author: Ellington, Chief Judge.

text:
    A11A0903.
    CARTWRIGHT et al. v. FUJI PHOTO FILM U.S.A., INC.
    (720 SE2d 200)
   Ellington, Chief Judge.

In this case arising from an alleged breach of contract and fraudulent transfer of funds, defendants Robert and Mindy Cartwright appeal from an order of the State Court of Fulton County denying their motion to dismiss or, in the alternative, transfer the case to Taylor County. The Cartwrights contend that the trial court erred in ruling that Fulton County is the proper venue for the complaint, given that they are residents of Taylor County. For the following reasons, we affirm.

“The denial of a motion to transfer is reviewed for an abuse of discretion, and we will affirm the trial court’s findings on disputed factual questions relating to venue if there is any evidence to support them. But we review de novo the trial court’s application of the law to undisputed facts.” (Citations omitted.) HD Supply v. Garger, 299 Ga. App. 751 (683 SE2d 671) (2009). The record on appeal shows the following facts.

In 1993, Daniel Schooler, Timothy Schooler, and The Schooler Group, Inc. (collectively, “the Schoolers”) and Fuji Photo Film USA, Inc. (“Fuji”) verbally agreed to an arrangement under which the Schoolers agreed to assist Fuji in seeking an account with the Eckerd Drug Store chain. According to the Schoolers, several unidentified officers of Fuji promised them that, if they assisted Fuji in obtaining the Eckerd account, Fuji would pay them a three percent brokerage commission on the account for at least seven years. In 2000, a Fuji vice president, Robert Cartwright (one of the appellants), executed a “Food and Drug Broker Agreement” (“broker agreement”) with the Schoolers; the broker agreement provided that the Schoolers would, in fact, receive a three percent commission on all purchase orders from Fuji’s newly-acquired Eckerd account. Instead of guaranteeing those commissions for seven years, however, the broker agreement stated that it was terminable at any time by either party with thirty days written notice. It also contained an “entire agreement” clause stating that it superseded all previous oral or written agreements between the parties.

In late 2002, Fuji concluded that the Schoolers were not performing their duties under the broker agreement and, as a consequence, the agreement was no longer cost effective. Fuji terminated the broker agreement in January 2003. Four months later, the Schoolers filed suit against Fuji and one of Fuji’s account managers, Patrick Patten, alleging that Fuji had defrauded them and breached its oral promises to pay them commissions on the Eckerd account for at least seven years. It also alleged that Patten had intentionally and maliciously induced Fuji and/or Eckerd to discontinue their business relationships with the Schoolers. Because Patten resided in Fulton County, the Schoolers filed their complaint in the State Court of Fulton County.

Fuji and Patten filed a joint answer, denying the Schoolers’ assertions and alleging, inter alia, that the Schoolers’ claims were barred by unclean hands, the express terms of the broker agreement, and the Schoolers’ breach of that agreement. In addition, Fuji, acting alone, filed a counterclaim in which it asserted that the Schoolers breached the broker agreement and breached their duties of trust and confidence and duties arising from its confidential relationship with Fuji and alleged that the Schoolers committed their wrongful actions wilfully, recklessly and in bad faith.

In December 2007, the Schoolers dismissed their complaint against Fuji and Patten without prejudice, thereby leaving only Fuji’s counterclaim against the Schoolers pending before the trial court. Consequently, the court realigned the parties and changed the style of the case to reflect that Fuji was, henceforth, the plaintiff and the Schoolers were the defendants.

During discovery, Fuji deposed Timothy Schooler, Daniel Schooler, and Joyce Schooler, as well as Robert Cartwright and Patrick Patten. Fuji learned that, as soon as the Schoolers started receiving payments from Fuji under the written broker agreement in 2001, the Schoolers began secretly funneling about 20 percent of each of the payments to Robert Cartwright’s wife, Mindy. In fact, in 2001 and 2002, the Schoolers paid Mindy Cartwright at least $90,000 as a result of this arrangement and, although the Schoolers issued her 1099 federal tax forms for such payments, she provided virtually no services for the Schoolers in return. Notably, the payments to Mindy Cartwright ended on January 20, 2003, just days after Fuji terminated its agreement with the Schoolers. In addition to those payments, Fuji learned that, during the same two-year period, the Schoolers sold the Cartwrights real property in Georgia for less than twenty-five percent of the Schoolers’ basis, resulting in an undisclosed transfer of approximately $77,000 to the Cartwrights while the Schoolers were still receiving payments from Fuji under the broker agreement.

After learning of the secret financial dealings between the Schoolers and the Cartwrights, Fuji repeatedly sought tax and financial documents from the Cartwrights. With the exception of providing two pages, however, the Cartwrights refused to provide the documents, claiming that they no longer possessed the requested documents, that the documents were privileged, and/or that Fuji’s requests were improper. The trial court ultimately granted in part a motion to compel the requested documents that was filed by Fuji and denied a motion for a protective order filed by the Cartwrights.

While discovery was still on-going, Fuji amended its complaint to include a claim for fraud, alleging that the Schoolers were involved in an illegal “kickback” scheme with Robert and Mindy Cartwright. Then, in December 2009, Fuji filed a motion to add the Cartwrights as party defendants. The trial court granted the motion on February 13, 2010. Fuji then filed a second amendment to its complaint, asserting that the Cartwrights and the Schoolers were joint tortfea-sors in its fraud claim.

On February 19, 2010, the Cartwrights filed a motion to dismiss Fuji’s complaint against them on the basis of improper venue or, in the alternative, to transfer the case to Taylor County, where they have resided since approximately 2005. Daniel and Timothy Schooler also resided in Taylor County at the time of their 2003 initiation of their lawsuit against Fuji and Patten and at the time Fuji added the Cartwrights as co-defendants in its suit against the Schoolers. In March 2010, in response to the Cartwrights’ motion to transfer, Fuji filed another amendment to its complaint to include the following assertion as to the issue of venue:

The Schooler defendants, by initiating this action originally, have subjected themselves to the jurisdiction and venue of this Court. Defendants Robert Cartwright and Mindy Cartwright were residents of the State of New York both at the time of [the] filing of this lawsuit in 2003 by the Schooler defendants, and at the time that all defendants devised and implemented the wrongful scheme and committed the wrongful acts described [in this complaint] through at least May 2004. The Cartwright defendants also assisted the Schooler defendants in the preparation and pursuit of this lawsuit filed by the Schooler defendants in Fulton County, Georgia, and, as described [herein], the Cartwright defendants had a beneficial interest in the claims asserted by the Schooler defendants in this lawsuit. As described [herein], (a) the filing in 2003 and pursuit of this lawsuit since 2003 in Fulton County by the Schooler defendants as assisted by the Cartwright defendants, as well as (b) all defendants’ concealment of evidence in the Fulton County lawsuit that defendants had legal duties to disclose, and misrepresentations made by all defendants to conceal what they had a duty to disclose, were wrongful and tortious acts in furtherance of the scheme and conspiracy to defraud Fuji[.] . . . Pursuant to that scheme and conspiracy to defraud Fuji and commit the wrongful acts described herein, in which all [of the] defendants have been involved in the same transactions and occurrences, all [of the] defendants have committed substantial tortious acts and violations of duties to Fuji in Fulton County, Georgia. All [of the] defendants are subject to the jurisdiction of this Court, and venue is proper in this County and Court as to all [of the] defendants.

In September 2010, the trial court denied the Cartwrights’ motion to dismiss or to transfer, and the Cartwrights appeal.

1. The Cartwrights contend that the trial court erred in ruling that the joint tortfeasor provision of the Georgia Constitution supported venue in Fulton County. However, given our conclusions in Divisions 2 through 4, infra, that, in the alternative, venue was proper in Fulton County under Georgia’s Long Arm Statute and the relation-back statute, this alleged error is moot.

2. The Cartwrights contend that the trial court erred when it ruled that Fuji’s 2010 amended complaint, in which it first named them as co-defendants with the Schoolers, related back to its 2003 counterclaim, pursuant to OCGA § 9-11-15 (c).

OCGA § 9-11-15 (c), Georgia’s relation-back statute, provides as follows:

Whenever the claim or defense asserted in the amended pleading arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party[] against whom a claim is asserted relates back to the date of the original pleadings if the foregoing provisions are satisfied, and if within the period provided by law for commencing the action against him the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.

In order to invoke the relation-back provisions, the plaintiff must demonstrate that three conditions are met:

(1) the amendment adding the new defendant arose out of the same facts as the original complaint; (2) the new defendant had sufficient notice of the action [so that] he will not be prejudiced in maintaining his defense on the merits I ]; and (3) the new defendant knew or should have known that but for a mistake concerning his identity as a proper party, the action would have been brought against him.

