author: McMlLLIAN, Judge.

text:
    A13A0729.
    J. N. LEGACY GROUP, INC. v. CITY OF DALLAS.
    (745 SE2d 721)
   McMlLLIAN, Judge.

J. N. Legacy Group, Inc. (“J. N.”) appeals the trial court’s grant of summary judgment in favor of the City of Dallas, Georgia (the “City’) on J. N.’s claims for nuisance and violation of ministerial duties in failing to maintain the public sanitary sewer system that serves J. N.’s property. For the reasons set forth below, we affirm the trial court’s grant of summary judgment on J. N.’s claim of a violation of ministerial duties and reverse the grant of summary judgment as to its nuisance claim. Additionally, we affirm in part and reverse in part the trial court’s order granting partial summary judgment with regard to J. N.’s damage claim seeking the cost of mold remediation.

J. N. is an investment group founded by three siblings, David L. Butler, Jeff Butler and Patti Pruitt (sometimes referred to herein as the “Butler siblings”), which acquired the property at 2025 Marshall Huff Road in Dallas, Georgia (the “Property’) in 1999. The Property contains a 5,000-square-foot building with a metal roof, metal walls and a cement floor (the “Building”). The majority of the Building was used as a warehouse or work area, with a small portion used for an office. At the pertinent time, the walls and ceiling of the office space were finished with sheetrock, and the floor was carpeted.

Sometime during the summer of 2009, Michael Floy Brannan began leasing the Property from J. N. to operate his business. On or before Monday, September 21, 2009, following heavy rains, the sewer line connecting J. N.’s property to the street backed up, allowing sewer water to enter the Building through the toilet (the “2009 incident”). Brannan discovered the problem and observed that the sewer water, which smelled like raw sewage, covered the floor of the entire office area, rising to a level of approximately one and one-half to two inches. It also seeped under the doors to extend ten to twelve feet or more into the warehouse area.

Brannan notified J. N., and J. N. notified the City, which sent its sewer foreman, Lee James, and another man out that day to inspect the problem. But per City policy, they did not enter the Building. James stated that they checked the manholes near the Building, however, and observed that the sewer water was flowing at a high level, but within the normal range. The water was in the trough below the manhole, and he observed no toilet paper or fecal matter. Nevertheless, because water had backed up into the Building, he recommended installation of a backflow prevention device on the sewer line leading to the Building.

The City retained ServPro of Douglasville/Carrollton (“ServPro”), which came out the next day to clean the Building. ServPro removed the carpet and set up fans and dehumidifiers for approximately three days to dry out the office. The ServPro workers also sprayed a chemical to try to remove the odor.

Later, at Brannan’s request, Tina Clark, the City’s acting public works manager, visited the Property, and Brannan accompanied her as she inspected the premises. During that inspection, Brannan observed that a manhole at the back of the Building had water gushing out of it, with toilet paper and fecal matter all over the ground.

Despite ServPro’s treatment, the odor lingered until J. N. had the affected sheetrock removed and replaced several months later. J. N. reduced Brannan’s rent during the period in which he did not have full use of the office due to the lingering odor. In addition to replacing a portion of the sheetrock, J. N. installed new tile flooring, replaced the bathroom vanity and a bookshelf, and repainted the walls, all for a total cost of just under $5,000.

At some point after the 2009 incident, the City hired a plumbing company to install a backflow preventer to stop the water from backing up into the Building on future occasions. The Property has experienced no further problems with sewage overflow since the installation of the device. According to Kendall Smith, the City’s former public works manager, the City had previously attempted to install a backflow preventer after an earlier sewer backup on the Property. Smith could not remember the date of the earlier incident, only that it occurred before the 2009 incident when he was still the public works manager (the “first incident”). On that occasion, the sewage flowed into buildings located at both 2025 and 2029 Marshall Huff Road. The City paid to clean the properties, and it hired a company to install backflow preventers on the lines going into each location. Smith believed that the backflow devices had been installed on both lines, but after the 2009 incident, the City discovered that a backflow preventer had not been installed on the line leading to the Building at 2025 Marshall Huff Road, so the City installed one at that time. Additionally, after the first incident, the City inspected the lines with a camera and found nothing other than a small stick blocking the line. The lines were again “camera’d” at some point after the 2009 incident, and no blockage or other problems were detected.

At a meeting of the City Council in November 2009, Clark presented J. N.’s request for reimbursement of $2,709.66, its cost for replacing the office carpet with tile, but the council took no action on the request, which had the effect of denying the request.

J. N. subsequently filed this lawsuit, and the City filed two motions for summary judgment on J. N.’s claims. In the first motion, the City asserted that a municipality has no liability for the negligent maintenance of its sewer-drainage system, although it may be liable for the maintenance of a nuisance. The City asserted, however, that J. N. had failed to establish the existence of a nuisance in this case because David Butler testified in his deposition that the 2009 incident was the only sewer overflow that had occurred at the Property since J. N. acquired it. In the second motion, the City sought partial summary judgment on J. N.’s claim to recover the cost of mold remediation on the ground that J. N. failed to establish that the 2009 incident caused any mold or bacteria problem in the Building. Following a hearing on the motions, the trial court granted the City summary judgment on all of J. N.’s claims, without stating the basis for its ruling.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment asa matter of law. A trial court’s grant of summary judgment is reviewed de novo on appeal, construing the evidence in the light most favorable to the nonmovant. Once the party moving for summary judgment has made a prima facie showing that it is entitled to judgment as a matter of law, the nonmovant must then come forward with rebuttal evidence sufficient to show the existence of a genuine issue of material fact.

(Citation omitted.) Lore v. Suwanee Creek Homeowners Assn., 305 Ga. App. 165 (699 SE2d 332) (2010).

1. J. N. asserts that the trial court erred in dismissing its claim for a violation of the City’s ministerial duties because the City did not specifically argue the issue before the trial court in its motion for summary judgment. To the contrary, however, the City properly addressed the issue in both its brief and at the hearing as part of its argument regarding J. N.’s nuisance claim when it asserted that it had no negligence liability for maintaining the sewer line.

Traditionally, municipalities have been subject to suit for negligent performance or nonperformance of their ministerial functions while enjoying immunity from suit for the negligent performance or nonperformance of their governmental or discretionary functions. See OCGA §§ 36-33-1; 36-33-2; Tamas v. Columbus, 244 Ga. 200, 202 (259 SE2d 457) (1979).

Early County v. Fincher, 184 Ga. App. 47, 49 (360 SE2d 602) (1987) (on motion for rehearing). And it is well settled that “the duty of a city to maintain its sewerage-drainage system in a good working and sanitary condition is a governmental function,” for which no liability against the municipality exists in an action for negligence. (Citation omitted.) Foster v. Mayor &c. of Savannah, 77 Ga. App. 346, 349 (48 SE2d 686) (1948). See also City of Rome v. Turk, 235 Ga. 223, 224 (1) (219 SE2d 97) (1975).

Although J. N. frames its claim for violation of a ministerial duty as a breach of a duty to maintain the easement through which the sewer line ran, we have located no authority indicating that the language of an easement somehow alters the nature of the City’s governmental function in maintaining its sewer lines. To the contrary, a municipality may not alter the extent of its liability by contract, because “only the legislature has the authority to enact a law that specifically waives a municipality’s sovereign immunity.” (Citations omitted.) CSX Transp., Inc. v. City of Garden City, 277 Ga. 248, 249 (1) (588 SE2d 688) (2003) (city cannot alter its liability by entering into a contract to indemnify a third party in connection with the installation of sewer and water lines on the property). “Thus, pretermitting whether [J. N.] might have a viable negligence claim against a private defendant [for a breach of duty in connection with the easement, its] negligence action could not survive against the City based on sovereign immunity.” Goode v. City of Atlanta, 274 Ga. App. 233, 235 (1) (617 SE2d 210) (2005) (no action for negligence existed against city for damages incurred when water main ruptured, causing water and mud to flood plaintiff’s basement).

Accordingly, J. N. can state no claim for the violation of a ministerial duty against the City in connection with its maintenance of the sewer system, and the trial court properly granted the City’s motion for summary judgment as to that claim.

2. But “[w]hile a municipality enjoys sovereign immunity from liability for negligent acts done in the exercise of a governmental function, it may be liable for damages it causes to a third party from the creation or maintenance of a nuisance.” (Citation omitted.) Hibbs v. City of Riverdale, 267 Ga. 337, 337-338 (478 SE2d 121) (1996). See also Mayor &c. of Savannah v. Palmerio, 242 Ga. 419, 426 (3) (g) (249 SE2d 224) (1978) (a municipality “maybe liable for damages it causes to a third party from the operation or maintenance of a nuisance, irrespective of whether it is exercising a governmental or municipal function”) (citation omitted). The Supreme Court of Georgia has described a nuisance as “performing a continuous or regularly repetitious act, or creating a continuous or regularly repetitious condition, which causes the hurt, inconvenience or injury” at issue. (Citations omitted.) Palmerio, 242 Ga. at 426 (3) (i).

