text:
    A14A1047.
    GRESHAM v. HARRIS et al.
    (765 SE2d 400)
   ANDREWS, Presiding Judge.

Norris Gresham appeals from the trial court’s grant of summary judgment to Clifford Harris, Jr. a/k/a “TI,” Echo Studios, LLC, Grand Hustle, LLC, Grand Hustle Management, LLC, and King of da South, Inc. (the “Harris Defendants”) based on the expiration of the applicable statute of limitation. Gresham argues that the trial court erred in granting the motion because his renewal action was timely filed. We agree and reverse.

The issue on appeal involves the proper construction of the renewal statute, OCGA § 9-2-61, and we apply a de novo standard of review. Hankla v. Postell, 293 Ga. 692, 693 (749 SE2d 726) (2013).

Gresham initially filed suit against the Harris Defendants and others on November 8, 2010. He filed a voluntary dismissal without prejudice of that suit as to all but one defendant on July 11, 2012. After the defendants moved to treat the voluntary dismissal as a motion, the trial court granted the dismissal without prejudice as to all defendants except one. That order was entered on August 12, 2012. A final order and judgment as to the remaining defendant was entered on October 23, 2012.

On February 11,2013, Gresham filed his renewal action, alleging that it was substantially the same cause of action that had previously been voluntarily dismissed. Gresham asserted causes of action for assault and battery, conspiracy to harm, negligent failure to intervene, and punitive damages based on events that occurred on September 8, 2010. The Harris Defendants answered and asserted the statute of limitation as an affirmative defense. They then filed a motion for summary judgment based on the expiration of the applicable statute of limitation. The trial court granted the motion, dismissing all claims against the Harris Defendants.

OCGA § 9-2-61 (a) provides:

When any case has been commenced in either a state or federal court within the applicable statute of limitations and the plaintiff discontinues or dismisses the same, it may be recommenced in a court of this state or in a federal court either within the original applicable period of limitations or within six months after the discontinuance or dismissal, whichever is later. . . .

The renewal statute thus permits the renewal of an action outside the statute of limitation if the renewal action is filed within six months after the discontinuance or dismissal. Gresham contends that August 12, 2012, is the date that begins the six-month period because that is when the trial court granted the voluntary dismissal. The Harris Defendants contend that the proper starting date is July 11, 2012, when Gresham filed his voluntary dismissal of less than all of the parties. If the latter date is used, then Gresham’s renewal action is untimely.

OCGA § 9-11-41 (a) provides that an action may be dismissed without prejudice by the plaintiff, without order or permission of court, by filing a written notice of dismissal at any time before the first witness is sworn. A voluntary dismissal of less than all of the parties, however, is governed by OCGA § 9-11-21, which provides that “[p]arties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just.” Thus, “[i]f a plaintiff attempts to voluntarily dismiss less than all the defendants without obtaining leave of court, the dismissal is ineffective.” (Citations omitted.) Kilgore v. Stewart, 307 Ga. App. 374, 375 (705 SE2d 209) (2010); Flemister v. Hopko, 230 Ga. App. 93 (1) (495 SE2d 342) (1998). Based on this authority, it is clear that Gresham’s filing of a voluntary dismissal would have been sufficient to dismiss the first action if he had dismissed all of the defendants. Because he dismissed less than all of the defendants, a court order was required. The court order was not entered until August 12, 2012, which was the effective date of the dismissal of the first action.

The Harris Defendants argued and the trial court agreed that even if the filing of the voluntary dismissal by Gresham did not effectively dismiss the case, it did constitute a “discontinuance” within the meaning of OCGA § 9-2-61 (a), thereby beginning the running of the six-month period. To support its ruling, the trial court relied on Morris v. Haren, 52 F3d 947 (11th Cir. 1995). In Morris, after the trial had begun, the plaintiff announced that he intended to dismiss his case and, seven days later, filed a written dismissal with the court. Id. at 948. The plaintiff then refiled his complaint under Georgia’s renewal statute, taking the position that the six-month period began to run when the written dismissal was filed. Id. Construing OCGA § 9-2-61 (a), the Eleventh Circuit determined that “discontinuance” and “dismissal” refer to two different occurrences and that the plaintiff had discontinued his case within the meaning of Georgia’s renewal statute when he announced his intention to dismiss the case. Id. at 949. The trial court agreed with the Eleventh Circuit’s interpretation of the statute and found that Gresham’s filing of the purported written dismissal was akin to the verbal announcement in Morris and constituted a discontinuance that triggered the running of the renewal period.

As an appellate court, we are not bound by decisions of other states or federal courts except the United States Supreme Court. Davita, Inc. v. Othman, 270 Ga. App. 93, 95 (1) (606 SE2d 112) (2004). Federal authority is persuasive, but as a general rule, “this Court adopts federal court authority only when it is not in conflict with our own legal precedent and is consistent with our public policy goals.” Russell v. Parkford Mgmt. Co., 235 Ga. App. 81, 82 (2) (508 SE2d 454) (1998). Although there are no Georgia cases that have decided this exact issue, we decline to follow the Eleventh Circuit’s reasoning in Morris and conclude that an event short of the termination of the plaintiff’s action against the relevant defendant or defendants cannot constitute a discontinuance under the renewal statute.

“We begin our analysis of the statute by recognizing that fundamental rules of statutory construction require us to construe a statute according to its terms, to give words their plain and ordinary meaning, and to look diligently for the intention of the General Assembly.” Atlanta Independent School System v. Atlanta Neighborhood Charter School, 293 Ga. 629, 631 (748 SE2d 884) (2013). By definition, a dismissal entails termination of an action. See Bryan A. Garner, ed., Black’s Law Dictionary at 537 (9th ed. 2009) (defining dismissal as: “Termination of an action or claim without further hearing, esp. before the trial of the issues involved.”). A discontinuance likewise may be defined as a type of event that terminates an action. See id. at 532 (defining discontinuance as: “The termination of a lawsuit by the plaintiff; a voluntary dismissal or nonsuit.”); The American Heritage Dictionary of the English Language at 531 (3d ed. 1992) (defining “discontinuance” as: “Termination of an action by the plaintiff.”). In an early case construing a predecessor to the renewal statute, however, the Supreme Court of Georgia, referring to Blackstone and other authorities, stated that “it would seem that a discontinuance is where the plaintiff fails to follow up his case and leaves a chasm in the proceedings by his laches.” Rountree v. Key, 71 Ga. 214, 214-215 (1883). The Supreme Court further explained that

a [plaintiff’s] failure to appear and prosecute, and thus follow up his case, or continue to prosecute, would operate as a discontinuance by the plaintiff’s action, and the court might order that it be discontinued at the motion of the defendant, or do what is the same thing under our practice, in effect and substance, dismiss the plaintiff’s suit for want of prosecution.

Id. at 215. Thus, under Rountree, a discontinuance may result from a want of prosecution sufficient to entitle the defendant to seek an order terminating the action. See OCGA § 9-11-41 (b) (allowing defendant to move for dismissal for want of prosecution). But even if a discontinuance under the renewal statute may refer to some action taken by the plaintiff that does not of itself terminate the pending case, such as the plaintiff’s failure to appear or prosecute, we conclude that the renewal period does not begin to run until the case is actually terminated as a result of such action.

Our conclusion has roots in the statute’s origin. As the Supreme Court of Georgia recounted in Clark v. Newsome, 180 Ga. 97 (178 SE 386) (1935), the renewal statute was first enacted in 1847 and provided:

Whenever any case now or hereafter pending in any of the courts of this State, either at law or in equity, commenced within the time limited by law, shall be discontinued, dismissed, or the plaintiff therein become nonsuited, and the plaintiff’s claim may be barred during the pending thereof by any law now in force in this State, the plaintiff may, at any time within six months from such termination of the case, and not after, renew or recommence the same, in any court having jurisdiction thereof in this State.

(Emphasis supplied.) Id. at 99, citing Ga. L. 1847, p. 217. The legislature passed a similarly-worded act in 1856, which referred to the right to renew a suit “at any time within six months after such termination of the case.” Id., citing Ga. L. 1855-56, p. 237, § 33. When Georgia’s laws were codified in the Code of 1863, the language of the renewal statute was changed to provide: “If a plaintiff shall be nonsuited, or shall discontinue or dismiss his case, and shall recommence within six months, such renewed case shall stand upon the same footing, as to limitation, with the original case.” Id. The Supreme Court affirmed in Clark that notwithstanding these changes, the right of renewal was not restricted to cases in which an action was nonsuited or the plaintiff voluntarily dismissed or discontinued it but rather continued to apply, as under the previous law, to an involuntary dismissal other than on the merits. Id. at 101-102. Taking into account the remedial purpose of the renewal statute and the rule that the codification of Georgia’s laws should not be understood to work a change in the law “unless the contrary manifestly appears from the words employed,” the Supreme Court concluded in Clark that “the [renewal statute contained] in the Code should be considered as a mere condensation of the specific enactments... and that the original law is the criterion of the right of renewal.” Id. at 102.

As the discussion in Clark reflects, the renewal statute, at its inception, made it clear that the six-month renewal period was to be calculated from termination of the plaintiff’s prior action. Also, as set forth in Clark, the codification of the original renewal statutes was not intended to change the law. As such, the same rule as to measuring the renewal period continued to apply following codification even if it was no longer expressly stated. And although the renewal statute has been amended a number of times, we discern no basis for concluding that the General Assembly intended to change the law in this regard.

Our conclusion that a discontinuance under the renewal statute is not an event prior to and distinct from the termination of an action finds further support in the well-recognized principle that a remedial act like the renewal statute must be liberally construed. See Parsons v. Capital Alliance Financial, 325 Ga. App. 884, 887 (3) (756 SE2d 14) (2014). A valid renewal action may not be filed if the prior action that the plaintiff wishes to renew is still pending, Kilgore, 307 Ga. App. at 375, and the right of renewal would be restricted and compromised if an event short of termination of the prior case could cause the six-month renewal period to begin running. Finally, our construction of the renewal statute is consistent with our prior decisions that, while not addressing the precise question raised here (i.e., the meaning of “discontinuance”), have held that when a case is voluntarily dismissed against all defendants, the renewal period begins to run when the dismissal is filed rather than an earlier date when the intention to dismiss is verbally announced because OCGA § 9-11-41 (a) requires such filing to effectuate a voluntary dismissal. See Carter v. Digby, 244 Ga. App. 217, 218 (535 SE2d 273) (2000); Swartzel v. Garner, 193 Ga. App. 267 (387 SE2d 359) (1989).

