author: McFadden, Judge.

text:
    A12A0884.
    DIXIE ROADBUILDERS, INC. et al. v. SALLET et al.
    (733 SE2d 511)
   McFadden, Judge.

Melvin Sallet died from injuries sustained in a shooting at a convenience store. His adult children and his estate brought a wrongful death action against Sallet’s employer, Dixie Roadbuilders, Inc., and Dixie Roadbuilders’ president and part-owner, Alton C. Walker, Jr., among others. Dixie Roadbuilders sought summary judgment on the ground that the action against it was precluded by the exclusive remedy provision of the Workers’ Compensation Act. Walker sought summary judgment on the ground that he could not be held personally liable, as a corporate officer of Dixie Roadbuilders, for that company’s alleged tortious acts. The trial court denied these motions, and we granted the defendants’ application for interlocutory review.

We find that a factual question exists as to whether workers’ compensation applies to Sallet’s injuries, and we find that the plaintiffs may challenge the applicability of workers’ compensation to those injuries, notwithstanding Dixie Roadbuilders’ voluntary workers’ compensation payment of Sallet’s funeral expenses. Accordingly, we affirm the denial of summary judgment to Dixie Roadbuilders. We also find that a factual question exists as to whether, apart from Walker’s role as a corporate officer of Dixie Roadbuilders, he also was the owner and operator of the Dixie Express convenience store and subject to potential liability in that capacity. Accordingly, we affirm the denial of summary judgment to Walker.

Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. OCGA § 9-11-56 (c). “On appeal from the grant or denial of a motion for summary judgment, we review the evidence de novo, and all reasonable conclusions and inferences drawn from the evidence are construed in the light most favorable to the nonmovant.” (Citation omitted.) Spectera, Inc. v. Wilson, 317 Ga. App. 64, 66 (730 SE2d 699) (2012).

1. Facts.

So viewed, the evidence showed that Dixie Roadbuilders employed Sallet as a loader operator at its asphalt plant. Sometime during the afternoon of October 17, 2005, Sallet left the plant and drove to the nearby Dixie Express convenience store. While Sallet was at the store, a robbery occurred, and he was shot. He subsequently died of his injuries.

The Dixie Express store is associated with Dixie Roadbuilders, but the relationship between the two entities is unclear from the evidence. Dixie Roadbuilders employed the store’s workers, and one witness described the store as a division of Dixie Roadbuilders. One of Dixie Roadbuilders’ co-owners deposed that Dixie Roadbuilders leased the store from another party. The other co-owner, Dixie Roadbuilders’ president Alton C. Walker, Jr., deposed that Dixie Roadbuilders owned the store. But Walker also represented himself to be the “owner/operator” of Dixie Express in sworn statements made in connection with the store’s business license and occupational taxes. Although Dixie Roadbuilders’ corporate secretary deposed that Walker signed those statements in his capacity as Dixie Roadbuilders’ president, the documents do not reflect any relationship between Dixie Roadbuilders and Dixie Express.

The main purpose of the Dixie Express store was to provide a place near the plant for Dixie Roadbuilders trucks to refuel. The store also was open to the public and sold items such as drinks and snacks. Sallet often took an afternoon break to get a drink from the store. He did not need permission to do this, but would “just jump in his truck and go.” On the day in question, Sallet did not tell his supervisor or any other person at Dixie Roadbuilders that he was leaving the plant. Various persons at Dixie Roadbuilders assumed he had taken a break to get a drink, however, because he had left his loader parked in the plant’s yard rather than securing it under a shelter as was his usual practice when he left work for the day.

Sallet also was in the habit of stopping at the Dixie Express store before or after work. And, although he usually worked until 5:00 p.m., he would sometimes leave earlier if work was slow. There is evidence that he did not need permission to leave early, but also that he never left early without asking. He did not ask to leave early on the day of the shooting. But Sallet had made plans with one of his daughters for her to visit him at his house or call him at his house that afternoon, after her child got home from school.

After the shooting, Dixie Roadbuilders filed a claim with its workers’ compensation insurance carrier. In response to this claim, the carrier made a payment directly to the funeral home for Sallet’s funeral expenses and a payment to the State Board of Workers’ Compensation pursuant to OCGA § 34-9-265 (f). The plaintiffs, however, neither sought workers’ compensation benefits from Dixie Roadbuilders nor requested that it file the claim with its insurance carrier. They did not know that the funeral costs had been paid by Dixie Roadbuilders’ workers’ compensation carrier but believed that these costs had been paid by a friend of Sallet.

2. Questions of fact regarding the applicability of the Workers’ Compensation Act preclude the grant of summary judgment to Dixie Roadbuilders.

Dixie Roadbuilders argues that it is entitled to summary judgment because the exclusive remedy provision of the Workers’ Compensation Act, OCGA § 34-9-11, precludes the plaintiffs’ tort suit against it. The Workers’ Compensation Act

provides benefits to an employee injured in an accident arising out of and in the course of the employment. [OCGA § 34-9-1 (4).] The legislature has expressly codified its intent that the Act be liberally construed to bring both employers and employees within the [A]ct. [OCGA § 34-9-23.] Where the Act is applicable, its provisions are the exclusive remedy for the employee against the employer. [OCGA § 34-9-11.]

Doss v. Food Lion, 267 Ga. 312 (1) (477 SE2d 577) (1996).

Dixie Roadbuilders contends that the Act applies because Sal-let’s death arose out of and in the course of his employment. These are “two independent and distinct criteria, and an injury is not compensable [under the Act] unless it satisfies both.” (Citation omitted.) Mayor &c. of Savannah v. Stevens, 278 Ga. 166 (1) (598 SE2d 456) (2004). An injury or death arises out of employment “when it is apparent to the rational mind, upon consideration of all the circumstances, that there is a causal connection between the conditions under which the work is required to be performed and the resulting injury.” (Citations and punctuation omitted.) Blair v. Ga. Baptist &c. Ministries, 189 Ga.App. 579, 580-581 (1) (377 SE2d21) (1988). Accord Ray Bell Constr. Co. v. King, 281 Ga. 853, 855 (642 SE2d 841) (2007). An injury or death arises in the course of employment

when it occurs within the period of the employment, at a place where the employee reasonably may be in the performance of [his] duties, and while [he] is fulfilling those duties or engaged in doing something incidental thereto. This statutory requirement relates to the time, place and circumstances under which the injury takes place.

(Citation omitted.) Burns Intl. Security Svcs. Corp. v. Johnson, 284 Ga. App. 289, 292 (1) (b) (643 SE2d 800) (2007). Accord Ray Bell Constr., 281 Ga. at 854-855. Whether an injury arises out of andinthe course of employment is generally a mixed question of law and fact. Blair, 189 Ga. App. at 581 (1).

Dixie Roadbuilders argues that Sallet’s death satisfies both criteria as a matter of law. It bases this argument on its assertions that, when Sallet went to the Dixie Express store, he had not left work for the day and he was not on a personal pursuit. But, as explained below, the evidence as to both of these assertions is conflicting and consequently does not support a grant of summary judgment to Dixie Roadbuilders.

(a) A question of fact exists as to whether Sallet had left work for the day. First, there is conflicting evidence regarding whether, at the time of the shooting, Sallet had left work for the day or merely was on a break and planning to return to work. This issue is material to the applicability of workers’ compensation (and thus the exclusive remedy provision) because

[t]he hazards encountered by employees while going to or returning from their regular place of work, before reaching or after leaving the employer’s premises, are not ordinarily incident to the employment, and for this reason injuries from such hazards are in most instances held not to be compensable as arising out of and in the course of the employment.

(Citation omitted.) Harrison v. Winn Dixie Stores, 247 Ga. App. 6, 7 (542 SE2d 142) (2000).

Dixie Roadbuilders argues that Sallet had merely taken a short break, pointing to evidence such as his practice of taking a mid-afternoon break, the fact that he did not seek permission to leave for the day, and the fact that he had left his loader in the plant yard, rather than securing it under a shelter for the night. But there also is evidence that Sallet had left work for the day, namely his practice of leaving early when work was slow, the fact that he did not need to seek permission to leave, and the fact that he had made plans with his daughter for that afternoon. From this conflicting evidence, a jury could find that Sallet had left work for the day when he was shot. (Given this conflicting evidence, and in light of the fact that the evidence rules in Georgia will be changing on January 1, 2013, we decline to address the admissibility of other evidence that, shortly before the shooting, Sallet told a friend on the telephone that he had left work for the day and was going to the store.) Although there are several exceptions to the general rule that an injury is not compensable under workers’ compensation when it occurs after an employee has left work, see Harrison, 247 Ga. App. at 7-8, the undisputed evidence does not show that any of those exceptions apply in this case.

We reject Dixie Roadbuilders’ assertion that the Dixie Express store is analogous to the employer-owned parking lot in Macy’s South v. Clark, 215 Ga. App. 661 (452 SE2d 530) (1994), such that an injury sustained on that premises by an employee leaving work for the day could be considered an injury arising out of and in the course of employment. The decision in Macy’s was an application of the ingress and egress rule, and the employee in Macy’s was in the employer-owned parking lot in the course of her egress from her workplace. See id. at 664 (2). Here, in contrast, Sallet’s trip to the Dixie Express store was not part of his egress from his workplace. Had he chosen, after leaving work for the day, to stop at a nearby convenience store that was not affiliated with his employer, workers’ compensation clearly would not apply. See generally Harrison, 247 Ga. App. at 7. We see no basis for a different outcome simply because, in this case, the convenience store was affiliated with the employer.

(b) A question of fact exists as to whether Sallet’s trip to the store was a deviation from his employment and therefore a personal pursuit. Even if Sallet merely took a break when he went to the Dixie Express store, this does not demonstrate that the injury he sustained during that break arose out of and in the course of his employment. Georgia courts recognize the deviation rule, which provides that

when an employee steps aside from his employer’s business to do some act of his own, not connected with his employer’s business, the relationship of employer and employee, or master and servant, is, as to that act, completely suspended, and an accident occurring at that time, resulting in injury to the employee, does not arise out of the employment within the meaning of the [Workers’] Compensation Act.

