author: Dillard, Judge.

text:
    A14A0922.
    NORMAN v. NORMAN.
    (765 SE2d 677)
   Dillard, Judge.

Darby Norman (“Darby”) appeals the trial court’s order finding her in contempt of a settlement agreement that she entered into with her ex-husband, Toby Norman (“Toby”), as part of the parties’ divorce decree, and denying her motion to strike the overnight-guest provision in that agreement. She contends on appeal that the trial court erred by (1) enforcing the overnight-guest provision when it violates public policy, and (2) misinterpreting binding precedent. For the reasons set forth infra, we affirm.

The record reflects that the Normans divorced in February 2013, and that a settlement agreement entered into by the parties in January 2013 was thereafter incorporated into their final judgment and decree of divorce. The settlement agreement awarded the parties’ joint legal custody and Darby primary physical custody of the Normans’ two minor daughters, and included, in relevant part, the following provision:

When the minor children of the parties hereto are in either of the party’s physical custody, neither party shall allow a non-relative adult person of the opposite gender to remain overnight in the same house, apartment, or other place being occupied by that party and the minor children, provided, however, this restriction shall not apply to an overnight guest of the minor children.

On March 28, 2013 (only one month after entry of the divorce decree), Toby filed a complaint for contempt against his ex-wife, alleging that Darby had repeatedly violated this provision by allowing her boyfriend to stay in her home overnight while she was in physical custody of the children. In response, Darby filed a motion to strike the provision from the decree, arguing that the provision was “overly broad, overly burdensome, and unenforceable under the circumstances.”

Following a hearing at which neither party testified, but after which the trial court considered deposition testimony filed by the parties, the trial court determined that Darby had admitted to violating the overnight-guest provision and that the violation of this provision by either party “would be harmful to the minor children’s emotional well-being.” In reaching its conclusion, the trial court noted that Darby understood and agreed to inclusion of the provision in the settlement agreement with the advice of counsel, and that at least one of the parties’ daughters was aware of the provision and that her mother was in violation of it by engaging in prohibited behavior, which the trial court determined was knowledge “detrimental to the children’s emotional well-being.” Accordingly, the trial court denied Darby’s motion to strike the provision, determining that the provision was “narrowly-drawn, rationally related to the harm it seeks to protect, and in the best interests of the children in this case.” Further, the trial court granted Toby’s motion for contempt. This appeal by Darby follows.

Darby contends that the trial court erred in enforcing the overnight-guest provision because it violates public policy and because the court misinterpreted binding precedent. We disagree.

Although Darby is correct that it is the express public policy in Georgia to

encourage that a child has continuing contact with parents ... who have shown the ability to act in the best interest of the child and to encourage parents to share in the rights and responsibilities of raising their child after such parents have separated or dissolved their marriage or relationship,

and that contracts “against the policy of the law cannot be enforced,” the overnight-guest provision in the parties’ settlement agreement and divorce decree is not violative of these public policies.

The overnight-guest provision quoted supra is neither overly broad nor unduly burdensome. Indeed, this provision applies to both parties and prohibits unrelated overnight adult guests of the opposite gender — a restriction that neither singles out one particular individual for a blanket prohibition nor includes relatives. As such, it is distinguishable from provisions imposed by trial courts that this Court and our Supreme Court have deemed overly broad and/or unduly burdensome, and thus unenforceable, in the absence of a showing of harm. Additionally, the provision does not make an arbitrary distinction based upon race, sexual preference, or any other such classification. The provision is also narrowly tailored to only prohibit the overnight stay of an unrelated adult member of the opposite gender in either party’s home, as opposed to a provision that applies at all times. And despite Darby’s argument that the provision is “arbitrary” because (1) the restriction does not prohibit an unrelated adult member of the opposite gender from remaining in her home after the children have fallen asleep and returning before they wake up, and (2) the provision contains an exception for vacations, these aspects of the parties’ settlement agreement instead demonstrate exactly why the overnight-guest provision simply cannot be viewed as overly broad or unduly burdensome.

