text:
    A12A1464.
    DAY v. THE STATE.
    (730 SE2d 734)
   Ellington, Chief Judge.

A Hall County jury found Hardy Joe Day guilty beyond a reasonable doubt of kidnapping, OCGA § 16-5-40 (a); false imprisonment, OCGA § 16-5-41 (a); and aggravated battery, OCGA § 16-5-24 (a). He appeals from the denial of his motion for new trial, contending that the State failed to present sufficient evidence to prove that venue was proper in Hall County. He also argues that his kidnapping conviction must be reversed due to the State’s alleged failure to prove the essential element of asportation. Finding no error, we affirm.

When reviewing a defendant’s challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998). We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offenses beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979). This standard also applies to our review of the denial of a motion for a directed verdict. Hash v. State, 248 Ga. App. 456, 457 (1) (546 SE2d 833) (2001).

Viewed in this light, the record shows the following relevant facts. On July 13, 2007, Day picked up a woman whom he had known for about two months (“the victim”) from the Franklin County jail. Day owed her $700 to $750 for repair work, and she needed the money to pay her probation fees. After failing to retrieve the money from his cousin’s house in Danielsville, Day drove the victim to a house in Hall County. Day entered the house, and the victim waited in the vehicle for about two hours before knocking on the door and asking to use the restroom. When she exited the restroom, she walked into a room full of people who invited her to use what she believed to be methamphetamine, which was lying on a table. After being heckled for her trepidation, she relented and ingested some of the drug. When the people in the house suggested that she have sex with some of them, she and Day left the house and drove away in his vehicle.

As Day started driving down Swansee Road in Hall County, he began swearing at the victim, telling her that the reason he took her to the house was to have sex. Shortly after leaving the house, Day repeatedly hit her in the face, then stopped his vehicle, dragged the victim onto the road, and continued beating and threatening to kill her. The victim tried to call 911 on her cell phone, but no one came to assist her. After dragging her back into his vehicle, Day wielded a knife, pressing it against the victim hard enough to cut her skin. The victim was able to take the knife and throw it out the vehicle’s window. The victim begged Day to let her go, but he continued to restrain and threaten her. In fear for her life, she jumped from the vehicle, but Day again dragged her back into the vehicle. Day told the victim that his vehicle was running out of gas and that if it did, he was going to kill her. She suggested that they stop somewhere to get gas, hoping that she would be able to scream or draw some attention and assistance. Day refused, afraid that someone might see her. While continuing to threaten and beat the victim, Day turned onto Interstate 85 and drove into Jackson County, where his vehicle ran out of gas.

Day pulled the victim into the woods and lay down. When the victim felt him loosen his grip on her, she ran, jumping over the median and crossing the interstate. Fearing that Day might chase her and that her white clothing was too visible, she removed her pants and shirt and threw them into the woods. She attempted to wave down passing motorists and eventually caught the attention of a trucker, who stopped to help her.

The victim asked the trucker to drive her away from the scene. The trucker, however, kept the victim at the scene, providing the cab of his truck as protection while he called 911. He described the victim as “hysterical,” “terribly scared,” and beaten up. Law enforcement officers arriving on the scene found Day’s vehicle nearby and recognized blood splatter inside. Though Day was not found at that time, two Hall County Sheriff’s deputies returned to the scene to retrieve the victim’s clothing shortly thereafter and found him walking along 1-85. He had no injuries, but had blood on his shirt, pants, and hands. DNA tests confirmed that the blood on his shirt and pants matched that of the victim.

1. Day argues that the evidence was insufficient to support his conviction for kidnapping because the State failed to prove beyond a reasonable doubt that the kidnapping occurred within Hall County. “[Vjenue must be proved beyond a reasonable doubt when a defendant pleads not guilty and is put on trial.” (Citation omitted.) Grier v. State, 275 Ga. 430, 431 (1) (569 SE2d 837) (2002). At the time this incident occurred, kidnapping was not a continuous offense and was consummated in the county where the victim was seized and asported to some degree. Martin v. State, 281 Ga. App. 64, 65-66 (1) (635 SE2d 358) (2006).

In this case, the State presented evidence sufficient for a rational trier of fact to find that the kidnapping occurred in Hall County beyond a reasonable doubt. Both the victim and Day testified that the house where the victim used the restroom and ingested drugs is in Hall County. Further, a Hall County police officer testified that, upon her release from the hospital, the victim was able to lead the officer down the road on which Day first assaulted and dragged her back into his vehicle. The officer highlighted the road for the jury on a map of Hall and other surrounding counties. He concluded his testimony by stating his determination that Day had initially assaulted the victim and then dragged her back into his vehicle while they were in Hall County. Thus, we conclude that the State’s evidence was sufficient to show that Day seized the victim, held her against her will, and transported her in his vehicle while in Hall County and, therefore, to prove venue for the kidnapping charge beyond a reasonable doubt.

2. Day also contends that the State failed to prove the essential element of asportation, and, therefore, that the trial court erred in denying his motion for a directed verdict of acquittal on the kidnapping charge. We disagree. Under former OCGA § 16-5-40 (a), “[a] person commits the offense of kidnapping when he abducts or steals away any person without lawful authority or warrant and holds such person against his will.” The element of “abducting or stealing away” the victim is known in legal parlance as “asportation.” (Citation and punctuation omitted.) Garza v. State, 284 Ga. 696, 697 (1) (670 SE2d 73) (2008). The Supreme Court of Georgia has adopted a four-part test for determining

whether the movement at issue constitutes asportation: (1) the duration of the movement; (2) whether the movement occurred during the commission of a separate offense; (3) whether such movement was an inherent part of that separate offense; and (4) whether the movement itself presented a significant danger to the victim independent of the danger posed by the separate offense.

(Citation and footnote omitted.) Id. at 702 (l). Not all elements under this test must favor the prosecution for asportation to be established. Brashier v. State, 299 Ga. App. 107, 110 (2) (681 SE2d 750) (2009). This Court’s focus in considering these factors will be on whether the movement in this case is “movement serving to substantially isolate the victim from protection or rescue — or merely a criminologically insignificant circumstance attendant to some other crime.” (Citation and punctuation omitted.) Garza v. State, 284 Ga. at 702 (1).

Decided July 27, 2012.

Fox, Chandler, Homans, Hicks & McKinnon, Theodore G. Cassert, Steven A. Miller, for appellant.

In this case, the State’s evidence established the element of asportation by showing that, while the victim willingly entered Day’s vehicle and left the house with him, she demonstrated her desire to escape from Day by jumping from his vehicle and trying to call 911 for help. Day, in turn, moved the victim against her will by dragging her back into his vehicle and continuing to drive. This Court has held that the fact that a victim enters a vehicle voluntarily, standing alone, does not protect an assailant from being charged with kidnapping if he later refuses to allow the victim to leave. Clark v. State, 282 Ga. App. 248, 251-252 (1) (c) (638 SE2d 397) (2006).

Additionally, while dragging the victim back into the vehicle may have given Day the opportunity to continue the offense of aggravated battery, Day’s act of transporting the victim down Swansee Road in that vehicle was not a necessary or inherent part of that offense. Indeed, Day had already completed the offenses of battery and false imprisonment when he dragged the victim back into the vehicle — before he drove away. Thus, the movement of the victim down the road was inherent only to the offense of kidnapping. That movement also presented a significant danger to the victim independent of the danger posed by any separate offense by isolating her and making her rescue more difficult than if she had been left standing on the side of the road. Moreover, her risk of further harm increased substantially as Day, enraged and violent, held her against her will inside the moving vehicle.

Accordingly, we conclude that Day’s movement of the victim in his vehicle was not a “criminologically insignificant circumstance attendant to some other crime.” (Punctuation omitted.) Garza v. State, 284 Ga. at 702 (1). Instead, the jury was authorized to find that the State proved the necessary element of asportation beyond a reasonable doubt. See Clark v. State, 282 Ga. App. at 251 (1) (c) (While riding with the defendant, the victim asked him to take her home, but he refused. Instead, he kept driving and then stopped his vehicle and assaulted the victim. This evidence was sufficient to support a kidnapping conviction.). Day’s conviction on the charge of kidnapping is affirmed.

Judgment affirmed.

Phipps, P. J., and Dillard, J., concur.

Lee Darragh, District Attorney, Wanda L. Vance, Assistant District Attorney, for appellee.

       The trial court granted Day’s February 2012 motion for an out-of-time appeal.

       The General Assembly amended OCGA § 16-5-40 to include the following provision: “(f) The offense of kidnapping is declared to be a continuous offense, and venue maybe in any county where the accused exercises dominion or control over the person of another.” See Ga. L. 2009, p. 331, § 1.

       The General Assembly amended the statute in 2009. See Ga. L. 2009, p. 331, § 1.

       The General Assembly superseded Garza in 2009, when it amended OCGA § 16-5-40 by adding the following provision:
      (b) (1) For the offense of kidnapping to occur, slight movement shall be sufficient; provided, however, that any such slight movement of another person which occurs while in the commission of any other offense shall not constitute the offense of kidnapping if such movement is merely incidental to such other offense.
      (2) Movement shall not be considered merely incidental to another offense if it: (A) Conceals or isolates the victim; (B) Makes the commission of the other offense substantially easier; (C) Lessens the risk of detection; or (D) Is for the purpose of avoiding apprehension.
      See Ga. L. 2009, p. 331, § 1.


source: Caselaw Access Project

author: Ellington, Chief Judge.

license: Public Domain

text:
    A12A1623.
    WILLIAMS v. THE STATE.
    (730 SE2d 726)
   Ellington, Chief Judge.