(Citations and punctuation omitted.) Olde South Custom Landscaping v. Mathis, 229 Ga. App. 316, 318 (494 SE2d 14) (1997). Accord Stokes v. Coweta County Bd. of Ed., 313 Ga. App. 505, 508-509 (722 SE2d 118) (2012).

Our courts have found such a deviation from employment when an employee leaves the employer’s premises to go home or to a restaurant for a meal, runs a personal errand such as going to a shop, or, while traveling on business, goes on an excursion solely for personal entertainment.

(Citations omitted; emphasis supplied.) Stokes, 313 Ga. App. at 509.

Dixie Roadbuilders asserts that the evidence demands a finding that Sallet’s “trip to the Dixie Express store for a break was not a ‘personal’ pursuit outside the scope of his employment since the time was ‘not released to him as free time’ during which he could do as he wished.” But the evidence showed that Sallet left his work premises without seeking his employer’s permission, and there is no evidence to suggest that he was fulfilling a part of his work duties while he was at the Dixie Express store, compare Blair, 189 Ga. App. at 582 (2), or that he was subject to being called back to work while he was at the store. Compare Twin City Fire Ins. Co. v. Graham, 139 Ga. App. 318, 319 (228 SE2d 355) (1976). To the contrary, Sallet’s supervisor did not know his whereabouts.

Nevertheless, Dixie Roadbuilders argues that Sallet’s trip to the Dixie Express store was not a personal pursuit because his breaks were not scheduled but depended on his workload. The cases Dixie Roadbuilders cites for this proposition, however, are inapposite, because they all involve employees who were at their workplace when they were injured during the break. See Miles v. Brown Transport Corp., 163 Ga. App. 563 (294 SE2d 734) (1982) (an employee who fell on stairs at her workplace as she was in the process of leaving to take a lunch break had an injury arising out of and in the course of her employment, because she was injured during her work hours on her employer’s premises, because the precise time of her lunch break was not scheduled, and because she often performed job-related duties during her lunch break); Twin City Fire Ins. Co. v. Graham, 139 Ga. App. at 319 (workers’ compensation covered an injury that occurred during an operating room nurse’s break, where the nurse had no scheduled breaks, could take breaks only when the operating room activities permitted, was not able to leave the premises during the break, and was subject to being called back to the operating room at any time); Edwards v. Liberty Mut. Ins. Co., 130 Ga. App. 23, 24 (2) (202 SE2d 208) (1973) (an injury sustained by an employee during an unscheduled bathroom break was covered by workers’ compensation, because “the time [was] not released to [the employee] as free time during which he may do as he will and it cannot be construed as an altogether personal pursuit, as is the case during scheduled breaks”).

Unlike the employees in the cases cited by Dixie Roadbuilders, Sallet did not stay on his work premises during his break, and there is no evidence that he was at the convenience store in furtherance of Dixie Roadbuilders’ business. As such, the break resembled a personal pursuit, even though it was unscheduled. See Ansa Mufflers Corp. v. Law, 192 Ga. App. 45 (383 SE2d 574) (1989) (employee who was injured during his lunch break was not in the course of his employment at the time, even though he was allowed to eat lunch whenever he wanted rather than at a specific, scheduled time, where he had left work in his own car to go home for the break, he was not on an errand for his employer, and he was not going to conduct any further business until after the break). That the convenience store may have been owned, leased, or operated by Dixie Roadbuilders does not change the fact that it was not Sallet’s work premises.

Under these circumstances, we cannot say as a matter of law that Sallet’s trip to the store was not a personal pursuit outside the course of his employment at the asphalt plant. Rather, the evidence presents a question of fact as to whether Sallet deviated from his employment.

3. The plaintiffs are not estopped from challenging the applicability of the Workers’ Compensation Act.

Dixie Roadbuilders argues that the plaintiffs cannot challenge the applicability of the Act (and, consequently, the exclusive remedy provision) in this case because they accepted workers’ compensation benefits. The evidence shows that Dixie Roadbuilders instituted a workers’ compensation claim on Sallet’s behalf through its workers’ compensation insurance carrier, and that the carrier made a payment to the funeral home and a payment to the state Workers’ Compensation Board. This constituted a “voluntary payment” of workers’ compensation benefits. See Collins v. Grafton, Inc., 263 Ga. 441, 442 (1), n. 3 (435 SE2d 37) (1993) (“The term Voluntary payment’ is used to denote workers’ compensation benefits paid by an employer without an adjudication of the compensability of the underlying injury.”). The plaintiffs did not request, and in fact were unaware of, this payment.

A party’s acceptance of workers’ compensation benefits can trigger the exclusive remedy provision and estop that party from denying that an injury was covered by workers’ compensation. See, e.g., Mann v. Workman, 181 Ga. App. 211, 213 (1) (351 SE2d 680) (1986). In the case of a “voluntary payment,” however, our Supreme Court has stated that

an employer in a situation where coverage is questionable should not be able to voluntarily assume liability for the limited benefits of the Workers’ Compensation Act and thereby avoid the potentially greater liability of a common-law action. Unbridled application of the doctrine of equitable estoppel cannot be a means by which the very purpose of the Act is thwarted. The successful continuation of the workers’ compensation system requires that studied caution be exercised before the doctrine of estoppel is applied against an injured party who does nothing more than receive compensation benefits voluntarily provided by an employer.

(Citation omitted.) Collins, 263 Ga. at 444 (3). Accordingly, the Court held in Collins that an employer’s voluntary

payment of some of [an injured employee’s] medical bills directly to the medical personnel involved, in and of itself, [could not] estop [the employee] to deny compensability since her acceptance of partial payment of her medical expenses [was] not inconsistent with her assertion of a tort claim, as [the employer] was potentially liable for the medical expenses under a common-law theory of negligence.

Id. at 443 (2).

Similarly, even if the plaintiffs couldbe viewed as having “accepted” the insurance carrier’s payment of Sallet’s funeral expenses despite being unaware that the carrier had paid them, their acceptance of the payment of funeral expenses is not inconsistent with their assertion of tort claims against Dixie Roadbuilders and does not estop them from contesting the applicability of workers’ compensation coverage in this case. Collins, 263 Ga. at 443 (2). Consequently, the payment of funeral expenses by Dixie Roadbuilders’ insurance carrier does not authorize the grant of summary judgment to it on the theory of estoppel. Id. at 443-444 (2).

4. Questions of fact exist as to Alton Walker’s individual ownership interest in Dixie Express, precluding summary judgment on the ground that he is not liable in his role as a corporate officer.

Walker argues that he is entitled to summary judgment because he is merely a corporate officer of Dixie Roadbuilders who cannot be held personally liable for his corporate principal’s torts, in that he did not personally participate in the torts and no basis exists for piercing the corporate veil. We disagree.

The plaintiffs alleged that Walker breached duties imposed upon him by virtue of his role as the owner and operator of Dixie Express, not by virtue of his role as a corporate officer of Dixie Roadbuilders. See OCGA § 51-3-1 (“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.”). Whether Walker was the owner and operator of Dixie Express is a matter of dispute. Walker points to evidence that Dixie Express was either owned or leased and operated by Dixie Roadbuilders, and not by Walker individually. But the plaintiffs point to Walker’s own sworn statements in which he identified himself as the “owner/operator” of Dixie Express. Although Walker now disputes the accuracy of those statements, his credibility on this point is a question for the factfinder, not an issue for this court to resolve on summary judgment. See Harding v. Ga. Gen. Ins. Co., 224 Ga. App. 22, 25 (479 SE2d 410) (1996).

Walker argued before the trial court that he cannot be liable in his role as a corporate officer of Dixie Roadbuilders. He has not made any arguments regarding his potential liability as the “owner/operator” of Dixie Express, and we cannot consider whether Walker might be entitled to summary judgment for reasons not argued before the trial court. See Lowery v. Atlanta Heart Assoc., 266 Ga. App. 402, 405 (2) (597 SE2d 494) (2004) (we do not apply a “wrong for any reason” rule). Because a genuine issue of fact exists as to whether Walker was the “owner/operator” of Dixie Express, the trial court did not err in denying his motion for summary judgment.

Decided October 26, 2012.

Ellis, Painter, Ratterree & Adams, Ryburn C. Ratterree, for appellants.

Richard H. Middleton, Jr., for appellees.

Judgment affirmed.

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


source: Caselaw Access Project

author: MCFADDEN, Judge.

license: Public Domain

text:
    A12A1598.
    THE STATE v. JENNINGS.
    (733 SE2d 522)
   MCFADDEN, Judge.

The state appeals from the trial court’s order granting a motion to suppress evidence seized after an unlawful arrest. Because the evidence presented at the suppression hearing supports the trial court’s finding that the arresting officer did not have probable cause to suspect the defendant of driving under the influence of alcohol to the extent that he was a less safe driver, the trial court’s decision is not clearly erroneous, and we affirm.

When reviewing a trial court’s order on a motion to suppress, we must construe the evidence most favorably to uphold the findings and judgment of the trial court, and we review de novo the trial court’s application of the law to undisputed facts. Handley v. State, 294 Ga. App. 236 (668 SE2d 855) (2008). Moreover, the trial court’s decisions with regard to questions of fact and credibility must be accepted unless they are clearly erroneous, and we will not disturb these decisions if there is any evidence to support them. State v. Ellison, 271 Ga. App. 898 (1) (611 SE2d 129) (2005).