“The difficulty arises in determining what conduct or act on the part of a municipality will result in the creation or maintenance of a nuisance, as opposed to an action in negligence.” Hibbs, 267 Ga. at 338. To aid in determining whether a nuisance has been created, the Supreme Court of Georgia

[i]n City of Bowman v. Gunnells, 243 Ga. 809, 811 (2) (256 SE2d 782) (1979),... established guidelines for determining whether a municipality will be liable for creating or maintaining a nuisance: the defect or degree of misfeasance must exceed mere negligence (as distinguished from a single act); the act complained of must be of some duration and the maintenance of the act or defect must be continuous or regularly repetitious; and there must be a failure of municipal action within a reasonable time after knowledge of the defect or dangerous condition.

(Footnote omitted.) Id. Notably, “[t]he latter factor requires either knowledge or notice of the dangerous condition.” (Citation omitted.) Earnheart v. Scott, 213 Ga. App. 188, 189 (1) (444 SE2d 128) (1994). See also Kicklighter v. Savannah Transit Auth., 167 Ga. App. 528, 531 (3) (307 SE2d 47) (1983). Applying these factors, the Supreme Court has found that “where a municipality negligently constructs or undertakes to maintain a sewer or drainage system which causes the repeated flooding of property, a continuing, abatable nuisance is established, for which the municipality is liable.” (Citations omitted; emphasis in original.) Hibbs, 267 Ga. at 338.

J. N. asserts that the trial court erred in granting the City summary judgment on its nuisance claim because evidence existed that the Property had been subjected to repeated flooding and that the City had notice of the problem, creating a jury issue as to whether the City had created a nuisance. We agree.

The City moved for summary judgment on the basis of David Butler’s testimony that only one sewer backup occurred while J. N. owned the property, arguing that a single occurrence is not sufficient to establish the creation of a nuisance. See City of East Point v. Terhune, 144 Ga. App. 865, 866 (242 SE2d 728) (1978). Although David Butler may have been aware of only one time in which the sewer overflowed, J. N. presented two rebuttal affidavits identifying other instances of flooding on the Property and the surrounding area.

Fletcher Lewis, who rented the Property prior to Brannan, averred that he leased the Property from mid-1992 to March 2009. He stated that he was

aware from personal experience of recurring problems with the City’s sewer system serving [the Property]. Specifically, during the time [he] was leasing [the Property], there were sewer backups into [the Property], both during the time [he] leased from [the Butler siblings’ father], and later during the time [he] leased from [J. N.].

Although Lewis could not recall the exact number of sewer backups that had occurred, he believed that two had occurred when J. N. owned the Property, and one occurred when it was owned by the Butler siblings’ father. He also recalled that the property next door at 2029 Marshall Huff Road had experienced multiple sewer backups. Although Lewis stated that he told a representative of the City about these recurring problems during an investigation of the 2009 incident, he did not indicate that he ever informed the City about these problems before that incident.

Additionally, Michael Butler, the Butler siblings’brother, averred that his company, Butler Investment Group, Inc., had owned the property at 2029 Marshall Huff Road since 1995. He also stated that he was aware of recurring backup problems at the two properties, including approximately seven to eight sewer backups at 2029 Marshall Huff Road, “two of which caused extensive damage.” Michael Butler identified documentation reflecting that the property at 2029 Marshall Huff Road flooded on July 30, 2006, August 6, 2006, and October 19, 2007. He asserted that these incidents were reported to the City, and the record contains a November 16, 2007 letter from Michael Butler to the City manager submitting a claim for damages resulting from a “sewage spill” at 2029 Marshall Huff Road on October 19, 2007. He also stated that he was aware of at least one backup from the manhole between the two properties in 2003 because he had photographs taken at the time showing the manhole overflowing.

Pretermitting whether any or all of these prior incidents were reported to the City, Kendall Smith acknowledged that when he was public works manager, the City had become aware of at least one prior instance of flooding at both 2025 and 2029 Marshall Huff Road. Although the City determined at that time that backflow preventers were needed on the lines serving each of these properties to prevent future incidents, this corrective action was not taken with regard to the Property at 2025 Marshall Huff Road until after the 2009 incident.

Under these circumstances, we find that a jury issue exists as to whether the City was maintaining a nuisance. The condition involved here, maintaining a sewer line without a backflow preventer, was continuous at least from the time of the first incident until the device was installed after the 2009 incident.

Since there was some evidence in the record to support a finding that [the City] knew or should have known after the first overflow that [a backflow preventer was needed], there is a question of fact whether the [City] was responsible for the second overflow and, thereby, for maintaining a nuisance.

DeKalb County v. Orwig, 261 Ga. 137, 139 (2) (402 SE2d 513) (1991) (finding two occurrences of flooding sufficient to raise a jury issue on existence of nuisance where county was aware of first occurrence, but did not correct problem until after second occurrence). Accordingly, we reverse the trial court’s grant of summary judgment to the City on J. N.’s nuisance claim.

3. J. N.’s appellate brief also contains an enumeration of error asserting that the trial court’s summary judgment order “violates and misapplies the principles of OCGA § 24-9-67.1 and Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U. S. 579 (1993).” In the body of the brief, J. N. argued that the trial court erred in disregarding the testimony and opinions of its experts, noting that any arguments regarding the merits of the expert testimony go to its weight, not to its admissibility. Although J. N.’s brief contains a bare assertion that J. N. presented sufficient evidence from experts to show that its property was damaged from the sewer backup and required further repairs and mediation, J. N.’s argument and citations address only the admissibility of the expert evidence.

But the City never contested the admissibility of the testimony of J. N.’s experts under former OCGA § 24-9-67.1, Daubert or otherwise. Rather, the City argued that the expert testimony failed to connect J. N.’s claim for damages for mold remediation to the alleged nuisance and thus that J. N. failed to establish the element of causation with regard to that damage claim. Because the issue of admissibility was never raised, the trial court’s summary judgment order cannot be construed as a ruling on the admissibility of such evidence. Accordingly, there is nothing for this Court to review in that regard. See generally Hart v. Groves, 311 Ga. App. 587, 588 (1) (716 SE2d 631) (2011) (“This is a Court for correction of errors below, and, in the absence of a ruling by the trial court, this Court has nothing to review.”) (citation and punctuation omitted).

In its reply brief, however, J. N. reiterates that the record contains sufficient evidence, including expert testimony, that its property was damaged from the sewer backup and that the City did not adequately clean the property afterward. Moreover, the factual recitation in J. N.’s initial appellate brief outlines its expert testimony and asserts that the City “mischaracterized and took great liberty with the testimony and opinions of [J. N.’s] experts relating to their view regarding the need for further cleaning and remediation of [the Building].” Accordingly, we will address the issue of whether the trial court properly granted the City’s motion for partial summary judgment as to J. N.’s claim to recover damages for remediation.

In December 2009, approximately three months after the 2009 incident, J. N. hired Michael Beuerlein to conduct a mold assessment of the property. Beuerlein visited the Building on or about December 29,2009, and inspected only the office area. He then prepared a “Mold Assessment and Remediation Protocol” for the Property based on his findings. Beuerlein indicated that any mold resulting from the September 2009 incident should have been present at the time of his inspection three months later. During the inspection, Beuerlein found a few square inches of “light mold growth” on the drywall near the floor in the back office next to the door leading into the warehouse. Overall, however, the mold levels were low, and Beuerlein detected no odors. Beuerlein took a tape sample of the mold and sent it to a lab, which identified the sample as Chaetomium, a mold typically found only in areas with water damage. Beuerlein acknowledged, however, that he had no way of determining that the mold he located was, in fact, related to the 2009 incident. He could only say that it was related to water.

Beuerlein testified that the lab’s confirmation that the substance he discovered was, indeed, mold led to his determination that mold remediation was necessary. Beuerlein testified that any mold growing inside a building can be a problem. To address the mold situation, Beuerlein recommended the removal of a foot of drywall in all directions past the visible mold growth. Therefore, the only piece of drywall that needed to be removed “from a mold perspective” was a small section around the visible spot of mold.

Beuerlein also testified that drywall removal is typically recommended following any sanitary sewer flooding, and any porous items that came into contact with the sewage spill generally should be discarded. When any sanitary sewage or water potentially containing sewage hits drywall, the standard recommendation is to remove two feet from around the affected area because it may potentially be contaminated with bacteria. He explained that a difference exists between mold contamination versus sewage contamination, which generally reflects bacterial contamination. Beuerlein did not test for any bacterial contamination because it was not within the scope of his assignment from J. N.

