author: McMlLLIAN, Judge.

text:
    A13A0436.
    A13A0437.
    A13A0972.
    A13A0973.
    AETNA WORKERS’ COMP ACCESS, LLC v. COLISEUM MEDICAL CENTER et al. BUILDERS INSURANCE GROUP, INC. v. COLISEUM MEDICAL CENTER et al. LIBERTY MUTUAL INSURANCE COMPANY v. COLISEUM MEDICAL CENTER et al. TRAVELERS INDEMNITY COMPANY v. COLISEUM MEDICAL CENTER et al.
    (746 SE2d 148)
   McMlLLIAN, Judge.

These four related appeals involve the administration and payment of workers’ compensation claims and the duties and potential liabilities of the network administrator and insurers within that network. Appellant Aetna Workers’ Comp Access, LLC (“Aetna”) is the network administrator of the Aetna Workers’ Compensation Access network and has entered into contracts with Appellees Coliseum Medical Center and six other Georgia hospitals (the “Providers”), which provide medical care for employees injured on the job. Appellant Builders Insurance (“Builders”), Liberty Mutual Insurance Company (“Liberty Mutual”), and Travelers Indemnity Company (“Travelers”) are workers’ compensation insurers (collectively the “Payors”) who are responsible for compensating the Providers for services rendered to covered workers. Appellants Sedgwick Claims Management Services, Inc. (“Sedgwick”) and MediCor Managed Care, LLC (‘MediCor”) act as claims administrators on behalf of the Payors (collectively the “Claims Administrators”).

These appeals raise three issues: (1) whether the State Board of Workers’ Compensation has jurisdiction over this dispute as opposed to the superior court; (2) whether an exculpatory clause in the contract between Aetna and the Providers precludes the Providers’ claims against Aetna; and (3) whether the trial court properly denied Sedgwick, MediCor, Builders, and Liberty Mutual’s motions to dismiss on the grounds that they were not a party to the contract between Aetna and the Providers. For the reasons set forth below, we affirm.

As alleged in the Complaint, Aetna has established a network of hospitals and insurers known as the Aetna Workers’ Compensation Access (“AWCA”) network. Aetna, as a network administrator, contracted with the Providers, who agreed to offer medical services at certain rates, sometimes at a discount, to injured employees claiming workers’ compensation benefits. In exchange, Aetna agreed to designate the Providers as preferred providers within the AWCA, administer the plans for Payors, and process and determine the amounts due to the Providers for medical services rendered to workers covered by workers’ compensation insurance issued by the Payors.

The Letter of Agreement (“LOA”) entered into by Aetna and the Providers, effective February 1, 2006, set out that “general” services were to be provided “at a rate of 98% of the current workers’ compensation fees established by the State of Georgia.” The Providers further agreed that “special” services, including prosthetics, implants, and high cost drugs greater than $500, would be provided at a rate of 80% of their billed charges. Although Aetna was responsible for facilitating the Providers’ claims for payment from the Payors and/or Claims Administrators, the parties agreed that Aetna was not responsible for payment to the Providers. Moreover, the LOA specified that neither Aetna nor the Payors would “deny or reduce payments” from the negotiated rate to a Provider for services unless one of the exceptions applied. The LOA further provided that any Payors, to which Aetna gave access to the Providers’ agreement via the network, also agreed to all terms and conditions within the LOA, and Aetna agreed to notify the Payors that they were bound to the terms of the LOA.

Since the parties entered into the LOA, the Providers have provided compensable medical services to hundreds of workers’ compensation claimants as a part of this network. The parties do not dispute that for “general” services, the Payors compensated the Providers at the discounted rate specified in the LOA. However, the Providers’ claims for reimbursement of “special” services — prosthetics, high cost drugs and implants — were allegedly processed and paid at rates lower than those agreed upon in the LOA. Asserting a breach of contract claim against Aetna, the Providers allege that Aetna orchestrated this system of underpayment by failing to process the Providers’ claims at the agreed rates and by instructing the Payors to reimburse the Providers at the lower rates, resulting in a shortfall of over $2.8 million. The Providers have asserted a separate breach of contract claim against the Payors under a third-party beneficiary theory.

In Case No. A13A0436, Aetna filed a motion to dismiss the Providers’ complaint asserting that the State Board of Workers’ Compensation (the “Board”), rather than the superior court, has exclusive jurisdiction over the Providers’ claims. Aetna also filed a motion for summary judgment based on an exculpatory clause in the LOA, asserting that the clause precludes the Providers from bringing a breach of contract claim against it. In Case Nos. A13A0437, A13A0972, and A13A0973, the Payors and Claims Administrators also filed motions to dismiss, arguing that the Board has exclusive jurisdiction over the Providers’ claims. Alternatively, some of the Payors and Claims Administrators have asserted they were not parties to the contract between Aetna and the Providers and therefore the breach of contract allegations fail to state a claim as a matter of law. The trial court denied all the motions, and the parties filed their respective appeals to this Court.

Case No. A13A0436

1. We first consider whether the Board, rather than the superior court, has exclusive jurisdiction over the Providers’ claims against Aetna. Aetna argues that because the gravamen of the Providers’ claims is a dispute over medical fees and the Board has exclusive jurisdiction over medical fee disputes, the Complaint must be dismissed for lack of subject matter jurisdiction. The Providers counter that the Board lacks authority to resolve common law breach of contract claims and that the Board’s jurisdiction is limited to resolving disputes between employees, employers, and appropriate “Parties at Interest,” which they claim Aetna is not.

It is well settled that we review the trial court’s ruling on motions to dismiss under the de novo standard of review. See DeFloria v. Walker, 317 Ga. App. 578, 579 (732 SE2d 121) (2012); TechBios, Inc. v. Champagne, 301 Ga. App. 592, 593 (688 SE2d 378) (2009).

We start by examining the nature, jurisdiction, and authority of the Board. The Board is a “creature of statute” with only the jurisdiction, power, and authority conferred upon it by the General Assembly. See OCGA § 34-9-40 (“The board shall have full authority, power, and the duty to promulgate policies, rules, and regulations for the administration of this chapter.”); Mulligan v. Selective HR Solutions, Inc., 289 Ga. 753, 756 (1) (716 SE2d 150) (2011). The Board performs all the powers and duties relating to the enforcement of the Workers’ Compensation Act (the “Act”), and the Act

shall be liberally construed only for the purpose of bringing employers and employees within the provisions of this chapter and to provide protection for both. This chapter is intended to provide a complete and exclusive system and procedure for the resolution of disputes between employers and employees who are subject to this chapter concerning accidents and injuries arising out of and in the course of employment as defined in this chapter. The provisions of this chapter shall be construed and applied impartially to both employers and employees.

OCGA § 34-9-23.

Although the Providers’ claim against Aetna is clearly not one between an employer and employee under the Act, that does not end the inquiry of whether the Board has jurisdiction. This Court has recognized that the Board also has jurisdiction to resolve ancillary issues relating to the employee’s compensation rights under the Act, explaining that

[t]he general rule appears to be that, when it is ancillary to the determination of the employee’s right, the Board has authority to pass upon a question relating to the insurance policy .... On the other hand, when the rights of the employee in a pending claim are not at stake, many Boards disavow jurisdiction and send the parties to the courts for relief. This may occur when the question is purely one between two insurers, one of whom alleges that it has been made to pay an undue share of an award to a claimant, and the award itself is not being under attack.

(Citations and punctuation omitted.) Builders Ins. Group, Inc. v. Ker-Wil Enterprises, Inc., 274 Ga. App. 522, 523 (2) (618 SE2d 160) (2005). Compare Lumber Transport, Inc. v. Intl. Indem. Co., 203 Ga. App. 588, 589 (1) (417 SE2d 365) (1992) (holding that Board did not have jurisdiction to determine coverage dispute between employer and insurer when employee had already filed and exhausted workers’ compensation claim in another state).

The issue then is whether the Providers’ breach of contract claim against Aetna bears an ancillary relationship to the determination of the employees’ rights under the Act, thereby falling within the Board’s exclusive jurisdiction. We find that it does not.

As alleged, the Providers claim that Aetna, as the network administrator, agreed but failed to: (1) “process the Hospitals’ claims according to the rate of reimbursement set out in the Agreement Fee Schedule”; (2) instruct the Payors to reimburse the Providers using the contractually agreed upon rates; (3) inform Payors of the proper rate of reimbursement; and (4) “properly manage the workers’ compensation preferred provider plan according to its negotiated terms.” The Providers further allege that Aetna breached the duty of good faith and fair dealing by failing to rectify the underpayments. No specific employee claimant or claim is referenced, and neither Aetna nor the Payors point to any employee whose claim of benefits would be affected by resolution of the Providers’ claim against them. Accordingly, we do not find these allegations implicate the benefits to be paid to any individual injured employee, but instead allege a systemic failure within the network administered by Aetna.

For that reason, Aetna’s reliance on cases in which the employees’ rights were clearly impacted are unavailing. Aetna relies on Smart Professional Photocopy Corp. v. Dixon, 216 Ga. App. 825 (456 SE2d 233) (1995), in which an injured employee filed a complaint against a photocopy company for charging more for copies of medical records than allowed under OCGA § 34-9-205. This Court held that the photocopy company was a “service provider” within the Workers’ Compensation Act and was governed by the schedule of fees adopted by the Board. Thus, the injured employee’s rights were clearly affected in Smart Professional because they were asserting the claim that the copy company overcharged them for a copy of their medical records. See also Aetna Cas. & Sur. Co. v. Davis, 253 Ga. 376, 377 (320 SE2d 368) (1984) (Board retains jurisdiction over dispute involving terms of settlement agreement between employee and workers’ compensation insurer, which had been approved by the Board); Mullis v. NC-CNH, Inc., 218 Ga. App. 332 (461 SE2d 237) (1995) (Board has exclusive jurisdiction to resolve claims by injured employees against medical providers who sent bills directly to them in violation of OCGA § 34-9-205).

We likewise find Builders, 274 Ga. App. at 522, to be distinguishable. In Builders, the injured employee had filed a claim against his employer and its workers’ compensation insurer for payment of benefits. The workers’ compensation insurer denied benefits, claiming that the policy had been cancelled and subsequently filed a declaratory judgment action on the coverage issue. Although the injured employee was not a party to the declaratory judgment action, his rights would clearly be affected by the resolution of the coverage question, and therefore we held that the Board had exclusive jurisdiction of the case even though it involved the interpretation of the insurance contract.