A Chatham County jury found Stacey Lamar Williams guilty beyond a reasonable doubt of two counts of aggravated assault with a deadly weapon, OCGA § 16-5-21 (a) (2), and two counts of possession of a firearm during the commission of a crime against another, OCGA § 16-11-106 (b) (1). He appeals from the denial of his motion for new trial, contending that the evidence was insufficient to support his convictions; that, during closing arguments, the prosecutor improperly commented on his constitutional right not to testify at trial; and that the trial court erred in denying his motions for a continuance and for a mistrial. For the following reasons, we affirm.

1. In contending that the evidence was insufficient to support his convictions, Williams argues that, although several witnesses testified at trial that he was the person who shot the victims, those witnesses were not credible because they had had contact with and may have been influenced by “the State’s star witness, Nicole Stevens.”

When a criminal defendant challenges the sufficiency of the evidence supporting his or her conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citation omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC27 81, 61 LE2d 560) (1979). It is axiomatic that it is the function of the jury, not this Court, to determine the credibility of the witnesses, resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from the evidence. Id.; see also OCGA § 24-9-80 (“The credibility of a witness is a matter to be determined by the jury under proper instructions from the court.”). “As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.” (Citation and punctuation omitted.) Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001). Viewed in this light, the record reveals the following facts.

After arriving home from work on September 17,2007, a Chatham County resident, Nicole Stevens, learned that a girl who lived about two blocks away had been harassing her children earlier that day. According to Stevens, the girl’s mother, “Tamira” (a/k/a “Tammy”), had had a brief romantic affair with Stevens’ husband about a year before; Tamira had also had a romantic relationship with Williams (the defendant). Stevens, accompanied by a few family members and two friends, walked to Tamira’s house, and Stevens confronted Tamira about the ongoing harassment of her family by Tamira and her daughter. The two women had a brief verbal and physical altercation; Tamira hit Stevens with a stick and threw bleach and grease on her. As Stevens and her supporters left Tamira’s house, they saw Williams standing near the house with several other young men. Williams and some of the young men attacked members of Stevens’ group, but none of the men appeared to have weapons. That fight ended quickly, but Williams and the other men followed Stevens and her supporters for a few minutes as they walked back toward her home.

About an hour and a half later, Stevens, some of her friends and family, and some of her neighbors were standing around outside of their homes when a few of the young men from the earlier altercation started taunting Stevens’ nephew and a family friend, trying to engage them in another fight. Someone then shouted “bust something,” followed by “hit man, hit man, hit man.” Williams suddenly appeared and started running down the street toward Stevens’ home with a gun in his hand, shooting at Stevens, her home, and others. Williams shot Stevens’ 16-year-old niece in the chest, severely wounding her. He also shot Stevens’ mother as she was sitting on Stevens’ porch with members of her bible study class. Williams then ran away.

Police officers and paramedics arrived minutes later, and the two victims were transported to the hospital, accompanied by Stevens. The officers interviewed Stevens and other witnesses who reported that they saw Williams holding and/or shooting a handgun at the victims and others while he ran down the street. In fact, one witness testified at trial as follows:

I saw Stacey [Williams] on the corner of 53rd and Cedar. And I saw him pull out a gun, and I saw him — he started to shoot.
Me and my mom was standing on the corner of 53rd and Cedar. And he started to shoot, and he was running up the street shooting. . . . [And] he started shooting towards our way. And then he moved the gun like towards going straight up the street.

In addition, Stevens’ mother testified that, after she was shot, she saw Williams running past her home with a gun, but, at the time, she did not think he had shot her because she thought she knew him very well. She explained that Williams “ate at my house. He called me grandma. He calls me mom. You know, I knew him.” She also testified that, even though she did not think at that moment that Williams would harm her or her family or run down a street full of children while shooting a gun, she did not see anyone else with a gun. Further, another witness testified at trial that, although she did not see Williams actually holding a gun, she did see him running down the street with his arm extended while she heard gunshots, and she did not see anyone else with a gun. All of the witnesses who identified Williams by name to the police knew who he was and/or had seen him in the neighborhood before the shootings. In addition, at least three of the witnesses identified Williams as the shooter from a photographic lineup shortly after the shootings, and a few of the witnesses told the officers that Williams was wearing a green shirt with yellow or white markings at the time of the shootings.

While interviewing witnesses and searching for evidence, the officers spoke to someone who had seen a black male run away from the crime scene and dump something in a trash can. The officers found a green and yellow shirt inside the trash can. They also found a Glock nine-millimeter semiautomatic pistol immersed in water at the bottom of a nearby trash can; the serial number on the pistol’s barrel had been painted over. In addition, the officers recovered a magazine for the weapon that contained seven live rounds of ammunition, as well as six shell casings that were scattered along the street where Williams had been running while shooting. Ballistic testing confirmed that the shell casings found at the scene had been fired from the Glock pistol found in the trash can.

On appeal, Williams argues that the witnesses who identified him as the shooter by name were not credible, because there was evidence that Stevens may have talked to some of them before they gave their statements to the police or before the trial. However, police officers interviewed two of the witnesses at the police station within an hour of the shootings, while Stevens was still at the hospital with the victims. Further, Williams’ trial counsel had the opportunity to cross-examine each of those witnesses about their identification of Williams and whether Stevens had influenced them in any way, as well as to argue to the jury that Stevens was with two of the witnesses, both teenagers, before they gave their statements to the police and that she influenced those witnesses by “bolstering] the fact that [Williams was] the shooter.” In addition, the trial court instructed the jury that they “must determine the credibility or believability of the witnesses”; that the identity of the assailant is a question of fact for them to determine and that such determination “is dependent upon the credibility of the witness or the witnesses offered for that purpose”; and that, in determining the reliability of a witness’ identification of the alleged perpetrator, they should consider, among other things, “whether the witness’[ ] identification may have been influenced by factors other than the view that the witness claimed to have, and whether the witness on any prior occasion did not identify the defendant in this case as the alleged perpetrator.”

As noted above, the jury was solely responsible for determining the credibility of each witness, and, in so doing, considering whether their testimony was the product of their personal observations during the shootings or was the result of subsequent statements or other influence by Stevens. See Martin-Argaw v. State, 311 Ga. App. 609, 613 (2) (716 SE2d 737) (2011) (“[A]ny alleged inconsistencies in the evidence and issues of [the witnesses’] credibility were for the jury, not this Court, to resolve; and the jury obviously resolved those issues against [the defendant].”) (punctuation and footnotes omitted). Thus, Williams cannot prevail on his argument that all of the witnesses who identified him as the shooter were so incredible that the jury’s verdict cannot be sustained. Id. We conclude that the evidence presented, viewed in favor of the jury’s verdict, was sufficient for rational jurors to find him guilty beyond a reasonable doubt of the crimes for which he was charged. See id. at 612 (1) (Evidence showing that three victims were sitting together eating on an outdoor deck when the defendant rushed up and fired his gun toward them was sufficient to support his convictions for aggravated assault. “It is well settled that the act of firing a weapon into a group makes each individual in the group a separate victim and justifies a separate count of aggravated assault for each victim.”) (punctuation and footnote omitted).

2. Williams contends that the prosecutor violated his constitutional and statutory rights when he improperly argued to the jury that, during deliberations, they should consider Williams’ failure to testify in his own defense. As shown below, however, the record does not support this assertion.

During defense counsel’s closing argument, he repeatedly argued that the State had failed to use certain evidence that had been collected at the crime scene to prove that Williams was involved in the shootings. He specifically mentioned that the State had failed to present hair extensions, a tennis shoe, and a crime scene video to prove its case. He also told the jury to ask themselves during deliberations, “where is the green shirt[?]” In addition, he falsely argued that no one tried to get fingerprints off of the handgun, stating “[mjaybe they could have. Maybe they couldn’t have. They didn’t even try. Didn’t even try. Had they tried and said they couldn’t do it, . . . [t]hat’s a different story. They don’t even try. They know the shooter had the gun in his hand.” (Emphasis supplied.) Later, he argued, “If you had fingerprints from the gun, if you had DNA from the shirt, wouldn’t that be helpful?... [Wjouldn’t it have been helpfulf,] instead of having a firearm examiner come in[,] to have the GBI fingerprint expert to come in or the GBI DNA expert to come in and talk to us about that evidence?” He stressed that “[t]he issue [to be decided] is not what gun fired the shots. The issue is who fired the shots. Now, is [Williams’] life not worth the extra effort... to get this stuff examined so we don’t have to go through all these different witnesses and then try to piece this case together piece by piece by piece?’ (Emphasis supplied.) Defense counsel also told the jury that the prosecutor might ask them, “why didn’t the defense do this, why didn’t the defense do that, he [(Williams)] could have done this, he could have done that[,]” then added the following statement:

Well, you know what? We don’t have to. We’re not required to. That’s [the State’s] job, to prove [Williams] guilty. It’s not my job to prove him innocent. Now, I’m doing the best I can to try to show you the problems with their case[.] ... I didn’t indict this man. I didn’t bring him before you. They brought this case before you. They brought these charges against him.

(Emphasis supplied.) Finally, defense counsel talked to the jury about the trial court’s upcoming instructions, stating that the court will instruct them

about [the] failure of the defendant to testify. And she’s going to tell you that he is not required to testify. The fact that he... does not testify,... you can’t infer anything by the fact that he failed to testify. And that’s important because you people need to go home. You’ve been here all week. And if you get back in that jury room, and you start talking about well, I thought the defendant would get up there and say something. I thought they’d call him as a witness. Why doesn’t he explain what he’s doing? Where was he? What was he doing? How come this, how come that, how come whatever? You’re going to end up being back there a whole lot longer than you need to be because he’s not required to testify. He’s not required to prove his innocence. That’s why he doesn’t have to testify. You’re to make no inference from that, and the [c]ourt’s going to tell you that. That’s the law.[]

(Emphasis supplied.)

