text:
    A14A0541.
    NEW v. GOSS. COLEMAN v. GOSS.
    A14A0542.
    (759 SE2d 266)
   BARNES, Presiding Judge.

These custody appeals involve two boys with the same father, Arlan Monroe Goss, but different mothers, Liza New and Sabrina Coleman. Both mothers appeal the juvenile court’s orders awarding custody of both boys to Goss, and for the reasons that follow, we affirm.

The two boys were born four months apart in 2007, and Goss subsequently legitimated them. Both sets of parents operated under similar custody orders, which gave primary physical custody of the boys to the mothers and three days a week of visitation to Goss. The visitation days were not fixed, however, and once the children entered school, the parties sought to modify the custody orders. Goss filed a petition in superior court against Coleman seeking custody, and Coleman counterclaimed for a modification of the visiting schedule and for additional child support. Shortly afterward, New filed a petition in superior court seeking to modify the custody order to fix Goss’s visitation to set days of the week, and Goss counterclaimed for custody.

The superior court transferred both cases to the juvenile court “for all further action” and after the parties completed discovery, the juvenile court held a lengthy joint hearing. The juvenile court then issued a final order changing primary physical custody of both boys to Goss, and both mothers appeal. They argue that the juvenile court lacked jurisdiction to issue a final order; that the court’s findings of fact related to the importance of fathers were not supported by any evidence; and that the court abused its discretion in awarding primary physical custody of the hoys to Goss.

1. New and Coleman assert that the superior court’s transfer order was too ambiguous to confer jurisdiction on the juvenile court to issue a final order in these cases. They argue that the transfer orders do not specifically direct the juvenile court to issue a final order and that therefore the juvenile court had jurisdiction only to investigate and report back to the superior court. We disagree.

Under former OCGA § 15-11-30.1 (b), a superior court could “transfer the question of the determination of custody, support, or custody and support to the juvenile court for investigation and a report back to the superior court or for investigation and determination.” The orders in these cases specify that the cases are being transferred from the superior court to the juvenile court “for all further action.” (Emphasis supplied.) “All further action” includes both an investigation and a final report, and is sufficient to confer jurisdiction on the juvenile court to make a final custody determination in accordance with former OCGA § 15-11-30.1 (b).

2. Coleman and New argue that the juvenile court’s comment during the hearing that “[n]o single factor creates more problems for troubled kids than not having a father involved in their life” was not supported by any evidence presented at the hearing. They further contend that, considering that the court found nothing wrong with any of the parents, the court’s “extra-evidential notions concerning fathers raising sons . . . likely [made] the difference in the outcome” of the proceedings and assert that the juvenile court should be reversed. In a separate enumeration they argue that the trial court abused its discretion by transferring primary physical custody of the boys to Goss.

The court’s comments during the hearing were not “findings.” A review of the court’s final order reveals that its observations regarding fatherhood during the hearing did not form the basis for its determination that the children had undergone a material change in circumstance affecting their welfare, nor did they form the basis for the court’s decision that a change of custody was in the boys’ best interest.

A petition to modify child custody should be granted only if the trial court finds that there has been a material change of condition affecting the welfare of the child and that a change of custody is in the best interest of the child. OCGA § 19-9-3 (a) (3), (b); In the Interest of T. S., 300 Ga. App. 788, 790 (2) (686 SE2d 402) (2009). We review the evidence in a custody case in the light most favorable to upholding the trial court’s determination, because the trial court had the opportunity to observe the demeanor and attitude of the parties and their witnesses and assess their credibility. Moses v. King, 281 Ga. App. 687 (637 SE2d 97) (2006). “[I]f the record contains any reasonable evidence to support the trial court’s decision on a petition to modify custody, it will be affirmed on appeal.” Id. at 688.

Decided May 30, 2014.

Bryant & Cook, Malcolm F. Bryant, Jr., for appellants.

Sumner, Avery & Harper, Joseph C. Sumner, Jr., for appellee.

A change in scheduling can be a sufficient change in circumstances to warrant a custody modification. In the Interest of S. D. J., 215 Ga. App. 779, 780-781 (452 SE2d 155) (1994) (joint custody of child who reached school age and began participating in Cub Scouts created hectic and burdensome schedule constituting change in circumstance that justified custody modification). Here, both New and Coleman alleged that a material change in circumstances had occurred because the young children were now enrolled in school. The juvenile court agreed, finding that since the children had started school, the parties’ previous unstructured custody arrangement was having an unsettling and detrimental effect on the children. Communication between the parents had deteriorated and the children had outgrown the previous flexible custody schedule, which the court found to be a material change in circumstance affecting their welfare. Thus, we find no error in the trial court’s conclusion that circumstances had changed enough to modify the previous weekly schedule of four days with the mother and three days with the father.

As to the trial court’s decision to award primary physical custody to the father, we find no abuse of discretion. The court found that all of the parties were fit parents, that the mothers “have done no wrong against the children,” that the father had been heavily involved in the boys’ care since birth, and that the half-brothers were very close and had bonded. It concluded that, based on the father’s ability to engage in hands-on parenting and synchronize the two boys’ school, sports, and church activities, awarding primary physical custody to the father was in the children’s best interest, with liberal visitation rights to the mothers.

We must affirm a trial court’s custody determination unless the court has abused its discretion. Considering that standard of review, we find no such abuse here and therefore we affirm the trial court’s final orders in these two cases. See In the Interest of S. D. J., 215 Ga. App. at 781.

Judgments affirmed.

Boggs and Branch, JJ., concur.

       While the petition in Case No. A14A0541 was filed in Wheeler County Superior Court and transferred to Wheeler County Juvenile Court, and the petition in Case No. A14A0542 was filed in Montgomery County Superior Court and transferred to Montgomery County Juvenile Court, both counties are in the Oconee Judicial Circuit and both cases were transferred by the same superior court judge and heard by the same juvenile court judge.

       Ga. L. 2013, p. 294, § 1/HB 242, significantly revised Chapter 11 of Title 15, effective January 1,2014 for “all offenses which occur and juvenile proceedings commenced on and after such date.” The issue of transferring custody and support cases from superior to juvenile court is now addressed in OCGA § 15-11-15, with language similar to former OCGA § Í5-11-30.1 (b).


source: Caselaw Access Project

author: BARNES, Presiding Judge.

license: Public Domain

text:
    A14A0639.
    MARSHALL v. McINTOSH COUNTY. MARSHALL v. DEVERGER.
    A14A0640.
    (759 SE2d 269)
   BARNES, Presiding Judge.

These companion appeals involve a challenge to the trial court’s dismissal of a complaint for wrongful death on the grounds of sovereign and official immunity. Sandra S. Marshall, the surviving spouse and administratrix of the estate of her late husband, sued McIntosh County and the director of its 911 emergency telephone system, Sheila K. Deverger, in her official and individual capacities, alleging that the defendants were liable for refusing to respond to a 911 emergency telephone call. Pursuant to OCGA § 9-11-12 (b) (6), the trial court granted the defendants’ respective motions to dismiss the complaint for failure to state a claim upon which relief could be granted. The trial court concluded that the plaintiff’s claims against McIntosh County and Deverger in her official capacity were barred by sovereign immunity, and that her claim against Deverger in her individual capacity was barred by official immunity. The plaintiff now appeals the dismissal of her claims.

For the reasons discussed below, we affirm the dismissal of the plaintiff’s claims against McIntosh County and Deverger in her official capacity based on sovereign immunity. But at this early point in the litigation, where there has not yet been any discovery, the trial court erred in dismissing the plaintiff’s claim against Deverger in her individual capacity, and we thus reverse the dismissal of that claim.

On appeal, we review de novo the trial court’s grant of a motion to dismiss a complaint. South Point Retail Partners v. North American Properties Atlanta, 304 Ga. App. 419, 420 (696 SE2d 136) (2010). We construe the complaint in the light most favorable to the plaintiff, with all doubts resolved in her favor. TechBios v. Champagne, 301 Ga. App. 592, 593 (688 SE2d 378) (2009).

As alleged in the complaint, plaintiff’s late husband, John K. Marshall, began experiencing chest pain while on Blackbeard Island in McIntosh County, Georgia, leading him to call 911 and advise the operator that he was having a heart attack. Marshall’s request for aid was communicated to Deverger, who was the director of the McIntosh County 911 emergency telephone system. According to the complaint, Deverger refused to send aid to Marshall and directed McIntosh County emergency medical technicians (“EMTs”) not to respond to Marshall’s request for medical service. Marshall never received medical aid from McIntosh County, and he died on Blackbeard Island later that same day.