Aetna also posits that because the Providers’ measure of damages equates to an underpayment under the LOA, this case is a disguised medical fee dispute over which the Board has exclusive jurisdiction. Pretermitting the question of whether the Board has exclusive jurisdiction over “medical fee disputes,” it is well settled that

[t]he measure of damages in the case of a breach of contract is the amount which will compensate the injured person for the loss which a fulfillment of the contract would have prevented or the breach of it entailed. In other words, the person injured, is, so far as it is possible to do so by a monetary award, to be placed in the position he would have been in had the contract been performed.

Austin v. Bank of America, N.A., 293 Ga. 42, 49 (2) (743 SE2d 399) (2013). Although that amount could equate to 80 percent of what the Providers billed for special services, at this juncture, it is unclear what amount would place the Providers in the same position they would be in if the contract had been performed. And the possibility that the measure of damages for this breach of contract action could equate to what the Providers seek for special services is insufficient to make this case a disguised “medical fee dispute” when, as pleaded, the Providers have alleged breaches of contractual duties separate and distinct from the obligation to compensate for services rendered to injured employees.

We find, therefore, that the Providers’ claim against Aetna is based on Aetna’s role as network administrator, and that Aetna has not shown that, as alleged, the outcome of this case would have any effect on a claim that an individual injured employee may assert or has asserted before the Board. Accordingly, the Providers’ claim against Aetna does not fall within the ancillary jurisdiction of the Board. Because the Board “is not a court authorized to render judgment on [the] contract[ ]” in this case, we find no error in the trial court’s denial of Aetna’s motion to dismiss. (Punctuation omitted.) Lumber Transport, 203 Ga. App. at 589 (1). See also Fireman’s Fund Ins. Co. v. Crowder, 123 Ga. App. 469, 471 (181 SE2d 530) (1971).

2. We next address Aetna’s assertion that the trial court erred in denying its motion for summary judgment because the exculpatory clause of the LOA precludes the Providers from asserting any breach of contract claim against Aetna. We disagree.

The construction of contracts is initially a question of law for the court. OCGA § 13-2-1. See also Schwartz v. Harris Waste Mgmt. Group, 237 Ga. App. 656, 660 (2) (516 SE2d 371) (1999). If the trial court determines that the language is clear and unambiguous, “the court simply enforces the contract according to its clear terms; the contract alone is looked to for its meaning.” Id. With respect to exculpatory clauses, “absent a public policy interest, contracting parties are free to contract to waive numerous and substantial rights, including the right to seek recourse in event of a breach by the other [party].” Imaging Systems Intl., Inc. v. Magnetic Resonance Plus, Inc., 227 Ga. App. 641, 644 (490 SE2d 124) (1997). See Stefan Jewelers v. Electro-Protective Corp., 161 Ga. App. 385, 387 (288 SE2d 667) (1982) (waiver of any recovery for breach of contract not unconscionable). Such provisions “severely restricting remedies act as exculpatory clauses and therefore should be explicit, prominent, clear and unambiguous.” Imaging Systems, 227 Ga. App. at 644-645. See also Holmes v. Clear Channel Outdoor, Inc., 284 Ga. App. 474 (644 SE2d 311) (2007) (requiring exculpatory clauses to be explicit, clear, and unambiguous because they may amount to an accord and satisfaction of future claims).

We turn first to the language of the LOA. Aetna argues that the Providers clearly and unambiguously agreed in the LOA that they would not assert “any claim for compensation” against Aetna in the event of nonpayment by Payor for “Compensable Services” for “any reason” or for “breach of contract.” Paragraph Two of the LOA provides:

Compensation for health care services that a Claimant is entitled to receive under the terms of Claimants workers’ compensation coverage (“Compensable Services”) rendered by Provider is defined on the attached Services and Compensation Schedule (hereinafter Exhibit B). . . . Providers acknowledge that [Aetna] does not act as a Payor and is not financially responsible for payment for Compensable Services. Providers agree to look to the applicable Payor for Compensable Services and will not assert any claim for compensation against Claimants or [Aetna] in the event of nonpayment by Payor for Compensable Services for any reason (including Payor’s insolvency) or a breach of this Agreement, provided that Claimant provides sufficient information indicating the applicable Payor. [Aetna] agrees, upon request, from Provider, to facilitate with Payor, in determining the applicable group health carrier (if any) if Payor denies compensability with respect to a claim. .. .

Thus, the LOA states the Providers “will not assert any claim for compensation” from Aetna under two circumstances: (1) “nonpayment by Payor for Compensable Services for any reason” and (2) “breach of this Agreement.” Although the term “claim for compensation” is not defined, the term “Compensable Services” is and refers to reimbursement for health care services rendered by the Provider and covered by the Claimant’s workers’ compensation insurance. Accordingly, we find that “claim for compensation” clearly references claims for payment for “Compensable Services.” And, contrary to Aetna’s argument, this exculpatory clause does not purport on its face to exculpate Aetna from any and all claims, and its scope is limited to any “claim for compensation” in the event of nonpayment by the Payor or breach of the LOA. Here, the Providers allege nonpayment by the Payors as well as a breach of the LOA by Aetna, but as we held in Division 1, the Providers are not seeking reimbursement from Aetna for the underpayments by the Payors. Instead, the breach of contract claim is premised on Aetna’s alleged failure to administer claims according to the terms of the LOA and to inform and require the Payors to reimburse at the agreed upon rates. We thus disagree with Aetna that the language in Paragraph Two “explicit[ly], prominently], clear [ly] and unambiguous [ly]” bars the Providers from asserting any claim of breach of contract by Aetna. See Imaging Systems, 227 Ga. App. at 644-645; Holmes, 284 Ga. App. at 474.

Aetna points to Constantine v. MCG Health, Inc., 275 Ga. App. 128 (619 SE2d 718) (2005), to urge us to find that the language in Paragraph Two bars the Providers’ claims. But we find the exculpatory clause in Constantine to be materially different from the one in the LOA. In Constantine, that clause broadly and unambiguously prohibited MCG from “billing], charging], collect[ing] a deposit from, seeking] remuneration or reimbursement from, or hav[ing] any recourse against Member or persons other than (Aetna) acting on their behalf for services listed in this Agreement.” Id. at 129. In contrast, the exculpatory clause in the LOA was limited to any “claim for compensation” and did not broadly state that the Providers were prohibited from having “any recourse” against Aetna.

Based on the foregoing, we find no error in the trial court’s denial of Aetna’s motion for summary judgment.

Case Nos. A13A0437, A13A0972, A13A0973

3. Like Aetna, the Payors and Claims Administrators assert that the trial court erred in denying their motion to dismiss for lack of subject matter jurisdiction, arguing that the Board has exclusive jurisdiction over the Providers’ claims. For similar reasons as set out in Division 1, we affirm. However, in so doing, we recognize that the Payors are in a somewhat different position than Aetna because the Act seems to contemplate that disputes over fees billed by medical providers to insurers can be brought by the providers before the Board. See OCGA § 34-9-205; State Board Rule 203 (a); and State BoardRule 206.Also, unlike network administrators such as Aetna, the Act includes Payors within the definition of employer, OCGA § 34-9-1 (3), and every workers’ compensation insurance policy is deemed subject to the Act. OCGA § 34-9-125; see Builders, 274 Ga. App. at 523 (2).

But as explained in Builders, if the issue solely is “whether the policy at issue required reimbursement as between the insurer and the insured employer, it was a contract dispute for which the superior court had jurisdiction.” (Citation omitted.) Builders, 274 Ga. App. at 524 (2). Similarly, we find that this is a contract dispute solely between the Providers and Payors. The Providers allege that Aetna and each Payor entered into contracts for health care services rendered to patients who are subscribers of each individual Payor’s workers’ compensation plan; that Aetna agreed under the LOA to ensure that these contracts required each Payor to comply with the rates in the LOA; that the Payors breached this term of their contracts by under-reimbursing the Providers; and that the Providers may recover as third-party beneficiaries to the Aetna-Payor contracts. As with Aetna, we find that these allegations raise a dispute between the Payors and the Providers, without implicating the rights of the injured employees, and therefore, the Board does not have exclusive jurisdiction of these claims.

4. Finally, Builders, Liberty, MediCor, and Sedgwick assert that the Providers’ complaint has failed to state a claim because they were not parties to the LOA, and the record does not reflect any contract between the Payors and Aetna to which the Providers could be third-party beneficiaries. The trial court held as follows:

At the hearing, counsel for certain [Payors] indicated that a contract did not exist between [Payors] or Aetna or [Providers], If it is shown at the dispositive motions stage that a contractual relationship does not exist, then the Court may find no basis to continue jurisdiction over this matter. However, at the pleading stage, the Court finds that it is premature to undergo this analysis.

We agree.

The standard for dismissal for failure to state a claim under OCGA § 9-11-12 (b) (6) is well settled. The minimum pleading requirements are found in OCGA § 9-11-8 (a) (2) (A), which requires that the complaint contain “[a] short and plain statement of the claims showing that the pleader is entitled to relief,” and we have held that the touchstone is fair notice — “this short and plain statement must include enough detail to afford the defendant fair notice of the nature of the claim and a fair opportunity to frame a responsive pleading.” (Citations omitted.) Benedict v. State Farm Bank, FSB, 309 Ga. App. 133, 134 (1) (709 SE2d 314) (2011). See also Speedway Motorsports v. Pinnacle Bank, 315 Ga. App. 320, 320-321 (727 SE2d 151) (2012). (“If the complaint gives fair notice, ‘it should be dismissed for failure to state a claim only if... its allegations disclose with certainty that no set of facts consistent with the allegations could be proved that would entitle the plaintiff to the relief he seeks.’ ”) (citation omitted). In other words, a dismissal will not be upheld unless

(1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought.

Stendahl v. Cobb County, 284 Ga. 525 (1) (668 SE2d 723) (2008).