So viewed, the evidence shows that on September 27, 2006, the arresting officer and his partner responded to a call of a suspicious vehicle outside a residence. The officers arrived at the scene and found a pickup truck parked in a driveway with the engine and lights on, and with Roy Jennings “kind of asleep” behind the wheel. The officers woke him up, smelled an odor of alcohol coming from the vehicle and asked J ennings to step out of the truck. J ennings’ gait was somewhat unsteady, although he was not weaving or falling down. He said that he had drunk “a little bit,” although the officer could not recall if he asked him precisely how much he had drunk. Jennings’ eyes were glassy and bloodshot, his speech was “[n]ot real slurred but slurred,” and an alco-sensor test was positive for alcohol.

The arresting officer did not perform any field sobriety tests because he was not certified in field sobriety. He also testified that such tests would have been unfair because the area where they were located was not level and was covered by gravel. The officer testified that such terrain might explain Jennings’ slight unsteadiness when he got out of the vehicle. The officer also acknowledged that Jennings’ glassy and bloodshot eyes could have been caused by a lack of sleep.

Based on the evidence, the trial court found that although the state had shown that Jennings had probably been driving the vehicle while drinking, it had failed to show that he was impaired to the extent that he was a less-safe driver.

An individual is guilty of DUI-less safe when [he] operates a motor vehicle while under the influence of alcohol to the extent that it is less safe for [him] to drive. It is well established that evidence which shows only that a defendant had alcohol in [his] body while driving provides insufficient probable cause to arrest for DUI. Impaired driving ability depends solely upon an individual’s response to alcohol. Because individual responses to alcohol vary, the presence of alcohol, in a defendant’s body, by itself, does not support an inference that the defendant was an impaired driver. Moreover, we have repeatedly held that the odor of alcohol on a driver’s breath or a positive result on an alco-sensor test shows only the presence of alcohol and does not support an inference that the driver is intoxicated and it is less safe for [him] to drive. The probable cause needed to conduct an arrest for DUI requires that the officer have knowledge or reasonably trustworthy information that a suspect was actually in physical control of a moving vehicle, while under the influence of alcohol to a degree which rendered [him] incapable of driving safely.

(Citations and punctuation omitted; emphasis in original.) State v. Damato, 302 Ga. App. 181, 182 (1) (690 SE2d 478) (2010).

In this case, while there was evidence showing the presence of alcohol in Jennings’ body, the testimony from the arresting officer was, at best, conflicting as to whether he was under the influence of alcohol to a degree which impaired his ability to drive safely. While the officer testified about certain physical manifestations that might indicate impairment, he also testified that other factors, such as the uneven, gravel-covered terrain and fatigue, could have caused those physical manifestations. The state claims that the arresting officer “opined that [Jennings] was a DUI-Less Safe driver based on his training and experience.” However, a review of the hearing transcript page cited by the state reveals that the officer did not opine that Jennings was a less safe driver, and instead he simply testified that he believed Jennings was under the influence of alcohol when he encountered him. Regardless, even if the officer had opined that he believed Jennings was a less safe driver, the trial court would not have been bound by such opinion and could have rejected it. Damato, supra at 183 (1). In short, the trial court, sitting as the trier of fact and witness credibility, was authorized to find from the evidence that the state had shown the presence of alcohol, but had failed to show that Jennings was under the influence of alcohol to a degree which rendered him incapable of driving safely. “Mere presence of alcohol is not the issue. In a less safe case, the state must prove that the defendant had impaired driving ability as a result of drinking alcohol.” (Citation omitted.) Ojemuyiwa v. State, 285 Ga. App. 617, 620 (2) (647 SE2d 598) (2007).

The state further argues that the trial court improperly refused to review the patrol car video recording of the encounter with Jennings. However, the transcript does not show that the trial court refused to review it. Rather, when the recording was tendered by the state, the court admitted it into evidence and asked if it contained anything different from the officer’s testimony. The prosecutor then stated that it showed Jennings was belligerent at some point, and that “if you look at that tape, it might speak volumes.” The trial court noted that belligerence was insufficient to show that Jennings was impaired, citing Ojemuyiwa, supra, which held that there was insufficient evidence that a defendant who smelled of alcohol and became increasingly belligerent was a less safe driver. The state did not obj ect to the fact that the video had not been played, that the court had not yet watched it, or obtain any ruling from the court by which it refused to review it prior to entering a final written order on the motion. Under these circumstances, even if we assume that the trial court never watched the video prior to entering its written order on a date after the suppression hearing, “[t]he failure to object waives this issue on appeal.” (Citation omitted.) Cummings v. State, 272 Ga. App. 886, 888 (1) (614 SE2d 121) (2005) (failure to object to trial court’s indication at hearing that it would not review a videotape waives issue for appeal).

We are a court for the correction of errors of law, and we cannot draw a different inference from the evidence or make a credibility determination contrary to the one made by the trial court, even if we disagree, as long as there is evidence in the record to support the trial court’s findings.

Decided October 26, 2012.

Peter J. Skandalakis, District Attorney, Robert N. Peterkin, Assistant District Attorney, for appellant.

Virgil L. Brown, Jason W. Swindle, for appellee.

(Citation omitted.) Damato, supra at 183 (1). Because the trial court did not clearly err in finding the state failed to offer sufficient evidence showing probable cause to arrest Jennings for DUI-less safe, we must affirm the decision to grant the motion to suppress. See State v. Gray, 267 Ga. App. 753, 756 (2) (600 SE2d 626) (2004).

Judgment affirmed.

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


author: Adams, Judge.

text:
    A12A1624.
    BARBER v. THE STATE.
    (733 SE2d 525)
   Adams, Judge.

Kelvin Douglas Barber, Jr., was convicted by a jury of arson in the first degree, OCGA § 16-7-60 (a) (3). The trial court denied his motion for new trial, and Barber filed the present appeal, arguing that the evidence was insufficient to support his conviction, and that the trial court erred by failing to charge the jury on his sole defense of accident.

The evidence adduced at trial, viewed to support the jury’s verdict as we must on appeal, shows that on March 4, 2009, Barber and his wife, Denise Barber, lived in a house they jointly owned located at 217 Bonnie Sue Drive in Villa Rica, Georgia. Denise’s sister, Belinda Yvonne Kent, and her two children were also residing in the home at that time.

Barber and Denise were having marital problems, and Barber, who had been unemployed for approximately four years and had been having an affair, had taken money from the couple’s joint bank account that Denise, who was employed at Wal-Mart, used to pay bills. Barber and Denise argued about the money the night before the fire was set, and that argument continued into the next day when Barber went to the bank and discovered that Denise had moved the money from their joint account to an account that he could not access. Barber came home, and the argument continued until Barber left the house. Belinda and her fiancé were leaving the house for an errand and then to go to church, and Denise decided to leave with them so she would not be alone in the house when Barber returned.

Belinda testified that she and her fiancé returned to the house because she forgot her Bible, and that she smelled gasoline as soon as they pulled into the driveway. Belinda looked inside the house through the glass panels by the front door and saw that the foyer was “glazed” with a substance. Although Belinda’s fiancé was urging her to get away from the house, she testified that she noticed lights on inside and put her key into the lock to try and open the door. However, before she could get inside, she saw Barber jump down from the upstairs area to the garage and that the next thing she heard was a “boom.”

Gary Thomas, who was a certified fire investigator and fire chief for the Carroll County Fire Rescue Department, testified that when firefighters entered the house they saw a small fire on the left-hand side of the garage which they extinguished. After the smoke cleared somewhat, firefighters saw a man, subsequently identified as Barber, lying over the driver’s seat into the passenger seat inside a vehicle that was parked on the right side of the garage. Barber would not or could not open the door and officers at the scene took him out of the car. Thomas described Barber as semi-conscious, which, he explained, meant that Barber did not respond to “verbal stimuli” but that he did respond to painful stimuli such as being pinched.

William E. “Bill” Ford, another fire investigator with Carroll County, acted as the independent investigator of the fire, arriving about an hour after the fire had been extinguished. Ford testified that he smelled gasoline immediately upon entering the home and his inspection of the home revealed smoke and heat damage throughout the house but no fire damage to the upper floor. He concluded that the fire had been located in the left side of the garage and testified that the flames melted the nearby duct work. Further, he said that there would have been more damage if the sprinkler system located in the garage area had not properly activated and controlled the fire until firefighters arrived.

Ford said he also discovered three empty quart “squirt” bottles of charcoal lighter fluid in the kitchen garbage can and that he detected the odor of freshly used lighter fluid. He found two more quarts of lighter fluid in a Dollar General bag in the garage. Ford said he also observed what appeared to be torn up books and shredded papers in the upstairs and lower level bathtubs. Ford saw two gasoline containers in the area where the fire started, and opined that gasoline had been poured out onto the floor from one of the containers; he also found three more gas containers in the rear seat of the vehicle where Barber was found. Ford testified that there were wooden kitchen matches “everywhere” and a gas-soaked rag had been stuffed in the neck of the vehicle’s gas tank. Ford later verified that Barber had purchased lighter fluid, matches and three of the gasoline storage cans from a Dollar General Store and had filled the gasoline cans at a Citgo station. Further, certain articles of Barber’s clothes later tested positive for both gasoline and charcoal lighter fluid. Based on this evidence and other evidence, Ford said he determined that the fire had been intentionally set.

Ford interviewed Barber later that night. Barber verified many of Ford’s observations, and admitted that he had purchased three cans of gasoline in addition to the two he already had at home, and that he had also purchased lighter fluid and matches. He told Ford that he had poured gasoline and lighter fluid throughout the house, and then started the fire on the left side of the garage with a match. He said his intention was to commit suicide, and that he intended for the house and vehicle to burn up and that he would burn up with the vehicle.

Denise testified that while they were in the midst of their argument the night before, Barber had looked around and commented that it used to be a nice house, and then said words to the effect that it would be a shame if it was set on fire. Denise also testified that she had personal effects damaged or destroyed due to the heat and smoke damage, but that none of Barber’s personal effects were destroyed. Denise testified on cross-examination that she believed Barber attempted to burn the house down both to get back at her and to kill himself.

