author: Adams, Judge. BLACKWELL, Judge,

text:
    A11A1180.
    BAILEY et al. v. COTTRELL, INC.
    (721 SE2d 571)
   Adams, Judge.

In this products liability case, appellants Steve Bailey and Laura Bailey appeal the trial court’s order granting summary judgment under Indiana law to Cottrell, Inc. in the Baileys’ suit to recover for injuries Steve Bailey sustained when he fell from the top level of a car-hauler/tractor-trailer rig. Because we find that the trial court erred in failing to apply Georgia law to the Baileys’ claims, we reverse.

At all pertinent times, the Baileys were residents of Missouri. Cottrell, Inc. is a Georgia corporation engaged in the design, development and manufacture of car hauling equipment. Steve Bailey worked as a driver for a car-hauling company, Jack Cooper Transport (“JCT”), out of Wentzville, Missouri. The accident at issue occurred in Indiana on October 28, 2005, while Steve Bailey was loading pickup trucks onto his assigned car-hauler, a 1998 Cottrell rig owned by JCT. After Steve Bailey loaded an extended-cab pickup truck with a camper top onto an area called the “headramp,” which is located on top of the tractor, he stepped out of the pickup to dismount from the headramp’s upper level. Steve Bailey, who was wearing work gloves, stuck his right fingers into the top of the doorjamb above the rear door of the pickup, while closing the pickup’s driver door with his left hand. As Steve Bailey closed the door, the air from inside the pickup blew against his right hand, dislodging his fingers. Losing his grip, he fell backward onto the parking lot surface below. Steve Bailey asserts that he sustained traumatic injuries in the fall that have left him disabled.

The Baileys allege that the car-hauler Steve Bailey was using was designed, manufactured and sold by Cottrell with inadequate space for maneuvering and with no fall prevention devices, such as safety chains or grab bars on the rig’s upper level, despite the fact that Cottrell knew that drivers like Steve Bailey would be required to load and unload automobiles from that area. Cottrell counters that Steve Bailey had knowledge of these supposed defects in the rig, as well as the knowledge of the specific risks of falling, and that he understood, appreciated and assumed these risks. The trial court, applying Indiana law, found that Steve Bailey voluntarily assumed the risk of working on the upper level of the car hauler and granted Cottrell’s motion for summary judgment.

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., 289 Ga. 617, 618 (713 SE2d 860) (2011).

1. The Baileys first argue that the trial court erred in applying Indiana law to their claims. Although the injury occurred in Indiana and the Baileys acknowledge that Georgia generally applies lex loci delecti (the law of the place where the tort was committed), they assert that the trial court should have applied the public policy exception to the general rule. The Baileys contend that Indiana law violates Georgia public policy in two respects: (1) Indiana law does not allow a strict liability claim for a product design defect with a risk-utility test, while Georgia does; and (2) Indiana law, as applied by the trial court, eliminated the voluntariness element for an assumption of risk defense, which they contend contravenes Georgia public policy.

In Georgia, “[u]nder lex loci delicti, tort cases are governed by the substantive law of the state where the tort or wrong occurred — in this case, [Indiana].” (Footnote omitted.) Bagnell v. Ford Motor Co., 297 Ga. App. 835, 836 (1) (678 SE2d 489) (2009). See also Dowis v. Mud Slingers, 279 Ga. 808, 816 (621 SE2d 413) (2005) (reaffirming lex loci delecti as the law in Georgia). But as the Baileys correctly note, Georgia recognizes a public policy exception to the rule of lex loci delecti.

Even if an application [of the rule of lex loci delicti] renders the law of another state applicable, the forum, within constitutional limits, is not required to give the law of another state extra-territorial effect. That is only done as a matter of courtesy or comity, which will not be enforced if the law of the other state contravenes the public policy of the forum. See OCGA § 1-3-9; Commercial Credit Plan v. Parker, 152 Ga. App. 409 (263 SE2d 220) (1979).

Fed. Ins. Co. v. Nat. Distrib. Co., 203 Ga. App. 763, 765-766 (417 SE2d 671) (1992).

(a) Georgia law recognizes a product liability claim based upon strict liability against “those actively involved in the design, specifications, or formulation of a defective final product or of a defective component part which failed during use of a product and caused injury.” (Citation omitted.) Davenport v. Cummins Alabama, Inc., 284 Ga. App. 666, 671 (1) (644 SE2d 503) (2007). See OCGA § 51-1-11. Indiana law, however, does not recognize a strict liability claim for design defects:

The Indiana Product Liability Act generally imposes strict liability for physical harm caused by a product in an unreasonably dangerous defective condition. Ind. Code § 34-20-2-1. For actions based on an alleged product design defect, however, the Act departs from strict liability and specifies a different standard of proof: “(T)he party making the claim must establish that the manufacturer or seller failed to exercise reasonable care under the circumstances in designing the product.” Ind. Code § 34-20-2-2.

TRW Vehicle Safety Systems v. Moore, 936 NE2d 201, 209 (1) (Ind. Sup. 2010) (declining to expand the statutory standard of care for product liability claims alleging a design defect). Thus, Indiana only recognizes a negligent design defect claim. Id. at 214 (5). The issue before us, therefore, is whether this distinction in Indiana law violates Georgia public policy. We conclude that it does.

In Alexander v. Gen. Motors Corp., 267 Ga. 339 (478 SE2d 123) (1996), “Alexander was injured while driving in Virginia when the driver’s seat of his General Motors [“GM”] vehicle, purchased new in Georgia, failed in a collision and caused him to be ejected from the vehicle.” The trial court, applying Virginia’s substantive law under lex loci delecti, dismissed Alexander’s strict liability claims because the State of Virginia did not recognize strict liability. This Court affirmed the trial court’s application of Virginia law. Alexander v. Gen. Motors Corp., 219 Ga. App. 660 (466 SE2d 607) (1995). But the Supreme Court reversed, holding that Virginia law contravened the public policy underlying OCGA § 51-1-11, which “was intended to protect those who are injured by defective products placed in the stream of commerce in this state” and that Alexander was entitled to have Georgia law applied to his claims against GM. Alexander v. Gen. Motors Corp., 267 Ga. at 340-341.

Although Indiana recognizes strict liability for manufacturing claims, its failure to recognize a strict liability claim for design defects presents a substantive legal difference. A claim of negligence in an Indiana defective design product liability case differs from a strict liability claim in Georgia in that Georgia has specifically adopted the risk-utility test for determining strict liability as to such claims, while the State of Indiana has specifically rejected this test in favor of a common law negligence analysis. Compare Banks v. ICI Americas, 264 Ga. 732, 734-735 (450 SE2d 671) (1994) (adopting risk-utility analysis set out in Preliminary Draft No. 1 (April 20, 1993) Restatement (Third) of Torts: Products Liability, § 101, Reporters’ Notes to Comment G) with TRW Vehicle Safety Systems v. Moore, 936 NE2d at 209, n. 2 (rejecting risk-utility test under Restatement (Third) of Torts: Products Liability § 2(b) (1997)). This is not a distinction without a difference. The application of the risk-utility test in Georgia allows the factfinder to consider a number of factors, Banks, 264 Ga. at 736 (1), n. 6, an approach that the Supreme Court of Indiana has rejected. Although the Supreme Court of Georgia recognized in Banks that the risk-utility analysis for design defect claims overlaps to a certain extent with a negligence analysis, the Court also stated that “we cannot agree that the use of negligence principles to determine whether the design of a product was ‘defective’ necessarily obliterates under every conceivable factual scenario the distinction Georgia law has long recognized between negligence and strict liability theories of liability.” (Citations omitted.) Id. at 735, n. 3. And since Banks, this Court has reiterated that Georgia’s strict liability law focuses “not on whether the manufacturer negligently failed to use due care but on whether the marketed product was defective” and has “continued to honor” the distinction between negligence and strict liability for design defect claims. (Citations omitted.) SKHand Tool Corp. v. Lowman, 223 Ga. App. 712, 715 (479 SE2d 103) (1996).

This comparison demonstrates that Indiana law and Georgia law are sufficiently dissimilar that applying Indiana law in this case would contravene the public policy of this State as expressed in OCGA § 51-1-11, and the Baileys are entitled to have Georgia law, including Georgia law regarding any defenses to such a claim, e.g., assumption of risk, applied to their claims against Cottrell. See Alexander v. Gen. Motors Corp., 267 Ga. at 340.

(b) Cottrell argues, however, that the Baileys failed to preserve this public policy argument for appeal, because they did not brief it in connection with the parties’ motions for summary judgment. Cottrell is correct that “absent special circumstances, an appellate court need not consider arguments raised for the first time on appeal” in connection with a motion for summary judgment. (Footnotes omitted.) Pfeiffer v. Ga. Dept. of Transp., 275 Ga. 827, 829 (2) (573 SE2d 389) (2002). Nevertheless, we find that the Baileys properly preserved the issue for appellate review in their oral argument at the hearing on Cottrell’s motion for summary judgment.

Following a conference with the trial court, the Baileys filed an expedited motion for summary judgment seeking a determination that Georgia law, not Indiana law, applied to their claims. They asserted two bases for this motion: (1) the untimeliness of Cottrell’s notice of intent to rely on Indiana law and (2) their assertion that Indiana substantive law would apply Georgia law to the claims in this case. The motion further stated:

Should this motion be granted it would obviate the need for the Court and parties to delve into the details of Indiana tort law that Defendants seek to apply. Consequently, Plaintiffs do not waive any arguments that Indiana law does not apply on a basis that involves comparing the particular points of Indiana and Georgia tort and damages law; for example, the argument that Indiana law violate[s] the public policy of Georgia.

Thus, the Baileys did not raise any public policy arguments in connection with their own summary judgment motion, but indicated their intention to raise them in opposition to any arguments based upon Indiana law. The trial court subsequently ruled that Cottrell’s notice of intent was timely and that Indiana law applied, but did not explicitly deny the Baileys’ expedited motion for summary judgment.