The prosecutor then began her closing argument with the following observation:

I just heard for the past several minutes about everything that you don’t have an answer to. We don’t know about DNA. We don’t know about the hair extensions. We don’t know about fingerprints. We don’t know this. We don’t know that. But then you know what [Williams’ counsel] said? He said but don’t go back into that jury room and wonder why you didn’t hear anything from him. Don’t go back to the jury room and go where was [Williams]. We can’t ask that. You can’t ask things like that. He told you don’t go, or you’ll stay there all night. You don’t have the answers to that because he isn’t required to give them. But you don’t have the answers. And that’s all I heard [Williams’ counsel] talk about, was things you don’t know.

(Emphasis supplied.) The prosecutor immediately added, however, “Let’s talk about what you do know. What do you know? You know all the evidence that came in up here.” She then recounted the evidence presented that supported the State’s case against Williams.

Although Williams claims that the prosecutor’s statements were improper comments on his failure to testify, “[c]losing arguments are judged in the context in which they are made.” (Punctuation and footnote omitted.) Tucker v. State, 313 Ga. App. 537, 540-541 (1) (b) (722 SE2d 139) (2012).

In determining whether a prosecutor has improperly commented on an accused’s failure to testify, we must evaluate whether the prosecutor’s manifest intention was to comment on the accused’s failure to testify or whether the remark was of such a character that a jury would naturally and necessarily take it to be a comment on the accused’s failure to testify.

(Citation and punctuation omitted.) Jennings v. State, 282 Ga. 679, 681-682 (4) (653 SE2d 17) (2007).

Having reviewed the closing arguments in context, we conclude that the prosecutor’s comments in this case do not satisfy either prong of that test. Instead, the comments simply restated defense counsel’s assertions about alleged gaps in the State’s proof, assertions that were immediately rebutted by the prosecutor when she reminded the jury of the volume of inculpatory evidence the State did present. Thus, “[i]t is apparent that the prosecutor was directly responding to the argument previously made by defense counsel, and there was no error in her doing so.” (Footnote omitted.) Tucker v. State, 313 Ga. App. at 541 (1) (b).

3. Williams argues that the trial court erred in denying his motion for a continuance, which was based upon his counsel’s alleged “newfound knowledge during the trial that a material piece of physical evidence was missing,” specifically, the green shirt the officers discovered in the trash can. For the following reasons, this argument lacks merit.

It is undisputed that Williams’ trial counsel participated in discovery and reviewed the State’s entire file before trial. According to the prosecutor, in that file were e-mails between the State and Williams’ former attorney regarding the green shirt, including one that said the shirt had been taken to the crime lab for DNA testing and that, if there was any DNA on the shirt that could be used for testing, the State would compare it to Williams’ DNA. Then, during opening statements at trial, Williams’ trial counsel told the jury that the State “failed to do any DNA testing on the shirt that was supposed to have been worn by the shooter. You’re going to hear about this green and white polo shirt. You may see it. I’m not sure.” (Emphasis supplied.)

The State’s first witness was Officer Alan Trammell of the Savannah Chatham Metropolitan Police Department forensics unit, who testified that he collected several pieces of evidence and took numerous photographs of the crime scene shortly after the shootings. He collected some hair extensions, a tennis shoe, and a green shirt that were found at the scene, and he placed the items, along with a crime scene videotape, in a bag that he sealed and logged into the department’s evidence locker. According to Officer Trammell, all of the physical evidence collected at the scene was taken to the state’s crime lab for forensic testing. He testified, however, that he was not responsible for requesting DNA testing of the evidence. As he later explained, “[a]ll I do is log [the evidence] in. What’s done with it after that is up to the detectives. I wouldn’t search for DNA myself. [The detectives] might send it out to the lab to do that, but I wouldn’t do that.”

Pursuant to the State’s request during direct examination, Officer Trammell opened the bag of evidence and described “everything” that was inside; he testified that “the crime scene videotape, a tennis shoe, and some hair extensions” were inside the bag. The State tendered the items in the bag into evidence, and they were collectively admitted as State’s Exhibit 6 without objection. Williams’ trial counsel then cross-examined Officer Trammell about the items in the bag, as well as the other physical evidence and the photographs of the crime scene. At the end of the officer’s testimony, the court excused him as a witness; even though the prosecutor reminded the court and trial counsel that the officer was going to be leaving the state immediately, there was no objection to his being excused as a witness.

Then, on the afternoon of the second day of trial, just before the State rested its case, the prosecutor and the defense counsel were reviewing the evidence that had been tendered thus far outside the presence of the jury when the prosecutor expressed concern that, although the State’s Exhibit 6 listed a green shirt as being among its contents, the shirt was not, in fact, in the bag that had been tendered into evidence. One of Williams’ attorneys admitted, however, that Officer Trammell had specifically listed all of the items in the bag when the items were tendered into evidence as State’s Exhibit 6 and admitted without objection the day before, so the fact that the shirt was missing had already been made part of the record. Even so, Williams’ other attorney objected to State’s Exhibit 6 at that point, arguing that he had been “under the impression” that the shirt was in the exhibit and that he had just, at that moment, become aware that the shirt had not been placed into evidence. After the court overruled his objection, Williams’ counsel asked for a continuance until Officer Trammell returned the next week from an out-of-state trip so that he could cross-examine the officer about “what if anything he did with the green shirt.” He characterized the shirt as a “material piece of evidence,” arguing that “many witnesses have identified the shooter by that particular shirt” and that they “[c]ould not identify him by any other means but by the green shirt.” The court denied the request for a continuance.

“All applications for continuances are addressed to the sound legal discretion of the court and, if not expressly provided for, shall be granted or refused as the ends of justice may require.” OCGA § 17-8-22. “In reviewing a trial court’s denial of a motion for a continuance, this Court will not reverse a trial court’s decision on a motion for continuance except upon a clear abuse of the trial court’s discretion.” (Punctuation and footnote omitted.) Columbus v. State, 270 Ga. 658, 665 (4) (513 SE2d 498) (1999). “Moreover, to be entitled to a new trial based upon the denial of his motion for a continuance, [the defendant has] the burden to show that he was harmed by that denial.” (Footnote omitted.) Id.

In this case, Williams has failed to demonstrate that any prejudice resulted from the denial of his motion for a continuance, because he failed to present Officer Trammell as a witness or offer any other evidence in support of his motion for new trial to show that his defense would have benefitted in any way by further questioning of Officer Trammell about what he did with the shirt or the whereabouts of the shirt at the time of trial. Columbus v. State, 270 Ga. at 664-665 (4); see Childs v. State, 287 Ga. 488, 494 (7) (696 SE2d 670) (2010) (The defendant failed to present any evidence at the motion for new trial hearing to show that his defense was prejudiced because his trial counsel failed to interview a certain witness before trial.). Accordingly, Williams cannot prevail on this alleged error.

4. Williams also contends that the trial court abused its discretion in denying his motion for a mistrial, arguing that the State violated his constitutional rights by allegedly failing to preserve the green shirt, which he characterizes as a “material” piece of evidence.

The record shows that, immediately after the trial court denied his motion for a continuance, Williams’ counsel moved for a mistrial, claiming that he had just become aware that the State did not tender the shirt into evidence and that he was “relying on this evidence to be introduced [by the State and was] under the impression it would be introduced or it had been introduced.”

"Whether to grant a mistrial is within the sound discretion of the trial court, and its ruling will not be disturbed absent an abuse of discretion.” (Citation and punctuation omitted.) Shelnutt v. State, 255 Ga. App. 157, 158 (1) (a) (564 SE2d 774) (2002).

The State has a constitutional obligation to preserve evidence that might be expected to play a significant role in the suspect’s defense. But the failure to preserve evidence does not constitute a constitutional violation, unless it is shown that the missing evidence was potentially useful to the defense and was destroyed in bad faith on the part of the police. Accordingly, the prosecution may be penalized if it loses or destroys evidence that could potentially have been helpful to the defense only if the defense shows that the evidence was material and that the State acted in bad faith in failing to preserve it. To be material, the evidence must have had an apparent exculpatory value before it was lost, and be of such a nature that the defendant cannot obtain comparable evidence by other reasonable means.

(Citations and punctuation omitted; emphasis supplied.) Blackwood v. State, 277 Ga. App. 870, 873-874 (2) (627 SE2d 907) (2006).

(a) First, we note that Williams has not shown that the State “failed to preserve” or intentionally destroyed the green shirt. Instead, the record simply shows that the State sent the shirt to the crime lab for testing and that the State did not tender the shirt or any testing results at trial. There is nothing in the record that shows that the shirt has been lost or destroyed. Further, there is nothing in the record to show that Williams ever attempted to arrange for independent testing of the shirt to determine if it might constitute exculpatory evidence.

(b) Second, although Williams argues on appeal that the green shirt was “material and exculpatory to the defense because it was used by several witnesses to identify the shooter,” this argument is a gross misrepresentation of the State’s identification evidence. In fact, the record shows that not a single witness stated that he or she knew Williams was the shooter because he or she recognized him from the green shirt he was wearing. Instead, numerous witnesses told the officers and/or testified at trial that they knew Williams before the shooting and that they recognized him as he ran down the street shooting a handgun; a few of them also said that Williams was wearing a green shirt at the time of the shootings. In addition, the lead detective in this case, who was called by the defense, testified that the witnesses reported that they recognized Williams from the neighborhood and described what he was wearing; she specifically denied that any witness said he or she recognized Williams from the shirt he was wearing.

Decided July 27, 2012.