Decided November 3, 2014

Antonio L. Thomas, for appellant.

The Chapar Firm, Albert A. Chapar, Jr., for appellees.

Based on the foregoing, the relevant event in this case for determining when the six-month period began is the entry of the trial court’s order granting the voluntary dismissal without prejudice as to all but one of the defendants. To calculate the deadline for Gresham’s renewal action, we apply OCGA § 1-3-1 (d) (3) and find that the six-month period for filing his renewal action began on August 13, 2012, the day after the trial court dismissed the original action, and ran until Februáry 12, 2013. See Parsons, 325 Ga. App. at 887 (3). As a result, Gresham’s refiling of the action on February 11 was timely. See id. The trial court therefore erred in granting the Harris Defendants’ motion for summary judgment.

Judgment reversed.

McFadden and Ray, JJ., concur.

       After granting summary judgment to the Harris Defendants, the trial court dismissed the action against the remaining defendants without prejudice because those defendants had not been served with process.

       The parties do not dispute that the renewal action was filed outside the two-year statute of limitation applicable to injuries to the person. See OCGA § 9-3-33; Valades v. Uslu, 301 Ga. App. 885, 887-888 (1) (689 SE2d 338) (2009).


source: Caselaw Access Project

author: Phipps, Chief Judge.

license: Public Domain

text:
    A14A1009.
    REEVES v. THE STATE.
    (765 SE2d 407)
   Phipps, Chief Judge.

After a jury trial in May 2011, Tyrone Reeves was found guilty of burglary, theft by receiving stolen property (felony), theft by receiving stolen property (misdemeanor), and obstruction of an officer. He appeals his convictions, contending that the evidence was insufficient and that he received ineffective assistance of trial counsel. For the following reasons, we affirm Reeves’s convictions except with regard to the misdemeanor theft by receiving count.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and [Reeves] no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia.

Viewed in this manner, the evidence showed the following. On May 19, 2010, around “lunch time” on a weekday, Stephanie Evans was in her ground floor apartment of Building 3200 of an apartment complex, when she awakened to a sound of banging on her doors and windows. Evans saw a man walking around the building, banging on doors and windows of other apartments. The man then hopped the railing of Evans’s apartment and pulled himself up to the balcony above her apartment. Evans heard what she described as “a loud shatter,” and she called 911.

Evans gave a physical description of the man that she had seen to the 911 operator. Police arrived at the apartment complex while Evans was still on the phone with the 911 operator, and parked near Building 3100. A uniformed officer spotted an individual fitting the description Evans had given to the 911 operator; the individual was running away from Building 3200. The officer commanded the individual to stop, but he did not. Afoot chase ensued, and the individual, later identified as Reeves, was apprehended. Reeves was carrying a backpack which contained a computer, a yellow glove, a flathead screwdriver, a hammer, cash, and car keys; broken pieces of glass were in the backpack’s side mesh pocket. Evans identified on the scene the man police had apprehended as the individual she had seen climbing up her railing to the apartment balcony above hers.

Reeves was read his Miranda rights; he waived them and indicated that he wanted to talk with police. Tara Davis resided in the apartment above Evans’s apartment. Reeves told police that he had been dropped off by some “associates” to break into Davis’s apartment to steal drugs. Police observed that the sliding glass balcony door to Davis’s apartment had been broken and the front door was ajar. Davis was on her way to school when the police called her and asked her to come to her apartment. Davis told police that her laptop computer was missing from the apartment. Davis testified that she did not know Reeves and that there was no reason that anyone should have had her laptop. Davis identified as hers the laptop computer the police had recovered from Reeves’s backpack.

The keys in Reeves’s backpack unlocked the doors to a vehicle police later discovered belonged to Reeves’s girlfriend; the vehicle was located in a parking lot of Davis’s apartment complex the day Davis’s apartment was burglarized. A police officer looked inside the vehicle through the windows and observed “what appeared to be, a couple of laptops or electronic-type devices, laptop-type devices and a yellow glove which was similar to one that [the officer] saw back at the precinct that came from the backpack that was inventoried at the precinct.” Police towed the vehicle to the precinct, searched it, and seized and inventoried the items found therein.

Police went to the apartment of Reeves’s girlfriend (at a complex different from Davis’s) and obtained consent to search her apartment. She testified that Reeves had moved into her apartment in March 2010. She showed police items in her apartment that she said Reeves had told her he had brought from his house. The items included, among other things, four flat-screen televisions, two laptop computers and jewelry. The police seized the items. Reeves’s girlfriend also testified that typically, every day, Reeves drove her vehicle and dropped her off at work, and that he had done so on the day Davis’s apartment had been burglarized. Reeves’s girlfriend testified that none of the items police recovered in her vehicle were in the vehicle when Reeves had dropped her off at work that morning.

Heidi Santiago testified that her apartment (also at a complex different from Davis’s) had been burglarized in March 2010. She was shown photographs of items Reeves had stored at his girlfriend’s apartment, and she identified several items as her property that was stolen when her apartment was burglarized, including a computer, car keys, an iPod, a cell phone, and a camcorder. She estimated the value of her items depicted in the photo at four to five thousand dollars. Prior to trial, she had retrieved some of her belongings from police.

Reeves was convicted of burglary, for entering Davis’s apartment without authority and with the intent to commit a theft therein; obstruction of a law enforcement officer for running from a law enforcement officer after being given a lawful command to stop running; theft by receiving stolen property (felony), for receiving and retaining certain stolen property with a value of more than $500 (belonging to Santiago); and theft by receiving stolen property (misdemeanor) for receiving and retaining certain stolen property with a value of less than $500, belonging to Betty McEntire, who did not testify at trial.

1. With regard to the burglary conviction, we find unavailing Reeves’s contention that the evidence was insufficient because the state failed to show that he had entered Davis’s apartment without authority when Davis did not testify that Reeves had no authority to be in her apartment. Reeves confessed to police that he had broken into the apartment to steal; he broke Davis’s sliding glass door to gain entry into Davis’s apartment; Davis testified that she did not know Reeves; and Reeves fled from police when they arrived on the scene. Therefore, there was evidence from which a trier of fact could have concluded beyond a reasonable doubt that Reeves lacked the authority to enter Davis’s apartment.

2. Without stating any specific basis therefor, Reeves contends that the evidence was insufficient to “convict [him] of . . . theft by receiving stolen property.”

(a) Although not challenged, we find that “ [a] rational trier of fact could have found from the evidence that [Reeves] committed the crime of obstruction of an officer.”

(b) The evidence was also sufficient to support Reeves’s conviction for (felony) theft by receiving stolen property (involving Santiago’s property), as the evidence showed more than possession of Santiago’s belongings; Reeves possessed items that had been stolen from other individuals. Although the jury reached no verdict as to Reeves’s guilt or innocence of three burglary counts, evidence was presented to the jury identifying certain items recovered from Reeves’s girlfriend’s vehicle as items which had been stolen from the residences of the burglary victims. Reeves had driven the vehicle the day Davis’s apartment was burglarized; the vehicle was located in Davis’s apartment complex the day Davis’s apartment was burglarized; and the contents of the vehicle led police to search Reeves’s girlfriend’s apartment where police recovered Santiago’s belongings. Moreover, the circumstances of Reeves’s arrest were that he was seen running from the direction of an apartment building where a burglary had been reported, he attempted to avoid police detection by fleeing from police, and he was carrying a laptop that had been stolen from the apartment that had been burglarized.

3. Reeves was also convicted of theft by receiving stolen property (misdemeanor), in that he did on and about May 19,2010, receive and retain stolen property, to wit: a secure digital “SD” memory card, belonging to Betty McEntire. The evidence was not sufficient, however, to sustain Reeves’s conviction for this count.

A police officer testified that he was able to determine that a memory card found at the apartment of Reeves’s girlfriend was one which had been previously reported stolen by McEntire. McEntire did not testify at trial. Thus, there being no competent evidence to show that the memory card had been stolen — only that it had been reported stolen — Reeves’s conviction on this count cannot stand.

4. Reeves contends that his trial counsel provided ineffective assistance “for failing to object to the state’s comments regarding [him] not testifying, commenting on what appellant might have done and interjecting the jurors into the place of the victim.”

Under Strickland v. Washington, [] to prevail on a claim of ineffective assistance of trial counsel, [Reeves] bears the burden of showing both that trial counsel was deficient and that he was prejudiced by the deficiency. In order to establish prejudice, a defendant must show a reasonable probability sufficient to undermine confidence in the outcome that, but for counsel’s alleged unprofessional errors, the result of the proceeding would have been different. When reviewing an ineffective assistance claim, we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.

(a) Comment regarding Reeves’s failure to testify. Reeves contends that the state improperly commented on his failure to testify when the prosecutor, in closing argument, “asked the rhetorical question of” whether he (Reeves) had “any good explanation why he had that stuff?” Under the circumstances present in this case, we find no error.

As a rule of both constitutional law and Georgia statutory law, a prosecutor may not make any comment upon a defendant’s failure to testify at trial. Generally, comments made by the State regarding the defendant’s decision not to testify may constitute reversible error if (1) the prosecutor’s manifest intention was to comment on the accused’s failure to testify, or (2) the remark was of such a character that a jury would naturally and necessarily take it to be a comment on the accused’s failure to testify.

During the opening segment of the state’s closing argument, the prosecutor stated:

Well count six is the Blackberry phone, Canon camcorder and I-Mac desktop which belonged to Heidi Santiago____She saw her stuff and she told you what the value was. Well in excess of $500. And you know who had that stuff? Tyrone Reeves. Does he have any good explanation why he had that stuff? It’s there with all the other stolen stuff.... It was there at the apartment.

Immediately after he was arrested, Reeves waived his Miranda rights and told police that he had been dropped off at the apartment complex to break into Davis’s apartment to steal drugs; what the police found in Reeves’s backpack instead, however, was Davis’s laptop and car keys, and police ultimately discovered — in the vehicle Reeves had been driving and in the apartment where he lived — a variety of items that had been stolen in prior burglaries. Therefore, “[t]he [prosecutor’s] argument, in context, specifically referred to matters actually in evidence and made no reference to [Reeves’s] decision not to testify.” As the prosecutor’s statement did not improperly comment on Reeves’s failure to testify, Reeves’s trial counsel did not provide deficient performance in failing to object to the statement.

