author: Miller, Chief Judge.

text:
    A10A0972.
    SARIF et al. v. NOVARE GROUP INC. et al.
    (703 SE2d 348)
   Miller, Chief Judge.

In this action arising from the sale of individual condominium units in the Twelve Atlantic Station Hotel and Residences building (“TWELVE”), David Sarif, Les Retter, Jay Baker, Ron Agami, Jonathan Samuels, Donna Wong, Sean Warren, and Shaun Wein-stock (“Appellants”) sued Novare Group, Inc., WN Atlantic Properties, LLC, Atlantic WN Properties, Inc., Twelve Hotels and Residences, LLC, Novare Group Holdings, LLC, Novare Realty, LLC, Michael Everly, and James Borders (“Appellees”), alleging fraud in the inducement, negligent misrepresentation, negligent supervision, negligence (by Everly and Borders) and violation of the Georgia Fair Business Practices Act. The trial court granted Appellees’ motion for judgment on the pleadings on Appellants’ claims and denied Appellants’ motion for summary judgment. Appellants appeal from the order granting Appellees’ motion for judgment on the pleadings, arguing that the trial court’s findings were in error. Appellants also contend that the trial court erred in staying Borders’s deposition, denying their motion for summary judgment, and failing to rule on their motion to compel.

We affirm in part on the claims of fraud in the inducement by passive concealment and negligence (by Everly and Borders) and reverse in part on claims of fraud in the inducement by active concealment, negligent misrepresentation, negligent supervision, and violation of the Georgia Fair Business Practices Act. Discerning no other error, we affirm the trial court’s rulings on discovery and summary judgment.

“On appeal, we review de novo the trial court’s decision on a motion for judgment on the pleadings, and we construe the complaint in a light most favorable to the appellant, drawing all reasonable inferences in his favor.” (Punctuation and footnote omitted.) Ameris Bancorp v. Ackerman, 296 Ga. App. 295 (674 SE2d 358) (2009). “[A]ll well-pleaded material allegations of the opposing party’s pleading are to be taken as true, and all allegations of the moving party which have been denied are taken as false.” (Punctuation omitted.) Rolling Pin Kitchen Emporium v. Kaas, 241 Ga. App. 577, 578 (2) (527 SE2d 248) (1999).

So viewed, the record shows that, in 2005 and 2006, Appellees marketed and advertised condominiums at the TWELVE to the general public and Appellants as having “spectacular city views” of downtown Atlanta and provided written materials regarding same. Appellees also promised and represented to Appellants that any future development directly opposite the TWELVE would be a low to mid-rise office building which would not obstruct Appellants’ city views and would not be built for at least five years. In doing so, Appellees knew these representations were false and concealed from Appellants their planned development of the Atlantic, a 46-story tower, directly across from the TWELVE. Between August and November 2005, each of the Appellants entered into agreements with WN Atlantic Properties, LLC to purchase a condominium unit at the TWELVE.

All the purchase agreements contain a comprehensive merger clause:

24. ENTIRE AGREEMENT. This Agreement contains the entire agreement between the parties hereto. No agent, representative, salesman or officer of the parties hereto has authority to make, or has made, any statements, agreements, or representations, either oral or in writing, in connection herewith, modifying, adding to, or changing the terms and conditions hereof and neither party has relied upon any representation or warranty not set forth in this Agreement. No dealings between the parties or customs shall be permitted to contradict, vary, add to, or modify the terms hereof.

The purchase agreements also contain an express disclaimer stating that Appellants have not relied upon any

advice, representations or statements of [b]rokers and waive and shall not assert any claims against [bjrokers involving the same. . . . [Appellants] agree that [bjrokers shall not be responsible to advise . . . them on any matter, including. . . any condition(s) existing off the Condominium that may affect the Condominium^]

Additionally, each of the purchase agreements contains a disclosure provision, in which Appellants acknowledge and understand that “[tjhe views from . . . the Unit may change over time due to, among other circumstances, additional development and the removal or addition of landscaping.”

In September 2008, it became apparent to Appellants that construction of the Atlantic would block their views and result in decreased property values. On December 31, 2008, Appellants notified Appellees of their intent to rescind the purchases and to file claims under the Fair Business Practices Act. This lawsuit followed.

1. Appellants argue that the trial court erred in granting Appellees’ motion for judgment on the pleadings on each of their claims.

(a) Fraudulent inducement via active concealment. A plaintiff who claims that he was fraudulently induced into entering a contract may elect one of two remedies: “affirm the contract and sue to recover damages for its breach or rescind the contract and sue in tort to recover damages for fraud.” (Footnote omitted.) Dyer v. Honea, 252 Ga. App. 735, 739 (3) (a) (557 SE2d 20) (2001). If a party “elects to affirm the contract, the merger clause estops him from asserting that he relied upon antecedent oral representations.” (Footnote omitted.) Id. On the other hand, “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.” (Citation and punctuation omitted.) Crews v. Cisco Bros. Ford-Mercury, 201 Ga. App. 589, 591 (2) (411 SE2d 518) (1991).

Construing the pleadings favorably to Appellants (Rolling Pin, supra, 241 Ga. App. at 578 (2)), Appellants notified Appellees that they were rescinding their purchases before they filed the instant action. See Consulting Constr. Corp. v. Edwards, 207 Ga. App. 296, 298 (1) (427 SE2d 789) (1993) (generally, rescission “must occur prior to, and as a condition precedent to the bringing of the action”) (citations and punctuation omitted; emphasis in original). Although the first amended complaint does not contain a separate claim for rescission, it also does not express “a clear election to affirm the purchase and sale agreement[,]” as no breach of contract claim is alleged. Conway v. Romarion, 252 Ga. App. 528, 531-532 (1) (557 SE2d 54) (2001) (where purchaser did not express a clear intent to affirm the purchase and sale agreement and there was no separate claim for rescission, allegations of fraud in complaint could support a rescission claim). Thus, the trial court erred in finding that Appellants affirmed the purchase agreements by failing to timely demand rescission before the filing of their complaint. While Appel-lees contend that Appellants were not diligent in demanding rescission, the trial court “need not adopt a party’s legal conclusions based on these facts.” (Citations and punctuation omitted.) Rolling Pin, supra, 241 Ga. App. at 578 (2).

Consequently, the trial court also erred in ruling that the merger clause precluded Appellants “from asserting reliance upon any representations or understandings outside of the [pjurchase Agreements” and concluding that their fraud in the inducement claim was barred as a matter of law. Compare Herman Homes, Inc. v. Smith, 249 Ga. App. 131, 132-133 (547 SE2d 591) (2001) (where buyer “elects to affirm a purchase agreement which contains a merger or entire agreement clause, he ... is precluded from recovering for the seller’s alleged fraudulent inducement based on misrepresentations made outside the contract”).

Taking the allegations of Appellants’ pleadings as true, the complaint sufficiently sets forth a claim of fraud via active concealment as Appellees planned to build the Atlantic directly across from the TWELVE, knowing that the Atlantic would be a high-rise exceeding the height of the TWELVE, yet prevented Appellants from discovering such fact until the closing of all initial sales of the TWELVE condominiums. See Ikola v. Schoene, 264 Ga. App. 338 (590 SE2d 750) (2003) (fraud in the sale of real estate may be predicated upon a wilful misrepresentation of a fact which the seller does not discuss, yet takes steps to prevent discovery by the purchaser); Bradley v. British Fitting Group, 221 Ga. App. 621, 624 (4) (472 SE2d 146) (1996) (when a promise as to future events is made “with a present intent not to perform or where the promisor knows that the future event will not take place,” a claim for actionable fraud lies) (citations and punctuation omitted). As such, the trial court erred in granting judgment to Appellees with respect to this claim.

(b) Fraudulent inducement by passive concealment. The “passive concealment” doctrine, which applies to disputes between residential homeowners and residential builder/seller, is an exception to the general rule of “caveat emptor.” See Browning v. Stocks, 265 Ga. App. 803, 804 (1), n. 2 (595 SE2d 642) (2004). Given that Appellants have not alleged a latent construction defect in their condominiums, the doctrine is inapplicable to a claim that Appellees concealed their plan to develop the Atlantic. See Worthey v. Holmes, 249 Ga. 104, 105 (2) (287 SE2d 9) (1982) (passive concealment claim only applies to “latent building construction defects about which [the purchaser] did not know and in the exercise of ordinary care would not have discovered . . .”). Thus, the trial court’s ruling was not error.

(c) Negligent misrepresentation. Appellants contend that Appel-lees supplied false information to them upon which they reasonably relied, and as a result, Appellants suffered damages. We agree that the pleadings sufficiently set forth a claim for negligent misrepresentation. See Smiley v. S & J Investments, 260 Ga. App. 493, 498 (2) (580 SE2d 283) (2003) (the elements of a negligent misrepresentation claim are: “(1) the defendant’s negligent supply of false information to foreseeable persons, known or unknown; (2) such persons’ reasonable reliance upon that false information; and (3) economic injury proximately resulting from such reliance”) (citation and punctuation omitted).

Having concluded that the trial court erred in finding that Appellants affirmed the purchase agreements, it likewise erred in ruling that the terms of the agreements “preclude [Appellants] from showing justifiable reliance on any alleged misrepresentations by [Appellees’] sales agents as a matter of law.” See Hightower v. Century 21 Farish Realty, 214 Ga. App. 522, 524 (2) (448 SE2d 271) (1994) (when purchaser affirms contract, he is bound by contract terms, including provision disclaiming that he relied upon representations made by seller; these same principles apply to negligent misrepresentation cases). Appellees were not entitled to judgment as a matter of law on this claim.

(d) Negligent supervision. Construed favorably to Appellants, the pleadings show that Appellees “knew or should have known that the actions of their agents and employees . . . would cause harm to purchasers at [TWELVE], such as [Appellants], and [i]t was reasonably foreseeable that the actions of [Appellees’] agents and employees would cause harm to [Appellants].” Since we have also accepted as true the fact that Appellees concealed the planned development of the Atlantic from Appellants, we find, for purposes of the motion for judgment on the pleadings, that Appellees reasonably knew its employees would misrepresent or conceal the development of the Atlantic from Appellants. See Munroe v. Universal Health Svcs., 277 Ga. 861, 863 (1) (596 SE2d 604) (2004) (employer may be liable where there is sufficient evidence that employer reasonably knew or should have known of an employee’s tendencies to engage in certain behavior causing plaintiffs injury). Thus, the trial court erred in granting judgment to Appellees on the negligent supervision claim.