Nevertheless, the remediation protocol he designed for the Building relied more on the fact that sewage water had been reported in the area than it had to do with the discovery of mold. Without the presence of sewage water, his recommendation for remediation would have been limited to removing the section of drywall immediately surrounding the area where mold was detected.

J. N. also hired David W. Bennett of Crown Construction and Consulting, LLC, to provide an expert evaluation of ServPro’s work in cleaning the Building, and he opined that ServPro “failed to properly remediate the damage resulting from the Category 3 sewage backup incident that affected [the Property].” Although Bennett criticized ServPro’s methodology, he failed to identify any mold, bacteria or other contamination in the Building resulting from ServPro’s allegedly inadequate treatment.

As previously noted, our Supreme Court has determined that the nuisance alleged in this case would be considered a continuing, abatable nuisance. Hibbs, 267 Ga. at 338. And if a nuisance is abatable, “and therefore not necessarily permanent in nature, the measure of damages is the loss in fair market rental value plus actual damages.” (Citation omitted.) Baumann v. Snider, 243 Ga. App. 526, 527-528 (1) (532 SE2d 468) (2000). And where

the nuisance is not of a permanent and continuing character, but one which can and should be abated, the party injured has no right to assume that it will be maintained indefinitely; and his remedy is, not to recover in one action for all past and future damages, but to bring from time to time separate suit[s] for the recurring injuries sustained, instituting each within the period prescribed by the statute of limitations for taking steps to recover damages actually suffered up to the time the action is filed.

(Citation and punctuation omitted.) Burleyson v. Western & Atlantic R. Co., 91 Ga. App. 745, 752 (1) (87 SE2d 166) (1955). See also Langley v. City Council of Augusta, 118 Ga. 590, 598 (45 SE 486) (1903). Therefore, in the context of a continuing, abatable nuisance, evidence showing a possibility of future damage is insufficient to support recovery.

During his inspection three months after the 2009 incident, Beuerlein discovered a small patch of mold on the office wall. Although Beuerlein could not state definitively that the mold resulted from the 2009 incident, it did result from the drywall’s exposure to water. We find this evidence sufficient to create a jury issue as to whether the mold resulted from the drywall’s exposure to the sewer water during the 2009 incident. Beuerlein testified that this mold issue could be remediated by the removal of a relatively small section of drywall, and the cost of that limited remediation may be recoverable if the jury determines that the City had created a nuisance and that the mold was caused by or resulted from that nuisance.

Decided June 27, 2013.

Martin & Jones, Samuel L. Starks, Elizabeth Y. Rodger, for appellant.

Gray, Rust, St. Amand, Moffett & Brieske, Harvey S. Gray, Debra K. Haan, for appellee.

But J. N.’s evidence fails to establish that the 2009 incident led to any bacterial contamination, much less a contamination sufficient to require the extensive remediation outlined in Beuerlein’s report. Although such remediation maybe recommended for any exposure to sewer water, the record does not support the recovery of this expense as actual damages resulting from the alleged nuisance. The record is devoid of any further mold issues or of any actual bacterial contamination in the Building since Beuerlein did not test for bacterial contamination. And the mere possibility or potential for bacterial contamination is insufficient to state a claim to damages for a continuing, abatable nuisance. “If the damage incurred by the plaintiff is only the imaginary or possible result of a tortious act..., such damage is too remote to be the basis of recovery against the wrongdoer.” OCGA § 51-12-8. See also Jaraysi v. Sebastian, 318 Ga. App. 469, 477 (2) (733 SE2d 785) (2012) (damages cannot be established by mere speculation, conjecture and guesswork) (citation omitted). Cf. Hammond v. City of Warner Robins, 224 Ga. App. 684, 690 (482 SE2d 422) (1997) (stigma to realty, in and of itself, is too remote and speculative to be a basis for damages in a nuisance claim).

Accordingly, we affirm the trial court’s grant of partial summary judgment as it relates to any claim by J. N. to recover for the cost of remediation of a potential contamination, but we reverse to the extent that the trial court granted summary judgment on any claim by J. N. to recover for the remediation of any actual contamination found in the Building.

Judgment affirmed in part and reversed in part.

Andrews, R J., and Dillard, J., concur.

       J. N. later amended its complaint to add a claim for breach of contract. The trial court’s order granting summary judgment on all of J. N.’s claims necessarily included that contract claim. Because J. N. does not appeal that portion of trial court’s summary judgment order, however, we do not address that claim on appeal.

       According to the Dallas city manager, the September 2009 rains “caused a lot of flooding around town, not sewer flooding but storm water flooding.”

       Smith held the position of the City’s public works manager from the late 1980s until late 2009 when he was promoted to city manager and Clark took over as public works manager.

       The City posits on appeal, however, that this first incident occurred sometime prior to the summer of 2007.

       We note that J. N.’s appellate brief fails to comply with Court of Appeals Rule 25 (c) (1), and we take this opportunity to remind counsel of this provision, which requires that the sequence of arguments in the brief follow the enumeration of errors and be numbered accordingly. Nevertheless, it appears that J. N. provided argument and citation in support of each enumeration, albeit not in the required order, and we will address them.

       In any event, this claim was subject to dismissal without regard to any evidence submitted on summary judgment, and “a trial court has inherent authority to dismiss sua sponte a complaint in an appropriate case.” (Citation and punctuation omitted.) Paden v. Rudd, 294 Ga. App. 603, 606 (3) (669 SE2d 548) (2008).

       An easement is a contract, as to which the normal rules of contract construction apply. Nat. Hills Exchange, LLC v. Thompson, 319 Ga. App. 777, 778 (736 SE2d 480) (2013).

       J. N. additionally hired David K. Nieman, who owns a remediation restoration company, to estimate the cost of performing Beuerlein’s recommended mold remediation protocol. Although Nieman is certified to remove mold, he is not certified to detect or test for mold and he makes no independent assessments whether remediation is required. In preparing his estimate, he relied solely on Beuerlein’s recommended protocol and provided no evidence of any additional contamination in the building.

       Thus, although Beuerlein testified that the presence of mold on the outside of a wall raises the potential that additional mold exists behind the wall, he indicated that “it [was] not likely that significant amounts of mold are present.” And the mere potential for further mold is insufficient to establish actual damages. J. N. has not pointed us to evidence that any additional mold actually was discovered when the company eventually replaced the drywall in the Building.


source: Caselaw Access Project

author: DOYLE, Presiding Judge.

license: Public Domain

text:
    A11A2073.
    TIDWELL et al. v. HINTON & POWELL et al.
    (744 SE2d 87)
    Decided May 30, 2013
    Reconsideration denied June 28, 2013.

      Joseph H. King, Jr., for appellants.

      James M. Poe, for appellees.
   DOYLE, Presiding Judge.

In Tidwell v. Hinton & Powell, we reversed the trial court’s partial grant of Hinton & Powell’s motion in limine to exclude expert witness testimony on the ground that the trial court erred as a matter of law by excluding the testimony without first evaluating whether such testimony would assist the jury on matters of the amount of damages that were the proximate cause of any legal malpractice if those matters were outside the ken of the normal juror. In Hinton & Powell v. Tidwell, the Supreme Court of Georgia remanded our decision for consideration of its interim decision in Leibel v. Johnson which held that expert testimony is not admissible in a legal malpractice case to show causation because of the case-within-a-case structure of such an action. Accordingly, we vacate our opinion, and based on the reasoning set forth in Leibel, we affirm the partial grant of the motion in limine to exclude the expert testimony of William Gainer as to the proximate cause, damage, and collectability of any ' award in the event that the attorney had not been negligent.

Judgment affirmed.

Ellington, C. J., and Miller, J., concur.

       315 Ga. App. 152 (726 SE2d 652) (2012).

       Id. at 153-154.

        Hinton & Powell v. Tidwell, Case No. S12C1274 (decided Oct. 1, 2012) (unpublished order).

       291 Ga. 180 (728 SE2d 554) (2012).

       See Hinton & Powell, supra.


text:
    A13A0130.
    A13A0670.
    WRIGHT v. SAFARI CLUB INTERNATIONAL, INC. et al. WRIGHT v. WATERBERG BIG GAME HUNTING LODGE OTJAHEWITA (PTY), LTD.
    (745 SE2d 730)
   McMlLLIAN, Judge.

This is the second appearance of this case before this Court. As set forth in the previous appeal and as shown by the record, appellee Safari Club International, Inc. (“SCI”) is “a charitable, non-profit organization dedicated to promoting wildlife conservation and protecting hunting opportunities.” Each year SCI holds a convention and auction in which attendees have the opportunity to bid on various goods, services and hunting excursions, which primarily have been provided to SCIby third parties (“outfitters”). Appellant Joseph Jerry Wright had been a member of SCI since the 1970s and had attended numerous auctions throughout the years.