Also pending at the time of the Baileys’ motion was Cottrell’s motion for summary judgment based upon Indiana law. In opposing this motion, the Baileys argued that Cottrell’s asserted defenses based upon an “open and obvious” defect and assumption of risk, as Cottrell interpreted Indiana law, would contravene Georgia public policy. The Baileys did not, however, brief any argument that Indiana’s failure to recognize a strict liability defective design claim contravened Georgia’s public policy. Nevertheless, at the summary judgment hearing, the Baileys’ counsel raised what he described as a “monkey wrench” argument that Indiana’s negligence only approach to defective design claims “runs afoul of Georgia public policy,” citing the Supreme Court of Georgia’s opinion in Alexander v. Gen. Motors Corp., supra. This argument was sufficient to preserve the issue for our review. See Pfeiffer v. Ga. Dept. ofTransp., 275 Ga. at 829 (2), n. 11 (contemplating that arguments raised for the first time at a summary judgment hearing would be subject to appellate review by indicating that in such a circumstance, a party should consider filing a transcript or a stipulation under OCGA § 5-6-41 (i) as part of the appellate record); Liberty v. Storage Trust Properties, 267 Ga. App. 905, 911 (2) (600 SE2d 841) (2004) (considering argument on appeal first raised at hearing on motion for summary judgment).

Therefore, because the trial court erred in applying Indiana law, which contravenes Georgia public policy, we reverse the trial court’s order granting Cottrell’s motion for summary judgment.

2. Given our holding in Division 1 above, we need not consider the Baileys’ remaining arguments.

Judgment reversed.

Barnes, P. J., concurs. Blackwell, J., concurs specially.

BLACKWELL, Judge,

concurring specially.

I do not agree with the holding of the majority that the court below should have applied Georgia law in this case, but I do agree that the judgment below ought to be reversed, and for that reason, I specially concur. As to whether Georgia or Indiana law applies, I am unconvinced that the law of the two states is so “radically dissimilar,” see Alexander v. Gen. Motors Corp., 267 Ga. 339, 340 (478 SE2d 123) (1996), that public policy compels the application of Georgia law in this case. Under Indiana law, a defective design claim requires an assessment of whether the manufacturer “exercise[d] reasonable care under the circumstances in designing the product.” TRW Vehicle Safety Systems, Inc. v. Moore, 936 NE2d 201, 209 (1) (Ind. 2010). Under Georgia law, on the other hand, a defective design claim involves an assessment of whether the manufacturer “acted reasonably in choosing a particular product design, given the probability and seriousness of the risk posed by the design, the usefulness of the product in that condition, and the burden on the manufacturer to take the necessary steps to eliminate the risk.” Banks v. ICI Americas, Inc., 264 Ga. 732, 734 (1) (450 SE2d 671) (1994). These standards do not seem “radically dissimilar” to me. Our Supreme Court has cautioned, of course, that the adoption of a reasonableness standard for defective design claims does not “necessarily obliterate[ ] under every conceivable factual scenario the distinction Georgia law has long recognized between negligence and strict liability theories of liability,” id. at 735 (1), n. 3 (emphasis supplied), but neither the Baileys nor the majority persuades me that this case is one in which the differences, if any, between the Georgia reasonableness standard and the Indiana reasonableness standard are meaningful ones. At bottom, the conflict-of-laws analysis of the majority seems to rest mostly upon the fact that the Georgia courts sometimes speak of “strict liability” for defective design claims, notwithstanding that the Georgia standard for such claims is one of objective reasonableness. Accordingly, I am unconvinced that public policy requires the application of Georgia law in this case.

Nevertheless, I think the court below erred when it awarded summary judgment to Cottrell based on the Indiana doctrine of incurred risk. On appeal, the Baileys argue that, even if Indiana law applies, incurred risk requires a voluntary act, and when an employee is required to perform a specific act as a part of his employment, it is for a jury to decide whether his performance of the act is voluntary. Cottrell responds that an amendment of the Indiana Product Liability Act did away with the voluntariness requirement and that, in any event, any question of voluntariness in this case is not one for the jury. I find the arguments of the Baileys on these points persuasive.

At one time, the Indiana Product Liability Act provided that it is a defense to a product liability claim that “the user or consumer . . . knew of the defect and was aware of the danger and nevertheless proceeded unreasonably to make use of the product and was injured by it,” see Cole v. Lantis Corp., 714 NE2d 194, 200 (II) (A), n. 4 (Ind. App. 1999), and under this version of the Act, the Indiana courts consistently held that this incurred-risk defense requires that the use of the product be voluntary. See, e.g., Moore v. Sitzmark Corp., 555 NE2d 1305, 1308 (I) (B) (Ind. App. 1990); DeVoe Chevrolet-Cadillac v. Cartwright, 526 NE2d 1237, 1239 (Ind. App. 1988). Later, the Act was amended, and the word “unreasonably” was removed. See Ind. Code § 34-20-6-3. Cottrell argues that this amendment effectively did away with the voluntariness element of incurred risk, but I am not persuaded. Reasonableness and voluntariness are quite different things, the former being an objective standard, and the latter being a subjective one. Moreover, at least two Indiana appellate judges have said that voluntariness remains a requirement of incurred risk, even under the amended Act. See Vaughn v. Daniels Co., Ill NE2d 1110, 1130-1131 (IV) (B) (Ind. App. 2002), vacated and reversed on other grounds, 841 NE2d 1133 (Ind. 2006). No one cites any other authority on this question, and I must conclude, therefore, that voluntariness remains a requirement of incurred risk under Indiana law.

Under Indiana law, when an employee is required to perform a specific act as a part of his employment, his performance of that act may be rendered involuntary by the circumstances of his employment. See Cole, 714 NE2d at 200 (II) (A); see also Schooley v. Ingersoll Rand, Inc., 631 NE2d 932, 940 (IV) (Ind. App. 1994). In this case, there is evidence that Steve Bailey was required in the course of his employment to go upon the upper level of the car hauler that he drove, that if he failed to do so, he would have lost his job, and that he needed the job to support his family. In cases like this, the Indiana courts have said that whether the employee voluntarily incurred the risk is for the jury to decide. See, e.g., Cole, 714 NE2d at 200 (II) (A); Schooley, 631 NE2d at 940 (IV); Richardson v. Marrell’s, Inc., 539 NE2d 485, 487 (Ind. App. 1989); Meadowlark Farms, Inc. v. Warken, 376 NE2d 122, 133-134 (Ind. App. 1978). For these reasons, I think it was error to award summary judgment to Cottrell based on the doctrine of incurred risk under Indiana law, and I agree with the majority that we must reverse the judgment below.

Decided November 29, 2011

Reconsideration denied December 16, 2011.

Garland, Samuel & Loeb, David E. Tuszynski, for appellants. Hulsey, Oliver & Mahar, Abbott S. Hayes, Jr., Smith, Gambrell & Russell, Melanie S. Stone, for appellee.

       The opinion in S KHand Tool Corp. v. Lowman, 223 Ga. App. 712, 714 (479 SE2d 103) (1996), cited Alexander v. Gen. Motors Corp., 219 Ga. App. 660 (466 SE2d 607) (1995), for this proposition. The Alexander case in turn cited “Maleski, Ga. Products Liability (2d ed.), §§ 2-2, 2-3; Banks v. ICI Americas, 264 Ga. 732 (450 SE2d 671) (1994) (focusing on a risk utility analysis to determine whether a product was defectively designed).” Although the Court of Appeals’ opinion in Alexander was reversed on other grounds in Alexander v. Gen. Motors Corp., 267 Ga. at 340, that reversal did not undermine the validity of this analysis of strict liability law in Georgia.

       The Supreme Court noted that “[sjpecial circumstances could include ‘a jurisdictional challenge, a claim of sovereign immunity, a serious issue of public policy, a change in the law, or (an) error that works manifest injustice.’ See 19 Moore’s Federal Practice, sec 205.0512] at 205-58 (Matthew Bender 3d ed.).” Pfeiffer v. Ga. Dept. of Transp., 275 Ga. 827, 829 (2), n. 10 (573 SE2d 389) (2002).

       The Georgia standard is more specific, in the sense that the Supreme Court of Georgia has identified specific factors that must be considered in assessing “the reasonableness of a manufacturer’s decision-making process.” Banks, 264 Ga. at 735 (1), n. 6, 736. The Supreme Court has cautioned, however, that its identification of specific relevant factors is not a comprehensive or exhaustive one. See id.

       Cottrell says that we should not look to the decision of the Indiana Court of Appeals in Vaughn because it was vacated by the Indiana Supreme Court. No one disputes that Vaughn is not a binding precedent in Indiana. But the Indiana Supreme Court decided the case on another ground, and it did not even discuss voluntariness. Especially in the absence of other authority, I think we still can consider what two Indiana appellate judges have said about the subject, even if their Supreme Court later reversed them on other grounds.

       To the extent that Ferguson v. Modern Farm Systems, Inc., 555 NE2d 1379 (Ind. App. 1990), is inconsistent with the cases cited above, it appears to be an outlier, and I would follow the greater weight of authority.


source: Caselaw Access Project

author: BARNES, Presiding Judge. BLACKWELL, Judge,

license: Public Domain

text:
    A11A1329.
    A11A1330.
    DIXSON v. THE STATE. JACKSON v. THE STATE.
    (721 SE2d 555)
   BARNES, Presiding Judge.