Jennifer R. Burns, Falen O. Cox, for appellant.

Larry Chisolm, District Attorney, Nancy G. Brimberry, Assistant District Attorney, for appellee.

While this evidence shows that the shirt clearly had some inculpatory value, Williams failed to present any evidence in the court below to show that the shirt had any apparent exculpatory value and, as a result, constituted material evidence for the defense. Blackwood v. State, 277 Ga. App. at 874 (2). Nor did Williams present any evidence to show that the State acted in bad faith by failing to regain custody of the shirt after it had been tested by the crime lab. Lonergan v. State, 281 Ga. 637, 639 (3) (641 SE2d 792) (2007); Blackwood v. State, 277 Ga. App. at 874 (2). Consequently, there is no merit to his claim that the State violated his constitutional rights by failing to preserve material evidence. Lonergan v. State, 281 Ga. at 639 (3); Blackwood v. State, 277 Ga. App. at 874 (2). It follows that the trial court did not abuse its discretion in denying his motion for a mistrial on that basis. Lonergan v. State, 281 Ga. at 639 (3).

Judgment affirmed.

Phipps, P. J., and Dillard, J., concur.

       See Divisions 3 and 4, infra, regarding the green shirt.

       See Division 3, infra, regarding this evidence.

       According to Officer Alan Trammell, the officer who collected the evidence at the scene, he tested the handgun and the magazine for fingerprints, but did not find any that could be used to identify the shooter.

       The record shows that the trial court did, in fact, instruct the jury on, inter alia, the presumption of the defendant’s innocence, the State’s burden of proof, and the principles that the defendant had no burden of proof and that his failure to testify at trial could not be considered against him.

       Officer Trammell also collected several other pieces of evidence, including the Glock nine-millimeter pistol, the magazine with seven live rounds of ammunition, and the six shell casings, and he logged the items into the evidence locker.

       The trial court specifically informed the prosecutor and trial counsel that it intended to excuse each witness after his or her testimony “unless I hear from one of you that you have further need of that witness.”

       Three pictures of the shirt were tendered into evidence, however.

       See Division 4, infra, regarding these inaccurate assertions.

       According to the trial court’s order denying Williams’ motion for new trial, at the scheduled hearing on the motion, both parties waived their opportunity to present evidence and stated that they wished to proceed on the motion solely through their briefs.

       See also Martinez v. State, 289 Ga. 160, 161-162 (2) (b) (709 SE2d 797) (2011) (The defendant failed to show that he was prejudiced by trial counsel’s failure to request a continuance so that a witness could be located, because appellate counsel failed to present the witness’ testimony during the motion for new trial hearing.).


author: Barnes, Presiding Judge.

text:
    A11A2377.
    THOMAS et al. v. HENRY COUNTY WATER AND SEWERAGE AUTHORITY.
    (731 SE2d 66)
   Barnes, Presiding Judge.

This case involves a boundary dispute over a portion of the South River riverbed located on the Henry and Newton County line, in an area known as Snapping Shoals, and additional land including a portion of the riverbed and dry land in Henry County. The trial court denied summary judgment to Hoke Thomas, Jr., and the estate of Michael Thomas (“the Thomases”) and granted it to the Henry County Water and Sewerage Authority (“the Water Authority”), concluding that the Water Authority owns the title to the disputed land, subject to an easement. The Thomases appeal, arguing that the trial court erred, but for the reasons that follow, we affirm.

The Thomas brothers bought land on the Newton County side of the river in 1976 and have been operating a hydroelectric power generating station there ever since. The Thomases and Henry County dispute ownership of 4.82 acres of riverbed and dry land in Henry County and of additional land including the riverbed at Snapping Shoals (collectively, the “disputed land”). Initially, the Thomases would not allow the Water Authority to survey the boundary lines of the disputed property, so the Water Authority filed a complaint for injunctive relief, seeking authority for their surveyors to enter onto the disputed land. After an initial hearing, the Water Authority amended the resolution that authorized the complaint by stating that it might want to use this property for a public purpose at some future time, and the Thomases agreed to allow the survey. The trial court entered an order enjoining them from preventing the surveyors from entering onto the property for 30 days, and the property was surveyed. The Thomases then answered the complaint and counterclaimed for a declaratory judgment as to ownership of the disputed land.

The parties conducted extensive discovery, and the record establishes that all of the property owned by these parties was previously owned by Whitehead Die Casting Company, Ltd. In 1976, Hoke and Michael Thomas bought 8.1 acres from Whitehead Die, on which a mill was located, and obtained certain water rights and easements over Whitehead Die’s other property as needed to maintain water power for the mill. On June 21, 1976, the Thomases recorded a warranty deed showing that their property line ran to the middle of the riverbed. The Thomases contend that Whitehead Die gave them an additional 4.82 acres in 1977, extending their property line from the middle of the riverbed onto a portion of dry land in Henry County. Inexplicably, only the plat from 1977 was recorded contemporaneously, but not the deed. The deed was discovered in a flood-damaged safe inside the mill and recorded on June 8, 2008, after this litigation began. The Thomases began operating a hydroelectric generating station on the property in 1976, using water diverted from the South River by the dam and the “mill race,” a canal that diverts the water from the river to the mill.

In 1991, Whitehead Die’s heirs sold to John Hanger property abutting the Thomases’ property in Henry County. Hanger intended to buy “all the remaining property that the Whitehead Die Casting Company, Ltd., had an interest in,” or the entire original property of Whitehead Die except those portions already sold to other buyers. The 1991 warranty deed from the heirs described Hanger’s property by reference to an attached plat, which described the property line as being “along the bank of [the] river.”

In 2004, the Thomases applied to the State Environmental Protection Division (“EPD”) for a permit to withdraw 30 million gallons of water per day from the South River at Snapping Shoals for treatment and distribution to six surrounding counties. The EPD directed the Thomases to consult the surrounding county water authorities about entering into a public-private venture, and the Thomases presented the proposal to the Henry County Board of Commissioners. The Board directed the Thomases to discuss the matter with the Water Authority, which rejected the proposal, apparently due to concerns about the water quality.

In 2008, Hanger agreed to sell the Water Authority a portion of the riverbed and land in Henry County, but after researching titles, the Water Authority discovered that the plat described in Hanger’s 1991 deed from Whitehead Die’s heirs described land that did not include a portion of the disputed land. In February and March 2008, the Water Authority obtained quitclaim deeds from Whitehead Die’s heirs to Hanger, to clarify that they had intended to sell to Hanger all the property that had not already been sold to others, which included the 4.82 acres to which the Thomases had an unrecorded deed. The 2008 quitclaim deeds conveyed to Hanger three tracts of land previously owned by Whitehead Die, a total of approximately 273.6 acres, specifically excepting all of the property that had previously been conveyed to approximately 12 other parties.

The parcels excepted from the sale of Whitehead Die’s property to Hanger included the property sold to and recorded by the Thomases in 1976, but not the unrecorded 1977 deed granting them 4.82 acres in Henry County, which included both riverbed and dry land. The Water Authority then bought property from Hanger that included the 4.82 acres and the riverbed at Snapping Shoals. On March 31, 2008, the Water Authority recorded the quitclaim deeds from the Whitehead Die heirs to Hanger and the Limited Warranty Deed from Hanger to the Water Authority.

In April and May 2008, Water Authority representatives attempted unsuccessfully to obtain permission from the Thomases to survey the property the Water Authority had just purchased from Hanger, which led the Thomases to discover and record the 1977 deed from Whitehead Die granting them the 4.82 acres in Henry County.

After the complaint, injunction, and counterclaim were filed, the Water Authority moved for summary judgment on the Thomases’ counterclaim, arguing that the undisputed facts showed that it owned the property it had purchased from Hanger. The Thomases also moved for summary judgment, contending that they held superior title to the 4.82 acres by virtue of their 1977 deed, and also that they had prescriptive title to the Snapping Shoals riverbed and other disputed land through adverse possession. The trial court conducted a hearing in January 2010, and in June 2010 denied the motions for summary judgment. According to the trial court’s final order issued in June 2011, at a pre-trial conference in July 2010 “both sides . . . insisted that a trial is not necessary” and both sides renewed their motions for summary judgment. The trial court granted summary judgment to the Water Authority and denied it to the Thomases, who appeal.

1. The Thomases contend on appeal that Hanger’s quitclaim deeds are not entitled to priority because first, Hanger was not an innocent purchaser who bought in good faith and therefore could not convey good title to the Water Authority. They contend that Hanger had notice that they owned the disputed land, or was at least aware of facts that should have caused him to inquire further. Thus, they assert, Hanger’s quitclaim deeds acquired no preference despite being recorded first.

Competing deeds conveying the same property are effective only when they are recorded, and in a contest between deeds of the same property from the same grantor, when taken without notice to the buyer and with consideration to the seller, the deed filed first has priority. OCGA § 44-2-2 (b); Church of the Nativity v. Whitener, 249 Ga. App. 45, 47 (2) (547 SE2d 587) (2001). OCGA § 44-2-1 provides that “[a] deed may be recorded at any time; but a prior unrecorded deed loses its priority over a subsequent recorded deed from the same vendor when the purchaser takes such deed without notice of the existence of the prior deed.” As the trial court found in this case, “it is undisputed that Hanger’s 2008 deeds were recorded before [the Thomases’] 1977 deed.”

The trial court also concluded that Hanger’s quitclaim deeds were entitled to priority because he was an “innocent purchaser” who had no notice that the Thomases had a prior claim to the riverbed.

“A bona fide purchaser for value is protected against outstanding interests in land of which the purchaser has no notice. [Cits.]” Farris v. Nationsbanc Mtg. Corp., 268 Ga. 769, 771 (2) (493 SE2d 143) (1997).