The complaint alleged that having established a 911 emergency telephone service, McIntosh County had a duty to respond to Marshall’s request for medical aid, and that his death was a foreseeable result of Deverger’s refusal to send aid to him on Blackbeard Island. The complaint further alleged that Deverger’s refusal to send aid to Marshall proximately caused his death and constituted wilful and wanton misconduct as well as bad faith, rendering both her and McIntosh County liable for damages under OCGA § 46-5-131 (a) of the Georgia Emergency Telephone Number 9-1-1 Service Act of 1977, codified, as amended, at OCGA § 46-5-120 et seq. (the “911 Service Act”).

Case No. A14A0639

1. The trial court dismissed the plaintiff’s claim against McIntosh County based on sovereign immunity. On appeal, the plaintiff contends that the trial court erred in dismissing the claim because McIntosh County waived its sovereign immunity under OCGA § 46-5-131 (a) of the 911 Service Act by implementing and operating a 911 emergency telephone system and could be held liable for damages under that statutory provision. We disagree.

“Under our Constitution, Georgia counties enjoy sovereign immunity, and can be sued only if they have waived their immunity.” (Citations omitted.) Strength v. Lovett, 311 Ga. App. 35, 38 (1) (714 SE2d 723) (2011). See Ga. Const, of 1983, Art. I, Sec. II, Par. IX (e); OCGA § 36-1-4. Sovereign immunity “can only be waived pursuant to a legislative act which specifically provides that sovereign immunity is waived and describes the extent of such waiver.” (Citation and punctuation omitted.) Bd. of Commrs. of Glynn County v. Johnson, 311 Ga. App. 867, 870 (1) (b) (717 SE2d 272) (2011). See Ga. Const. of 1983, Art. I, Sec. II, Par. IX (e); Woodard v. Laurens County, 265 Ga. 404, 405 (1) (456 SE2d 581) (1995); Gilbert v. Richardson, 264 Ga. 744, 748 (3) (452 SE2d 476) (1994). A waiver of sovereign immunity “must be established by the party seeking to benefit from the waiver.” (Citation and punctuation omitted.) Fulton-DeKalb Hosp. Auth. v. Walker, 216 Ga. App. 786, 788 (1) (456 SE2d 97) (1995). Hence, the burden was on the plaintiff to show that OCGA § 46-5-131 met the criteria for a statutory waiver of a county’s sovereign immunity.

OCGA § 46-5-131 was enacted as part of the 911 Service Act, one of the purposes of which was

to establish and implement a cohesive state-wide emergency telephone number 9-1-1 system which will provide citizens with rapid, direct access to public safety agencies by dialing telephone number 9-1-1 with the objective of reducing the response time to situations requiring law enforcement, fire, medical, rescue, and other emergency services.

OCGA § 46-5-121 (a). To that end, the 911 Service Act authorizes local governments, subject to certain requirements, to operate or contract for the operation of a 911 emergency telephone system and impose a monthly 911 charge on telephone subscribers to fund the system. See OCGA §§ 46-5-127; 46-5-128; 46-5-133. In turn, OCGA § 46-5-131 sets forth certain exemptions from liability in the operation of a 911 emergency telephone system. That statute provides:

(a) Whether participating in a state-wide emergency 9-1-1 system or an emergency 9-1-1 system serving one or more local governments, neither the state nor any local government of the state nor any emergency 9-1-1 system provider or service supplier or its employees, directors, officers, and agents, except in cases of wanton and willful misconduct or bad faith, shall be liable for death or injury to any person or for damage to property as a result of either developing, adopting, establishing, participating in, implementing, maintaining, or carrying out duties involved in operating the emergency 9-1-1 system or in the identification of the telephone number, address, or name associated with any person accessing an emergency 9-1-1 system.
(b) No local government of the State of Georgia shall be required to release, indemnify, defend, or hold harmless any emergency 9-1-1 system provider from any loss, claim, demand, suit, or other action or any liability whatsoever which arises out of subsection (a) of this Code section, unless the local government agrees or has agreed to assume such obligations.

(Emphasis supplied.)

We conclude that OCGA § 46-5-131 (a) does not meet the strict criteria for a statutory waiver of sovereign immunity, as this Court explained in Hendon v. DeKalb County, 203 Ga. App. 750, 756-757 (2) (c) (417 SE2d 705) (1992) (physical precedent only). Although Hen-don is not binding precedent because one judge concurred in the judgment only, see Court of Appeals Rule 33 (a), we nevertheless find its reasoning persuasive. See Pechin v. Lowder, 290 Ga. App. 203, 205 (659 SE2d 430) (2008) (“[PJhysical precedent may be cited as persuasive authority, just as foreign case law or learned treatises may be persuasive.”) (citation and punctuation omitted). See Amusement Sales v. State of Ga., 316 Ga. App. 727, 736 (2) (730 SE2d 430) (2012) (treating physical precedent as persuasive authority). Indeed, Hen-don was cited with approval by our Supreme Court in Currid v. DeKalb State Court Probation Dept., 285 Ga. 184, 188 (674 SE2d 894) (2009), where the Supreme Court held that a similarly worded statute did not create a statutory waiver of a county’s sovereign immunity. See id. at 187-188 (concluding that the Community Service Act does not create a statutory waiver of a county’s sovereign immunity).* Accordingly, consistent with the reasoning of Hendon, 203 Ga. App. at 756-757 (2) (c), we conclude that the plaintiff failed to carry her burden of showing that OCGA § 46-5-131 (a) statutorily waived McIntosh County’s sovereign immunity, and the trial court therefore committed no error in dismissing her claim against the County. See Currid, 285 Ga. at 187-188. See also Norton v. Cobb, 284 Ga. App. 303, 305-306 (1) (643 SE2d 803) (2007) (all three judges concurring in Division 1) (concluding that Recreational Property Act does not create a statutory waiver of a county’s sovereign immunity).

Case No. A14A0640

2. The trial court also dismissed the plaintiff’s claim against Deverger in her official capacity based on sovereign immunity, and the plaintiff likewise challenges that ruling on appeal. A lawsuit against a county official in her official capacity “is considered a suit against the county, and the [official] is entitled to assert any defense or immunity that the county could assert, including sovereign immunity.” Strength, 311 Ga. App. at 38 (1). See Cameron v. Lang, 274 Ga. 122, 126 (3) (549 SE2d 341) (2001). As explained supra in Division 1, the sovereign immunity of McIntosh County has not been waived in this case. Consequently, the trial court did not err in dismissing the plaintiff’s claim against Deverger in her official capacity based on sovereign immunity.

3. Lastly, the trial court dismissed the plaintiff’s claim against Deverger in her individual capacity based on official immunity. We agree with the plaintiff that the trial court erred in dismissing her claim against Deverger in her individual capacity.

(a) Official Immunity. Under the doctrine of official immunity, also known as qualified immunity, county officials can be held liable for the negligent performance of ministerial acts within the scope of their authority, but not for discretionary acts unless committed with actual malice. Roper v. Greenway, 294 Ga. 112, 113 (751 SE2d 351) (2013). “Thus, the single overriding factor is whether the specific act from which liability arises is discretionary or ministerial.” (Citation and punctuation omitted.) Howell v. Willis, 317 Ga. App. 199, 201 (729 SE2d 643) (2012).

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

(Citation omitted.) Common Cause/Georgia v. City of Atlanta, 279 Ga. 480, 482 (2) (614 SE2d 761) (2005).

The trial court concluded that Deverger’s duties as director of the 911 emergency telephone system were discretionary, that the plaintiff had to prove that Deverger acted with actual malice, and that the allegations in the complaint did not support a claim of actual malice. Based on these conclusions, the trial court ruled that the plaintiff’s claim against Deverger in her individual capacity was barred by official immunity.

At this early stage of the case, it was premature for the trial court to conclude that Deverger’s duties were discretionary rather than ministerial, and thus to rule that the allegations in the complaint had to support a claim of actual malice. As our Supreme Court recently reiterated in Austin v. Clark, 294 Ga. 773 (755 SE2d 796) (2014):

A motion to dismiss for failure to state a claim upon which relief may be granted should not be sustained 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. In deciding a motion to dismiss, all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party’s favor.

(Citation omitted.) Id. at 774-775.