These are companion appeals from the convictions of Margaret J. Dixson and her daughter, Nikeesha Sharay Jackson, for various crimes in connection with a series of shoplifting incidents that occurred at the North Georgia Premium Outlet. In Case No. A11A1329, Dixson was convicted of five counts of misdemeanor theft by receiving and one count of felony fleeing and eluding. She contends on appeal that the evidence was insufficient, and that the trial court erred in refusing to give one of her requested charges. In Case No. A11A1330, Jackson was convicted of one count of felony shoplifting and one count of misdemeanor shoplifting. On appeal she contends that the trial court erred in denying her motion for directed verdict because the evidence was insufficient to support her convictions.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.” Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165) (2004). We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

So viewed, the evidence shows that on January 21, 2009, Dixson, Jackson, and a third woman, Darolynn Patterson, went to the North Georgia Premium Outlet in Dawson County. A deputy with the Dawson County Sheriffs office was shopping in The Children’s Place store when he observed Jackson and Patterson enter the store. He became suspicious of the women because “as soon as they walked into the store, they immediately took a left and just started picking up clothes.” The deputy testified that he found the behavior suspicious because most people walk around and “meander” when they shop. When he observed Patterson appear to put items of clothing in her large multicolored purse, he called the 911 center, reported the incident, and gave the operator a description of the two women. The deputy did not observe Jackson take any clothing.

The deputy followed Jackson and Patterson out of the store and saw them get into a white Mitsubishi car. He testified that when the car pulled away “both females were actually in the car, but the doors were not fully closed when the vehicle took off.” Jackson was in the front passenger seat and Patterson was in the rear seat, but the deputy could not see the driver.

A patrol officer responding to the 911 dispatch observed the white Mitsubishi coming out of the south exit of the outlet mall and pursued the car with its blue lights activated. The officer “observed several items, blue and green clothing being thrown out of the passenger side window.” The officer continued the chase, and radioed dispatch to have someone pick up the tossed items. The white vehicle used the center turn lane to pass several vehicles, then maneuvered around several vehicles waiting for a red light to change by traveling “in the gore area near the little triangle that’s set up to lay out the lane designations.” The white vehicle then “accelerate[d] even harder” and in his attempt to catch up, the officer testified that he “accelerated absolutely as hard as that Crown Victoria would accelerate.”

The officer finally caught up with the vehicle, and the driver pulled over. The driver, who was identified as Dixson, exited the car, and the officer arrested her for fleeing and attempting to elude a police officer and the illegal traffic maneuvers. Jackson and Patterson were detained, and later arrested. Merchandise from five stores — Bath and Body Works, Claire’s, Osh Kosh, The Children’s Place and Carter’s — was retrieved from the vehicle. Employees from the stores identified and testified as to the value of the merchandise. The Bath and Body Works merchandise was valued at $43; the Osh Kosh merchandise at $36.37; the Claire’s merchandise at $29.50; the Carter’s merchandise at $468.34; and The Children’s Place merchandise at $270.

Patterson testified for the State that she, Dixson, and Jackson had stolen clothing from Carter’s and The Children’s Place and put the clothes in Dixson’s vehicle. She also testified that the women knew that the police car was behind them, that Dixson did not immediately pull over, and that Jackson had tossed clothing out of the window. Before trial, Patterson pled guilty to two counts of theft by shoplifting and one count of possession of tools for the commission of a crime.

Case No. A11A1329

Dixson was convicted of five counts of misdemeanor theft by receiving, and one count of felony fleeing and eluding. On appeal she contends that the trial court erred in denying her directed verdict motion on all counts because the evidence was insufficient to show that she received stolen property from the various stores, or that the property was stolen in Dawson County. She also contends that a fatal variance exists between the allegations and the proof because the State’s evidence shows that she was a principal thief rather than a receiver of stolen property. Dixson further contends that the trial court erred in denying her motion in arrest of judgment as to the fleeing and eluding count, and that the trial court erred by not giving one of her jury charges.

The standard of review for the denial of a motion for directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction. Under that standard we view the evidence in the light most favorable to the jury’s verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. 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, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Conflicts in the testimony of the witnesses, including the State’s witnesses, are a matter of credibility for the jury to resolve.

(Citation, punctuation and footnote omitted.) Yarbrough v. State, 241 Ga. App. 777, 780-781 (4) (527 SE2d 628) (2000).

1. Dixson contends that the only evidence the items were stolen was Patterson’s uncorroborated testimony, which was insufficient because Patterson was an accomplice. We do not agree.

Under OCGA § 16-8-7, “[a] person commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen.” A person convicted of OCGA § 16-8-7 “shall be punished as for a misdemeanor except: (1) If the property which was the subject of the theft exceeded $500.00 in value.” OCGA § 16-8-12 (a) (1).

OCGA § 24-4-8 requires that accomplice testimony be corroborated in felony cases where the only witness is the accomplice^] only slight evidence from an extraneous source as to a defendant’s identity and participation is needed to corroborate an accomplice’s testimony. And, such evidence may be entirely circumstantial.

Smith v. State, 257 Ga. App. 595, 597 (1) (571 SE2d 817) (2002). It is for the finder of fact to determine whether the evidence, though circumstantial, is sufficient to warrant a finding that the accused committed the offense. See Hurston v. State, 202 Ga. App. 311, 313 (1) (414 SE2d 303) (1991). Guilt may be inferred from possession of recently stolen property in conjunction with other evidence of knowledge. Id. at 312 (1). “Guilty knowledge may be inferred from circumstances which would excite suspicion in the mind of an ordinary prudent [person].” Id.

Here, in addition to Patterson’s testimony, the deputy observed Patterson and Jackson appear to shoplift at The Children’s Place, after which they got into Dixson’s car. The evidence also shows that Dixson’s car was parked in an isolated area far from the store where the women were observed. Further, Dixson did not stop when police were chasing her, but instead continued to drive evasively while Jackson threw items out of the passenger window. Moreover, there were no receipts showing that the items had been purchased.

It is not required that the corroboration of the testimony given by an accomplice shall of itself be sufficient to warrant a verdict of guilty, or that the testimony of the accomplice be corroborated in every particular. The amount of corroborative extraneous evidence necessary to connect the accused with the commission of the offense lies peculiarly within the province of the factfinder.

(Punctuation omitted.) Emory v. State, 301 Ga. App. 771, 774 (2) (688 SE2d 682) (2009). The evidence corroborating Patterson’s testimony was sufficient under Jackson v. Virginia, supra, to authorize the jury’s determination that Dixson was guilty beyond a reasonable doubt of the theft by receiving.

2. Dixson also challenges the trial court’s denial of her motion in arrest of judgment as to the count of fleeing and attempting to elude police, arguing that it was improperly and incompletely alleged. OCGA § 40-6-395 (a) provides:

It shall be unlawful for any driver of a vehicle willfully to fail or refuse to bring his or her vehicle to a stop or otherwise to flee or attempt to elude a pursuing police vehicle or police officer when given a visual or an audible signal to bring the vehicle to a stop. The signal given by the police officer may be by hand, voice, emergency light, or siren. The officer giving such signal shall be in uniform prominently displaying his or her badge of office, and his or her vehicle shall be appropriately marked showing it to be an official police vehicle.
Count 14 of the indictment charged that Dixson
did unlawfully willfully fail to bring her vehicle to a stop after having been given an audible and visual signal to bring her vehicle to a stop by an officer . . . said officer at the time giving such signal, being in uniform prominently displaying his badge of office, and his vehicle being appropriately marked showing it to be an official police vehicle, while fleeing in an attempt to escape arrest for Theft by Receiving and did flee in traffic conditions which placed the general public at risk of receiving serious injuries in violation of OCGA § 40-6-395. . . .

Dixson argues that the indictment failed to allege every material element of the offense by omitting the “pursuing” element and by not specifying the type of signal given. She contends that she could admit all of the allegations of the indictment and be innocent of the crime of fleeing and eluding because there would be no admission that she attempted to flee from a “pursuing” police officer after having been given a signal to stop by “hand, voice, emergency light, or siren.”

As we have held,
where an accusation charges the accused with having committed certain acts “in violation of” a specified penal statute[,] the accusation incorporates the terms of the referenced Code section. Because an accused cannot admit an allegation that her acts were “in violation of” a specified Code section and yet not be guilty of the offense set out in that Code section, such an accusation is not fatally defective.

(Citation omitted.) State v. Shabazz, 291 Ga. App. 751, 752 (3) (662 SE2d 828) (2008). Thus, the court did not err in denying Dixson’s motion in arrest of judgment.

3. Dixson also contends that the evidence was insufficient to sustain her fleeing and alluding conviction, because while the indictment charged her with failing to stop after receiving an audio and visual signal, she was only given a visual signal to stop. To the contrary, the evidence shows that in addition to activating his blue light, the officer “bumped” his siren several times during the pursuit, and eventually activated his siren. Thus, the evidence was sufficient to authorize the factfinder to find beyond a reasonable doubt that Dixson was guilty of fleeing and eluding. See Weir v. State, 257 Ga. App. 387 (571 SE2d 191) (2002) (conviction for fleeing and eluding affirmed where, after officer activated blue lights and sounded siren twice, defendant drove within the speed limit a short distance to his apartment and parked).

4. Although Dixson contends that the State failed to prove venue, OCGA § 16-8-11 provides that, when prosecuting charges for theft by receiving, “the crime shall be considered as having been committed in any county in which the accused exercised control over the property which was the subject of the theft.” Here, the State clearly demonstrated that venue was proper in Dawson County, where Dixson began driving away in a vehicle containing the stolen goods.

5. We find no merit to Dixson’s contention that her theft by receiving convictions cannot stand because of a fatal variance between the allegations and the proof, in that the evidence showed that she was a principal thief rather than the receiver of stolen items.

“The offense of theft by receiving is intended to catch the person who buys or receives stolen goods, as distinct from the principal thief. An essential element of the crime of theft by receiving is that the goods had been stolen by some person other than the accused.” (Citation and punctuation omitted.) Thomas v. State, 261 Ga. 854, 855 (1) (413 SE2d 196) (1992). Thus, if “direct and uncontested evidence identifies the defendant as the original thief, the defendant cannot be convicted of theft by receiving.” Phillips v. State, 269 Ga. App. 619, 631 (10) (604 SE2d 520) (2004).