However, any circumstance which would place a man of ordinary prudence fully upon his guard, and induce serious inquiry, is sufficient to constitute notice of a prior unrecorded deed. And a younger deed, taken with such notice, acquires no preference by being recorded in due time.

(Citations and punctuation omitted.) Montgomery v. Barrow, 286 Ga. 896, 897 (1) (692 SE2d 351) (2010).

The Thomases argue that the fact that the Water Authority told Hanger it would buy the property if Hanger got the deeds corrected put Hanger on notice that the Thomases had a claim to the disputed land. In other words, they argue that, because the Water Authority had reservations about Hanger’s title to the disputed land, Hanger had notice that the Thomases claimed to own the disputed land before he filed the quitclaim deeds. They also argue that Hanger had a duty to investigate ownership of the disputed land because the Thomases had maintained the dam, riverbed, and mill race for 30 years.

The trial court correctly concluded that the Thomases’ repeated and visible activities on the disputed land did not put Hanger on notice of their claim to own it. Because their 1976 deed from Whitehead Die granted them an easement to use some of the disputed land, all of the Thomases’ activities were consistent with their easement rights. Further, all of the structures related to the Thomases’ hydroelectric facility are located on the 8.1-acre property they bought from Whitehead Die in 1976, about which there is no title dispute. Finally, the evidence shows that the Water Authority’s reservations about Hanger’s title were related to the wording of the deed from Whitehead Die’s heirs, not to whether someone else owned that land, and therefore did not constitute notice of the Thomases’ claims. The trial court did not err in concluding that Hanger was an innocent purchaser who bought the disputed land without notice that the Thomases claimed ownership.

2. The Thomases also argue that the trial court erred in finding that Hanger’s 2008 quitclaim deeds from Whitehead Die’s heirs were supported by consideration, as required by OCGA § 44-2-1. The trial court held that the Thomases’ argument

ignores that undisputed evidence that Hanger obtained the 2008 quitclaim deeds for the riverbed without any additional consideration being paid based on the proposition that the riverbed had been mistakenly omitted from the 1991 deed. It is undisputed that Hanger paid valuable consideration for the 1991 deed. This serves as the valuable consideration supporting the 2008 corrective deeds as well. See 17A C.J.S. Contracts § 564; Bullock v. Johnson, 110 Ga. 486 (1) (35 SE 703, 705) (1900).

This conclusion is logical and legally sound. If the parties intended, as the evidence shows, that Hanger purchase and the Whitehead Die heirs sell, all of the Whitehead Die property that had not previously been sold, then no new consideration was necessary to support deeds that clarified that intent, as the new deeds “rest upon the original consideration.” Bullock, 110 Ga. at 490. Hanger already owned that property, and the quitclaim deeds rectified a mutual mistake by clarifying the boundaries of the property purchased in 1991.

The Thomases argue that the only evidence supporting the conclusion that the quitclaim deeds merely corrected a mistake was the “unilateral, self-serving declaration by Hanger” about his intentions in 1991 to acquire all of Whitehead Die’s unsold land. But the fact that all 13 of the Whitehead Die heirs signed and returned quitclaim deeds also supports that conclusion, as do the quitclaim deeds themselves. The Thomases also argue that the fact that Hanger sold only the disputed land, which was added by the quitclaim deeds, confirms that the 1991 deed was accurate, but the disputed land was the only portion the Water Authority wanted to buy.

3. Finally, the Thomases contend that they adversely possessed the Snapping Shoals riverbed and other disputed land and thus acquired title by prescription. “To establish title by adverse possession a party must show possession not originated in fraud that is public, continuous, exclusive, uninterrupted and peaceable, and accompanied by a claim of right. OCGA § 44-5-161 (a).” (Citation and punctuation omitted.) Bailey v. Moten, 289 Ga. 897, 898 (2) (717 SE2d 205) (2011).

“Under OCGA § 44-5-165, actual possession may be evidenced by enclosure, cultivation, or any use and occupation which is so notorious as to attract the attention of every adverse claimant and so exclusive as to prevent actual occupation by another.” Friendship Baptist Church v. West, 265 Ga. 745 (462 SE2d 618) (1995). The Thomases did not enclose or cultivate the riverbed, of course, but assert that they exercised dominion and control over it by damming the river upstream of their property, diverting the water through the mill race, and maintaining the riverbed. Regarding other disputed land, they also make numerous factual arguments about their exclusion of others from the property and representations from Whitehead Die principals affirming that the Thomases owned the dam.

Decided July 2, 2012

Reconsideration denied July 30, 2012

Stone & Baxter, Ward Stone, Jr., Matthew S. Cathey, Power, Jaugstetter & Futch, Warren R. Power, Arnall, Golden & Gregory, James P. Smith, Hall, Booth, Smith & Slover, W. Scott Henwood, Dargan S. Cole, Kawania B. James, for appellants.

Smith, Welch, Webb & White, William A. White, for appellee.

“While adverse possession is usually a mixed question of law and fact • — • whether the facts exist which constitute adverse possession, is for the jury to judge. Whether, assuming the facts proven to be true, they constitute adverse possession, is for the court to decide.” (Citation and punctuation omitted.) Ga. Power Co. v. Irvin, 267 Ga. 760, 766 (2) (482 SE2d 362) (1997). Aside from the trial court’s recitation that the parties insisted a jury trial was unnecessary, the facts as set out by the trial court and as recited by the Thomases are insufficient as a matter of law to establish that the Thomases were in such notorious possession that they acquired title to the disputed land by prescriptive easement or adverse possession. All of the Thomases’ actions were consistent with their 1976 easement, and therefore did not give notice that they claimed the disputed land to the exclusion of others.

Judgment affirmed.

Adams and McFadden, JJ., concur.

       The trial court noted that this is not an action to quiet title, and its ruling applies only to the parties in this case.

       While the Thomases assert that the trial court lacked authority to rule “sua sponte” that the consideration Hanger paid Whitehead Die in 1991 constituted consideration for the 2008 quitclaim deeds, the Thomases raised the consideration issue in their brief responding to the Water Authority’s supplemental motion for summary judgment.


text:
    A12A0082.
    BROOKS et al. v. MULTIBANK 2009-1 RES-ADC VENTURE, LLC.
    (730 SE2d 509)
   Barnes, Presiding Judge.

Appellants A. L. Brooks & Company, also known as ALB & Company and Aaron Brooks (hereinafter “Brooks”) appeal from the trial court’s order granting summary judgment to Multibank 2009-1 RES-ADC Venture, LLC (hereinafter “Multibank”). Brooks argues on appeal that the trial court erred in denying his motion to withdraw admissions and also in converting Multibank’s motion for judgment on the pleadings to a motion for summary judgment without providing him 30 days to respond pursuant to OCGA §§ 9-11-12 (c) and 9-11-56 (c). Upon our review, we affirm.

On January 28, 2009, FirstCity Bank filed a complaint on a note and guaranty against Brooks, alleging that the corporation was in default on the loan and Brooks, as the guarantor, was liable for the $3,509,043.74 due on the loan, prejudgment interest and attorney fees. A copy of the note and Brooks’ guaranty were attached to the complaint. On March 13,2009, Brooks, acting pro se, filed a “response to summons” on his and the company’s behalf in which he responded simply, “We do not agree with the amounts of the indebtedness owed to FirstCity Bank. We are also working closely with a client who has expressed genuine interest in purchasing the collateral.”

In June of 2009, FirstCity Bank was granted a motion to extend discovery until March 13, 2010, and notified the court that it was under receivership by the Federal Deposit Insurance Corporation. On January 21, 2010, the trial court sua sponte granted Brooks’ corporate entity, A. L. Brooks & Company, 31 days from the date of the order to have an attorney file an answer on the corporation’s behalf. It advised that a default judgment would be entered against the corporation if an answer was not filed by an attorney. On February 22, 2010, an attorney filed an entry of appearance and answer on behalf of “the Corporation only,” in which it challenged the court’s jurisdiction over Brooks and the corporation and also consideration for the underlying loan. On March 25, 2010, Multibank was substituted as the party plaintiff, and was granted an additional six-month discovery period until September 15, 2010.

On July 13, 2010, Multibank served discovery on Brooks, including requests for admissions. On July 14, 2010, Multibank moved to strike the answer and enter default judgment as to the corporation because the answer was not filed by an attorney, and moved for judgment on the pleadings as to Brooks, alleging that he had failed to deny the allegations in its complaint. On July 21,2010, the trial court denied the motion to strike as to the corporation, but scheduled a September 7, 2010 hearing on the motion for judgment on the pleadings against Brooks. It also directed Brooks to file a written response to the motion “within 30 days of service of the motion and provide a copy to [Multibank].” The trial court further advised that, should Brooks fail to timely respond, the court would rule on the motion “based on the pleadings and the evidence.” Brooks did not timely respond, and on August 20, 2010, a new attorney filed a notice of appearance and substitution of counsel on behalf of the corporation and Brooks, and also moved for an extension of time in which to file his response to the motion for the judgment on the pleadings. Brooks argued his failure to respond on time was due to “excusable neglect,” and that he should be allowed to respond pursuant to OCGA § 9-11-6 (b). The trial court placed the motion for an extension of time to respond to Multibank’s motion for judgment on the pleadings on the September 7, 2010 hearing calendar, to be addressed before the motion for judgment on the pleadings.

During this period, Brooks’ responses to several discovery requests were due, including requests for admissions, answers to interrogatories, and motions to produce, but he did not respond to them. At the September 7, 2010, hearing on the motions, Brooks was not present but was represented by his new counsel, who argued that his motion for an extension of time to respond to the motion for judgment on the pleadings should be granted pursuant to OCGA § 9-11-6 (b), due to “excusable neglect,” because he was not represented by counsel during that time and did not know how to file responsive pleadings or answers.

