punctuation omitted.) Hayes v. Crawford, 317 Ga. App. 75, 78 (730 SE2d 26) (2012). A driver breaches this duty, however, only where she “is reasonably able to ascertain that she is about to collide with another driver and nevertheless takes no reasonable evasive action where possible.” (Citation and footnote omitted.) McKissick, supra at 501.

Even construed in the estate’s favor, Eatmon’s testimony shows that she did not see Weeks’s truck until it was six feet or less from her. Eatmon testified that as a result of Weeks’s truck coming toward her, she was forced to move to her right, thereby hitting another car, which was forced to its right onto the sidewalk. The driver of the second car testified that she did not see Weeks’s truck until after Eatmon had been hit and that Eatmon could not have taken any action to avoid a collision: “I don’t see where she could have done anything. She was in her lane.”

We are mindful that

questions of negligence and diligence and of cause and proximate cause and whose negligence constituted the proximate cause of the plaintiff’s injuries are, except in plain, palpable and indisputable cases, solely for the jury, and [that] the courts will decline to decide such questions unless reasonable minds cannot differ as to the conclusions to be reached.

Hayes, supra at 79 (citation and punctuation omitted). As we have often held, however, “ ‘negligence cannot be presumed; on the contrary, performance of duty and freedom from negligence is presumed.’ ” McKissick, supra at 501, quoting Johnson v. Ellis, 179 Ga. App. 343, 345 (346 SE2d 119) (1986).

A defendant moving for summary judgment may point out that there is an absence of evidence to support an element of the plaintiff’s case. The plaintiff cannot then rest on her pleadings, but rather must point to specific evidence giving rise to a triable issue on that element.

McKissick, supra at 500, citing Lau’s, supra. Given the undisputed evidence that Eatmon was driving within her lane on the proper side of the road before she saw and was unable to avoid being hit by Weeks’s truck, the estate has failed to create an issue of fact on the question whether Eatmon operated her car in a negligent way. Because Eatmon has thus pointed to an absence of evidence as to whether she breached her duty of ordinary care, the trial court erred when it denied her motion for summary judgment. McKissick, supra at 501 (reversing denial of summary judgment on motorcyclist’s claim that a truck driver proceeding in the opposite direction failed to exercise ordinary care when the driver produced evidence that motorcyclist had wobbled as she went into the curve where she struck the truck’s trailer); McQuaig v. Tarrant, 269 Ga. App. 236, 238-239 (603 SE2d 751) (2004) (affirming grant of summary judgment to defendant driver when “uncontradicted evidence” showed that plaintiff “drove into [defendant’s] path” and when there was “no evidence of anything [defendant] could have done to avoid the collision”); Johnson, supra at 345 (affirming defendant driver’s grant of motion for directed verdict in pedestrian’s negligence suit when there was no evidence that the driver could have or should have seen the pedestrian walking into a collision path with the driver’s car).

Case No. A13A0693

For its part, Weeks’s estate argues that uncontradicted evidence established that Weeks suffered a stroke before the accident such that he cannot be held liable for it. We agree.

“[W]here the driver of an automobile suffers an unforeseeable illness which causes him to suddenly lose consciousness and control of the automobile, the driver’s loss of control is not negligent, and he is not liable for any damages caused by the out-of-control automobile.” Lewis v. Smith, 238 Ga. App. 6, 7 (517 SE2d 538) (1999). See also OCGA § 1-3-3 (3) (including “sudden death” and “illness” as among those “physical causes” producing accidents properly described as “acts of God”). “[T]o establish an act of God defense based on illness producing a loss of consciousness, the driver must show that the loss of consciousness produced the accident without any contributing negligence on the part of the driver.” Lewis, supra at 7. Because an act of God is an affirmative defense, “a defendant moving for summary judgment on this basis may not rely upon an absence of evidence in the record disproving the affirmative defense but must carry the burden of affirmatively proving the defense.” (Citation omitted.) Id.