In Austin, 294 Ga. at 773, the trial court dismissed the plaintiff’s complaint based on official immunity after concluding the defendants’ duties were discretionary and that the plaintiff thus had to allege actual malice. We affirmed the trial court’s dismissal, but the Supreme Court reversed, emphasizing that “[t]he answer to [the] pivotal distinction between a discretionary and a ministerial duty is highly fact-specific” and “due to the current procedural posture of [the] case, [could not] he definitively answered.” Id. at 774. The Supreme Court noted that based on the broad allegations of the complaint, there “conceivably” could be evidence of “some explicit detailed laundry list of discrete tasks” that the defendants were required to perform in carrying out their job duties that would render their duties ministerial in nature. Id. at 775. The Supreme Court further pointed out that at the motion-to-dismiss stage, “it does not matter that the existence of such a laundry list is unlikely,” because whether such a list actually existed was a factual issue to be explored in discovery and potentially considered later in a motion for summary judgment. Id.

The Supreme Court’s reasoning in Austin applies equally in the present case. Conceivably, there could be a McIntosh County departmental policy explicitly detailing a “laundry list of discrete tasks” that had to be followed in response to a 911 emergency telephone call to ensure that medical aid was promptly provided to callers in need. Austin, 294 Ga. at 775. And “[w]here there is an established policy requiring an official to take specified action in a specified situation, the policy creates a ministerial duty on the part of the official to perform the specified task.” (Citation and punctuation omitted.) Glass v. Gates, 311 Ga. App. 563, 575 (2) (716 SE2d 611) (2011), aff’d, Gates v. Glass, 291 Ga. 350 (729 SE2d 361) (2012). Consequently, it cannot be said that the allegations of the plaintiff’s complaint disclose with certainty that Deverger’s duties were discretionary in nature so as to require a showing of actual malice. See Austin, 294 Ga. at 774. It follows that the trial court erred in dismissing the plaintiff’s individual capacity claim against Deverger based on official immunity.

(b) Statutory Immunity. Deverger contends that even if the complaint should not have been dismissed on the basis of official immunity, dismissal nevertheless was appropriate on the basis of the statutory immunity afforded to county officials by OCGA § 46-5-131 (a) of the 911 Service Act. We are unpersuaded.

As previously noted, OCGA § 46-5-131 (a) provides that a county official carrying out duties involved in operating a 911 emergency telephone system cannot be held liable “except in cases of wanton and willful misconduct or bad faith.” Wanton misconduct “is that which is so reckless or so charged with indifference to the consequences as to justify the jury in finding a wantonness equivalent in spirit to actual intent,” and wilful misconduct “is based on an actual intention to do harm or inflict injury.” (Citation and punctuation omitted.) Dyches v. McCorkle, 212 Ga. App. 209, 217 (2) (441 SE2d 518) (1994). “Badfaith is not simply bad judgment or negligence, but it imports a dishonest purpose or some moral obliquity, and implies conscious doing of wrong, and means breach of [a] known duty through some motive of interest or ill will.” (Citation and punctuation omitted.) Id. at 216 (2).

OCGA § 46-5-131 (a) does not require a showing of actual malice. To prove actual malice, a plaintiff must demonstrate that the defendant acted with “a deliberate intention to do wrong.” Murphy v. Bajjani, 282 Ga. 197, 203 (4) (647 SE2d 54) (2007). But proof of “wanton and willful” misconduct, which is sufficient to abrogate the immunity afforded to a county official by OCGA § 46-5-131 (a), does not equate with proof of actual malice. See Hanse v. Phillips, 276 Ga. App. 558, 563 (2) (623 SE2d 746) (2005), aff’d, Phillips v. Hanse, 281 Ga. 133 (637 SE2d 11) (2006) (concluding that “[w]ilful, wanton and reckless conduct does not equate with the actual malice necessary to defeat a claim of official immunity” predicated on a discretionary act). See also Daley v. Clark, 282 Ga. App. 235, 247 (2) (b) (638 SE2d 376) (2006); Smith v. Little, 234 Ga. App. 329, 330 (1) (506 SE2d 675) (1998). Rather, “wanton and willful” misconduct can encompass acts that rise only to the level of implied malice, that is, conduct evidencing a “reckless disregard for human life.” (Citation omitted.) Hanse, 276 Ga. App. at 563 (2).

Again, at this stage of the case, we conclude that the plaintiff sufficiently alleged a claim of wanton and wilful misconduct and bad faith by Deverger to survive a motion to dismiss. “It is well established that a plaintiff is not required to plead in the complaint facts sufficient to set out each element of a cause of action so long as it puts the opposing party on reasonable notice of the issues that must be defended against.” TechBios, 301 Ga. App. at 593. And, in light of the minimal requirements of notice pleading, “broad and conclusory” allegations are “not fatal to a plaintiff’s claim at the motion-to-dismiss stage.” Renton v. Watson, 319 Ga. App. 896, 902 (2) (739 SE2d 19) (2013). See also Holloway v. Dougherty County School System, 157 Ga. App. 251, 255 (277 SE2d 251) (1981) (“It must be remembered that the objective of the [Civil Practice Act] is to avoid technicalities and to require only a short and plain statement of the claim that will give the defendant fair notice of what the claim is and a general indication of the type of litigation involved; the discovery process bears the burden of filling in details.”).

The plaintiff’s complaint alleged that upon learning of Marshall’s request for medical service, Deverger refused to send aid to Marshall and directed McIntosh County EMTs not to respond to Marshall’s request. The complaint further alleged that Deverger’s refusal to respond to Marshall’s request for medical service “constitute[d] wanton and willful misconduct, as well as bad faith.” In light of these allegations, it cannot be said that the complaint discloses with certainty that the statutory immunity afforded by OCGA § 46-5-131 (a) of the 911 Service Act would bar the plaintiff’s claim against Deverger in her individual capacity. Accordingly, under the liberal pleading requirements that apply at the motion-to-dismiss stage, the plaintiff’s individual capacity claim against Deverger was not subject to dismissal based on the statutory immunity provided by OCGA § 46-5-131 (a). See Holloway, 157 Ga. App. at 253-255 (trial court erred in dismissing claim against county school officials in their individual capacities, where complaint alleged in summary fashion that their acts and omissions were “wilful and intentional”).

In sum, we conclude in these companion cases that while the trial court properly dismissed the plaintiff’s claims against McIntosh County and Deverger in her official capacity, the trial court erred in dismissing the claim against Deverger in her individual capacity. In reaching this conclusion, we note that the trial court has authority to manage the discovery and pretrial process in a manner that avoids unnecessary burden and expense to Deverger, who may ultimately move for summary judgment on the grounds of official and statutory immunity. See Austin, 294 Ga. at 776 (Nahmias, J., concurring specially) (discussing ways in which trial court can manage discovery and pretrial practice in cases involving claims of official immunity).

Decided May 30, 2014.

Martin L. Fierman, Stephen R. Morris, for appellant.

Brown, Readdick, Bumgartner, Carter, Strickland & Watkins, Richard K. Strickland, Garret W. Meader, for appellee (case no. A14A0639).

Oliver Maner, Paul H. Threlkeld, Patrick T. O’Connor, for appellee (case no. A14A0640).

Judgment affirmed in Case No. A14A0639. Judgment affirmed in part and reversed in part in Case No. A14A0640.

Boggs and Branch, JJ., concur.

       Court of Appeals Rule 33 (a) provides in relevant part:
      If an appeal is decided by a Division, a judgment in which all three judges fully concur is a binding precedent; provided, however, an opinion is physical precedent only with respect to any Division of the opinion for which there is a concurrence in the judgment only or a special concurrence without a statement of agreement with all that is said. . . .

       OCGA § 42-8-71 (d) of the Community Service Act provides:
      No agency or community service officer shall he liable at law as a result of any of his acts performed while participating in a community service program. This limitation of liability does not apply to actions on the part of any agency or community service officer which constitute gross negligence, recklessness, or willful misconduct.

       The Recreational Property Act limits the liability of “an owner of land who either directly or indirectly invites or permits without charge any person to use the property for recreational purposes,” OCGA § 51-3-23, unless, among other things, the injuries resulted from “willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity.” OCGA § 51-3-25 (1). See Norton, 284 Ga. App. at 305 (1).

       For this reason, we need not decide whether the plaintiff’s complaint sufficiently alleged the actual malice necessary to overcome the official immunity afforded to county officials for discretionary acts. Compare Murphy v. Bajjani, 282 Ga. 197, 203-204 (4) (647 SE2d 54) (2007).

       If a county official’s duties are discretionary, the plaintiff still would have to prove actual malice to overcome the official immunity afforded to the official by the Georgia Constitution, separate and apart from the statutory immunity afforded by OCGA § 46-5-131 (a). See Ga. Const, of 1983, Art. I, Sec. II, Par. IX (d). However, as explained supra in Division 1, it is conceivable that the plaintiff in the instant case could present evidence that Deverger’s duties were ministerial in nature.


author: Phipps, Chief Judge.

text:
    A14A0669.
    ABURTO v. THE STATE.
    (759 SE2d 276)
   Phipps, Chief Judge.