Although the allegations regarding the existence and terms of the contracts are skeletal, we cannot say that they fail to meet the bare minimum or fail to provide fair notice that the Providers are asserting claims against the Payors as third-party beneficiaries of contracts between Aetna and the Payors. Accordingly, the Payors have failed to establish with certainty that the Providers would not be entitled to relief under any state of provable facts, nor have they shown that the Providers could not possibly produce evidence to warrant the relief sought. See Archer Western Contractors, Ltd. v. Estate of Mack Pitts, 292 Ga. 219, 226 (2) (735 SE2d 772) (2012) (one who is an intended beneficiary of a contract may sue for its breach). Compare Perry Golf Course Development, Inc. v. Housing Auth. of the City of Atlanta, 294 Ga. App. 387, 388 (1) (670 SE2d 171) (2008) (upholding judgment on the pleadings of third-party beneficiary claim when contract attached to the complaint showed on its face that plaintiff was not an intended beneficiary); Allstate Ins. Co. v. Sutton, 290 Ga. App. 154, 161 (5) (658 SE2d 909) (2008) (Although plaintiff alleged that she was a third-party beneficiary, she could not survive summary judgment without producing the terms of the contract.).

5. Alternatively, the Payors contend that even if they are found to be parties to contracts to which the Providers are third-party beneficiaries, those contracts would be unenforceable as against public policy because they would permit the Providers to charge more for services provided to the injured employees than the fees set by the Board under OCGA § 34-9-205. See OCGA §§ 13-8-1; 13-8-2. We disagree.

OCGA § 34-9-205 provides:

(a) Fees of physicians, charges of hospitals, charges for prescription drugs, and charges for other items and services under this chapter shall be subject to the approval of the State Board of Workers’ Compensation. No physician, hospital, or other provider of services shall be entitled to collect any fee unless reports required by the board have been made.
(b) Annually, the board shall publish in print or electronically a list by geographical location of usual, customary, and reasonable charges for all medical services provided under subsection (a) of this Code section. The board may consult with medical specialists in preparing said list. Fees within this list shall be presumed reasonable. . . . The recommendations of the panel of appropriate peers shall be evidence of the reasonableness of fees and necessity of service which the board shall consider in its determinations.

Decided July 3, 2013

Gonzalez, Saggio & Harlan, Mario O. Leach, Tracey Blackwell, Andrews Kurth, John B. Shely, for Aetna Workers’ Comp Access.

Moore, Ingram, Johnson & Steele, Robert D. Ingram, Ryan M. Ingram, Tammi L. Brown, for Builders Insurance Group, Inc.

Buckley King, Burke B. Johnson, for Liberty Mutual Insurance Company.

Freeman, Mathis & Gary, Philip W. Savrin, Joyce M. Mocek, for Travelers Indemnity Company.

N. Kenneth Daniel, for Coliseum Medical Center.

McMickle, Kurey & Branch, Stephanie F. Brown, for Sedgwick Claims Management Services, Inc.

Nothing in OCGA § 34-9-205 prohibits hospitals, workers’ compensation insurers, and network administrators from entering into contracts and setting reimbursement rates. Although such rates are subject to Board approval, OCGA § 34-9-205 does not require that all such rates be pre-approved by the Board, and nothing in that provision sets maximum rates for services. To the contrary, the fee schedule is only to be “presumed reasonable.” See Chatham County Dept. of Family & Children Services v. Williams, 221 Ga. App. 366, 367 (471 SE2d 316) (1996) (holding that the Act “authorizes the Board to issue a fee schedule of charges which will be ‘presumed reasonable,’ but it also gives the Board the discretion to approve other charges as reasonable. Thus, the fee schedule is a guideline rather than a ‘rule’ which must be followed.”). Accordingly, we find that allowing the Providers’ contract claim against the Payors to proceed does not violate any law or public policy, and affirm the trial court’s denial of the Payors’ motion to dismiss for failure to state a claim upon which relief may be granted.

Judgments affirmed.

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

       The Providers bringing this action are: Coliseum Medical Center, LLC d/b/a Coliseum Medical Centers; Eastside Medical Center, LLC d/b/a Emory Eastside Medical Center; Cartersville Medical Center, LLC d/b/a Cartersville Medical Center; Redmond Park Hospital, LLC d/b/a Redmond Regional Medical Center; Palmyra Park Hospital, Inc. d/b/a Palmyra Medical Centers; Fairview Park, Limited Partnership d/b/a Fairview Park Hospital; and Doctors Hospital of Augusta, LLC d/b/a Doctors Hospital (Augusta).

       Travelers has not asserted this enumeration of error on appeal.

       Although Aetna claims that it is a certified Workers’ Compensation Managed Care Organization, the Providers contend that through discovery, they have learned that Aetna was not certified as a Workers’ Compensation Managed Care Organization.

       The LOA defined the hospitals as “Providers,” patients entitled to workers’ compensation insurance benefits as “Claimants,” insurers and third party administrators as “Payors,” and health care services that a claimant is entitled to receive under terms of workers’ compensation coverage as “Compensable Services.”

       The LOA was extended several times by mutual agreement of the parties until Aetna terminated the agreement in 2010.

       The Providers contend that Aetna, by not being certified as a Workers’ Compensation Managed Care Organization, avoided Board review of the rates set out in the LOA.

       The exceptions include:
      a. Member is not eligible; b. Benefit is not medically necessary, as agreed by [Aetna]/Payor and Provider, or related to the workers’ compensation injury; and/or c. Adjustments for inappropriate billing or coding ... as agreed by [Aetna]/Payor and Provider. Provider will have the opportunity to correct errors in billing or coding, once errors are identified by [Aetna], Payor, or designee.

       Aetna does not appear to dispute that the Providers were reimbursed at a rate lower than 80% of billed rates, instead claiming that the Providers were at fault for billing at excessive rates.

       With respect to “Parties at Interest,” OCGA § 34-9-206 (a) provides:
      Any party to a claim under this chapter, a group insurance company, or other health care provider who covers the costs of medical treatment for a person who subsequently files a claim under this chapter may give notice in writing to the board at any time during the pendency of the claim that such provider is or should be a party at interest as a result of payments made in the employee’s behalf for medical treatment.
      (Emphasis supplied.)

       OCGA § 34-9-58 provides: “The State Board of Workers’ Compensation shall exercise all powers and perform all duties relating to the enforcement of this chapter.”

       Among other duties under the LOA, Aetna agreed not to “deny or reduce any payments to be different from the negotiated rate to Provider for any workers’ compensation Compensable Services provided by Provider to Claimants)” and that “Any Payors to which [Aetna] provides access to this Agreement, must also agree to all terms and conditions within this Agreement.”

       We do note, however, that in asserting that the Board has exclusive jurisdiction over medical fee disputes, Aetna quotes Davis, 253 Ga. at 377, for the general proposition that “[t]he duty of approving items of medical expense is placed squarely on the Board.” But we find Aetna’s reliance to be misplaced. Davis involved a claim by an employee that medical expenses were incurred as a result of a job related injury and that under the terms of a settlement agreement approved by the Board, she was entitled to payment. In holding that the employee’s claim should be submitted to the Board, the Supreme Court reasoned that the Board has the duty of approving medical expenses. Davis does not stand for the broad proposition asserted by Aetna that a contract dispute between a network administrator and providers, which may involve medical fees, should go before the Board.

       We review a denial of summary judgment under a de novo standard of review and construe the evidence in the light most favorable to the nonmovants, the Providers. See Thornton v. Georgia Farm Bureau Mut. Ins. Co., 297 Ga. App. 132 (676 SB2d 814) (2009).

       The Claims Administrators have adopted the arguments of the Payors, and the parties do not seem to dispute that the Claims Administrators are in the same posture as the Payors for the purpose of resolving this jurisdictional question.

       Board Rule 203 provides that “Medical expenses shall be limited to the usual, customary and reasonable charges as found by the Board pursuant to OCGA § 34-9-205,” and Board Rule 206 sets out procedures for providers to contest reduction in charges by insurers.

       The Payors creatively argue that finding the Board does not have exclusive jurisdiction would infringe on a “property right” or procedural protection that the Payors have within the workers’ compensation system when a claimant’s treatment is paidfor by a third-party provider (such as the Providers) and the third-party provider elects not to seek reimbursement from the workers’ compensation insurer by not intervening in the injured worker’s claim before the Board. See OCGA § 34-9-206; State Board Rule 206. This argument was not raised in the trial court, and therefore we will not address it for the first time on appeal. See Silver Pigeon Properties, LLC v. Fickling & Co., 316 Ga. App. 167, 170 (728 SE2d 801) (2012); Locke’s Graphic & Vinyl Signs v. Citicorp Vendor Finance, 285 Ga. App. 826, 828 (2) (a) (648 SE2d 156) (2007). However, we note that we have found no authority, and the Payors have cited none, that the Payors have a “property right” under the Act to require the Providers to intervene in an injured employee’s workers’ compensation claim, rather than proceed in the superior court, in order to protect Payors’ potential windfall.

       We describe the allegations against the Payors in Division 3, supra.

       The Providers did not attach the referenced contracts between the Payors and Aetna to the complaint.

       OCGA § 13-8-1 provides in pertinent part: “A contract to do an immoral or illegal thing is void.” OCGA § 13-8-2 (a) provides that “[a] contract that is against the policy of the law cannot be enforced” and gives certain examples not relevant here.


source: Caselaw Access Project

author: Dillard, Judge.

license: Public Domain

text:
    A13A0462.
    WILLIAMS v. RUSSO.
    (745 SE2d 842)
   Dillard, Judge.

This appeal stems from the superior court’s dismissal of Mario Williams’s warrant application for a probable-cause hearing to consider criminal offenses that he alleges were committed by Andrew Russo, a Georgia Correctional Officer. Williams appeals, arguing that the trial court erred in dismissing the warrant application and, further, in quashing a subpoena that he served upon the Georgia Department of Corrections (the “Department”). For the reasons set forth infra, we vacate the trial court’s dismissal of the warrant application and remand the case for further proceedings consistent with this opinion, but we affirm the trial court’s quashing of the subpoena served upon the Department.

The facts pertinent to this appeal are essentially undisputed. Mario Williams, a practicing attorney, represents several inmates housed at the Georgia Diagnostic and Classification Prison in Jackson, Georgia. Williams alleges that Russo, an employee of the prison, intentionally opened, read, and/or took without returning attorney-client privileged mail from at least one of his imprisoned clients.

As a result of the foregoing, Williams filed a warrant application setting forth his allegations against Russo and moving the superior court to conduct a probable-cause hearing. Williams also served a subpoena on the Department, requesting that it produce for the hearing, inter alia, video surveillance from the prison, copies of the Department’s standard operating procedures and policies related to the searching of inmate mail, and any complaints made by Department employees or inmates against Russo in the last three years. The Department moved to quash this subpoena on the grounds that it was improperly served in that it (1) was not accompanied by the tender of a witness fee and mileage expenses, (2) sought irrelevant information and was unreasonable and oppressive, and (3) sought documents for a proceeding that was being pursued in an improper forum.