The estate produced affidavits from the Albany police officer called to the scene of the accident and the physician who treated Weeks after the accident. Based on his conversation with the decedent at the scene, the officer averred that Weeks “was not conscious” at the time of the accident and could not say what had happened before or during it; that Weeks’s car left no skid marks or other indication that he had “applied the brakes or was otherwise in control of the vehicle”; and that Weeks had “experienced a medical emergency before and during the accident” which “caused him to lose control of his vehicle.” The physician, an emergency doctor at the hospital to which Weeks was admitted immediately after the accident, averred that Weeks complained of weakness in his left face and extremities, that he was diagnosed as having suffered a stroke, and that he would have had no warning of the stroke prior to its onset. The physician also averred that CT scan results showing no evidence of a stroke on the day of the accident, but some evidence of the same a few days later, were consistent with the original diagnosis because evidence of a stroke “do[es] not normally appear on CT scans performed shortly after a stroke.” Finally, the physician stated that it was “more probable than not” that Weeks suffered a stroke at the time of the accident and that the stroke could have rendered him “unable to control a motor vehicle.”

Decided July 16, 2013

Reconsideration denied July 30, 2013.

When the estate of a decedent has provided evidence that the decedent suffered “a sudden and unforeseeable loss of consciousness just prior to the accident” giving rise to a negligence action, the estate has established a prima facie case “in support of his affirmative defense of an ‘act of God.’ ” Halligan v. Broun, 285 Ga. App. 226, 227 (645 SE2d 581) (2007). Under such circumstances, the nonmovant must provide “specific facts rebutting this affirmative defense and showing that there was a genuine issue for trial.” Id.

Here, Eatmon has not refuted the estate’s evidence that Weeks suffered an unforeseeable loss of consciousness just prior to losing control of his car, crossing the highway, and striking Eatmon’s car. Although Eatmon argues that Weeks should have foreseen that he might lose consciousness while driving because he felt “hot” the day before, the record shows that he spent all that June day working on a construction site, and Weeks’s doctor specifically testified that Weeks had no prior warning that he might experience a stroke. Because no question of fact remains as to whether Weeks’s loss of consciousness was reasonably foreseeable, the trial court erred when it denied the estate’s motion for summary judgment. Lewis, supra at 9-10 (affirming grant of summary judgment when plaintiff failed to produce any specific facts rebutting defendant’s affirmative defense that he unforeseeably lost consciousness “so suddenly that he could not reasonably have taken any action to avoid the accident”); Halligan, supra at 227 (affirming grant of summary judgment to decedent’s estate when plaintiff had failed to create a genuine issue concerning decedent’s loss of consciousness before accident giving rise to plaintiff’s suit).

Judgments reversed.

Phipps, C. J., concurs. Ellington, P. J., concurs in judgment only.

Swift, Currie, McGhee & Hiers, Andrae P. Reneau, Kenneth M. Barre, Carr & Downey, Jason E. Downey, Judy H. Varnell, Thomas L. Kirbo III, Kathleen M. Edwards-Opperman, for appellant.

Young, Thagard, Hoffman, Smith & Lawrence, Leslie M. Kennerly, John H. Smith, Jr., for appellees.


author: MCMlLLIAN, Judge.

text:
    A13A0714.
    RAYSONI v. PAYLESS AUTO DEALS, LLC et al.
    (746 SE2d 250)
   MCMlLLIAN, Judge.

Subdoh Raysoni appeals the dismissal of his complaint against a used car dealership and its salesman. Raysoni alleges that Payless Auto Deals, LLC and its salesman Ahsan Ul-Haque (collectively referred to as “Payless”) orally misrepresented that the used vehicle that he purchased had not been wrecked when, in fact, it had previously sustained significant frame damage. The trial court granted a motion for judgment on the pleadings because the buyer’s order attached to the complaint disclosed to Raysoni in writing that the vehicle had been damaged and was replete with disclaimers. Finding no error, we affirm.

A motion for judgment on the pleadings should be granted only if the moving party is clearly entitled to judgment as a matter of law. When we review the grant of a motion for judgment on the pleadings, we owe no deference to the decision of the court below. And, like the court below, we must accept the truth of the factual allegations contained in the pleadings of the nonmoving party, and we view the pleadings in the light most favorable to the nonmoving party.