(e) Negligence (by Borders and Everly). As to this claim, Appellants allege that Borders and Everly, corporate officers of Novare Group, Inc. and Novare Realty, LLC, respectively, failed to operate the Novare entities in a reasonably prudent manner and exercise ordinary care by committing negligent, reckless, and intentional acts as to concealment of the development of the Atlantic, and that these acts proximately caused damages to Appellants. Appellants, however, alleged no valid duty owed by Borders and Everly to them. See Oswell v. Nixon, 275 Ga. App. 205, 207 (1) (620 SE2d 419) (2005) (‘‘An essential element of a tort claim is the existence of a duty owed by the defendant to the purported plaintiff”) (footnote omitted). Accordingly, the trial court did not err in granting judgment to Appellees on the negligence claim.

(f) Fair Business Practices Act violation. Appellants argue that the trial court erred in finding that their Fair Business Practices Act (“FBPA”) claim was barred by the two-year statute of limitation and that Appellants failed to prove justifiable reliance, an essential element of the FBPA, given the operation of the merger clause in the purchase agreements. We agree on both grounds.

(i) Statute of limitation. Appellants challenge the trial court’s finding that their FBPA claim was barred by the statute of limitation because they could not have first maintained their action to a successful result until September 2008. See OCGA § 10-1-401 (a) (1) (“No action shall be brought under [the FBPA] . . . [m]ore than two years after the person bringing the action knew or should have known of the occurrence of the alleged violation. . . .”).

“[I]t is a general and established principle of law that the statute of limitation begins to run from the time the right of action accrues.” (Citations and punctuation omitted.) Tiismann v. Linda Martin Homes Corp., 279 Ga. 137, 138 (610 SE2d 68) (2005). “The true test to determine when the cause of action accrued is to ascertain the time when the plaintiff could first have maintained his action to a successful result[,]” rather than the timing of the alleged violation. (Citation and punctuation omitted.) Id. at 138-139.

Construing the pleadings in Appellants’ favor, we find that Appellants could not have suffered any damages until September 2008 when it became apparent that construction of the Atlantic blocked their views and that the value of their properties would be substantially diminished. See Campbell v. Beak, 256 Ga. App. 493, 494 (4) (568 SE2d 801) (2002) (measure of damages for FBPA claim ‘‘is that of actual injury suffered”) (citation and punctuation omitted); see also Zeeman v. Black, 156 Ga. App. 82, 86-87 (273 SE2d 910) (1980) (the elements of a FBPA claim are a violation of the Act, causation and injury). Therefore, the FBPA claim asserted in March 2009 was not barred by the statute of limitation.

(ii) Given that “a seller may not by contract, agreement, or otherwise limit the operation of [the FBPA] notwithstanding any other provision of law[,]” the trial court also erred in finding that Appellants failed to show the essential element of justifiable reliance. OCGA § 10-1-393 (c); Johnson v. GAPVT Motors, 292 Ga. App. 79, 85 (2) (663 SE2d 779) (2008) (merger clause in agreement directly contradicts express provisions of FBPA and is inapplicable to such claim). As such, the trial court erred in granting judgment to Appellees on the FBPA claim.

2. Appellants contend that the trial court erred (i) in staying Borders’s deposition, (ii) in denying their motion for summary judgment based on Appellees’ failure to respond to its request for admissions, and (iii) in failing to rule on its motion to compel prior to granting Appellees’ motion for judgment on the pleadings. These claims lack merit.

(a) Stay of Borders’s deposition. Shortly after the complaint was filed, Appellants noticed the deposition of Borders, in response to which Appellees filed a motion for protective order and to stay proceedings. On July 10, 2009, the trial court entered an order staying Borders’s deposition, given Appellees’ pending motions, including their motion to dismiss and for judgment on the pleadings and motions in two related actions which were to be heard on September 15, 2009. We find no abuse of discretion in the trial court’s ruling. See Dempsey v. Kaminski Jewelry, 278 Ga. App. 814, 818 (2) (630 SE2d 77) (2006).

(b) Denial of Appellants’ motion for summary judgment. The trial court denied Appellants’ motion for summary judgment on the basis that the motion was unsupported by any evidence. Finding that Appellees’ responses to Appellants’ first request for admissions were timely and asserted objections to the request for admissions, the trial court concluded that the responses could not be deemed admitted by operation of law. The objections cited attorney work product, attorney client privilege, discovery intended to harass Appellees, and the trial court’s failure to rule on two pending discovery motions. We find no error in the trial court’s ruling. See OCGA § 9-11-36 (a) (2) (a request for admissions is admitted unless within 30 days after service of the request or other time allowed by the court, “the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or his attorney”).

Decided November 10, 2010

Weinstock & Scavo, Wallace H. Ehrenclou, James R. Fletcher II, for appellants.

Troutman Sanders, William N. Withrow, Jr., Thomas E. Reilly, Brian P. Watt, for appellees.

(c) Pendency of motion to compel. The trial court scheduled a hearing on all pending motions for September 15, 2009. On July 27, 2009, in response to Appellees’ motion for protective order, Appellants filed a motion to compel seeking an order to compel Borders’s deposition. At the hearing, the trial court considered all pending motions and entered orders granting Appellees’ motion for judgment on the pleadings, denying Appellants’ motion for summary judgment, and denying all other pending motions. Since the transcript from the motions hearing or a statutorily-authorized substitute is not included in the record on appeal, we presume that the trial court properly considered Appellants’ motion to compel and the evidence was sufficient to support its rulings. See Hixson v. Hickson, 236 Ga. App. 894, 895 (1) (512 SE2d 648) (1999).

Judgment affirmed in part and reversed in part. Phipps, P J., and Johnson, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    A10A1078.
    SOUTHERN MUTUAL CHURCH INSURANCE COMPANY v. ARS MECHANICAL, LLC.
    (703 SE2d 363)
   Miller, Chief Judge.

ARS Mechanical, LLC (“ARS”) installed an air conditioning system at the Church of Greater Works, Inc. (“Church”), which resulted in extensive property damage. Thereafter, Southern Mutual Church Insurance Company (“Southern Mutual”), the Church’s insurer, paid the Church for its loss. The Church filed suit against ARS asserting contract and negligence claims, and Southern Mutual was later substituted as the real party plaintiff based on the Church’s execution of an assignment in its favor. Southern Mutual appeals from the trial court’s order granting summary judgment in favor of ARS, arguing that the trial court erred in applying the voluntary payment doctrine and the acceptance doctrine to bar its action against ARS, and requiring it to pay costs to ARS. Finding that Southern Mutual had no contractual obligation to pay the Church for its loss and that its action was barred by the voluntary payment doctrine, we affirm.

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 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.

Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

So viewed, the record shows that in early 2004, Pastor Darryl Winston, the Church’s head minister, asked Corey Hammonds, a member of the Church, to solicit a bid from ARS for the installation of an air conditioning system at the Church. Thereafter, Winston authorized Hammonds to accept a bid from ARS, and on May 15, 2004, Hammonds’ company, Hammonds Properties, entered into a contract with ARS to install four HVAC systems for the Church. Sadat Nichols and A1 Shepherd, co-owners of ARS, commenced work, which consisted of coring holes in the roof for fresh air intakes, installing flashing and air ducts, and placing tents to cover the holes. On the Friday before Memorial Day weekend, after coring the fourth hole, Nichols observed water “dripping from up under the roof” between the concrete slab and roofing material, and advised Winston that water “is penetrating the roof somewhere on the roof and getting up under [the] roof.” Winston inspected the roof and directed Nichols to continue work.

During the Memorial Day weekend, it rained heavily, resulting in extensive water and property damage to several rooms in the Church in excess of $150,000. On May 30, 2004, Winston contacted Southern Mutual and reported that a tree limb had fallen on the Church’s roof and caused the damage. The claim was assigned to claims manager John Rentiers, who in turn assigned the claim to J. R. Hood, a local adjuster with Custard Insurance Adjusters, Inc. On June 2, 2004, Hood inspected the Church’s property and engaged a local contractor, Bill Day of Northridge Restoration, to inspect the Church’s roof. Day inspected the roof and concluded that a tree limb had not caused the damage to the roof, but that “HVAC installers on the site had cut openings in the flat, built-up roof to install ductwork.” He observed that the vent stacks previously installed by ARS were unprotected and unflashed, so he covered the stacks with blue plastic tarps to protect them from further infiltration. Northridge Restoration also engaged an engineer, Dan Sheehan, to inspect the roof, who also faulted ARS “for cutting holes in the roof and then applying the flashing incorrectly.” These findings were contained in Hood’s June 8, 2004 report to Southern Mutual. In subsequent reports dated June 26, 2004 and August 23, 2004, Hood affirmed that water infiltration was attributable to penetrations cut through the roof by HVAC technicians installing air ducts.

On or about July 7, 2004, Southern Mutual made a partial payment to the Church for its loss. Rentiers deposed that he usually reviews all the information from his investigation before determining the cause of a loss. As of August 4, 2004, he determined that the loss was caused by “holes cut in the roof by the HVAC company installing the air conditioner.” Rentiers admitted in his deposition that “there is no provision! ]” that covered the loss, but Southern Mutual made a voluntary payment so the Church could make its repairs. Rentiers explained that he “made a mistake[ ]” and “did not catch an exclusion in the policy.”

On August 9, 2004, Southern Mutual notified ARS that it had paid the Church for damages resulting from ARS’ negligence and would seek reimbursement for such payments. On December 17, 2004, Southern Mutual made a final payment to the Church.

On July 18, 2005, Winston executed a subrogation receipt to Southern Mutual, reciting that in exchange for a consideration of $154,596.72, he “agrees to present claim promptly, and if necessary, to commence, enter into and prosecute suit against such person through whose negligence or other fault the aforesaid loss was caused ... in his own name.” Winston further agreed to “appoint[ ] the managers and/or agents of [Southern Mutual] . . . with irrevocable power to collect any such claim or claims . . . and to execute in the name of [Winston,] any documents . . . necessary to carry the same into effect for the purpose of this agreement.”

On April 30, 2007, the Church executed a written assignment in favor of Southern Mutual, which provided:

[Church] do[es] hereby assign[ ], transfer[ ] and forever release to [Southern Mutual] all claims, demands, rights and recoveries that may inure to [Church] in connection with [Church’s] cause of action against [ARS] and its agents for damages arising out of an event on or about May 30, 2004 and which resulted in damages to the real and personal property of [Church] . . . and specifically agrees that any such cause of action may proceed in its name as plaintiff with all costs born by [Southern Mutual].

On June 4, 2007, the Church filed the instant action against ARS seeking damages for property damage, negligence and breach of contract. Thereafter, Southern Mutual was substituted as the real party plaintiff.