However, in this case the direct and uncontested evidence did not identify Dixson as the original thief. While Patterson testified that Dixson was involved in shoplifting the items, Dixson was not with the other two women when the officer saw them concealing clothing in The Children’s Place. Thus, evidence Dixson was the original thief is not uncontested. See Weidendorf v. State, 215 Ga. App. 129, 130 (1) (449 SE2d 675) (1994) (“It is not a requirement of the present law that the State prove the accused did not steal the goods.”).

6. Dixson last contends that the trial court committed reversible error by failing to give her requested charge that “[m]ere possession of stolen goods is insufficient to authorize inference of guilty knowledge, an essential to this crime.” The trial court refused the request upon finding that another of Dixson’s requests, which it did give, covered the same proposition. The requested charge that was given provided that

unexplained possession of recently stolen property, alone, is not sufficient to support a conviction for receiving stolen property, but guilt may be inferred from possession in conjunction with other evidence of knowledge. Guilty knowledge may be inferred from circumstances which would excite suspicion in the mind of an ordinary prudent man.

Because a trial court is not required to instruct the jury in the exact language of a requested charge, especially when the principle of law is covered in another charge, we find no error. Wallace v. State, 277 Ga. App. 280, 281 (2) (626 SE2d 229) (2006); see Velazquez v. State, 282 Ga. 871, 877 (7) (655 SE2d 806) (2008) (“The refusal to give a requested charge ... is error only if it contains information that is not substantially covered by the charge actually given.”).

Case No. A11A1330

Jackson was convicted of felony theft by shoplifting from Carter’s and misdemeanor theft by shoplifting from The Children’s Place. On appeal she contends that the trial court erred in denying her motion for directed verdict as to the two counts. She maintains that the evidence was insufficient to prove that she shoplifted from either place, that the clothes belonged to Carter’s or The Children’s Place, or that they were stolen in Dawson County. We do not agree.

The crime of theft by shoplifting is defined, in relevant part, as follows:

A person commits the offense of theft by shoplifting when he alone or in concert with another person, with the intent of appropriating merchandise to his own use without paying for the same or to deprive the owner of possession thereof or of the value thereof, in whole or in part, does any of the following: (1) Conceals or takes possession of the goods or merchandise of any store or retail establishment. . . .

OCGA § 16-8-14 (a) (1). As noted earlier,

sufficiency of the evidence in a criminal case is set out in Jackson v. Virginia, supra. The relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(Punctuation omitted.) Taylor v. State, 266 Ga. App. 818 (598 SE2d 122) (2004).

Although Jackson contends that the evidence was insufficient to support her conviction for felony shoplifting of the clothing from Carter’s because the only evidence was the testimony of an accomplice, “[sjlight evidence of a defendant’s identity and participation from an extraneous source is all that is required to corroborate the accomplice’s testimony and thus support the verdict.” (Punctuation and footnote omitted.) Brown v. State, 268 Ga. App. 24, 26 (1) (601 SE2d 405) (2004). The jury, not this Court, resolves conflicts in the testimony, weighs the evidence, and draws reasonable inferences from basic facts to ultimate facts. Jackson v. Virginia, 443 U. S. 307 at 318-319 (III) (B).

Jackson was not observed in the Carter’s store; however, in addition to Patterson’s testimony, and the testimony from the Carter’s employee that the retrieved items were valued at more than $400, Jackson’s furtive behavior observed by the deputy in The Children’s Place, and her tossing of the clothing from the passenger window of the car were all evidence from which a jury could reasonably infer Jackson’s guilt. See Cody v. State, 195 Ga. App. 318 (1) (393 SE2d 692) (1990) (“[T]he corroborating evidence itself need not be sufficient to warrant conviction, but only tend to connect and identify [the] defendant with (the) crime.”); see also Scott v. State, 234 Ga. App. 378, 379 (1) (506 SE2d 880) (1998) (testimony as to value from employee familiar with value of stolen items sufficient to authorize felony grade shoplifting conviction).

Regarding Jackson’s misdemeanor conviction for shoplifting from The Children’s Place, no corroboration of accomplice testimony is necessary to support a misdemeanor conviction. See Neal v. State, 152 Ga. App. 270, 272 (1) (262 SE2d 561) (1979). Therefore, based on the evidence adduced at trial, this contention is without merit.

Judgment affirmed.

Adams, J., concurs. Blackwell, J., concurs specially.

BLACKWELL, Judge,

concurring specially.

I concur in the judgment, but I do not agree with all that is said in the opinion of the majority, so I do not join it. Some of my differences with the majority merit no discussion, but one does, and I write separately for that reason. In Division 2, the majority says that the indictment sufficiently charged a violation of OCGA § 40-6-395 — even though the indictment does not mention things that are, Dixson says, essential elements of a violation — because the indictment alleges explicitly that Dixson acted “in violation of OCGA § 40-6-395.” The latter allegation saves the indictment, the majority explains, because an allegation that the accused violated a statute necessarily alleges every element of a violation of the statute. Although several prior decisions of this Court — including State v. Shabazz, 291 Ga. App. 751, 752 (3) (662 SE2d 828) (2008), on which the majority relies — have endorsed this principle, I have doubts about the soundness of the principle.

In Henderson v. Hames, 287 Ga. 534, 537-540 (3) (697 SE2d 798) (2010), our Supreme Court considered whether an indictment sufficiently charged a violation of OCGA § 16-11-108. The Hames indictment alleged that the accused acted “in violation of O.C.G.A. § 16-11-108,” but it did not explicitly allege that the accused consciously disregarded a substantial and unjustifiable risk that his act or omission would cause harm to, or endanger the safety of, another person, which is an essential element of such a violation. 287 Ga. at 538-539 (3). Noting that “[a]n indictment is void to the extent that it fails to allege all the essential elements of the crime or crimes charged,” id. at 538 (3), the Supreme Court concluded that the indictment omitted an essential element of a violation of OCGA § 16-11-108 (a) and that, for this reason, “the indictment was defective.” Id. at 539 (3). In light of Hames, the principle on which the majority relies today seems doubtful.

In this case, however, it is unnecessary to rely on this principle. Dixson says that her indictment was defective because it does not allege that any officer signaled her to stop by “hand, voice, emergency light, or siren,” and because it does not allege explicitly that she attempted to flee or elude a pursuing police officer, but neither allegation, I think, was required here. A violation of OCGA § 40-6-395 (a) ordinarily is only a misdemeanor, but when a violation involves certain aggravating circumstances, which are set out in OCGA § 40-6-395 (b) (5) (A), it amounts to a felony. Dixson was charged with, and convicted of, a felony violation based on the aggravating circumstance described in OCGA § 40-6-395 (b) (5) (A) (iii). To ascertain the elements of the offense, then, we must look to both OCGA § 40-6-395 (a) and (b) (5) (A) (iii).

In pertinent part, OCGA § 40-6-395 (a) provides that it is unlawful for a driver “willfully to fail or refuse to bring his or her vehicle to a stop or otherwise to flee or attempt to elude a pursuing police vehicle or police officer when given a visual or an audible signal to bring the vehicle to a stop,” and it allows that the visual or audible signal “may be by hand, voice, emergency light, or siren.” A violation of OCGA § 40-6-395 (a) amounts to a felony under OCGA § 40-6-395 (b) (5) (A) (iii) if the driver, in the course of the violation, and “while fleeing or attempting to elude a pursuing police vehicle or police officer in an attempt to escape arrest for any offense[, f]lees in traffic conditions which place the general public at risk of receiving serious injuries.” The indictment in this case alleges that Dixson:

did unlawfully [and] willfully fail to bring her vehicle to a stop after having been given an audible and a visual signal to bring her vehicle to a stop by an officer . . . while fleeing in an attempt to escape arrest for [a violation of OCGA § 16-8-7] and did flee in conditions which placed the general public at risk of receiving serious injuries ....

I am unpersuaded that it was necessary to allege in the indictment the precise means by which the audible and visual signal was given or to allege more explicitly that it was an officer from whom Dixson was fleeing. Although the statute specifies that the visual or audible signal can be given “by hand, voice, emergency light, or siren,” OCGA § 40-6-395 (a), nothing says that it must be, and an allegation of a visual or audible signal by unspecified means is, I think, sufficient. The indictment in this case alleges that Dixson was given “an audible and a visual signal to bring her vehicle to a stop,” and the failure to allege the precise means by which the signal was given seems inconsequential to me. And although the indictment does not explicitly allege that it was a police officer from whom Dixson fled, that much is necessarily implied, I think, by the other allegations, including the allegation that Dixson was “fleeing in an attempt to escape arrest” after having been given a signal to stop by an officer. By definition, “fleeing” involves movement away from some condition, person, place or thing, and the context in which “fleeing” is used in this indictment implies quite clearly that it was an officer from whom Dixson fled. Because the indictment includes language that necessarily implies, without reference to a statute or any other external source, this element of the offense, the indictment is sufficient. See State v. Harris, 292 Ga. App. 211, 212 (663 SE2d 830) (2008) (“[T]he failure to allege intent is not fatal where the accusation or indictment employs language that necessarily raises an inference that the requisite criminal intent existed.”).

Decided November 23, 2011

Reconsideration denied December 16, 2011

Robert Kenner, Jr., for appellants.

Lee Darragh, District Attorney, Jennifer D. Hart, Hugh M. \ Hamilton, Assistant District Attorneys, for appellee.

       See also State v. King, 296 Ga. App. 353, 353-354 (674 SE2d 396) (2009); Phillips v. State, 278 Ga. App. 198, 202-203 (2) (a) (628 SE2d 631) (2006); Bishop v. State, 266 Ga. App. 129, 132 (2) (596 SE2d 674) (2004); Bowman v. State, 277 Ga. App. 598, 601 (1) (490 SE2d 163) (1997); Jones v. State, 206 Ga. App. 604, 605 (2) (426 SE2d 179) (1992); Reed v. State, 205 Ga. App. 209, 210 (1) (422 SE2d 15) (1992); Hammock v. State, 201 Ga. App. 614, 615-616 (1) (b) (411 SE2d 743) (1991); State v. Howell, 194 Ga. App. 594, 594-595 (391 SE2d 415) (1990); Burden v. State, 187 Ga. App. 778, 779 (2) (371 SE2d 410) (1988).