(Citations omitted.) Pryce v. Rhodes, 316 Ga. App. 523 (729 SE2d 641) (2012). Thus, “[f]or purposes of the motion, all well-pleaded material allegations by the nonmovant are taken as true, and all denials by the movant are taken as false. But the trial court need not adopt a party’s legal conclusions based on these facts.” (Citation and punctuation omitted.)Hall v. Sencore, Inc., 302 Ga. App. 367 (691 SE2d 266) (2010) (appellate court’s review of trial court’s order granting judgment on the pleadings is de novo).

So viewed, Raysoni’s complaint asserts that on or about September 18, 2011, he visited Payless looking for “a reliable and durable automobile,” and the salesman showed him a 2008 Honda Odyssey (the “vehicle”). Raysoni specifically asked the salesman whether the vehicle “had anything wrong with it, such as a prior wreck or damage,” and the salesman represented that the vehicle was clean and undamaged. Raysoni also requested to see a Carfax report, and the salesman showed him a report from the Carfax website reflecting no accident or damage to the vehicle.

Over time, however, Raysoni began to notice a musty smell in the vehicle, and he decided to trade it in. On November 23, 2011, he took the vehicle to Carmax, where he was told that the vehicle had frame damage and that extensive paint and body work had been performed on it. Carmax appraised the vehicle at $7,000. Raysoni then had the vehicle inspected and discovered that it had suffered significant frame damage, that anyone in the used car business would have known the vehicle had sustained this damage due to a wreck, and that the vehicle needed $10,000 to $12,000 in repairs to address the obvious and exposed damage, without regard to any required mechanical repairs. Even with these repairs, the vehicle would not be in “pre-accident” condition, and the loss in the vehicle’s value would be at least $8,000. Thus, the vehicle was not clean and undamaged as represented and had, in fact, been wrecked. At the automobile auction, the vehicle had been announced as a frame-damaged car, and thus Payless knew the frame was damaged and used the lag time in reporting the accident to Carfax to represent the vehicle as “clean.” Raysoni asserts that he would not have purchased the vehicle had he been told that it had been in a prior wreck and sustained significant frame damage.

Raysoni returned the car to Payless and asked for a re-purchase, but Ul-Haque refused, stating that he did not buy back cars, and Raysoni subsequently sent Payless notice pursuant to OCGA § 10-1-399 of Georgia’s Fair Business Practices Act (“FBPA”), OCGA § 10-1-390 et seq. His subsequent complaint asserted claims for rescission based upon misrepresentation of material facts, violations of fair trade practices, deceit, and revocation of acceptance.

Payless moved for judgment on the pleadings, and the trial court granted that motion finding that “the undisputed facts made clear from Plaintiff Raysoni’s own exhibit entitles [Payless] to judgment as a matter of law. In fact, the Bill of Sale [Raysoni] attached to his Complaint is replete with disclaimers cautioning the buyer about the purchase of the vehicle.” The trial court, however, did not specifically address each of Payless’s asserted claims. On appeal, Raysoni asserts that the trial court erred in granting Payless’s motion for judgment on the pleadings as to his FBPA, fraud, and revocation of acceptance claims.

1. Raysoni asserts that the trial court erred in dismissing his FBPA claims, which alleged that Payless orally assured him in response to a direct inquiry that the vehicle had not been wrecked when Payless, in fact, knew that the car had been wrecked.

“A dealer’s sale of a used car falls within the ambit of the FBPA.” (Citation omitted.) Isbell v. Credit Nation Lending Svc., LLC, 319 Ga. App. 19, 29 (4) (735 SE2d 46) (2012). “Aprerequisite to stating a claim for relief under the [FBPA] is the commission of some unfair act or deceptive practice, from which the Act is designed to protect the public. OCGA § 10-1-391 (a).” Rivergate Corp. v. McIntosh, 205 Ga. App. 189, 192 (421 SE2d 737) (1992). And “[l]ike a claim for common-law fraud, a claim under the [FBPA] requires a showing that a defendant committed a volitional act constituting an unfair or deceptive act or practice conjoined with culpable knowledge of the nature (but not necessarily the illegality) of the act.” (Citations and punctuation omitted.) Paulk v. Thomasville Ford Lincoln Mercury, 317 Ga. App. 780, 783 (2) (732 SE2d 297) (2012).