(Citation and punctuation omitted.) Pazur v. Belcher, 272 Ga. App. 456, 458 (2) (612 SE2d 481) (2004). “The provisions of [OCGA § 9-11-15 (c)] should be liberally construed to effect its purpose of ameliorating the impact of the statute of limitation. ” (Citation and punctuation omitted.) Herndon v. Heard, 262 Ga. App. 334, 337 (1) (585 SE2d 637) (2003).

(a) In this case, the Schoolers’ original 2003 complaint, Fuji’s counterclaim, and Fuji’s 2010 amended complaint against both the Schoolers and the Cartwrights all asserted claims that arose directly from the alleged oral agreement and the subsequent written broker agreement between Fuji and the Schoolers. In fact, Robert Cartwright, as one of Fuji’s vice presidents, negotiated and signed the broker agreement on behalf of Fuji. As shown above, as soon as the Schoolers started receiving payments from Fuji under the broker agreement in 2001, while Robert Cartwright was still employed by Fuji, the Schoolers began secretly tunneling 20 percent of each of the payments to the Cartwrights. Ultimately, in 2001 and 2002, the Cartwrights received at least $90,000 from the Schoolers as a result of this arrangement, a fact that they jointly concealed from Fuji for several years. Thus, due to the active concealment of this arrangement (which was not only related to the broker agreement, but was apparently contingent on the agreement), Fuji was prevented from knowing that the Cartwrights had a significant, undisclosed financial interest in the broker agreement from the contract’s very inception when it (Fuji) filed its counterclaim against the Schoolers in 2003.

Under these circumstances, we conclude that the trial court was authorized to find that all of the relevant claims in this case arose out of the same facts, conduct, transaction or occurrence, pursuant to OCGA § 9-11-15 (c).

(b) Although the Cartwrights argue that they lacked sufficient notice of the filing of the original action, this argument lacks merit. The evidence shows that, when the Schoolers filed the 2003 lawsuit, Fuji’s general counsel immediately informed Robert Cartwright, in his capacity as the Fuji vice president who was directly involved with the Schoolers in the transactions at issue; that the counsel and Cartwright repeatedly discussed the litigation until Cartwright resigned from Fuji in 2004; that Cartwright actively assisted the counsel in responding to discovery requests and in gathering documents requested by the Schoolers; and that, as a result, Cartwright was well aware of the litigation since its inception. In addition, Robert Cartwright was deposed about the pending claims in 2004 and knew that they involved disputes about the broker agreement between Fuji and the Schoolers. As for Mindy Cartwright, as shown above, the Schoolers paid her at least $90,000 in 2001 and 2002 and issued 1099 federal tax forms for such payments, despite the fact that she provided no services for the Schoolers in return. Then, she and her husband repeatedly obstructed the discovery of their relevant financial documents through disingenuous claims that they no longer possessed the documents, the gross misrepresentation of other facts, and, ultimately, the active concealment of the documents until Fuji’s discovery of such documents by other means was inevitable.

Given this evidence, we find that the trial court was authorized to conclude that “it goes beyond mere speculation to assume that the Cartwright Defendants had actual knowledge of the litigation” and that a ruling that Fuji’s amended complaint adding claims against them related back to 2003 would not prejudice the Cartwrights in their defenses to the action.

(c) As for whether the Cartwrights knew or should have known that, but for a mistake concerning their identity as proper parties, Fuji would have asserted claims against them, as well as the Schoolers, in 2003, the trial court found that it was the Cartwrights’ egregious, contumacious conduct in intentionally obstructing discovery of relevant financial documents that led to the delay in identifying them as proper parties and adding them as defendants in this action. We agree with the court’s conclusion that “it is beyond disingenuous to suggest that they did not know that [Fuji] would have added them to this action long ago had it had in its possession the financial information the Cartwright Defendants fought so long and hard to avoid producing.”

Accordingly, the trial court did not err in finding that the relation-back statute, OCGA § 9-11-15 (c), applies and that the amendment to the complaint adding the Cartwrights as defendants relates back to the Schoolers’ original filing of the lawsuit. Ford v. Olympia Skate Center, 213 Ga. App. 600, 601-602 (1) (445 SE2d 362) (1994).

3. The Cartwrights argue that the trial court’s application of the relation-back statute, OCGA § 9-11-15 (c), in this case violates their constitutional right to be sued in Taylor County, where they currently reside. Specifically, they rely upon Ga. Const, of 1983, Art. VI, Sec. II, Par. VI, which states that, subject to some exceptions not applicable here, all civil cases against individuals “shall be tried in the county where the defendant resides[.]” As the Cartwrights concede, the appellate courts of this state have consistently construed this provision to mean that, in such cases, venue is determined based on the defendant’s residence on the date the suit is filed. Franek v. Ray, 239 Ga. 282, 286 (236 SE2d 629) (1977); HD Supply v. Garger, 299 Ga. App. at 754 (1). It follows that, under such interpretation, a change of residence by the defendant after the filing of an action but before trial does not change the proper venue, so a defendant may not force a transfer of the case, unreasonably delay a trial, or avoid a trial altogether by simply moving between the filing of the case and the trial. See Franek v. Ray, 239 Ga. at 285; HD Supply v. Garger, 299 Ga. App. at 754 (1). Thus, the definitive fact that controls the location of the proper venue for a suit is in which Georgia county the defendant resides on the date the suit is filed.

(a) Under the relation-back statute, OCGA § 9-11-15 (c), a defendant who is added to a pending action “is treated as if [he or she] were a party to the original action from its inception.” HD Supply v. Garger, 299 Ga. App. at 754-755 (1). In such a case, “venue over that defendant should be assessed based upon the facts existing at the time the suit was originally filed.” (Emphasis supplied.) Id. at 754 (1). Because the undisputed evidence in this case shows that the Cartwrights were not residents of Georgia when this suit was filed in 2003, the proper venue must be determined pursuant to Georgia’s Long Arm Statute, OCGA §§ 9-10-91 and 9-10-93, as discussed in Division 4, infra. See OCGA § 9-10-90 (Under the Long Arm Statute, “the term ‘nonresident’ includes an individual . . . not residing [or] domiciled ... in this state at the time a claim or cause of action under Code Section 9-10-91 arises[.]”); Goodman v. Vilston, Inc., 197 Ga. App. 718, 721 (2) (399 SE2d 241) (1990) ("[A]n individual who lives in another state does not ‘reside’ in Georgia” for constitutional venue purposes, so “venue against the nonresident individual is proper only where authorized by the Long Arm Statute.”) (citation omitted).

(b) Notwithstanding this conclusion, the Cartwrights argue that the trial court’s application of OCGA § 9-11-15 (c) in this case violated the constitutional venue provision cited above by allowing a finding of venue as to them, as individual defendants, based on considerations other than their residence at the time they were added as defendants. However, the sole purpose of the trial court’s application of OCGA § 9-11-15 (c) in this case was to determine the date that the suit was filed. Only after it concluded that, under the circumstances presented, Fuji’s amendment adding the Cartwrights as defendants should relate back to the time the suit was originally filed — 2003 — did the court correctly find that, at that time, the Cartwrights were nonresidents of Georgia. As noted above, as nonresidents of the state, personal jurisdiction over the Cartwrights and the proper venue for the suit must be determined under Georgia’s Long Arm Statute.

Accordingly, the Cartwrights have failed to demonstrate any constitutional violation by the trial court.

4. The Cartwrights contend that the trial court erred in finding, under Georgia’s Long Arm Statute, (a) that it could exercise personal jurisdiction over them as nonresidents at the time the suit was filed and (b) that Fulton County was the proper venue for this suit.

(a) OCGA § 9-10-91 (2), which governs when a trial court may exercise personal jurisdiction over a nonresident, states, in relevant part, as follows:

A court of this state may exercise personal jurisdiction over any nonresident... as to a cause of action arising from any of the acts [or] omissions . . . enumerated in this Code section, in the same manner as if he or she were a resident of this state, if in person or through an agent, he or she . . . [cjommits a tortious act or omission within this state[.]

Decided November 8, 2011

Reconsideration denied November 29, 2011

In this case, after the Cartwrights were added as defendants, Fuji amended its complaint to allege that they and the Schoolers jointly and severally committed tortious acts in this state, including ongoing breaches of fiduciary duty, active participation in a scheme and conspiracy to defraud Fuji, and the intentional concealment of evidence of their tortious acts. We agree with the trial court’s conclusion that the Cartwrights’ actions afford a basis for it to exercise personal jurisdiction over them in this suit, pursuant to Georgia’s Long Arm Statute.

(b) Because the trial court is authorized to exercise personal jurisdiction over the Cartwrights in this case under the Long Arm Statute, the determination of the proper venue is governed by OCGA § 9-10-93, which states, in relevant part, as follows: “Where an action is brought against a resident of this state, any nonresident of this state who is involved in the same transaction or occurrence and who is suable under the provisions of this article may be joined as a defendant in the county where a resident defendant is suable.”