       See The Compact Oxford English Dictionary 603 (New ed. 1998) (to “flee” is “ [t]o run away from or as from danger; to take flight; to try to escape or seek safety by flight.”); Webster’s Third New International Dictionary 868 (3d ed. 1976) (to “flee” is “to run away from or as if from danger or evil”); Webster’s New Universal Dictionary 700 (1979) (to “flee” is “to run away or try to escape from; to avoid; to keep at a distance from”).


author: BARNES, Presiding Judge. ADAMS, Judge,

text:
    A11A1407.
    LEDFORD v. THE STATE.
    (721 SE2d 585)
   BARNES, Presiding Judge.

A jury convicted Michael Lee Ledford on two counts of aggravated child molestation, two counts of aggravated sexual battery and two counts of child molestation. Ledford filed a motion for new trial, which the trial court denied, and he now appeals. Following our review, we affirm.

The indictment charged Ledford with sexually assaulting his two stepdaughters on multiple occasions during the period May 1, 2007 through April 25, 2008. Both girls — B. D., who was eight years old at the time of the 2009 trial, and V D., who was six years old — testified about the incidents upon which the charges were based. The State also introduced, pursuant to the Child Hearsay Statute, OCGA § 24-3-16, evidence of statements the two girls made to Upson County Sheriffs Department Investigator Casey Clark, licensed pediatrician Dr. Kathy Mansfield, and forensic interviewer Ashley Wilson, who interviewed the girls as part of the State’s investigation into their allegations. In addition, the State presented testimony from Ledford’s eleven-year-old cousin, who said that when she was three or four, Ledford had touched her vagina with his hand and attempted to put his penis in her mouth. She said they were at their grandmother’s house, in Ledford’s room and the bathroom when this occurred. The cousin testified that Ledford was interrupted when his sister came into the bathroom, saw what was happening and alerted their mother, who “whipped” Ledford. The charges in this case included allegations, inter alia, that Ledford had engaged in similar behavior with his two stepdaughters, and the State proffered this similar transaction testimony for the limited purpose of establishing Ledford’s lustful disposition.

1. Ledford contends that the trial court erred in introducing the similar transaction evidence, which purportedly occurred when he was either 11 or 12 years old. He argues that evidence of his behavior as a child was irrelevant to any sexual activity he is alleged to have committed as an adult.

We review a trial court’s decision on the admission of similar transaction evidence for an abuse of discretion. Condra v. State, 238 Ga. App. 174, 175 (2) (518 SE2d 186) (1999).

The exception to the general rule that evidence of other crimes is not admissible has been most liberally extended in the area of sexual offenses: In crimes involving sexual offenses, evidence of similar previous transactions is admissible to show the lustful disposition of the defendant and to corroborate the victim’s testimony. There need only be evidence that the defendant was the perpetrator of both crimes and sufficient similarity or connection between the independent crime and the offenses charged.

(Footnote omitted.) Brown v. State, 275 Ga. App. 281, 284 (2) (620 SE2d 394) (2005).

“[Yjouth at the time of the similar transaction should be considered when deciding if the testimony should be admitted to show lustful disposition and inclination, i.e., bent of mind.” Stephens v. State, 205 Ga. App. 403, 404 (1) (422 SE2d 275) (1992). The age of the defendant when the similar transaction occurred is relevant when balancing the probative value of the evidence against its potentially prejudicial impact. Id. Depending on the circumstances of the case, the defendant’s age can act to diminish the probative value of the evidence, resulting in the exclusion of the evidence as more prejudicial than probative. To that end, the State must show a “probative connection” between the similar transaction and the crime for which the defendant is presently being tried. Lee v. State, 306 Ga. App. 144,146 (2) (701 SE2d 582) (2010); see Gilham v. State, 232 Ga. App. 237, 239 (1) (501 SE2d 586) (1998) (defendant was 12 or 13 at time he committed sexual battery, but given his obvious understanding of sexual acts committed, his age did not render similar offense inadmissible).

In this case, the cousin, eleven at the time of the trial, testified that when she was three or four, Ledford, who was then either eleven or twelve, touched her on her “private parts” and also attempted to put his “private parts” in her mouth. The two were in Ledford’s bedroom on one occasion and in the bathroom on a separate occasion. The trial court properly considered Ledford’s youth at the time of the similar transaction, along with the significant age difference — 8 or 9 years — between Ledford and the cousin, Ledford’s attempt to conceal his behavior by acting in secluded locations, and the nature of the acts he committed before concluding that the evidence was admissible. Under our law, despite Ledford’s age at the time, this evidence was relevant to show Ledford’s lustful disposition with regard to younger females — the conduct with which he was charged in the present case. See Condra v. State, 238 Ga. App. at 175 (2) (evidence of defendant’s intercourse with his sister when he was a juvenile was admissible to show his bent of mind and lustful disposition with regard to younger family members); compare Maynard v. State, 282 Ga. App. 598, 602-604 (3) (639 SE2d 389) (2006) (similar transaction evidence of the defendant’s sexual misconduct with two male cousins twenty years previously, when the defendant was a minor, was inadmissible in his trial for aggravated child molestation with a female victim). Accordingly, the trial court properly admitted the similar transaction evidence at issue.

2. Ledford also contends that the trial court erred in admitting, pursuant to OCGA § 24-3-16, testimony from Clark, Mansfield and Wilson regarding statements made to them by his two stepdaughters. Ledford asserts that his trial counsel carefully “avoided even a suggestion that he was attacking the credibility of either” child victim during his cross-examination. Thus, he argues that the State had no proper purpose for introducing the children’s hearsay statements but rather introduced the statements for the purpose of improperly bolstering the children’s testimony.

“The trial court has broad discretion in determining the admissibility of child hearsay evidence, and we will reverse a trial court’s ruling on the admissibility of statements under OCGA § 24-3-16 only if the trial court abused its discretion.” (Citation and punctuation omitted.) Phillips v. State, 284 Ga. App. 224, 227 (1) (b) (644 SE2d 153) (2007). We find no such abuse of discretion in the trial court’s decision to allow this testimony under OCGA § 24-3-16. “[T]he credibility of a witness is a matter for the jury, and a witness’ credibility may not be bolstered by the opinion of another witness as to whether the witness is telling the truth.” (Citation and punctuation omitted.) Freeman v. State, 282 Ga. App. 185, 188 (638 SE2d 358) (2006). The witnesses here did not opine as to whether the children were telling the truth but rather testified regarding the children’s statements to them. “This Court has held that the Child Hearsay Statute actually contemplates testimony from both the child and those witnessing the child’s later reaction, even if the hearsay may be ‘bolstering.’ Any ‘bolstering’ can be explored by defendant in cross-examination.” (Citation, punctuation and footnote omitted.) Bell v. State, 294 Ga. App. 779, 781 (4) (670 SE2d 476) (2008). Accordingly, this enumeration is without merit.

3. Ledford further argues that the trial court erred in allowing Mansfield to give opinion testimony to show that the children’s recitation of events was consistent with child abuse. He asserts that this testimony was introduced to improperly bolster the children’s testimony and was not an opinion that was outside the ken of the jury.

The State proffered Mansfield as an expert in the field of child sexual abuse, and with no objection from the defense, the trial court so qualified her. Later during Mansfield’s direct examination, the prosecutor asked, “Based on your training and experience and your expertise in this field of child sexual abuse, were [B. D. and V. D.’s] statements given to you as part of the medical history of this exam consistent with children that have been sexually abused?” Although Ledford’s counsel objected when the prosecutor first posed the question, he clarified his objection during the subsequent colloquy: “As long as he asks . . . that question and he’s asking an expert to her opinion, then I have no problem with it. And if he says he’s not gonna ask the follow-up question, then I think we’re done with the issue.” The prosecutor then asked the question, Mansfield answered in the affirmative, and the prosecutor asked nothing further. Ledford’s counsel began his cross-examination by asking, “So the statements given to you were consistent, correct?” Under these circumstances, Ledford has no ground to contest the trial court’s ruling. “ [I]t is well-established that a party may not complain on appeal of a ruling that he contributed to or acquiesced in by his own action, trial strategy, or conduct.” (Punctuation and footnote omitted.) State v. Madison, 311 Ga. App. 31, 35 (2) (b) (714 SE2d 714) (2011).

In any event, “Georgia law is well established that an expert may express an opinion as to whether medical or other objective evidence in the case is consistent with the victim’s story.” (Citation and punctuation omitted.) Hubert v. State, 297 Ga. App. 71, 78 (7) (c) (i) (676 SE2d 436) (2009). “It follows that. . . opinion testimony that the physical examinations . . . conducted on the children were consistent with their accounts of sexual abuse was not improper.” Id. (clinical social worker expert testified that children’s disclosures and their demeanor during disclosure were consistent with child abuse). See also Osborne v. State, 291 Ga. App. 711, 714 (3) (662 SE2d 792) (2008) (affirming admission of expert testimony that child’s manner of responding during interview not consistent with being coached). Accordingly, we find no error.

4. Finally, Ledford argues that his trial counsel rendered ineffective assistance by switching trial strategy based upon the eviden-tiary rulings of the trial court.

To prevail on a claim of ineffective assistance, appellant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. We need not address both the deficient performance and prejudice prongs of the test if the defendant has made an insufficient showing on either prong.

(Citations and punctuation omitted.) Towry v. State, 304 Ga. App. 139, 143 (2) (695 SE2d 683) (2010). See Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). To prove deficient performance, the defendant “must overcome the strong presumption that counsel’s performance fell within a wide range of reasonable professional conduct[.]” (Citation and punctuation omitted.) Cloud v. State, 290 Ga. 193, 197 (4) (719 SE2d 477) (2011). And “[tjrial tactics and strategy, no matter how mistaken in hindsight, are almost never adequate grounds for finding trial counsel ineffective unless they are so patently unreasonable that no competent attorney would have chosen them.” (Punctuation and footnote omitted.) Gray v. State, 291 Ga. App. 573, 579 (2) (662 SE2d 339) (2008).