(b) Commenting on what Reeves might have done. Reeves contends that the prosecutor “improperly placed his character into evidence by commenting on what he ‘might’ have done,” when as to the theft by receiving stolen property charge of the indictment in connection with McEntire, the prosecutor remarked (in his closing argument) that Reeves was “not being accused of breaking into Ms. McEntire’s house. He might very well have done it but that’s not what he is being accused of here today.”

At the motion for new trial hearing, Reeves challenged those remarks on the basis that they were improper because “[n]one of these facts were in evidence.” In its written order denying the motion for new trial, the trial court found that the prosecutor was simply “trying to explain to the jury why some charges regarding the other stolen property found were burglary,” and others were theft by receiving stolen property. Thereafter, the trial court ruled that the remark “was not an improper argument by the State, but a legal argument concerning the counts in the indictment.” As the (character) basis for objection Reeves asserts on appeal was not the same (facts-not-in-evidence) basis either asserted by Reeves in the trial court, or ruled upon by the trial court, there is nothing for us to review.

(c) Impermissible “golden rule” argument. Reeves contends that the state improperly “interject[ed] the jurors into the place of the victims during the State’s opening closing argument,” by remarking of the “horror of finding your home has been broken into.”

Decided November 4, 2014.

Ashleigh B. Merchant, for appellant.

A “golden rule” argument is one which, either directly or by implication, tells the jurors that. . . they should put themselves in the injured person’s place and render such a verdict as they would wish to receive were they in the (injured person’s) position. Such an argument is impermissible because it encourages the jurors to depart from neutrality and to decide the case on the basis of personal interest and bias rather than on the evidence.

During the opening segment of the state’s closing argument, the prosecutor stated:

Now you heard from all of the victims this morning. And they came in and they testified about how they left their house, and when they came back and they had that horror of finding your home has been broken into. And they described that each of them had the same MO, the modus operandi, the same exact way. Somebody broke some glass in the back and went into the apartment.

The prosecutor’s closing remarks did not constitute a prohibited “golden rule” argument because he did not ask the jurors to place themselves in the victims’ shoes. The record shows that the “your” in the challenged remark referred to the victims and their reactions in finding that their homes had been (allegedly) burglarized, not to the jurors. “Because the State’s argument did not ask jurors to place themselves in the victims’ position, it was not a ‘golden rule’ argument and trial counsel was not ineffective for failing to object.”

Judgment affirmed in part and reversed in part.

Ellington, P. J., and McMillian, J., concur.

D. Victor Reynolds, District Attorney, Daniel J. Quinn, Assistant District Attorney, for appellee.

       OCGA § 16-7-1 (2010).

       OCGA §§ 16-8-7,16-8-12 (a) (1) (2010). The crimes in this case were committed in 2010. See Mangrum v. State, 285 Ga. 676, 681 (7) (681 SE2d 130) (2009), citing Fleming v. State, 271 Ga. 587, 590 (523 SE2d 315) (1999) (“it has long been the law in this state that, in general, a crime is to be construed and punished according to the provisions of the law existing at the time of its commission.”).

       OCGA §§ 16-8-7, 16-8-12 (a) (2010).

       OCGA § 16-10-24 (a).

       The jury did not reach a verdict as to three counts of burglary involving other residences.

        Wilson v. State, 227 Ga. App. 59, 60 (1) (488 SE2d 121) (1997) (citation and punctuation omitted); see Green v. State, 277 Ga. App. 867 (1) (627 SE2d 914) (2006) (“In reviewing a challenge to the sufficiency of the evidence, we do not weigh the evidence or resolve issues of witness credibility. We merely determine whether the evidence, construed favorably to the verdict, authorized the jury to find the defendant guilty beyond a reasonable doubt.”) (footnotes omitted).

       See Jones v. State, 258 Ga. 25-27 (1) (365 SE2d 263) (1988) (“while there is no direct evidence on this issue, there is circumstantial evidence from which the jury could have found beyond a reasonable doubt that appellant lacked the authority to enter the victim’s home”); Harris v. State, 322 Ga. App. 122, 124 (1) (744 SE2d 111) (2013).

        Clowers v. State, 324 Ga. App. 264, 267 (2) (b) (750 SE2d 169) (2013) (punctuation and footnote omitted).

        Wells v. State, 268 Ga. App. 62, 62-63 (1) (601 SE2d 433) (2004) (citations and punctuation omitted) (“Proof of possession, alone, of recently stolen property is not sufficient to establish the essential element of the offense of theft by receiving stolen property that the possessor knew or should have known that the property was stolen. But knowledge sufficient to establish guilt may be inferred from possession in conjunction with other evidence of knowledge, and such guilty knowledge may be inferred from circumstances which would excite suspicion in the mind of an ordinary prudent man.”).

       We do not imply that Reeves was guilty of any crime in connection with the burglary counts on which the jury did not reach a verdict.

       See generally Reese v. State, 313 Ga. App. 746-747 (1) (a) (722 SE2d 441) (2012).

       See Smith v. State, 283 Ga. App. 317-319 (641 SE2d 296) (2007) (there was no admissible evidence in this case to establish that the compressor had been stolen; although police officer testified that he was responding to a stolen property call and that the alleged victims reported that an air compressor had been stolen from a van, the officer’s hearsay testimony was not competent to show that the air compressor had been stolen); Lopez v. State, 259 Ga. App. 720, 722 (2) (578 SE2d 304) (2003) (“There must be proof of a larcenous taking to authorize a conviction for theft by receiving stolen property. If the goods found in the possession of the defendant are not shown to be that which [have] in fact been stolen, proof of larcenous taking is absent.”; officer’s testimony that radio dispatch identified pistol as stolen was nonprobative hearsay) (citation and punctuation omitted).

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

        Cannon v. State, 288 Ga. 225, 229 (6) (702 SE2d 845) (2010) (citations and punctuation omitted).

       Id. at 230 (6) (c) (citation and punctuation omitted).

        Ledford v. State, 289 Ga. 70, 88 (22) (d) (709 SE2d 239) (2011); see Cannon, supra at 230-231 (6) (c); Kirkland v. State, 315 Ga. App. 143, 147-148 (5) (726 SE2d 644) (2012).

        Cannon, supra.

        Blige v. State, 263 Ga. 244, 245 (2) (430 SE2d 761) (1993) (citation omitted) (“It is a basic tenet of trial procedure that counsel cannot argue facts not in evidence.”).

        Moore v. State, 279 Ga. 45, 47-48 (8) (609 SE2d 340) (2005) (claims of trial counsel’s ineffectiveness as to matters not asserted in the trial court as ineffective were waived for purposes of appeal); Dillard v. State, 272 Ga. App. 523, 526 (2) (612 SE2d 804) (2005) (“Where an entirely different objection or basis for appeal is argued in the brief which was not presented at trial we will not consider that basis as we are limited to those grounds presented to and ruled upon by the trial court.”) (citation and punctuation omitted); Guertin v. State, 243 Ga. App. 322, 325(2) (533 SE2d 159) (2000) (“None of these contentions were raised at the motion for new trial as a basis for [defendant’s] ineffective assistance of counsel claim, and consequently, they were not ruled upon by the trial court. Accordingly, we will not consider them for the first time on appeal.”) (citation omitted).

        Jackson v. State, 282 Ga. 494, 499 (5) (651 SE2d 702) (2007) (punctuation and footnotes omitted).

       See generally McKibbins v. State, 293 Ga. 843, 849-850 (3) (b) (750 SE2d 314) (2013); Smith v. State, 294 Ga. App. 692, 707-708 (10) (i) (670 SE2d 191) (2008); Johnson v. State, 263 Ga. App. 443, 449-450 (3) (c) (587 SE2d 775) (2003).

        Martin v. State, 294 Ga. App. 117, 122 (3) (668 SE2d 549) (2008) (citation and punctuation omitted).


author: BARNES, Presiding Judge.

text:
    A14A0755.
    JONES v. THE STATE.
    (765 SE2d 657)
   BARNES, Presiding Judge.

Following the denial of his motion for new trial, Wesley L. Jones appeals his armed robbery and possession of a firearm during the commission of a felony convictions and contends that the evidence was insufficient, the State did not provide sufficient notice of its intent to present evidence of similar transactions, the trial court erred in admitting hearsay testimony, and his trial counsel was ineffective. Following our review, we affirm.

In undertaking an appellate review of a criminal conviction, we view the evidence in the light most favorable to the jury’s verdict. English v. State, 301 Ga. App. 842, 842 (689 SE2d 130) (2010). So viewed, the evidence demonstrates that at approximately 2:00 a.m. on December 10, 2004, a clerk was working in a convenience store when a man entered the store, pointed a gun at him, and demanded money. The clerk gave the robber the money from the cash register, and was then instructed to open the safe. When the clerk could not open the safe, the robber became angry, chambered a round in the gun, and pointed it at the clerk and at a second clerk who was also working. The second clerk was able to open the safe and give the money inside to the robber, who then left the store.

The clerk told police that the robber was wearing a dark hooded sweatshirt, and that he had a white cloth around the lower part of his face. He described the robber as about six feet tall, weighing 190 pounds, with distinctive “bug eyes” that were not crossed but “cockeyed.” The second clerk testified that the robber’s eyes were “doing crazy stuff” and were “crossed and then they weren’t crossed and they were just moving all around.”

In reviewing the police report of the robbery, the sergeant over the robbery division noticed similarities to a robbery of a restaurant that had occurred three days before and three blocks away from the convenience store. One of the suspects in the earlier robbery was Jones, and the sergeant prepared a photographic lineup that included a picture of Jones. The convenience store clerk positively identified Jones from the lineup as the man who robbed the store. He also positively identified Jones at trial as the robber.

At the trial, the State presented a certified copy of Jones’ conviction for armed robbery of the restaurant that occurred three days before the convenience store robbery. The lead detective testified to the facts of that robbery. Specifically, the detective testified that two men had entered the restaurant, and one man pointed a handgun at the employees and patrons while the other emptied the cash register. The man with the handgun wore a hooded sweatshirt and had a white bandana tied around the bottom of his face. A fingerprint recovered from the register belonged to Jones’ co-defendant, who later identified Jones as his accomplice in the restaurant robbery.