Here, taking the allegations of the complaint as true, the salesman knowingly misrepresented the condition of the vehicle by stating that it was clean and undamaged. But even assuming, without deciding, that this misrepresentation violated the FBPA, “[a] private FBPA claim has three elements: a violation of the Act, causation, and injury.” (Citation and punctuation omitted.) Tiismann v. Linda Martin Homes Corp., 281 Ga. 137, 139 (2) (637 SE2d 14) (2006). And“[t]he [FBPA] incorporates the ‘reliance’ element of the common law tort of misrepresentation into the causation element of a FBPA claim. Consequently, justifiable reliance is an essential element.” (Citations and punctuation omitted.) Lynas v. Williams, 216 Ga. App. 434, 437 (3) (b) (454 SE2d 570) (1995). Therefore,

[w]hen the alleged FBPA violation is a misrepresentation, the consumer must show that he exercised due diligence to ascertain the falsity of the statement. Otherwise, the cause of the injury is the consumer’s lack of proper diligence, rather than the alleged FBPA violation.

Tiismann, 281 Ga. at 141 (2).

The Buyer’s Order attached to Raysoni’s complaint, upon which he relies in support of his claims of misrepresentation, contains numerous disclaimers. Right above the first signature line on the Buyer’s Order is a disclaimer indicating that the vehicle was being sold “AS-IS NO WARRANTY” and that the “Customer will pay all costs for any repairs. The dealership assumes no responsibility for any repairs regardless of any oral statements about the vehicle.” And at the bottom of the page, right above the third signature line, in slightly smaller type but in all caps, is language indicating that the customer agrees that no warranty was being offered on numerous parts of the vehicle, including the frame and body, and that any representation by the salesman was not binding on Payless. That portion of the Buyer’s Order also indicates that “THIS VEHICLE WAS ANNOUNCED HAVING UNIBODY DAMAGE AT THE AUCTION” and that Payless “STRONGLY RECOMMEND [ED] CUSTOMERS SHOULD GET VEHICLE INSPECTED BY A MECHANIC OF THEIR CHOICE BEFORE MAKING THE PURCHASE.”

Although Raysoni argues that these disclaimers are themselves deceptive, we find that they are sufficiently prominent and unambiguous to put Raysoni on notice of the prior damage to the vehicle.

To be deceptive, a business practice must have the tendency or capacity to deceive. Disclaimers and qualifications are not deceptive if they are sufficiently prominent and unambiguous to change the apparent meaning of other unconditional claims and to leave an accurate impression.

(Citations and punctuation omitted.) Tiismann, 281 Ga. at 140 (2). Here, the disclaimers were either listed under the boldface notification that the car was being sold “as is” or in all caps, and they appeared directly above the buyer’s signature lines. These disclaimers informed Raysoni that he should not rely upon the salesman’s representations, that the vehicle was listed as having prior damage when it was sold at auction, and that Payless recommended that he get an independent evaluation of the vehicle before he bought it.

Lack of justifiable reliance bars a claim under the FBPA. Lynas, 216 Ga. App. at 437 (3) (b). And

[i]n order to prove ... justifiable reliance, a party must show that he exercised his duty of due diligence. Fraud cannot be the basis of an action if it appears that the party alleging the fraud had equal and ample opportunity to prevent it and yet made it possible through the failure to exercise due diligence.

(Citation omitted.) Isbell, 319 Ga. App. at 26 (2) (b). Here, Raysoni ignored the information concerning prior damage and the recommendation for an independent inspection. Although at Raysoni’s request, he was shown a Carfax report on the car, which reflected no damage, the disclaimers indicated otherwise. Raysoni had notice and the opportunity to detect the issues with his vehicle before he made his purchase, and his “blind reliance on the salesman’s representations when the means of knowledge were at hand shows an unjustifiable lack of due diligence.” (Citations and punctuation omitted.) Id. See also Empire Distributors v. Hub Motors Co., 240 Ga. App. 568, 569 (1) (524 SE2d 264) (1999); Lehman v. Keller, 297 Ga. App. 371, 373 (1) (677 SE2d 415) (2009) (buyers could not establish the requisite due diligence where they failed to exercise right to inspect property which would have revealed damage allegedly concealed by seller). Accordingly, the trial court properly granted Payless’s motion for judgment on the pleadings as to the FBPA claim. See Isbell, 319 Ga. App. at 30 (4) (a); Tiismann, 281 Ga. at 141-142 (2). Garcia v. Charles Evans BMW, Inc., 222 Ga. App. 121 (473 SE2d 588) (1996) (absence of justifiable reliance precludes FBPA claim where contract clearly stated fact as to which buyer claimed he was misled).