Finally, Darby contends that the trial court erred in enforcing the overnight-guest provision when there was no showing of harm justifying such a restriction. This argument is a nonstarter. Indeed, even without the trial court’s explicit finding that these children would be harmed if the provision went unenforced, the fact remains that this provision was entered into by consent of the parties prior to the trial court’s entry of its final order incorporating the settlement agreement. Given this posture, the imposition of this provision is procedurally inapposite to cases in which the trial court modifies an existing agreement or imposes such a provision on parties sua sponte. And historically the law has recognized that “natural bonds of affection lead parents to act in the best interests of their children.” Thus, in the absence of any evidence rebutting same, we presume that both Toby and Darby were acting in the best interests of their children when they agreed (with the advice of counsel no less) to enter into a settlement agreement that included the overnight-guest provision, which, again, does not violate public policy because it is neither overly broad nor unduly burdensome. Suffice it to say, if Darby did not believe that such a provision was in the best interests of her children, she should not have agreed to its inclusion in the settlement agreement.

Decided November 7, 2014.

Dodd & Burnham, W. Michael Burnham II, for appellant.

William C. McCalley, for appellee.

Accordingly, for all of the foregoing reasons, we conclude that the trial court did not err in enforcing the overnight-guest provision or in holding Darby in contempt for violating same, and we affirm the court’s judgment.

Judgment affirmed.

Doyle, P. J., and Miller, J., concur.

       Toby’s deposition testimony revealed that the children voluntarily share information with him and that they “know [Darby’s behavior is] wrong... because the way we have raised them up to this point.” Toby further testified that the children had asked why he andDarby were still “fussing,” and that he had explained to the eldest daughter, then nine years old, that her mother was “not supposed to have overnight company.” Then, when Darby’s attorney pressed Toby as to whether he had told the eldest daughter that his ex-wife was “an adulteress,” he responded that the child discovered that her mother was having an affair with her boyfriend before the divorce while “playing on [Darby’s] phone and [seeing] a bunch of texts coming from [her boyfriend], inappropriate texts.”

       OCGA § 19-9-3 (d).

       OCGA § 13-8-2 (a).

         See Ward v. Ward, 289 Ga. 250, 250-51 (1) (710 SE2d 555) (2011) (holding that trial court abused its discretion in amending visitation provision in final decree to provide that mother “ ‘shall not have any overnight male guests while the minor children are present’ ” because the provision would prohibit the mother “from having visitors with whom she has no romantic relationship”); Arnold v. Arnold, 275 Ga. 354, 354 (566 SE2d 679) (2002) (holding that trial court abused its discretion in prohibiting children “from any contact with a certain named friend of Wife” when there was “no evidence that the relationship between Wife and her friend was or will he harmful to the children, or that they ever engaged in any inappropriate conduct in the presence of the children”); Brandenburg v. Brandenburg, 274 Ga. 183, 184 (1) (551 SE2d 721) (2001) (holding that trial court abused its discretion in prohibiting father from exercising visitation with children in the presence of his girlfriend, even if the two should marry, when there was no “evidence that such relationship had or likely would have a deleterious effect on the children beyond that normally associated with divorce or a parent’s remarriage”); Katz v. Katz, 264 Ga. 440, 440 (445 SE2d 531) (1994) (holding that trial court abused its discretion “regarding the provisions of the final judgment pertaining to visitation in the event the mother moves”). But see Mongerson v. Mongerson, 285 Ga. 554, 556 (2) (678 SE2d 891) (2009) (holding that trial court’s decision to prohibit children’s exposure to paternal grandparents was not an abuse of discretion when evidence showed that grandparents “had been physically and emotionally abusive of the children”), overruled on other grounds by Simmons v. Simmons, 288 Ga. 670 (706 SE2d 456) (2011).