The trial court denied the motion for more time to respond, finding no excusable neglect. It then heard Multibank’s motion for judgment on the pleadings and Brooks’ response, then orally granted the motion, after advising the parties that it was converting Multibank’s motion to one for summary judgment “because [it] was unable to ascertain the liquidated damages from the complaint alone” and had “looked to the previously filed Request for Admissions that were not responded to by Brooks.”

On September 8, 2010, Brooks filed a motion to withdraw his admissions and a motion to extend the time to file answers to the requests for admissions. In a September 13,2010 order, the trial court scheduled a hearing on the motion for October 19, 2010; however, on October 14, 2010, the trial court entered a written order granting Multibank’s motion for summary judgment against Brooks personally, nunc pro tunc to September 7, 2010. In the order, the trial court noted that Brooks did not file his motion to withdraw his admissions until after the trial court had ruled against him from the bench, and had not proffered any evidence that would have excused his failure to respond to the discovery request. The court awarded Multibank $3,509,043.74, plus attorneys fees of $567,359.05. Brooks appeals from this order.

1. Brooks first contends that the trial court erred in not granting his motion to withdraw his admissions. He argues that the presentation of the merits of the case would clear up the miscalculations of the debt and also that Multibank failed to show that it would be prejudiced by the withdrawal of the admissions.

If the time for response to a request for admission passes “without answer or objection, then the requests are admitted subject only to the requestee’s opportunity under OCGA § 9-11-36 (b) on motion to have his admissions withdrawn ” (Citation, punctuation and emphasis omitted.) Atlanta Cas. Co. v. Goodwin, 205 Ga. App. 421 (422 SE2d 76) (1992). Thus, the matters in the requests for admissions were admitted by operation of law when Brooks failed to answer the requests within 30 days of service. OCGA § 9-11-36 (a) (2). The trial court had the discretion to permit withdrawal of the admissions if (1) that withdrawal would subserve or advance the presentation of the merits of the action, and (2) that there is no satisfactory showing that withdrawal will prejudice the party who obtained the admissions. OCGA § 9-11-36 (b).

However, “[t]he motion in this case, made after grant of summary judgment for the defendant, was not timely.” Meadows v. Dalton, 153 Ga. App. 568 (2) (266 SE2d 235) (1980). By issuing the order nunc pro tunc the “trial court caused the written [order] to relate back to... the date of the hearing and its oral ruling.” Hinkle v. Woolever, 249 Ga. App. 249, 252, n. 1 (547 SE2d 782) (2001). Moreover,

[t]he party seeking to withdraw the admissions has the burden of establishing the first prong by showing that the admitted request either can be refuted by admissible evidence having a modicum of credibility or is incredible on its face, and the denial is not offered solely for purposes of delay. Failure to present admissible, credible evidence contradicting the admitted matters justifies the denial of the motion to withdraw.

(Citations and punctuation omitted.) Porter v. Urban Residential Dev. Corp., 294 Ga. App. 828, 829-830 (1) (670 SE2d 464) (2008). Under the first prong, Brooks bore the burden of either showing the admissions were incredible on their face or presenting admissible, credible evidence refuting the admissions. “If the movant fails to make the required showing to satisfy the first prong of the test, then the trial court is authorized to deny the motion to withdraw the admissions.” Turner v. Mize, 280 Ga. App. 256, 257 (1) (633 SE2d 641) (2006). Under such circumstances, “there is no need to address the second prong.” Id. at 259 (1).

Brooks made no attempt in the trial court to make either showing relative to the first prong. Thus, the trial court did not abuse its discretion in denying his request to withdraw the admissions.

2. Brooks also contends that the trial court erred in converting the motion for judgment on the pleadings to a motion for summary judgment without providing additional time for him to “confront the evidence.”

When matters outside the pleadings are considered by the trial court on a motion to dismiss for failure to state a claim, the motion is converted to a motion for summary judgment pursuant to OCGA § 9-11-56, and the trial court has the burden of informing the party opposing the motion that the court will consider matters outside the pleadings and that, if the opposing party so desires, the party has no less than 30 days to submit evidence in response to the motion for summary judgment.

(Citation omitted.) Gaddis v. Chatsworth Health Care Center, 282 Ga. App. 615, 616-617 (1) (639 SE2d 399) (2006). The 30-day notice period can be waived through acquiescence of the party opposing the motion. Davis v. Phoebe Putney Health Systems, 280 Ga. App. 505, 507 (2) (634 SE2d 452) (2006). Moreover, the error is not reversible absent a showing of harm. Sentry Ins. &c. v. Echols, 174 Ga. App. 541, 542 (1) (330 SE2d 725) (1985).

Here, Multibank acknowledged at the hearing that the trial court could not ascertain the amount of liquidated damages from the complaint alone. The court then considered Brooks’ default admissions to ascertain the amount of damages and informed Brooks that it would treat the motion as one for summary judgment. It then permitted Brooks to present arguments on the summary judgment motion. Brooks argued that a general denial of indebtedness was sufficient to present a triable issue, and that Multibank failed to properly plead venue, and also addressed several discovery issues.

Even though Brooks asserts harm as a result of the ruling, he has offered nothing to suggest that the ruling would have been any different if he had been given 30 days to respond with more evidence. Christensen v. State, 219 Ga. App. 10, 12 (4) (464 SE2d 14) (1995). Under the Civil Practice Act, avenue defense shall “be asserted in the responsive pleading thereto, if one is required . . . [or] by motion in writing.” OCGA § 9-11-12 (b). Wantofvenue, however, maybe waived expressly by failing to raise it in an answer or by written motion, or impliedly by failing to elicit a ruling from the trial court on the question of venue before the entry of judgment or the commencement of trial. Williams v. Willis, 204 Ga. App. 328, 329 (419 SE2d 139) (1992). A defense based on improper venue must be brought to the attention of the trial court “at the earliest opportunity to plead.” Maalouf v. Knight, 237 Ga. App. 509, 511 (2) (515 SE2d 650) (1999).

Decided July 12, 2012

Reconsideration denied July 30, 2012

James W. Clifton, for appellants.

Smith, Welch, Webb & White, JohnP. Webb, Andrew J. Gebhardt, for appellee.

Brooks never raised the issue before the hearing, and as was noted at the hearing, had not filed a motion to transfer venue. Even in his affidavit filed the day after the hearing, Brooks merely asserted that the amounts due were incorrect, and alluded to the payments not being made because of “certifications and approvals” related to the real estate development for which the monies had been loaned. He presented no documentation showing a contradictory amount owed on the loan, nor any evidence contravening his guaranty of the loan.

Thus, as Brooks has not shown that given additional time he would have filed additional affidavits or other supporting documentation in response to a motion for summary judgment, he has not shown that he was harmed by having the motion for judgment on the pleadings converted to a motion for summary judgment. Accordingly, no reversal is required. See Tucker v. Thomas C. Talley, M.D., P.C., 267 Ga. App. 820, 823 (2) (600 SE2d 778) (2004).

Judgment affirmed.

Adams and McFadden, JJ., concur.

       The Civil Practice Act provides that, when an act is required within a specific time, “the court for cause shown may at any time in its discretion[,] . . . upon motion made after the expiration of the specified period, permit the act to be done where the failure to act was the result of excusable neglect. . . .” OCGA § 9-11-6 (b).


author: Adams, Judge.

text:
    A12A0359.
    RINDSBERG et al. v. NEACSU.
    (730 SE2d 525)
   Adams, Judge.

Frank and Steve Rindsberg, individually and as executors of the estate of their mother, sued physicians Sandra Levy and Luminita Neacsu, Eagle Hospital Physicians, LLC, and St. Joseph’s Hospital of Atlanta, Inc., for medical malpractice and wrongful death. The trial court granted Dr. Neacsu’s motion for summary judgment, finding that no doctor-patient relationship existed between Neacsu and Mrs. Rindsberg, and the Rindsbergs appeal. Because an issue of fact exists regarding whether an implied doctor-patient relationship arose between Neacsu and Mrs. Rindsberg, we reverse.

We review de novo a trial court’s decision on a motion for summary judgment and look at the evidence in the light most favorable to the nonmovant to determine whether a genuine issue of material fact exists that a jury should decide. Wellstar Health System v. Painter, 288 Ga. App. 659, 660 (655 SE2d 251) (2007).

Construed in favor of the Rindsbergs, the evidence shows that 85-year-old Vera Rindsberg visited the emergency room at St. Joseph’s Hospital in Atlanta on February 5, 2009 and again on Saturday and Sunday February 7-8, 2009, with complaints, among other things, of nausea and vomiting. On the second visit, Rindsberg saw an emergency room physician who ordered tests and an x-ray, and Dr. Levy was called to determine if Rindsberg should be admitted to the hospital and for treatment. Levy is a hospitalist employed by Georgia Inpatient Medicine Associates, LLC (“GIMA”), and, in addition to her medical duties, she is the “medical director” of GIMA’s practice at St. Joseph’s, responsible for administrative duties including scheduling GIMA’s hospitalists, who are on duty at St. Joseph’s 24 hours a day. Levy saw Rindsberg at 11:30 a.m., took a history, performed a physical examination, and reviewed the x-rays and other tests; based on this information she diagnosed Rindsberg with nausea, vomiting and constipation, and she admitted Rindsberg to the hospital and prescribed medication. On Sunday morning, Levy saw Rindsberg and found that her symptoms had alleviated; she issued discharge orders just prior to 3:00 that afternoon, although she did not see Rindsberg again after the morning examination.