Tim Frost, an investigator with Allstate Insurance Company, testified that the house was insured by Allstate and that Allstate paid approximately $62,791 on the damage claim following the fire; $61,387.49 of that amount was paid because of damage to the house. He also testified that Allstate had not given anyone permission to set fire to the house.

Barber also testified at trial. He admitted that he put gasoline “everywhere” in the house and in the garage and that he set the fire because he was depressed and had “had enough” and wanted to kill himself. He further testified that he had no intent to deprive his wife of her rights in the house. Barber also admitted that he drove his vehicle to the Dollar General Store and bought the gasoline cans and then went back inside and purchased lighter fluid. He said he then went to the gas station and filled up the gasoline cans. He also testified that he first tried to commit suicide by carbon monoxide poisoning, but when that did not work, he went into the house and scattered papers and books and “stuff” around everywhere.

Based on this and other evidence presented at trial, the jury convicted Barber of arson in the first degree on Count 1 of the indictment, which tracked the language of OCGA § 16-7-60 (a) (3), and found him not guilty of arson in the first degree on Count 2 of the indictment, which tracked the language of OCGA § 16-7-60 (a) (4).

1. Pursuant to OCGA § 16-7-60 (a) (3),

[a] person commits the offense of arson in the first degree when, by means of fire or explosive, he or she knowingly damages ... [a]ny dwelling house,... whether it is occupied, unoccupied, or vacant and when such is insured against loss or damage by fire or explosive and such loss or damage is accomplished without the consent of both the insurer and the insured.

Barber argues that his conviction must be reversed because his intent in setting the fire was to commit suicide, not to burn or damage the house or cause loss to the insurer. Further he argues that the evidence is insufficient to show that he set the fire knowing it would spread to or cause damage to other parts of the house. But OCGA § 16-7-60 (a) (3) does not require that the fire be set with the intent to defraud the insurer; rather, the offense of arson in the first degree is shown under that section if the accused “knowingly damages” any insured dwelling without the consent of the insured by fire or explosive.

“Knowingly’ indicates an awareness of the consequences of one’s action. “The use of (knowingly) in an indictment is equivalent to an averment that the defendant knew what he was about to do, and, with such knowledge, proceeded to do the act charged.” Black’s Law Dictionary, p. 872 (6th ed. 1990).

Youmans v. State, 270 Ga. App. 832, 836 (2) (608 SE2d 300) (2004). Here the evidence, including Barber’s statement to the fire investigators, clearly showed that Barber poured gasoline and lighter fluid throughout the house and garage, and not just on his person. Further, the evidence shows that Barber ripped up books and papers and spread them throughout the upper levels of the house as well. And Barber told investigators that he intended for the house to burn, as well as the vehicle he was inside. Although the fire investigator testified that the fire did not spread beyond the garage because the sprinkler system worked, that area did suffer direct fire damage, and the smoke and heat damaged the entire house, causing over $60,000 in damage. Thus, the elements of the crime of arson in the first degree were clearly shown here, and Barber’s argument to the contrary is unavailing.

Decided October 26, 2012.

Jennifer A. Trieshmann, for appellant.

Peter J. Skandalakis, District Attorney, Jeffery W. Hunt, Assistant District Attorney, for appellee.

2. Barber also urges that the trial court should have charged the jury on his “sole defense” of accident, arguing that there was at least slight evidence to warrant the charge.

As is pertinent here, the transcript shows that the trial court, pursuant to Barber’s request at trial, charged the jury as follows: “A person should not be found guilty of any crime committed by misfortune or accident where it satisfactorily appears there was no criminal scheme, undertaking or intention[,]” OCGA § 16-2-2, which is essentially the charge that Barber now contends should have been given. Assuming without deciding that there was at least slight evidence warranting the charge, we find the charge as given clearly and fairly presented the issues to be tried, including Barber’s theory of defense. E.g., Tarvestad v. State, 261 Ga. 605, 606 (409 SE2d 513) (1991). This enumeration is thus also without merit.

Judgment affirmed.

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

       Belinda testified that they parked about two feet from the garage door.


text:
    A12A1655.
    YOUNG et al. v. GEORGIA AGRICULTURAL EXPOSITION AUTHORITY.
    (733 SE2d 529)
   Adams, Judge.

Maynard “Tony” Young and Laura Young appeal from the trial court’s order granting summary judgment to the Georgia Agricultural Exposition Authority (“GAEA”) on Tony’s claim for economic loss resulting from injuries he suffered when he was trampled by two bulls at a beef exposition at the Georgia Agricultural Center in Perry, Georgia. Because we find that Tony presented sufficient evidence to raise a jury issue on his claim for economic loss, we reverse the trial court’s order granting summary judgment on that claim.

This is the third appearance of this case before this Court, and we previously set out the facts underlying the Youngs’ claims as follows:

Tony Young and his wife sued Ronnie Shelby and others to recover for injuries inflicted on Young by two bulls owned and raised by Shelby. . . . Both Young and Shelby are experienced cattlemen who were displaying bulls during a beef exposition at fairgrounds in Perry [on April 2, 1998]. Young helped unload Shelby’s two bulls from the trailer in which they were being transported into a pen. To accomplish this task, Shelby released the bulls from the trailer, and Young manned the gate of the pen into which the bulls were supposed to run. Instead of entering the pen, however, the first bull collided with a panel on the gate, which broke loose and impaled Young’s upper thigh. After being thrust to the ground, Young was trampled and kicked by the bulls.

Young v. Shelby, 255 Ga. App. 707, 707-708 (566 SE2d 426) (2002).

In considering the Youngs’ current appeal from the grant of GAEA’s motion for summary judgment, we review the evidence de novo, and we construe all reasonable conclusions and inferences drawn from the evidence in the light most favorable to the Youngs as nonmovants. Congress Street Properties v. Garibaldi’s, 314 Ga. App. 143, 145 (723 SE2d 463) (2012). Viewing the evidence in this light, the record shows that Tony had been in the cattle business with his father since he was in high school. Over the years, they raised both commercial cattle, sold by the pound, and registered cattle, the market value of which depends upon the quality and characteristics of the individual animal. In an effort to maximize the output of calves from the registered cattle, Tony trained to be a cattle embryologist. He employed his skills to “superovulate” cows, that is, to cause a cow to “have a multiovulation so you can recover embryos from her uterus,” and then implant those embryos in other cows. Tony stated that this process was an essential part of the registered cow business, because, for example, if a cow produces a $5,000 calf, through the process of embryo transfer, “you have 10 of them born a year instead of one.”

In addition to his own cows, Tony provided embryology-related services to other cattlemen for a fee. He said that he averaged four of these outside appointments per month, and although the fees varied, he averaged a net fee of $600 per visit. Therefore, he stated that he grossed approximately $60,000 per year from his side embryology business during the period 1986 to 1998 and netted approximately $26,000 to $28,000 per year. He explained that he generally cleared around 50 percent of the amount he was paid for this business. Tony initially had a separate breeding service company for this work, but he closed that business and later ran the income through either his personal account or through the cattle business he ran with his father.

As a result of the 1998 incident with the bulls, Tony Young’s right femoral vein was punctured, and he suffered a torn left rotator cuff. The Youngs contend that the rotator cuff injury prevents him from working as a cattle embryologist, which requires the use of both arms, and Tony seeks to recover the resulting economic loss on his outside cattle embryo business.

Although Tony was not able to locate specific records relating to his embryology business in support of this claim, he furnished joint income tax returns he filed with his wife in 1996 and 1997, in addition to other returns filed after his accident. The 1996 return reflects income of $58,821 from “Sales of livestock, produce, grains, and other products you raised” and $8,851 in other income, which a separate schedule identifies as income from “medicine and semen embryos” and “labor,” for a total gross income of $67,672. This information was included in Schedule F of the return, used for calculating the “Profit or Loss from Farming.” Tony’s accountant, who did not prepare the 1996 return, testified in his deposition that he believed that all this income may all have been related to the cattle embryo business, because Tony implanted embryos into his own cows and sold the resulting calves. The accountant said that the entry for the sale of livestock on Schedule F probably reflected the sale of such cattle, because Tony’s sale of breeder cattle was reflected on a separate schedule as a capital gain. The 1996 Schedule F also reflected Tony’s share of the farm expenses, which when applied against the gross income resulted in a net farm income for Tony in 1996 of $12,042.

The 1997 return reflects net farm income of $25,545, and the Schedule F for that year reflects income from the sale of livestock in the amount of $87,533 and “other income” of $2,430. Although the return did not include a schedule explaining the source of that income and the accountant did not prepare the return, he assumed from his knowledge of Tony’s business that the income would have related to the cattle embryo business.

In contrast, the tax returns for the years after the accident reflect no “other income” on Schedule F. The Youngs’ tax return for 1998, the year of his injury, reflects only $5,166 in income from the sale of livestock and nothing else, and overall, Tony’s farm activity resulted in a loss for the year. The record contains no return for 1999, and the Youngs’ returns for the following years reflect net losses or, in one year, a profit under $500 from the farming operation until 2004, when the net profit was $27,316. In 2005, however, the profit again dipped below $300.

GAEA’s motion for summary judgment asserted that this evidence was too speculative to allow a jury to ascertain Tony’s economic loss. Following briefing and a hearing, the trial court agreed, noting that the Youngs’ tax returns reflected no wages during the pertinent years and finding that

Mr. Young’s claims for lost wages and lost profits are very speculative and imprecise. Mr. Young has no ascertainable basis for determining lost profits or income, and in reading his deposition, it appears that his figures are generally very speculative and he often refers to them as “guesstimates.”... [A] 11 of the deposition testimony and other claims by the Plaintiff and his accountant indicated a total and complete inability to specifically calculate any lost wages or profits as required by law in order to recover same.