1. Jones first contends that the evidence was insufficient to support his convictions and asserts that the evidence connecting him to the crime was tenuous at best, as it was only based on the victim’s identification of Jones’ eyes. We disagree.

It is axiomatic that when a criminal conviction is appealed, the evidence must be viewed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence. English, 301 Ga. App. at 842. And in evaluating the sufficiency of the evidence, “we do not weigh the evidence or determine witness credibility, but only determine whether a rational trier of fact could have found the defendant guilty of the charged offenses beyond a reasonable doubt.” (Punctuation and footnote omitted.) Jones v. State, 318 Ga. App. 26, 29 (1) (733 SE2d 72) (2012). Thus, the jury’s verdict will be upheld “[a] s long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case.” (Citation and punctuation omitted.) Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001).

Jones argues that the evidence failed to establish that he committed the robbery because the clerk’s identification of him in the photographic lineup and at trial was unreliable because he only saw Jones’ eyes during the robbery. Former OCGA § 24-4-8 provides that, generally, “[t]he testimony of a single witness is generally sufficient to establish a fact.” To that end, the reliability of the clerk’s identification would go to the credibility and weight of his testimony, a matter which is within the province of the jury, not an appellate court. Crawford v. State, 301 Ga. App. 633, 636 (1) (688 SE2d 409) (2009). “[Arguments that go to the weight and credibility that the jury wished to assign to the State’s otherwise sufficient evidence present no basis for reversal.” (Citation, punctuation and footnote omitted.) Id. We find the evidence set forth above sufficient to find Jones guilty of armed robbery and possession of a firearm during the commission of a felony.

2. Jones also contends that the trial court erred in admitting similar transaction evidence when the State did not provide ten days notice of its intent to present such evidence. The State mailed its intent to present similar transaction notice seven days before the start of Jones’ trial. At the hearing on the similar transaction evidence, the trial court held that

as opposed to ten days, I will shorten the time required. The notice was given a week in advance. [Jones] was tried for this crime only some three to four months ago, for the similar transaction. [He] had a trial... with the same counsel acting as counsel in that case so they were certainly familiar with it and would not be surprised by this.

Uniform Superior Court Rules (USCR) 31.1 and 31.3 provide that the State must give written notice of its intent to introduce similar transaction evidence. The notice “shall be given and filed at least ten (10) days before trial unless the time is shortened or lengthened by the judge.” USCR 31.1. Reducing the time period for notice is a matter within the court’s discretion which will not be disturbed by this Court absent abuse of that discretion. Bryant v. State, 226 Ga. App. 135, 138 (3) (a) (486 SE2d 374) (1997). Here, the record demonstrates that Jones’ bench trial on the similar transaction occurred only a few months before the current trial and that he had the same trial counsel for both trials. Thus, Jones’ counsel was well aware of the evidence contained in the similar transaction. Given these facts, the trial court found the absence of any real prejudice to Jones in shortening the notice period, and we find no abuse of the trial court’s discretion here. See Woodward v. State, 262 Ga. App. 363, 364-366 (1) (585 SE2d 687) (2003) (the trial court did not abuse its discretion in shortening the time for filing the State’s similar transactions notice since the defendant had the requisite notice despite the late filing, and defense counsel had discussed the prior offense with the prosecutor months before trial).

3. Jones next contends that the trial court erred in admitting hearsay testimony from the lead detective when he testified about the similar transaction robbery. “[T]he admission of evidence is committed to the sound legal discretion of the presiding judge, whose determinations will not be disturbed on appeal unless they constitute an abuse of that discretion.” (Citation, punctuation and footnote omitted.) Jennings v. State, 292 Ga. App. 149, 152 (2) (664 SE2d 248) (2008).

Jones asserts that the detective’s testimony about the details of the robbery and description of the robbers provided by unidentified patrons who were present during the restaurant robbery was hearsay. We note that Jones failed to object to the admission of the detective’s testimony regarding these statements and therefore he has waived this issue. Even so,

[t]he record shows that the detective who testified regarding the prior burglar [y] was the lead investigative officer thereof. At the time of [the] burglary, the detective answered the call, interviewed the [witnesses], and viewed the crime scene. The detective’s testimony was factual in nature and was based upon his own investigations. Since the investigator actually investigated and had personal knowledge of the burglar[y], his testimony as to [that] offense[ ] was not hearsay.

(Citation and punctuation omitted.) Castellon v. State, 240 Ga. App. 85, 86 (1) (522 SE2d 568) (1999). See Smith v. State, 304 Ga. App. 708, 709-710 (1) (699 SE2d 742) (2010) (“We have frequently held that an investigating officer’s testimony concerning his personal knowledge of the crimes investigated by him is not hearsay.”) (citations omitted); Terry v. State, 262 Ga. App. 654, 655-656 (586 SE2d 357) (2003) (What an investigating officer saw during her investigation of the prior offense and what the defendant told her during that investigation is not hearsay and is admissible at trial.); compare Bowdry v. State, 211 Ga. App. 626 (440 SE2d 59) (1994) (law enforcement officer’s testimony at trial concerning the similarity of a prior offense is inadmissible hearsay when the officer does not have personal knowledge of the facts of the prior offense).

Moreover, statements made within minutes of a crime and to an officer responding to a call for help are admissible under the res gestae exception to hearsay. Spear v. State, 259 Ga. App. 803 (2) (578 SE2d 504) (2003); former OCGA § 24-3-3 (“Declarations accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought, shall be admissible in evidence as part of the res gestae.”). Accordingly, the trial court did not err in allowing testimony.

Jones also maintains that it was inadmissible hearsay to allow the detective to testify to other facts related to the similar transaction robbery, including that Jones’ co-defendant, Rodrell Williams, in the similar transaction robbery had identified Jones as the second robber, that Williams’ girlfriend indicated in her signed statement that Jones “made a comment . . . about hitting a lick,” and that the detective had a telephone conversation with another witness who said that the two men had come to her apartment and that she had observed Jones with a handgun.

We agree that the statements were hearsay and that the trial court erred in overruling Jones’ objection. However, any “error was rendered harmless due to the fact the hearsay identification was cumulative of the certified copy of the adjudication adverse to [Jones] on the robbery charge.” Inman v. State, 281 Ga. 67, 71 (3) (a) (635 SE2d 125) (2006). Although Jones argues that given the hearsay testimony, the State’s sole evidence surrounding the similar transaction incident was a certified copy of a conviction, as previously noted, the detective who handled the investigation of the similar transaction, including responding to the call and interviewing the witnesses, testified at the trial and much of his testimony was properly admitted. See Shuman v. State, 244 Ga. App. 335, 337 (3) (535 SE2d 526) (2000) (“[Certified copies of convictions are admissible when they . . . are not the sole evidence of a previous crime.”) (citations and emphasis omitted); compare Perry v. State, 314 Ga. App. 575, 576 (1) (724 SE2d 874) (2012) (The trial court erred in admitting certified copies of prior similar conviction absent additional evidence establishing similarity.).

Thus, this enumeration fails.

4. Likewise we find no merit to Jones’ contention that his trial counsel was ineffective for failing to object to the detective’s similar transaction testimony about the circumstances of the robbery investigation. To succeed on this claim, Jones must show that his counsel’s performance was professionally deficient and that, but for counsel’s unprofessional conduct, there is a reasonable probability the outcome of the proceedings would have been different. Strickland v. Washington, 466 U. S. 668, 688, 695 (104 SCt 2052, 80 LE2d 674) (1984). See also Varner v. State, 285 Ga. 300 (3) (676 SE2d 189) (2009). If Jones fails to meet his burden of proving either prong of the Strickland test, then we need not examine the other prong. Battles v. State, 290 Ga. 226, 229 (2) (719 SE2d 423) (2011). Pretermitting whether trial counsel’s performance was deficient for failing to object on hearsay-grounds to the detective’s testimony at trial, Jones has failed to establish a reasonable probability that, but for counsel’s objection to the testimony in question, the result of the proceeding would have been different. Myers v. State, 275 Ga. 709, 713 (4) (572 SE2d 606) (2002); Hill v. State, 291 Ga. 160, 164 (4) (728 SE2d 225) (2012) (“The likelihood of a different result must be substantial, not just conceivable.”) (citation omitted).

Decided November 5, 2014.

William J. Mason, for appellant.

Julia F. Slater, District Attorney, W. Donald Kelly, Katelyn M. Hartford, Assistant District Attorneys, for appellee.

Judgment affirmed.

Boggs and Branch, JJ., concur.

       After conducting a Uniform Superior Court Rule 31.3 (B) hearing, the trial court ruled that the prior conviction was admissible as similar transaction evidence to show Jones’ course of conduct, motive, bent of mind, plan, and identity. See Mangum v. State, 308 Ga. App. 84, 88 (2), n. 13 (706 SE2d 612) (2011).

       Because this case was tried in 2005, we are not analyzing the trial court’s evidentiary rulings under Georgia’s new Evidence Code, effective January 1, 2013. See Slaughter v. State, 292 Ga. 573, 576 (2), n. 3 (740 SE2d 119) (2013).

       Jones objected to the admission of the similar transaction evidence, but did not object on the grounds of hearsay at trial during the detective’s testimony. To preserve an objection as to a specific point, “the objection must be on that specific ground” in order for this Court to consider it. (Citations and footnote omitted.) Phillips v. State, 284 Ga. App. 224, 229 (1) (d) (644 SE2d 153) (2007).


author: Branch, Judge.

text:
    A14A1126.
    RLBB ACQUISITION, LLC v. BAER.
    (765 SE2d 662)
   Branch, Judge.

After a trial court granted defendant William Baer’s motion to compel plaintiff RLBB Acquisition, LLC (“RLBB”) to comply with Baer’s discovery requests, Baer moved for sanctions for RLBB’s failure to comply with the trial court’s order, including the dismissal of RLBB’s complaint. The trial court granted Baer’s motion for sanctions and dismissed RLBB’s complaint with prejudice. On appeal, RLBB argues that the trial court abused its discretion when it imposed the extreme sanction of dismissal because the evidence did not show that RLBB blatantly or willfully failed to comply with the court’s orders. We find no error and affirm.