        See Mongerson, 285 Ga. at 555-56 (2) (holding that trial court erred in prohibiting husband “from exposing the children to his homosexual partners and their friends,” which was “an arbitrary classification based on sexual orientation”); Turman v. Boleman, 235 Ga. App. 243, 243-44 (510 SE2d 532) (1998) (finding unenforceable a settlement-agreement provision that prohibited mother’s exercise of visitation rights “in the presence of [a specific individual] or any other African-American male” because the provision “sanctioned arbitrary racial classification in determining visitation rights in violation of the Equal Protection Clause”); id. at 244 (“Although a court may validly provide, under appropriate circumstances, that a child is to have no contact with particular individuals who are deemed harmful to the child, such provision cannot be based solely upon racial considerations, as such ruling violates the public policy of the State of Georgia.”); In the Interest of R. E. W., 220 Ga. App. 861, 862-63 (471 SE2d 6) (1996) (holding that trial court erred in denying father’s request for unsupervised visitation when denial was premised upon “the finding that the father was engaged in an ‘immoral’ homosexual relationship, and that the father could not be ‘trusted to... see that his relationship does not occur in such a manner as to come to the attention of the child’ ”).

        Cf. Arnold, 275 Ga. at 354 (unenforceable provision “prohibited the children from any contact with a certain named friend of Wife and imposed on her the responsibility of being sure that there was no such exposure”); Brandenburg, 274 Ga. at 184 (1) (unenforceable provision “precluded [father] from exercising . . . visitation rights in the presence of [girlfriend], even if they marr[ied]”).

       This exception provides as follows:
      [I]f either party goes on an out of town vacation trip with the children, a non-relative adult person of the opposite gender shall be allowed to accompany such party and the children on such out of town vacation trip provided that such non-relative adult person of the opposite gender does not stay in the same bedroom with the party who has taken the children on such out of town vacation trip.
      According to Toby’s deposition testimony, the parties “argued about [the exception] several days before the decree to try to get that in the decree, and [he] finally agreed to [it].” As such, the fact that Darby now argues that the inclusion of this exception renders the overnight-guest provision arbitrary appears disingenuous at best. Further, we are wholly unconvinced that a prohibition against overnight stays by “non-relative members of the opposite sex” can be read as prohibiting the presence of cousins, uncles, nephews, or relatives by marriage. Cf. Ward, 289 Ga. at 250-51 (1) (agreeing with appellant that prohibition against “overnight male guests” would prohibit mother from “having visitors with whom she has no romantic relationship,” including her father, a brother, a new spouse, or the children’s father).

        Cf. Katz, 264 Ga. at 440 (holding that trial court abused discretion by placing unduly burdensome responsibilities upon mother should she decide to move away when it imposed upon her the obligation to travel with the children (even when they became old enough to travel alone) and to bear the cost of transportation to meet father’s visitation schedule of every first and third Thursday evening to Sunday evening).

       We note that the trial court’s finding in this regard would be reviewed for an abuse of discretion. See Mongerson, 285 Ga. at 556 (2) (holding that trial court did not abuse its discretion in finding that exposure to paternal grandparents would have a harmful effect on the best interest of the children when evidence in record supported that decision).

        See Ward, 289 Ga. at 250 (finding that, in addressing motion for contempt, trial court abused its discretion when it amended visitation provision in final decree to provide that mother “‘shall not have any overnight male guests while the minor children are present’”); Mongerson, 285 Ga. at 555-56 (2) (trial court in final decree ordered that, in husband’s limited visitation, he be “‘prohibited from exposing the children to his homosexual partners and friends’ ”); Arnold, 275 Ga. at 354 (trial court, in final decree, prohibited children from contact with certain named friend of wife without evidence that exposure would have an adverse effect on the best interests of the children); Brandenburg, 274 Ga. at 183-84 (trial court, in final judgment, awarded father with visitation, but under that provision he was precluded from exercising those rights in the presence of his girlfriend, even if they should marry). But see Turman, 235 Ga. App. at 243 (settlement agreement entered into by parties and incorporated into decree by trial court included visitation provision that prohibited mother from exercising those rights in the presence of a named individual “or any other African-American male,” but provision held unenforceable because such provisions “cannot be based solely upon racial considerations”).