Having reviewed the record in this case, we cannot say that trial counsel’s strategic decisions were so patently unreasonable that no competent attorney would have chosen them. Accordingly, Ledford was unable to demonstrate that his trial counsel rendered deficient performance, and thus could not succeed on his ineffective assistance claim.

Judgment affirmed.

Miller, P. J., Phipps, P J., Ellington and Doyle, JJ., concur. Adams and Blackwell, JJ., concur in part and dissent in part.

ADAMS, Judge,

concurring in part and dissenting in part.

Although I concur fully in Divisions 2, 3 and 4 of the majority opinion, I respectfully dissent as to Division 1 because I believe that the State failed to show a logical connection between the proffered similar transaction evidence, which occurred when Ledford was 11 years old, and the charges in this case.

As the majority notes, a “defendant’s youth at the time of the similar transaction should be considered when deciding if the testimony should be admitted to show lustful disposition and inclination, i.e., bent of mind.” Stephens v. State, 205 Ga. App. 403, 404 (1) (422 SE2d 275) (1992). Accordingly, when the State has attempted to introduce similar transaction evidence involving youthful offenders, this Court has consistently required some evidence that the defendant was aware that his actions were unusual or improper. In the Stephens case, this Court affirmed the admission of a similar transaction that occurred ten years earlier when the defendant was thirteen and the victim was eight. The Court determined that the defendant “obviously realized [that] he was not making a common request of his friend” because he offered the victim his motorcycle in exchange for a “blow job” and concluded that “his request was not the faultless act of an innocent child.” Id. Similarly, in Condra v. State, 238 Ga. App. 174, 176 (1) (518 SE2d 186) (1999), this Court found that where the testimony showed that the then 13-year-old defendant “ ‘pursued’ his [then 11-year-old] sister until she consented to perform oral sex upon him,” the defendant’s age and persistence demonstrated his bent of mind. Thus, the similar transaction was admissible. Id. And in Gilham v. State, 232 Ga. App. 237, 238 (1) (501 SE2d 586) (1998), this Court affirmed the State’s introduction of an incident that occurred when the defendant was twelve to thirteen and the victim, his stepsister, was four or five years old. There, the defendant admitted at the time of the prior offense that he knew the difference between a good and bad touch and that he was embarrassed by what he had done to his stepsister. Under those circumstances, this Court concluded that the defendant understood the sexual act committed. Id. In Lee v. State, 306 Ga. App. 144, 146 (2) (701 SE2d 582) (2010), the defendant had previously been adjudicated delinquent for aggravated sexual assault, indecency with a child and assault in connection with an incident that occurred when he was 12 years old and the victim was 11 years old. This Court held that evidence from the earlier incident showing “that Lee bragged about his sexual prowess; demanded that the victim perform oral sex on him; and committed sexual acts with her demonstrated his lustful disposition.” Id.

But here, the State presented no evidence to show that 11-year-old Ledford understood the nature of the acts he allegedly committed against his young cousin. And I know of no authority allowing a presumption of such knowledge in a child of that age. To the contrary, under OCGA § 16-3-1 “[a] person shall not be considered or found guilty of a crime unless he has attained the age of 13 years at the time of the act, omission, or negligence constituting the crime.” Although this Court has held the lack of criminal capacity does not in and of itself render similar transaction evidence inadmissible, it has required additional proof that such a transaction “was not the faultless act of an innocent child” in order to find such evidence admissible. Lee v. State, 306 Ga. App. at 146 (2). Thus, while it may be presumed that a child of 13 years or older is accountable for his actions, Georgia law provides that the same cannot be said for a child under 13 years of age.

The only evidence presented here was the cousin’s testimony that the acts occurred. Nothing in her description of the circumstances indicates that Ledford knew at the time that his actions were wrong or unusual. Although she also testified that the incidents occurred in Ledford’s bedroom and bathroom, both at his grandmother’s house, there was no evidence that he attempted to conceal his actions. In fact, the cousin testified that the door to the bathroom was open at the time Ledford’s sister walked in and saw what Ledford was doing. She also testified that her two-year-old brother had previously walked in and observed what was happening. The evidence does not support the majority’s conclusion that the incidents occurred in a “secluded” location. In fact, nothing in the record indicates whether Ledford performed these acts with a lustful disposition or whether they were “the faultless act[s] of an innocent child.” Stephens v. State, 205 Ga. App. at 404 (1). While Ledford certainly could have been aware of the nature of his acts, it is also possible, for example, that he was merely mimicking behavior he had observed from a movie, television, or elsewhere. Thus, the record provides no evidence on this point to support the introduction of the similar transaction evidence.

Moreover, contrary to the majority opinion, it is apparent from the record that the trial judge at the similar transaction hearing gave little or no consideration to Ledford’s youth in ruling on its admissibility. The judge made very little inquiry into the earlier incident and declined to hear any evidence on the issue. The State indicated only that the acts occurred in a bathroom to argue their similarity to this case and never informed the judge that part of the incident occurred in a bedroom. The prosecutor, in fact, had not even spoken to the victim at the time of the similar transaction hearing. Thus, the trial court had no information from which to conclude that the location of the incident was supposedly secluded when it ruled on the evidence’s admissibility. Rather, he simply looked to the purpose for which the evidence was offered, determined that the proffer was sufficient to show that incident actually occurred based upon the cousin’s contemporaneous outcry to her parents, and relied upon the similarity of the actions to determine that “the existence of one purports to prove the latter transactions.” The judge who presided at trial did not issue any ruling on its admissibility, but rather relied upon the other judge’s earlier ruling.

Decided December 1, 2011

Reconsideration denied December 16, 2011.

Walker L. Chandler, for appellant.

Scott L. Ballard, District Attorney, Robert W. Smith, Jr., Assistant District Attorney, for appellee.

While Ledford’s actions in the earlier transaction as described by his cousin were indeed similar to the actions alleged against him in this case, the earlier acts were alleged to have been committed when Ledford was only 11 years old. The State proffered this evidence to show “he had a lustful disposition when he was 11 years old to victimize young children and he still has that disposition.” Given Ledford’s youth, I would find that the State bore the burden of producing evidence to show that he committed those acts with at least some awareness or knowledge of their nature before they can be admitted as evidence of a lustful disposition. In other words, the State is required to show “some logical connection between the independent act and the crime for which the defendant is being tried.” Hudson v. State, 271 Ga. 477, 479 (2) (521 SE2d 810) (1999). Because the State failed to show that 11-year-old Ledford committed those acts with the requisite awareness or knowledge, it failed to establish a logical connection between the earlier incident and this case. Thus, the trial court abused its discretion in admitting the similar transaction evidence. See Maynard v. State, 282 Ga. App. 598, 604 (3) (639 SE2d 389) (2006) (no logical connection existed between defendant’s action as a child 20 years earlier and his later actions as an adult). I cannot say this was harmless error in this case, where there was no medical evidence of abuse and the case rested primarily on statements provided by the two child victims. Accordingly, as “[the similar transaction evidence] is highly and inherently prejudicial, irrelevant and inadmissible,” Hudson v. State, 271 Ga. at 479 (2), I would reverse Ledford’s convictions on this ground. See Maynard v. State, 282 Ga. App. at 604 (3).

I am authorized to state that Judge Blackwell joins in this opinion.

       The defense called Ledford’s sister, who testified that she never saw Ledford improperly touching his cousin, and his mother, who testified that she was not told of any incident at the time and never punished Ledford for it.

       Although we could locate no evidence of Ledford’s precise age, his counsel argued at the similar transaction hearing that he was 11 or 12 at the time of the incident.

       Ledford’s defense counsel, in fact, responded, “I have absolutely no objection. If [the prosecutor] is not going to tender her, I will.”


author: Mikell, Chief Judge.

text:
    A11A1243.
    A11A1582.
    ZYWICIEL v. HISTORIC WESTSIDE VILLAGE PARTNERS, LLC et al. MUHAMMAD v. HISTORIC WESTSIDE VILLAGE PARTNERS, LLC et al.
    (721 SE2d 617)
   Mikell, Chief Judge.

Both of these appeals turn on a dispute over whether an easement exists in a section of road abandoned by the City of Atlanta to facilitate the Atlanta Development Authority’s plans for a $120 million mixed-use development, Historic Westside Village. The cases are consolidated for our review.

The section of road at issue formerly was known as Harwell Street, N.W., and runs between property owned by defendants-appellants Robert N. Zywiciel and Precious J. Muhammad at what is now 19 Joseph E. Lowery Boulevard, N.W. (“19 Joseph E. Lowery”), and property owned by plaintiff-appellee Atlanta Westside Village Partners, LLP (“Atlanta Westside”) and developed by plaintiff-appellee Historic Westside Village Partners, LLC (“Historic West-side”) at 37 Joseph E. Lowery Boulevard, N.W (“37 Joseph E. Lowery”).

Zywiciel and Muhammad are represented by separate counsel and filed separate appeals from the trial court’s denial of their motion for partial summary judgment and grant of Historic West-side’s cross-motion for summary judgment. Zywiciel and Muhammad both allege that the trial court erred, inter alia, when it found: (1) that Historic Westside and Atlanta Westside have an easement; (2) that this easement was not extinguished by the actions of the City of Atlanta; and (3) that Zywiciel and Muhammad were guilty of laches in delaying their opposition to Historic Westside’s and Atlanta Westside’s use of the easement. Zywiciel alone asserts error as to the trial court’s finding that his counterclaims fail, and additionally appeals from the trial court’s grant, over both his and Muhammad’s objection below, of Historic Westside’s motion to add Atlanta West-side as a party plaintiff. Finally, Zywiciel alone appeals from the trial court’s denial of his motions to extend discovery and for reconsideration of that denial. For the reasons that follow, we affirm in Case No. A11A1582, and in Case No. A11A1243, we affirm and the case is remanded for further proceedings consistent with this opinion.