“Trial courts have broad discretion to control discovery, including the imposition of sanctions. Absent the showing of a clear abuse of discretion, a court’s exercise of that broad discretion will not be reversed.” Freeman v. Foss, 298 Ga. App. 498, 499 (2) (680 SE2d 557) (2009) (citation omitted).

Construed in favor of the trial court’s judgment, the record shows that as successor-in-interest to the original promisee of Baer’s promissory note, RLBB filed an action against him to recover the balance due under the note. In his answer, Baer admitted that he had executed the note, but asserted a number of affirmative defenses, including estoppel, fraud, and breach of contract. After an attempt at mediation failed in November 2012, the trial court ordered that discovery, including the filing of any motions, be concluded by February 20, 2013, and that any “dispositive motions” be filed by March 21, 2013.

On November 26, 2012, Baer served requests for admissions and for production of documents on RLBB. On .November 29, 2012, Baer filed a notice of RLBB’s OCGA § 9-11-30 (b) (6) deposition, to be held on January 16, 2013. On December 26, new counsel appeared on RLBB’s behalf. On December 28, RLBB served its objections and responses to Baer’s request for admissions. On December 31, RLBB served its objections and responses to Baer’s request for documents, and produced some documents on January 7, 2013. On January 14, new counsel for RLBB advised Baer that RLBB would produce information and witnesses only as to the loan and promissory note at issue, but not as to the remaining loans in the same portfolio, which RLBB contended were irrelevant and contained confidential information and trade secrets. The OCGA § 9-11-30 (b) (6) deposition was taken as scheduled on January 16. Baer filed motions to compel further discovery on February 20 and 28, 2013. RLBB filed no response to either of these motions, and did not file any other motion before March 21, 2013, the latest of the deadlines set by the trial court.

On April 29, 2013, RLBB moved for leave to file a summary judgment motion. The trial court set a hearing on RLBB’s motion for July 10, 2013. At the July 10 hearing, which was not transcribed, the trial court (1) denied RLBB’s motion for leave to file a summary judgment motion; (2) noted that RLBB had not responded to either of Baer’s motions to compel and that the court was empowered to rule on unopposed discovery motions without hearing oral argument; (3) heard oral argument from both sides nonetheless; (4) granted Baer’s motions to compel; and (5) instructed RLBB that it was bound to produce the documents requested within 14 days of the entry of its order. The trial court then instructed Baer to provide a draft order, including the 14-day deadline, to RLBB for agreement as to form, and to submit the order for entry into the record. On July 22, 2013, after RLBB had approved the draft order as to form, the trial court entered the order denying RLBB leave to move for summary judgment and granting Baer’s motions to compel. The order specified that RLBB was bound to produce the documents “not later than fourteen (14) days from entry” of the same order.

Through Monday, August 5, 2013, 14 days after the entry of the trial court’s order granting the motion to compel, RLBB had not produced any additional documents, explained its failure to do so, or asked for an extension of time. On Wednesday, August 7, Baer filed the instant motion for contempt and/or sanctions. Four minutes after receiving Baer’s motion via e-mail, counsel for RLBB called counsel for Baer and told him that RLBB “would” gather the documents in dispute and deliver them by the following Monday. On Thursday, August 8, the day after this exchange, RLBB e-mailed copies of some of the documents, including the purchase and sale agreement at issue, and filed a motion for an extension of time to produce the remaining ones. RLBB did not file any response to Baer’s motion for contempt and/or sanctions, however. On September 20, RLBB sent a box of documents to Baer without any correspondence or explanation; on October 4, RLBB sent nine e-mails with documents attached. On October 9, RLBB sent an additional 25 e-mails with attachments it described as “the documents in order.”

RLBB sent counsel with no previous connection with the case to the hearing on Baer’s motion for contempt and/or sanctions, which was held on October 11, 2013. After apologizing to the court and admitting that RLBB was “tardy in producing the documents required” by the court’s order, counsel argued that RLBB had attempted to comply with Baer’s discovery request, which he characterized as “broad” in that it concerned more than 57 loans, many of which were handled by different employees of RLBB, whereas there was “only one loan at issue in this action.” When the trial court asked why no effort had been made to collect the documents before the August 5 deadline imposed by the court’s order, counsel replied, “I don’t have a good excuse for that.” After hearing evidence as to Baer’s fees and further argument from both sides, the trial court entered an order finding that RLBB had been put on notice at the July 10,2013 hearing of its obligation to produce the documents by the August 5 deadline; had failed to provide any documents before the deadline or any other remaining documents after August 8 but within the ten days requested in its motion for extension; and had “continuously failed to provide any excuse or reason” for these failures. The trial court then concluded that RLBB had “repeatedly and blatantly disregarded all orders from the Court, as well as ignored its obligations” under the Civil Practice Act; found RLBB to be in wilful contempt of the Court; awarded attorney fees of $5,045; and dismissed RLBB’s case with prejudice. This appeal followed.

RLBB argues that because any delay in its compliance with the trial court’s order was accidental or involuntary, the trial court abused its discretion when it dismissed RLBB’s complaint with prejudice. We disagree.

OCGA § 9-11-37 (b) provides in relevant part:

(2)... If a party . . . fails to obey an order to provide or permit discovery,... the court in which the action is pending may make such orders in regard to the failure as are just and, among others, the following:
(A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence;
(C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof. . . .

(Emphasis supplied.) The dismissal of a lawsuit under OCGA § 9-11-37 is “an extreme sanction which may only be employed for a wilful failure in bad faith or in total disregard of the court’s order,” warranted “only where a clear record of delay or contumacious conduct by the plaintiff exists and a lesser sanction would not better serve the interest of justice.” Harwood v. Great American Mgt., 171 Ga. App. 488, 490 (320 SE2d 269) (1984) (citation and punctuation omitted; emphasis supplied).

RLBB first argues that because the trial court’s order was served by mail on July 22, 2013, RLBB had 17 days (until August 8, 2013) rather than 14 days (until August 5, 2013) to produce the documents at issue. We disagree.

OCGA § 9-11-6 (e) provides:

. . . Whenever a party ... is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper,... and the notice or paper is served upon the party by mail or e-mail, three days shall be added to the prescribed period.

On its face, OCGA § 9-11-6 (e) applies only to acts required “within a prescribed period after the service of a notice or other paper[.]” By contrast, and as the trial court noted at the July 10 hearing, the order at issue here required that RLBB produce the documents at issue not within 14 days of service of that order, but within 14 days of that order’s entry. It follows that OCGA § 9-11-6 (e)’s three-day extension does not apply. See Didio v. Chess, 218 Ga. App. 550-551, n. 1 (462 SE2d 450) (1995) (OCGA § 9-11-6 (e) did not apply to a trial court’s order because the order directed appellant to comply within 20 days of receipt).

Decided November 5, 2014.

Jones Walker, AprilR. Freeman, M. Anthony Shaw, for appellant.

Chaiken Klorfein, Fredric Chaiken, for appellee.

RLBB’s principal argument, however, is that the trial court abused its discretion in imposing such a severe sanction in this case. Although this record shows that RLBB made some efforts to comply with Baer’s discovery requests, the same record also supports the conclusion that RLBB acted in total disregard of the trial court’s order granting the motion to compel and that RLBB offered no excuse for that disregard. OCGA § 9-11-37 (b) does not require “that the plaintiff display and the trial court find actual wilfulness.” Bells Ferry Landing, Ltd. v. Wirtz, 188 Ga. App. 344, 345 (373 SE2d 50) (1988) (citation and punctuation omitted). Rather, the sanction of dismissal “requires only a conscious or intentional failure to act, as distinguished from an accidental or involuntary non-compliance,” since “[a] conscious or intentional failure to act is in fact wilful.” Id. (citation and punctuation omitted); see also Harwood, 171 Ga. App. at 490 (noting the sufficiency of “a wilful failure in bad faith or in total disregard of the court’s order” for purposes of obtaining a dismissal) (citation and punctuation omitted; emphasis supplied).

As we have long noted, “[p]laintiffs who file lawsuits and put defendants to the expense and trouble to answer, should at least prosecute their actions efficiently and diligently[.]” Bells Ferry, 188 Ga. App. at 345. Here, RLBB provided no explanation to the trial court for its failure even to begin work on collecting the documents at issue before the August 5 deadline. Accordingly, the trial court did not abuse its discretion when it concluded that RLBB’s failure to comply with its order of July 22 was wilful and in total disregard of that order. See id. (affirming dismissal of plaintiff’s complaint with prejudice as supported by evidence concerning its intentional failure to comply with a discovery order); Amaechi v. Somsino, 259 Ga. App. 346, 347 (577 SE2d 48) (2003) (affirming dismissal of plaintiff’s complaint with prejudice as within the trial court’s discretion when plaintiff had “not made any showing that her failure to comply with [a trial court’s] discovery order was somehow excusable”).

Judgment affirmed.

Barnes, P. J., and Boggs, J., concur.


author: ANDREWS, Presiding Judge.

text:
    A14A1268.
    RUMSEY v. GILLIS et al.
    (765 SE2d 665)
   ANDREWS, Presiding Judge.

Peter Rumsey sued Ray and Nancy Gillis for damages for breach of a “Lease/Purchase Agreement” (the Agreement) by which the Gillises agreed to lease and then purchase Rumsey’s residence. We consider Rumsey’s appeal from the trial court’s grant of summary judgment in favor of the Gillises on all of his claims. For the following reasons, we affirm in part and reverse in part.

In April 2011 the Gillises and Rumsey entered into the Agreement, which provided that the Gillises agreed to purchase the residence from Rumsey for the sum of $550,000; that the closing would occur on or before April 30,2014; that, commencing in May 2011 until the closing date, the Gillises would lease the residence from Rumsey pursuant to a lease attached as an exhibit to the Agreement; and that, when the Agreement was entered into by the parties, the Gillises paid earnest money in the amount of $10,000 held by Rumsey. The Agreement also contained a liquidated damages clause providing that earnest money retained in the event of default constitutes liquidated damages in full settlement of all claims. The Agreement provided that, if the lease was terminated before the closing date by default of the Gillises, that was considered a default of the Agreement entitling Rumsey to pursue available remedies. The attached lease provided for payment of rent in the amount of $3,500 per month for a lease term commencing on May 3, 2011, and ending on the closing date of the purchase. The Gillises did not purchase the residence pursuant to the Agreement; rather, the Gillises vacated the residence and ceased paying rent in November 2011, and Rumsey retained the $10,000 in earnest money and subsequently sold the residence to a third party.