1. Southern Mutual argues that the trial court erred in granting summary judgment to ARS based on the voluntary payment doctrine because its action was based upon an assignment rather than a subrogation claim under the policy. Southern Mutual contends that its payments for the loss under its policy was irrelevant. We disagree.

“The party seeking to recover payment bears the burden of showing that the voluntary payment doctrine does not apply.” (Punctuation and footnote omitted.) Energy &c. Corp. v. Jim Dally & Assoc., Inc., 291 Ga. App. 772, 775 (1) (662 SE2d 835) (2008). ARS argues that since Southern Mutual had no contractual obligation to pay the loss, the voluntary payment doctrine bars its recovery, irrespective of the assignment. We agree.

The general rule is that an insurer’s voluntary payment to its insured does not give rise to a right of subrogation. See Allianz Ins. Co. v. State Farm Fire &c. Co., 214 Ga. App. 666, 667 (449 SE2d 5) (1994) (insurer was a volunteer when it paid automobile loss despite express provision in its policy for nonpayment and was not entitled to subrogation); Transport Ins. Co. v. Maryland Cas. Co., 187 Ga. App. 361, 363 (3) (370 SE2d 188) (1988) (subrogation “is never applied for the benefit of a mere volunteer who pays the debt of another . . . and who is under no legal obligation to make the payment, and is not compelled to do so for the preservation of any rights or property of his own”) (citations and punctuation omitted); Hartford Fire Ins. Co. v. Payne, 28 Ga. App. 655 (112 SE 736) (1922) (insurer who paid loss and took assignment of insured’s right of action against railroad could not recover damages as loss was not covered under the policy).

This rule is consistent with the voluntary payment doctrine in other contexts, i.e., when a payment is made without a contractual or legal obligation to pay it, the payment is voluntary and the payment cannot be recovered. See Emergency Professionals of Atlanta v. Watson, 288 Ga. App. 473, 475 (1) (654 SE2d 434) (2007) (“no indemnity claim exists where party seeking indemnity was not legally obligated to make the payment”); Telescripps Cable Co. v. Welsh, 247 Ga. App. 282, 285 (1) (542 SE2d 640) (2000) (voluntary payment doctrine bars recovery of a late fee that was legally unenforceable).

Here, Rentiers admitted in his deposition that, as of August 4, 2004, the loss was not covered under any provision of the policy, and Southern Mutual voluntarily paid the Church “to make sure repairs were done,” even though at one point Rentiers did not have a sworn proof of loss from the Church. Thus, when Southern Mutual made three payments to the Church between July and December 2004, it had no contractual obligation to do so. Allianz, supra, 214 Ga. App. at 667; Transport, supra, 187 Ga. App. at 363 (3); Hartford, supra, 28 Ga. App. at 655. And under its policy, Southern Mutual could not recover for a loss against a third party unless the loss was paid “under the covered property coverage.” Nor has Southern Mutual demonstrated that there was a legal necessity for payment.

While Rentiers deposed that he made a mistake in paying the claim and did not catch an exclusion under the policy, Southern Mutual failed to come forward with evidence to show that “certain material facts were not known at the time of payment or a valid reason existed for failure to determine the truth.” Ins. Co. of North America v. Kyla, Inc., 193 Ga. App. 555, 556 (388 SE2d 530) (1989); OCGA § 13-1-13 (“[pjayments of claims made through ignorance of the law or where all the facts are known and there is no misplaced confidence and no artifice, deception, or fraudulent practice used by the other party are deemed voluntary and cannot be recovered unless made under an urgent and immediate necessity therefor”). See also Cloppas v. Citizens & Southern Bank &c., 95 Ga. App. 365, 368 (1) (98 SE2d 153) (1957) (“mistake of fact exists when a material fact which really exists is unknown or when some fact is supposed to exist which really does not exist”); compare Gulf Life Ins. Co. v. Folsom, 256 Ga. 400 (349 SE2d 368) (1986) (undisputed evidence showed that plaintiffs payment to defendant was the result of a computer mistake). Prior to paying the Church, Southern Mutual had full knowledge of the facts pertaining to the loss, having received several reports from Hood. Based on such reports, Rentiers concluded, as did Hood, that ARS’ work in coring the holes caused water infiltration into the Church.

Further, Southern Mutual mischaracterizes Rentiers’ testimony that it paid the loss based on its company policy to resolve vague cases in favor of its insured. In his deposition, Rentiers was asked to explain what exclusions may have applied given his testimony that he made a mistake in paying the claim. He testified about certain exclusions that he thought were applicable but indicated that he thought some provisions were vague. Thus, Southern Mutual’s voluntary payment to the Church was not grounded in its company policy.

While the assignment transferred to Southern Mutual the Church’s cause of action against ARS and allowed Southern Mutual to sue ARS directly (State Farm &c. Ins. Co. v. Jones, 98 Ga. App. 46 (104 SE2d 725) (1958) (assignment is a mere purchase of another’s cause of action)), it effectuated a subrogation. See Bankers Trust Co. v. Hardy, 281 Ga. 561, 562 (640 SE2d 18) (2007) (“Subrogation is the substitution of another person in the place of the creditor, so that the person in whose favor it is exercised succeeds to all rights of the creditor.”) (footnote omitted). Based on the assignment, Southern Mutual was subrogated to “all claims, demands, rights, and recoveries” that the Church was entitled to bring against “ARS and its agents for damages arising out of an event on or about May 30, 2004 and which resulted in damages to the real and personal property of [Church], ...” Since Southern Mutual had no legal obligation to pay the Church, the fact it had an assignment does not change our result. Here, Southern Mutual is trying to recover the same amount from ARS that it paid for the loss. See Hartford, supra, 28 Ga. App. at 655; Ga. Power Co. v. Foster Wheeler Corp., 161 Ga. App. 641, 642 (1) (288 SE2d 720) (1982) (“[t]he prohibition against recovering back voluntary payments is not avoided by doing it indirectly rather than directly”) (citation omitted).

Southern Mutual further argues that Ricketts v. Liberty Mut. Ins. Co., 127 Ga. App. 483, 488 (7) (194 SE2d 311) (1972), supports its argument that payments to the Church under its policy and the policy itself is irrelevant since its action is based upon an assignment. We disagree. In Ricketts, the insurance company obtained judgment against several defendants in a trover action for their conversion of a quantity of rugs to which the company had lawful title based upon assignments received from the rugs’ owners. On appeal, defendants objected to the absence of the insurance policy under which the claims were paid, and we held that the policy was irrelevant because the trover suit was based upon the assignments. Id. at 488 (7). Ricketts is inapposite as it involved an assignment of a right to property, i.e., the rugs, not a cause of action. Further, the insurance company in Ricketts paid the claims after it was satisfied with the owners’ proof of loss, apparently in accordance with its policy terms. Id. at 484. Here, Rentiers paid the claim without a contractual obligation to do so.

To the extent that Southern Mutual argues that it paid the Church for its loss in exchange for the assignment, the record reflects otherwise. It is undisputed that the Church did not execute the assignment subrogating its cause of action and rights and recoveries to Southern Mutual until April 2007. Thus, Southern Mutual cannot argue that it was compelled to pay the Church for the preservation of its own rights or to satisfy any legal obligation. See Bankers Trust, supra, 281 Ga. at 564, n. 8 (subrogation arises only where a party “had some interest to protect or . . . where he advanced money under an agreement, express or implied, made either with the debtor or creditor, that he would be subrogated to the rights and remedies of the creditor”) (citation omitted). Compare Hibbard v. McMillan, 284 Ga. App. 753, 756-757 (2) (645 SE2d 356) (2007) (plaintiffs payment of insurance premiums was intended to satisfy certain obligations under the parties’ agreement to keep life insurance policy in effect and were recoverable); Taylor v. Taylor, 195 Ga. App. 711 (349 SE2d 628) (1990) (plaintiff was entitled to collect promissory notes as bank’s assignee where bank transferred promissory notes to plaintiff following her payment of the face value of promissory notes plus interest to bank).

Decided November 10, 2010.

Based on the foregoing, Southern Mutual cannot recover from ARS as it was not legally or contractually obligated to pay the Church. Allianz, supra, 214 Ga. App. at 667; Transport, supra, 187 Ga. App. at 363 (3); Hartford, supra, 28 Ga. App. at 655. See also Ga. Power, supra, 161 Ga. App. at 642-643 (1) (voluntary payment doctrine applied to bar party’s recovery of damages in tort where party did not show inapplicability of doctrine); compare Read v. Benedict, 200 Ga. App. 4, 9 (4) (406 SE2d 488) (1991) (voluntary payment doctrine did not preclude award of damages in suit grounded in tort when wife made payment to third party not involved in suit for the purpose of satisfying claim caused by malpractice).

2. In light of our disposition in Division 1, supra, we need not address Southern Mutual’s assertion that the trial court erred in granting summary judgment to ARS based on the acceptance doctrine.

3. Further, the trial court did not err in awarding costs against Southern Mutual. See OCGA § 9-11-54 (d) (“Except where express provision therefor is made in a statute, costs shall be allowed as a matter of course to the prevailing party unless the court otherwise directs[.]”).

Therefore, we affirm the trial court’s order granting summary judgment to ARS.

Judgment affirmed.

Phipps, P. J., and Johnson, J., concur.

Rutherford & Christie, Carrie L. Christie, Andrea E. Dobur, for appellant.

Green & Sapp, Henry D. Green, Jr., Mary P. Adams, for appellee.

       This doctrine provides, subject to certain exceptions, that when an independent contractor’s work “is completed, turned over to, and accepted by the owner, the contractor is not liable to third persons for damages or injuries subsequently suffered by reason of the condition of the work, even though he was negligent in carrying out the contract, at least, if the defect is not hidden but readily observable on reasonable inspection.” Ogles v. E. A. Mann & Co., Inc., 277 Ga. App. 22, 24 (1) (625 SE2d 425) (2005).


text:
    A10A1092.
    A10A1093.
    BARNES et al. v. MORGANTON BAPTIST ASSOCIATION, INC. BARNES et al. v. TANKERSLEY et al.
    (703 SE2d 359)
   Miller, Chief Judge.

On September 26, 2005, 23-year-old Brian Lackhouse was fatally injured when he and his bicycle fell off a retaining wall adjacent to the parking lot of a Fannin County shopping center. Lackhouse’s mother and sister, Brenda Barnes and Amanda Eavenson (the plaintiffs), brought this wrongful death action against Morganton Baptist Association, Inc., William T. Tankersley, and others (the defendants), the alleged co-owners of the wall. Following a hearing, the trial court granted the defendants’ motions for summary judgment. On appeal, the plaintiffs contend that the trial court erred in its findings as to: the open and obvious condition of defendants’ property; plaintiffs’ claims of negligence, negligence per se, and nuisance; and Lackhouse’s assumption of the risk. We affirm because the evidence establishes as a matter of law that the defendants did not have superior knowledge of the danger posed by the retaining wall and the drop-off therefrom.