Victor Hugo Aburto appeals his conviction for aggravated sodomy, criminal attempt to commit rape, and related crimes. Aburto claims that the trial court erred by (i) denying his motion to subpoena two out-of-state witnesses, and (ii) commenting on the evidence in violation of OCGA § 17-8-57. Aburto also claims that he was denied effective assistance of trial counsel. For the reasons set forth below, we disagree and affirm.

Viewed in a light most favorable to the jury’s verdict, the evidence shows that in March 2006, then seven-year-old S. A. and her family moved into a house in Whitfield County. S. A.’s mother, older brother, sister, and younger half-brother, C. A., lived in the home. Aburto and his brother, Cesar Aburto, who was C. A.’s father, lived there as well.

During an evening in July 2006, S. A. and her older brother were in their bedroom playing video games. Aburto knocked on the door and asked S. A. if she would help him find his watch. S. A. followed Aburto to his hedroom, where he pulled her onto the bed, tried to force her legs open, attempted without success to penetrate S. A.’s vagina with his penis, and then placed his penis in her mouth.

S. A. did not make an immediate outcry. Approximately four years following the incident, and after S. A. and her family had moved to Illinois, S. A. told a friend about the incident. Shortly thereafter, on June 24, 2010, S. A. disclosed to her mother and Cesar Aburto that Aburto had molested her when they were living in Georgia. S. A.’s mother reported the accusation to authorities in Illinois. Approximately a month later, S. A. and her mother traveled to Whitfield County, Georgia and met with a detective, who then arranged for a forensic interview with S. A.

Aburto was later indicted on charges of aggravated sodomy, two counts of aggravated child molestation, aggravated sexual battery, attempted rape, two counts of enticing a child for indecent purposes, and three counts of child molestation. The jury found Aburto guilty of child molestation (as a lesser included offense of one count of aggravated child molestation), sexual battery (as a lesser included offense of aggravated sexual battery), and the other offenses as charged. After merging several counts, the trial court sentenced Aburto to twenty years, with ten to serve.

1. Aburto filed pre-trial petitions under the Uniform Act to Secure the Attendance of Witnesses from Without the State (the “Uniform Act”) asking the trial court to certify that S. A.’s younger half-brother, C. A., and Dr. Abhilasha Jones, residents of the State of Illinois, were material witnesses in the case. The trial court determined that C. A. and Jones were not material witnesses and so declined to issue the certificates. Aburto claims that the trial court abused its discretion in so ruling. We disagree.

The Uniform Act creates a statutory framework for compelling an out-of-state witness to testify at, or to bring relevant documents to, a Georgia criminal proceeding. Under the Uniform Act, a party seeking to secure the attendance of an out-of-state witness in a criminal prosecution pending in a Georgia court may request that the Georgia court issue a certificate of materiality regarding the witness. In such event, “[t]he Georgia trial judge presented with a request for a certificate is charged with deciding whether the sought-after witness is a ‘material witness.’ ” And a “material witness” for this purpose is “a witness who can testify about matters having some logical connection with the consequential facts, especially] if few others, if any, know about these matters.” We review the trial court’s ruling on a motion under the Uniform Act for abuse of discretion.

In this case, Aburto argued at the petition hearing that S. A. and her mother had fabricated the allegations against him because S. A. herself had been previously accused of molesting C. A. The trial court confirmed with defense counsel that “[t]he sequence is your alleged basis of causal connection.” According to Aburto, the defense would submit to the jury that S. A.’s mother “became angry at [Aburto’s mother] for accusing [S. A.] of molesting [C. A.], and in retaliation, almost immediately, within a day or two, [S. A.’s mother] called the police to then accuse [Aburto].”

Aburto maintained that he needed the testimony of C. A. and Jones to show that S. A. had been accused of molesting C. A. In support of this proposition, Aburto attached to his petition copies of medical records reflecting Jones’s examination of C. A., which records he further requested be produced at trial. Aburto did not call any witnesses or introduce any evidence at the hearing.

For purposes of Aburto’s theory of the defense, as presented at the petition hearing, it was consequential to his case if the allegation that S. A. molested her brother preceded the allegation that Aburto molested S. A. The state was willing to concede for purposes of the hearing that S. A. had molested her brother, but Aburto did not show that such an act, in and of itself, was a consequential fact. Nor did Aburto show that C. A. or Jones had any personal knowledge of when the allegation against S. A. was first communicated to S. A. or S. A.’s mother. Pretermitting whether they were hearsay, the medical records indicate that Jones could confirm that C. A. was treated at a hospital on June 25, 2010. The state, on the other hand, argued that an Illinois police report would show that the allegation against Aburto was made on June 24, 2010, before C. A. was taken to the hospital, and Aburto’s counsel acknowledged that the police report “may suggest that this allegation against [Aburto] occurred on June 24th.”

Under the circumstances, the trial court could conclude that Aburto failed to come forward with evidence showing that C. A. and Jones wouldbe material witnesses at the criminal trial, and we find no abuse of discretion in its denial of Aburto’s petitions for certificates of materiality.

2. Aburto asserts that the trial court violated OCGA § 17-8-57* when, after defense counsel asked S. A.’s older brother, “do you recall telling [the detective] that [S. A.] had been accused of molesting [C. A.]?,” the state objected to the question as improper and the trial court, before sustaining the objection, commented to defense counsel:

[W]hat relevance does it have as to whether or not he has told somebody else about something conclusory? That’s what you are asking. You are not asking about his knowledge about anything and it hasn’t been established it has any relevance to the case. It’s an improper question.

“The rule set forth in OCGA § 17-8-57 does not generally extend to colloquies between the judge and counsel regarding the admissibility of evidence.” In this case, the trial court’s comment to defense counsel expressed the court’s concerns about the relevancy of conclusory statements by S. A.’s brother to a detective and thereby explained its reasons for subsequently sustaining the state’s objection. In the context in which they were made, the trial court’s comments did not, as Aburto suggests, express or intimate to the jury that the subject matter of the alleged assault of C. A. was irrelevant. In any event, because the trial court did not express or intimate an opinion as to what had been proven or Aburto’s guilt, the trial court did not err.

3. Last, Aburto claims that his trial counsel rendered ineffective assistance by (i) failing to move to excuse an unqualified juror for cause, and (ii) failing to impeach S. A.’s mother with a felony conviction. To succeed on this claim, Aburto was required to show both that his trial counsel was professionally deficient and that, but for counsel’s unprofessional errors, there is a reasonable probability that the outcome of the trial would have been different. “[A] court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.”

(a) During voir dire, and in response to defense counsel’s general inquiry as to whether anyone on the panel had been affected by child abuse, prospective juror M. Q. disclosed that a family member had been sexually abused. When counsel asked if she could put aside her personal feelings, M. Q. responded, “Well, being honest, I wouldn’t know,” and that “I don’t think I would be able to, because I mean, it’s still affecting —.” The trial court interjected that he could not hear all that the prospective juror was saying. He then gave an instruction directed to all the prospective jurors emphasizing that every juror must be able to decide the case based on the evidence. The trial court then asked M. Q., “would you be able to decide the case regardless of what kind of past experience you’ve had, decide the case based on the evidence that’s submitted here in court?” M. Q. answered, ‘Yes, I would.” Defense counsel then proceeded to pose other questions to the panel. Defense counsel did not move to strike M. Q. for cause and later used a peremptory strike to exclude M. Q. from the jury.

Aburto contends that his trial counsel was professionally deficient because she failed to move to strike M. Q. for cause and that he was prejudiced by his counsel’s error. Aburto’s trial counsel testified at the motion for new trial hearing that she did not move to excuse M. Q. for cause because she had believed that the motion would have been rejected by the trial court. Aburto maintains that a motion to excuse the juror would nevertheless have had merit.

Before a potential juror may be disqualified for cause, the challenger must establish that the potential juror’s opinion “is so fixed and definite that the juror will be unable to set the opinion aside and decide the case based upon the evidence or the court’s charge upon the evidence.” Further, “[a] trial court is not required to strike for cause a potential juror who simply questions his or her impartiality or expresses reservations about his or her ability to set aside personal experiences.” Although in her initial answers M. Q. expressed doubt about her ability to set aside her personal experiences, she did not express an unequivocal inability to be fair, nor was she subjected to repeated questioning until she made a desired response. The trial court’s subsequent inquiry also demonstrated that M. Q.’s bias was not so fixed as to warrant her disqualification. Accordingly, Aburto does not show that a motion to excuse prospective juror M. Q. for cause would have had merit. And “[f]ailure to make a meritless or futile objection or motion cannot be evidence of ineffective assistance.”