As shown above, the Schoolers sued Fuji and Patten in the State Court of Fulton County in 2003, thereby submitting themselves to that court’s jurisdiction and venue on Fuji’s counterclaim. M&M Mtg. Co. v. Grantville Mill, 302 Ga. App. 46, 47-48 (1) (690 SE2d 630) (2010); Kennestone Hosp. v. Hopson, 264 Ga. App. 123, 124-125 (1) (589 SE2d 696) (2003). Thus, the Schoolers are “suable” on Fuji’s claims in Fulton County. It follows that, under OCGA § 9-10-93, Fulton County is the proper venue as to the Cartwrights, also. Accordingly, the court’s finding that the Cartwrights were subject to this suit in Fulton County, pursuant to Georgia’s Long Arm Statute, was not error.

Judgment affirmed.

Miller, P. J., and Doyle, J., concur.

McGuireWoods, George J. Barry III, Robert J. Waddell, Jr., for appellants.

Finch McCranie, Michael A. Sullivan, Steven Salcedo, Sell & Melton, John A. Draughon, Michael D. Cooper, for appellee.

       This Court granted their application for interlocutory appeal.

       In its order on the motion to compel, the trial court warned the Cartwrights that their failure to comply with the order may result in the imposition of sanctions, including the assessment of fees and/or a finding of contempt and incarceration. In February 2010, the trial court found that the Cartwrights were in contempt of the order on the motion to compel. The Cartwrights’ appeal from the contempt order was the subject of a related case, Case No. A11A1929. This Court dismissed that appeal as moot on October 18, 2011.

       Neither Daniel nor Timothy Schooler joined the Cartwrights’ motion, nor did they file a separate motion to dismiss or to transfer.

       See Ga. Const, of 1983, Art. VI, Sec. II, Par. IV (providing that joint tortfeasors residing in different counties within Georgia may be tried in either county).

       “Although OCGA § 9-11-15 (c) refers to ‘an amendment changing the party,’ the ambit of the relation back provision has been construed to include cases where, as here, the plaintiff adds rather than substitutes a new party defendant.” (Citations and footnote omitted; emphasis in original.) HD Supply v. Garger, 299 Ga. App. at 754 (1).

       Although the Cartwrights argue that the holding in HD Supply v. Garger is inapplicable to this case because HD Supply involved the venue of a suit involving a corporate defendant, we note that the relevant portions of this Court’s analysis and ruling do not make any distinction between a corporate defendant and an individual defendant. See HD Supply v. Garger, 299 Ga. App. at 754-755 (1).

       In Goodman v. Vilston, Inc., this Court explained that, “|w]hile the Long Arm Statute provides for jurisdiction and venue over the person of... an individual where he or she has minimum contacts with the forum, that statute does not make the non-Georgian a ‘resident’ of Georgia; it merely provides for exercise of a Georgia court’s jurisdiction over the person.” (Citation omitted.) 197 Ga. App. at 721 (2).

       In Kennestone Hosp. v. Hopson, this Court held as follows:
      Regarding counterclaims, Georgia law has long held that a party that files suit in a Georgia court submits himself to that court’s jurisdiction and venue relating to all matters directly connected with the case that he had originated. One who goes into the court of a county other than that of his residence, to assert a claim . . . , must be content to allow that court to determine any counterclaim growing out of the original suit which the defendant sees fit to set up by a cross-action.
      (Citations and punctuation omitted.) 264 Ga. App. at 124-125 (1). Pretermitting whether the counterclaim must, in fact, involve matters “directly connected with” or “growing out of” the original suit for this rule to apply, the counterclaim asserted by Fuji in the instant case was sufficiently related to the Schoolers’ original claim to meet such requirement. See id. at 125-126 (1), (2).


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A10A0661.
    COOK v. NC TWO, L.P.
    Decided November 29, 2011.

      Blasingame, Burch, Garrard & Ashley, Patrick H. Garrard, Thomas H. Rogers, Jr., for appellant.

      McCalla Raymer, Kimberly A. Wright, Beth E. Rogers, Wesley B. Snipes, for appellee.
    (720 SE2d 361)
   Andrews, Judge.

In Cook v. NC Two, L.P., 303 Ga. App. 797 (695 SE2d 284) (2010), we affirmed the trial court’s order denying Kenneth Cook’s traverse to a garnishment action. Our Supreme Court granted certiorari in Cook v. NC Two, L.P., 289 Ga. 462 (712 SE2d 831) (2011), and reversed. Accordingly, our previous opinion is vacated, the judgment of the Supreme Court is made the judgment of this Court, and the judgment of the trial court is reversed.

Judgment reversed.

Ellington and Doyle, JJ., concur.


author: Smith, Presiding Judge.

text:
    A11A0779.
    BELLAMY v. THE STATE.
    (720 SE2d 323)
   Smith, Presiding Judge.

Kenneth Bellamy appeals from his convictions on one count of armed robbery and two counts of possession of a firearm during the commission of a felony. He asserts that the trial court erred in its charge to the jury, that he received ineffective assistance of counsel, and that the trial court erred by failing to merge or vacate one of his firearm convictions. For the reasons set forth below, we affirm.

Viewed in the light most favorable to the verdict, the record shows that the two victims were robbed at gunpoint by three men after they walked and got into their parked car after leaving a nightclub. One of the men had a gun and banged it against the front passenger’s car window where one victim was seated and then went to the driver’s side window where the other victim was seated. The passenger seat victim testified that the gunman “kinda went back and forth.”

When the gunman was at the driver’s side window, he banged the butt of the gun against the window, damaging it, and told the driver’s side victim to roll his window down and give it up. While the passenger fumbled for his wallet, the gunman hit him in the face with his fist and demanded that he hurry up. When the passenger’s wallet fell, one of the men picked it up and took it. When the driver could not retrieve his wallet from his pants quickly because it was stuck, one of the other men hit him in the face. To comply faster, the driver got out of the car, took off his pants, and handed them to the man who hit him.

After obtaining both wallets, the three men left together in a light-colored Lexus driven by a fourth person. The victims called the police, and shortly after the lookout was issued, a police officer in a marked police car “spotted a silver or tannish colored Lexus four-door model occupied by several black males.” When the officer turned around to get behind the vehicle to further identify it, “it took off at a high rate of speed” toward a housing project.

When the officers located the car in the housing project, it was parked and empty. Shortly after the car was located, an officer saw three men standing in the breezeway of one of the buildings. When the men saw the police, they walked and then ran away from them. After one of these men, Bellamy, circled back and ignored an instruction to stop, an officer grabbed him. Bellamy was near the location of the Lexus when he was apprehended, and his fingerprints were found on four locations of the Lexus.

After apprehending Bellamy and another man caught hiding a gun in the housing project, the police brought the victims to the housing project. The driver identified Bellamy as the man who hit him, who told him to give it up, and to whom he handed his pants. The driver testified that he had a good opportunity to view Bellamy during the robbery and that he also recognized the army fatigue thermal shirt worn by Bellamy. He identified Bellamy 30 minutes after the robbery took place. The passenger also identified Bellamy as one of the men involved in the robbery.

1. Bellamy asserts that the trial court erred by charging the jury on prior consistent statements, that it could consider the intelligence of a witness when making credibility determinations, and a witness’s reputation for truthfulness to rehabilitate if impeached by prior inconsistent statements. We cannot consider these claims, however, because the record shows that Bellamy requested two of these charges (prior consistent statements and credibility) and made no objection to the remaining one (reputation for truthfulness) at any time during the trial. “A party cannot invite error by requesting a certain jury instruction, and then complain on appeal that the instruction, when given, is incorrect.” (Citations omitted.) Mitchell v. State, 283 Ga. 341, 343 (2) (659 SE2d 356) (2008).

Additionally, Bellamy’s failure to object at the conclusion of the trial court’s charge results in a waiver “unless such portion of the jury charge constitutes plain error which affects substantial rights of the parties.” OCGA § 17-8-58 (b). In this case, Bellamy does not assert in his brief that plain error resulted from the charges. But in State v. Kelly, 290 Ga. 29 (718 SE2d 232) (2011), the Georgia Supreme Court held: “under OCGA § 17-8-58 (b), appellate review for plain error is required whenever an appealing party properly asserts an error injury instructions.” (Footnote omitted.) Id. at 32 (1). Out of an abundance of caution, we have reviewed the record under the standard set forth in Kelly, supra, and find that plain error did not result from the trial court’s reputation for truthfulness charge.