In 2007, Wright attended SCI’s seminar in Reno, Nevada and was the successful bidder on a 14-day hunting and fishing trip to the Republic of South Africa and Namibia offered and conducted by Waterberg Big Game Hunting, Fishing & Photographic Safaris (“WABI”). WABI subsequently canceled portions of the safari, and Wright brought suit against SCI for breach of contract and violation of the Georgia Fair Business Practices Act (“FBPA”). Wright v. Safari Club Intl., 307 Ga. App. 136, 137 (706 SE2d 84) (2010). SCI filed a motion to dismiss based on Wright’s failure to join WABI as a party to the action. The trial court agreed that WABI was an indispensable party but found that WABI was not subject to the jurisdiction of the court; consequently, the trial court dismissed Wright’s complaint against SCI. Wright appealed to this Court, and we reversed, finding that SCI had not met its burden of establishing that jurisdiction could not be obtained over WABI, and that, therefore, Wright should be given an opportunity to serve WABI and bring it before the court, at which time WABI could pose a challenge to the court’s exercise of personal jurisdiction over it. Id. at 139.

The case was returned to the trial court, andón January 31, 2011, Wright filed a motion for service of process on WABI, a motion for joinder and supporting affidavits, and a second amended complaint against SCI and WABI. SCI did not oppose Wright’s motion, but requested that the trial court issue an order requiring Wright to serve WABI within a specified amount of time.

The trial court granted Wright’s motion to join WABI and ordered that service be attempted in accordance with the Namibian Reciprocal Service of Civil Process Act of 1994 or, alternatively, that service be perfected in accordance with OCGA § 9-11-4 (f) (3) (B) (iii); service was apparently perfected on WABI in accordance with Namibian law in May 2011. On December 2, 2011, SCI filed a motion for summary judgment. On December 30, 2011, Wright filed a motion seeking a default judgment against WABI, which the trial court denied on March 14, 2012, based in part on Wright’s failure to seek an order from the court requiring WABI to file an answer to Wright’s amended complaint.

On March 26, 2012, the trial court granted SCI’s motion for summary judgment and made the judgment final as to SCI under OCGA § 9-11-54 (b). Wright timely filed a notice of appeal from that order, and that appeal was docketed in this Court as Case No. A13A0130. A few days later, the trial court denied Wright’s request for an order directing WABI to answer his amended complaints. Further, the court directed Wright to address WABI’s “status” in the case, noting in a footnote that “because it appears that [Wright] may have improperly added, by amendment, [WABI] without first obtaining leave of the court, [WABI] may be subject to dismissal...”

Wright responded to the trial court’s order, acknowledging that he should have first sought permission of the court before filing his second amended complaint to add WABI as a party, but requesting that the court exercise its discretion to approve his amended complaints and to order WABI to file its answer within 30 days of receipt of the trial court’s order. On April 12, 2012, the trial court issued a “final” order in this case dismissing WABI because of Wright’s failure to seek the court’s leave prior to amending his complaint to add WABI. Wright filed another notice of appeal from this order, and that appeal has been docketed in this Court as Case No. A13A0670. We have now consolidated Wright’s appeals for our review.

Case No. A13A0130

Wright contends the trial court erred by granting summary judgment to SCI on his breach of contract and FBPA claims.

Pertinent to this issue, and viewed in the light most favorable to Wright as the nonmovant, the evidence shows that several months prior to the 2007 convention, SCI began sending its members, including Wright, various publications promoting the auction which contained SCI’s “Auction Program Policies.” The Program Policies were printed in either the back or back and front of the brochures, and included various subheadings, which were in all capitals and set off by bolder type and larger font. One of the subheadings was titled “Auction Buyer Policy,” and provided that “All sales are final and there will be no exchanges or refunds on items or hunts.”

Also relevant here, the evidence shows that immediately following the auction, Wright signed a one-page “Safari Club International Auction Sales Invoice and Buyer’s Agreement” (“Buyer’s Agreement”). The Buyer’s Agreement contained a provision headed “Non-Warranty and Disclaimer of Liability.” The heading was printed in all capitals in larger, bolder print and contained language similar to that contained in the pre-auction promotion publications, including that the “purchase is non-refundable under any and all circumstances ....” Additionally, the Buyer’s Agreement provided that SCI did not perform any of the services covered by the Buyer’s Agreement and did not have any responsibility for the delivery or quality of the services or for any loss or damages related to the performance or nonperformance of the services.

In granting summary judgment to SCI, the trial court found that the disclaimer was valid and enforceable as a matter of law, defeating Wright’s breach of contract claim. Further, the trial court found that neither the fact of the disclaimers nor any other facts showed that SCI had engaged in deceptive and unfair trade practices, and thus also determined that SCI was entitled to summary judgment on Wright’s FBPA claim. As more fully set forth below, Wright challenges these findings.

1. We first consider Wright’s claims under the FBPA.

(a) “A prerequisite to stating a claim for relief under the [FBPA] is the commission of some unfair act or deceptive practice in trade or commerce, from which the Act is designed to protect the public. OCGA § 10-1-391 (a).” Rivergate Corp. v. McIntosh, 205 Ga. App. 189, 192 (421 SE2d 737) (1992).

To be deceptive, a business practice must have “the tendency or capacity to deceive.” Jeter v. Credit Bureau, 760 F2d 1168, 1172 (II) (11th Cir. 1985) (construing the Federal Trade Commission Act (FTCA)). Disclaimers and qualifications are not deceptive if they are “sufficiently prominent and unambiguous to change the apparent meaning of (other unconditional) claims and to leave an accurate impression.” Removatron Intl. Corp. v. FTC, 884 F2d 1489, 1497 (IV) (1st Cir. 1989) (construing the FTCA).

Tiismann v. Linda Martin Homes Corp., 281 Ga. 137, 140 (2) (637 SE2d 14) (2006).

Contrary to Wright’s arguments on appeal, we find that the disclaimers in this case were sufficiently prominent and clear. The Auction Program Policies appeared immediately before or immediately after the sections cataloging the items and services for sale, and each section, including the section titled “Auction Buyer Policy,” was clearly delineated. Likewise, the heading in the Buyer’s Agreement clearly and unambiguously identified the contents of that section as “Non-Warrantees] and Disclaimer of Liability,” and the relevant text of the disclaimer was clearly written and easily understood. Moreover, Wright had the opportunity to read the Auction Buyer Policy containing the no refund policy before he attended the auction and the opportunity to read the Buyer’s Agreement before he signed it. “[I]t is undisputed that nothing was withheld from [Wright] or falsely stated to him and that the provisions which he contends were deceptive appear on the face of the agreement and were available for him to read and to accept or reject before signing.” Tiismann, 281 Ga. at 140 (2).

Thus, the trial court did not err by finding that to the extent Wright’s FBPA claim was based on the disclaimers, that claim failed as a matter of law.

(b) Moreover, although Wright attempts to graft definitions and subsections of the FBPA pertaining to “promotions” onto his claim, this case clearly does not involve a “promotion,” as that term is defined in the FBPA, and this argument is not pertinent. Likewise, as Wright himself argues, this case does not come within the purview of Georgia’s Uniform Commercial Code (UCC), OCGA § 11-1-101 et seq., and we are not bound to analyze the viability of the disclaimers under those provisions. See Tiismann, 281 Ga. App. at 140 (2).

(c) Wright posits in a separate enumeration that the trial court erred by failing to consider whether it is “possible acts or practices beyond the disclaimer of liability could be violations of the FBPA.” Although such a vague assertion of a possible claim is insufficient to withstand summary judgment, in his reply brief Wright asserts more specifically that the general practice of failing to give aggrieved buyers appropriate notice of their lack of remedies constituted an unfair or deceptive trade practice. But this appears to us to be just a re-assertion of his argument based on the insufficiency of the disclaimers, and presents nothing different for this Court to consider. In sum, we discern nothing deceptive, confusing or misleading about the disclaimers that appeared in the pre-auction publications or the disclaimer contained in the Buyer’s Agreement that would give rise to a FBPA claim.

2. (a) We turn now to Wright’s breach of contract claim. Wright contends that there are several disputed issues of fact which preclude summary judgment on this claim, including generally “whether [SCI] can avoid contract liability,” and his related argument that SCI’s “assignment of its rights under the Buyer’s Agreement to WABI does not excuse SCI from being liable under the contract.” Without belaboring these points, we agree with SCI that these arguments “miss the mark.” As SCI states in its brief to this Court, SCI did not assign or delegate its obligations under the Buyer’s Agreement. Rather, the Buyer’s Agreement expressly and plainly provided that the safari trip was to be provided and conducted by WABI and that SCI had no responsibility to deliver the hunt; indeed Wright testified in his deposition that he understood that SCI was not delivering the hunt. And, as a general matter, disclaimers are enforceable under Georgia law unless they violate public policy, e.g., Emory Univ. v. Porubiansky, 248 Ga. 391, 393 (282 SE2d 903) (1981); Bodyslimmer, Inc. v. Sanford, 197 Ga. App. 565, 566 (2) (398 SE2d 840) (1990), and the fact that SCI may have derived some benefit from Wright’s purchase of the safari did not render the disclaimers invalid.