The trial court scheduled a hearing to consider the foregoing matters and, at the commencement of the hearing, Russo argued that, in light of the procedural safeguards afforded peace officers pursuant to OCGA §§ 17-7-52 and 45-11-4, it was improper for the superior court to conduct a probable-cause hearing as to the merits of Williams’s application. Specifically, Russo asserted that Williams was statutorily mandated to present his complaint to the district attorney, who would then determine whether to pursue a warrant and, if so, present the case to a grand jury in accordance with the statutory scheme outlined by OCGA §§ 17-7-52 and 45-11-4. The Department, in turn, argued that the subpoena should be quashed for the reasons noted supra.

Following the hearing, the trial court dismissed the warrant application, holding that, “it appears this matter should proceed as contemplated by OCGA § 17-7-52 et seq.” Additionally, the trial court quashed the subpoena as invalid for failing to include the statutorily mandated witness fee and mileage expenses. This appeal follows.

1. Williams asserts that the trial court erred in dismissing the warrant application on the grounds stated in its opinion. We agree.

Our analysis must begin by acknowledging that, under the laws of Georgia, arrest warrants may be procured not only by law-enforcement officials, but also by private citizens. The relevant statutory scheme (i.e., OCGA § 17-4-40 et seq.), however, includes safeguards to protect against abuse of this privilege by our citizens. Thus, pursuant to OCGA § 17-4-40 (b) (1), upon receipt of a warrant application by a person other than a peace officer or law-enforcement officer, the judge, magistrate, or municipal officer (“judicial officer”) may deny the warrant without a hearing or any other action if “the application form and any testimony from the affiant provided at the time of the application do not demonstrate probable cause for issuing a warrant.” Otherwise, barring special circumstances, the judicial officer must hold a probable-cause hearing and attempt to notify the person whose arrest is sought as to the date, time, and location of the scheduled hearing. The person whose arrest is sought may then attend the hearing, cross-examine the warrant applicant and any other witnesses testifying in support of the application, and present evidence showing that no probable cause for arrest exists. Additionally, the judge presiding over the probable-cause hearing “shall have the right to limit the presentation of evidence and the cross-examination of witnesses to the issue of probable cause.” Should the judicial officer find probable cause to arrest at the conclusion of the hearing, he or she may issue a warrant instanter. If not, of course, the warrant application must be denied.

And while the foregoing statutory safeguards protect any person who is the subject of a warrant application by a private citizen, a warrant sought by a private citizen against “a peace officer, law enforcement officer, teacher, or school administrator” may be issued “only by a judge of a superior court, a judge of the state court, or a judge of the probate court.” This requirement ostensibly provides even greater protection to law-enforcement officers like Officer Russo.

Thus, while OCGA § 17-4-40 (c) specifies that arrest warrants for peace officers or law-enforcement officers “may be issued only by a judge of a superior court, a judge of a state court, or a judge of a probate court” (as opposed to a magistrate or other municipal officer), it otherwise in no way limits the applicability of the statute to those officers. Rather, it clearly contemplates the statute’s application to peace officers and law-enforcement officers by mandating who may issue warrants for their arrest.

In contrast, OCGA §§ 17-7-52 and 45-11-4, the statutory scheme advanced by Russo and relied upon by the trial court, sets forth procedural safeguards for peace officers facing indictment. Suffice it to say, there is nothing in the text or structure of OCGA §§ 17-7-52 or 45-11-4 remotely suggesting that this statutory scheme in any way supplants or limits OCGA § 17-4-40 et seq. To put it plainly, these are two separate and distinct statutory schemes, and the trial court erred in concluding that the case sub judice is governed by OCGA §§ 17-7-52 and 45-11-4 rather than OCGA § 17-4-40 et seq.

And because the superior court dismissed Williams’s warrant application under the mistaken belief that it “should proceed as contemplated by OCGA § 17-7-52,” we vacate that portion of its order and remand this case to the trial court to determine whether, pursuant to OCGA § 17-4-40 (b) (1), a probable-cause hearing is appropriate and, if so, whether probable cause to arrest Russo exists.

2. Williams further argues that the trial court erred in quashing the subpoena for the production of evidence served upon the Department because the subpoena failed to include a witness fee and mileage expenses. Specifically, Williams asserts that the payment of said costs is not a prerequisite to the production of documents and, further, that the Department had the burden of submitting to the trial court reasonable costs incurred by such production and only then could the court order payment by Williams or quash the subpoena if Williams failed to pay.

Williams’s argument misses the mark. It is certainly true that, pursuant to OCGA § 24-10-22, one issuing a subpoena may command the person to whom it is directed to produce certain designated documents and/or other tangible evidence and, upon a written motion to quash by the subpoenaed witness, the trial court may condition a grant of the motion on the payment of reasonable costs associated with producing the requested evidence.

The subpoena in the case sub judice, however, was not quashed due to Williams’s failure to pay costs associated with the production of the evidence requested in the subpoena. Rather, the trial court quashed the subpoena because it was not accompanied by a witness fee and mileage expenses for the person upon whom it was served. Indeed, pursuant to OCGA § 24-10-24, service of a subpoena upon a witness who resides outside of the county in which he or she is being summoned is only valid when it is “accompanied by tender of the fee for one day’s attendance plus mileage of 20¢ per mile for traveling expenses for going from and returning to his or her place of residence by the nearest practical route.” And here, it is undisputed that the Department is located outside of the county in which the hearing was to be held and that the subpoena served upon the Department was not accompanied by a witness fee or mileage expenses.

Williams nonetheless argues that he did not command the attendance of a witness at the hearing and instead sought only the production of documentary and other tangible evidence. But the subpoena and accompanying letter served upon the Department’s legal counsel instructed that “[y]ou are hereby required to be and appear” at the hearing, and further listed the documentary and other evidence that the Department was directed to “bring to the subject hearing.” It follows then, that the attendant witness fee and mileage expenses were required to accompany the subpoena for its service to be valid. Had Williams sought only to compel production of evidence but not desired the attendance of a witness at the hearing, he had other tools at his disposal to accomplish that task. Accordingly, we conclude that the trial court did not err in quashing the subpoena.

Decided July 3, 2013.

Williams & Oinonen, Mario B. Williams, David E. Betts, for appellant.

James M. Knox, Ashley L. Culberson, for appellee.

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

Andrews, P. J., and McMillian, J., concur.

       OCGA § 17-7-52 (a) provides:
      Before an indictment against a present or former peace officer charging the officer with a crime which is alleged to have occurred while he or she was in the performance of his or her duties is returned by a grand jury, the officer shall be notified of the contemplated action by the district attorney of the county wherein the grand jury shall convene and the officer shall be afforded the rights provided in Code Section 45-11-4.

       OCGA § 45-11-4 (g) further provides:
      The accused shall have the right to appear before the grand jury to make such sworn statement as he or she shall desire at the conclusion of the presentation of the state’s evidence. The accused shall not be subject to examination, either direct or cross, and shall not have the right individually or through his or her counsel to examine the state’s witnesses. The accused and his or her counsel shall have the right to be present during the presentation of all evidence and alleged statements of the accused on the proposed indictment, presentment, or accusation. . . .

        See OCGA § 17-4-40 (b) (1) (“If application is made for a warrant by a person other than a peace officer or law enforcement officer and the application alleges the commission of an offense against the penal laws, the judge or other officer shall schedule a warrant application hearing as provided in this subsection . . . .”) (emphasis supplied); Cleland v. U.S. Fidelity & Guaranty Ins. Co., 99 Ga. App. 130, 132 (107 SE2d 904) (1959) (“While procuring the issuance of an arrest warrant may be within the official duties of a peace officer, his procurement thereof may also be made as a private citizen and thus be wholly disconnected from the performance of his official duties.”).

       A warrant for the arrest of “any offender against the penal laws” may be issued by “[a]ny judge of a superior, city, state, or magistrate court or any municipal officer clothed by law with the powers of a magistrate....” See OCGA § 17-4-40 (a). Moreover, “[a]ny retired judge or judge emeritus of a state court may likewise issue arrest warrants if authorized in writing to do so by an active judge of the state court of the county wherein the warrants are to be issued.” Id.

       OCGA § 17-4-40 (b) (1).

        See id. at OCGA § 17-4-40 (b) (2) ("[A] warrant application hearing shall be conducted only after attempting to notify the person whose arrest is sought by any means approved by the judge or other officer which is reasonably calculated to apprise such person of the date, time, and location of the hearing”); but see id. at OCGA § 17-4-40 (b) (6) (outlining the special circumstances in which an arrest warrant may be immediately issued).

        See OCGA § 17-4-40 (b) (4).

         Id.

        See OCGA § 17-4-40 (b) (5).

       OCGA § 17-4-40 (c) (emphasis supplied).

        See generally In the Interest of L. J., 279 Ga. App. 237, 238 (630 SE2d 771) (2006) (“[When] the language of a statute is plain and susceptible to only one natural and reasonable construction, courts must construe the statute accordingly.”).

        See generally Ga. Transmission Corp. v. Worley, 312 Ga. App. 855, 856 (720 SE2d 305) (2011) (“[W] e apply the fundamental rules of statutory construction that require us to construe the statute according to its terms, to give words their plain and ordinary meaning, and to avoid a construction that makes some language mere surplusage.” (punctuation omitted)).

        See OCGA § 17-7-52 (a) (“Before an indictment against a present or former peace officer charging the officer with a crime which is alleged to have occurred while he or she was in the performance of his or her duties is returned by a grand jury, the officer shall be notified of the contemplated action by the district attorney of the county wherein the grand jury shall convene and the officer shall be afforded the rights provided in Code Section 45-11-4”) (emphasis supplied)); OCGA § 45-11-4 (f)-(i).

        See Reeves v. Upson Reg’l Med. Ctr., 315 Ga. App. 582, 586 (2) (726 SE2d 544) (2012) (“[W]hen we consider the meaning of a statute, we always must presume that the General Assembly means what it says and says what it means, and an unambiguous statute must be afforded its plain meaning.” (citation and punctuation omitted)).