2. Bellamy contends that the trial court erred by charging the jury “that the testimony of a single witness, if believed, is generally sufficient to establish a fact.” Bellamy contends that it was error for the trial court to charge only this portion of OCGA § 24-4-8 because the exceptions outlined in this Code section did not apply. OCGA § 24-4-8 provides:

The testimony of a single witness is generally sufficient to establish a fact. However, in certain cases, including prosecutions for treason, prosecutions for perjury, and felony cases where the only witness is an accomplice, the testimony of a single witness is not sufficient. Nevertheless, corroborating circumstances may dispense with the necessity for the testimony of a second witness, except in prosecutions for treason.

According to Bellamy, he is entitled to a new trial because “the first sentence of OCGA § 24-4-8 is a truism that the jury should only be instructed on when the case involves one of the exceptions. ...” We disagree. See Johnson v. State, 296 Ga. App. 112, 113 (1) (673 SE2d 596) (2009) (finding no error in identical charge); Thomas v. State, 249 Ga. App. 556, 558-559 (4) (548 SE2d 71) (2001) (affirming trial court’s nearly identical charge because no evidence warranting charge on exceptions).

3. Bellamy contends that he received ineffective assistance of counsel based upon his counsel’s affirmative requests for erroneous charges, assertion of the wrong objection to a charge requested by the State, and failure to object to the court’s charge on the use of reputation for honesty to rehabilitate an impeached witness at the conclusion of the charge.

To succeed on an ineffective assistance claim, a criminal defendant must demonstrate both that his trial counsel’s performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. Miller v. State, 285 Ga. 285, 285-287 (676 SE2d 173) (2009). “A trial court’s finding that a defendant has not been denied effective assistance of trial counsel will be affirmed unless clearly erroneous.” (Citations omitted.) Scapin v. State, 204 Ga. App. 725 (420 SE2d 385) (1992).

(a) We find no merit in Bellamy’s ineffective assistance claim with regard to his counsel’s request for the following charge on prior consistent statements:

Members of the jury, should you find that any witness has made a statement prior to trial of this case that is consistent with that witness’ testimony from the witness stand during this trial, and that such prior consistent statement is material to the case and the witness’ testimony, then you are authorized to consider the other statement as substantive evidence.

Although we agree that trial counsel should not have requested this charge, Bellamy cannot demonstrate a reasonable probability that the outcome of his trial would have been different in the absence of this charge.

In its recent decision in Stephens v. State, 289 Ga. 758 (716 SE2d 154) (2011), the Georgia Supreme Court held “that an instruction on prior consistent statements should no longer be given except where the circumstances of an unusual case suggest that the jury may have the mistaken impression that it cannot consider a prior consistent statement as substantive evidence.” Id. at 759 (1) (a). The rationale for the Supreme Court’s holding was that the pattern charge “does not assist the deliberative process, and it may cause confusion by suggesting that prior consistent statements are a different or specially important type of substantive evidence.” Id.

Although the Supreme Court held that the charge should no longer be routinely given, it also recognized that a trial court’s error in giving the now forbidden pattern charge on prior consistent statements “will usually be harmless.” Stephens, supra, 289 Ga. at 760 (1) (b). It reasoned that “[t]he pattern jury instruction does not explicitly direct the jury to place any additional weight on prior consistent statements beyond that which the law already gives them. . . .” Id. It also observed that “the pattern charge simply states a truism. . . .” Id. at 759 (1) (a). Based upon the strength of the evidence presented against Bellamy as well as the Supreme Court’s opinion in Stephens, we conclude that Bellamy cannot meet his burden of demonstrating prejudice from his counsel’s request for an erroneous charge.

(b) Likewise, we are not persuaded that Bellamy can demonstrate prejudice from his trial counsel’s request for a witness credibility charge that allowed the jury to consider a witness’s intelligence as one of several factors in assessing credibility. The Georgia Supreme Court recently held:

[E]ven assuming that the better practice is to omit intelligence as one of the factors in the credibility charge, its inclusion is not reversible error. Furthermore, because no reversible error occurred with respect to the jury instruction on credibility, [the defendant] cannot succeed on his alternative claim that trial counsel rendered ineffective assistance in failing to object to that instruction.

(Citations omitted.) Howard v. State, 288 Ga. 741, 747 (6) (707 SE2d 80) (2011).

(c) We find no merit in Bellamy’s claim of ineffectiveness with regard to the single witness charge because the trial court did not err in giving this charge for the reasons outlined in Division 2 of this opinion. “The failure to pursue a futile objection does not amount to ineffective assistance.” (Citation omitted.) Ventura v. State, 284 Ga. 215, 218 (4) (663 SE2d 149) (2008).

(d) Bellamy contends his trial counsel provided ineffective assistance by failing to object to the following instruction: “Members of the jury, if it is sought to impeach a witness by proof of prior contradictory statements, then the reputation of the witness for truthfulness may be shown and then the effect of the evidence is to be determined by the jury.” Bellamy contends the charge was not adjusted to the evidence because the jury was not presented any evidence of a witness’s reputation for truthfulness. He also asserts that by giving the charge, the trial court “intimated its opinion as to what had or had not been proved in violation of OCGA § 17-8-57.” We disagree.

First, the trial court’s charge did not “constitute an expression of opinion as to the guilt of the accused in violation of OCGA § 17-8-57. That statute is only violated when the court’s charge assumes certain things as facts and intimates to the jury what the judge believes the evidence to be.” (Citation omitted.) Sedlak v. State, 275 Ga. 746, 748-749 (2) (d) (571 SE2d 721) (2002). Additionally, as in Sedlak, the trial judge here charged the jury that

no ruling which I may have made during the course of the trial have I intended to express to you any opinion on the facts of this case, on the credibility of the witnesses, on the evidence, or upon the guilt or innocence of the defendants.
My interest in this case is that it be presented to you fairly and according to law and that you return a verdict that speaks the truth as you find the truth of this case to be.

Finally, the charge stated the law accurately and was mere surplus-age that did not mislead the jury. See Rylee v. State, 288 Ga. App. 784, 786 (2) (a) (655 SE2d 239) (2007) (finding no ineffective assistance of counsel based upon failure to object to surplusage in charge). For these reasons, Bellamy cannot meet his burden of proof on either prong of the ineffective assistance of counsel analysis with regard to this claim.

4. We find no merit in Bellamy’s claim that one of his convictions for possession of a gun during the commission of a crime should have been merged or vacated because he was acquitted of the underlying armed robbery against the same victim. It is well established that there is no inconsistent verdict rule in Georgia, and this claim therefore has no merit. See Coleman v. State, 286 Ga. 291, 295-296 (4) (687 SE2d 427) (2009); Kimble v. State, 236 Ga. App. 391, 392-396 (1) (512 SE2d 306) (1999).

Decided November 29, 2011.

Steven L. Sparger, for appellant.

Larry Chisolm, District Attorney, Ann M. Elmore, Assistant District Attorney, for appellee.

[T]he Supreme Court of Georgia has abolished the rule against inconsistent verdicts because an appellate court does not know the reasons for a jury’s verdict. Accordingly, appellate courts need not invalidate a conviction on a compound offense (such as the offense of possession of a [gun] during the commission of a crime in the present case) which is logically inconsistent with an acquittal on the predicate or underlying offense (in this case, [armed robbery]) because the appellate court cannot know and should not speculate why a jury acquitted on the predicate offense and convicted on the compound offense. The reason could be an error by the jury in its consideration or it could be mistake, compromise, or lenity, but as a matter of prudence, the conviction on the compound offense should be upheld so long as the evidence will support it.

(Citations, punctuation and footnotes omitted.) Daniely v. State, 309 Ga. App. 123, 124-125 (1) (709 SE2d 274) (2011) (full concurrence in Division 1). In this case, the record contains sufficient evidence to support Bellamy’s firearm conviction as a party to the crime, and there is no basis for reversal. Whitley v. State, 293 Ga. App. 605, 606-607 (1) (667 SE2d 447) (2008).

Judgment affirmed.

Mikell, C. J., and Dillard, J., concur.

       The jury acquitted Bellamy of obstruction of an officer, as well as a second armed robbery count.

       The following four prongs are required for a finding of plain error:
      First, there must be an error or defect — some sort of “deviation from a legal rule” — that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it “affected the outcome of the trial court proceedings.” Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error — discretion which ought to be exercised only if the error “ ‘seriously affects the fairness, integrity or public reputation of judicial proceedings.’ ”
      (Citation and punctuation omitted; emphasis in original.) Id. at 33 (2) (a).

       We note that this case was tried in 2009, before the Supreme Court issued its opinion in Stephens, supra. While Stephens may not apply to the ineffective assistance claim before us, out of an abundance of caution, we are addressing the merits of Bellamy’s claim as if it did. See Holden v. State, 287 Ga. App. 472, 477 (4) (b) (651 SE2d 552) (2007) (better practice not to give pattern charge on prior consistent statements as substantive evidence). Compare Williams v. State, 201 Ga. App. 416, 417 (2) (411 SE2d 310) (1991) (holding that rule announcing forbidden jury charge would not go into effect until case announcing rule appeared in advance sheets).