        Parham v. J. R., 442 U. S. 584, 602 (III) (b) (99 SCt 2493, 61 LE2d 101) (1979); see also Troxel v. Granville, 530 U. S. 57, 68-69 (II) (120 SCt 2054, 147 LE2d 49) (2000) (noting that there is a presumption that fit parents act in their children’s best interests, and that there is normally no reason for the State to inject itself into the private realm of the family to further question fit parents’ ability to make the best decisions regarding their children); 2 St. George Tucker, Blackstone’s Commentaries: With Notes of Reference to the Constitution and Law of the Federal Government of the United States and of the Commonwealth of Virginia 447 (1803); 2 James Kent, Commentaries on American Law 190 (1827).

        See Burns v. Burns, 253 Ga. App. 600, 602 (560 SE2d 47) (2002) (concerning a consent order that included a provision that “ ‘there shall be no visitation nor residence by the children with either party during any time where such party cohabits with or has overnight stays with any adult to which such party is not legally married or to whom party is not related within the second degree,’ ” and holding that the mother waived certain rights to privacy of intimacy and that if she “wanted to ensure that her civil union would be recognized in the same manner as a marriage, she should have included language to that effect in the consent decree itself”).

        See Simmons v. Williams, 290 Ga. App. 644, 648 (3) (660 SE2d 435) (2008) (physical precedent only) (holding that overnight-guest provision was “clearly intended to preclude potential sexual relations by either of the parties with unwed partners in the presence of the children, a type of limitation within the discretion of the trial court”).


source: Caselaw Access Project

author: Branch, Judge.

license: Public Domain

text:
    A14A1396.
    McKEAN et al. v. GGNSC ATLANTA, LLC et al.
    (765 SE2d 681)
   Branch, Judge.

Acting individually and as executor of his mother Patricia’s estate, Dwayne McKean filed suit for wrongful death in the State Court of Fulton County alleging that the defendants’ negligence in providing nursing home care to his mother caused her pain and suffering and death. The defendants moved to dismiss, to compel arbitration, and to stay discovery based on an arbitration agreement that McKean signed ostensibly on his mother’s behalf when she was admitted to the nursing home. McKean argued that he did not have authority to sign for his mother at the time, but the trial court found that McKean was authorized to bind his mother and her estate’s successors and assigns to the arbitration agreement. McKean appeals that decision. For the reasons that follow, we reverse.

The record contains the few relevant facts. Patricia was admitted to the Golden Living Center nursing home on March 9, 2012; she was suffering from the recent onset of paraplegia due to a subarachnoid hemorrhage. At the time, Patricia had not executed any form of power of attorney appointing McKean or anyone else as her attorney-in-fact. On the day of his mother’s admission, McKean signed a nursing home admission agreement, which is not in the record, and a separate “Alternative Dispute Resolution Agreement” (the “ADR agreement”). The ADR agreement provides that any dispute between the parties to the agreement “shall be resolved exclusively by an ADR process.” The agreement provides that it is not a condition of admission to the facility, but that upon execution by the resident, it becomes a part of the admission agreement. Finally, the ADR agreement provides that the resident has an option to revoke the agreement “within thirty (30) days of signing it.”

McKean signed below the blank signature line for the Resident in a space for “Signature of Resident’s Legal Representative.” Immediately below McKean’s signature is an acknowledgment that states, “By my signature, I represent that I am a person duly authorized by Resident or by law to execute this Agreement and that I accept its terms.” The agreement required McKean to “Specify Capacity of Legal Representative (e.g., Power of Attorney, Agent, Next of Kin),” for which McKean indicated that his capacity to sign was “Son.” There is no evidence in the record that Patricia was present when McKean signed the agreements or that she had knowledge of the ADR agreement on the day it was signed or at any time thereafter.