After retaining the $ 10,000 in earnest money paid by the Gillises, Rumsey sued the Gillises in December 2011 for breach of the Agreement seeking damages allegedly caused by the Gillises’ failure to purchase the residence and pay rent due under the lease. After Rumsey sold the residence in March 2012 to a third party for $437,000, he sought damages for breach of the purchase agreement in the amount of $113,000 (the difference between the third party sales price and the $550,000 sales price in the Agreement). As to damages under the lease agreement, Rumsey sought unpaid rent from November 2011 (when the Gillises vacated the residence and ceased rent payments) to the date he sold the residence to a third party in March 2012, plus late fees and interest associated with the unpaid rent for that period.

The Gillises answered and counterclaimed against Rumsey. In their amended answer, the Gillises asserted various defenses including (1) the defense that the Agreement was unenforceable, and (2) the alternative defense that, if an enforceable Agreement existed, it contained an enforceable liquidated damages clause under which Rumsey retained the $10,000 in earnest money as damages in full settlement of any breach of the Agreement, and that this barred Rumsey’s claims. In two counterclaims against Rumsey, the Gillises asserted: (1) that, because the Agreement was unenforceable, they were entitled to return of the $ 10,000 they paid as earnest money, and (2) that, during the period they occupied the residence and paid rent under the lease, they suffered damage as a result of Rumsey’s breach of his duty to keep the residence in good repair.

The Gillises moved pursuant to OCGA § 9-11-56 for summary judgment on all of Rumsey’s damage claims under the Agreement. The summary judgment motion was based on the same alternative defense asserted in the amended answer — that all of Rumsey’s claims were barred by an enforceable liquidated damages clause in the Agreement. Accordingly, for purposes of the motion, the Gillises conceded that the Agreement was enforceable and that they breached it by terminating the lease and refusing to purchase the residence. The Gillises asserted they were entitled to summary judgment because, pursuant to the liquidated damages clause, Rumsey retained the $10,000 in earnest money as damages in full settlement of all his claims that they breached the Agreement. The trial court granted the motion ruling that the liquidated damages clause was enforceable; that Rumsey retained the earnest money in full satisfaction of his claims that the Gillises breached the Agreement; and that this entitled the Gillises to summary judgment on all of Rumsey’s claims.

1. Rumsey claims the trial court erred by granting summary judgment to the Gillises on the basis that all of his claims were barred by the liquidated damages clause in the Agreement.

To prevail on a motion for summary judgment, “the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.” Lau’s Corp. v. Haskins, 261 Ga. 491, 491 (405 SE2d 474) (1991); OCGA § 9-11-56. Applying this standard, we find that the trial court correctly granted summary judgment in favor of the Gillises on Rumsey’s claims seeking to collect damages for breach of the Agreement in excess of the $10,000 of earnest money that he retained.

Under OCGA § 13-6-7, “[i]f the parties agree in their contract what the damages for a breach shall be, they are said to be liquidated and, unless the agreement violates some principle of law, the parties are bound thereby.” The Agreement at issue for purchase of the residence (for $550,000), and for the buyers’ lease of the residence (until closing), required the Gillises, as buyers, to deposit earnest money with Rumsey, as seller, in the amount of $10,000. The Agreement contained a liquidated damages provision which stated:

If the [earnest money] check is accepted and deposited by Seller it shall constitute liquidated damages in full settlement of all claims of Seller against Buyer. Such liquidated damages are not a penalty and are instead a reasonable pre-estimate of Seller’s actual damages, which damages are difficult to ascertain. Nothing herein shall prevent the Seller from declining the tender of the earnest money. . . .

The Agreement in its preprinted form set forth conditions governing return of the earnest money to the buyer (e.g., termination of the agreement due to fault of the seller) or disbursement of the earnest money to the seller (e.g., termination of the agreement due to fault of buyer). The printed Agreement also contained a subsequently-added handwritten stipulation concerning earnest money which states: “Earnest money is non-refundable if property does not close.”

Rumsey contends that the handwritten stipulation controls, renders the liquidated damages provision inapplicable, and shows that the parties agreed that, if there was no closing on the residence, he was entitled to retain the earnest money and sue the Gillises for breach of the Agreement to recover his actual damages. “In the construction of contracts there is a rule that a [handwritten] portion prevails over a printed portion, where the two cannot be reconciled.” Stanley v. Greenfield, 207 Ga. 390, 390 (2) (61 SE2d 818) (1950); Lester v. Crooms, Inc., 157 Ga. App. 377, 379 (277 SE2d 751) (1981). Applying the rules of contract construction, we find that the handwritten stipulation can be reconciled with the liquidated damages provision.

[T]he construction of contracts involves three steps. At least initially, construction is a matter of law for the court. First, the trial court must decide whether the language is clear and unambiguous. If it is, the court simply enforces the contract according to its clear terms; the contract alone is looked to for its meaning. Next, if the contract is ambiguous in some respect, the court must apply the rules of contract construction to resolve the ambiguity. Finally, if the ambiguity remains after applying the rules of construction, the issue of what the ambiguous language means and what the parties intended must be resolved by a jury. Because the first two of these steps involve questions of law, the trial court’s application of them is reviewed de novo on appeal.

City of Baldwin v. Woodard & Curran, Inc., 293 Ga. 19, 30 (743 SE2d 381) (2013) (citation and punctuation omitted); Copy Systems of Savannah, Inc. v. Page, 197 Ga. App. 435, 436 (398 SE2d 784) (1990). The handwritten stipulation providing that the earnest money held by Rumsey was nonrefundable if no closing occurred, is not inconsistent with Rumsey’s retention of the earnest money pursuant to the liquidated damages provision as full settlement of his claims against the Gillises for breaching the Agreement and failing to close. Accordingly, we find that the language of the Agreement unambiguously sets forth a liquidated damages provision. Although the trial court reached this conclusion by a different construction of the Agreement, we affirm the court’s ruling under the right for any reason rule. City of Gainesville v. Dodd, 275 Ga. 834 (573 SE2d 369) (2002).

Rumsey contends that the trial court erred by finding that the liquidated damages provision in the Agreement was enforceable. “[T]he enforceability of a liquidated-damages provision in a contract is a question of law for the court.” Liberty Life Ins. Co. v. Thomas B. Hartley Constr. Co., 258 Ga. 808, 809 (375 SE2d 222) (1989). “Aterm fixing unreasonably large liquidated damages is unenforceable on grounds of public policy as a penalty.” AFLAC, Inc. v. Williams, 264 Ga. 351, 354 (444 SE2d 314) (1994) (citation and punctuation omitted). In Southeastern Land Fund, Inc. v. Real Estate World, Inc., 237 Ga. 227, 230 (227 SE2d 340) (1976), the Supreme Court established a three-part inquiry to determine whether a liquidated damages provision in a real estate sales contract is enforceable, and authorizes the seller to retain the earnest money paid by the buyer in the event of a breach of contract by the buyer, or whether it is unenforceable as a penalty. The three-part inquiry, which necessarily requires the resolution of questions of fact, determines if the following factors are present:

First, the injury caused by the breach must be difficult or impossible of accurate estimation; second, the parties must intend to provide for damages rather than for a penalty; and third, the sum stipulated must be a reasonable pre-estimate of the probable loss.

Southeastern Land Fund, 237 Ga. at 230; Liberty Life, 258 Ga. at 809. As the movants on summary judgment, the Gillises had the burden of showing that, as to the three factors, no genuine issue of material fact exists. Liberty Life, supra.

As to the first factor, the ordinary measure of damages for breach of this kind of purchase agreement is the difference between the agreement sales price and the market value of the residence at the time of the breach — a value which “would be subject to the varying opinions of experts, who would have to reconstruct a past market when making their evaluation.” Id. at 809. The record shows that Rumsey, who was experienced in real estate transactions and had purchased and sold about 20 residences in 2011, and his real estate agent, testified that the value of the residence was subject to difficult-to-predict market fluctuations. As to the second factor, the Agreement explicitly states that the parties intended for the $10,000 earnest money to represent liquidated damages in the event of a breach by the buyers, and that it was not intended as a penalty. Caincare, Inc. v. Ellison, 272 Ga. App. 190, 192 (612 SE2d 47) (2005); Oran v. Canada Life Assur. Co., 194 Ga. App. 518, 520 (390 SE2d 879) (1990). As to the third factor, $10,000 of earnest money as liquidated damages represents about two percent of the $550,000 purchase price of the residence. This percentage of the sales price is well within other payments of earnest money as liquidated damages found to be reasonable as a matter of law. Swan Kang, Inc. v. Kang, 243 Ga. App. 684, 686 (534 SE2d 145) (2000) (two percent of sales price); Liberty Life, 258 Ga. at 809 (ten percent of sales price); Fuqua Constr. Co. v. Pillar Dev., Inc., 293 Ga. App. 462, 465 (667 SE2d 633) (2008) (two percent of sales price).

We find that the Gillises carried their burden with respect to the three Southeastern Land factors, and that the trial court correctly determined as a matter of law that the liquidated damages provision in the Agreement was not a penalty and was enforceable. Since the liquidated damages provision in the Agreement was enforceable, the $10,000 in earnest money retained by Rumsey as liquidated damages was the maximum amount he was entitled to collect against the Gillises for damages as a result of their breach of the Agreement. Fickling & Walker Co. v. Giddens Constr. Co., 258 Ga. 891, 898 (376 SE2d 655) (1989). Accordingly, the trial court correctly granted summary judgment in favor of the Gillises on all of Rumsey’s claims seeking to collect actual damages (in excess of the agreed liquidated damages) for breach of the Agreement. Id.

Rumsey contends that, even if his claim for actual damages for breach of the agreement to purchase the residence was barred by the liquidated damages defense, he was still entitled to sue the Gillises for actual damages for breach of the separate lease agreement. On the lease claim, Rumsey sought to collect rent he claims was due under the lease from the date the Gillises allegedly breached both the lease and the Agreement by vacating the residence in November 2011, until the date he sold the residence to a third party in March 2012. The Agreement refers to the attached lease “made a part of this Agreement,” and further provides that:

Prior to purchasing the [residence], the Buyer (referred to as “Tenant” where the context would so indicate) will be leasing the [residence] in accordance with the terms and conditions of a separate Lease Agreement (“Lease”) between the parties attached hereto as an exhibit. In the event the Lease is terminated by Seller due to a default of the Tenant thereunder, Buyer shall also be deemed to be in default of this Agreement and Seller may pursue all of its remedies. . . .