(b) During her pre-trial investigation, Aburto’s trial counsel determined that S. A.’s mother had been convicted of shoplifting in Illinois. Under former OCGA § 24-9-84.1 (a) (1) (2011), which applied when this case was tried, the admissibility of a conviction for purposes of impeachment depended on, among other things, whether “the crime was punishable by death or imprisonment of one year or more under the law under which the witness was convicted.” Applying that standard, competent evidence of the Illinois conviction would have likely been admitted to impeach S. A.’s mother had Aburto’s trial counsel determined to use it for such purpose. Aburto’s counsel nevertheless failed to take any steps to obtain a certified copy of the Illinois conviction and did not attempt to use the conviction to impeach S. A.’s mother at trial.

Aburto contends that his trial counsel’s failure to impeach S. A.’s mother with the Illinois conviction was professionally deficient and that he was prejudiced thereby. More specifically, he posits that had S. A.’s mother been impeached with a felony conviction his trial counsel could have then requested a charge that would have authorized the jury to disregard S. A.’s mother’s testimony.

The trial court found, and we agree, that if Aburto’s trial counsel was deficient in failing to impeach S. A.’s mother with the Illinois conviction, Aburto was nevertheless not prejudiced thereby. Consistent with a strategy of showing ongoing difficulties between S. A.’s mother and Aburto’s family, defense counsel established at trial that S. A.’s mother had pled guilty to a charge of criminal damage to property in the second degree following an incident which involved Cesar Aburto. If the jury had also been made aware that S. A.’s mother had been convicted of shoplifting, that would not likely have made a significant difference in the jury’s assessment of her credibility.

Decided May 30, 2014.

Benjamin D. Goldberg, for appellant.

Herbert M. Poston, Jr., District Attorney, Susan Franklin, Assistant District Attorney, for appellee.

Furthermore, the copy of the Illinois conviction which Aburto introduced at the new trial motion hearing was not a certified copy of that conviction, which would have been required to impeach a witness at the time of Aburto’s trial unless the opposing party did not object and the witness admitted the conviction. Accordingly, Aburto “did not introduce [a] certified cop [y] of the prior conviction[ ] that he claims trial counsel should have obtained and used to impeach” S. A.’s mother, thereby failing to “satisfy his burden of showing ineffective assistance in this respect.”

In light of the foregoing, the trial court did not err in rejecting Aburto’s claim that he received ineffective assistance of trial counsel.

Judgment affirmed.

Ellington, P. J., concurs. McMillian, J., concurs in Divisions 2 and 3, and concurs in judgment only as to Division 1.

       See Drammeh v. State, 285 Ga. App. 545, 546 (1) (646 SE2d 742) (2007).

       OCGA § 24-10-90 et seq. (2011). The provisions of former OCGA § 24-10-90 through OCGA § 24-10-97 are found at OCGA § 24-13-90 through OCGA § 24-13-97.

       See Young v. State, 324 Ga. App. 127, 128-129 (1) (749 SE2d 423) (2013).

       See OCGA § 24-10-94 (a) (2011); Young, supra at 129 (1).

        Davenport v. State, 289 Ga. 399, 402-403 (711 SE2d 699) (2011). After the Georgia court issues the certificate requesting the out-of-state court to order the out-of-state witness to attend and testify at the Georgia criminal proceeding, “the out-of-state judge . . . must [then] decide whether the sought-after witness is necessary and material.” Id. See § 725ILCS 220/2 (“If at a hearing the judge determines that the witness is material and necessary ... he shall issue a summons . .. directing the witness to attend and testify in the court where the prosecution is pending.”).

        Davenport, supra at 403 (citations and punctuation omitted).

       See Spann v. State, 318 Ga. App. 740, 742 (1) (736 SE2d 749) (2012).

       Introduction of evidence for the sole purpose of showing that S. A. had molested C. A. was unlikely to be relevant or admissible. See, e.g., Bentley v. State, 277 Ga. App. 483, 484 (627 SE2d 61) (2006) (the trial court did not err in excluding evidence that the child victim had threatened to blow up his school because, among other things, a victim’s character is rarely relevant for any purpose in a criminal trial).

       Aburto did proffer through argument of counsel that Aburto’s mother “would state that that outcry [against S. A.] . . . came before the allegation regarding [Aburto],” but, even assuming that this might have otherwise impacted the materiality of C. A.’s and Dr. Jones’s testimony, the trial court was not required to accept counsel’s representation as evidence for purposes of the proceeding. See Parker v. State, 326 Ga. App. 217, 218 (1) (756 SE2d 300) (2014) (rejecting appellant’s argument that a proffer of hearsay exhibits should be sufficient to establish the materiality of a witness in a hearing seeking a certificate of materiality to secure the attendance of an out-of-state witness).

       See id. (as defendant did not come forward with admissible evidence in support of his motion seeking a certificate of materiality, the trial court did not err in denying the motion).

       OCGA § 17-8-57 provides:
      It is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused. Should any judge violate this Code section, the violation shall be held by the Supreme Court or Court of Appeals to be error and the decision in the case reversed, and a new trial granted in the court below with such directions as the Supreme Court or Court of Appeals may lawfully give.

        Paslay v. State, 285 Ga. 616, 618 (3) (680 SE2d 853) (2009) (citations and punctuation omitted).

       See Smith v. State, 292 Ga. 588, 590 (740 SE2d 129) (2013) (finding that “[wjhile a court may not express an opinion as to what has or has not been proven, remarks made by the court regarding the admissibility of evidence or explaining the court’s rulings are not such a comment or opinion”) (citation and punctuation omitted).

       See Paslay, supra (finding that a trial court’s comment as to “the relevance of the testimony at issue” was not an opinion as to what had been proven or the guilt of the accused).

       See Wesley v. State, 286 Ga. 355, 356 (3) (689 SE2d 280) (2010).

        Baker v. State, 293 Ga. 811, 815 (3) (750 SE2d 137) (2013) (citation and punctuation omitted).

       See, e.g., Sealey v. State, 277 Ga. 617, 620 (7) (593 SE2d 335) (2004) (finding that “[a] defendant is entitled to a full panel of qualified jurors from which the jury will be selected by the use of peremptory strikes”).

        Mosely v. State, 269 Ga. 17, 19 (2) (495 SE2d 9) (1998) (citation and punctuation omitted); see OCGA § 15-12-164 (d).

        Clark v. State, 265 Ga. App. 112, 114-115 (593 SE2d 28) (2003) (citations and punctuation omitted).

       Compare Foster v. State, 258 Ga. App. 601, 608 (3) (574 SE2d 843) (2002) (court’s and prosecutor’s repeated questioning of prospective juror was “more an instruction on the desired answer than a neutral attempt to determine the juror’s impartiality”) (punctuation and footnote omitted); Ivey v. State, 258 Ga. App. 587, 592 (574 SE2d 663) (2002) (where prospective juror “answered at least four times that she had already formed an opinion about [defendant’s] guilt or innocence and that her experience would not permit her to be impartial in this case” and abandoned her answers only after repeatedly being confronted with variations of the rehabilitation question, trial court erred in failing to excuse the juror for cause).

       See Clark, supra at 116 (finding that trial court’s questioning merely confirmed that prospective jurors’ biases or opinions were not so fixed as to warrant disqualification).

        Hall v. State, 292 Ga. App. 544, 553 (6) (a) (664 SE2d 882) (2008) (citation and punctuation omitted).

       Trial counsel’s pre-trial investigation showed that S. A.’s mother had pled guilty to violating § 720ILCS 5/16A-3 (2006) by taking possession of clothing offered for sale in a retail mercantile establishment having a total value in excess of $ 150, with, the intent of depriving the merchant permanently of the benefit of the merchandise without paying the full retail value of the merchandise.

       The trial court was also required to determine “that the probative value of admitting the evidence outweighs its prejudicial effect to the witness.” OCGA § 24-9-84.1 (2011).

       The crime of retail theft of property, the retail value of which exceeds $150, is a Class 3 felony for purposes of Illinois law. See § 720 ILCS 5/16A-10 (3) (2006); § 730 ILCS 5/5-8-1 (6) (2006) (providing for sentence of imprisonment of not less than two and not more than five years for a Class 3 felony).

       S. A.’s mother also admitted to being arrested and charged with the crimes of criminal damages to property in the second degree, simple battery, and cruelty to children in the third degree in another incident where Cesar Aburto was listed as a victim, and she was questioned as to the details of that incident. For purposes of this appeal, Aburto admits in his brief that “it is true, as the trial court pointed out, . . . that the jury was made aware of [S. A.’s mother’s] criminal proclivities.”