Nineteen days after McKean signed these agreements, his mother executed a durable power of attorney appointing McKean as her attorney-in-fact and giving McKean authority, among other things, to sign arbitration agreements: i.e., authority

[t] o act for [Patricia] in all legal matters,... including but not limited to the authority to . . . sign all documents, submit claims to arbitration or mediation, settle claims, and pay judgments and settlements; and exercise all powers with respect to legal actions that I could if present and under no disability.

Patricia continued to reside at the nursing home for 40 days after naming McKean as her legal representative. During that time, Patricia developed serious medical issues, and she died on May 19, 2012. McKean later filed this suit in the State Court of Fulton County in his capacity as “the expected executor of the estate of Patricia McKean, and individually as a surviving child.” The trial court thereafter granted the defendants’ motion to dismiss and compel arbitration, apparently on the basis that McKean ratified his own signature by not revoking the ADR agreement after he became his mother’s attorney-in-fact and because he represented on the ADR agreement that he was authorized to sign the agreement on his mother’s behalf. McKean appeals.

1. Whether a valid and enforceable arbitration agreement exists is a question of law for the court. OCGA § 13-2-1; Miller v. GGNSC Atlanta, 323 Ga. App. 114, 117 (1) (746 SE2d 680) (2013). We therefore review a trial court’s order granting or denying a motion to compel arbitration de novo. Id. The appellees, as the parties seeking arbitration, bear the burden of proving the existence of a valid and enforceable agreement to arbitrate. Ashburn Health Care Center v. Poole, 286 Ga. App. 24, 25 (648 SE2d 430) (2007). And the validity of an arbitration agreement is “generally governed by state law principles of contract formation.” Triad Health Mgmt. of Ga., III, LLC v. Johnson, 298 Ga. App. 204, 206 (2) (679 SE2d 785) (2009) (citations omitted).

“To constitute a valid contract, there must be parties able to contract, a consideration moving to the contract, the assent of the parties to the terms of the contract, and a subject matter upon which the contract can operate.” OCGA § 13-3-1. Because the record shows that Patricia did not personally assent to the ADR agreement, the appellees’ position depends on a finding that McKean had authority to sign or that his mother, or McKean acting on her behalf, later ratified his act of signing the ADR agreement.

(a) Under Georgia law, “[t]he relation [ship] of principal and agent arises wherever one person, expressly or by implication, authorizes another to act for him or subsequently ratifies the acts of another in his behalf.” OCGA § 10-6-1. Here, there is no evidence that Patricia, prior to or at her admission to the nursing home, gave McKean express authority to enter into the ADR agreement on her behalf. Without evidence of express authority, we turn to apparent or implied authority.

Apparent authority requires evidence of words or conduct by Patricia suggesting that she gave her son authority:

apparent authority to do an act is created as to a third person by written or spoken words or any other conduct of the principal which, reasonably interpreted, causes the third person to believe that the principal consents to have the act done on his behalf by the person purporting to act for him.

Howard v. St. Paul Fire & Marine Ins. Co., 180 Ga. App. 802, 804 (1) (350 SE2d 776) (1986) (emphasis in original). The appellees have not presented any evidence of words or conduct by Patricia that could cause the nursing home to believe that McKean had apparent authority to sign the arbitration agreement on her behalf. No evidence has been introduced regarding her behavior at the time she was admitted to the nursing home. And McKean’s own action of signing the agreement as his mother’s agent is insufficient to create agency: “[A]ny manifestations of implied agency or apparent authority arising only through the words or acts of [the purported agent] are insufficient to authorize a finding that an agency existed.” Walker v. Williams, 177 Ga. App. 830, 832 (341 SE2d 487) (1986) (citation omitted). See also Omni Builders Risk v. Bennett, 313 Ga. App. 358, 360 (1) (721 SE2d 563) (2011) (“Apparent authority is that which the principal’s conduct leads a third party reasonably to believe the agent has.”) (citation and punctuation omitted).