       Because the focus of the hearing was the application of OCGA § 17-7-52, the issue of whether probable cause exists to arrest Russo based upon Williams’s accusations was not fully developed and, therefore, we cannot affirm the dismissal order as right for any reason.

       OCGA § 24-10-22 was repealed on January 1, 2013, coinciding with the effective date of Georgia’s new evidence code, and replaced by OCGA § 24-13-23 with only slight modifications.

        See OCGA § 24-10-22 (a) (“A subpoena may also command the person to whom it is directed to produce the books, papers, documents, or tangible things designated therein.”).

        See OCGA § 24-10-22 (b) (“The court, upon written motion made promptly and in any event at or before the time specified in the subpoena for compliance therewith, may: (1) Quash or modify the subpoena if it is unreasonable and oppressive; or (2) Condition denial of the motion upon the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, documents, or tangible things.”).

        See OCGA § 24-10-24. This statute was also repealed on January 1, 2013 and replaced by OCGA § 24-13-25 with slight modifications, including an increase in the required mileage payment amount.

        See OCGA § 24-10-24.

        See OCGA § 24-10-26 (“Where a party desires to compel production of books, writings, or other documents or tangible things in the possession, custody, or control of another party, in lieu of serving a subpoena under this article, the party desiring the production may serve a notice to produce upon counsel for the other party. Service may be perfected in accordance with Code Section 24-10-23, but no fees or mileage shall be allowed therefor.”). This statute was repealed on January 1, 2013 and replaced by OCGA § 24-13-27.


author: DOYLE, Presiding Judge.

text:
    A13A0500.
    ROBERTS v. THE STATE.
    (745 SE2d 850)
   DOYLE, Presiding Judge.

An Effingham County jury found Christopher Bernard Roberts guilty of two counts of aggravated assault, armed robbery, burglary, theft by taking (an automobile), theft by receiving stolen property (a shotgun), and possession of a firearm during the commission of a crime. Following the denial of his motion for new trial, Roberts appeals, arguing that (1) the trial court erred by denying his motion for a continuance and motión for a directed verdict of acquittal; (2) the evidence was insufficient to sustain his convictions; and (3) he was denied the effective assistance of trial counsel. For the reasons that follow, we affirm.

Construed in favor of the verdict, the evidence shows that on December 9, 2008, at approximately 11:00 p.m., Casaundra Brown was at home with her two children, when she heard an automobile honking its horn in her front yard. She came to the front door and saw a young man with “twists in his hair” sitting in a blue truck, and the man pointed toward her father’s pickup truck that was parked in her driveway, asking her about ownership of that truck. Shortly thereafter, she saw three other men, one with dark skin, wearing bandanas over their lower faces and skull caps on their heads, coming toward her from the side of the property, and she quickly closed and locked the door. The men kicked in the door and threatened her with a shotgun. One of the three intruders beat her in the face and threatened her with a weapon, demanding to know the whereabouts of her purse, to which she responded that she kept her valuables in her Lowe’s racing jacket. The individuals also took her father’s red and black pickup truck. After the men left, Brown grabbed her children and ran to a neighbor’s home to call the police.

Responding to her 911 call, officers observed a gray Pontiac Firebird traveling with no lights in the area where the robbery took place. The vehicle failed to stop when a patrol unit activated its lights, and after a high speed pursuit, the vehicle wrecked in a ditch. The occupants fled on foot and were soon apprehended; a shotgun, identified by Brown as the one used in the robbery, was discovered at the scene of the wreck. The men were identified as Roberts, Clifford Stephens, and Henry Williams. The vehicle belonged to Roberts, and after obtaining a search warrant for the vehicle, police discovered Brown’s stolen property and her driver’s license. Brown’s father’s truck was recovered within a short time frame of the incident about a mile-and-a-half away.

The jury found Roberts guilty, and he filed a motion for new trial. After a hearing, the trial court denied the motion, giving rise to this appeal.

1. Roberts contends that the trial court erred by denying his motion for a continuance because trial counsel was forced to proceed while unprepared. We disagree.

A motion for a continuance predicated on the basis of counsel’s lack of preparation for trial addresses itself to the sound discretion of the trial court and a ruling denying such a motion will not be interfered with unless the court has abused its discretion in denying the motion. Mere shortness of time does not by itself show a denial of the rights of the accused, and mere shortness of time will not reflect an abuse of the trial court’s discretion in denying a continuance, where the case is not convoluted and is without a large number of intricate defenses. Additionally, when there is no showing that a continuance would have benefitted the defendant, he has not established harm in the denial of the continuance.

Here, Roberts has not established that he exercised due diligence to retain trial counsel. Between Roberts’s March 16, 2009 indictment and his September 9, 2012 trial, Roberts discharged three attorneys before making the decision to retain trial counsel the afternoon before trial. Roberts has failed to offer any explanation for his numerous discharges of attorneys or last-minute change of counsel beyond lacking funds to secure his retainer. Indeed, Roberts’s attorney of record immediately prior to trial counsel reported that Roberts was “extremely uncooperative and antagonistic” toward the case and that he had been prepared to go forward with the trial had Roberts cooperated with him. If trial counsel was unprepared to proceed, any lack of preparedness was directly a result of Roberts’s lack of diligence. And although Roberts contends that the continuance was necessary for trial counsel to subpoena co-defendant Stephens to testify on his behalf at trial, “[w]e are satisfied that in this instance the trial court did not breach its discretion in refusing to grant the requested continuance. [Roberts] had ample opportunity to... obtain his requested witness prior to trial.”

Moreover, [Roberts] did not call [Stephens] to testify at the hearing on his motion for new trial, so he failed to present any probative evidence that [Stephens] would have testified for him or that, if so, [Stephens’s] testimony would have been exculpatory. Without the testimony of the particular witness, it is impossible for [Roberts] to show there is a reasonable probability the results of the proceedings would have been different if the trial court had granted a continuance and permitted him to obtain [Stephens].

Accordingly, the trial court did not abuse its discretion by denying the motion to continue.

2. Roberts contends the evidence was insufficient to support the guilty verdict because there was no scientific evidence, eyewitness identification, or fingerprints connecting him to the crime scene. We disagree.

(a) When reviewing the sufficiency of the evidence,

the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime [s] charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all the evidence is to be considered in the light most favorable to the prosecution.

Here, the evidence was sufficient to support Roberts’s conviction. Although Brown provided little information about the description of the four suspects because three of the men had their faces and hair covered during the incident, Roberts did fit the general description of the assailant. Moreover, he was apprehended by police after his car, which was being driven in a suspicious manner without its headlights illuminated, was spotted by officers in the vicinity of Brown’s home shortly after the incident, and he failed to stop for officers, instead leading them on a high-speed car chase followed by a footchase. Brown’s stolen property, the shotgun used in the robbery, and various bandanas and skull caps were discovered in Roberts’s car. Although there was no scientific evidence or eyewitness identification of Roberts,

[i]t is well settled that circumstantial evidence can be sufficient to authorize a finding of guilt beyond a reasonable doubt.... Questions of reasonableness are generally decided by the jury, and this [C]ourt will not disturb the jury’s finding that the evidence was sufficient to exclude every reasonable hypothesis save that of guilt unless the verdict is unsupportable as a matter of law.

Thus, based on the totality of the circumstances, the evidence was sufficient to support the verdict, and Roberts’s enumeration is without merit.

(b) To the extent that Roberts contends that the trial court erred by denying his motion for a directed verdict of acquittal, his enumeration is without merit for the reasons discussed in Division 2 (a), supra.

3. Roberts contends that he was denied the effective assistance of trial counsel because trial counsel: (1) failed to make an entry of appearance until just before trial; (2) failed to thoroughly investigate the evidence and prepare for trial, including subpoenaing a co-defendant to testify and completing DNA testing on the recovered items from the vehicle; (3) introduced Brown’s written statement, in violation of the continuing witness rule; (4) failed to object to the State’s questioning of Roberts, which impermissibly shifted the burden of production to him; (5) failed to object to bolstering testimony by an investigator related to Brown’s testimony; and (6) failed to object to testimony regarding stolen firearms that were not related to the incident in question. We disagree.

Under Strickland v. Washington,

[i]n order to establish ineffectiveness of trial counsel, appellant must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defense. There is a strong presumption that the performance of trial counsel falls within the wide range of reasonable professional assistance. The reasonableness of the conduct is viewed at the time of trial and under the circumstances of the case. In reviewing a lower court’s determination of a claim of ineffective assistance of counsel, we give deference to the trial court’s factual findings, which are upheld on appeal unless clearly erroneous; however, we review the lower court’s legal conclusions de novo.

If an appellant fails to meet his burden of proving either prong of the Strickland test, the reviewing court need not examine the other prong. “The trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous.”

(a) Roberts contends that he was denied the effective assistance of trial counsel because his attorney made an entry of appearance the day before trial and was consequently unprepared, including failing to investigate DNA evidence on the weapon or subpoena a co-defendant to testify. As we concluded in Division 1, however, Roberts’s own behavior led to the failure to retain counsel in a timely manner, and Roberts has failed to establish that trial counsel’s performance was deficient under the circumstances.

(b) Roberts contends that trial counsel was ineffective for acquiescing to the State’s argument during cross-examination of Brown that he admit Brown’s written statement into evidence because such admission was a violation of the continuing witness rule.

In Georgia[,] the continuing witness objection is based on the notion that written testimony is heard by the jury when read from the witness stand just as oral testimony is heard when given from the witness stand. But it is unfair and places undue emphasis on written testimony for the writing to go out with the jury to be read again during deliberations, while oral testimony is received but once.

Nevertheless, “it is not reversible error for a [written statement] to go out with the jury if that [statement] is consistent with the theory of the defense.” Here, trial counsel impeached Brown with her written statement, which contained discrepancies from her trial testimony. Accordingly, under these circumstances, Roberts has failed to meet his burden to show prejudice under Strickland.

(c) Roberts argues that his trial counsel was ineffective for failing to object to a line of questioning during his testimony in which the prosecutor shifted the burden of production to him. We disagree.