(b) Wright also contends that there is a disputed issue of material fact concerning whether he substantially performed his obligations under the contract. Assuming Wright is correct that this issue is disputed, it is neither material nor relevant to whether the trial court erred by finding that the Buyer’s Agreement disclaimer was valid and enforceable so as to defeat Wright’s breach of contract claim against SCI. This enumeration thus provides no basis for reversal of the trial court’s order.

(c) Wright also contends that a jury should decide whether his prior dealings with SCI served to constitute a mutual departure from the terms of the contract and that a jury should decide “whether the new contract terms are binding on the parties.”

As to this issue, Wright presented evidence that he had been the successful auction bidder over thirty and possibly in excess of fifty times at numerous auctions over the course of approximately twenty years, and that SCI had fully reimbursed him for trips cancelled by an outfitter on approximately four prior occasions. But Georgia law is well established that “matters outside a contract cannot be used to vary or explain the unambiguous terms of an agreement.” Choice Hotels Intl., Inc. v. Ocmulgee Fields, Inc., 222 Ga. App. 185, 186 (1) (474 SE2d 56) (1996). And the Buyer’s Agreement specifically provided that it contained “the entire agreement between the parties and cannot be changed except by a written instrument subsequently executed by the parties hereto.” Further, evidence of a departure or modification of a prior, separate agreement does not constitute evidence of a mutual departure from the contract at issue here and has no bearing on this case. Id. at 187 (1); Minor v. Citizens & Southern Nat. Bank, 177 Ga. App. 115, 117-118 (1) (338 SE2d 466) (1985).

3. Wright next contends that the trial court “incorrectly applied the UCC to determine the validity of the disclaimer” in the Buyer’s Agreement. It is true, as both parties agree, that the UCC has no application here. But nowhere did the trial court specifically cite to the UCC in its summary judgment order, and the cases cited by the trial court for the proposition that nonrefund disclaimers are valid and enforceable were not decided under the UCC. Bonem v. Golf Club of Ga., Inc., 264 Ga. App. 573, 578 (3) (591 SE2d 462) (2003); Matthews v. Riverside Academy, 45 Ga. App. 30 (163 SE 238) (1932). Further, without more, the fact that the trial court used the term “conspicuous” in its order does not show that the trial court applied the wrong legal standard in deciding the enforceability of the disclaimers.

4. Wright next contends that the trial court erred when it found the disclaimer valid and enforceable as a matter of law, arguing that the FBPA’s provision prohibiting “unfair and deceptive acts or practices” controls this issue. However, the issue of whether the disclaimers might give rise to a claim under the FBPA is separate and apart from the issue of whether the disclaimers are enforceable as a matter of contract law. Tiismann, 281 Ga. at 140 (2). And, in any event, as found in Division 1 we discern nothing deceptive or misleading about the disclaimers so as to support a claim under the FBPA.

Additionally, nonrefund provisions are generally enforceable, and Wright has presented us with no reason why the nonrefund provision was not enforceable in this case. Bonem, 264 Ga. App. at 576 (1) (a); Matthews, 45 Ga. App. at 30. To the contrary,

[p]arties to a contract are presumed to have read their provisions and to have understood the contents. One who can read, must read, for he is bound by his contracts. O'Brien Family Trust v. Glen Falls Ins. Co., 218 Ga. App. 379, 382 (3) (461 SE2d 311) (1995). While a legal excuse, such as fraud, may be shown for failing to read, the fraud must prevent the party from reading the contract. Beckwith v. Peterson, 227 Ga. 403, 404 (1) (181 SE2d 51) (1971).

Wyatt v. Hertz Claim Mgmt. Corp., 236 Ga. App. 292, 293 (1) (511 SE2d 630) (1999).

As stated above, Wright did not read the Buyer’s Agreement before he signed it, and he has neither presented a reason why he could not have requested to read it nor evidence that he would have been prevented from reading it. Thus, he is bound by its contents, and the trial court did not err by granting summary judgment to SCI on Wright’s breach of contract claim.

Case No. A13A0670

5. Wright challenges the dismissal of his complaint against WABI, arguing in three related enumerations of error that the trial court erred by finding that the procedural requirements for joinder were not satisfied, that the trial court impermissibly dismissed WABI sua sponte since joinder is a waivable defense which was not raised by WABI, and the trial court’s dismissal of WABI runs afoul of practical concerns for judicial economy. Based on the particular circumstances of this case, we agree with Wright that the trial court’s order dismissing WABI must be reversed.

OCGA § 9-11-15 (a) allows a party to amend his or her pleadings “as a matter of course and without leave of court at any time before the entry of a pretrial order.” But, as our appellate courts have held on numerous occasions, when a party seeks to amend his complaint to add a new party, OCGA § 9-11-15 (a) must be read in pari materia with OCGA § 9-11-21, which requires a court order to add or drop parties. E.g., Clover Realty Co. v. Todd, 237 Ga. 821, 822 (229 SE2d 649) (1976); Odion v. Varon, 312 Ga. App. 242, 244-245 (3) (718 SE2d 23) (2011); Valdosta Hotel Properties v. White, 278 Ga. App. 206, 209-210 (1) (628 SE2d 642) (2006); El Chico Restaurants, Inc. v. Transp. Ins. Co., 235 Ga. App. 427, 428 (2) (509 SE2d 681) (1998); Dollar Concrete Constr. Co. v. Watson, 207 Ga. App. 452, 453 (428 SE2d 379) (1993); Aircraft Radio Systems v. Von Schlegell, 168 Ga. App. 109, 111 (2) (308 SE2d 211) (1983).

As we have explained,

OCGA § 9-11-21 parallels Rule 21 of the Federal Rules of Civil Procedure, and the Federal courts have long construed it to require the obtaining of leave of court when the plaintiff seeks to assert a claim against one who is not already a party to the proceedings. The adding or dropping of parties requires the exercise of a discretion by the court, and, without the requirement that leave of court be obtained in doing so, there could be no exercise of discretion. It is important that the status of parties not be altered or changed save under the supervision of the court. Obtaining leave of court is a requisite.

(Citation and punctuation omitted.) Dollar Concrete Constr. Co., 207 Ga. App. at 453.

Thus, an amendment to a complaint adding a new party without first obtaining leave of the court is without effect. E.g., Valdosta Hotel Properties, 278 Ga. App. at 208-209, and cites; Dollar Concrete, 207 Ga. App. at 453-454, and cites. Although Wright acknowledges these general principles, he argues that the present case is distinguishable from those cases in which a party files an amended pleading adding a new party without ever seeking or receiving leave to do so, pointing to the fact that contemporaneously with filing his amended complaint, he also filed a motion to join WABI, and the trial court did, in fact, grant his motion to add WABI as a party-defendant.

Although we adhere to the general proposition that the court must first grant permission before a party may be added by way of an amendment to a complaint, see El Chico, 235 Ga. App. at 427; Carter v. Church, 791 FSupp. 297 (M.D. Ga. 1992), we agree that this case does not fall squarely within the line of cases in which permission was never given for adding the party. Rather, in this case, it is true, as Wright argues, that “[p]ermission to add [a party] was required, and permission was given.” El Chico, 235 Ga. App. at 429.

Moreover, in addition to granting Wright’s request for joinder, the court also granted Wright’s motion for service of process on WABI, and specifically required Wright to perfect service on WABI within 60 days or face dismissal of WABI. Thus, it is clear, if not explicit, that the trial court believed at that time that no additional pleadings were required before Wright could attempt to serve WABI. Further it is clear, if not explicit, that the trial court considered WABI to have been added as a party since the order provided that WABI would be dismissed if not served within 60 days, an action that would be unnecessary if WABI had, in fact, never been named as a party. And Wright complied with the trial court’s order by perfecting service on WABI in accordance with the laws of Namibia, obviously at some trouble and expense. Moreover, the case proceeded as if WABI was a party until over a year after it granted joinder, the trial court, sua sponte, dismissed WABI for failure to seek permission before adding WABI by amended complaint. Under the particular facts of this case, we conclude that the trial court implicitly if not explicitly gave effect to Wright’s amended complaint at the same time it granted the motion for joinder.