At about 4:00 p.m., Rindsberg’s son Frank, who lives in the Atlanta area, called his brother Dr. Steve Rindsberg, a radiologist in California, to tell him of the decision to discharge their mother and that their mother would be alone at home that evening. Steve was concerned about her being discharged in the evening and going home alone, so at about 5:00 or 5:30 p.m., prior to Rindsberg’s actual departure, Steve called his mother and asked her how she was doing. As a result of that conversation, Steve called the nursing station and asked for Dr. Levy, who was not available, so he spoke to his mother’s nurse about her condition. Based on that conversation, Steve was concerned that his mother was not doing well and worried whether she should spend another night in the hospital, although he did not think that her condition was life-threatening. Steve hung up, called the hospital operator, and asked her to page Levy, who did not respond. Steve was eventually given the answering service for Levy’s medical group, where he left a message.

Dr. Neacsu, another hospitalist employed by GIMA who was working a late shift, testified that she received a page from GIMA’s answering service with a message that the patient’s son was concerned about his mother. Neacsu testified that another GIMA doctor was also on duty at the time of Steve’s page but that the two of them “pass that pager from one person to another, just to kind of share the responsibilities.” After receiving the page, Neacsu called Rindsberg’s nurse and asked if anything acute was going on and whether she needed to do something; she also told the nurse to let her know “if anything changes or if you need me.” She testified that she then texted Levy, explaining that “Mrs. Rindsberg’s son wants to talk to her because he has some concerns about her discharge ... not being ready for discharge.” Neacsu testified that Levy stated in a reply text that the patient was stable for discharge, that she was aware of the situation, and she would call the son at some later time. Neacsu then called Steve back.

Steve testified that after he introduced himself, Neacsu explained that Levy had received his calls and would be calling him the next day. Steve asked Neacsu if she was familiar with his mother’s condition. Neacsu replied that she was not but that she trusted her colleague’s medical judgment. Steve added that he had spoken to the nurse and that he understood that his mother’s condition had changed, that she did not look well, that she was uncomfortable, and that the nurse thought she was not doing well. Steve asked Neacsu if she would mind taking a look at his mother and assessing if she thought there had been a change in her condition.

Neacsu responded that she was the doctor on call but that meant she was responsible for admitting patients, not seeing them in the hospital. She then reiterated, “Dr. Levy is my colleague and I trust her medical judgment.” Steve continued that he was concerned about his elderly mother going home and being alone so soon after having had an enema (which he understood she had received); he was worried that she was at risk of falling; and he asked if Neacsu thought it was a good idea to keep her overnight. Neacsu responded, “I’m sorry, there’s nothing I can do for you. Your mother is being discharged and I trust Dr. Levy’s medical judgment.” The call ended, leaving Steve astonished that Neacsu had refused to see his mother, although he did not take any further steps to keep his mother in the hospital that night.

Neacsu’s testimony about the phone call parallels Steve’s. She testified that Steve explained he wanted to get in touch with Levy “[t]o discuss about his mother’s conditions, and he was worried about her not being ready to be discharged.” She recalled that he was worried that it was late and also worried that her appetite was poor. She admitted that Steve essentially asked her to examine his mother and form her own opinion. She testified that she did not do so because Rindsberg was not her patient, she had notified the attending physician and the nurse, and she had not been requested “by the attending physician, nurse, or the patient to see that patient.” She added that Steve had not asked her to “take over the case or remove Dr. Levy from the case.”

Steve then called Frank and told him about the conversation. Frank arranged to have a caregiver (not a nurse) stay with their mother that night after her discharge; and Frank picked her up between 8:00 and 8:30 p.m. and took her home where she spent the night with the caregiver. Sadly, paramedics had to be called early the next morning; their report states that “at 4:33 [a.m.] patient had massive vomit and stopped breathing.” She died shortly thereafter. There are allegations and factual issues as to whether Rindsberg died from a gastrointestinal condition that should have been detected before she was discharged.

In her deposition, Levy was asked who should be contacted to take care of one of her patients if she was not on duty; she answered “The physician on call for me.” And she clarified that she would expect that physician to deal with the medical issue that is presented without calling her. She does not recall any conversations with Neacsu the day that Rindsberg was discharged. She testified it was plausible that Neacsu sent her a text regarding Steve’s call, but she did not recall receiving one. She testified she never spoke with Steve that day and never learned he was concerned that his mother’s condition was deteriorating, which was something she would have wanted to know. She testified that if she had been given that information, she would have spoken to him about it and decided what course of action to take.

The plaintiffs’ expert, Dr. Edward Weis sman, opined that Neacsu breached the standard of care when she refused to re-evaluate Rindsberg based on Steve’s request and when she refused to countermand the prior discharge order given that Rindsberg was unstable at the time.

“Georgia law is clear that physician-patient privity is an absolute requirement for the maintenance of a professional malpractice action.” Medical Center of Central Ga. v. Landers, 274 Ga. App. 78, 84 (1) (b) (616 SE2d 808) (2005).

[B] efore a plaintiff may recover on the theory that he received negligent treatment from a defendant physician, the plaintiff must show that a doctor-patient relationship existed between them. In such cases, called “classic medical malpractice actions” by the Court of Appeals, doctor-patient privity is essential because it is this “relation which exists between physician and patient which is a result of a consensual transaction” that establishes the legal duty to conform to a standard of conduct.

Bradley Center v. Wessner, 250 Ga. 199, 201 (296 SE2d 693) (1982). “The relationship is considered consensual [when] the patient knowingly seeks the assistance of the physician and the physician knowingly accepts [her] as a patient.” (Citation and punctuation omitted.) Peace v. Weisman, 186 Ga. App. 697, 698 (1) (368 SE2d 319) (1988). Such a relationship may also be implied, and we have held that, while a physician’s on-call status alone is not enough to find that the physician impliedly consented to a physician-patient relationship, such a “relationship may be found . . . where a physician has done something, such as participate in the patient’s diagnosis and treatment, that supports the implication that she consented to a physician-patient relationship.” Anderson v. Houser, 240 Ga. App. 613, 618 (1) (523 SE2d 342) (1999).

Construing the above evidence in favor of the Rindsbergs would support the following conclusions: (1) that as the on-call doctor for GIMA who received Steve’s page, Neacsu was responsible for treating the patient in the absence of Levy; (2) that Neacsu did not learn that Steve thought that his mother’s condition was deteriorating until after she had exchanged texts with Levy and spoken to Rindsberg’s nurse; (3) that she did not subsequently transfer this information to Levy; and (4) that she refused to examine Rindsberg to investigate whether the information was correct even though she had herself previously contacted Rindsberg’s nurse and checked on the patient. In other words, the GIMA doctor assigned the responsibility for treating the patient and who, in fact, had called to check on the patient, failed to take any action whatsoever in response to receiving new information that the attending doctor would have wanted to know for the purpose of treating the patient. Thus, there is an issue of fact regarding an implied physician-patient relationship, as well as liability.

We did not find that the facts in Anderson, 240 Ga. App. 613, established a genuine issue in this regard because in that case the defendant doctor, who was the scheduled on-call physician when the plaintiff was admitted to the emergency room, was not in fact performing in that role at the time because he was out of town during the plaintiffs entire hospital stay. Id. at 614-615. Instead, there was a chain of command at the hospital that was supposed to be followed in the event that an on-call physician was not available. Id. at 614. In addition, the defendant doctor never met the plaintiff, was not consulted about the plaintiff, did not have any conversations with anyone about the plaintiff, and “was not aware of her existence.” Id. at 615 (1).

The case of Guida v. Lesser, 264 Ga. App. 293 (590 SE2d 140) (2003), is also factually distinguishable. In that case, the wife of a patient who made an appointment with a cardiovascular doctor for a stress test for her husband based on a referral from his family practitioner brought suit against the cardiovascular doctor alleging that if the doctor’s practice had given her husband an earlier appointment, he might not have died in the interim. But the undisputed facts showed that

[o]ther than the referral and the telephone conversation with [the decedent’s wife] to set up the appointment, there is no evidence that [the cardiovascular doctor] or any of his employees had any contact with [the decedent] or that [the doctor] had any information about [the decedent’s] medical condition or had rendered any opinion or given any advice about his care and treatment.

Id. at 298.

Here, in contrast, when construed in favor of the Rindsbergs the evidence shows that Neacsu was on duty and on call receiving pages. And even though Neacsu denies it, per the testimony of Dr. Levy, she was responsible for medical treatment of Levy’s patients in Levy’s absence. She in fact contacted Mrs. Rindsberg’s nurse at one point and asked about her condition. Thus, there is some evidence she impliedly agreed to accept Mrs. Rindsberg as a patient, which creates an issue of fact as to whether a physician-patient relationship existed in this case. Accordingly, the trial court erred by granting summary judgment in favor of Neacsu.

Judgment reversed.

Barnes, P. J., and McFadden, J., concur.

Decided July 12, 2012

Reconsideration denied July 30, 2012

Kaplan & Lukowski, Jay D. Lukowski, for appellants.

Huff, Powell & Bailey, Daniel J. Huff, Leslie E. Cline, Hall, Booth, Smith & Slover, Shaun Daugherty, for appellee.

       The Society of Hospital Medicine defines a hospitalist as “A physician who specializes in the practice of hospital medicine.” See http://www.hospitalmedicine.org.

       All references to the time will he in Eastern Standard Time.

       Neacsu also testified, however, to a different sequence of events: that first she spoke to Steve, then the nurse, then exchanged texts with Levy. But the doctor’s testimony is construed against her for the purpose of summary judgment.


author: McFADDEN, Judge.

text:
    A12A0442.
    PNC BANK, N.A. v. TIDWELL et al.
    (728 SE2d 786)
   McFADDEN, Judge.