Roberts testified at trial that a fourth individual, a man named “Donkey, or Dunkey” was in his car on the night of the incident, and that this man and Roberts’s co-defendant, Stephens, were the individuals who perpetrated the robbery. The State began questioning Roberts about why “Donkey” was not in the courtroom, and trial counsel did not object to this line of questioning. “The State, [however,] like any other party, has the right to conduct a thorough and sifting cross-examination and to pursue the specifics of a topic [Roberts] introduced.” Moreover, the video of the high-speed chase shows only three individuals exiting the vehicle, which was contrary to Roberts’s assertion at trial that “Donkey” was in the back seat of the car during the chase. Thus, even assuming it was deficient of trial counsel to fail to object to the State’s cross-examination, Roberts has failed to establish that but for such objection there was a reasonable probability that the outcome of the trial would have been different.

(d) Roberts also contends that trial counsel was ineffective for failing to object to testimony by an investigator, which constituted improper bolstering of Brown’s testimony.

A witness’ credibility may not be bolstered by the opinion of another, even an expert, as to whether the witness is telling the truth. Credibility of a witness is a matter solely within the province of the jury. It is not improper bolstering, however, for a witness to express an opinion as to whether objective evidence in the case is consistent with the victim’s story.

Here, the witness in question simply stated that Brown’s in-court testimony was “consistent” with what she told him on the evening of the incident, but he did not provide his opinion of her credibility. As we stated in Division 3 (c), supra, it is not ineffective assistance for trial counsel to fail to make a meritless objection.

(e) Finally, Roberts argues that trial counsel was ineffective for failing to object to testimony regarding stolen firearms that were not related to the incident in question. However, the record establishes that trial counsel properly objected to the State’s introduction of photographs of other weapons other than the shotgun, and because Roberts was charged with theft by receiving stolen property of the shotgun used in the incident and which was later found in his vehicle, the fact that the gun was stolen was necessary to prove the State’s charge. Accordingly, Roberts has failed to establish that trial counsel’s performance was deficient with regard to this argument, which is, therefore, without merit.

Decided July 3, 2013.

James C. Walker, for appellant.

Richard A. Mallard, District Attorney, Brian A. Deal, Assistant District Attorney, for appellee.

Judgment affirmed.

McFadden and Boggs, JJ., concur.

       OCGA § 16-5-21 (a) (1), (a) (2).

       OCGA § 16-8-41 (a).

       OCGA § 16-7-1 (a).

       OCGA § 16-8-2.

       OCGA § 16-8-7 (a).

       OCGA § 16-11-106 (b) (1).

       See Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).

       (Punctuation omitted.) Sullivan v. State, 295 Ga. App. 145, 148 (2) (671 SE2d 180) (2008).

       See Lee v. State, 254 Ga. App. 417, 419 (2) (562 SE2d 800) (2002) (holding that the defendant, who had refused counsel and failed to make arrangements for representation until the eve of trial because he “did not have ample funds to retain an attorney,” could not establish due diligence to support a motion for continuance).

       See Marion v. State, 224 Ga. App. 413, 416 (1) (480 SE2d 869) (1997) (“[M]ere shortness of time will not reflect an abuse of the trial court’s discretion in denying a continuance where the case is not convoluted and is without a large number of intricate defenses. This case involve[d] serious issues, but they [were] not intricate or convoluted.”) (citations and punctuation omitted).

        Branton v. State, 258 Ga. App. 221, 223 (2) (573 SE2d 475) (2002). See also Judge v. State, 240 Ga. App. 541, 543 (1) (524 SE2d 4) (1999); Patterson v. State, 202 Ga. App. 440-441 (1) (414 SE2d 895) (1992).

       (Footnotes omitted.) Blanton, 258 Ga. App. at 223-223 (2).

       (Citation omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

       See, e.g., Touch v. State, 305 Ga. App. 643, 645-646 (1) (700 SE2d 645) (2010), collecting cases regarding circumstantial evidence of guilt and quoting Shaheed v. State, 245 Ga. App. 745 (1) (538 SE2d 823) (2000) (“[T]he fact that a suspect flees the scene of a crime points to the question of guilt in a circumstantial manner.”) (punctuation omitted).

       (Citations and punctuation omitted.) Stewart v. State, 172 Ga. App. 450, 451 (1) (323 SE2d 652) (1984).

       See Sledge v. State, 312 Ga. App. 97, 98 (1) (717 SE2d 682) (2011).

       466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984).

       (Citations and punctuation omitted.) Williams v. State, 277 Ga. 853, 857 (6) (596 SE2d 597) (2004).

       See Fuller v. State, 277 Ga. 505, 507 (3) (591 SE2d 782) (2004).

        Herndon v. State, 235 Ga. App. 258, 259 (509 SE2d 142) (1998).

       See Herndon, 235 Ga. App. at 259-260.

       (Punctuation and footnote omitted). Fosselman v. State, 306 Ga. App. 84, 86 (2) (a) (701 SE2d 559) (2010).

       (Punctuation omitted.) Id.

       (Punctuation omitted.) Moore v. State, 246 Ga. App. 163, 167 (7) (539 SE2d 851) (2000).

       See, e.g., Tela v. State, 320 Ga. App. 465, 471-472 (2) (c) (740 SE2d 204) (2013).

       (Citations and punctuation omitted.) Mullins v. State, 298 Ga. App. 368, 369 (1) (a) (680 SE2d 474) (2009).

       See id. at 370 (1) (a); Tela, 320 Ga. App. at 470 (2) (b).


author: ANDREWS, Presiding Judge.

text:
    A13A0529.
    ELROD et al. v. SUNFLOWER MEADOWS DEVELOPMENT, LLC et al.
    (745 SE2d 846)
   ANDREWS, Presiding Judge.

Plaintiffs Mike Elrod, Connie Elrod (collectively, Elrod), and Lake Dows Estates Property Owners Association appeal the trial court’s order granting summary judgment to defendant Crown Communities, Inc. Elrod and the Association also appeal from the trial court’s orders allowing Crown to withdraw admissions, striking an affidavit submitted by Elrod and the Association in support of their cross-motion for summary judgment, and awarding Crown attorney fees. For the reasons set forth below, we find no error and affirm.

The record shows that Elrod and the Association sued Crown and Sunflower Meadows Development, LLC, for negligence, trespass, and nuisance. In their complaint, Elrod and the Association contended that Crown’s and Sunflower’s development and land clearing activities had caused high levels of sediment to flow onto Elrod’s and the Association’s property. Elrod and the Association later served Crown with requests for admissions. They asked Crown to admit or deny numerous matters, including that Crown owned real property adjoining Elrod’s and the Association’s real property; that Crown constructed multiple ponds on its property; that erosion resulting from the construction of Crown’s ponds caused sediment to flow into the lake and pond on Elrod’s and the Association’s property, causing damage; and that, after being notified of the sediment buildup in Elrod’s pond and lake, Crown failed to take adequate measures to prevent sediment from flowing from Crown’s property onto Elrod’s and the Association’s property. Although served on March 6, 2009, Crown did not respond to the request for admissions until September 2009.

Crown and Elrod and the Association filed cross-motions for summary judgment. Elrod and the Association filed the affidavit of D. Wayne Smith in support of their motion for summary judgment, and Crown moved to strike the affidavit. Crown also moved to withdxawits admissions and for attorney fees pursuant to OCGA § 9-15-14 (b). Following a hearing, the trial court granted Crown’s motion to withdraw its admissions, and the trial court struck, as to Crown only, the affidavit of D. Wayne Smith. The trial court also granted Crown’s motion for summary judgment and awarded Crown $42,622.50 as attorney fees.

1. Elrod and the Association contend that the trial court erred in allowing Crown to withdraw its admissions. We disagree. We review a trial court’s ruling on a motion to withdraw admissions for abuse of discretion. See Turner v. Mize, 280 Ga. App. 256, 257 (1) (633 SE2d 641) (2006) (finding that “OCGA § 9-11-36 (b) vests broad discretion in the trial court to permit withdrawal or amendment of the admission”); Brown v. Morton, 274 Ga. App. 208, 210 (617 SE2d 198) (2005).

Pursuant to OCGA § 9-11-36 (a) (2), subject to such shorter or longer time as the court may allow, a matter on which an admission is requested is admitted unless the party to whom the request was directed answers or objects within 30 days of service of the request. See Sayers v. Artistic Kitchen Design, LLC, 280 Ga. App. 223, 226 (2) (633 SE2d 619) (2006). It is undisputed that Crown did not respond to Elrod’s and the Association’s request for admissions within 30 days of service. OCGA § 9-11-36 (b) provides, however, that the trial court

may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits.

Crown moved to withdraw its admissions, and the trial court, after considering both prongs of the foregoing test, granted Crown’s motion.

The movant has the initial burden of demonstrating that presentation of the merits of the action will be served by allowing the withdrawal of its admissions. See ABA 241 Peachtree, LLC v. Brooken & McGlothen, LLC, 302 Ga. App. 208, 211 (2) (690 SE2d 514) (2010). In carrying that burden, Crown was required to show “that the admitted requests either were refutable by admissible evidence having a modicum of credibility or were incredible on their face, and that [its] denial was not offered solely for the purposes of delay.” (Citation and punctuation omitted.) Id. See Intersouth Properties v. Contractor Exchange, 199 Ga. App. 726, 728 (1) (405 SE2d 764) (1991). Although Elrod and the Association contend that Crown did not present any admissible evidence to refute its admissions, Crown showed through the affidavit of its CEO that, among other things, Crown had not performed any grading or land disturbance activities adjacent to or near any of the properties owned by Elrod or the Association, and that Crown did not own or develop any of the properties referenced in Elrod’s and the Association’s request for admissions. The trial court acknowledged this evidence, which it found further supported by the deposition of Mike Elrod, who conceded that Crown was not a property developer. The evidence was sufficient to show that Crown had refuted its admissions and that its motion to withdraw was not solely interposed for delay. See OCGA § 9-11-36 (b); ABA 241 Peachtree, LLC, 302 Ga. App. at 212 (2).

If the movant satisfies the court on the first prong, the burden is on the respondent to show that the withdrawal or amendment will prejudice the respondent in maintaining its action or defense on the merits. See OCGA § 9-11-36 (b); Intersouth Properties, 199 Ga. App. at 728 (1). In that respect, “[m]erely being forced to go to trial is not such a prejudice as will prevent the withdrawal of admissions.” Brankovic v. Snyder, 259 Ga. App. 579, 583 (578 SE2d 203) (2003). Here, Elrod and the Association were put on notice in September 2009 that Crown sought to withdraw its admissions and had presented evidence that those admissions were false, over two years before the hearing on the motion to withdraw. The record supports the trial court’s finding that Elrod and the Association did not show, either in their briefing below or at the motion hearing, that they would be prejudiced in maintaining their action on the merits by the withdrawal of Crown’s admissions.