“We review the grant or denial of a motion for summary judgment de novo, viewing the evidence and all reasonable conclusions and inferences drawn from it in the light most favorable to the nonmovant.” (Citation omitted.) Nosiri v. Helm, 301 Ga. App. 380 (687 SE2d 635) (2009).

So viewed, the evidence shows that Lackhouse and his friend Josh Lambert decided to go mountain bike riding. Lackhouse was concerned that his bike’s gear chain needed to be adjusted, and he and Lambert drove to Cycle South, a business where Lackhouse had previously purchased his bicycle.

Adjacent to the parking lot of the shopping center where Cycle South is located is the top of a retaining wall rising up to 12 feet in height over the adjacent property. A sidewalk is constructed on top of the wall. According to Lambert, he had driven to the shopping center with Lackhouse five or six times within a year before the incident and the retaining wall was readily visible during the drive there.

After arriving at Cycle South, Lackhouse spoke with the owner’s wife and asked for a “derailer adjustment.” She told him he could either leave the bike so that the owner, who had already left, could work on the bike in the morning, or he could bring it back the following day. Lackhouse told her he would bring the bike back the next day.

After going back outside, Lackhouse got on his bike in the parking lot to see if it would shift through the gears correctly. He tested the bike by riding it back and forth, making circles around the parking lot so that some times he was closer to the parked cars in front of the shopping center and other times he was closer to the sidewalk and the retaining wall. Lambert deposed that Lackhouse was traveling “at most five miles an hour,” three or four feet away from and parallel to the sidewalk, and eight feet away from the drop-off, when his rear tire slid. Lackhouse put a foot down to catch his balance and began “hopping” in the direction of the retaining wall, with his foot on the pavement and then on the sidewalk. Lackhouse was unable to regain his balance on the sidewalk, and he and the bike fell onto, and then over, the curb of the retaining wall and onto the ground below. Tragically, he suffered traumatic head and brain injuries and died the next day.

The plaintiffs brought negligence, negligence per se, and nuisance claims against the defendants based on their failure to erect a fence or protective barrier on the sidewalk on top of the retaining wall which they allegedly co-owned as part of an integrated and nondivisible drainage easement system.

In granting summary judgment for the defendants, the trial court found that the retaining wall was an open and obvious condition that could have been avoided by Lackhouse in the exercise of reasonable care, that he also assumed the risk of his actions, and that the defendants’ claims of negligence, negligence per se, and nuisance failed. The trial court also found that the evidence did not authorize the imposition of punitive damages.

1. Plaintiffs challenge the trial court’s finding that the property owned by the defendants constituted an open and obvious condition and that the hazard was avoidable by the exercise of ordinary care. We agree with the trial court.

Assuming, but not deciding, that the defendants’ duty of care to Lackhouse was that owed to an invitee, the defendants were required

to discover and either keep the premises safe from or warn of hidden dangers or defects not observable to such invitees in the exercise of ordinary care. However, there is no duty to warn against obvious or patent dangers which may be observed and avoided by the exercise of ordinary care.

(Citations and punctuation omitted.) Rozy Investments, Inc. v. Bristow, 276 Ga. App. 278, 279 (4) (623 SE2d 171) (2005). See OCGA § 51-3-1.

[T]he basis of the proprietor’s liability is his superior knowledge, and if his invitee knows of the condition or hazard, there is no duty on the part of the proprietor to warn the invitee and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does.

(Citations and punctuation omitted.) Froman v. Smith, 197 Ga. App. 338, 339 (398 SE2d 413) (1990). See Dickerson v. Guest Svcs. Co. of Va., 282 Ga. 771, 772 (653 SE2d 699) (2007) (“proprietor may be liable only if he had superior knowledge of a condition that exposed an invitee to an unreasonable risk of harm”) (citation and punctuation omitted).

It is undisputed that the defendants were aware of the retaining wall, but the evidence also establishes that Lackhouse had actual knowledge of the hazard. The wall was visible as Lackhouse drove up to Cycle South, and Lackhouse had driven to the shopping center with Lambert several times before and had been to the bike shop at least a dozen times. Lambert deposed that the wall and the drop-off therefrom was obvious and plaintiffs do not show otherwise. During the hearing on summary judgment plaintiffs’ counsel admitted that Lackhouse knew about the retaining wall and that “in lay terms, it is open, it is obvious.”

The superior/equal knowledge rule “is the practical application of a rule that a knowledgeable plaintiff cannot recover damages if by ordinary care he could have avoided the consequences of defendant’s negligence. OCGA § 51-11-7.” (Punctuation omitted.) O’Steen v. Rheem Mfg. Co., 194 Ga. App. 240, 242 (1) (390 SE2d 248) (1990). Plaintiffs argue that there nevertheless remain issues of fact as to whether Lackhouse was exercising reasonable care for his safety, particularly because he was slowly riding his bike parallel to the wall, and a jury could conclude he was not attempting to recklessly test or otherwise engage the wall. But plaintiffs are not able to avoid the application of the superior/equal knowledge rule in this case. Unlike in recent decisions such as Baker v. Harcon, Inc., 303 Ga. App. 749, 753 (a) (i) (694 SE2d 673) (2010) (plaintiffs knowledge of location of trash chute through which he fell at issue) and Nosiri, supra, 301 Ga. App. at 381 (issue of fact as to plaintiffs knowledge that cord over which she tripped was a continuing hazard), Lackhouse’s knowledge of the hazard is not an issue for the jury. The retaining wall and the drop-off were an open and obvious static condition of which Lack-house had actual knowledge, and the danger posed by falling therefrom was both apparent and avoidable by the exercise of reasonable care. See Winchester v. Sun Valley-Atlanta Assoc., 206 Ga. App. 140 (424 SE2d 85) (1992) (owner not liable for injuries sustained by five-year-old child who fell over an obviously visible retaining wall); Laite v. Baxter, 126 Ga. App. 743, 747 (2) (191 SE2d 531) (1972) (“[n]o danger is more commonly realized or risk appreciated . . . than that of falling”) (punctuation omitted). It follows that the trial court correctly granted summary judgment to the defendants. See Roth v. Wu, 199 Ga. App. 665, 666 (1) (405 SE2d 741) (1991) (“[t]he true ground of liability is the landowner’s superior knowledge of the perilous condition and the danger therefrom to persons coming upon the property”) (citations and punctuation omitted).

2. The plaintiffs further contend that the trial court erred in granting summary judgment to the defendants on plaintiffs’ claims of negligence, negligence per se, and nuisance. We disagree.

(a) Plaintiffs argue that defendants had a duty to enclose or otherwise guard an excavation on their property “which lies in dangerous proximity to a public street or sidewalk as to afford one passing along the street or sidewalk, in the exercise of ordinary care, reasonable immunity against the danger of casually falling therein.” Smith v. Seawright, 33 Ga. App. 336 (126 SE 301) (1925). Assuming, but not deciding, that a 12-foot drop-off from the top of a static condition such as a retaining wall could be deemed an “excavation” for this purpose and that the defendants were required to guard it as such, “[bjreach of duty alone does not make a defendant liable in negligence. The rule remains that the true ground of liability is the superior knowledge of the property owner or occupier of the existence of a condition that may subject the invitee to an unreasonable risk of harm.” (Citation and punctuation omitted; emphasis in original.) Brazier v. Phoenix Group Mgmt., 280 Ga. App. 67, 70-71 (1) (a) (633 SE2d 354) (2006). See Sykes v. Colony Regency Partners, 226 Ga. App. 804, 806 (487 SE2d 408) (1997) (where plaintiff was injured in an excavation at issue was owner’s superior knowledge). As we found in Division 1, supra, the defendants did not have superior knowledge of the danger posed by the retaining wall.

(b) Plaintiffs contend that defendants were in violation of the state building code for failing to erect a guard against the sidewalk. But even assuming, without deciding, that plaintiffs are correct that the defendants were negligent per se in failing to comply with the building code, this does not impose liability where the owner lacks superior knowledge of the hazard. See Yasinsac v. Colonial Oil Properties, 246 Ga. App. 484, 486 (3) (541 SE2d 109) (2000) (“Even if [plaintiff] could show. . . negligence per se as a violation of the building code, she would be precluded from recovering because of the equal knowledge rule.”) (footnote omitted). Compare Johnston v. Ross, 264 Ga. App. 252, 253-254 (590 SE2d 386) (2003) (involving relationship between residential tenant and a landlord) with Trans-Vaughn Dev. Corp. v. Cummings, 273 Ga. App. 505, 509 (615 SE2d 579) (2005) (in light of plaintiffs knowledge of the defect, “summary judgment [to owner] is proper, irrespective of whether the rear entrance violated applicable building codes, and regardless of whether [owner] knew of these violations beforehand but did nothing about them”) (citations omitted).

(c) As to plaintiffs’ nuisance claim, it “stem[s] from defendants’ alleged failure to keep the premises safe and, essentially, constitute[s] a breach of the same duty to protect [Lackhouse].” Traicoff v. Withers, 247 Ga. App. 428, 429, n. 5 (544 SE2d 177) (2000). See Nemeth v. RREEF America, 283 Ga. App. 795, 797-798 (1) (643 SE2d 283) (2007) (summary judgment to defendant proper on plaintiffs premises liability and nuisance claims because defendant did not have superior knowledge of the hazard).

Decided November 10, 2010.

Kaplan & Seifter, Brad C. Kaplan, James I. Seifter, for appellants.

Drew, Eckl & Farnham, Barbara A. Marschalk, Downey & Cleveland, Joseph C. Parker, Gray, King, Chamberlain & Martineau, William E. Gray II, Hicks, Casey & Foster, Lisa K. Whitfield, Carlock, Copeland & Stair, Heather H. Miller, Hawkins, Parnell, Thackston & Young, Assunta S. Fiorini, Mabry & McClelland, David T. Markle, Brian C. McCarthy, Michael D. Birchmore, Laura V. Benesh, for appellees.

We conclude that the trial court did not err in granting summary judgment to defendants on plaintiffs’ negligence, negligence per se, and nuisance claims.