2. For the same reasons, the trial court properly granted judgment on the pleadings on Raysoni’s fraud claim. See Isbell, 319 Ga. App. at 26 (2) (b).

3. Raysoni also asserts that the trial court erred in granting judgment on the pleadings on his claim of revocation of acceptance. But that claim, too, is based in fraud. Although Raysoni asserts that he was unaware of the nonconforming nature of the vehicle, Payless’s disclaimers and his own lack of due diligence similarly defeat his claim for damages based upon revocation of acceptance. Cf. Isbell, 319 Ga. App. at 26 (2) (b) (in light of plaintiff’s lack of due diligence, his claim for rescission of the contract based upon fraud was not authorized).

4. Raysoni also argues on appeal that the trial court erred in relying on the “As Is” disclosure on the Buyer’s Order where the order also contained an express warranty. But the Buyer’s Order attached to the complaint contains no express warranty. And our decision, based upon our de novo review of the pleadings, relies on the express language of the disclaimer found beneath the “As-Is” designation as well as the disclaimers at the bottom of the Buyer’s Order, not solely on the “As-Is” designation itself.

Raysoni relies on a copy of the Buyer’s Order attached to Ul-Haque’s answer, which contains the following language in the “Comments” box on the form: “30 days warranty on CV Joints. Payless will replace CV Joints if they will go bad in 30 days of the purchase” to argue that the “As-Is” clause is void under the Magnuson-Moss Warranty Act, 15 USC § 2308. We disagree. As an initial matter, Raysoni is not alleging a breach of warranty claim under the Magnuson-Moss Warranty Act such that 15 USC § 2308 would apply. Moreover, in light of the express disclaimers in the Buyer’s Order, such limited warranty language affecting only one automobile part does not in any way alter or relieve Raysoni’s obligation to exercise due diligence under Georgia law. In fact, Raysoni’s signatures under the disclaimer language signify his acknowledgment and agreement to the content of those disclaimers. See Romines v. Wagstaff Motor Co., 120 Ga. App. 608, 610 (1) (171 SE2d 752) (1969) (buyer bound by terms of automobile purchase agreement where no allegation that he was prevented from reading it by any trick or fraud of the defendant). The disclaimers put him on notice of damage to the vehicle, and he had the obligation to investigate further before he bought the car.

Judgment affirmed.

Andrews, P. J., and Dillard, J., concur.

On Motion for Reconsideration.

On motion for reconsideration, Raysoni contends that we overlooked significant Georgia precedent in holding that the disclaimers in the Buyer’s Order “negated the antecedent fraud and deceptive practices in the procurement of the contract.” In particular, he cites City Dodge, Inc. v. Gardner, 232 Ga. 766 (208 SE2d 794) (1974), in which the Supreme Court of Georgia held that a merger clause and an “As-Is” disclaimer in an automobile purchase contract did not, as a matter of law, prevent the buyer’s reliance on the salesman’s fraudulent representation that the car purchased by the buyer had not been wrecked. The Supreme Court held that “the question of reliance on the alleged fraudulent misrepresentation in tort cases cannot be determined by the provisions of the contract sought to be rescinded but must be determined as a question of fact by the jury.” Id. at 770. The Court further held:

It is inconsistent to apply a disclaimer provision of a contract in a tort action brought to determine whether the entire contract is invalid because of alleged prior fraud which induced the execution of the contract. If the contract is invalid because of the antecedent fraud, then the disclaimer provision therein is ineffectual since, in legal contemplation, there is no contract between the parties.

Id.