       The Supreme Court’s opinion in Stovall v. State, 287 Ga. 415, 420-421 (5) (696 SE2d 633) (2010), does not require a different result because that case involved the failure to merge two counts of possession of a firearm during the commission of a crime when each involved the use of two different guns against the same victim. In this case, there were two victims. See Gutierrez v. State, 285 Ga. 878, 879-880 (3) (684 SE2d 652) (2009) (since there were three victims, defendant could be convicted of three counts of possession of a firearm during the commission of a felony).


author: Miller, Presiding Judge.

text:
    A11A0805.
    FRITZ v. SHADWICH et al.
    (720 SE2d 361)
   Miller, Presiding Judge.

Kay Fritz filed a pro se complaint against Michael Shadwich, David Stoner, SS Properties Group, LLC, Best Land Investments, LLC, and John C. Whitmire Construction (collectively “Appellees”), seeking damages related to an allegedly wrongful eviction from her home. Appellees filed a motion to dismiss the suit for failure to state a claim upon which relief could be granted on the grounds that Fritz’s claim was barred by res judicata and collateral estoppel given previous lawsuits related to a foreclosure and dispossessory action evicting Fritz from the residence. The trial court granted Appellees’ motion.

“In ruling on a motion to dismiss, the trial court must accept as true all well-pled material allegations in the complaint and must resolve any doubts in favor of the plaintiff. We review the trial court’s ruling de novo.” (Citations, punctuation and footnotes omitted.) Roberson v. Northrup, 302 Ga. App. 405 (691 SE2d 547) (2010).

After a thorough review of the evidence and record on appeal, we dismiss the appeal.

Accepting the allegations as true and resolving any doubts in favor of Fritz, the record evidence shows that, in December 2008, SS Properties Group obtained Fritz’s house at a foreclosure sale. When Fritz failed to vacate the premises, SS Properties Group obtained a writ of possession to have her removed. SS Properties Group subsequently sold the property to Best Land Investments. Fritz subsequently filed a suit seeking to evict the new tenant, but the trial court ruled against her in December 2009. Fritz then filed the instant complaint, as amended, alleging that Appellees caused her mental anguish, grief, trauma, and humiliation when they foreclosed on her home, “forc[ed] entry [into] her home,” and took her personal property.

Appellees moved to dismiss the complaint for failure to state a claim, specifically arguing that Fritz’s claims were barred by res judicata and collateral estoppel because they were, or should have been, raised in previous lawsuits concerning a challenge to the foreclosure and Fritz’s attempt to evict the new tenant. The trial court agreed, and it dismissed her complaint.

Fritz contends that the trial court erred in its entry of judgment in the underlying foreclosure and eviction proceedings. Specifically, she argues that, in the prior foreclosure action, the trial court erred in denying discovery, awarding damages to Appellees, and failing to investigate whether the foreclosure was properly conducted.

To the extent that Fritz’s claims attempt to challenge the prior foreclosure and dispossessory proceedings, we lack jurisdiction over those prior claims. To challenge the writ of possession entered in the dispossessory proceeding, Fritz was required to fde a notice of appeal within seven days of the writ’s entry. See OCGA § 44-7-56. The prior writ of possession judgment was entered on December 26, 2008, and the judgment dismissing Fritz’s suit to evict the new tenant was entered on December 17, 2009. Fritz’s notice of appeal in the instant action, however, was not filed until November 19, 2010, rendering it untimely to challenge the December 2008 writ of possession judgment or the December 2009 eviction judgment. OCGA § 44-7-56; Kappelmeier v. HSBC USA, Inc., 280 Ga. App. 349, 350 (634 SE2d 133) (2006) (“It is well established that the proper and timely filing of a notice of appeal is an absolute requirement to confer jurisdiction upon the appellate court.”) (punctuation and footnote omitted); Nalley v. Bartow County Grand Jurors, 280 Ga. 790, 791 (1) (633 SE2d 337) (2006) (generally an appellant cannot challenge the validity of the legal merits of a prior final judgment that was not timely appealed).

Decided November 29, 2011.

Kay Fritz, pro se.

Christopher C. Young, Clifton M. Patty, Jr., for appellees.

Fritz’s notice of appeal was timely filed to challenge the trial court’s October 20, 2010 order dismissing her claims in the instant lawsuit. Significantly, however, Fritz’s enumerations of error do not address the dismissal order. “By failing to address the only error over which we might have had jurisdiction, [Fritz] has abandoned such error on appeal.” (Punctuation and footnote omitted.) Kappelmeier, 280 Ga. App. at 351. Since we lack jurisdiction to address Fritz’s enumerations of error, the appeal must be dismissed. See, e.g., O’Neal v. Winn-Dixie of Atlanta, Inc., 195 Ga. App. 409, 411 (2) (393 SE2d 473) (1990); Westmoreland v. State, 192 Ga. App. 173, 175 (1) (384 SE2d 249) (1989).

Appeal dismissed.

Ellington and Doyle, JJ., concur.

       Appellees filed a motion to dismiss the appeal based on Fritz’s failure to timely submit her brief. Previously, however, we granted Fritz an extension of time, and she filed her brief within the time provided under the extension. Appellees’ motion to dismiss is therefore denied.


author: SMITH, Presiding Judge.

text:
    A11A0958.
    WATTS & COLWELL BUILDERS, INC. v. MARTIN et al.
    (720 SE2d 329)
   SMITH, Presiding Judge.

In this interlocutory appeal, Watts & Colwell Builders, Inc. (“Watts”) appeals from the trial court’s denial of its motion for summary judgment in a personal injury case brought by Carol Martin and her husband Barry Brown (collectively “Martin”). For the reasons set forth below, we reverse.

Summary judgment is appropriate when no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). “On appeal, we review the grant or denial of summary judgment de novo, construing the evidence and all inferences in a light most favorable to the nonmoving party.” (Citation and footnote omitted.) Pirkle v. Robson Crossing, 272 Ga. App. 259 (612 SE2d 83) (2005).

So viewed, the record shows that this lawsuit arises from injuries Martin received when the door to a handicap bathroom stall fell off of its hinges and knocked her onto the ground. Martin deposed that “[w]hen I came out of the facilities, the door came and slapped me on the back and hit me and knocked me to the ground. And I was laying [sic] on the floor and couldn’t get up underneath the door. And I had to try to push it off of me.” According to Martin, the door came completely off both hinges when it fell.

This was a restroom with two stalls that Martin customarily used at work. She did not notice any problem with the door when she went into the restroom that day or any other day; it “open[ed] smoothly” before her injury. She did not notice anything unusual about the way the door opened when she went into the bathroom stall on the day of her injury, and she was not aware of any other bathroom doors falling in the building before her injury.

After she was injured, Martin looked at the door with the building manager, Jean Rowland, and saw that the top hinge “was all crooked and bent, like it broke.” She testified that Rowland “said that she knew that there had been a problem with the door” and that “somebody was going to get hurt on that door.” According to Martin, Rowland “took an accident report” of the incident, and a secretary named Charlotte Jeffers “said they need to keep those bathrooms up.” Martin testified that she was not aware of these complaints or problems before her injury. In an affidavit filed in opposition to Watts’s summary judgment motion, Martin averred:

In my deposition ... I said the bathroom door looked “normal” when I entered. My meaning of this statement was that nothing appeared to me out of the ordinary, one way or the other. I had used this restroom several times before this incident, and it looked the same as it had on prior occasions, as much as I noticed. . . . However, I did not look at the condition of the stall door hinges before the incident, and I could not state whether they were defective or not. I did not do anything unusual to the door, just opened and closed it normally when it fell and hit me.

Rowland testified in her deposition that she worked as the executive secretary for the director of the Laurens County Department of Family and Children Services (“DFACS”), the principal tenant of the building owned by Watts and constructed by Watts in 1990. The lease between Watts and Martin’s employer, the Georgia Department of Labor, stated:

Landlord, shall, at his sole cost, service, replace, keep and maintain in good order and repair each and every part and portion of the existing demised Premises together with any improvements or additions the Landlord might install in or place upon the demised Premises in the course of the term of this Rental Agreement.

Because Laurens County DFACS was the main tenant in the building, one of Rowland’s job responsibilities was to be a “point of contact” to report “issues” to the owner of the building. She was also responsible for completing a report every year about the number of people in the building “and any kind of issues or anything.’’ These reports could include “information regarding the structure itself.” None of these reports ever included “any issues with the restrooms.” The established procedure was for her to report any problems to Watts’ building maintenance supervisor, Glenn Callaway. According to Rowland, Watts was responsible for maintaining and repairing the bathrooms in the building; a different company performed janitorial maintenance.