3. Plaintiffs argue that the trial court erred in finding insufficient evidence to support their claim for punitive damages. We disagree. “Since [plaintiffs] cannot recover on [their] underlying tort claims as a matter of law, there can be no punitive damages thereon.” (Citation and punctuation omitted.) Benefit Support v. Hall County, 281 Ga. App. 825, 833 (6) (637 SE2d 763) (2006).

4. The trial court also found that Lackhouse assumed the risk of his injuries as a matter of law. In view of the foregoing, however, we need not reach this issue.

Judgments affirmed.

Phipps, P. J., and Johnson, J., concur.

       In Case No. A10A1092, the plaintiffs appeal the trial court’s order granting summary judgment to Morganton. In Case No. A10A1093, the plaintiffs appeal the trial court’s separate order granting summary judgment to Tankersley, Angela T. Tankersley, Nix Arp Enterprises, Inc., Professional Janitorial Supply, Inc., Jerry D. Tammen, Jerry D. Tammen Charitable Trust U/T/A, and Serenity in the Mountains, Inc.

       The trial court’s separate grant of summary judgment to Morganton was based in part on its conclusion that the retaining wall was not located on Morganton’s property, although it “continued its analysis of liability for alleged negligence[ ] independent of ownership of the retaining wall.”

       The defendants do not admit any duty to Lackhouse arising out of their alleged joint ownership of the retaining wall and sidewalk, but the trial court only reached this issue in the order granting summary judgment to Morganton. Inasmuch as we conclude that the defendants are not liable for backhouse's injuries as an invitee on the premises, we need not consider whether the trial court erred in granting summary judgment to Morganton on the additional ground that the retaining wall was not located on its property.

       To the extent that plaintiffs contend that defendants are guilty of wilful and wanton conduct, see OCGA § 51-3-2 (b) (owner liable to licensee only for wilful or wanton injury), the test of liability, so long as an owner knows or reasonably should anticipate the presence of the injured party, remains the owner’s superior knowledge of the hazard. See McCullough v. Reyes, 287 Ga. App. 483, 487 (2) (651 SE2d 810) (2007).

       Viewed strictly as a slip-and-fall case, the plaintiffs also fail to satisfy the required elements reaffirmed in Robinson v. Kroger Co., 268 Ga. 735, 748-749 (493 SE2d 403) (1997): “(1) that the defendantfs] had actual or constructive knowledge of the hazard; and (2) that [Lackhouse] lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier.” Id. Plaintiffs argue that Lackhouse did not have knowledge of the hazard that caused his tire to slip, but they refuse to specify what that hazard might be. In the hearing on motion for summary judgment, the trial court also asked plaintiffs’ counsel, “So, there was nothing in the parking lot itself that would have caused anything to happen to his bicycle; is that what you’re saying to me?” Counsel responded, “The way you’re framing that, yes.”


text:
    A10A1427.
    SCOGGINS v. THE STATE.
    (703 SE2d 356)
   Miller, Chief Judge.

Matthew A. Scoggins was convicted at a stipulated bench trial upon one count of driving under the influence of alcohol to the extent he was a less safe driver (OCGA § 40-6-391 (a) (1)) and one count of driving under the influence of alcohol with an unlawful concentration of alcohol (OCGA § 40-6-391 (a) (5)). Upon entering its findings, the trial court merged the DUI per se offense with the DUI less safe offense, and found Scoggins guilty beyond a reasonable doubt of DUI less safe. On appeal, Scoggins challenges the sufficiency of the evidence, arguing (i) that the trial court erred in admitting the results of the State-administered breath test, and (ii) that such results were inadmissible under the implied consent law because the arresting officer lacked probable cause to arrest him under the DUI statute, OCGA § 40-6-391. Discerning no error, we affirm.

When evaluating the sufficiency of evidence, the proper standard for review is whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. This Court does not reweigh evidence or resolve conflicts in testimony; instead, evidence is reviewed in a light most favorable to the verdict, with deference to the jury’s assessment of the weight and credibility of the evidence. Resolving evidentiary conflicts and inconsistencies, and assessing witness credibility, are the province of the factfinder, not this Court.

(Punctuation and footnote omitted.) Lyons v. State, 300 Ga. App. 254, 255 (1) (684 SE2d 388) (2009).

So viewed, the evidence shows that Officer T. K. Heller of the Gwinnett County Police Department was dispatched to a county neighborhood upon reports that the driver of a silver Nissan Xterra was firing a weapon out the driver’s side window of a moving vehicle. Upon reaching the neighborhood, Officer Heller observed a Nissan Xterra matching the description he had been given backing out of a driveway, prompting him to activate his blue lights and initiate a stop. After being brought to a stop, Scoggins exited his vehicle. Officer Heller ordered Scoggins to place his hands in the air and walk backward toward his patrol vehicle where he handcuffed Scoggins, heard him say “I’m not going to lie, it was me[,]” formally arrested him for the offense of illegal discharge of a firearm near a public street, and placed him in the rear seat of his patrol vehicle.

In the search of the vehicle that followed, Officer Heller found an alcoholic beverage in the front cup holder, a firearm under the driver’s seat, and a shell casing on the ground between the driver’s seat and the door. Asked if anybody else had been in the vehicle with him, Scoggins responded in the affirmative and stated that his passenger, Denver Gray, had gone into the nearby residence. Officer Heller then proceeded to the residence and interviewed Gray who told him that he and Scoggins had consumed two pitchers of beer earlier; that he had been Scoggins’ passenger; and that Scoggins fired his gun from the Xterra as reported.

In other testimony, Officer Heller stated that Scoggins had bloodshot eyes, that he smelled of alcohol, and that he was very nervous. Given the foregoing and absent any field sobriety testing, Officer Heller concluded that Scoggins was under the influence of alcohol. Officer Heller then read Scoggins the implied consent warning for persons over 21 years of age. Scoggins consented to a State-administered breath test and was transported to the county jail where such test was administered, the results of which were 0.167 and 0.168, respectively. In this regard, the breath test operator, Deputy Kevin Casal, testified that he had not retained the original or a copy of the intoxilyzer slip. In lieu thereof, he read the test results from the log book in which he had recorded the test results immediately after the test was concluded.

1. Scoggins contends that the trial court erred in admitting the results of the State-administered breath test as recorded in the log book for violation of the best evidence rule upon the State’s failure to introduce the intoxilyzer slip in evidence. Finding waiver, we disagree.

Scoggins failed to object to the admission in evidence of the log book at the trial court’s pretrial suppression hearing and at the stipulated bench trial. “To preserve an objection upon a specific ground for appeal, the objection on that specific ground must be made at trial, or else it is waived.” (Footnote omitted.) Mintz v. State, 273 Ga. App. 211, 212 (615 SE2d 152) (2005). We will not reverse a trial court’s decision to admit evidence unless the party objecting shows error triangulation, that is, “(1) error, (2) contemporaneous objection, and (3) harm as a result of the error.” (Footnote omitted.) Yang v. Washington, 256 Ga. App. 239, 243 (2) (c) (568 SE2d 140) (2002). Inasmuch as Scoggins failed to preserve this objection by contemporaneous objection at trial, the issue is waived on appeal. Holloway v. State, 278 Ga. App. 709, 713 (4) (629 SE2d 447) (2006).

2. Scoggins claims that the results of the breath test were inadmissible because he was arrested for the offense of unlawfully discharging a firearm near a public street rather than upon acts constituting probable cause to arrest for an offense under the DUI statute. We are not persuaded.

This Court has held that bloodshot eyes and the odor of alcohol about one’s person, if observed by a police officer, are sufficient to establish probable cause to arrest for driving under the influence. See Cann-Hanson v. State, 223 Ga. App. 690, 691 (1) (478 SE2d 460) (1996) (“Even in the absence of the field sobriety tests, the officer’s observation that Cann-Hanson had bloodshot, watery eyes and exuded an odor of alcohol was sufficient to show probable cause to arrest him for driving under the influence.”) (citations omitted). In addition to such evidence in this case, there was evidence that Scoggins discharged a firearm from a moving vehicle; that he and his passenger had been drinking before the stop; an open container was found in the car; a gun was discovered under the driver’s seat; and a spent cartridge was found on the ground just beyond the driver’s seat. Given the foregoing, we conclude that Officer Heller had probable cause to arrest Scoggins for the offense of DUI less safe. Id. Consequently, Scoggins was properly informed of his implied consent rights. Further, “[t]he coincidence of probable cause to arrest [Scoggins] for a violation of the DUI statute and [Scoggins’] actual arrest meant that [Scoggins] was, as a matter of law, arrested for an offense arising out of acts alleged to have been committed in violation of the DUI statute.” (Punctuation and footnote omitted.) State v. Underwood, 283 Ga. 498, 501 (661 SE2d 529) (2008).

Decided November 10, 2010.

Ramon Alvarado, Kavan S. Grover, for appellant.

Barry E. Morgan, Solicitor-General, Erica K. Dove, Assistant Solicitor-General, for appellee.

" Given the foregoing, we conclude that the factfinder could have found Scoggins guilty beyond a reasonable doubt of the offense of DUI less safe.

Judgment affirmed.

Phipps, P. J., and Johnson, J., concur.


author: ANDREWS, Presiding Judge.

text:
    A10A1677.
    VOLZ v. THE STATE.
    (703 SE2d 354)
   ANDREWS, Presiding Judge.

Carlton Martin Volz III was indicted for the felony offense of failing to comply with requirements of OCGA § 42-1-12 relating to the state sexual offender registry. The indictment charged that, after he registered his residence address as a sexual offender with the sheriff of Lowndes County in accordance with the statute, he “fail[ed] to notify the [s]heriff of Lowndes County of his change of address within 72 hours of said change.” Volz appeals from the trial court’s pre-trial denial of his “Special Demurrer Motion To Quash Indictment” in which he claimed that OCGA § 42-1-12 is unconstitutionally vague as applied to the charged offense. For the following reasons, we find that the trial court did not err by denying the motion.