But City Dodge and the other cases cited by Raysoni are distinguishable. The Buyer’s Order in this case did not merely contain a merger clause or an “As-Is” disclaimer. Rather, it provided a number of express disclaimers, including one that expressly contradicted the salesman’s oral representation that the vehicle had no prior damage, as well as a recommendation that Raysoni obtain an independent evaluation of the vehicle before he bought it, and Raysoni had a duty to read the Buyer’s Order before he signed it. Because that document directly contradicted the salesman’s representation, Raysoni cannot rely on that representation to rescind the contract. As the Supreme Court of Georgia has recently explained:

It is well-settled law in Georgia that a party who has the capacity and opportunity to read a written contract cannot afterwards set up fraud in the procurement of his signature to the instrument based on oral representations that differ from the terms of the contract. Statements that directly contradict the terms of the agreement or offer future promises simply cannot form the basis of a fraud claim for the purpose of cancelling or rescinding a contract. In fact, the only type of fraud that can relieve a party of his obligation to read a written contract and be bound by its terms is a fraud that prevents the party from reading the contract.

Decided July 9, 2013

Reconsideration denied July 30, 2013

T. Michael Flinn, for appellant.

William K. Kincheloe, for appellee.

(Citations and punctuation omitted.) Novare Group, Inc. v. Sarif, 290 Ga. 186, 188-189 (2) (718 SE2d 304) (2011). Thus, because Raysoni is not entitled to rescission as a remedy, he is bound by the disclaimers in the Buyer’s Order. Id. at 190 (3).

Accordingly, we find no merit to Raysoni’s argument that the issue of whether he could have justifiably relied on Ul-Haque’s representation presents a question for the jury.

While justifiable reliance may be a jury question in a fraud case where no contract exists or where the contract has become void, it is a question of law in a case where the contract language prevails and the contract’s [provisions preclude] reliance on oral representations.

(Citations omitted.) Novare Group, 290 Ga. at 190 (3).

Motion for reconsideration denied.

       Although Raysoni suggests that the trial court should have ruled upon this as a motion for summary judgment because the parties submitted additional materials outside the pleadings, the trial court did not rule on that basis, and it appears that the parties never requested that the court treat the motion as one for summary judgment. The trial court’s order contains no indication that he considered any matters outside the pleadings, and accordingly, we also limit our review to the pleadings. “The rule is that the scope of [appellate] review is limited to the scope of the ruling in the trial court as shown by the trial record and cannot be enlarged or transformed through a process of switching or shifting.” (Citation and punctuation omitted.) Parrott v. State, 318 Ga. App. 545, 549 (1) (736 SE2d 436) (2012).

       The brief Payless filed in support of the motion for judgment on the pleadings indicated that this salesman was Ul-Haque.

       We note that Raysoni does not assert that Payless in any way misrepresented the actual contents of the Carfax report.

       The Buyer’s Order indicates that Raysoni paid Payless $17,029.93 for the vehicle.

       “On a motion for judgment on the pleadings, a trial court may consider exhibits attached to and incorporated into the pleadings. [Cit.]” Ezeoke v. FIA Card Svcs., N.A., 320 Ga. App. 73, 75 (739 SE2d 81) (2013). See also Lewis v. Turner Broadcasting System, 232 Ga. App. 831, 832 (2) (503 SE2d 81) (1998). We note that although the copy of the Buyer’s Order attached to the complaint is unsigned, Ul-Haque, acting pro se, submitted an answer in the form of a letter, which contains a copy of the Buyer’s Order signed by Raysoni that contains the identical disclaimers.

       Although in his brief, Raysoni attempts to graft additional definitions and requirements from portions of the FBPA dealing with promotions and from other federal and state statutes into his claim, those requirements do not alter the test for disclaimers under the FBPA. See Wright v. Safari Club Intl., Inc., 322 Ga. App. 486 (1) (b) (745 SE2d 730) (2013). Moreover, Raysoni provides citations to the Internet for numerous articles and even a publication from the Governor’s Office of Consumer Protection that are neither authenticated nor included in the record, and thus we cannot consider them. We take this occasion to remind counsel that ‘‘[w]e are limited in our review to matters contained in the appellate record, and a party cannot use his brief as a procedural device to add evidence to the record.” (Citation and punctuation omitted.) Community Newspaper Holdings, Inc. v. King, 299 Ga. App. 267, 270 (1), n. 9 (682 SE2d 346) (2009).

       And contrary to Raysoni’s argument, any omissions in the Carfax report, issued by an independent third party, cannot be charged to Payless as part of an alleged scheme to defraud in light of the disclaimers.