On appeal, the Youngs argue that the trial court erred in granting GAEA’s motion for summary judgment because the evidence is sufficient to create a jury issue on this claim. We agree.

To properly consider the issue on appeal, we must first ascertain the nature of Tony’s claim for economic loss. GAEA’s motion attempted to characterize the claim primarily as one for lost profits. The trial court’s order addresses both lost profits and lost wages. But neither of these characterizations is strictly accurate given the nature of Tony’s embryology work. Tony seeks to recover losses for income that he would have received for his cattle embryo services. He did not receive “wages” for this work because he was not an employee of the business; instead, he received a fee. Thus, it is understandable that he did not report this income as wages on his income tax return. Moreover, the evidence indicates that at times he ran the cattle embryo income through the farming business he shares with his father, and in 1996 and 1997, he apparently reported this income on the schedule for calculating the farming profit and loss. Although the income he receives “for such services could be characterized as profits in a generalized sense, the damages he seeks in tort are for his lost earnings during the . . . period he was unable to work” as a cattle embryologist. (Emphasis in original.) Dossie v. Sherwood, 308 Ga. App. 185, 187, n. 8 (707 SE2d 131) (2011) (addressing loss of earnings claim for independent delivery truck driver).

“In Georgia, the loss of one’s earnings from the date of injury to the date of trial as a result of a personal injury is a separate and distinct pecuniary damage that is recoverable, so long as the amount can be determined with reasonable certainty.” (Footnote omitted.) Dossie v. Sherwood, 308 Ga. App. at 188. See also Douglas v. Rinker, 134 Ga. App. 949, 950 (216 SE2d 629) (1975). Thus, Tony can recover his lost earnings “so long as causation is established and the amount sought is sufficiently proven.” Dossie v. Sherwood, 308 Ga. App. at 187, n. 8 (and cases cited therein). The amount of such damages is for the jury to determine, even if calculating the exact measure of such damages presents a challenge:

[I]f it has been sufficiently established that the loss of earnings was caused by the tortious conduct of the defendant, the fact that the exact measure of the earnings lost may be challenging for the jury to calculate does not preclude their recovery. As we have previously explained, [t]he rule against the recovery of vague, speculative, or uncertain damages relates more especially to the uncertainty as to cause, rather than uncertainty as to the measure or extent of the damages. Mere difficulty in fixing their exact amount, where proximately flowing from the alleged injury, does not constitute a legal obstacle in the way of their allowance, when the amount of the recovery comes within that authorized with reasonable certainty by the legal evidence submitted.

(Punctuation omitted.) Id. at 188, quoting Crosby v. Spencer, 207 Ga. App. 487, 488 (1) (428 SE2d 607) (1993).

And as Dossie recognized, Georgia law has long acknowledged the difficulty faced by an individual such as Tony “who happened to be laboring not for a fixed and definite salary, but for fees or commissions” in establishing a claim for lost earnings. Southwestern R. Co. v. Vellines, 14 Ga. App. 674, 688-689 (82 SE 166) (1914). The law, therefore, provides a more liberal requirement of proof under such circumstances and

[wjhere by the very nature of things no better evidence is available or possible of production, the law perforce contents itself with proof of past average earnings, not always perhaps as proof of actual lost profits, but as illustrating the earning capacity of the plaintiff, and hence the value of his lost time.

(Emphasis supplied.) Id. (acknowledging that “[i]t is well-nigh impossible to furnish absolutely precise evidence as to the probable earnings of a professional man”).

Here, Tony testified as to the average gross and net amounts he earned for his cattle embryo business during the period 1986 to 1998. He also presented tax returns from 1996 and 1997 reflecting income from the embryo business, and returns from 1998 forward showing no income from this business. Although it is unclear from the tax returns alone what portion of the farm expenses on the Schedules F for 1996 and 1997 were attributable to the embryology business, Tony testified that he generally cleared 50 percent of the income from this sideline. And even though the 1996 and 1997 tax returns appear to conflict with his testimony about average earnings, Tony acknowledged that he may not have heen doing as much outside embryology business during that time period. In any event, it is for the jury to weigh, witness credibility and to resolve such conflicts in the evidence. See Williams v. Capitol Corporate Cleaning, 313 Ga. App. 61, 65 (2) (720 SE2d 228) (2011); OCGA § 24-9-80.

Decided October 26, 2012.

Reynolds, Horne & Survant, W. Carl Reynolds, Bradley J. Survant, for appellants.

Samuel S. Olens, Attorney General, Jennifer L. Dalton, Assistant Attorney General, Walker, Hulbert, Gray & Moore, John G. Walker, for appellee.

We conclude that this evidence was sufficient to present a jury issue on Tony’s economic loss claim. See Olariu v. Marrero, 248 Ga. App. 824 (549 SE2d 121) (2001) (evidence of past earnings plus evidence of accepted job offer plaintiff could not fulfill after accident sufficient to allow jury to determine past and future earnings) (physical precedent only); Gipson v. Phillips, 232 Ga. App. 235 (501 SE2d 570) (1998) (testimony from injured plaintiff and wife as to amount retired plaintiff earned and cleared from odd jobs sufficient to determine “probable lost profits”). Cf. Quiktrip Corp. v. Childs, 220 Ga. App. 463 (469 SE2d 763) (1996) (testimony and tax returns and evidence of present earnings sufficient to enable the jury to establish lost wages). Accordingly, the trial court erred in granting GAEA’s motion for summary judgment as to Tony’s economic loss claim.

Judgment reversed.

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

       The Georgia Cattlemen’s Association, a/k/a the Beef Breeds Council of the Georgia Cattleman’s Association (“GCA”) also filed a brief on appeal, but the appellate record contains no indication that the GCA joined in GAEA’s motion for summary judgment.

       The trial court granted, summary judgment to Shelby on the Youngs’ claims, and this Court affirmed that judgment in Young v. Shelby, 255 Ga.App. 707 (566 SE2d 426) (2002). And in Young v. Ga. Dept. of Natural Resources, 297 Ga. App. 456, 457 (677 SE2d 309) (2009), this Court vacated the trial court’s order dismissing the Youngs’ complaint for failure to comply with the ante litem notice statute, OCGA § 50-21-26, and remanded the case for the trial court’s consideration of recent Supreme Court of Georgia precedent.

       When he lost the ability to perform these procedures after the accident, Tony found that it was less profitable to hire others to perform these services on his own farm’s cows. But Tony apparently does not seek compensation for any losses arising from his inability to provide embryology services to his own cattle.

       Tony’s accountant explained that the office’s program for preparing these returns changed that year and it did not generate a separate schedule.

       Georgia law generally requires a higher level of proof to establish lost profits. See Johnson County School Dist. v. Greater Savannah Lawn Care, 278 Ga. App. 110, 112 (629 SE2d 271) (2006) (general rule is that recoverability of lost profits is that such damages are not recoverable as they are too speculative, remote, and uncertain); MTW Investment Co. v. Alcovy Properties, 228 Ga. App. 206, 207 (1) (a) (491 SE2d 460) (1997) (profits recoverable in tort action “are limited to probable, as distinguished from possible benefits”) (emphasis supplied); Kingston Pencil Corp. v. Jordan, 115 Ga. App. 333, 335 (2) (154 SE2d 650) (1967) (lost profits must he capable of definite ascertainment).

       Although GAEA asserts that the complaint sought lost wages, the complaint is not included in the record on appeal. But even if the complaint asserted a claim for lost “wages,” Tony would not he barred from seeking to recover earnings he lost as a result of his injuries under the notice pleading standard.

        Dossie v. Sherwood, 308 Ga. App. at 187, n. 8.

       Moreover, we note that these returns addressed only two years of the twelve-year period covered hy Tony’s testimony.

       Although the Gipson decision uses the term “lost profits,” the recovery sought in that case might more accurately he described as “lost earnings.”

       Although GAEA argues in its supplemental brief that testimony from Tbny’s doctor casts doubt that Tbny’s injury prevents him from his work as a cattle embryologist and thus that his injury is not the cause of his lost earnings, GAEA failed to raise this issue on summary judgment -below and thus the Youngs were not given an opportunity to address it before the trial court. Accordingly, we cannot consider it on appeal. See Knight v. American Suzuki Motor Corp., 272 Ga. App. 319, 325-326 (2) (612 SE2d 546) (2005) (summary judgment improper where nonmovant is not given full and fair notice and an opportunity to respond to particular ground). Moreover, because Tony testified that his injury did prevent him from doing this work, the doctor’s testimony would only serve to create a jury issue and thus would not authorize summary judgment on this ground.


text:
    A12A1336.
    KOCH v. FRED BARUCHMAN & ASSOCIATES, P.C.
    (733 SE2d 781)
   McFadden, Judge.

Fred Baruchman & Associates, P.C., filed an action on open account against David Koch d/b/a ASAC Consultants, Inc., seeking payment for architectural services, plus interest and attorney fees. Koch answered, asserting that he is not personally liable for the alleged debts because he did not enter into any agreement with Fred Baruchman & Associates, which instead contracted with ASAC. The case was tried before a jury, and at the end of the plaintiffs case Koch moved for a directed verdict on the basis that there was no evidence showing that he was personally liable for ASAC’s alleged debts. The trial court denied the motion, and the jury subsequently returned a verdict in favor of Fred Baruchman & Associates, awarding $27,844 in principal, plus interest and attorney fees. The trial court entered judgment against Koch. He appeals, contending that the trial court erred in failing to grant his motion for a directed verdict. Because there is no evidence showing that Koch may be held personally liable for the alleged debts of the corporation, we reverse.