Volz’s motion sought an order quashing or dismissing the indictment prior to trial on the basis that he was homeless and had no residence address during the time the indictment alleged that he violated OCGA § 42-1-12 (f) (5) by failing to timely notify the sheriff of his “change of address.” Volz claims the decision in Santos v. State, 284 Ga. 514 (668 SE2d 676) (2008), controls this issue and required that the indictment be dismissed. Santos addressed the provisions of OCGA § 42-1-12 (f) (5) requiring an offender to update changes in registration information, and considered the application of those provisions to an offender who registered residence address information with the local county sheriff as required, but later left that residence address and became homeless with no residence address in the same county. Santos noted the requirement in OCGA § 42-1-12 (f) (5) that registered sexual offenders report within 72 hours “any change” to the required registration information, and the requirement that, if the updated information is the offender’s new residence address, the offender must give the information to the sheriff of the county with whom the offender last registered within 72 hours prior to any change of residence address and to the sheriff of the county to which the offender is moving within 72 hours after establishing the new residence. Santos, 284 Ga. at 515. Santos compared those requirements with the definition of “address” in OCGA § 42-1-12 (a) (1), which states that the term “means the street or route address of the sexual offender’s residence,” and that, “for purposes of [this] Code section, the term does not mean a post office box, and homeless does not constitute an address.” (Punctuation omitted.) Santos, 284 Ga. at 515. Santos found that the statute “contains no objective standard or guidelines that would put homeless sexual offenders without a street or route address on notice of what conduct is required of them, thus leaving them to guess as to how to achieve compliance with the statute’s reporting provisions,” and concluded that the requirements of the statute with respect to reporting the offender’s residence address were unconstitutionally vague as applied to homeless offenders without a street or route address. Id. at 516-517. Finally, Santos took note that the sexual offender in that case was charged with failing to comply with the reporting requirements of OCGA § 42-1-12 (f) (5) by failing to timely report “a new address” to the local sheriff, and that undisputed facts or facts stipulated by the parties established that the offender was homeless from the date that he left his registered residence address until the date he was arrested, and that, during that period, he had no street or route address that satisfied the definition of “address” as set forth in OCGA § 42-1-12 (a) (1). Santos, 284 Ga. at 515-516. Accordingly, Santos held on those facts that the trial court erred by denying the motion to quash the indictment because “the challenged registration requirement is too vague to be enforced against Santos and is, therefore, unconstitutional under the due process clauses of the Georgia and United States Constitutions.” Id. at 517.

The present case is like Santos because it is undisputed that Volz was a sexual offender required to register under OCGA § 42-1-12; that, after he registered a residence address with the sheriff of Lowndes County, he left that address and gave no notice to the sheriff pursuant to OCGA § 42-1-12 (f) (5) before or after he left; and that he was subsequently arrested in Lowndes County and charged with failing to timely report a “change of address.” But this case is unlike and not controlled by Santos because there are no undisputed facts or stipulations establishing that Volz was homeless and had no street or route address during the period after he left the registered residence address until he was arrested. It follows that, at trial, the State may disprove Volz’s contentions by producing evidence sufficient to prove that, unlike the sexual offender in Santos, Volz was not homeless and without a street or route address during the applicable time period.

We know of no rule of law that would permit an indictment to be quashed on the ground that the state’s subsequent proof might not authorize a conviction for the offense charged in the indictment. Such a rule would be incapable of application for the reason that at this stage of the proceedings — post indictment, pre-trial — no one knows what the state’s proof will show.

Foster v. State, 239 Ga. 302, 303 (236 SE2d 644) (1977).

The trial court denied Volz’s motion on the basis that, “[d]espite Defendant’s assertion that he was homeless, he was not relieved of his obligation to register with the Lowndes County Sheriffs Office and notify the Sheriff that he had vacated his previously registered address.” The State contends that the trial court’s ruling correctly recognizes that OCGA § 42-1-12 (f) (5) provided that Volz was required to “[u lpdate the required registration information with the sheriff of the county in which the sexual offender resides within 72 hours of any change to the required registration information, other than [residence address].” The State argues that, when Volz left his registered resident address, this was a change in his required registration information (other than a new residence address) that he was required under OCGA § 42-1-12 (f) (5) to report to the sheriff within 72 hours, even if he was homeless and had no address after leaving. We do not consider this contention because the indictment does not charge Volz with failing to report the loss of a resident address. Volz was indicted for failing to timely notify the sheriff of his “change of address.” It follows that Volz cannot be convicted of the charged offense in the absence of proof distinguishing his case from Santos by showing that he had a new residence address at some point after leaving his prior registered address. See Santos, 284 Ga. at 518-519 (Carley, J., dissenting). Although the trial court denied Volz’s motion for the wrong reason, we affirm under the right for any reason rule. See Fincher v. State, 276 Ga. 480, 481 (578 SE2d 102) (2003).

Decided November 10, 2010.

Brittney Coons-Long, for appellant.

J. David Miller, District Attorney, Laura A. Wood, Assistant District Attorney, for appellee.

Judgment affirmed.

Ellington and Doyle, JJ., concur.

       The motion constitutes a general demurrer since it claims that the indictment is fatally defective. State v. Eubanks, 239 Ga. 483, 485-486 (238 SE2d 38) (1977).


text:
    A10A1740.
    BARCLAY v. THE STATE.
    (702 SE2d 907)
   Miller, Chief Judge.

A jury convicted Jerry Barclay of two counts of child molestation (OCGA § 16-6-4 (a) (1)), Counts 1 and 5, respectively, two counts of aggravated child molestation (OCGA § 16-6-4 (c)), Counts 2 and 3, respectively, and one count of aggravated sodomy (OCGA § 16-6-2 (a) (2)), Count 4. Barclay appeals contending that the trial court erred (i) in admitting the videotaped interview of his three-year-old son, C. B., and (ii) in failing to merge Counts 1, 2, and 4 into Count 3 as a matter of fact and law.

“[T]he admission of evidence is a matter which rests largely within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion.” (Citations and punctuation omitted.) Gosier v. State, 241 Ga. App. 384, 386 (1) (526 SE2d 890) (1999).

Viewed in the light most favorable to the verdict (Cross v. State, 285 Ga. App. 518, 519 (646 SE2d 723) (2007)), the evidence shows that Barclay’s eight-year-old stepdaughter, A. R. H., told her aunt and father that Barclay had fondled her anus and vagina during the two-year period she lived with Barclay and her mother. Her aunt called the Wilkinson County Department of Family and Children Services (“DFCS”) to report what A. R. H. said had been done. After receiving the aunt’s complaint, DFCS workers had A. R. H. and C. B. interviewed on videotape by specially trained personnel and examined by a doctor to determine if they had been sexually abused. During her interview and at trial, A. R. H. confirmed that Barclay had touched her vaginal and anal areas inappropriately. When C. B. was interviewed, he stated that Barclay had “hurt his bootie.” A medical examination of C. B. revealed anal scarring consistent with sexual abuse. Police investigation and Barclay’s arrest and prosecution followed.

1. Barclay contends that the trial court abused its discretion in admitting into evidence the videotaped interview of his three-year-old son, C. B. We disagree.

The Child Hearsay Statute as set out in OCGA § 24-3-16 provides that the out-of-court statement of a

child under the age of 14 years describing any act of sexual contact or physical abuse performed with . . . the child is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of tbe statement provide sufficient indicia of reliability.

Although C. B. was available to testify and did so subject to cross-examination which was declined, the trial court conducted a Gregg hearing to determine whether the videotaped interview of C. B. should be admitted in evidence. See Gregg v. State, 201 Ga. App. 238, 240 (3) (a), (b) (411 SE2d 65) (1991) (child’s out-of-court statement properly admitted if supported by sufficient evidence of indicia of reliability based upon such factors as the circumstances under which the statement was made, the child’s age and general demeanor, whether the statement was voluntarily given or given upon coaching, the nature of the child’s statement as consistent with that of a child, and/or with other out-of-court statements).

Here, the trial court viewed the videotape and based on the evidence adduced at its hearing, found that it reflected the requisite degree of trustworthiness; that C. B. spontaneously gave the interview; that C. B. was interviewed by a qualified forensic interviewer who was not employed as a law enforcement officer; that coaching was not indicated; and that C. B. used the word “bootie” knowingly in reference to his buttocks. The Gregg factors are to be “applied neither in mechanical nor mathematical fashion, but in that manner best calculated to facilitate determination of the existence or absence of the requisite degree of trustworthiness.” (Citations and punctuation omitted.) Ferreri v. State, 267 Ga. App. 811, 813 (600 SE2d 793) (2004). “A trial court has broad discretion to determine the admissibility of [child hearsay], and we will not reverse its ruling absent an abuse of discretion.” (Footnote omitted.) Simmons v. State, 291 Ga. App. 642, 644 (1) (662 SE2d 660) (2008). We find no abuse of discretion upon the admission of the complained of videotape in this case. Id.; Gosier, supra, 241 Ga. App. at 386 (1).

Accordingly, the instant claim of error is without merit.

Decided November 10, 2010.

L. Elizabeth Lane, for appellant.

2. Further, Barclay contends, and the State concurs, that the trial court erred in failing to merge Counts 1,2, and 4 into Count 3 as a matter of fact and law. We agree.

The “required evidence test” is applicable as to whether merger is proper on sentencing. Specifically, “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” (Punctuation and footnote omitted.) Drinkard v. Walker, 281 Ga. 211, 215 (636 SE2d 530) (2006); OCGA § 16-1-6 (1).

Count 1 (child molestation) alleged that Barclay intentionally exposed his penis in the immediate presence of C. B., a child under 16, with the intent to arouse Barclay’s sexual desires. Count 2 (aggravated child molestation) alleged that Barclay had anal intercourse with C. B., a child under 16, with the intent to arouse Barclay’s sexual desires, such act involving an act of sodomy, namely Barclay’s sex organ and C. B.’s anus. Count 3 (aggravated child molestation) alleged that Barclay had anal intercourse with C. B., a child under 16, with the intent to arouse Barclay’s sexual desires, said act causing physical injury to C. B. Count 4 (aggravated sodomy) alleged that Barclay had anal intercourse with C. B., said act involving Barclay’s penis and the anus of C. B., a child under the age of ten, said act being done with force and against C. B.’s will. Each of the charges was alleged to have occurred in the same time frame, and it is undisputed that the offenses arose out of the same conduct of Barclay. Clearly, Barclay could not be sentenced for both Count 2 and Count 3 since these charged the same offense by alternative means. Hogan v. State, 178 Ga. App. 534, 535-536 (343 SE2d 770) (1986). Count 1 is a lesser included offense of Count 2 (Foster v. State, 254 Ga. App. 255, 255-256 (2) (562 SE2d 191) (2002)), and Count 2 merges into Count 3. Drinkard, supra, 281 Ga. at 215. Finally, because proof of sodomy as alleged by Count 4 was necessary to prove aggravated child molestation as alleged by Count 3, Count 4 merges with Count 3. Howard v. State, 281 Ga. App. 797, 803 (4) (637 SE2d 448) (2006).

In light of the foregoing, we vacate the conviction and sentence for aggravated sodomy and remand the case for resentencing with direction to merge Counts 1, 2, and 4 into Count 3.

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

Phipps, P. J., and Johnson, J., concur.