       See Taylor v. State, 301 Ga. App. 104, 106 (686 SE2d 870) (2009) (as the jury was aware of witness’s recent criminal propensities, it was not reasonably probable that counsel’s failure to introduce prior convictions would have altered the outcome of the proceedings); Buchanan v. State, 273 Ga. App. 174, 181-182 (5) (614 SE2d 786) (2005) (finding that defendant was not prejudieed by counsel’s failure to impeach a witness with prior convictions as “the jury had already heard evidence of [the witness’s] disreputable character”); Ross v. State, 231 Ga. App. 793, 798 (6) (499 SE2d 642) (1998) (concluding that defendant was not prejudiced by his counsel’s failure to further impeach witness with certified copies of witness’s felony convictions).

       The state objected to the admission of the copy of the Illinois conviction at the new trial motion hearing because it was not a certified copy of that conviction. Aburto then asked that the copy be admitted to show that defense counsel was put on notice of the conviction. The trial court admitted the document for that purpose.

       See Wallace v. State, 294 Ga. 257, 259 (3) (a) (754 SE2d 5) (2013).

       Id. (claim of ineffective assistance failed where appellant did not introduce certified copies of the prior convictions that he claims trial counsel should have obtained to impeach the witness) (citations omitted). See Baskin v. State, 267 Ga. App. 711, 714 (1) (b) (600 SE2d 599) (2004) (finding that appellant’s failure to produce certified copies of prior convictions which appellant contended trial counsel should have used for impeachment precluded a showing that appellant was prejudiced by trial counsel’s alleged deficiencies).


author: ELLINGTON, Presiding Judge.

text:
    A14A1132.
    KOLBUS et al. v. FROMM et al.
    (759 SE2d 283)
   ELLINGTON, Presiding Judge.

Brian and JoAnn Kolbus, pro se, appeal from an order of the Superior Court of Oconee County which enforced an oral settlement agreement purportedly reached between the Kolbuses and the appellees, Chris and Teresa Fromm, in this suit concerning a breach of contract claim. The Kolbuses contend that the court erred in granting the Fromms’ motion to enforce an oral agreement to settle the suit for $966.67 because the evidence does not support a finding that such a settlement was reached. We agree and reverse.

We apply a de novo standard of review to a trial court’s order on a motion to enforce a settlement agreement. Because the issues raised are analogous to those in a motion for summary judgment, in order to succeed on a motion to enforce a settlement agreement, a party must show the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of the [a]ppellant’s case. Thus, we view the evidence in a light most favorable to the nonmoving party.

(Citation and punctuation omitted.) Johnson v. DeKalb County, 314 Ga. App. 790, 791 (726 SE2d 102) (2012). Although the trial court did not make any explicit factual findings, its decision to grant the motion to enforce the settlement agreement necessarily means that it found that the Kolbuses had agreed to settle their claims for $966.67.

So viewed, the record shows the following. On August 9, JoAnn Kolbus returned a telephone call from the Fromms’ lawyer, Brian Carney. According to Carney, JoAnn Kolbus said that she and her husband would settle their breach of contract claim for $966.67. The parties vigorously dispute whether JoAnn Kolbus indicated during this conversation that the offer was intended to leave open an option for the Fromms to file a motion against them for OCGA § 9-15-14 attorney fees. According to Brian Kolbus, Carney asked JoAnn Kolbus to put the settlement demand in writing and e-mail it directly to the Fromms.

The record shows that JoAnn Kolbus sent an e-mail to Chris Fromm stating that their “final offer” was “$966.67 ... to settle all claims.” Shortly thereafter, Carney e-mailed the Kolbuses that the Fromms had accepted the offer. In his e-mail, however, Carney asserted that the Fromms “retain the right to file any [OCGA §] 9-15-14 claims they desire.” Brian Kolbus e-mailed Carney back, asserting that their offer was a settlement of all claims, including any attorney fee motions or abusive litigation claims. He further stated that his offer remained open only until 4:00 p.m. that day. There is no evidence that Carney responded to this offer. On August 12, the parties appeared in court, and the Fromms made an oral motion to enforce the alleged settlement agreement. The court granted the motion, and this appeal followed.

Decided May 30, 2014.

Brian Kolbus, pro se.

JoAnn Kolbus, pro se.

Brian S. Carney, David F. Ellison, for appellees.

Pretermitting whether JoAnn Kolbus made the oral offer of settlement that the Fromms’ attorney contends that she did, she modified the offer in her e-mail before any acceptance occurred. It is clear from the record before us that Carney did not immediately accept the alleged oral offer; rather, he directed JoAnn Kolbus to e-mail the offer directly to the Fromms for their consideration. The time stamps on the e-mails submitted to the court show that JoAnn Kolbus sent her e-mail before Carney relayed the Fromms’ acceptance. As we have explained, “[a]n offer to contract maybe withdrawn [or modified] by the offeror before its acceptance by the offeree.” (Citation and punctuation omitted.) Greene v. Keener, 198 Ga. App. 565, 566 (402 SE2d 284) (1991). See also OCGA § 13-3-2 (“The consent of the parties being essential to a contract, until each has assented to all the terms, there is no binding contract; until assented to, each party may withdraw his bid or proposition.”).

Because the Fromms had not yet accepted JoAnn Kolbus’s alleged telephone offer, she was entitled to withdraw it or to modify it — which she did by e-mail to Chris Fromm, making clear that the settlement would encompass all claims. Because JoAnn Kolbus withdrew her telephone offer by changing its terms before the Fromms accepted it, and because the record before us shows no other basis for concluding to the contrary, the trial court erred in enforcement of the settlement agreement.

Judgment reversed.

Phipps, C. J., and McMillian, J., concur.

       This telephone conversation was recorded. The court listened to the recording in camera, hut determined that it was “inaudible.” The court declined to make the recording part of the record below.

       The appellate record in this case includes a few pleadings and the hearing transcript concerning the motion to enforce the settlement agreement, but nothing concerning the underlying suit. It appears, based upon the assertions contained in the parties’ briefs, that the parties were co-defendants in a previous lawsuit, and that the Kolbuses claimed that they entered into an oral agreement with the Fromms to share costs incurred in the previous suit. A jury trial on that breach of contract claim allegedly began in the superior court in July 2012, but ended in a mistrial. A new trial was allegedly scheduled for August 12, 2013. The parties engaged in settlement negotiations on August 7, but did not reach an agreement at that time.


author: Miller, Judge.

text:
    A14A0620.
    DOUGHERTY EQUIPMENT COMPANY, INC. v. ROPER.
    (757 SE2d 885)
   Miller, Judge.

Adam Garland, a former employee of Dougherty Equipment Company, Inc. (“Dougherty”), was driving a company vehicle on his way to work when he was involved in an automobile accident with Linda Roper’s vehicle. Roper sued Dougherty alleging that Dougherty was vicariously liable for Garland’s actions under the doctrine of respondeat superior and directly liable for its negligent entrustment and hiring of Garland. Dougherty moved for summary judgment on the vicarious liability claim on the ground that Garland was acting outside the scope of his employment at the time of the accident and that there was insufficient evidence to support the remaining claims. The trial court denied Dougherty’s motion, and we granted Dougherty’s application for interlocutory review.

On appeal, Dougherty contends that the undisputed evidence shows that Garland was not acting within the course and scope of his employment when he was driving to work and, as a result, it was entitled to summary judgment on the vicarious liability and negligent hiring claims. Dougherty also contends that the evidence did not support a negligent entrustment claim. For the reasons that follow, we agree that Dougherty was entitled to summary judgment on Roper’s claims for vicarious liability and negligent hiring, and, therefore, we reverse the denial of summary judgment as to these claims. We affirm the trial court’s denial of summary judgment as to the negligent entrustment claim, however, because issues of fact remain.

In order to prevail on a motion for summary judgment under OCGA § 9-11-56,

the moving party must show that there exists no genuine issue of material fact, and that the undisputed facts, viewed in the light most favorable to the nonmoving party, demand judgment as a matter of law. Moreover, on appeal from the denial or grant of summary judgment the appellate court is to conduct a de novo review of the evidence to determine whether there exists a genuine issue of material fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

(Citations omitted.) Benton v. Benton, 280 Ga. 468, 470 (629 SE2d 204) (2006).

So viewed, the evidence shows that Dougherty employed Garland in July 2006 as a forklift technician. At that time, Garland’s driver’s license was under suspension because of a 2004 DUI conviction. Garland also had a DUI conviction in the late 1990s. Garland testified that Dougherty was aware that his driver’s license had been suspended as a result of his 2004 DUI conviction. Garland was not allowed to drive a Dougherty company vehicle or his own vehicle for any business purpose because of his driving record.