Accordingly, we conclude that the [trial] court erred in dismissing the complaint as to [WABI after] permission to add was given. This conclusion is consistent with the notion of fairness to the parties, because the intent of the [trial court in enteringthe order allowing joinder] is clear, because [adherence to the] order serves the purpose of judicial economy, and most importantly, because effectuating the intent of the [joinder] order avoids the inequitable result of dismissal on [a] hypertechnical basis that a party should have [refiled his amended complaint when it is clear that the trial court intended to give effect to the amended complaint at the time it granted the motion for joinder].

El Chico, 235 Ga. App. at 429.

Judgment affirmed in Case No. A13A0130. Judgment reversed in Case No. A13A0670.

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

Decided June 28, 2013.

Michael D. Barber, for appellant.

Arnall, Golden & Gregory, Christopher K. Withers, Andrew B. Flake, Henry Chalmers, for appellees.

       In addition to the $ 10,000 hid at the auction, Wright also sought to recover certain license and trophy fees he paid to WABI.

       That subsection applies to “[s] ervice upon persons in a foreign country” and applies, inter alia, when there is no internationally agreed means of service. The trial court also ordered Wright to perfect service upon WABI within 60 days, but subsequently granted Wright a 30-day extension because of problems Wright encountered with perfecting service on a party who resided on another continent.

       Although Wright argues in this first enumeration of error that the trial court failed to apply the “appropriate standard of deference for the nonmoving party,” we discern nothing to indicate the trial court did not use the correct standard and thus find this contention to he without merit.

       We have grouped Wright’s arguments according to his claims, and our divisions do not necessarily correspond to the sequence of his enumerations of error.

       Wright does not contend and it does not appear that the disclaimers were ambiguous.

       Although Wright testified that he signed the Buyer’s Agreement in a darkened room while an auction official illuminated the Agreement with a pen flashlight, he also testified that he could have asked to take the Agreement to a place where he could more easily read it hut did not do so.

       OCGA § 10-1-392 (a) (27) defines promotion as
      any scheme or procedure for the promotion of consumer transactions whereby one or more prizes are distributed among persons who are required to be present at the place of business or are required to participate in a seminar, sales presentation, or any other presentation,..., in order to receive the prize or to determine which, if any, prize they will receive. . . .
      See also OCGA § 10-1-393 (b) (16) (defining the term “conspicuous” as it applies to promotions).

       For this reason, we reject Wright’s contention in his fifth enumeration of error that the trial court erred by failing to address his “FBPA Illustrative Example Argument” based on the FBPA promotion practice subsections.

       We note that OCGA § 9-11-21 provides that parties may be added or dropped “on motion of any party or of [the court’s] own initiative.” Thus, a court may order a party joined or dropped even in the absence of a request.

       We note, however, that the better course would have been to file a motion to add the party, along with a proposed amended complaint for the trial court’s consideration, which could then be filed after the trial court had granted the motion.

       The order granting joinder was filed March 9, 2011 and the trial court issued the order dismissing WABI on April 12, 2012.


author: ANDREWS, Presiding Judge.

text:
    A13A0174.
    REYES v. THE STATE.
    (745 SE2d 738)
   ANDREWS, Presiding Judge.

Gerardo Reyes appeals from the judgment of conviction entered on a jury verdict finding him guilty of trafficking in methamphetamine in violation of OCGA § 16-13-31 (e). For the following reasons, we affirm.

1. Contrary to Reyes’s contention, the evidence was sufficient to support the guilty verdict.

The State presented the following evidence. A police officer attempting to serve an arrest warrant at a residence saw a man sitting in the driver’s seat of a car parked in front of the residence. The man in the car was later identified as Reyes. Because Reyes resembled the person the officer was attempting to serve, the officer walked toward the car to speak to Reyes. The officer saw that Reyes had a blanket in his hand and heard him cry out in a nervous and agitated manner as he approached. Before the officer said anything, Reyes stated, “I can’t go to jail, can you guys give me a break.” The officer saw that a rear window in the car had been broken out, and he saw Reyes put the blanket on the front passenger seat. When he reached the car, the officer saw what appeared to be the tip of a gun protruding from under the blanket on the front passenger seat. The officer ordered Reyes to get out of the car, and as he got out, the officer saw another gun on the driver’s floorboard. In a search of the car, the officer found a handgun under the blanket on the front seat and another handgun on the driver’s floorboard. In the search, the officer also found suspected methamphetamine concealed in a bag in a fold of the blanket that Reyes held in his hand and placed on the seat. As the officer picked up the blanket, Reyes spontaneously told the officer that the blanket was a birthday gift for his baby. Reyes also had $905 cash on his person. Evidence showed that Reyes did not own the car. The officer, who had training and experience relating to illegal narcotics, testified that the amount of the suspected methamphetamine had a street value of about $10,000. Aforensic chemist from the State Crime Lab testified that he tested and weighed the suspected methamphetamine, and that it tested positive for methamphetamine and weighed 33.50 grams.

In his defense, Reyes testified that his father was the landlord at the residence; that he was there to “fix some pipes” and to collect the rent; and that the cash on his person was the collected rent money. Reyes said that the car “wasn’t moveable”; that it belonged to “[t]he guy that lives there”; and that he had been in the car for about ten minutes before the officer arrived because “the guy there” asked him to fix the car’s radio. Reyes said that nothing in the car belonged to him, and that he had no knowledge that any methamphetamine was in the car. He said that he had no recollection of a blanket in the car and never held a blanket in his hand, and he denied making any statements to the officer.

On appeal from his criminal conviction, Reyes is no longer entitled to the presumption of innocence, and the evidence is viewed in a light most favorable to the guilty verdict. Parker v. State, 220 Ga. App. 303 (469 SE2d 410) (1996). Viewed in favor of the guilty verdict, the evidence, direct and circumstantial, showed that Reyes had either actual or constructive possession of the methamphetamine.

[T]he law recognizes that possession can be actual or constructive. ... A person has actual possession of a thing if he knowingly has direct physical control of it at a given time. A person who, though not in actual possession, knowingly has both the power and intention at a given time to exercise dominion or control over a thing is then in constructive possession of it.

Holiman v. State, 313 Ga. App. 76, 78 (720 SE2d 363) (2011) (citations and punctuation omitted). “A finding of constructive possession of contraband cannot rest upon mere spatial proximity to the contraband, especially where, as here, the contraband is hidden.” Mitchell v. State, 268 Ga. 592, 593 (492 SE2d 204) (1997). Moreover, “Evidence of mere presence at the scene of the crime, and nothing more to show participation of a defendant in the illegal act, is insufficient to support a conviction.” Whipple v. State, 207 Ga. App. 131, 132 (427 SE2d 101) (1993) (citation and punctuation omitted).

The evidence showed more than Reyes’s mere presence at the scene of the crime or mere spatial proximity to the methamphetamine. When the officer approached the car, Reyes was holding a blanket in his hand which he then placed down on the front passenger seat of the car. Reyes admitted that the blanket belonged to him; told the officer “I can’t go to jail”; and asked the officer to “give me a break.” The officer immediately discovered methamphetamine hidden in a fold of the blanket. This was evidence sufficient to allow the jury to conclude that Reyes was in actual possession of the methamphetamine when the officer approached the car, and that Reyes subsequently hid the methamphetamine by placing it in a fold of the blanket as he put the blanket on the adjacent seat. These circumstances linked Reyes to the methamphetamine hidden in the blanket on the seat and showed that he retained constructive possession with both the power and intention to exercise dominion or control over the methamphetamine. Evidence also showed that the State Crime Lab confirmed that the substance found in the blanket was methamphetamine weighing 33.50 grams, and that it had a street value of $10,000. As to the circumstances showing that Reyes knowingly had constructive possession of the methamphetamine, the proved facts were not only consistent with the hypothesis of guilt, but excluded every reasonable hypothesis save thatof guilt. Former OCGA § 24-4-6. The evidence was sufficient for the jury to find beyond a reasonable doubt that Reyes knowingly had actual or constructive possession of 28 grams or more of methamphetamine, or a mixture containing methamphetamine, and was therefore guilty of trafficking in methamphetamine in violation of OCGA § 16-13-31 (e). Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

2. Reyes claims the trial court erred by failing to give his orally requested jury instruction on “mere presence” because this was his “sole defense.”