Summary judgment is warranted if the pleadings and evidence show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. On appeal from a grant of summary judgment, this court conducts a de novo review of the evidence viewed in the light most favorable to the nonmoving party to determine whether any question of material fact exists. “A grant of summary judgment must be affirmed if right for any reason, whether stated or unstated. It is the grant itself that is to be reviewed for error, and not the analysis employed.”

So viewed, the evidence shows that both properties descend from the same original subdivision created in 1907 by S.B. Turman & Co. and described on a plat recorded that same year by Frank and George Edmondson. The original plat shows Harwell Street as a public road. The City of Atlanta eventually acquired much of the land in the original subdivision, then in 1999 abandoned the former Harwell Street to facilitate Historic Westside’s development. Atlanta Westside acquired 37 Joseph E. Lowery on November 4, 2005. Its deed does not reference the plat or the former Harwell Street. Zywiciel and Muhammad bought 19 Joseph E. Lowery on August 22, 2006, via a deed that references both the Edmondson plat and the former Harwell Street.

Historic Westside’s construction of the mixed-use development lasted from November 2005 until July 2007. Both prior to and after Zywiciel and Muhammad purchased 19 Joseph E. Lowery, Historic Westside used Harwell Street to access the development property and for a storage, staging and parking area for construction vehicles. Zywiciel and Muhammad testified that they knew of the construction prior to purchasing their land, as Muhammad had been a tenant at the property since 2003. Before litigation, Muhammad complained to Historic Westside’s agent, alleging trespass. The parties also quarreled over fencing. Historic Westside made unsuccessful overtures attempting to create a reciprocal use easement. Zywiciel and Muhammad unsuccessfully proposed a ground lease, attempting to require Historic Westside to pay $5,000 per month for use of the former Harwell Street as a construction easement, with separate fees for condominium owners to access their parking garage. On May 22, 2007, the City of Atlanta conveyed fee simple title in one-half of the former Harwell Street to Zywiciel and Muhammad. Muhammad subsequently erected a fence blocking access to the parking garage and, Historic Westside alleges, effectively halting construction. This litigation ensued, in which Historic Westside sought a declaratory judgment as to the establishment of an easement, and an injunction.

Case No. A11A1582

1. Muhammad, in both her first and second enumerations, claims the trial court erred in finding that an easement exists in the former Harwell Street. Upon review, we find that the trial court did not err in determining that Historic Westside and Atlanta Westside have an express easement in the former Harwell Street.

In deciding this issue, the trial court relied in large part on Northpark Assocs. No. 2, Ltd. v. Homart Dev. Co., which repeats a long-standing principle:

Where the owners of a tract of land subdivide it into lots, record a map or plat showing such lots, with designated streets and a public park, and sell lots with reference to such map or plat, the owners are presumed to have irrevocably dedicated such streets and park for the use of all of the lot owners in the subdivision.

Zywiciel and Muhammad’s property at 19 Joseph E. Lowery and Atlanta Westside’s property at 37 Joseph E. Lowery descend from the same original subdivision described on a plat recorded by the Edmondsons. An easement created by a subdivision plat is “an easement by express grant.”

Muhammad challenges the trial court’s finding of an express easement as error, asserting that Northpark stands for the proposition that when an express easement springs from the creation of a subdivision, property owners gain rights to that easement only if the deed by which they took their property references the subdivision plat. According to the plats themselves and a title examiner’s report, the deed to the property owned by Zywiciel and Muhammad references the subdivision plat; Atlanta Westside’s deed does not, but it descends in a chain of title from other deeds that reference the plat.

It is clear from the Northpark court’s opinion that Northpark Associates acquired title to its land by deeds that both referred to the recorded plat and descended in a chain of title from other deeds referencing the recorded plat. The Northpark court, however, did not specifically address whether an easement could be created only by a deed that referenced a subdivision plat, or, alternatively, whether an easement could be created by a deed that did not reference the plat but descended in a chain of title from other deeds referencing the plat. The Northpark court contemplates both possibilities: “Northpark acquired easement rights in the subdivision roads when it bought the two lots by deeds in chains of title that made reference to the recorded plat.”

Therefore, we are bound by settled law that a trial court’s grant of summary judgment must be affirmed if it is right for any reason. Finding no error, we affirm that an easement exists.

Paradoxically, because both Harwell Street and the original 1907 subdivision plat are referenced in Zywiciel’s and Muhammad’s deed and their deed descends in a chain of title from other deeds referencing Harwell Street and the Edmondson plat, we find that they are estopped from denying the easement, even though neither the plat nor Harwell Street is referenced in Atlanta Westside’s deed. When a deed refers to a subdivision plat, a grantor is estopped from denying a grantee’s right to use the streets delineated in the plat.

By parity of reasoning those claiming under such conveyances are estopped from denying the existence of the streets so delineated upon the plat of the subdivision and given as boundaries of lots acquired by these and others from the grantor or those claiming under him. All persons claiming under such grantor are forever estopped to deny their existence,

Further, we have found that the purpose of recording a plat is to put present and future landowners on notice that an easement exists. The Supreme Court of Georgia has held that a common grantor is “estopped from denying the existence of an easement based on a plat showing the easement [when] the plat was either recorded or referenced in the grantee’s deed.” The deed for 19 Joseph E. Lowery, which refers to the recorded plat, indubitably put Muhammad, and Zywiciel as well, on notice of the existence of an easement.

2. Muhammad’s second enumeration additionally asserts that the trial court erred in not finding that the City of Atlanta extinguished any easement that may have existed in the former Harwell Street when it abandoned the street and then conveyed title via a deed to Atlanta Westside that does not reference the plat. The trial court, in addressing this issue, found that “[o]nce acquired, a private easement in a road is not extinguished when a county abandons the road.” We agree.

3. Muhammad, in her first enumeration, also argues that Historic Westside’s addition of a sidewalk and street paving changed the dimensions of the easement such that the easement was extinguished. Muhammad cites Sloan v. Sarah Rhodes, LLC, arguing that this case stands for the proposition that any substantial change to the dimensions of an easement extinguishes the easement. Not only is Sloan distinguishable from the instant case in numerous ways, this interpretation presumes a holding that Sloan does not provide. While Sloan says an easement may not be changed absent the consent of the owners of both the servient and dominant estates, it does not say that a unilateral change, should it occur, extinguishes the easement.

A significant difference between Sloan and the case at bar is Sloan’s reference to a servient and a dominant estate, in other words, a private easement which might “run” with the land, benefitting one parcel of real estate and burdening another. Many of the principles of law governing that type of easement do not apply to easements descended from a subdivision created by a recorded plat for the benefit of all the owners of parcels in the subdivision. There is no dominant estate. Moreover, our law does not favor the extin-guishment of easements. Muhammad’s argument fails, and her case is, of course, at an end.

4. Finally, in her third enumeration, Muhammad asserts that the trial court erred in finding that laches barred her claims challenging the existence of an easement. Because we have affirmed the trial court’s grant of summary judgment finding that an easement exists, Muhammad’s claim of error on this point is moot.

Case No. A11A1243

While, like Muhammad, Zywiciel asserts error as to the trial court’s finding that an easement exists, he also enumerates as error the addition of Atlanta Westside as a party and the trial court’s denial of a motion to extend discovery, as well as its refusal to reconsider that denial.

5. In his fourth enumeration, Zywiciel claims the trial court erred in granting Historic Westside’s motion to add Atlanta Westside as a party. He argues that Historic Westside was guilty of laches for waiting some 2xk years before moving to add an indispensable party seeking to do so only after Zywiciel challenged Historic Westside’s standing by alleging that only Atlanta Westside’s name appears on the deed of the property claiming the easement. While Zywiciel raised standing and issues of timeliness below, the trial court did not address these, either in its order adding Atlanta Westside as a party, or in its summary judgment order or final judgment. As this court is for the correction of errors of law, if the trial court has not ruled on an issue, we will not address it. Thus, the only issue before us is whether the trial court erred when it added Atlanta Westside as a party.

As pointed out in Historic Westside’s motion to add Atlanta Westside, this court has upheld a trial court’s decision to add a party even as late as at trial, where that party was the owner of the real property at issue and, therefore, indispensable. In the instant case, the trial court correctly granted Historic Westside’s motion. “LT]he proper remedy for failure to join an indispensable party is not dismissal, as urged by appellants, but joinder.”

“The determination of whether a party should be added to a lawsuit lies within the discretion of the trial court, and that determination will not be disturbed on appeal absent a showing of abuse.” Here, finding no abuse, we affirm.

6. Zywiciel’s third enumeration is that the trial court erred in denying his motions to extend discovery and to reconsider that denial, and in failing to reopen discovery as to Atlanta Westside only. Those denials, he argues, blocked his ability to participate in discovery with Atlanta Westside as a later-added party.

His motion to extend discovery, however, was filed March 30, 2009 (“March 2009 motion”), more than a year before Atlanta Westside joined the case, and refers only to Historic Westside. The motion never was amended to add Atlanta Westside, and never applied to Atlanta Westside. Zywiciel’s claim of error on this issue presents nothing for our review.

The trial court ruled on Zywiciel’s March 2009 motion to extend discovery on June 4, 2010, the same day it added Atlanta Westside as a party over a joint objection by Zywiciel and Muhammad. Zywiciel’s counsel made an oral motion seeking reconsideration of that denial on June 14, 2010 (“June 2010 motion”). Zywiciel’s oral motion for reconsideration, which he now attempts to apply to Atlanta West-side, never mentioned either this later-added party or Historic Westside. At the June 14, 2010, hearing, Zywiciel’s counsel merely noted the trial court’s denial of the March 2009 motion, saying, “I’d ask that the Court reconsider that — that position at some point.” The trial court denied the motion for reconsideration.