In February 2007, Garland received a restricted driving permit for six months. Dougherty cleared Garland to drive for the company in March 2007 after obtaining a motor vehicle report (the “2007 MVR”) from the State that reflected Garland’s driving history for the previous three years. The 2007 MVR showed that Garland had a restricted driver’s permit, and a 2004 conviction for failure to maintain lane. The 2007 MVR also included a notation under a section “miscellaneous/state specific information” that stated “Limited Permit 2DUI.” Garland’s driving privileges were fully restored in August 2007.

After Garland’s driver’s license was restored, Dougherty assigned him a company van equipped with tools and equipment so that Garland could travel to various job sites to perform on-site maintenance and repair of forklifts. Dougherty also allowed technicians, such as Garland, to take company vans home because technicians could be called out for a service call at any time, including after business hours and on weekends. On occasion, technicians would travel directly from their homes to a customer’s location. The vans were to be used only for company business, and Dougherty issued Garland a company credit card to pay for fuel and other expenses related to the use of the company van.

Around 6:00 a.m. on the morning of May 16, 2008, Garland left his home in Dougherty’s company van and drove toward the company office to receive his assignments for the day. A few miles from his residence, Garland was involved in an automobile accident with Roper when he failed to properly yield to oncoming traffic after coming upon a stop sign.

1. Dougherty contends that the trial court erred in concluding that it could be vicariously liable for Garland’s actions because the evidence showed, at the time of the accident, that Garland was on his way to work and he was not acting on behalf of or performing a duty for Dougherty. Dougherty also contends that, because Garland was not acting within the scope of his employment, Roper’s negligent hiring claim must also fail. We agree.

(a) “When a servant causes an injury to another, the test to determine if the master is liable is whether or not the servant was at the time of the injury acting within the scope of his employment and on the business of the master.” (Citation and punctuation omitted.) Hicks v. Heard, 286 Ga. 864, 865 (692 SE2d 360) (2010). “[W]here a tort occurs while an employee has stepped aside from his employer’s business to do an act entirely disconnected from that business, the employer has no liability.” (Citation omitted.) Nelson v. Silver Dollar City, Inc., 249 Ga. App. 139, 145 (4) (547 SE2d 630) (2001). Moreover, “[i]t is well established that an employee on the way to work is not in the course of his employment but rather is engaged in a personal activity.” (Citation and punctuation omitted.) Farzaneh v. Merit Constr. Co., Inc., 309 Ga. App. 637, 639-640 (710 SE2d 839) (2011).

Where a tort occurs as a result of a vehicle collision in which the employee was driving his employer’s vehicle, however, the employer’s liability must be analyzed under the burden-shifting framework espoused by the Supreme Court of Georgia in Allen Kane’s Major Dodge, Inc. v. Barnes, 243 Ga. 776 (257 SE2d 186) (1979). Under this framework, a presumption arises that the employee was acting in the course and scope of his employment at the time of the collision, and the burden is then on the employer to show otherwise. Hicks, supra, 286 Ga. at 865. An employer may overcome this presumption as a matter of law by presenting uncontradicted evidence showing that the employee was not acting in the course and scope of his employment. Id. at 865-866; see also Farzaneh, supra, 309 Ga. App. at 639.

The employer is thereafter entitled to summary judgment unless “other facts” are proffered — that is, additional evidence other than the fact that the vehicle was owned by the employer — from which a jury could reasonably infer that the employee was acting within the course and scope of his employment when the accident occurred. Where the “other facts” are direct evidence, such is sufficient for the case to go to the jury. Where the “other facts” are circumstantial, however, such evidence will not defeat the employer’s motion for summary judgment, unless it is sufficient to support a verdict in the plaintiff’s favor.

(Footnotes omitted.) Littlefield Constr. Co. v. Bozeman, 314 Ga. App. 601, 603-604 (1) (725 SE2d 333) (2012).

In this case, it is undisputed that Garland was driving Dougherty’s company van on the morning the accident occurred, and this created the presumption that Garland was acting in the course and scope of his employment. It is also undisputed, however, that Garland had not yet begun work at that time as he was traveling from home to the company office to receive his daily assignments. Since the uncontradicted evidence shows that Garland had not yet begun work at the time of the accident, Dougherty rebutted the presumption that Garland was acting in the course and scope of his employment. See Betsill v. Scale Systems, Inc., 269 Ga. App. 393, 395 (1) (604 SE2d 265) (2004) (the general rule is that an employee is deemed to act only for his own purposes while commuting to work unless he undertakes a special mission at the employer’s direction); see also Matheson v. Braden, 310 Ga. App. 585, 586-587 (713 SE2d 723) (2011) (although employee was driving employer’s truck, the uncontradicted evidence showed that the employee was returning home to lunch at the time of the accident and, thus, was not acting in the course and scope of his employment). Accordingly, the burden shifted to Roper to show some “other fact” indicating that Garland was acting within the scope of his employment. Roper failed to do so.

While the evidence shows that Garland was an “on call” technician, an employee’s “on call” status is, at best, circumstantial evidence that Garland was acting in the scope of employment and, therefore, insufficient to defeat Dougherty’s motion for summary judgment. Hicks, supra, 286 Ga. at 868-869. To show that Garland was acting in the scope of his employment, there must be evidence that he had, in fact, been called to duty and was acting pursuant to that duty at the time of the accident. Id. at 868; see also Patterson v. Southeastern Newspapers, Inc., 243 Ga. App. 241, 244 (1) (533 SE2d 119) (2000) (although the mere fact that employee was on call does not mean he was acting within scope of employment, the fact that he was responding to an actual call at the time of the accident does).

Moreover, the trial court correctly concluded that Garland was driving the van to fulfill his duty of arriving at work on time, and no evidence showed that Garland was undertaking a duty at Dougherty’s direction at the time of the accident. In the absence of such evidence, Dougherty could not be held vicariously liable for Garland’s torts. See, e.g., Banks v. AJC Intl., Inc., 284 Ga. App. 22, 24-25 (1), (2) (643 SE2d 780) (2007) (employer entitled to summary judgment even though employee was driving a vehicle rented by employer because, at the time of the accident, the employee was not performing a service that could be considered in the prosecution of his employer’s business or a special mission at the direction of the employer); Braddy v. Collins Plumbing & Constr., 204 Ga. App. 862, 863-864 (420 SE2d 806) (1992) (employer entitled to summary judgment because there was insufficient evidence to contradict employee’s statement that he was driving work vehicle for the purpose of getting to work and nothing more). Compare Hunter v. Modern Continental Constr. Co., Inc., 287 Ga. App. 689, 691 (652 SE2d 583) (2007) (although employee was not on a special mission when traveling to work, evidence that he was taking a business call on his cell phone at the time of the accident was sufficient to create a jury question on the issue of whether employee was acting in the scope of his employment).

(b) Since Garland was not acting in the scope of employment at the time of the accident, Dougherty was also entitled to summary judgment on the negligent hiring claim because there is no evidence that Roper had a special relationship with Dougherty. In order for an employer to be liable for an automobile accident under the theory of negligent hiring and retention where, as here, the allegation is that the employee had a bad driving record and where the injured driver was merely a member of the general public on the public highway, “the accident could not have occurred while the employee was simply commuting to work but had to occur while the employee was engaged in [the employer’s] business.” (Citations and footnotes omitted.) Video Warehouse, Inc. v. Southern Trust Ins. Co., 297 Ga. App. 788, 790 (1) (678 SE2d 484) (2009); see also TGM Ashley Lakes, Inc. v. Jennings, 264 Ga. App. 456, 461-462 (1) (b) (590 SE2d 807) (2003) (an employer is shielded from liability for negligent hiring and retention when the tort is committed outside the scope of employment and against people who have no special relationship with the employer’s business).

2. Dougherty contends that the trial court also erred in denying summary judgment as to the negligent entrustment claim. We disagree.

Under the theory of negligent entrustment, liability is predicated not on the doctrine of respondeat superior but on a negligent act of the owner in lending his vehicle to another to drive, with actual knowledge that the driver is incompetent or habitually reckless, and this negligence must concur, as a part of the proximate cause, with the negligent conduct of the driver on account of his incompetency and recklessness.

Decided May 1, 2014

Reconsideration denied June 2, 2014

Brannen, Searcy & Smith, Jordon D. Morrow, for appellant.

Jones, Boykin & Associates, Noble L. Boykin, Jr., for appellee.