Rowland testified that the only reported problem with a bathroom door in the building before Martin’s injury was a complaint that the outer entry door to the same bathroom where Martin was injured was not closing completely. Rowland denied any knowledge of another bathroom stall door in the building falling off of its hinges before or after Martin’s injury. She denied telling “Martin or anyone within earshot of her that [she] knew this was going to be a problem or that something like this was bound to happen.” She also denied hearing anyone else say anything that could be construed to admit previous knowledge of a problem with the bathroom stall door.

Rowland completed an incident report after Martin’s injury that she provided to Watts. According to Rowland, Callaway checked every other bathroom door in the building after Martin’s injury and told her that all of the hinges “were fine.”

Callaway testified that it was his job to personally repair reported problems or “if it’s something I can’t do, hire it out.” He testified that he would do a walk-through inspection of a Watts-owned building if he was called out for a repair or if he happened to be in the area of the building. He did not have a schedule for regular inspections, but no more than “a couple of weeks” passed between walk-through inspections. He would do a walk-through inspection of restrooms approximately every six months. He could not provide a date for the last time he inspected the bathroom where Martin was injured, but knew that he had not been in that restroom the month of her injury. Before Martin’s injury, he was not aware of “any problems whatsoever with the doors to the stalls in these restrooms.”

Once a year, he would inspect an entire building, including door hinges. If he found loose hinges on doors during these inspections, he would tighten them. He did not inspect the hinges on bathroom stall doors before Martin’s injury. After her injury, he inspected all of the bathroom stall door hinges and found no broken hinges or any in need of tightening. He explained that the stall door hinges did not need tightening because they were different from the hinges used on regular doors.

Callaway came to the building the day after he learned that Martin had been injured. When he inspected the door and hinge, he saw that the top hinge was broken. The hinge was not rusty and it looked like “a clean break.” He explained that “the hinge is L-shaped, and it broke right in the L where the piece comes out. It was just sheared off.” Half of the hinge was on the door, and the other half was attached to a board on the wall. He testified that the door weighed around 30 pounds, was wider than a regular stall door because it was for the handicapped stall, and had two hinges, one at the top and one on the bottom. In his opinion, the door broke because “somebody big had to be swinging it.” Callaway repaired the door by putting a new top hinge on it.

Photographs taken of the bathroom door after it had been repaired following Martin’s injury show that the original remaining lower hinge was “rusted and discolored” and that some of the other door hinges in the bathroom had “rust and discoloration.” Martin submitted no expert testimony about the condition of the remaining bathroom stall door hinges or whether the hinges used on the handicap size door were adequately sized for the added weight of the larger door.

Callaway testified that he placed the old hinge in the console of his truck after he removed it. Although no one asked him to keep it, he thought he should because an accident had occurred. When he looked for it after Watts was served with Martin’s complaint, he could not find it.

Martin filed suit against Watts for her injuries and asserted that Watts was liable in negligence based upon its actual or constructive knowledge of the hazard. Watts moved for summary judgment on the ground that it was an out-of-possession landlord with no notice of a necessary repair and no duty to inspect. Martin opposed the motion by arguing that res ipsa loquitur applies, ordinary premises liability principles apply, issues of fact are created by Watts’s spoliation of evidence (losing the hinge), that Watts had notice of the defect due to loose hinges on the bathroom entrance door, and negligent construction. On the same day she filed her brief in opposition to Watts’s summary judgment motion, Martin amended her complaint to assert theories of recovery based upon negligent construction and maintenance by a landlord.

The trial court conducted a hearing on the summary judgment motion seven days after Martin amended her complaint to assert a claim for negligent construction. A transcript of this hearing is not in the record before us. After the hearing, the trial court issued a written order stating:

The above-captioned case came before the Court on August 25, 2010, regarding the Motion for Summary Judgment filed by Watts & Colwell Builders, Inc. (the “Defendant”). Both parties were represented by counsel. After careful consideration of the evidence and argument submitted, the Court finds that there are genuine issues of material fact to be determined by a fact finder. Therefore, the Motion for Summary Judgment is denied.

We subsequently granted Watts’s application for an interlocutory appeal.

On appeal, Watts asserts that under OCGA § 44-7-14 (landlord’s duty to maintain a leased premises in repair), it was entitled to summary judgment in its favor. Martin responds that genuine issues of fact remain based upon the spoliation of evidence by Watts, the application of the doctrine of res ipsa loquitur, whether OCGA § 44-7-14 or OCGA § 51-1-3 applies to determine Watts’s liability, whether Watts had a reasonable inspection procedure in place, and whether the bathroom stall doors were defectively constructed or negligently maintained.

1. We find no merit in Martin’s claim that Watts’s alleged spoliation of evidence supports the trial court’s denial of Watts’s motion for summary judgment. “Georgia law allows a finding of spoliation if the loss of the evidence occurs at a time when there is ‘contemplated or pending litigation.’ ” (Citation and punctuation omitted.) Kitchens v. Brusman, 303 Ga. App. 703, 707 (1) (a) (694 SE2d 667) (2010). “[Contemplation of potential liability is not notice of potential litigation.” (Citation and punctuation omitted.) Id. In this case, the record shows only the mere contemplation of potential liability at the time the hinge was lost. The completion of the accident report, the failed attempt to retain the hinge based upon the happening of an accident alone, and the inability to locate the hinge immediately after the lawsuit was filed do not demonstrate contemplated or pending litigation at the time of the loss. See Paggett v. Kroger Co., 311 Ga. App. 690, 692 (2) (716 SE2d 792) (2011) (plaintiff not entitled to spoliation presumption even though incident report prepared immediately after his injury); Craig v. Bailey Bros. Realty, 304 Ga. App. 794, 796-797 (1) (697 SE2d 888) (2010) (simple fact someone injured in accident, without more, not enough to trigger rules of spoliation).

2. Likewise, the doctrine of res ipsa loquitur has no application in this case.

The elements of the doctrine are: (1) injury of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; and (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.

(Citation and punctuation omitted.) Smith v. U-Haul Co., 225 Ga. App. 356, 357 (2) (484 SE2d 49) (1997). “The doctrine of res ipsa loquitur should be applied with caution and only in extreme cases; and it does not apply when there is an intermediary cause which could have produced the injury.” (Citations omitted.) Sams v. Wal-Mart Stores, 228 Ga. App. 314, 316 (491 SE2d 517) (1997). In this case, Watts did not have exclusive control of the hinge in the public bathroom of a leased premises, and the failure of the hinge could have occurred in the absence of negligence. Id.; Smith, supra.

3. Watts asserts that its liability should be determined under the following Code section governing the liability of landlords:

Having fully parted with possession and the right of possession, the landlord is not responsible to third persons for damages resulting from the negligence or illegal use of the premises by the tenant; provided, however, the landlord is responsible for damages arising from defective construction or for damages arising from the failure to keep the premises in repair.

OCGA § 44-7-14. Under this section, “[ljandlords still fully part with possession of leased premises when they retain limited entry or inspection rights for landlord-related purposes.” (Citation omitted.) Lake v. APH Enterprises, 306 Ga. App. 317, 319 (702 SE2d 654) (2010). “Such limited rights do not evidence such dominion and control of the premises so as to vitiate the landlord’s limited liability imposed by OCGA § 44-7-14 and replace it with the liability imposed by OCGA § 51-3-1.” Id. at 320. However, “if the landlord undertakes to inspect the property, he has a duty to repair any unsafe conditions which should have been discovered in the inspection.” Silman v. Assoc. Bellemeade, 294 Ga. App. 764, 765 (2) (669 SE2d 663) (2008). “To say otherwise would be to impose absolute liability upon landlords for all defective conditions which could have been repaired before the injury.” (Citation and punctuation omitted.) Harris v. Sloan, 199 Ga. App. 340, 341 (1) (405 SE2d 68) (1991).

In this case, Watts correctly asserts that there are no facts demonstrating that it should have discovered and repaired the hinge on the bathroom stall door before Martin’s injury. It received no complaints about bathroom stall hinges before Martin’s injury and discovered no problems with other bathroom stall hinges afterward. It is undisputed that the door fell because the hinge “sheared off,” not because screws heeded tightening. The fact that Watts’s maintenance supervisor tightened screws on a different type hinge on a different style door does not create a genuine issue of fact as to whether Watts should have discovered a problem with this particular bathroom stall door hinge. Likewise, descriptions of other bathroom stall door hinges looking “rusted or discolored” without more do not create a genuine issue of fact with regard to Watts’s duty to discover and repair any alleged defect or problem with this hinge.

Accordingly, we find that the trial court erred by denying Watts’s motion for summary judgment under OCGA § 44-7-14. See Silman, supra, 294 Ga. App. at 765 (2); Gainey v. Smacky’s Investments, 287 Ga. App. 529, 530-531 (2) (a) (652 SE2d 167) (2007).