The purpose of requests for admissions is “to expedite trial and clarify the issues in a case, not gain tactical advantage over an opponent.” Id. Given that Crown came forward with credible evidence refuting its admissions and that Elrod and the Association failed to show prejudice, the trial court did not abuse its discretion in granting Crown’s motion to withdraw its admissions. See ABA 241 Peachtree, LLC, 302 Ga. App. at 212 (2).

2. Elrod and the Association also contend that the trial court erred in granting Crown’s motion to strike the affidavit of D. Wayne Smith. We disagree. We review a trial court’s decision on a motion to strike for abuse of discretion. Hayward v. The Kroger Co., 317 Ga. App. 795, 797 (1) (733 SE2d 7) (2012).

Elrod and the Association filed the affidavit of engineer D. Wayne Smith in support of their motion for summary judgment. The affidavit provides, in part, that Phase II of a single-family residential subdivision known as “Sunflower Meadows” is adjacent to property owned by the Association. According to D. Wayne Smith, “all drainage flow that crosses [Elrod’s and the Association’s property] emanates from the Sunflower property.” He goes on to describe how runoff and sediment from certain lots do not comport with the Henry County-approved stormwater management report for Phase II of Sunflower Meadows. Finding that the affidavit established no facts as to Crown, the trial court granted Crown’s motion to strike; provided, the trial court ruled, the affidavit was struck only as to Crown and could be used as evidence with respect to defendant Sunflower.

Elrod and the Association contend that D. Wayne Smith’s affidavit met the requirements for affidavits submitted in support of summary judgment. See OCGA § 9-11-56 (e) (providing, in pertinent part, that “affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in the evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein”). However, in considering affidavits submitted in support or opposition to summary judgment, “[irrelevant matter should be excluded.” (Citation omitted.) Goddard v. City of Albany, 285 Ga. 882, 887 (6) (684 SE2d 635) (2009). We agree with the trial court’s assessment that

even if the Affidavit of D. Wayne Smith is foundationally sufficient and does establish liability as to the owner, grader, or other party disturbing land at the Sunflower Meadows development, nothing in the Affidavit... implicates Crown, nor does it identify or establish personal knowledge as to what entities or individuals [were] involved in the allegedly injurious work.

We can discern nothing in the affidavit of D. Wayne Smith that is relevant to Elrod’s and the Association’s claims against Crown. See, e.g., Bernstein v. Flagstar Bank, 240 Ga. App. 535, 538 (4) (524 SE2d 241) (1999) (affidavit properly struck as inadmissible, irrelevant, and conclusory). Accordingly, we find that the trial court did not err in granting Crown’s motion to strike the affidavit.

3. Elrod and the Association further claim that the trial court erred in granting Crown’s motion for summary judgment.

It is well established that on appeal of a grant of summary judgment, the appellate court must determine whether the trial court erred in concluding that no genuine issue of material fact remains and that the party was entitled to judgment as a matter of law. This requires a de novo review of the evidence.

(Citation and punctuation omitted.) Rubin v. Cello Corp., 235 Ga. App. 250 (510 SE2d 541) (1998). Absent the admissions, Elrod and the Association point to no evidence which supports any of their claims against Crown. See Butler v. Union Carbide Corp., 310 Ga. App. 21, 30 (2) (712 SE2d 537) (2011) (noting that “[a] defendant may obtain summary judgment by showing that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case”) (punctuation and footnote omitted). It follows that the trial court did not err in granting summary judgment to Crown.

4. Last, we consider Elrod’s and the Association’s claim that the trial court erred in granting Crown’s motion for attorney fees pursuant to OCGA § 9-15-14 (b). Elrod and the Association previously filed an application for discretionary appeal solely as to the trial court’s order awarding attorney fees. See OCGA § 5-6-35 (a) (10). This Court denied the application, and Elrod and the Association are not entitled to a “second bite” in attempting to overturn the order. As we have said, “when this Court examines a request for a discretionary appeal, it acts in an error-correcting mode such that a denial of the application is on the merits, and the order denying the application is res judicata with respect to the substance of the requested review.” PHF II Buckhead, LLC v. Dinku, 315 Ga. App. 76, 79 (1) (726 SE2d 569) (2012). See OCGA § 9-11-60 (h) (“any ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court and in the Supreme Court or the Court of Appeals as the case maybe”); Northwest Social & Civic Club v. Franklin, 276 Ga. 859, 860 (583 SE2d 858) (2003) (holding that denial of discretionary appeal acts as res judicata on the merits); Hook v. Bergen, 286 Ga. App. 258, 261 (1) (649 SE2d 313) (2007) (finding that the denial of an application for discretionary appeal is an adjudication on the merits of the underlying order and acts as res judicata in subsequent proceedings). Accordingly, Elrod and the Association are estopped from seeking further review of the trial court’s order awarding attorney fees to Crown. See PHF II Buckhead, LLC, 315 Ga. App. at 79 (1).

Decided July 3, 2013.

Power, Jaugstetter & Futch, Warren R. Power, for appellants.

Hecht & Walker, Gregory K. Hecht, Joseph W. Cloud, for appellees.

Judgment affirmed.

Dillard and McMillian, JJ., concur.

       The trial court’s order acknowledged Crown’s alternate argument that Crown was not required to respond to a request for admissions served, as it was here, after the expiration of the six-month discovery period, hut the trial court never ruled that Crown was not required to respond to the request, and it then applied the traditional test for considering a motion to withdraw admissions.


author: McMillian, Judge.

text:
    A13A0743.
    WILLIAMS BROS. LUMBER COMPANY, LLC v. MALLOY.
    (745 SE2d 856)
   McMillian, Judge.

Defendant Patrick Malloy, Jr., was a homebuilder and real estate developer, who operated his business through a number of entities including Patrick Malloy Communities, LLC (“PMC”). For a number of years, PMC had purchased substantial quantities of lumber and building supplies from plaintiff Williams Bros. Lumber Company, LLC (“Williams Bros.”). As economic conditions and the housing market declined during 2007 and 2008, Williams Bros, became concerned about the security of the debt owed by PMC and initiated negotiations to obtain the personal guarantee of Malloy on PMC’s debt. The negotiations culminated in the execution by Malloy of the promissory note at issue, and in exchange, Williams Bros, wrote down PMC’s debt from approximately $700,000 or $800,000 to $350,000. The note, which was executed on May 28, 2008, provided that Malloy would make a payment of $150,000 on or before May 31, 2008, and make monthly payments of $5,000, starting in May 2008, with payment of all remaining principal and interest on or before December 31, 2010.

Instead of making payments as set out in the note, Malloy made three payments of $25,000 on June 13, June 27, and July 31, 2008, and Williams Bros, brought suit, seeking the balance alleged to be due under the note after these partial payments. After a jury trial, judgment was entered on the verdict in favor of Malloy, that is, with Williams Bros, taking nothing. Williams Bros, moved for judgment notwithstanding the verdict (j.n.o.v.), or in the alternative for a new trial. These motions were denied, and Williams Bros, appeals.

A j.n.o.v. is proper only where “there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demands a certain verdict.” (Citation omitted.) McIntee v. Deramus, 313 Ga. App. 653, 654 (722 SE2d 377) (2012); Yamaha Motor Corp., U.S.A. v. McTaggart, 313 Ga. App. 103, 104 (720 SE2d 217) (2011). “In a suit on a note, when signatures are admitted or established, production of the instrument entitles a holder to recover on it unless the defendant establishes a defense.” (Citation and punctuation omitted.) Heath v. Boston Capital Corp. Tax Credit Fund VIII, 253 Ga. App. 537, 538 (1) (559 SE2d 743) (2002). See also Nash v. Township Investments, LLC, 320 Ga. App. 494, 495 (740 SE2d 236) (2013).

Upon review of the record and construing it in favor of the verdict, we find that Williams Bros, made the required prima facie showing to recover on the note, and there was no evidence supporting a defense. While Malloy testified that there were talks between the parties about renegotiating or superseding the note, there is no evidence of any actual agreement — either contemporaneous and collateral to the note, or subsequently agreed upon. And, in fact, Malloy admitted that no new payment schedule was established and that the parties did not renegotiate the terms of the note. Thus, any plan to renegotiate the note was merely an agreement to agree in the future and not a binding contract to cancel or supersede the promissory note. Miami Heights LT, LLC v. Home Depot U.S.A., Inc., 283 Ga. App. 779, 782 (1) (643 SE2d 1) (2007); Kreimer v. Kreimer, 274 Ga. 359, 363 (2) (552 SE2d 826) (2001).

Moreover, even though Malloy testified to conversations that he had with Williams Bros., suggesting that the parties never intended Malloy to make the payments as set out in the note, the parol evidence rule prohibits the consideration of evidence of a prior or contemporaneous oral agreement to alter the payment terms of the note where as is the case here, the terms are unambiguous. See Heath, 253 Ga. App. at 538; Lovell v. Georgia Trust Bank, 318 Ga. App. 860, 863 (2) (734 SE2d 847) (2012).

Finally, Malloy suggests that there was a new agreement reached as evidenced by the three payments he made of $25,000 each in June and July 2008. While these three payments must be credited against Malloy’s obligations under the note, there is no evidence explaining the timing or amount of the payments. Any suggestion that these payments represented partial performance of some new agreement between the parties is nothing more than speculation. And, under the terms of the note, Malloy’s “liability... shall not be affected... by any indulgence, or any partial payments.” As a judgment in favor of Williams Bros, was demanded by the evidence, the motion for j.n.o.v. should have been granted.

Decided July 3, 2013

Busch & Reed, James C. Busch, Jeffrey S. Leeper, for appellant.

Smith Conerly, Charles S. Conerly, Randall C. Parian, for appellee.

Judgment reversed.

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

       Williams Bros, was acquired by HD Supply Lumber and Building Materials in 2005. On February 3, 2008, most of the assets of Williams Bros, were sold to a third party so that at the time at issue in this case, Williams Bros, was no longer conducting business but remained a legal entity possessing a small number of unmarketable accounts.


text:
    A13A0796.
    BEVILLE v. THE STATE.
    (745 SE2d 858)
   DOYLE, Presiding Judge.