Jennifer and Truman Littleton filed this action against National City Mortgage Company, asserting multiple claims arising from the allegedly wrongful foreclosure of a security deed. The trial court granted summary judgment to the Littletons and against National City Mortgage on the Littletons’ breach of contract claim, and PNC Bank, N.A. filed this appeal. Because PNC Bank lacks standing to appeal an order entered against National City Mortgage, we dismiss the appeal.

The Littletons filed the complaint against National City Mortgage in 2007. (At one point, the trial court substituted bankruptcy trustee J. Coleman Tidwell for Jennifer Littleton as plaintiff.) National City Mortgage filed an answer. Eventually, National City Mortgage stopped filing pleadings and “Defendant PNC Bank, N.A., the successor to National City Mortgage” began filing pleadings, although in the captions to the pleadings “National City Mortgage Company” was still listed as defendant. The appellate record contains no motion to correct the name of the defendant, order substituting PNC for National City Mortgage, or any other document indicating that PNC was substituted for National City Mortgage, the entity the plaintiffs sued and served with the complaint.

In an order entered in May 2011, the trial court, among other things, denied National City Mortgage’s motion for summary judgment and granted the plaintiffs’ motion for summary judgment on the breach of contract claim. The order listed National City Mortgage in the caption, and in the body simply referred to “Defendant”; nowhere in the order did the court refer to PNC. Nonetheless, PNC filed this appeal.

Like our Supreme Court, “[t]his [c]ourt has a solemn duty to inquire into its jurisdiction to entertain an appeal whenever there may be any doubt as to its existence.” First Christ Holiness Church v. Owens Temple First Christ Holiness Church, 282 Ga. 883, 884 (655 SE2d 605) (2008). We conclude that we lack jurisdiction over this appeal. “It is well settled that only a party to the case can appeal from a judgment, or one who has sought to become a party as by way of intervention and has been denied the right to do so.” (Citation and punctuation omitted.) Degussa Wall Systems v. Sharp, 286 Ga. App. 349, 350 (648 SE2d 687) (2007). See also OCGA § 5-6-33 (a) (1) (“Either party in any civil case ... in the superior, state, or city courts may appeal from any . . . judgment, decision, or decree of the court____”); Davis v. Deutsche Bank Nat. Trust Co., 285 Ga. 22, 24 (673 SE2d 221) (2009) (“the order or judgment must be appealable by the party filing the notice of appeal”).

Decided June 8, 2012

Reconsideration denied July 30, 2012

Ballard Spahr, Charley F. Brown, Stefanie H. Jackman, Christopher J. Willis, for appellant.

Sell & Melton, Edward S. Sell III, Pamela L. Coleman, for appellees.

PNC was never made a party to this lawsuit and has no standing to appeal the trial court’s entry of partial summary judgment against National City Mortgage. The fact that counsel unilaterally changed the defendant to PNC did not make PNC a party to the lawsuit. Degussa, 286 Ga. App. at 351. Under the Civil Practice Act, the addition, dropping or substitution of parties requires an order of the trial court. See OCGA §§ 9-11-21, 9-11-25; Memar v. Styblo, 293 Ga. App. 528, 530, n. 4 (667 SE2d 388) (2008) (“Where the effort is not to correct a misnomer but to add or substitute a new party by amendment, OCGA § 9-11-15 (a) must be read in pari materia with OCGA § 9-11-21, which requires a court order.”).

Because the trial court never added or substituted PNC as the defendant, we must dismiss PNC’s appeal. Degussa, 286 Ga. App. at 351. See also Moore v. REO Properties Accredited Home Lenders, 307 Ga. App. 661, 662 (705 SE2d 887) (2011) (discrepancy between the name of the plaintiff in the order and the name of the appellee required reversal and remand).

Appeal dismissed.

Barnes, P. J., and Adams, J., concur.


text:
    A12A0755.
    KOUCHE v. FARR et al.
    (730 SE2d 45)
   Barnes, Presiding Judge.

In this case involving an action for personal injury, Janis Kouche appeals from the order of the trial court granting summary judgment to Stephen P. Farr and Pamela A. Farr. Kouche contends that the Farrs were not entitled to summary judgment because, among other things, the issues as to superior knowledge, ordinary care, and negligence should be decided by a jury. Following our review, 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). Ade 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.

(Punctuation and footnote omitted.) Jones v. Murphy, 306 Ga. App. 539 (703 SE2d 26) (2010). If no issue of material fact exists and the moving party is entitled to judgment as a matter of law, summary judgment is proper. OCGA § 9-11-56 (c).

Viewed in that light, the evidence shows that on January 8,2010, Kouche went to the Farrs’ home to pick up Mrs. Farr to take her to Kouche’s home for a retreat with some of their friends. The driveway of the Farrs’ home was covered with ice and snow, and Mr. Farr could not drive either of the couple’s vehicles out of the driveway. They had contacted Kouche and, after telling her about the icy driveway, she agreed to pick up Mrs. Farr. Kouche parked at the top of the Farrs’ driveway, walked down stairs located to the left of the driveway, and then walked across the driveway to get to the house. In her deposition testimony, Kouche recalled that it was very slippery and that she was “very cautious” when she was walking on the driveway. After reaching the house, Kouche crossed over the same area of the driveway and carried Mrs. Farr’s things to her car, returned back to the house to get Mrs. Farr and her remaining items, and navigated the same path across the icy driveway to her car for the fourth time.

Kouche offered to get some items for Mr. Farr before going home, and after going to the grocery store, the two women drove back to the Farrs’ home. Kouche parked her car at the top of the Farrs’ driveway, and Mrs. Farr got out of the car to take the groceries inside. After some time, Kouche looked to see what was taking Mrs. Farr so long, and saw that the woman was “sliding on the driveway,” that her “legs were trying to spread” apart, and that Mrs. Farr was stuck in the snow and ice and could not move. Kouche left her car to help Mrs. Farr because she believed that her friend was “going to fall.” Kouche testified that she was cautious when she got out of her car because of the ice, and that Mrs. Farr “was bent almost in half trying to get a balance on the ice and there was no balance.” Kouche said that as she approached her friend, Mrs. Farr reached for her, and although she tried to plant her feet, she could not get any traction, and both women fell. Kouche suffered a broken wrist.

Where an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.

OCGA § 51-3-1; Jackson v. Waffle House, 245 Ga. App. 371, 373 (1) (537 SE2d 188) (2000). But, “[a]n owner or occupier is not an insurer of an invitee’s safety. The law requires only such diligence toward making the premises safe as the ordinarily prudent person in such matters is accustomed to use.” (Punctuation and footnotes omitted.) Hamblin v. City of Albany, 272 Ga. App. 246, 248 (612 SE2d 69) (2005).

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

Robinson v. Kroger Co., 268 Ga. 735, 749 (2) (b) (493 SE2d 403) (1997). “[I]t is a plaintiff’s knowledge of the specific hazard which precipitates the slip and fall which is determinative, not merely his knowledge of the generally prevailing hazardous conditions or of the hazardous conditions which he observes and avoids.” (Emphasis in original.) Telligman v. Monumental Properties, 161 Ga. App. 13, 16 (2) (288 SE2d 846) (1982). In slip and fall cases involving where the accumulation of substances such water or ice

on a premises is naturally occurring and not attributable to any affirmative action on the proprietor’s part, the proprietor has no affirmative duty to discover and remove it in the absence of evidence that it had become an obvious hazard by means other than natural accumulation.

Decided July 2, 2012

Reconsideration dented July 30, 2012.

Hulsey, Oliver & Mahar, Abbott S. Hayes, Jr., Jessica M. Lund, for appellant.

(Citations and punctuation omitted.) Cleveland v. Snowdrop Properties, 232 Ga. App. 447, 448 (501 SE2d 546) (1998).

Here, the undisputed evidence establishes that Kouche’s knowledge of the icy conditions in the Farrs’ driveway at the time of the incident was at least equal, if not superior, to that of the Farrs. Kouche was aware of the wintery conditions, and that the Farrs’ driveway was so covered with ice that the couple could not navigate their cars out of the area. She walked across the driveway four times and acknowledged that she navigated the driveway cautiously each time she approached the Farrs’ home because the area was extremely slippery.

Further, when she was injured, Kouche was going to the aid of Mrs. Farr, who was stuck on the ice. Kouche observed her friend sliding on the ice, and it was obvious that to assist her friend she would have to navigate the same icy area. Kouche’s equal knowledge of the perilous icy conditions bars her recovery. See Elder v. Care-More, 224 Ga. App. 712, 713 (481 SE2d 870) (1997) (plaintiff knew about wintry conditions and had observed snow on defendant’s pavement); Columbus Doctors Hosp. v. Thompson, 224 Ga. App. 682, 683-684 (482 SE2d 705) (1997) (plaintiff’s equal knowledge of invisible ice hazard following snow storm warranted summary judgment). Compare Wallace v. Nissan of Union City, 240 Ga. App. 658, 660 (1) (524 SE2d 542) (1999) (no evidence that plaintiff knew about the ice on which he slipped).

In this case, “the evidence presented plainly, palpably, and indisputably leads to the conclusion that [Kouche] had actual or constructive knowledge of the presence of icy conditions before she left her car to traverse the [Farrs’ driveway].” Gilliam v. Fletcher Bright Co., 244 Ga. App. 315, 316 (1) (535 SE2d 325) (2000). Therefore, the trial court did not err in granting summary judgment to the Farrs.

Judgment affirmed.

Adams and McFadden, JJ., concur.

Forrester & Brim, Robert S. Lazenby, Elizabeth F Latta, for appellees.