4. To the extent OCGA § 51-3-1 could be applied in this case, we conclude that Watts is entitled to summary judgment in its favor under this Code section as well. In order to recover under OCGA § 51-3-1, Martin must show that Watts had either “actual or constructive knowledge of the hazard.” Thomas v. Deason, 289 Ga. App. 753, 755 (658 SE2d 165) (2008). It is undisputed that Watts had no actual knowledge of any problem with bathroom stall door hinges.

Martin attempts to show constructive knowledge based upon her allegation that Watts did not have reasonable inspection procedures in place and its failure to keep adequate records of the inspections it did conduct. See James v. Vineville Christian Towers, 256 Ga. App. 72, 74 (567 SE2d 712) (2002). The record shows, however, that Watts conducted walk-through inspections of the building every two weeks and the bathrooms every six months. It had never received a report of any problems with any bathroom door hinges before Martin’s injury, and there is no evidence that an inspection of the hinge would have revealed any defect. Instead, the evidence shows without dispute that the hinge “sheared off” without warning.

We find this evidence sufficient to establish that Watts conducted reasonable inspections of the property as a matter of law. The law does not require Watts “to conduct an inspection that disclosed every latent defect on the property. If this were the rule, then proprietors would be absolutely liable for all defective conditions on their property. The law does not impose such absolute liability. ...” (Citations and punctuation omitted.) James, supra, 256 Ga. App. at 75. See also Padilla v. Hinesville Housing Auth., 235 Ga. App. 409, 411-412 (509 SE2d 698) (1998) (affirming summary judgment to property owner when nothing in record showed inspection would have discovered defect in stairs). The trial court therefore erred by failing to grant summary judgment to Watts under OCGA § 51-3-1.

5. We express no opinion here as to the validity of Martin’s claim for defective construction because we cannot determine from the record before us whether the trial court ruled on that claim when it denied Watts’s motion for summary judgment. The record shows that Martin amended her complaint to assert a claim for defective construction after Watts moved for summary judgment, and the record before us does not include a supplemental motion for summary judgment on this claim by Watts. In the absence of a transcript of the hearing on Watts’s summary judgment motion showing that this ground was raised below or a specific ruling by the trial court, there is nothing for this court to review with regard to this theory of recovery.

Decided November 29, 2011

Mabry & McClelland, David T. Markle, James T. Budd, Brett A. Miller, for appellant.

Buzzell, Graham & Welsh, Neal B. Graham, Steven R. McNeel, for appellees.

Judgment reversed.

Mikell, C. J., and Dillard, J., concur.

       This Code section provides: “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.”


author: BARNES, Presiding Judge.

text:
    A11A1001.
    BURROUGHS et al. v. MITCHELL COUNTY et al.
    (720 SE2d 335)
   BARNES, Presiding Judge.

Randolph Burroughs slipped and fell while disposing of trash at a county sanitation facility, sustaining serious injuries. He sued two Mitchell County employees and the county itself, contending that the facility was improperly designed and built. He also sued Seminole Sanitation Services, Inc., the company that serviced the dumpsters, contending that it contributed to his injury because its employees had bent the facility’s landing and placed the dumpster several feet from the edge of the landing where he fell. All of the defendants moved for summary judgment, which the trial court granted without explanation.

Burroughs appeals the grant of summary judgment to Seminole Sanitation and to the county employees individually on official immunity grounds. For the reasons that follow, we affirm the trial court’s grant of summary judgment to the county employees, and affirm in part and vacate in part the grant of summary judgment to Seminole Sanitation.

On appeal, we review the trial court’s grant of summary judgment de novo to determine whether the evidence demonstrates a genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ford v. Bank of America Corp., 277 Ga. App. 708 (627 SE2d 376) (2006). Although Burroughs, as the respondent, is entitled to all reasonable inferences from the evidence presented, such inferences cannot be based upon mere conjecture or possibility. Sharfuddin v. Drug Emporium, 230 Ga. App. 679, 683 (3) (a) (498 SE2d 748) (1998).

So viewed, the evidence shows that the county leased the land on which the sanitation facility was located. County employees designed and built the facility, and the county maintained it. Seminole Sanitation replaced the full dumpsters with empty ones, which was the only service it performed at the facility.

Burroughs had never been to the facility before, which is set up so that residents can pull off the road, park their vehicles, walk out onto a platform, and dump their trash into large dumpsters. The tops of the dumpsters Eire approximately level with the platform. Burroughs said that when he walked out onto the platform, the edge of the dumpster was four or five feet from the edge of the platform. As he began to dump the trash from the can, he slipped off the side and fell head-first to the ground. While Burroughs testified he was dumping his second can of trash when he fell, his son testified that Burroughs only took one can of trash from the son’s house.

When asked if anything caused him to fall, Burroughs responded that he could not remember, adding, “I just slipped, that’s all,” although he denied that the surface was slippery. When asked if Burroughs was confused when he arrived at the hospital, his son said Burroughs “knew what he was saying.” Burroughs testified that after he fell to the ground, he stood up but “couldn’t get out from down there, down there right where [he] fell,” so he waited there until his son came and led him out. Burroughs was taken to the emergency room and then transferred to a different hospital, where he required surgery to relieve pressure caused by a brain hemorrhage. Two or three hours later he underwent a second surgical procedure to relieve the pressure. Burroughs remained in the hospital for two months, and continues to experience personality and cognitive problems.

1. Burroughs argues that the trial court erred in granting summary judgment to the two county employees, Administrator Bennett Adams, who decided to build the facility, and Road Superintendent Julius Hatcher, who is in charge of the Public Works Department, which oversees the facility maintenance. Burroughs contends that the two employees are not entitled to official immunity because they negligently performed their ministerial duty to put guardrails on the platform from which the trash was tossed into the dumpster. The defendants respond that, among other things, the building code in effect when the structure was built did not require guardrails in this application, and that their decision not to put them around the platform was a discretionary one for which they are immune from suit.

The doctrine of official immunity, also known as qualified immunity, affords limited protection to public officers and employees for discretionary actions taken within the scope of their official authority, and done without wilfulness, malice or corruption. Teston v. Collins, 217 Ga. App. 829, 830 (1) (459 SE2d 452) (1995).

[A] public officer or employee may be personally liable only for ministerial acts negligently performed or acts performed with malice or an intent to injure. The rationale for this immunity is to preserve the public employee’s independence of action without fear of lawsuits and to prevent a review of his or her judgment in hindsight.

(Footnotes omitted.) Cameron v. Lang, 274 Ga. 122, 123 (1) (549 SE2d 341) (2001). As there is no evidence in this case that Adams or Hatcher acted or failed to act with malice, wilfulness, or an intent to injure, the question is whether the officials’ failure to install a guardrail was a ministerial or discretionary act.

Unlike a ministerial act, a discretionary act “calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.” (Citation and footnote omitted.) Harvey v. Nichols, 260 Ga. App. 187, 191 (1) (581 SE2d 272) (2003).

A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. A discretionary act, however, calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.

(Citation omitted.) McDowell v. Smith, 285 Ga. 592, 593 (678 SE2d 922) (2009). Whether the act of a public official is ministerial or discretionary is determined by the facts of each case, “particularly the facts specifically relevant to the official’s act or omission from which the alleged liability arises.” Grammens v. Dollar, 287 Ga. 618, 620 (697 SE2d 775) (2010).

Burroughs argues that because a provision of the applicable building code required the installation of guardrails on the platform at the sanitation facility, this building requirement was ministerial, not discretionary, and thus, the county employees were not entitled to official immunity for failing to install them.

The sanitation facility was built in 1995 by Harry Daughtry, the former road supervisor. While Adams initiated the project, Daughtry designed and built it. It was one of the first built, and Adams testified that its design was dictated in part by the amount of land available to the county. County facilities built afterward used a different design because more space was available.

When the sanitation facility was designed and built, the applicable state minimum standard code for constructing buildings and structures was the Standard Building Code (“SBC”). OCGA § 8-2-20 (9) (A) (i) (I) (1995). The county defendants asked the trial court to take judicial notice of the SBC, portions of which are included in the record. Burroughs’ expert architect testified that the SBC required the installation of guardrails on elevated platforms such as the one from which Burroughs fell. The code section upon which the expert relied provides: “All unenclosed floor and roof openings, open and glazed sides of landings and ramps, balconies or porches which are more than 30 inches (762 mm) above finished ground level or a floor below shall be protected by a guardrail.” SBC § 1116. Although this guardrail requirement is contained within a chapter describing the features required for “means of egress ... to the exterior of a building,” SBC § 1101.1.2, and the sanitation facility is not a “building,” Burroughs’ expert opined that the requirement was applicable to the sanitation facility because the SBC also applied to “every . . . structure,” as stated in SBC § 101.3. Whether the SBC provision applies to the situation in this case, however, is a legal conclusion. Connell v. Long, 248 Ga. 716, 718 (1) (286 SE2d 287) (1982) (whether zoning ordinance applies to property is a legal question for trial court, not jury, to decide). While “[t]he opinion of an expert is admissible when the expert is asked to make an inference of fact from data presented to him,” Law home v. Soltis, 259 Ga. 502, 504 (2) (384 SE2d 662) (1989), legal conclusions “cannot be considered as evidence on motion for summary judgment.” GE Capital Mtg. Svcs. v. Clack, 271 Ga. 82, 84 (1) (b) (515 SE2d 619) (1999).