Phillip James Beville was tried in a bench trial and convicted of trafficking in cocaine and possession of less than one ounce of marijuana. Following the denial of his motion for a new trial, Beville appeals, contending: (1) the evidence was insufficient to support the verdict; (2) he did not effectively waive his right to a jury trial; (3) the trial court erred in failing to grant Beville’s motion to suppress; and (4) the State failed to prove the chain of custody of the alleged contraband. For the reasons set forth below, we affirm.

Construing the evidence in favor of the verdict, the record shows that late at night on April 30, 2010, an officer was on patrol watching westbound traffic on 1-20 for moving violations. The officer observed Beville driving a vehicle that the officer believed had an illegal window tint, so he activated his emergency lights and executed a traffic stop. The officer approached the vehicle, and he immediately smelled the odor of burnt marijuana as Beville rolled down his window.

Beville exited the vehicle and consented to a search of his person, warning the officer of three knives in his pocket. While retrieving the knives, the officer felt a plastic bag in Beville’s pocket. The officer sought and received permission to remove the bag, which contained what he suspected to be marijuana based on his training and experience. The officer placed Beville under arrest for possessing the marijuana, and because Beville was alone and the vehicle was on the side of a highway late at night, the officer began an inventory search of Beville’s vehicle.

The search revealed a cigar tube containing burnt marijuana cigarettes, as well as a black grocery bag containing 498.78 grams of cocaine. Beville admitted to the officer that the bag contained cocaine.

Beville was indicted for trafficking in cocaine, possessing marijuana in violation of the Georgia Controlled Substances Act, and having an illegal window tint. After a bench trial, Beville was found guilty on the drug counts and acquitted of the window tint violation. Beville’s motion for new trial was denied, giving rise to this appeal.

1. Beville contends that the evidence was insufficient to support the verdict because the record fails to show that he knowingly possessed 28 grams or more of cocaine. We disagree.

When reviewing the sufficiency of the evidence,

the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime [s] charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all the evidence is to be considered in the light most favorable to the prosecution.

“OCGA § 16-13-31 (a) (1) provides that ‘[a]ny person . . . who is knowingly in possession of 28 grams or more of cocaine or any mixture with a purity of 10 percent or more of cocaine . . . commits the felony offense of trafficking in cocaine.’ ” Regarding the sufficiency of the evidence, Beville’s only argument is that no evidence showed that he knew the weight of the cocaine, but that argument has been rejected by Cleveland v. State. In Cleveland, this Court stated that

[t]he trafficking statute explicitly requires as the mens rea that defendant know he or she possesses the substance and know it is cocaine. The statute is not, however, reasonably subject to the construction urged, that defendant must know or should know the substance possessed weighs at least 28 grams.

Here, the State proved that Beville knowingly possessed the cocaine in his vehicle. When asked about the brick of cocaine in his vehicle, Beville identified it as cocaine. Further, in a post-arrest interview, Beville admitted to a detective that he knew the brick was cocaine and that he was transporting it for payment. This evidence supports a finding that Beville knowingly possessed cocaine in violation of OCGA § 16-13-31 (a) (1) (C).

2. Beville contends that the State did not carry its burden to show that he knowingly waived the right to a jury trial. We disagree.

A defendant’s right to trial by jury is one of those fundamental constitutional rights that the defendant must personally, knowingly, voluntarily, and intelligently choose to waive. This Court will affirm a trial court’s decision that a defendant has validly waived his or her right to a jury trial unless that decision is clearly erroneous. When a defendant challenges the defendant’s purported waiver of the right to a jury trial, the State bears the burden of showing the waiver was made both intelligently and knowingly, either (1) by showing on the record that the defendant was cognizant of the right being waived; or (2) by filling a silent or incomplete record through the use of extrinsic evidence which affirmatively shows that the waiver was knowingly and voluntarily made.

Here, the record contains a waiver form executed by Beville stating that he “freely and voluntarily waive[d] his right to a jury trial.” The record also contains a colloquy by the trial court confirming Beville’s waiver, as well as counsel’s thorough explanation of his discussions with Beville and his reasons for proceeding with a bench trial. Further, the trial judge’s own observations of Beville’s demeanor during the hearing support the finding that he intelligently, knowingly, freely, and voluntarily waived his right to a jury trial. In light of the record, we discern no clear error by the trial court in ruling that Beville’s waiver of a jury trial was knowing and voluntary.

3. Beville contends that the trial court erred by failing to suppress the evidence from the traffic stop because (a) the traffic stop was not based upon a reasonable articulable suspicion and (b) the narcotics were not found pursuant to a legitimate inventory search. We disagree.

(a) The search was based upon a reasonable articulable suspicion.

(i) It is well settled law

that before stopping a car, an officer must have specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct. But a traffic offense provides the necessary facts for such reasonable suspicion and when an officer witnesses a traffic offense, a resulting traffic stop does not violate the Fourth Amendment, regardless of the officer’s motives for initiating the stop.

Further, this Court has held that when an officer observes that a vehicle has darkly tinted windows and he reasonably believes them to be in violation of OCGA § 40-8-73.1, an ensuing traffic stop is justified by this reasonable articulable suspicion of criminal conduct.

Here, Beville argues that the officer could not reasonably believe his windows were illegally tinted. But the officer observed Beville’s car drive by his post, and he could not see into the vehicle, even with his headlights turned on, due to the dark tint of the windows. Based on this observation and his experience, the officer suspected that Beville’s windows were excessively tinted in violation of the window-tinting statute, and he executed a traffic stop. The officer tested the vehicle’s window tint using a handheld meter and discovered that the windows were tinted to a light transmission of 30 percent, which an officer could reasonably believe violated the statutory limit of “less than 32 percent, plus or minus three percent.” Because of this reasonable suspicion of criminal conduct, the traffic stop was lawful.

(ii) Beville also contends that the search was not based on a reasonable, articulable suspicion because the State did not prove that Beville’s arrest was effectuated in the jurisdiction in which the officer was authorized to make arrests. Beville did not raise this issue at trial, but “even if we assume that the warrantless arrest in this case was illegal because the officer [was] outside [his] jurisdiction, suppression of the fruits of that arrest is not required because the arrest was made with sufficient probable cause.” Therefore, this argument presents no basis for reversal.

(b) The narcotics were found pursuant to a legitimate inventory search.

“Justification of... [an inventory] search... is premised upon the validity of the impoundment of the vehicle.”

Impoundment of a vehicle is valid only if there is some necessity for the police to take charge of the property. In each instance, the ultimate test for the validity of the police’s conduct is whether, under the circumstances then confronting the police, their conduct was reasonable within the meaning of the Fourth Amendment. The test is whether the impoundment was reasonably necessary under the circumstances, not whether it was absolutely necessary.

Here, the narcotics were found pursuant to a legitimate inventory search. Beville was the sole occupant of the vehicle, which was parked on the side of the interstate late at night. Thus, the impound and the inventory search were proper because no one remained to take custody of the vehicle and remove it from the side of the interstate. Because the officer had legitimate grounds for an inventory search, the evidence seized during the search was properly admitted, and the trial court did not err by denying Beville’s motion to suppress on this ground.

Decided July 3, 2013.

Cynthia W. Harrison, for appellant.

David McDade, District Attorney, James A. Dooley, Assistant District Attorney, for appellee.

4. Finally, Beville contends that the State failed to prove the chain of custody of the alleged contraband by not proving with reasonable certainty that the evidence was the same as that seized and that there has been no tampering. This contention has no merit. If a defendant fails to raise an objection to a piece of evidence’s “chain of custody at the time it was admitted, he [has] waived his right to revisit this issue on appeal.” Beville did not object when the marijuana was admitted, nor did he object when the cocaine was admitted. Therefore, this enumeration presents nothing for review.

Judgment affirmed.

McFadden and Boggs, JJ., concur.

       OCGA § 16-13-31 (a) (1).

       OCGA § 16-13-2 (b).

       See Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).

       See OCGA § 40-8-73.1 (b) (2).

       (Citation omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

        Barr v. State, 302 Ga. App. 60, 61 (1) (690 SE2d 643) (2010).

       218 Ga. App. 661, 662-663 (1) (463 SE2d 36) (1995). See also Barr, 302 Ga. App. at 61-62 (1). We note that in Wilson v. State, 291 Ga. 458, 459-460 (729 SE2d 364) (2012), the Supreme Court of Georgia in dicta questioned this Court’s construction of the statute in Cleveland. That court did not, however, address the merits of the issue because it was not necessary in that case. See Wilson, 291 Ga. at 460 (noting Cleveland’s precedential value). See also Ga. L. 2013, p. 222, § 4/HB 349 (deleting the word “knowingly” from OCGA § 16-13-31 (a) (1)), applicable to offenses occurring on or after July 1, 2013. In light of the amount of cocaine at issue in this case, a brick weighing 498.78 grams, we decline to revisit this Court’s precedent at this time.

       (Emphasis in original.) Cleveland, 218 Ga. App. at 663 (1).

       See id.

       See id.

       (Punctuation omitted.) Barr, 302 Ga. App. at 62 (2), quoting Jacobs v. State, 299 Ga. App. 368, 370 (1) (683 SE2d 64) (2009).

       (Punctuation and footnotes omitted.) Christy v. State, 315 Ga. App. 647, 650-651 (1) (727 SE2d 269) (2012).

       See id. at 651 (1). See also Ciak v. State, 278 Ga. 27, 30-31 (597 SE2d 392) (2004).

       OCGA§ 40-8-73.1 (b)(2).

       See Hodges v. State, 319 Ga. App. 657, 658 (2) (a) (738 SE2d 111) (2013) (“It is well settled that grounds which may be considered on appeal are limited to those which were raised at trial, and an objection on a specific ground at trial waives any objection to that evidence on other grounds on appeal”) (punctuation omitted).

        Devega v. State, 286 Ga. 448, 451 (4) (b) (689 SE2d 293) (2010).

        Evans v. State, 216 Ga. App. 21, 24 (2) (453 SE2d 100) (1995).

       (Citation and punctuation omitted.) Scott v. State, 316 Ga. App. 341, 343 (729 SE2d 481) (2012).

       See id. (officers are not required to ask arrestee if they can make arrangements for removing the vehicle if no one is available on the scene to take custody of the car); Evans, 216 Ga. App. at 24 (2).

        Moore v. State, 285 Ga. 157, 158 (2) (674 SE2d 315) (2009).