1. Facts.

“On appeal from the denial of a motion for a directed verdict or for j.n.o.v., we construe the evidence in the light most favorable to the party opposing the motion, and the standard of review is whether there is any evidence to support the jury’s verdict.” (Citation and punctuation omitted.) City of Baldwin v. Woodard & Curran, 316 Ga. App. 768, 772 (2) (730 SE2d 486) (2012). So construed, the evidence shows that ASAC Consultants, Inc., was formed in 1999. Koch is the president and minority shareholder of ASAC, and his wife Kathy Koch is the secretary, treasurer and majority shareholder of the corporation. The corporation was administratively dissolved in 2005, but was reinstated in 2010. The certificate of reinstatement issued by the Georgia Secretary of State provides that “[t]he reinstatement shall relate back to and take effect as of the date of the administrative dissolution and the corporation may resume its business as if the administrative dissolution never occurred.”

From 2002 until 2009, Fred Baruchman & Associates worked on architectural projects for ASAC. With regard to the terms of their business relationship, Fred Baruchman, the president of Fred Baruch-man & Associates, explained that Koch would “assign[ ] me a project that came into his firm and sa[y] this is what you need to do. Work on this particular project with this client.” Baruchman testified that he knew Koch operated the firm ASAC, that he knew ASAC had been incorporated, and that he knew the projects in question were contracted with architects as the work of ASAC rather than as David Koch work.

Baruchman further testified that his company would bill for its work by sending an “invoice to ASAC, David Koch.” The allegedly unpaid invoices were introduced into evidence and showed that they were billed to ASAC, with David Koch also listed underneath the corporate name, followed by ASAC’s office address. On each invoice, the description of the services included an ASAC project number. Baruchman testified that whenever he was paid for his firm’s work, the payment “came from ASAC, Inc.” He acknowledged that David Koch had never written him a personal check and that the entire time he worked with ASAC he never got “a check from anybody other than ASAC Consultants, Inc.” Several of those checks were introduced into evidence, showing on their faces that they were drawn on an account of ASAC Consultants, Inc.; were for certain ASAC project numbers; and were signed, not by David Koch, but by ASAC’s treasurer Kathy Koch.

2. Administrative dissolution and reinstatement.

As an initial matter, we note that Koch cannot be held personally liable solely on the basis that the purported debts were incurred after ASAC’s administrative dissolution and prior to its reinstatement. In Fulton Paper Co. v. Reeves, 212 Ga. App. 314 (441 SE2d 881) (1994), as in the instant case, an action on account was brought against the president of a corporation, seeking to hold him personally liable for debts incurred by the corporation after it had been administratively dissolved. Approximately two weeks after the lawsuit was filed, the corporation applied for and obtained a certificate of reinstatement. Id. at 316 (2). This court upheld the trial court’s grant of summary judgment in favor of the president, noting that under the applicable statutory scheme, even after administrative dissolution, a corporation continues its corporate existence for limited purposes, and a reinstatement relates back and takes effect as if the administrative dissolution had never occurred. Id. Thus, we held in Fulton that personal liability of the president could not be based on the theory that he was acting for a nonexistent principal, nor could he be held personally liable on the ground that acts of the corporation during the period of dissolution were ultra vires. Id. at 317 (2). Likewise, in the instant case, corporate officer Koch is not personally liable for the alleged debts of ASAC merely because they were incurred during a period of administrative dissolution.

3. Parties to the contract.

Nevertheless, Fred Baruchman & Associates argues that the trial court correctly denied a directed verdict to Koch because there exists at least some evidence that the party to whom it extended credit was Koch, rather than ASAC. However, it is undisputed that Fred Baruchman & Associates knew of Koch’s status as an agent for ASAC, and “[w]here the agency is known and the credit is not expressly given to the agent, he shall not be personally responsible upon the contract.” OCGA § 10-6-87. Therefore, to prevail on its argument, Fred Baruchman & Associates “would be required to prove the existence of an express agreement as to the payment of its fees. In this connection, appellee would have to show ... an express agreement on the part of [Koch] that he would personally pay the fees[.]” Vaswani v. Southern Mtg. &c. Corp., 196 Ga. App. 223, 224 (1) (395 SE2d 647) (1990).

Fred Baruchman & Associates has made no such showing, relying on Baruchman’s own testimony that he extended credit to David Koch and sent invoices to “ASAC, David Koch.” However, that testimony, at most, shows Baruchman’s own conduct; it does not show-an express agreement on the part of Koch that he would personally pay ASAC’s debts. Indeed, Baruchman did not testify, or point to any other evidence showing, that Koch made such an express agreement.

Conversely, Koch expressly testified that he never personally paid for any of the work that Baruchman’s firm did for ASAC and that Baruchman never indicated that he thought Koch was personally responsible for the bills sent to ASAC. Instead, as recounted above, the evidence plainly shows that Fred Baruchman & Associates provided services to ASAC, billed ASAC for those services, received payments from ASAC, and never received a personal payment from Koch. It is true that generally the question of fact as to whom credit was extended is for the jury. See OCGA § 10-6-87. But under the circumstances of this case, there simply was no jury question as to whether there was an agreement to extend credit to Koch personally. Compare Tunison v. Tillman Ins. Agency, 184 Ga. App. 776, 777-778 (1) (362 SE2d 507) (1987) (question of fact for jury as to whether corporate agent was personally liable for payment of insurance premiums where policy named both corporation and agent individually as insured parties). “Since there was no evidence to authorize a finding that [Koch] made any express agreement to . . . accept [personal] responsibility for the payment of [ASAC’s debts], the motion for a directed verdict should have been granted.” Vaswani, 196 Ga. App. at 225 (1). See also Imex Intl. v. Wires Engineering, 261 Ga. App. 329, 332 (1) (a) (583 SE2d 117) (2003) (where bona fide dispute exists as to the receipt of goods or services, open account is the wrong theory of recovery, because such a simplified action is only for cases where party seeks recovery of what he is equitably entitled to without regard to any special agreement as to payment).

Decided October 29, 2012.

Bannister & Black, Charles C. Black, for appellant.

Ted Marcus, for appellee.

4. Motion for frivolous appeal penalties.

Fred Baruchman & Associates’ motion for imposition of a frivolous appeal penalty is hereby denied.

Judgment reversed.

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


author: Ray, Judge.

text:
    A12A1566.
    MARTINEZ v. THE STATE.
    (735 SE2d 785)
   Ray, Judge.

A jury convicted Cornell Elijah Martinez of one count of armed robbery, one count of burglary, and six counts of false imprisonment. After a hearing, the trial court denied Martinez’s motion for a new trial. Martinez appeals, contending that the trial court erred because after granting a motion for directed verdicts of acquittal on six kidnapping charges, it allowed the jury to consider the lesser included charges of false imprisonment. Martinez also enumerates as error the trial court’s statement that, because of limited space, the public would be excluded from the courtroom during voir dire. For the reasons that follow, we affirm.

Viewed in the light most favorable to the verdict, the evidence shows that on February 2, 2007, two masked men accosted Rogelio Pineda-Orrozquieta at gunpoint outside his home and demanded money and drugs. After entering his home, the men forced Pineda-Orrozquieta into a rear bedroom along with his pregnant wife, young daughter, and a co-worker. Pineda-Orrozquieta and his co-worker were forced to kneel on the floor, and their hands were bound with shoelaces and the cable of a cell phone charger. Pineda-Orrozquieta also saw two additional intruders in another bedroom tying the hands of his brother-in-law and a friend. The intruders forced Pineda-Orrozquieta and his co-worker into the kitchen and interrogated them about the location of the alleged money and drugs. When officers from the Norcross Police Department arrived in response to 911 calls placed by Pineda-Orrozquieta’s wife, they apprehended the four intruders. Police found Martinez in the rear bedroom attempting to flee from a window. He was wearing gloves and a ski mask, and was in possession of a 9mm handgun. Martinez admitted he entered Pineda-Orrozquieta’s home, but testified that he went to buy cocaine rather than to participate in an armed robbery.

Martinez was tried, along with two of his co-defendants, in January 2009. At trial, after the State rested, Martinez moved for a directed verdict on the six kidnapping counts. The trial court granted the motion, but charged the jury on the lesser included offense of false imprisonment as to each count over Martinez’s objection.

1. Martinez contends that the trial court erred in allowing the jury to consider the lesser included offense of false imprisonment after granting a directed verdict on the kidnapping charges. Specifically, he argues that a directed verdict may only be granted as to the “entire offense,” thus making lesser included offenses “moot.” We find no error.

A trial court, pursuant to OCGA § 17-9-1 (a), may grant a directed verdict

[wjhere there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal or “not guilty” as to the entire offense or to some particular count or offense [;] the court may direct the verdict of acquittal to which the defendant is entitled under the evidence and may allow the trial to proceed only as to the counts or offenses remaining, if any.

Where a directed verdict has been granted on one charge, as in the instant case, our appellate courts have upheld a trial court’s decision to allow the jury to consider a lesser included offense. In one' similarly postured case, our Supreme Court determined that “[t]he trial court did not commit error by charging the jury on a lesser included offense of simple battery after it had directed a verdict on the charge of aggravated assault.” Similarly, when the trial court “ruled that the evidence was insufficient to convict [the defendant] of felony obstruction of an officer . . . [and] let the case go to the jury on the lesser included offense of misdemeanor obstruction of an officer,” of which the defendant was convicted, this Court upheld that conviction.

Significantly, an indictment encompasses all lesser included offenses of the charged offense. This is true even if, as here, the lesser included offense is not charged in the indictment, so long as the charge on the greater offense contains “all essential averments relating to the lesser offense or that the greater offense necessarily include all the essential ingredients of the lesser.”

Here, false imprisonment is a lesser included offense of kidnapping, and the indictment against Martinez contains all the essential elements related to false imprisonment. Pursuant to OCGA § 16-5-41 (a), “[a] person commits the offense of false imprisonment when, in violation of the personal liberty of another, he arrests, confines, or detains such person without legal authority.” The indictment’s kidnapping counts, in pertinent part, all provide that Martinez held the victims against their will and without lawful authority. Thus, “if an offense is a lesser included offense as a matter of law or fact, an accused can be convicted of that offense even if the trial court directs a verdict on the offense expressly charged in the indictment.”