The lease provides that the lease term commences on May 3, 2011, “and shall end at the closing of the purchase of the [residence] by Tenant pursuant to [the] Agreement between the parties.. ..” Thus, the Agreement and the attached lease make clear that, when the Gillises vacated the residence, this constituted not only a breach of the lease but a breach of the entire Agreement, and that the parties did not intend for the residence to be leased apart from the buyer/tenant’s agreement to purchase the residence. Rumsey and his real estate agent confirmed this understanding in deposition testimony that the Gillises’ breach of the lease was considered a breach of the entire Agreement, which entitled Rumsey to retain the $10,000 in earnest money. Accordingly, the trial court correctly ruled that Rumsey’s retention of the $10,000 earnest money extinguished his claim for rent allegedly due after the Gillises breached the Agreement by vacating the residence.

We find no merit to Rumsey’s claim that the Gillises waived their liquidated damages defense because it was not raised in their initial answer to his complaint. See OCGA § 9-11-8 (c) (pleading affirmative defenses). The Gillises raised this defense for the first time in their motion for summary judgment, and thereafter in an amended answer. Assuming this was the assertion of an affirmative defense, it was timely raised for the first time in the motion for summary judgment. Gober v. Hospital Auth. of Gwinnett County, 191 Ga. App. 498, 498-499 (382 SE2d 106) (1989); Brown v. Moseley, 175 Ga. App. 282, 283 (333 SE2d 162) (1985); Hardy v. Ga. Baptist Health Care Systems, Inc., 239 Ga. App. 596, 597 (521 SE2d 632) (1999).

Without citation to the record or to supporting authority, Rumsey contends the trial court erred by ruling that he was prohibited from tendering the $10,000 in earnest money to the Gillises once they asserted the liquidated damages defense. This claim of error is deemed abandoned. Court of Appeals Rule 25 (c) (2).

2. Rumsey contends that the trial court erred by ruling that the Gillises’ liquidated damages defense did not bar their counterclaims.

As set forth above, the Gillises brought two counterclaims against Rumsey asserting: (1) that, because the Agreement was unenforceable, they were entitled to return of the $10,000 they paid as earnest money, and (2) that, during the period they leased the residence under the Agreement, they suffered damage as a result of Rumsey’s breach of his duty to keep the residence in good repair. In the order granting summary judgment in favor of the Gillises on their liquidated damages defense, the trial court added the following statement: “As no motion regarding [the Gillises’] counterclaims for damages has been filed, the same shall remain for resolution by a jury.”

To the extent this statement could be interpreted as a ruling that the Gillises remain entitled as a matter of law to pursue their counterclaim for return of the $10,000 earnest money from Rumsey, we reverse. The Gillises moved for and obtained an order granting summary judgment in their favor on their liquidated damages defense. In the order, the trial court ruled that the Agreement between the parties contained an enforceable provision under which Rumsey retained the $10,000 in earnest money as liquidated damages, and that this barred his claims seeking to collect actual damages in excess of the agreed damages. Although the trial court’s order did not dispose of the Gillises’ pending counterclaims, and the court did not direct entry of final judgment pursuant to OCGA § 9-11-54 (b), Rumsey directly appealed from the court’s ruling pursuant to OCGA § 9-11-56 (h). This Court’s ruling on appeal affirming the trial court is binding on all subsequent proceedings in the case in the trial court, and necessarily precludes the Gillises’ counterclaim for return of the $10,000 earnest money. OCGA § 9-11-60 (h). As to the alleging damages caused by Rumsey’s breach of the duty to keep the residence in good repair, this claim concerns fixed damages which the Gillises claim occurred before they vacated the residence and ceased paying rent. We conclude that these damages were not within the contemplation of the liquidated damages provision, and that the counterclaim for these damages is not precluded by rulings in the trial court and this Court on the liquidated damages defense.

Decided November 6, 2014

Perry A. Phillips, for appellant.

Carothers & Mitchell, Richard A. Carothers, Thomas Ni Mitcheli, Angela C. Couch, for appellees.

Judgment affirmed in part and reversed in part.

McFadden and Ray, JJ., concur.

       Although the Agreement contained provisions for the earnest money to be disbursed to the Seller by the “Holder” of the earnest money, it is undisputed that Rumsey, the seller, was also designated in the Agreement as holder of the earnest money. Accordingly, provisions for disbursement from a separate holder to the seller are inapplicable.

       We note that the lease also gave Rumsey (as landlord) the right to seek other damages, for example, the cost of repairing damage to the residence (other than normal wear and tear) caused by actions or neglect of the tenant, tenant’s household, or their invitees, while the tenant occupied the residence. Rumsey did not seek those kinds of damages, and we render no opinion on whether the liquidated damages defense would apply to those damages.


author: DOYLE, Presiding Judge.

text:
    A14A0752.
    RIVERS v. K-MART CORPORATION.
    (765 SE2d 671)
   DOYLE, Presiding Judge.

In an action for malicious prosecution and false imprisonment, Richard Rivers appeals from the denial of his motion in limine to exclude evidence of his prior arrests and convictions. He contends that the trial court abused its discretion by finding that, with respect to only the damages portion of his claims, the evidence of Rivers’s experience with the criminal justice system was not barred by OCGA § 24-4-403. Because the trial court did not abuse its discretion, we affirm.

This is the second appearance of this case. In the earlier appeal, Rivers v. K-Mart Corp. (Rivers I) the Court provided the following background, which is relevant here:

[T]he record shows that in November 2008, Rivers was arrested and prosecuted for allegedly shoplifting at a K-Mart store in Jonesboro, Georgia. The charges against him were ultimately dismissed, and he instituted the present action against K-Mart for malicious prosecution. During discovery, Rivers disclosed his extensive criminal record, including several convictions for various offenses and numerous arrests which did not result in convictions. Rivers sought to exclude the evidence as prejudicial and irrelevant to the issues being tried, and K-Mart opposed the motion, arguing that the evidence was relevant on the issue of damages, specifically Rivers’[s] claim that he suffered emotional distress and anxiety as a result of his arrest and prosecution, and for purposes of impeachment. The trial court agreed with K-Mart and denied the motion, finding that it was relevant for the jury to consider the evidence of Rivers’[s] “exposure to the criminal justice system and its effect on him,” in evaluating Rivers’[s] claims for damages based on his emotional distress and anxiety. The trial court, however, did not make any findings concerning whether there was a danger that introduction of this evidence might prejudice Rivers’[s] claim or confuse or mislead the jury.

On appeal, this Court affirmed the trial court’s ruling as to relevancy but remanded the case for consideration of the issue of undue prejudice and other factors in OCGA § 24-4-403.

On remand, the trial court analyzed the challenged evidence under OCGA § 24-4-403 and deemed it admissible. The trial court acknowledged “that the presentation of [Rivers’s] extensive criminal history might be misconstrued by a jury,” so the court bifurcated the trial and allowed the challenged evidence in the damages portion of the trial only. Rivers now appeals.

1. “As a general rule, admission of evidence is a matter resting within the sound discretion of the trial court, and appellate courts will not disturb the exercise of that discretion absent evidence of its abuse.” OCGA § 24-4-403, which tracks the language of Rule 403 of the Federal Rules of Evidence, was adopted as part of Georgia’s new Evidence Code. “Given the similarity between Georgia’s new [Evidence [C]ode and the Federal Rules of Evidence, it is proper that we give consideration and great weight to constructions placed on the Federal Rules by the federal courts.”

The balancing test under Federal Rule 403, as well as OCGA § 24-4-403,

is a quintessentially fact-sensitive enterprise, and the trial judge is in the best position to make such factbound assessments. Recognizing that coign of vantage, we typically give the district court wide latitude when evaluating the delicate balance that Rule 403 requires. Only rarely — and in extraordinarily compelling circumstances — will we, from the vista of a cold appellate record, reverse a district court’s on-the-spot judgment concerning the relative weighing of probative value and unfair effect.

In this context, we discern no reversible error in the trial court’s ruling on Rivers’s criminal history. With respect to his malicious prosecution claim, “[i]n addition to the requirements that the criminal prosecution be carried on maliciously and without probable cause, [Rivers] must also prove damage as an element of the tort.” As this Court stated in Rivers I, “we recognize that the fact that Rivers has been arrested and incarcerated on numerous occasions might have some probative value on the issue of whether Rivers suffered emotional distress and anxiety when he was arrested and incarcerated after being accused of shoplifting at K-Mart.” The trial court had already concluded likewise and has now accounted for the risk of improper influence on the jury by excluding the evidence during the phase of the trial when the jury would decide whether K-Mart was liable to Rivers. Therefore, evidence of Rivers’s criminal record will cause him no prejudice whatsoever during the liability phase. During the damages portion, the jury can be instructed as to the proper use of the evidence. Also, as noted by the trial court, citing United States v. Emeron Taken Alive,

Decided November 7, 2014.

Gillis & Creasy, James K. Creasy, for appellant.

the issue is not whether the evidence is prejudicial in the sense that it may be detrimental to the Plaintiff’s case, but instead whether the probative value of the evidence is substantially outweighed by unfair prejudice. Evidence is unfairly prejudicial, as opposed to merely prejudicial, when it would influence the jury to decide a case on an improper basis and not merely [admissible] evidence that hurts a party’s case. . . .

In light of the facts of this case, we conclude that the trial court did not abuse its discretion in ruling that the probative value, during the damages stage only, of Rivers’s criminal record was not substantially outweighed by the danger of improper prejudice. We emphasize that such evidence may not be admissible in every case, but the case before us presents no reversible abuse of the trial court’s discretion.

2. Rivers also challenges the trial court’s ruling, in a footnote, that the evidence of his criminal record could be admissible at trial if “the door is opened by Defendant to allow its admissibility.” Defendant K-Mart, as the proponent of the evidence, would not be in a position to “open the door” to the evidence, so we assume the use of the word “Defendant” was a misnomer referring to Rivers. Beyond that, the trial court’s prospective statement in a footnote that Rivers’s future trial conduct could somehow open the door to admissibility at trial does not present a reviewable ruling at this time.

Judgment affirmed.