Fredric D. Bright, District Attorney, Shelley S. Tice, Assistant District Attorney, for appellee.


text:
    A10A2236.
    A10A2312.
    WATKINS v. THE STATE. THOMAS v. THE STATE.
    (702 SE2d 904)
   Miller, Chief Judge.

A jury found Roderick Watkins and Reginald Thomas guilty of one count of aggravated assault (OCGA § 16-5-21 (a) (2)) and one count of aggravated battery (OCGA § 16-5-24 (a)). In Case No. A10A2236, Watkins appeals challenging the sufficiency of the evidence as to his conviction of aggravated assault. Further, he contends that the trial court erred in refusing to charge the jury on justification and on reckless conduct as a lesser included offense of aggravated assault. In Case No. A10A2312, Thomas appeals claiming that the trial court erred in failing to merge his aggravated assault conviction into that of aggravated battery. Discerning no error, we affirm in both cases.

Viewed in the light most favorable to the jury’s verdict (Cross v. State, 285 Ga. App. 518, 519 (646 SE2d 723) (2007)), the evidence shows that on June 25, 2005, Watkins and Thomas went to a barbecue in a DeKalb County park with their girlfriends, Chantel Myhan and Teneicha Crumbley, respectively. At the park, Watkins and Thomas sat in Crumbley’s vehicle while the two women got out to socialize. As the women did so, Dwynell Jones approached Watkins and Thomas and entered into an argument with Watkins. Hearing the altercation, Myhan and Crumbley decided that it was time to leave the park. As they approached the scene of the dispute, Watkins told Myhan that Jones had threatened to “shoot up the truck.” When Crumbley began backing out of the park, Watkins began firing a handgun out his window into the crowd, Jones standing in it. Thomas joined in, firing his handgun from his window in the same direction. Calvin Hill, who was among those present at the scene, was struck by a bullet in the head — the wound blinding him. Myhan and Crumbley later identified Watkins and Thomas as the shooters, and their arrest followed.

Case No. A10A2236

1. Watkins claims that the evidence was insufficient to support his conviction of aggravated assault because the State’s evidence failed to establish that he intended to assault Hill or that his actions placed Hill in reasonable apprehension of receiving a violent injury. We are unpersuaded.

Contrary to Watkins’ claim on appeal, he cannot prevail because he did not intend to shoot Hill.

Under the doctrine of transferred intent, when an unintended victim is struck down as a result of an unlawful act actually directed against someone else, the law prevents the actor from taking advantage of his own wrong and transfers the original intent from the one against whom it was directed to the one who actually suffered from it.

(Citations and punctuation omitted.) Happoldt v. State, 267 Ga. 126, 127 (1) (b) (475 SE2d 627) (1996). It is not otherwise as to Watkins’ argument that he cannot be convicted of aggravated assault because Hill was not in apprehension of receiving a violent injury. See Goforth v. State, 271 Ga. 700, 701-702 (3) (523 SE2d 868) (1999). (“[W]here[, as here,] the assault at issue consists of an attempt to commit a violent injury to the person of another, awareness on the part of the victim is not an essential element of the crime.”) (citation and punctuation omitted).

Given the foregoing, the evidence was sufficient to enable a rational trier of fact to find Watkins guilty beyond a reasonable doubt of aggravated assault. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Watkins claims that the trial court erred by refusing to give his requested jury charges on justification and reckless conduct as a lesser included offense of aggravated assault. Following its charge to the jury, the trial court inquired as to whether there were any objections to the instructions given, and trial counsel responded in the negative. “The failure to voice an objection or to reserve objection at trial constitutes waiver of appellate review of the issue.” (Citation omitted.) Nelson v. State, 283 Ga. 119, 121 (3) (657 SE2d 201) (2008). Further, since Watkins’ counsel expressly agreed to the charge as given, Watkins may not now complain of it. See Stinchcomb v. State, 280 Ga. 170, 173 (4) (626 SE2d 88) (2006) (party may not complain of error he or she helped induce).

Case No. A10A2312

3. Thomas contends the trial court erred in failing to merge the aggravated assault and aggravated battery convictions. The offenses, however, were established by proving different facts and for that reason they do not merge. Under OCGA § 16-1-7 (a) (1), when the same conduct establishes the commission of more than one crime, a defendant may be prosecuted for both crimes, but cannot be convicted of more than one crime if one crime is included in the other. For purposes of merger,

Decided November 10, 2010.

one crime is included in another if either it is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the other crime charged or if the included crime differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person or a lesser kind of culpability suffices to establish its commission.

(Citations and punctuation omitted.) Robbins v. State, 293 Ga. App. 584, 585 (667 SE2d 684) (2008). The applicable test is whether each offense “requires proof of a fact which the other does not.” (Punctuation and footnote omitted.) Id. This is such a case.

“A person commits the offense of aggravated assault when he or she assaults . . . [w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” OCGA § 16-5-21 (a) (2). Thomas was found guilty of this offense because there was evidence that he assaulted the victim by firing a handgun into the crowd of which the victim was a part. A person commits aggravated battery when he maliciously causes bodily harm to the victim by rendering a member of her body useless. OCGA § 16-5-24 (a). “Every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime.” OCGA § 16-2-20 (a). Mere presence at the scene of the commission of a crime is insufficient to convict one as a party thereto (Bogan v. State, 158 Ga. App. 1, 2 (279 SE2d 229) (1981)); however, Thomas was an active participant therein. Although the evidence does not establish whose weapon wounded the victim, it does establish that the victim lost his eyesight due to a gunshot wound to the head as a consequence of shots fired by both Watkins and Thomas, this warranting Thomas’ conviction of aggravated battery as at least a party thereto. Since aggravated assault and aggravated battery are two separate offenses with different elements of proof, the charges do not merge, and it is irrelevant that both crimes stemmed from a single act. Works v. State, 301 Ga. App. 108, 114 (6) (686 SE2d 863) (2009). Accordingly, the trial court did not err in refusing to merge the two convictions.

Judgments affirmed.

Phipps, P. J., and Johnson, J., concur.

Lee W. Fitzpatrick, for appellant (case no. A10A2236).

Carl P. Greenberg, for appellant (case no. A10A2312).

Gwendolyn Keyes Fleming, District Attorney, Daniel J. Quinn, Assistant District Attorney, for appellee.


author: Ellington, Judge.

text:
    A10A2311.
    SANTOS v. THE STATE.
    (703 SE2d 140)
   Ellington, Judge.

Following a bench trial, the Superior Court of DeKalb County found Jorge Santos guilty beyond a reasonable doubt of obstructing or hindering a law enforcement officer in the lawful discharge of his official duties, OCGA § 16-10-24 (a), for attempting to elbow the officer in the face, and battery, OCGA § 16-5-23.1, for wrestling with the officer and causing bruises to his shin and knee. On appeal, Santos contends that the allegedly criminal acts occurred during an illegal detention and that the trial court erred in denying his motion in limine to exclude all evidence that flowed from that illegal detention, specifically, the officer’s testimony about Santos’ conduct after that illegal detention began. In addition, Santos contends that he was justified in “resisting being illegally detained] with the minimal force that he used,” and, therefore, that the evidence was insufficient to convict him of obstruction or battery. For the reasons explained below, we affirm.

1. Because the trial court sits as the trier of fact when ruling on a motion to suppress or a motion in limine,

its findings based upon conflicting evidence are analogous to a jury verdict and should not be disturbed by a reviewing court if there is any evidence to support them. When we review a trial court’s decision on such motions to exclude evidence, we construe the evidence most favorably to uphold the findings and judgment, and we adopt the trial court’s findings on disputed facts and credibility unless they are clearly erroneous. When the evidence is uncontroverted and no question of witness credibility is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review. With mixed questions of fact and law, the appellate court accepts the trial court’s findings on disputed facts and witness credibility unless clearly erroneous, but independently applies the legal principles to the facts.

(Citations and punctuation omitted.) State v. Tousley, 271 Ga. App. 874 (611 SE2d 139) (2005).

Viewed in the light most favorable to the trial court’s findings, the record shows the following facts. On April 22, 2009, a police officer was working an off-duty security job at an apartment complex where there had been a lot of drug activity as well as pedestrian robberies, homicides, and home invasions. The officer was dressed in his police uniform, and he was driving a marked patrol car. At approximately 11:00 p.m., Santos and two other men walked by the police car. The officer got out and asked if Santos lived in the complex. The three men stopped walking, and Santos answered that he did live there, but he could not give a specific address. Santos acted nervous and became fidgety with his hands. The officer told Santos, who was wearing baggy clothing, to keep his hands where the officer could see them. Santos continued to fidget with his hands, and then he put them in his jacket pockets. The officer again told Santos to keep his hands out where the officer could see them. Santos took off his jacket and threw it on the patrol car, but then he again put his hands in his pockets.

At that point the officer became concerned for his own safety. The officer testified that, although Santos did not verbally threaten him or “ball[ ] up his fist at” him,

[Santos’] hand motions made me feel threatened. . . . He continued with his actions after I told him several times [to keep his hands where I could see them]. It made me feel like my safety may be jeopardized because he would not show me his hands, he kept fidgeting with his hands, appeared to be nervous. ... So at that point in time when he continued not to comply with[, “]sir, keep your hands out of your pocket, please,[”] ... I felt [it was] necessary to pat him down for my safety . . . [b]ecause I [did not] know what he [was] reaching for[.]

The officer told Santos to put his hands behind his head, grabbed Santos, and began to pat him down. As soon as the officer touched Santos’ pocket, Santos abruptly turned and almost hit the officer in the face with his elbow. The officer then subdued Santos after a brief struggle and placed him under arrest.

As we have discussed many times,

United States Supreme Court holdings sculpt out, at least theoretically, 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.

(Citation, punctuation and footnote omitted.) Brown v. State, 301 Ga. App. 82, 84 (686 SE2d 793) (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 [him 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.) Thomas v. State, 301 Ga. App. 198, 200-201 (1) (687 SE2d 203) (2009).

An encounter that begins as first tier may escalate into a detention that comes within the ambit of the Fourth Amendment. State v. Taylor, 226 Ga. App. 690, 691 (487 SE2d 454) (1997). Examples of circumstances that might indicate a second-tier detention include “the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating compliance with the officer’s request might be compelled.” (Punctuation and footnote omitted.) Cutter v. State, 274 Ga. App. 589, 592 (1) (617 SE2d 588) (2005). “Before [an officer] places a hand on the person of a citizen in search of anything, he must have constitutionally adequate, reasonable grounds for doing so.” (Citation and punctuation omitted.) Molina v. State, 304 Ga. App. 93, 95 (695 SE2d 656) (2010). If an officer conducts a pat-down for weapons without sufficient justification, any evidence discovered is inadmissible under the exclusionary rule. Terry v. Ohio, 392 U. S. 1, 11-13 (88 SC 1868, 20 LE2d 889) (1968). Constitutionally adequate, reasonable grounds for a pat-down for weapons for officer or bystander safety are present when, based on particular and articulable facts, the officer actually and reasonably suspects that the individual is armed and dangerous or is otherwise a threat to personal safety. Id. at 25 (III); Molina v. State, 304 Ga. App. at 93.