Thomas v. State, the sole case Martinez cites in support of this proposition, exclusively addresses a situation in which the defendant’s motion for a directed verdict had been denied, rather than granted as in the instant case. Thomas is distinguishable in that this Court was addressing only the question of whether a motion for directed verdict as to the “entire offense” — i.e., both the greater and lesser included offenses — could be denied if sufficient evidence existed to convict the defendant of the lesser offense. In Thomas, the defendant was charged with malice murder, but convicted of the lesser included offense of manslaughter, and this Court concluded that in such an instance, a directed verdict as to the “entire offense” was inappropriate. Here, Martinez presents a different question, namely, whether a court may grant a directed verdict on only the greater offense, and allow the lesser offense to go to the jury. This Court in Williams, and our Supreme Court in Clarke, already answered that question in the affirmative. As Thomas does not reach that question, it is inapt.

To the extent that Martinez is attempting to argue that the trial court erred in denying him a directed verdict on the false imprisonment charges, we note that it is well settled that when a defendant claims the trial court erred in denying his motion for a directed verdict, there is no ground for appeal so long as the evidence was sufficient to convict the defendant of the lesser included offense. Although Martinez does not contest the sufficiency of the evidence to support the verdict, upon an examination of the record, we find the evidence sufficient to sustain each of the false imprisonment convictions.

2. Martinez contends that the judgment against him should be reversed because the trial court erred when it indicated that spectators would need to be excluded from the courtroom during voir dire because of limited space. He argues that the trial court failed to consider alternatives to closure, such as dividing the jury venire panel.

Specifically, the trial court noted that there were 58 potential jurors, and that

every available seat basically is taken up ... [s]o spectators are not going to be in here to watch voir dire. Spectators can come back in to watch the actual strike of the jury because by then I think the panel will be small enough that we would have spectator seating room. And of course, for the remainder of the trial and the trial itself with the jury selected, spectators are free to be in here.

Martinez concedes that he never objected to the trial court’s statement at any point during voir dire. Nor did Martinez raise this issue in his motions for a new trial. Further, on appeal, Martinez never asserts, nor does he cite to any portion of the record indicating, that spectators actually were barred from or sent out of the courtroom. Our review of the record also does not show that any spectators were actually asked to leave or were denied entry during general voir dire.

Decided October 29, 2012.

Wayne L. Burnaine, for appellant.

Daniel J. Porter, District Attorney, Michael D. Morrison, Assistant District Attorney, for appellee.

Both the United States Constitution and the Georgia Constitution guarantee all criminal defendants the right to a public trial, and this right extends to voir dire of prospective jurors. However, a defendant’s failure to object to the closure of a courtroom waives his right to a public trial. Further, we will not consider constitutional issues not raised below. This enumeration, as crafted, cannot prevail.

Judgment affirmed.

Miller, P. J., and Branch, J., concur.

       OCGA § 16-8-41.

       OCGA § 16-7-1.

       OCGA § 16-5-41 (a).

        Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979). Martinez does not contest the sufficiency of the evidence supporting the verdict.

       (Citation omitted.) Clarke v. State, 239 Ga. 42, 43 (1) (235 SE2d 524) (1977).

        Williams v. State, 196 Ga. App. 154, 155-156 (1) (395 SE2d 399) (1990).

        Morris v. State, 310 Ga. App. 126, 129 (2) (712 SE2d 130) (2011).

       (Citation and punctuation omitted.) Tuggle v. State, 145 Ga. App. 603 (1) (244 SE2d 131) (1978); OCGA § 16-1-6 (1).

        Stovall v. State, 216 Ga. App. 138, 141 (5) (453 SE2d 110) (1995).

       (Citation omitted.) Morris, supra, citing Clarke, supra.

       184 Ga. App. 131 (361 SE2d 21) (1987).

       Id. at 131-132 (1).

       Id. at 131 and 132 (1).

       Supra.

       Supra.

       See generally Judice v. State, 308 Ga. App. 229, 231 (1) (707 SE2d 114) (2011) (where defendant was not convicted on the greater charge but was found guilty of a lesser included offense, the issue of whether the trial court erred in denying a motion for directed verdict of acquittal on the greater charge is moot).

        See Brabham v. State, 240 Ga. App. 506, 506(1) (b) (524 SE2d 1) (1999) (victim testimony that defendant forced him at gunpoint to sit and remain on floor while defendant took painkillers from pharmacy shelves sufficient to sustain conviction for false imprisonment, even where jury acquitted defendant of kidnapping).

       U. S. Const., Amend. VI; 1983 Ga. Const., Art. I, Sec. I, Par. XI (a); Presley v. Georgia, 558 U. S. 209 (130 SC 721, 724-725, 175 LE2d 675) (2010) (where defendant objected to closure of courtroom, trial court is required to consider alternatives to closure).

        Reid v. State, 286 Ga. 484, 488 (3) (c) (690 SE2d 177) (2010) (improper courtroom closing is structural error requiring reversal only if defendant properly objected at trial and raised the issue on direct appeal). See also State v. Abernathy, 289 Ga. 603, 611 (5) (715 SE2d 48) (2011) (absent an objection at trial, the issue of courtroom closure may be raised only via an ineffective assistance of counsel claim).

       See Gordian v. State, 261 Ga. App. 75, 77 (3) (581 SE2d 616) (2003).


author: BARNES, Presiding Judge.

text:
    A12A1262.
    LONGE v. FLEMING.
    (733 SE2d 792)
   BARNES, Presiding Judge.

Wayne Longe, pro se, appeals from the order of the trial court enforcing a settlement agreement and parenting plan between Longe and Linda Fleming, the mother of his minor child. Upon review, we affirm the order of the trial court in part, but because the order was silent as to the basis on which attorney fees were awarded and the court’s findings were inadequate, we vacate the award of attorney fees to Fleming and remand for further proceedings.

On August 19, 2009, Longe filed a petition for legitimation of the parties’ then less than one-month-old infant, which was granted on August 23, 2010. After a hearing on the petition, the trial court awarded sole legal and physical custody to Fleming, and Longe waived visitation with the child. Fleming was also awarded $400 in monthly child support. On September 16, 2010, Longe filed a petition for modification of custody and visitation in which he asserted that he had misunderstood the rights he waived in the final order and requested that he be awarded joint legal custody, visitation, and other relief.

On June 27, 2011, Longe and Fleming attended a mediation and apparently reached an agreement “resolving all issues of custody, visitation, attorney’s fees and any and all other issues which can be settled at this time.” The settlement agreement provided that all provisions of the August 2010 final order “are to remain in full force and effect.” The parties also agreed to a parenting plan incorporating the mediated terms. Fleming was responsible for drafting the documents and forwarding them to Longe.

On July 25, 2011, Longe filed a motion to enforce the settlement agreement in which he alleged that he had not received the child’s social security number or the drafted settlement agreement within the time period stipulated in the mediated agreement. After filing the motion, Longe received and signed the settlement agreement, a copy of which is contained in the record, reflecting that he signed the agreement on August 22, 2011. Longe later forwarded a signed copy of the parenting plan but had “whited out the section that related to the limitation on access to [the child’s medical] records.” In Fleming’s counterclaim, she requested that the parenting plan be enforced and made an order of the court. Following a hearing, the trial court entered an order approving and incorporating both the settlement agreement and the parenting plan into its final order on Longe’s petition for modification of custody and visitation. It is from that order that Longe appeals.

1. Longe contends that the trial court erred in enforcing the settlement agreement as written because it did not address legal custody and in enforcing the parenting plan. After reviewing the appellate record and the parties’ briefs, we find that the record supports the trial court’s judgment. Accordingly, we affirm the trial court’s order enforcing the settlement agreement and parenting plan.

2. Longe also challenges the trial court’s award of attorney fees to Fleming, complaining that the fees were not statutorily justified, and that Fleming failed to present sufficient evidence to support the court’s award.

“As a general rule, Georgia law does not provide for the award of attorney fees even to a prevailing party unless authorized by statute or by contract. When awarded by statute, such fees may be obtained only pursuant to the statute under which the action was brought and decided.” (Citations omitted.) Suarez v. Halbert, 246 Ga. App. 822, 824 (1) (543 SE2d 733) (2000). We will not disturb the trial court’s decision awarding attorney fees “unless it can be clearly shown by the appellant that the trial court committed grievous error or a gross abuse of discretion.” Bowman v. Bowman, 242 Ga. 259, 260 (248 SE2d 654) (1978).

Here, the trial court’s order failed to cite to any specific statute authorizing the award of attorney fees, instead awarding Fleming attorney fees “as reimbursement of her attorney’s fees incurred as a result of the actions necessary to enforce the agreement reached between the parties at mediation.” Furthermore, in her amended answer to Longe’s motion to enforce the settlement agreement, Fleming failed to cite a statutory basis for attorney fees, only requesting that they be awarded based on Longe’s conduct, which demonstrated that he “negotiated in bad faith, has been stubbornly litigious, and has caused [Fleming] unnecessary trouble and expense.” At the hearing on the motion to enforce, Fleming’s attorney testified that following the mediation, she incurred $1,900 in attorney fees trying to enforce the settlement agreement. She provided the following details:

My hourly rate is $150 an hour. I’ve been practicing law for three years. We’ve been trying to get this agreement enforced since August. This is the third noticed hearing for this case____I’ve spent or have incurred attorney’s fees of $1,000 up to this point, in communications back and forth with [Longe’s attorney], and six additional hours in court today, for an additional $900.

The trial court replied, “I will award all the attorney’s fees against [Longe] because this should have been done and over with when it was signed.” Longe’s attorney attempted to respond, but the trial court interrupted him and said “[u]nless you just want to say goodbye, I have ruled.”