A trial court is required to instruct the jury sua sponte on a defendant’s “sole defense” if supported by some evidence. Tarvestad v. State, 261 Ga. 605, 606 (409 SE2d 513) (1991). But the rule that “mere presence” at the scene of a crime is insufficient to convict was not Reyes’s “sole defense” because “mere presence” is not recognized as a separate and discrete defense to a criminal charge. Muhammad v. State, 243 Ga. 404, 406 (254 SE2d 356) (1979). Rather, the “mere presence” rule “is really a corollary to the requirement that the state prove each element of the offense charged.” Id.; see State v. Johnson, 280 Ga. 511, 513, n. 3 (630 SE2d 377) (2006) (“equal access” by others to defendant’s car was not “sole defense”; properly viewed, the defense was that the State failed to prove the elements of the charged offense). The trial court correctly instructed the jury on the State’s duty to prove each element of the charged offense beyond a reasonable doubt, and fully instructed the jury on the law of circumstantial evidence. Under these circumstances, the trial court did not err by failing to charge on “mere presence.” Muhammad, 243 Ga. at 406; Parker v. State, 270 Ga. 256, 258 (507 SE2d 744) (1998), overruled on other grounds, Linson v. State, 287 Ga. 881, 886 (700 SE2d 394) (2010).

3. Reyes contends that the trial court erred by failing to sua sponte give a jury instruction on the rebuttable presumption that methamphetamine found hidden in the car was in the exclusive possession of the car’s owner.

Citing to Walden v. State, 196 Ga. App. 844 (397 SE2d 182) (1990), Reyes claims that he was entitled to this instruction as part of his “sole defense” that he was not the owner or driver of the car; that he was “merely present” in the car to fix the radio for the owner; and that he had no knowledge that methamphetamine was in the car. In Walden, a car passenger was charged with constructive possession of cocaine found in a car also occupied by the driver/owner and another passenger. Id. at 844. All three occupants were jointly charged with cocaine trafficking based on possession of the cocaine found in the car. Id. Walden found that the passenger’s “sole defense” was that he was a “mere passenger in the car” without actual or constructive possession of the cocaine, and that to adequately present this defense to the jury the passenger was entitled to jury instructions: (1) that a rebuttable presumption existed that the driver/owner had exclusive possession of the cocaine in the car; and (2) that evidence showing that a person or persons other than the driver/owner had equal access to the cocaine in the car may or will, depending on the strength of the evidence, overcome the presumption that the cocaine was in the exclusive possession of the driver/owner. Id. at 844-845; see Castillo v. State, 166 Ga. App. 817, 821-822 (305 SE2d 629) (1983) (setting forth the “rebuttable presumption” and “equal access” rules in the context of automobiles). We find that Walden wrongly decided that the accused passenger was entitled to jury instructions on the “rebut-table presumption” and the “equal access” rule as part of the passenger’s “sole defense” of “mere presence.”

Where an owner or driver of an automobile has exclusive possession of the automobile, the inference is that the owner or driver has exclusive possession of contraband found in the automobile. Farmer v. State, 152 Ga. App. 792, 794-797 (264 SE2d 235) (1979); Castillo, 166 Ga. App. at 821-822; Fears v. State, 169 Ga. App. 172, 173 (312 SE2d 174) (1983); Ledesma v. State, 251 Ga. 487 (306 SE2d 629) (1983). “[T]his inference has been referred to as a rebuttable presumption.” Farmer, 152 Ga. App. at 795 (citation and punctuation omitted). The presumption is rebuttable and does not apply where evidence shows that a person or persons other than the owner or driver had equal access to the automobile and thus equal opportunity to possess the contraband. Fears, 169 Ga. App. at 173; Ledesma, 251 Ga. at 487.

As set forth above, the owner/driver and the two passengers in Walden, supra, were charged with joint constructive possession of the cocaine based on equal access to the car. Accordingly, there was no evidentiary basis in Walden for a presumption that the owner/driver had exclusive possession of the cocaine, and the trial court gave no instruction on the presumption. Castillo, 166 Ga. App. at 821-822; Farmer, 152 Ga. App. at 794-796; Fears, 169 Ga. App. at 173. Because no presumption arose in Walden that the owner/driver had exclusive possession of the cocaine, there was no basis for jury instructions on “equal access” which “is merely a defense available to the accused to whom a presumption of possession flows.” Johnson, 280 Ga. at 513 (citation and punctuation omitted); Wiggins v. State, 258 Ga. App. 703, 704-705 (574 SE2d 896) (2002). Moreover, because no presumption arose that the owner/driver in Walden had exclusive possession of cocaine found in the automobile, the passenger in the automobile had no right to jury instructions raising the rebuttable presumption (or equal access) to support a defense that he was merely present and did not have possession of the contraband. Thompson v. State, 234 Ga. App. 74, 77 (506 SE2d 201) (1998); Williams v. State, 210 Ga. App. 437, 438-439 (436 SE2d 550) (1993); Palencia-Barron v. State, 318 Ga. App. 301, 306-307 (733 SE2d 824) (2012). Finally, for the reasons set forth in Division 2, supra, jury instructions on the “rebuttable presumption” and “equal access” were not otherwise required in Walden as the passenger’s “sole defense” that he was “merely present” in the car. For all these reasons, the decision in Walden, 196 Ga. App. 844, is overruled.

Based on the facts in the present case, the State did not rely on a presumption that Reyes, the sole occupant of the car, had exclusive possession of the methamphetamine found in the car, and the trial court gave no such jury instruction. Under these circumstances, Reyes had no right to jury instructions raising the rebuttable presumption to support his “sole defense” that he was “merely present” in the car and did not have possession of the contraband. The trial court did not err by failing to instruct the jury on a rebuttable presumption that the methamphetamine found hidden in a car was in the exclusive possession of the car’s owner.

4. Reyes contends that the trial court erred by failing to instruct the jury on knowledge as an essential element of the offense of trafficking in methamphetamine.

Under OCGA § 16-13-31 (e), a person commits the offense of trafficking in methamphetamine when he “knowingly sells, delivers, or brings into this state or has possession of 28 grams or more of methamphetamine ... or any mixture containing . . . methamphetamine. . . .” Specifically, Reyes contends the trial court failed to instruct the jury that knowledge is an essential element of the crime of trafficking in methamphetamine, and that the State had the burden to prove beyond a reasonable doubt that he had knowledge that the crime of trafficking in methamphetamine was being committed. OCGA § 16-13-31 (e).

Because Reyes failed to object to the jury instructions given at the trial, any alleged error in the instructions as given is reviewed on appeal only to determine if those instructions constituted “plain error.” OCGA § 17-8-58 (b); State v. Kelly, 290 Ga. 29, 31 (718 SE2d 232) (2011). Under Kelly, four prongs are considered when analyzing jury instructions for plain error:

First, there must be an error or defect — some sort of deviation from a legal rule — that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error — discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.

Kelly, 290 Ga. at 33 (citations and punctuation omitted; emphasis in original).

“[J]ury instructions must be read and considered as a whole in determining whether the charge contained error.” Hines v. State, 320 Ga. App. 854, 865 (740 SE2d 786) (2013) (citation and punctuation omitted). In relevant part, the trial court instructed the jury that Reyes was charged under the indictment with trafficking in methamphetamine by knowingly possessing more than 28 grams of methamphetamine; that the defendant was presumed innocent; and that the State had the burden to prove every material allegation in the indictment and every essential element of the charged crime beyond a reasonable doubt. As to actual or constructive possession, the court instructed the jury that a person has actual possession of a thing when he knowingly has direct physical control, and constructive possession when he knowingly has both the power and the intention to exercise dominion or control. The court further instructed the jury that there must be a joint operation of act and intention to constitute a criminal violation; that intent is an essential element of any crime which the State must prove beyond a reasonable doubt; and that a defendant will not be presumed to have acted with intent, but intent may be inferred from the proven circumstances. Finally, the court instructed the jury that to obtain a conviction on circumstantial evidence alone, the proven facts must not only be consistent with the theory of guilt but must exclude every reasonable theory save that of guilt.

Considered as a whole, the above instructions substantially covered the knowledge instruction that Reyes claims should have been given. Copeland v. State, 263 Ga. App. 776, 780 (589 SE2d 319) (2003); Smallwood v. State, 296 Ga. App. 16, 25 (673 SE2d 537) (2009), overruled on other grounds, Stephens v. State, 289 Ga. 758, 759, n. 2 (716 SE2d 154) (2011); Hines, 320 Ga. App. at 865. Accordingly, we find under the first Kelly prong that there was no deviation from any legal rule and therefore no plain error.

5. Reyes claims that his trial counsel was ineffective because he failed to object to the trial court’s failure to instruct the jury on “mere presence” as his “sole defense.”

To obtain reversal of a conviction based on a claim of ineffective assistance of counsel, a defendant has the burden of proving that counsel’s performance was deficient, and that, but for the deficiency, there was a reasonable probability the outcome of the trial would have been different. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Terry v. Jenkins, 280 Ga. 341, 342 (627 SE2d 7) (2006). To establish deficient performance, a defendant must show that counsel’s performance fell below an objective standard of reasonableness under the circumstances confronting counsel at the time without resorting to hindsight. Strickland, 466 U. S. at 689-690; Franks v. State, 278 Ga. 246, 250 (599 SE2d 134) (2004). In considering adequacy of performance, trial counsel “is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Strickland, 466 U. S. at 690. “A claim of ineffective assistance of counsel is a mixed question of law and fact: we accept the trial court’s factual findings unless clearly erroneous, but we independently apply the legal principles to the facts.” Franks, 278 Ga. at 250.