“[T]he execution of a specific task is characterized as ministerial even though the manner in which it is accomplished is left to the employee’s discretion.” (Punctuation and footnote omitted.) Heller v. City of Atlanta, 290 Ga. App. 345, 348 (659 SE2d 617) (2008) (statute mandated minimum taxi tire tread depth; thus, city vehicle inspector’s failure to inspect depth was violation of ministerial duty). In this case, however, the guardrail requirements of SBC § 1116 do not define specific ministerial tasks applicable to this sanitation facility, because the facility is not a “building.” The SBC defines “building” as “any structure that encloses a space used for sheltering any occupancy.” SBC § 202. Section 1101.1 of the SBC states that the provisions of Chapter 11 apply to “every building hereafter erected.” Section 1101.1.2 directs that “[mjeans of egress shall consist of continuous and unobstructed paths of travel to the exterior of building. Means of egress shall not be permitted through kitchens, closets, restrooms and similar areas nor through adjacent tenant spaces.” Finally, in defining its scope, the SBC itself provides that “where there is a conflict between a general requirement and a specific requirement, the specific requirement shall be applicable.” SBC § 101.3.1. Therefore, the “means of egress” provisions apply to buildings, not to both buildings and structures, as the expert opined.

The sanitation facility is not a building, and the platform from which trash was thrown was not a “means of egress.” Thus, the guardrail requirements of SBC § 1116 do not apply in this situation. Burroughs has pointed to no other applicable source defining the installations of guardrails as a ministerial duty. “Absent such applicable standards, plaintiffs cannot establish that the defendants’ actions were ministerial — namely, that the procedures or instructions were so clear, definite and certain as merely to require the execution of a relatively simple, specific duty.” (Citation and punctuation omitted.) Banks v. Happoldt, 271 Ga. App. 146, 150 (2) (608 SE2d 741) (2004). Accordingly, Burroughs has not established that the failure to install guardrails violated a ministerial duty that waived the official immunity to which Adams and Hatcher are entitled.

Burroughs also asserts that inspection and maintenance of the landing was a ministerial duty, as was supervising the employees who performed that duty. “[0]ur courts have held in certain cases that when a governmental department creates its own policy requiring certain actions under certain situations, then the actors for that department have a ministerial duty to follow the policy. Obedience of the departmental policy is ministerial.” (Citations and punctuation omitted.) Standard v. Hobbs, 263 Ga. App. 873, 876 (1) (589 SE2d 634) (2003). In this case, however, Burroughs has not established the existence of a departmental policy creating a ministerial task applicable to this case. Road Supervisor Hatcher was not employed by the county when the sanitation facility was built, but when he came to work for the county in 2000, he directed the addition of barriers in the parking lot. The facility was designed for residents to dump household garbage, and the barriers were placed to discourage people from backing pickup trucks to the edge of the dumpsters and offloading used building materials directly into the containers. In adding the barriers, he testified, he followed no “[cjounty policy or directive, nor any codes or standards which dictated the manner, method or timing” of the installation, but instead used his discretion to allocate resources to the project. Absent evidence of a ministerial department policy, the trial court did not err in granting summary judgment to Adams and Hatcher on Burroughs’ claims against them in their individual capacities.

2. Burroughs also argues that the trial court erred in granting summary judgment to Seminole Sanitation, contending that factual issues remain for a jury to determine.

Burroughs’ claim against Seminole Sanitation is not a premises liability claim under OCGA § 51-3-1, which imposes upon an owner or occupier of land the nondelegable duty to exercise ordinary care to keep the premises and approaches safe for invitees. Seminole Sanitation neither owned nor occupied the facility where Burroughs fell, but simply serviced the dumpsters. “[T]o recover for injuries caused by another’s negligence, a plaintiff must show four elements: a duty, a breach of that duty, causation and damages.” (Citation and punctuation omitted.) Royal v. Ferrellgas, 254 Ga. App. 696, 698 (1) (a) (563 SE2d 451) (2002). Here, Burroughs had two complaints against Seminole Sanitation: first, that Seminole Sanitation placed the edge of the dumpster four or five feet from the edge of the platform, unreasonably increasing the likelihood someone tossing trash would lose his balance and fall, and second, that Seminole Sanitation bent the landing, made it uneven, and caused a tripping hazard.

(a) As to the gap between the dumpster and platform, “[o]n the issue of causation, a plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough.” (Punctuation and footnote omitted.) Gay v. Redland Baptist Church, 288 Ga. App. 28, 29 (653 SE2d 779) (2007). Here, while both of the county employees and Seminole Sanitation’s president testified that the dumpsters should be placed almost flush with the platform because a person reaching to toss garbage across a big gap is more likely to fall, Burroughs presented no evidence that a gap caused him to fall.

When asked what made him fall, Burroughs could only say that he did not know, but guessed that he “just slipped,” “just went on over,” or “lost his balance and footing.” A de novo review of the deposition and exhibits where Burroughs marked the location of his fall reveals that he did not fall into the gap between the dumpster and platform, but fell off the side of the platform, perpendicular to the dumpster. The evidence thus forms no reasonable basis for the conclusion that any gap between the platform and dumpster more likely than not caused Burroughs to fall. Accordingly, the trial court did not err in granting summary judgment to Seminole Sanitation on Burroughs’ claim that Seminole Sanitation negligently left such a gap and that this gap caused his injuries.

(b) As to Burroughs’ claim that Seminole Sanitation bent the landing and caused a tripping hazard, the evidence showed that the edge of the platform was “slightly bent,” and the county employees admitted that the landing should have been level. In response to Seminole Sanitation’s motion for summary judgment, Burroughs submitted the affidavit of an expert witness, who explained that after personally inspecting the platform and reviewing other evidence in the case, he concluded that Seminole Sanitation probably caused the damage to the platform. Contending that this opinion is unreliable and, therefore, inadmissible, Seminole Sanitation moved to exclude it under OCGA § 24-9-67.1, but the trial court never ruled on its admissibility.

Before this court considers the issue, the trial court should consider and rule on the admissibility of the expert opinion first. The admissibility of the expert opinion under OCGA § 24-9-67.1

requires a consideration of the facts and data upon which the opinion is based, whether the opinion is a product of reliable principles and methods, and whether the opinion was reached by a reliable application of those principles and methods to the facts of the case.

(Punctuation omitted.) An v. Active Pest Control South, 313 Ga. App. 110 (720 SE2d 222) (2011). “[T]he trial judge acts as the gatekeeper in determining the admissibility of expert opinion,” Condra v. Atlanta Orthopaedic Group, 285 Ga. 667, 671 (1) (681 SE2d 152) (2009), and the appellate court reviews that determination for abuse of discretion. See Brady v. Elevator Specialists, 287 Ga. App. 304, 305 (1) (653 SE2d 59) (2007).

Accordingly, we vacate the award of summary judgment to Seminole Sanitation on Burroughs’ claim that Seminole Sanitation negligently damaged the platform, created a tripping hazard, and caused his injuries, and remand this case for the trial court to rule on the motion to exclude the expert opinion, and then reconsider Seminole Sanitation’s motion for summary judgment on this claim.

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

Adams and Blackwell, JJ., concur.

Decided November 29, 2011.

Law & Moran, Peter A. Law, Ernest M. Moran, Silvis, Ambrose & Lindquist, Benjamin L. Lindquist, for appellants.

Dennis, Corry, Porter & Smith, Grant B. Smith, George H. Connell, Jr., Brown, Readdick, Bumgartner, Carter, Strickland & Watkins, Richard K. Strickland, Freeman, Mathis & Gary, Sun S. Choy, Jacob E. Daly, for appellees.

       While Burroughs also sued the two county employees in their official capacities, he has not argued that the trial court erred in granting them summary judgment in that capacity, nor has he appealed the trial court’s grant of summary judgment to Mitchell County. Thus, those rulings stand affirmed.

       After July 1, 2004, the state minimum standard code included the International Building Code instead of the Standard Building Code. OCGA § 8-2-20 (9) (B) (i) (I) (2010).