Based on Fleming’s pleadings, counsel’s arguments and the trial court’s ruling, it appears that the attorney fees were assessed pursuant to OCGA § 13-6-11 which provides:

The expenses of litigation generally shall not be allowed as a part of the damages; but where the plaintiff has specially pleaded and has made prayer therefor and where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them.

However, this statutory provision, which would govern expenses of litigation in a contract action, does not authorize an award of attorney fees in this case. Francis-Rolle v. Harvey, 309 Ga. App. 491, 493 (3) (710 SE2d 659) (2011).

Here, the trial court specifically held that the settlement agreement is “incorporated herein by reference and made part of this Final Order on [Longe’s] Petition for Modification of Custody and Visitation.” Thus, the rights of the parties were resolved under the final order rather than under the settlement agreement. See Waits v. Waits, 280 Ga. App. 734, 736 (634 SE2d 799) (2006) (“The parties’ agreement was incorporated into the Amended Final Judgment and Decree, and therefore, the actions were required to be resolved under the amended decree and not the underlying agreement.”); Walker v. Estate of Mays, 279 Ga. 652, 653 (1) (619 SE2d 679) (2005) (“The rights of the parties after a divorce is granted are based not on the settlement agreement, but on the judgment itself. Thus, whatever claim [the parties] have is founded on the final decree, and not on the underlying agreement.”).

Alternatively, OCGA § 9-15-14 (b) authorizes a court to award attorney fees if it finds that a party brought or defended an action, or any part thereof, that lacked substantial justification or was interposed for delay or harassment, or if it finds that a party unnecessarily expanded the proceeding by other improper conduct. An order awarding attorney fees under OCGA § 9-15-14 must include findings of conduct that authorize the award.

(Punctuation omitted.) Francis-Rolle v. Harvey, 309 Ga. App. at 493 (3).

Thus, while the trial court was authorized to award attorney fees if it found that Longe’s conduct warranted such sanctions under OCGA § 9-15-14 (b), its order awarding attorney fees under that statute must include findings of conduct that authorize the award. Moon v. Moon, 277 Ga. 375, 378 (6) (589 SE2d 76) (2003).

Decided October 30, 2012.

Wayne Longe, pro se.

Linda N. Fleming, pro se.

Because the trial court failed to make findings sufficient to support such an award under that section, the issue of attorney fees must be remanded for an explanation of the statutory basis for the award and any findings necessary to support it. Moon v. Moon, 277 Ga. at 378 (6); Cason v. Cason, 281 Ga. 296, 300 (3) (637 SE2d 716) (2006).

Judgment affirmed in part and vacated in part, and case remanded with direction.

Adams and McFadden, JJ., concur.

       At the hearing on the motion, Fleming’s attorney recalled that he initially e-mailed the settlement agreement and parenting plan to Longe’s attorney on July 27, 2011 and again on August 2, 2011. When Longe e-mailed him directly, he advised him that he could not communicate with Longe directly. After talking with Longe’s attorney about some visitation issues, he forwarded an amended copy of the documents to Longe on August 8, 2011.

       The section provided that because the mother had sole legal and physical custody of the child, Longe needed her permission to access any of the child’s medical records.


author: Branch, Judge.

text:
    A12A1442.
    BECOATS v. THE STATE.
    (733 SE2d 795)
   Branch, Judge.

Following a bench trial, Phyllip Jerrod Becoats was convicted of trafficking in cocaine, possession of marijuana, and failure to maintain his lane. During the sentencing phase of trial, the State introduced certified copies of Becoats’s four prior felony convictions, and the trial court sentenced him as a recidivist pursuant to OCGA § 17-10-7. Becoats then appealed his convictions, asserting as his sole claim of error the trial court’s denial of his motion to suppress evidence seized during a traffic stop of his vehicle. See Becoats v. State, 301 Ga. App. 768 (688 SE2d 686) (2009). This Court found no error and affirmed. Id.

Following remittitur of his case to the trial court, Becoats filed his first pro se motion for modification of his sentence in March 2010, arguing that the lower court erred in sentencing him as a recidivist. The trial court denied this motion in April 2010. In October 2011 Becoats filed his second pro se motion for modification of his sentence. Becoats again asserted that the court below erred in sentencing him as a recidivist, and he also asserted, for the first time, that he had received ineffective assistance of trial and appellate counsel. The court denied Becoats’s motion, and he now appeals from that order. We find no error and affirm.

1. In his first two enumerations of error, Becoats asserts that he received ineffective assistance of counsel, both at trial and on the direct appeal of his conviction. Becoats, however, is procedurally barred from asserting his ineffective assistance of counsel claims by way of a motion seeking a sentence modification.

It is well established that a claim for ineffective assistance of trial counsel “must be raised at the earliest practicable moment” following a defendant’s conviction. (Citation, punctuation and footnote omitted.) Chapman v. State, 279 Ga. App. 200, 206 (3) (630 SE2d 810) (2006). This rule requires that an ineffective assistance claim be raised before an appeal of the defendant’s conviction, “if the opportunity to do so is available[.]” Glover v. State, 266 Ga. 183, 184 (2) (465 SE2d 659) (1996). Our Supreme Court has held that the ability to raise a claim for ineffective assistance by way of a motion for new trial “represents such an opportunity[.]” Id. Thus, if a defendant “fail[s] to seize that opportunity,” either by declining to raise the ineffectiveness claim as part of his new trial motion or by failing entirely to file such a motion, he is procedurally barred from “raising the issue at a later time.” (Footnote omitted.) Id. See also Carter v. State, 275 Ga. App. 846-847 (2) (622 SE2d 60) (2005) (a defendant “must raise the ineffectiveness of previous counsel at the first possible stage of post-conviction review, and request an evidentiary hearing if the claim involve[s] matters outside the record”) (citations omitted).

Additionally, a defendant cannot resuscitate his procedurally-barred claims for ineffective assistance of trial counsel “by bootstrapping them to a claim of ineffectiveness of appellate counsel[,]” as Becoats attempts to do here. (Punctuation and footnote omitted.) Mullins v. State, 267 Ga. App. 393, 399 (5) (599 SE2d 340) (2004). See also Wilson v. State, 286 Ga. 141, 145 (4) (686 SE2d 104) (2009) (“claims of ineffective assistance of appellate counsel may not be used to camouflage issues that should have been raised in a motion for new trial[,]” because “to allow substantive review of such claims would be to promote serial appellate proceedings”) (citations and punctuation omitted). Instead, Becoats may pursue his claims for ineffective assistance of both trial and appellate counsel only in the context of a habeas corpus proceeding. Id. See also Baptiste v. State, 262 Ga. App. 71 (585 SE2d 92) (2003).

2. The trial court sentenced Becoats as a recidivist pursuant to OCGA § 17-10-7 (c), which provides in relevant part:

... [A]ny person who, after having been convicted under the laws of this state for three felonies . . . , commits a felony within this state shall, upon conviction for such fourth offense or for subsequent offenses, serve the maximum time provided in the sentence of the judge based upon such conviction and shall not be eligible for parole until the maximum sentence has been served.

During the sentencing phase of trial, the State introduced evidence of Becoats’s four prior felony convictions. Three of those convictions were entered on November 16, 1999. The record shows that on that day, Becoats pled guilty in Cobb County Superior Court to theft by receiving and possession of a firearm by a convicted felon. That same day, the Cobb County court revoked Becoats’s probation as to a charge of possession of cocaine, to which he had pled guilty in 1996.

Becoats argues that because they were entered on the same day, by the same court, and resulted in identical sentences to run concurrently, these three convictions must be viewed collectively as a single conviction for purposes of determining whether he should be sentenced as a recidivist. In support of this argument, Becoats relies on subsection (d) of the recidivist statute, which provides that “conviction of two or more crimes charged on separate counts of one indictment or accusation, or in two or more indictments or accusations consolidated for trial, shall be deemed to be only one conviction.” OCGA § 17-10-7 (d). We disagree.

The record shows that each of the offenses that resulted in the convictions at issue was committed at different times and that each was indicted separately, by different grand juries. Additionally, the trial court entered separate sentencing orders in each of the three cases. Where a defendant is charged for separate crimes, arising out of separate incidents, and is sentenced for each crime in a separate order, those offenses are not considered “consolidated” under OCGA § 17-10-7 (d). Baker v. State, 306 Ga. App. 99, 103 (2) (701 SE2d 572) (2010). And this is true even where, as here, the sentences were entered on the same day and were to run concurrently. Id. (even though defendant “entered the guilty pleas and received the orders of sentence on the three convictions in a single day, and... the sentences imposed the same amount of time served for each conviction,” his convictions were not “ ‘consolidated for trial’ within the meaning of the recidivist statute”) (footnote omitted). See also Philmore v. State, 263 Ga. 67, 70 (6) (428 SE2d 329) (1993) (where defendant’s three prior convictions resulted from separate indictments, with a separate order of sentence entered on each indictment, “the fact that the sentences were entered on the same day and that the sentences . . . ran concurrently] . . . does not require the conclusion that the three prior convictions had been ‘consolidated for trial’ within the meaning of” the recidivist statute) (citations omitted); Self v. State, 288 Ga. App. 77, 79 (2) (653 SE2d 787) (2007). Accordingly, the trial court did not err either in sentencing Becoats as a recidivist or in refusing to modify his sentence.

Decided October 30, 2012.

Phyllip J. Becoats, pro se.

Patrick H. Head, District Attorney, Lynne G. Voelker, Amelia G. Pray, Assistant District Attorneys, for appellee.

Judgment affirmed.

Miller, P. J., and Ray, J., concur.

       The possession of cocaine occurred in August 1995, and Becoats was indicted in November 1995. The charge of theft by receiving resulted from an incident occurring on May 6,1999, and he was indicted on this charge in July 1999. The possession of a firearm occurred on December 10, 1998, and he was indicted on April 1, 1999.