(Citation and punctuation omitted; emphasis supplied.) Gill Plumbing Co., Inc. v. Macon, 187 Ga. App. 481, 482-483 (2) (370 SE2d 657) (1988); Williams v. Ngo, 289 Ga. App. 44, 46 (656 SE2d 193) (2007) (knowledge must be actual not constructive).

In this case, the undisputed evidence shows that, when Dougherty hired Garland, it was aware that Garland’s license had been suspended because of a 2004 DUI conviction. For this reason, Dougherty prohibited Garland from driving a company vehicle or even his own vehicle on company business. After Garland’s license was reinstated, but before Garland was cleared to drive a company vehicle, Dougherty obtained the 2007 MVR that revealed that Garland had a 2004 conviction for failure to maintain lane and that included the notation “Limited Permit 2DUI.” This notation was clearly sufficient to create an inference for summary judgment purposes that Dougherty had knowledge that Garland had more than one DUI conviction — his 2004 DUI conviction and the DUI conviction in the late 1990s. Based on Dougherty’s knowledge of a series of serious driving infractions by an employee, there is a question of fact on the issue of negligent entrustment. See Ed Sherwood Chevrolet, Inc. v. McAuley, 164 Ga. App. 798, 801-802 (1) (298 SE2d 565) (1982). Cf. Smith v. Tommy Roberts Trucking Co., 209 Ga. App. 826, 828-829 (3) (435 SE2d 54) (1993) (jury question existed on negligent entrustment claim where evidence showed that employer had knowledge that employee had two traffic violations while driving a company vehicle in the course of one year and that employer would have discovered other traffic violations, including a DUI, had it fulfilled its legal obligation to investigate employee’s driving record). Accordingly, we affirm the denial of Dougherty’s motion for summary judgment on the negligent entrustment claim.

Judgment affirmed in part and reversed in part.

Doyle, P. J., and Dillard, J., concur.

       Roper also asserted claims for negligence against Garland, and Roper’s husband asserted a claim for loss of consortium. These claims remain pending below.

       Roper correctly argues a presumption existed that Garland was acting in the scope of his employment at the time of the accident because Dougherty allowed Garland to use the company vehicle to ensure reliable transportation to and from work and Garland was an “on-call” technician. Contrary to Roper’s argument, this presumption has been rebutted as discussed above, and Roper cites to no other facts showing that Garland was acting in the scope of his employment.

       Notwithstanding the trial court’s statement that Garland was issued a company van to more conveniently perform a duty for the employer, the Supreme Court of Georgia has rejected the reasoning that an employee is always performing an employer’s duty simply by being on-call and having a company vehicle. See Hicks, supra, 286 Ga. at 874-875.


text:
    A14A0432.
    BIANCHI v. THE STATE.
    (759 SE2d 536)
   BARNES, Presiding Judge.

A jury convicted Michael Shawn Bianchi of armed robbery, and he appeals, contending that the trial court erred in striking a juror for cause over his objection and in declining to allow him to refresh a detective’s recollection with a recorded telephone conversation. For the reasons that follow, we affirm.

1. OCGA § 15-12-163 (b) (6) provides that either the defendant or the State in a criminal felony trial may object to a juror on the ground that the juror “is unable to communicate in the English language.” The trial court has a duty to consider evidence regarding the obj ection and if it “is satisfied of the truth of any objection, the juror shall be set aside for cause.” OCGA § 15-12-163 (c).

In this case, when the panel members were asked if anyone had difficulty understanding the English language that would affect their ability to serve, Juror Number 7 indicated he did. When questioned individually, Juror Number 7 said he understood 90 percent of what was said or “almost everything,” but English was not his native language and he did not understand some of the legal terminology that had been used so far. The State subsequently moved to strike the juror for cause, and Bianchi objected, because he thought that a juror who understood 90 percent of the proceedings was doing a good job. Noting that the jurors needed to understand 100 percent of the proceedings, the trial court granted the State’s motion and struck the juror for cause over Bianchi’s objection.

The decision to strike a potential juror for cause lies within the sound discretion of the trial court and will not be set aside absent some manifest abuse of that discretion. Stokes v. State, 281 Ga. 825, 827 (2) (642 SE2d 82) (2007).

Based on our review of the record, we find no error. See Ford v. State, 289 Ga. App. 865 (1) (658 SE2d 428) (2008) (trial court did not abuse discretion in finding that juror showed no visible sign of difficulty with English language); compare Wellons v. State, 266 Ga. 77[, 84] (6) (b) (463 SE2d 868) (1995) (trial court properly excused for cause prospective juror with evident language difficulties).

Abdullah v. State, 284 Ga. 399, 400 (2) (667 SE2d 584) (2008).

2. Bianchi also argues that the trial court erred in failing to allow him to refresh the recollection of a detective with a recording of a witness’s telephone call. The issue arose when the detective testified on cross-examination that she had spoken over the phone with a friend of the victim’s who the victim said he had been waiting for when he was robbed. Bianchi asked the detective if she had ever received information that there had been four white males in the area of the robbery that night and whether she had investigated this information. The State objected, because the victim’s friend was not available to testify about what she saw, and the trial court ruled that Bianchi was entitled to ask the detective if she had followed up on anything the friend told her. After further questioning, Bianchi asked the detective if “there [was] any information in [a recorded conversation with the friend] that you followed up on regarding four white males leaving the scene?” The detective replied no, the friend never said anything about four white males, but then corrected herself to say that she did not recall that detail, although she remembered the friend saying she had seen another car leaving as she was entering the apartment complex where the armed robbery took place. The detective testified that she wanted to have the friend come in to the station but was unsuccessful and the friend eventually “just disappeared.” Because the detective had only the friend’s cell phone number and no address, she did not search for the friend.

Bianchi cross-examined the detective regarding the makeup of the seven photographic lineups the victim reviewed, the victim’s description of the car and the partial tag numbers he gave the responding officer in comparison to the car Bianchi was found driving in DeKalb County, and the detective’s failure to visit the site of the robbery to examine any security camera recordings or canvass for witnesses to the crime.

Bianchi then asked the court to allow him to play for the detective outside the jury’s presence the recorded phone call with the victim’s friend to see if it refreshed the detective’s recollection that the friend told her there had been four white males in the car she saw leaving the scene of the robbery. After a colloquy outside the jury’s presence, the trial court ruled that while it was proper, standard cross-examination fare to ask an investigating officer whether she followed up on certain leads, the court was of the opinion that refreshing the detective’s recollection was unnecessary because the detective did not deny that the friend mentioned seeing four white males. Rather, the court determined, the detective testified that she did not remember or did not hear the friend say anything about four white males, and the logical conclusion was that either way the detective did not do anything to follow up with the friend. While the State objected to Bianchi asking any further questions about what an absent witness told the detective, the court pointed out that the issue of whether or not detectives followed leads went to the quality of the investigation rather than for the truth of the matters asserted, and questions about it were therefore proper.

Decided June 2, 2014.

Sharon L. Hopkins, for appellant.

Daniel J. Porter, District Attorney, Bruce E. Roberts, James V. Branch, Jennifer M. Taylor, Assistant District Attorneys, for appellee.

A witness may use any source to refresh his memory, so long as he testified from his memory thus refreshed. Agnor’s Ga. Evidence, § 4-10. As long as the witness is willing to swear from his memory as refreshed, his memory may be refreshed by any kind of stimulus, “a song, or a face, or a newspaper item.”

(Citation and punctuation omitted.) Green v. State, 242 Ga. 261, 265 (5) (249 SE2d 1) (1978), rev’d on other grounds, Green v. Georgia, 442 U. S. 95 (99 SCt 2150, 60 LE2d 738) (1979). The State concedes in this case that the trial court erred in refusing to allow Bianchi time for the detective to review the recorded phone conversation, but argues that the error was harmless. We agree.

“An error is harmless when it is highly probable that the error did not contribute to the verdict.” (Footnote omitted.) In the Interest of H. A, 308 Ga. App. 111, 113 (2) (706 SE2d 615) (2011). In this case, Bianchi thoroughly cross-examined the detective about her investigation in this case, including her failure to canvass near the crime scene for witnesses or determine whether there were security cameras that had recorded the incident. Further, the victim positively identified Bianchi in a photographic lineup and provided a sufficiently close description of the car and tag that officers from another jurisdiction spotted it while Bianchi was driving. We conclude, therefore, that it is highly probable that the trial court’s refusal to allow Bianchi to refresh the detective’s recollection about her phone conversation with the victim’s friend did not contribute to the jury’s determination of guilt.

Judgment affirmed.

Boggs and Branch, JJ., concur.