Connelly v. State, 295 Ga. App. 765, 768-769 (673 SE2d 274) (2009).

We find no basis for concluding that trial counsel’s failure to object to the lack of a jury instruction on “mere presence” was deficient performance. As set forth in Division 2, supra, the defense of “mere presence” at the scene of a crime did not constitute Reyes’s “sole defense.” Rather this defense “is really a corollary to the requirement that the state prove each element of the offense charged.” Muhammad, 243 Ga. at 406. Because the trial court gave instructions on the State’s duty to prove each element of the charged offense beyond a reasonable doubt, and on the law of circumstantial evidence, the “mere presence” defense was substantially covered, and there was no error in failing to give a specific instruction on “mere presence.” Smoot v. State, 316 Ga. App. 102, 114-115 (729 SE2d 416) (2012); Muhammad, 243 Ga. at 406; Parker, 270 Ga. at 258. The trial court did not err by denying Reyes’s motion for a new trial on the basis that trial counsel was ineffective.

Decided June 28, 2013.

Frances C. Kuo, for appellant.

Tracy Graham-Lawson, District Attorney, Elizabeth A. Baker, Assistant District Attorney, for appellee.

Judgment affirmed.

Ellington, C. J., Barnes, P. J., Phipps, P. J., Doyle, P. J., Miller, Dillard, McFadden, Boggs, Ray, Branch and McMillian, JJ., concur.


text:
    A13A0224.
    HARRIS v. HOLDER CONSTRUCTION COMPANY et al.
    (745 SE2d 744)
   ANDREWS, Presiding Judge.

Nikki Harris appeals after the trial court granted summary judgment to Holder Construction Company and Premier Contract Carpets on Harris’s claims of negligence after she fell while walking across a carpet that was covering a hole in the subflooring of the building where she worked. After reviewing the record, we conclude that there was no error and affirm.

Summary judgment is proper when the court, “viewing all the facts and reasonable inferences from those facts in a light most favorable to the non-moving party, concludes that the evidence does not create a triable issue as to each essential element of the case.” Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (405 SE2d 474) (1991).

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 and punctuation omitted.) Campbell v. Landings Assn., 289 Ga. 617, 618 (713 SE2d 860) (2011). “[A] defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case, but may point out by reference to the evidence in the record that there is an absence of evidence to support any essential element of the nonmoving party’s case.” Cowart v. Widener, 287 Ga. 622, 623 (697 SE2d 779) (2010).

The record shows that Holder was the general contractor for a renovation project in the Richard B. Russell Federal Building. Premier was the carpet subcontractor, and it contracted with Rosser Floor Covering to install the carpet after the renovation of the flooring was completed.

Harris worked on the sixteenth floor of the building and, approximately three months after the renovation was finished, was walking to a co-worker’s cubicle when her heel went down into a depression in the carpet, causing her to fall against the file cabinets and tear the meniscus in her knee.

After the carpet was removed, inspection revealed a “Walker” duct approximately two and a quarter inches in diameter that was not covered with a steel plate. The duct was filled to within an inch and a quarter of the top with fiberglass insulation debris and broken concrete. Abercrombie, the superintendent for Holder Construction, explained that a Walker duct was a type of electrical floor outlet from the time when the electrical wires ran through “floor troughs.” These electrical wires were abandoned and a new electrical system was installed during the renovation. The wires were left in the trough and the Walker ducts were covered with metal plates.

Abercrombie testified at his deposition that he walked the floors before the carpet was installed, looking for cracks or anything that was not level. He stated that, had the exposed duct existed at that time, Holder would have put a metal plate over it, anchored it, put a cement self-leveling material around it, and then smoothed it out.

Likewise, Andrew Rosser, who laid the carpet, stated that the concrete floor was swept clean before the carpet was installed. He testified that there were some “nicks” that had to be filled in to make the floor smooth, but he did not see any holes or any area of “weakness.” If he had seen any holes he would have taken care of them himself or told someone else to take care of it before he laid the carpet.

Holder and Premier filed a motion for summary judgment contending that there was no evidence that either of them had actual or constructive knowledge of the defect, and there was no evidence that they had breached any standard of care. They argued that the evidence was consistent with a Walker duct that had been covered previously with cement flooring material and it was this concrete that collapsed into the hole, thus creating the indentation in the carpet that caused Harris’s fall.

The trial court agreed, pointing to the undisputed testimony of both Abercrombie and Rosser that there was no hole present when the carpet was laid down. Further, the testimony was undisputed that there was nothing on the surface of the concrete that gave any indication that the hole was under there. The order stated that Harris had come forward with no evidence to the contrary and, in order to avoid summary judgment, she must point to evidence showing that Holder and Premier had constructive knowledge of the defect; in other words, that they should have known it was there. The trial court held that Harris had not come forward with any evidence, expert or otherwise, that the contractor or carpet layer should have discovered the latent defect.

1. Harris now appeals, arguing that the trial court erred in holding that, without expert testimony, there is no evidence in the record to contradict Holder’s and Premier’s argument that they did not deviate from the applicable standard of care in performing the work and inspections. Harris continues to claim that the hole was there when the carpet was laid and, “[p]ut simply, they just missed seeing the open Walker duct before they laid the carpet.”

As the trial court pointed out, Harris did not show that Holder’s work was the first renovation of the area where she fell, or that the hole in question had not been patched previously at some point prior to the 2007 renovation. Accordingly, the trial court held that Harris must come forward with some evidence to show that defendants failed to exercise the degree of care and skill necessary to locate the improperly patched hole. She did not do so. Harris’s only evidence was that she fell and, when the carpet was pulled up, there was an open Walker duct filled with insulation debris and loose concrete. Harris relies on the inference that because the hole was there when she fell, it must have been there when the carpet was laid.

When a party is relying on inferences from circumstantial evidence to prove a point, not only must those inferences tend in some proximate degree to establish the conclusion sought, but they must also render less probable all inconsistent conclusions. In cases of circumstantial evidence a mere inconclusive inference, or, as the English courts express it, a mere scintilla, is not to be regarded as any evidence, so as to require the submission of its sufficiency to the jury. Allen Kane’s Major Dodge, Inc. v. Barnes, 243 Ga. 776, 781 (257 SE2d 186) (1979). If the circumstantial evidence raises only a mere conjecture as to the conclusion sought, there can be no recovery. Dawkins v. Doe, 263 Ga. App. 737, 740 (589 SE2d 303) (2003).

Ken Thomas of Ga., Inc. v. Halim, 266 Ga. App. 570, 574 (597 SE2d 615) (2004).

The inference that Harris urges, that there was an open hole that neither Holder nor Rosser saw before the carpet was laid is purely speculative and not supported by any evidence. It is difficult to imagine that a hole that size in an otherwise smooth expanse of concrete floor would not have been noticed. Moreover, defendants’ contention that the hole was covered before the carpet was laid is further supported by the additional evidence that this duct was in a walkway that was in use for some months before Harris’s fall and no one noticed any indentation in the carpet.

Because Harris has submitted no evidence that the job was not performed properly and no evidence that Holder or Premier should have or could have discovered any latent defect under the concrete, the trial court’s grant of summary judgment on these grounds was not error.

2. Harris also argues that the trial court erred in granting summary judgment because the only evidence in support of the motion was the testimony of Holder’s project superintendent Abercrombie, which was “vague, evasive, equivocal, and contradictory” as to whether Holder and Premier left the Walker duct uncovered. We disagree.

The pertinent parts of Abercrombie’s testimony were not in any way contradictory. Although he refused to speculate as to how or when the hole became a hazard, he was extremely consistent in his insistence that the hole was not there before the carpet was laid. He also stated unequivocally that when his company repaired that type of hole, they covered it with a metal plate and then applied a leveling material. This testimony never varied.

Further, contrary to Harris’s contention, Abercrombie’s testimony was not the only basis for the grant of summary judgment. Andrew Rosser, who laid the carpet, confirmed that there was no visible defect in the concrete flooring when he put the carpet down. There is no argument that his testimony was evasive or contradictory. Accordingly, this enumeration of error is without merit.

Judgment affirmed.

Dillard and McMillian, JJ., concur.

Decided June 28, 2013.

Albert M. Yates III, for appellant.

Lokey, Mobley & Doyle, G. Melton Mobley, DawnN. Pettigrew, for appellees.

       Apparently Harris’s name changed to Woods at some point during the litigation and the trial court uses that name in its order.