While the addition of a party after the discovery period has closed may have the potential to present valid scope for additional discovery, it is undisputed that the later-added Atlanta Westside shares a corporate identity with initial complainant Historic West-side, which identifies itself as a “managing member” of Atlanta Westside. Zywiciel, for more than a year and despite the trial court’s grant of six joint motions to extend discovery, failed to propound written discovery against initial complainant Historic Westside until after the discovery period closed. Yet Zywiciel now seeks to reopen discovery against Historic Westside’s later-added corporate relative while making no showing either in his oral motion for reconsideration or his enumerations of error as to what material information that discovery could yield.

“A trial court has wide discretion to shorten, extend, or reopen the time for discovery, and its decision will not be reversed unless a clear abuse of that discretion is shown.” “In all cases, the party making an application for a continuance must show that he has used due diligence.” This court has found no abuse of discretion in denying a motion to reopen discovery where, as in the case sub judice, the movant failed to engage in discovery until after the discovery period had ended. This court also has found no abuse of discretion in a denial of a motion for a continuance when the movant fails to show how further discovery would produce evidence material to his claims.

Further, in analogous situations, this court has found no abuse of discretion when a court refuses to permit a continuance if a party has failed to make some showing of what it hoped to obtain. This is true even where, for example, the trial court held a summary judgment hearing after denying a party’s motion for continuance to allow time to depose witnesses recently identified in opposing party’s discovery responses as having knowledge of facts in dispute. This court found no abuse of discretion in that case because the party seeking the continuance failed to show what “relevant and material evidence would be produced in opposition to the motion for summary judgment.” “A continuance is not required to permit fishing expeditions. Rather, the movant must satisfy the court that if given a continuance!,] beneficial objectives of pretrial discovery will be achieved.”

We find no abuse of discretion.

7. Zywiciel’s first and second enumerations, in part, assert that the trial court erred in finding that an easement exists and that this easement was not extinguished. We disagree for the reasons stated in Divisions 1-3, above.

8. Zywiciel’s first enumeration also contends that the trial court erred in finding that laches barred his claims challenging the existence of an easement. Based on our holdings in Divisions 1-3, above, we need not consider this enumeration.

9. Zywiciel, also as part of his first enumeration, argues that the trial court erred in granting Historic Westside’s motion for partial summary judgment on four counterclaims he alone propounded. The trial court found that three of these counterclaims, those alleging trespass, unjust enrichment and failure to issue an injunction, fail because they depend for their survival as a matter of law on a finding that there is no easement. Zywiciel, however, additionally raised those counterclaims in connection with allegations that Historic Westside used, without authorization, a parking lot on his property at 19 Joseph E. Lowery which is not part of the easement. We therefore remand these claims, unrelated to the land comprising the easement, to the trial court for consideration.

10. Zywiciel contends, as part of his first enumeration, that the trial court erred in denying his counterclaim for unjust enrichment as it additionally applies to Historic Westside’s alleged receipt of a $1.25 million grant related to property Zywiciel owns at 899-905 Martin Luther King Jr. Drive. This contention does not present a claim upon which relief may be granted.

11. Zywiciel’s first enumeration additionally asserts error as to the trial court’s grant of partial summary judgment to Historic Westside and Atlanta Westside on his claims of nuisance and ejectment related to a utility pole that Georgia Power installed on his property in connection with the construction of Historic Westside’s development, then later removed at his request. The trial court found that Historic Westside showed it did not instruct, recommend or consult with Georgia Power about the location of the utility pole. The trial court further found that Zywiciel and Muhammad presented insufficient contrary evidence to raise a triable issue, and upon review, we agree.

12. Finally, we turn to Zywiciel’s assertion, also part of his first enumeration, that the trial court erred in deciding the cross-motions for summary judgment because the court allegedly viewed “several disputed material facts” in the light most favorable to movants Historic Westside and Atlanta Westside, thus violating the summary judgment standard. While Zywiciel raised this issue in a motion for reconsideration below, one day after filing that motion, he filed a notice of appeal divesting the trial court of jurisdiction before it could render a decision. Again, this court corrects errors below, and absent a ruling by the trial court, we have nothing to review.

Decided December 16, 2011.

Kwame L. Townes, for appellant (case no. A11A1243).

Kenneth W. Muhammad, for appellant (case no. A11A1582).

Greenberg Traurig, Ernest L. Greer, Michael J. King, Taylor, English & Duma, Michael E. Ross, Hayden R. Pace, Michael P. Froman, for appellees.

Judgment affirmed and case remanded with direction in Case No. A11A1243. Judgment affirmed in Case No. A11A1582.

Smith, P. J., and Dillard, J., concur.

       OCGA § 9-11-56 (c).

        Norton v. Holcomb, 285 Ga. App. 78 (646 SE2d 94) (2007).

       (Footnote omitted.) Alston & Bird LLP v. Mellon Ventures II, L.P., 307 Ga. App. 640 (706 SE2d 652) (2011).

       262 Ga. 138 (414 SE2d 214) (1992).

       (Emphasis supplied.) Id. at 139 (1).

       (Citations omitted.) Sadler v. First Nat. Bank &c., 267 Ga. 122, 123 (1) (475 SE2d 643) (1996).

        Northpark Assocs. No. 2, Ltd., supra at 140 (1).

       (Emphasis supplied.) Id.

        Lesser v. Doughtie, 300 Ga. App. 805 (686 SE2d 416) (2009).

        Tietjen v. Meldrim, 169 Ga. 678, 697 (151 SE 349) (1930).

       (Citation omitted; emphasis supplied.) Id.

        Eardley v. McGreevy, 279 Ga. 562, 564 (1) (615 SE2d 744) (2005).

       (Punctuation and footnotes omitted; emphasis supplied.) Id.

       (Citations omitted.) Northpark Assocs. No. 2, Ltd.., supra at 140 (1).

       274 Ga. 879 (560 SE2d 653) (2002).

       Id. at 879, 880.

       See Whipple v. Hatcher, 283 Ga. 309, 310 (658 SE2d 585) (2008).

       Zywiciel’s brief ostensibly enumerates four errors, but its argument section contains what amounts to more than a dozen allegations of error. To the extent that the sequence and organization of ZywicieTs brief fail to comply with the provisions of Court of Appeals Rule 25
      [w]e caution that this [c]ourt’s rules are designed to facilitate the consideration of enumerated errors and compliance with such rules is not optional. . . . [Zywiciel] has hampered our ability to ensure that all his arguments not addressed by enumerations of error are addressed. Accordingly, [he] is wholly responsible for any allegation of error that we are unable to fully address.
      (Punctuation and footnotes omitted.) Govindasamy v. Wells Fargo Bank, 311 Ga. App. 452,453 (1) (715 SE2d 737) (2011).

        Hart v. Groves, 311 Ga. App. 587, 588 (1) (716 SE2d 631) (2011).

        Zappa v. Automotive Precision Machinery, 205 Ga. App. 584, 585 (5) (423 SE2d 286) (1992) (finding that shareholders of company that was initial plaintiff could be added as parties because as owners of property at issue, they were the real parties in interest).

       Id., citing Guhl v. Tuggle, 242 Ga. 412, 413-414 (1) (249 SE2d 219) (1978).

       (Punctuation and footnote omitted.) Ellison v. Hill, 288 Ga. App. 415, 418 (2) (654 SE2d 158) (2007).

       Zywiciel’s enumeration does not assert error as to the court’s denial of the motions as they relate to Historic Westside, so we need not address that issue.

       Despite statements in each of the first six motions that both parties had “diligently pursued discovery” and had “exchanged written discovery requests, responses and materials,” the record shows a certificate of service for only one written discovery request from Zywiciel to Historic Westside, filed May 5, 2009, one month after the expiration of the discovery period. That certificate refers to Zywiciel’s “first continuing interrogatories,” his “first request for production of documents and notice to produce,” and his “first requests for admission of facts.” (Emphasis supplied.)

       (Punctuation omitted.) Quarterman v. Cullum, 311 Ga. App. 800, 804 (4) (717 SE2d 267) (2011), citing Lawrence v. Direct Mtg. Lenders Corp., 254 Ga. App. 672, 673 (1) (563 SE2d 533) (2002).

       OCGA § 9-10-166.

        Pew v. One Buckhead Loop Condo. Assn., 305 Ga. App. 456, 462 (3) (700 SE2d 831) (2010).

        Demido v. Wilson, 261 Ga. App. 165, 169 (3) (582 SE2d 151) (2003). See also Wilson v. Edward Don & Co., 275 Ga. App. 787, 789 (3) (622 SE2d 18) (2005) (no abuse of discretion in denying discovery extension when movant’s affidavit failed to specify any information he could obtain related to debt dispute).

        Gilco Investments v. Stafford Cordele, LLC, 267 Ga. App. 167, 169 (1) (598 SE2d 889) (2004).

       (Citation omitted.) Id.

       (Punctuation and footnote omitted.) Aponte v. City of Columbus, 246 Ga. App. 646, 650 (6) (540 SE2d 617) (2000).

       To the extent that Zywiciel’s second enumeration is unsupported by citations to the record or to relevant case law or statute, it is deemed abandoned pursuant to Court of Appeals Rule 25 (c) (2).

       Zywiciel never specifically identifies for this court which of more than 25 “facts” listed in three documents referenced in his appellate brief allegedly were decided in violation of the summary judgment standard. Nor does he reveal how the trial judge allegedly viewed any specific fact in the light most favorable to the movants. Such general allegations are insufficient to support a claim of error. See Court of Appeals Rule 25 (c) (2) (i).

        Norton, supra at 78 (court must view facts and evidence in light most favorable to nonmoving party).

        Fortson v. Hotard, 299 Ga. App. 800, 804 (3) (684 SE2d 18) (2009) (appellant filed notice of appeal before trial court had ruled on motion for reconsideration, divesting tried court of jurisdiction to reconsider its order).

        Hart, supra.