Miller and Dillard, JJ., concur.

Strawinski & Stout, James S. Strawinski, Daniel G. Cheek, for appellee.

       The ruling is directly appealable because it follows this Court’s remand “for further proceedings after [the Court] previously allowed an interlocutory appeal on this issue.” Rivers v. K-Mart Corp., 321 Ga. App. 788, 790 (743 SE2d 464) (2013).

       Id.

       (Punctuation and footnotes omitted.) Id. at 788-789.

       See id. at 790.

       (Punctuation omitted.) Wiliams v. State, 328 Ga. App. 876, 877 (1) (763 SE2d 261) (2014). See also Rivers I, 321 Ga. App. at 790 (evidentiary ruling is an exercise of discretion by the trial court).

       (Citation and punctuation omitted.) Williams, 328 Ga. App. at 879 (1), n. 14.

        Udemba v. Nicoli, 237 F3d 8, 15-16 (III) (A) (1st Cir. Mass. 2001). See also 2 Weinstein’s Federal Evidence § 403.02 (“If there is doubt about the existence of unfair prejudice, confusion of issues, misleading, undue delay, waste of time, or needless presentation of cumulative evidence, it is generally better practice to admit the evidence, taking necessary precautions by way of contemporaneous instructions to the jury followed by additional admonitions in the charge. . . . Since the thrust of the Federal Rules favors admissibility, the trial court will tend to view the probative force of the evidence most favorably towards the proponent of the evidence, unless the probative value of the evidence is so low as to warrant exclusion when prejudicial factors are present.”) (footnotes omitted).

        Wal-Mart Stores v. Blackford, 264 Ga. 612, 614 (449 SE2d 293) (1994).

        Rivers I, 321 Ga. App. at 789-790.

       See, e.g., Taylor v. Racetrac Petroleum, Inc., 238 Ga. App. 761, 763 (1) (519 SE2d 282) (1999) (noting ameliorative effect of bifurcation).

       262 F3d 711, 714-715 (8th Cir. 2001) (“There is a difference between evidence that. .. hurts a party’s case and evidence that is unfairly prejudicial.”).

       See Udemba, 237 F3d at 16 (III) (A) (in an action under 42 USC § 1983, evidence of unrelated arrest for domestic violence deemed admissible under Federal Rule 403 to delineate the extent of plaintiff’s humiliation caused by allegedly wrongful arrest and excessive force).

       See Wellstar Health System, Inc. v. Sutton, 318 Ga. App. 802, 805 (3) (734 SE2d 764) (2012) (“Georgia appellate courts are not authorized to render advisory opinions as to potential error.”).


author: Miller, Judge.

text:
    A14A0806.
    DOGAN v. BUFF et al.
    (765 SE2d 674)
   Miller, Judge.

This personal injury case arises out of two consecutive accidents on Interstate 75. Henry Dogan sued truck driver Jimmy Buff and Buff’s employer Rockwell Transportation, alleging that he was injured when Buff negligently and recklessly rear-ended Dogan’s vehicle. Buff and Rockwell moved for summary judgment, and the trial court granted their motion. Dogan appeals, contending that factual questions remain regarding Buff’s failure to exercise ordinary care. Dogan also contends that the trial court misapplied the rule in Prophecy, and failed to consider other evidence on the issue of ordinary care, including the expert evidence and Rockwell’s own safety policies. For the reasons that follow, we reverse.

On appeal from the grant of summary judgment this Court conducts a de novo review of the evidence to determine whether there is 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.) Campbell v. The Landings Assn., Inc., 289 Ga. 617, 618 (713 SE2d 860) (2011).

So viewed, the evidence shows that on February 18, 2009, at approximately 11:30 in the morning, Dogan was driving north on 1-75 near Roswell Road. Dogan was driving a Ford van, owned by his employer Royalty Transportation, and he was driving the van in the course and scope of his employment as a patient transport driver. Dogan had dropped off a patient at Emory Hospital in Atlanta and was on his way to Woodstock to pick up his next patient. That section of 1-75 northbound had five lanes and Dogan was driving in the third lane, i.e., the center lane. Traffic on the interstate was heavy, it had just rained and the roadway was wet.

Buff, who was admittedly working in the course and scope of his employment for Rockwell, was hauling a load of dialysis supplies in a tractor-trailer. He was heading to Chattanooga, Tennessee. The gross weight of the fully-loaded tractor-trailer was 80,000 pounds, and Rockwell’s trucking manual required its drivers to keep a driving distance of at least one truck length between the driver’s vehicle and the vehicle in front of the driver for every ten mph of speed.

Kevin Palmer was driving an Isuzu truck in the center lane in front of Dogan. Michael Lawrence was driving his mother’s BMW in lane two, the lane directly to the left of the lane in which Dogan was driving. Lawrence and Palmer were driving at approximately 65 mph along with the rest of the traffic.

Buff merged behind Dogan’s van and was driving directly behind Dogan at a distance of approximately three passenger car lengths, i.e., less than one full tractor-trailer length. Lawrence then lost control of the BMW and collided with the Isuzu in the center lane. Both Dogan and Buff merged into the adjacent lane to avoid the BMW/Isuzu collision, and Dogan stopped the van because of traffic in that lane. Buff slammed on his brakes in an attempt to stop the tractor-trailer, but he rear-ended Dogan’s van. Both Dogan’s van and Buff’s tractor-trailer sustained moderate damage. Dogan was also physically injured in the accident and taken to the hospital.

Buff was less than 1.5 seconds behind Dogan when they both started braking and the distance between the tractor-trailer and Dogan’s van narrowed when both Dogan and Buff applied their brakes because the tractor-trailer had a brake-lag of approximately half a second. Buff and his accident reconstruction expert admitted that Buff might have been following Dogan too closely. Buff and his expert also admitted that Buff would have rear-ended Dogan even if they had both remained in the center lane.

1. Dogan contends that factual questions remain regarding Buff’s failure to exercise ordinary care. After a thorough review of the evidence, we agree.

All drivers of vehicles using the highways are held to the exercise of due care. A leading vehicle has no absolute legal position superior to that of one following. Each driver must exercise ordinary care in the situation in which he finds himself. The driver of the leading vehicle must exercise ordinary care not to stop, slow up, nor swerve from his course without adequate warning to following vehicles of his intention so to do. The driver of the following vehicle, in his turn, must exercise ordinary care to avoid collision with vehicles, both those in front and those behind him.

(Punctuation omitted.) Atlanta Coca-Cola Bottling Co. v. Jones, 236 Ga. 448, 450 (224 SE2d 25) (1976); see also Rios v. Norsworthy, 266 Ga. App. 469, 470 (597 SE2d 421) (2004).

In rear-end collision cases the liability, degree of liability, or lack of liability on the part of any involved driver depends upon a factual resolution of the issues of diligence, negligence, and proximate cause. The history of the decisions of [this Court] in this type of case since 1965 convinces us that these issues should be resolved.. .by the jury and not by trial and appellate judges.

Atlanta Coca-Cola Bottling, supra, 236 Ga. at 451; see also Leonard v. Dixon, 246 Ga. App. 83 (538 SE2d 781) (2000). In this case, the evidence when viewed in the light most favorable to Dogan raises a jury question regarding whether Buff failed to exercise ordinary care under the circumstances.

Notably, both Buff and his accident reconstruction expert admitted that Buff might have been following Dogan too closely because Buff was traveling only three car lengths, i.e., less than one tractor-trailer length, behind Dogan. Buff and his expert also admitted that Buff would have rear-ended Dogan even if they had both remained in the same lane after the BMW and the Isuzu collided. Additionally, the investigating officer testified that Buff would have been following too closely if he was traveling less than three car lengths behind Dogan, and Buff’s actions in following too closely would have been a contributing factor to the rear-end collision. Finally, Rockwell’s corporate representative testified that Buff was required to follow Rockwell’s safety manual which specified a separation distance between tractor trailers of at least one tractor-trailer length for every ten mph of speed. Clearly, based on the testimony as set forth above, Rockwell’s safety guidelines were not complied with in this case. Moreover, Rockwell’s representative conceded that Buff was following too closely under the circumstances. The evidence in this case raises a jury question regarding whether Buff was following Dogan too closely and, therefore, whether he failed to exercise ordinary care. Accordingly, the trial court erred in granting summary judgment to Buff and Rockwell.

Decided November 7, 2014.

Summerville Moore, Darren Summerville, S. Leighton Moore, Link & Smith, MarkD. Link, Werner & Associates, Michael L. Werner, for appellant.

Mozley, Finlayson & Loggins, Brian J. Duva, Andrew M. Capobianco, Drew Eckl & Farnham, Brian T. Moore, Ware & Associates, Kay D. Thompson, for appellees.

2. Given our reversal in Division 1 of the grant of summary judgment to Buff and Rockwell, we need not address Dogan’s remaining contentions, including his contention that the trial court misapplied the self-contradictory testimony rule in Prophecy.

Judgment reversed.

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

       Dogan also sued other drivers and entities who were allegedly involved in the two collisions. This appeal involves only the grant of summary judgment to Buff and Rockwell.

        Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986).

       The accident report as well as the testimony of Buff, the investigating officer and Dogan’s accident reconstruction expert all show that both Dogan and Buff merged left into lane two. Dogan, however, testified in his deposition that he and Buff merged right into lane four. Regardless of the lane into which they merged, Buff admitted that he rear-ended Dogan’s van as they merged into an adjacent lane to avoid the BMW/Isuzu collision.

       Compare Lauffer v. Brooks, 220 Ga. App. 51, 53 (467 SE2d 345) (1996) (defendant driver entitled to summary judgment where undisputed testimony showed that rear-end collision occurred immediately after plaintiff swerved in front of defendant).

       Rockwell’s trucking manual and safety guidelines are not imposing a heightened standard of care on Buff. These corporate guidelines are relevant because they may he illustrative of ordinary negligence under the circumstances presented in this case, even though the violation of such a rule is not negligence in and of itself. See, e.g., Southern R. Co. v. Allen, 88 Ga. App. 435, 450 (12) (77 SE2d 277) (1953).

       Pursuant to the rule in Prophecy, a respondent’s unexplained or inadequately explained contradictory testimony must be construed against him for purposes of summary judgment. See Thompson v. Ezor, 272 Ga. 849, 851 (1) (536 SE2d 749) (2000).