Santos contends that in this case the trial court erred in finding that a second-tier detention was justified under the applicable standard. In support of this argument, Santos contends that, just as a citizen in a first-tier encounter is free to decline an officer’s request to stop and talk, a citizen is free to refuse any other request, including to keep his or her hands visible. This position is too extreme. Although a person is free to walk or run away from an officer during a first-tier encounter, a person who chooses instead to stop and talk to the officer may by menacing conduct during that first-tier encounter give rise to a reasonable suspicion that he or she poses a threat to personal safety. Terry v. Ohio, 392 U. S. at 25 (III).

In this case, the trial court, which had the opportunity to observe the officer as he testified and make a credibility determination, concluded that a pat-down of weapons was supported by the requisite facts. This Court does not weigh the evidence and cannot judge the credibility of witnesses. Simpson v. State, 263 Ga. App. 496, 500 (588 SE2d 445) (2003). We conclude that the evidence before the trial court authorized the court to find that, at the moment the consensual encounter escalated into a second-tier detention, the officer actually believed that Santos posed a threat to the officer’s personal safety and that such belief was reasonable considering all of the circumstances, including Santos’ repeated refusal to keep his hands away from the pockets of his baggy clothes, his nervous demeanor, the presence of his two companions, and the officer’s knowledge of the pattern of violent crime in the apartment complex. It follows that a second-tier Terry frisk did not constitute an illegal detention. Sudduth v. State, 288 Ga. App. 541, 542 (1) (654 SE2d 446) (2007) (An officer was justified in conducting a pat-down during a traffic stop after he observed the driver, who was searching for her driver’s license, reach into a bag, cup her hand, slide her hand into the pocket of her pants, and then repeatedly refuse to remove her hand from her pocket when requested, which caused the officer to become extremely concerned for his safety.). Finding no clear error, we uphold the trial court’s denial of Santos’ motion in limine. Cutter v. State, 274 Ga. App. at 592 (1).

Decided November 10, 2010.

Gerard B. Kleinrock, for appellant.

Gwendolyn Keyes Fleming, District Attorney, Leonora Grant, Assistant District Attorney, for appellee.

2. Santos’ argument that the evidence was insufficient to convict him of obstruction or battery depends on his argument that, when he swung his elbow toward the officer’s face and wrestled with the officer, he was being illegally detained. Because the evidence authorized the trial court to find that the detention was not illegal, however, for the reasons explained in Division 1, supra, his sufficiency argument provides no basis for reversing his convictions.

Judgment affirmed.

Andrews, P. J., and Doyle, J., concur.

       Cf. Brown v. State, 301 Ga. App. at 84-85 (A first-tier encounter escalated to a second-tier detention when the officer asked the defendant to take his hands out of his pockets, asked if he had any weapons, and, after the defendant replied “Yes,” and then quickly changed his answer to “No,” drew his weapon.); Johnson v. State, 231 Ga. App. 273 (498 SE2d 359) (1998) (physical precedent only) (A first-tier encounter escalated to a second-tier detention when the officer ordered the defendant out of the vehicle in which she was seated, repeatedly insisted that she remove her hands from her pockets, asked for her identification, and, when the defendant responded, “do I have to,” seized the person of the defendant.); State v. Banks, 223 Ga. App. 838, 839-840 (479 SE2d 168) (1996) (physical precedent only) (A first-tier encounter escalated to a second-tier detention when the officer demanded that the defendant take his hand out of his pocket and then immediately patted him down.).

       Cf Molina v. State, 304 Ga. App. at 93 (The trial court erred in denying the defendant’s motion to suppress where, during a traffic stop, an officer patted down the driver, who consented to a search of his car, based on a general policy of frisking anyone who will be standing outside a vehicle during such a search and not based on any information specific to the driver that he might be armed or otherwise pose a threat to the officer’s safety.); State v.

        Brown, 278 Ga. App. 457, 461-462 (629 SE2d 123) (2006) (The trial court did not err in granting the defendant’s motion to suppress where the evidence authorized the trial court to find, after assessing the officer’s credibility, that the officer did not actually believe that the defendant was a threat to the officer’s personal safety when the officer pulled the defendant’s hand out of his pocket, patted him down, and looked inside the pocket.); State v. Holmes, 240 Ga. App. 332, 333-334 (525 SE2d 698) (1999) (The trial court erred in denying the defendant’s motion to suppress where two officers frisked the defendant, who was standing in the yard of a house to be searched pursuant to a warrant, based on a general policy to pat down everyone present when executing a search warrant and not based on any concern for officer safety.); State v. Banks, 223 Ga. App. at 840-842 (The trial court erred in denying the defendant’s motion to suppress where the officer demanded that the defendant take his hand out of his pocket and then immediately patted him down, where there was no evidence that the officer was concerned for his safety before the pat-down.).

       See Sidner v. State, 304 Ga. App. 373, 376 (3) (696 SE2d 398) (2010) (A police officer is not discharging his or her lawful duty when the officer arrests an individual without reasonable or probable cause. Because a person has the right to resist an unlawful arrest, a person who resists an illegal arrest with no more force than is necessary for that purpose cannot be convicted of obstruction based on such resistance.).


author: Doyle, Judge.

text:
    A10A1403.
    GILBERT v. THE STATE.
    (703 SE2d 374)
   Doyle, Judge.

Michael Gilbert was convicted of armed robbery. He appeals following the denial of his motion for new trial, arguing that the trial court erred by conferring use immunity on his co-defendant. For the following reasons, we affirm.

Gilbert was charged with armed robbery, as were his two co-defendants, Jordan Laing and Major Chapman. Laing and Gilbert were tried separately, and both appealed their convictions. We affirmed Laing’s conviction in Laing v. State. In the instant case, the State presented evidence that on February 17, 2007, Gilbert, Laing, and Chapman discussed “hitting a lick,” or committing an armed robbery. That same day, Gilbert, who was wearing a bandana over his face, approached the victim at an automated teller machine (“ATM”), pointed a gun at his face, and forced him to retrieve money from the ATM, while Laing and Chapman waited nearby. Shortly thereafter, police apprehended Laing and Gilbert in a minivan in the apartment complex behind the ATM. Gilbert had a bandana and $40 in cash on him when he was arrested, and the police recovered a gun from the minivan.

Both Laing and Chapman testified in the instant case, detailing Gilbert’s involvement in the crime. Laing, who had already been tried and convicted and was awaiting a ruling on his motion for new trial, was compelled to testify at Gilbert’s trial in exchange for use immunity.

In a single enumeration of error, Gilbert contends that the trial court erred by granting Laing use immunity. OCGA § 24-9-28 (a) provides that

[wjhenever in the judgment of the Attorney General or any district attorney the testimony of any person or the production of evidence of any kind by any person in any criminal proceeding before a court or grand jury is necessary to the public interest, the Attorney General or the district attorney may request the superior court in writing to order that person to testify or produce the evidence. . . . Any order entered under this Code section shall be entered of record in the minutes of the court so as to afford a permanent record thereof; and any testimony given by a person pursuant to such order shall be transcribed and filed for permanent record in the office of the clerk of the court.

Gilbert contends that the grant of use immunity to Laing was “procedurally ineffective” because it failed to comply with the requirements of OCGA § 24-9-28 (a) as follows: (1) the State’s request for immunity for Laing was not in writing; (2) the State did not demonstrate or even argue that Laing’s testimony was “necessary to the public interest”; and (3) the trial court’s grant of use immunity was neither written nor “filed for permanent record in the office of the clerk of the court.” This argument presents no basis for reversal.

Gilbert did not object at trial when the State sought and the trial court granted use immunity to Laing. Instead, when questioned about whether Laing had retained counsel, Gilbert’s trial counsel responded, “I was not able to speak to [Laing’s attorney], . . . and I believe . . . that since [Laing’s motion for new trial] is pending, your Honor, that it’s up to the defendant here whether or not he wants to testify.” And when given an opportunity to respond to the State’s request for use immunity, Gilbert’s trial counsel also stated, “We will defer to your Honor.” By failing to object at trial, Gilbert has waived any argument he might have regarding the trial court’s grant of use immunity to Laing. “No matter how erroneous a ruling of a trial court might be, a litigant cannot submit to a ruling or acquiesce in the holding, and then complain of the same on appeal. He must stand his ground. Acquiescence deprives him of the right to complain further.” Thus, this case presents nothing for us to review.

Notwithstanding Gilbert’s waiver, however, his argument is without merit because Gilbert has no standing to contest the grant of use immunity to Laing. In King v. State, the defendant argued that the trial court erred by conducting a hearing outside of his presence to determine whether a witness should be compelled to testify against him in exchange for use and derivative use immunity. The Supreme Court of Georgia explained that the immunity hearing for the witness was not a part of the proceedings against the defendant, holding that

[w]hile [the defendant] might have preferred that a key witness not be ordered to testify truthfully in his trial, there is nothing in Georgia law that would have permitted him to object to the State’s request for the order or that would suggest that [the defendant’s] rights were the subject matter under consideration. On the contrary, the trial court was obliged to consider whether the testimony was “necessary to the public interest,” a matter which [the defendant] had no standing to address.

Decided November 15, 2010.

James C. Bonner, Jr., for appellant.

Gwendolyn Keyes Fleming, District Attorney, Leonora Grant, Assistant District Attorney, for appellee.

Applying the same reasoning to the instant case, we conclude that Gilbert has no right to contest the grant of use immunity to Laing.

Judgment affirmed.

Andrews, P. J., and Ellington, J., concur.

       OCGA § 16-8-41 (a).

       As of February 20, 2008, the day of Gilbert’s trial, Chapman had not been tried.

       304 Ga. App. 15 (695 SE2d 363) (2010).

       The evidence in this case does not vary materially from the evidence introduced at Laing’s trial, as set forth in our opinion in that case.

       (Punctuation omitted.) Bixby v. State, 254 Ga. App. 212, 212-213 (1) (561 SE2d 870) (2002).

       273 Ga. 258 (539 SE2d 783) (2000).

       See id. at 264 (15).

       (Citation omitted.) Id. at 264-265 (15).

       See id.