Finally, the simple fact that McKean is Patricia’s son is insufficient to establish agency. See, e.g., Life Care Centers of America v. Smith, 298 Ga. App. 739, 743 (1) (681 SE2d 182) (2009) (arbitration agreement not enforceable when signed by daughter who held her mother’s health care power of attorney but where that power did not authorize daughter to enter into arbitration agreements); Triad Health, 298 Ga. App. at 207 (2) (son’s relationship to incapacitated father was not “in itself sufficient to establish that [son] was his father’s agent” for purposes of signing agreement to arbitrate); Ashburn Health Care, 286 Ga. App. at 26 (marriage alone does not establish an agency relationship and therefore arbitration agreement signed by husband when wife entered nursing home was not binding on wife or her estate).

(b) Because there is no evidence that Patricia gave express or implied authority to McKean or that McKean had apparent authority to sign the agreement on her behalf, we examine ratification. See OCGA § 10-6-1 (requiring either authorization or ratification by the principal to create agency). The appellees contend that McKean’s action of entering into the ADR agreement on her behalf was ratified in two ways: (1) Patricia ratified McKean’s act when, nineteen days after McKean signed the ADR agreement, she gave McKean power of attorney to enter into arbitration agreements on her behalf; or (2) after being granted the power of attorney, McKean, now standing in his mother’s shoes, did not exercise the option to revoke the ADR agreement as provided therein, thereby ratifying his earlier act of signing the ADR agreement.

Ratification of an act may be express or implied, including by the silence of the principal, but the principal must have full knowledge of all material facts:

It has long been the law in Georgia that a ratification by the principal relates back to the act ratified, and takes effect as if originally authorized. A ratification may be express, or implied from the acts or silence of the principal. Where a principal is informed by his agent of what he has done, the principal must express his dissatisfaction within a reasonable time, otherwise his assent to his agent’s acts will be presumed. Unless the principal repudiates the act promptly or within a reasonable time, a ratification will be presumed. But in order for a ratification to be binding, the principal must have had full knowledge of all material facts.

Merritt v. Marlin Outdoor Advertising, 298 Ga. App. 87, 91 (2) (b) (679 SE2d 97) (2009) (punctuation andfootnotes omitted). See also OCGA § 10-6-52 (“A ratification may be express or implied from the acts or silence of the principal.”); Restatement (Third) of Agency § 4.06 (2006) (“A person is not bound by a ratification made without knowledge of material facts involved in the original act when the person was unaware of such lack of knowledge.”).

Here, there is no evidence that Patricia had knowledge at any time of the ADR agreement, let alone that her son already had executed one on her behalf. Thus, the appellees have not satisfied their burden of proving that at the time Patricia granted McKean the power to enter into arbitration agreements, she had knowledge that he had already done so. Accordingly, the simple fact that Patricia granted McKean power of attorney to act on her behalf did not ratify his earlier action of signing the ADR agreement on her behalf. See Ellis v. Fuller, 282 Ga. App. 307, 310 (2) (638 SE2d 433) (2006) (for ratification to occur a principal must know of the agent’s unauthorized act); Bresnahan v. Lighthouse Mission, 230 Ga. App. 389, 391 (2) (496 SE2d 351) (1998) (“For ratification to be effective, the principal must know of the agent’s unauthorized act and, with full knowledge of all the material facts, accept and retain the benefits of the unauthorized act.”) (citation omitted).

The appellees counter that because Patricia gave McKean the specific authority to enter into arbitration agreements in the future, she necessarily ratified any arbitration agreements that he had already entered into. They also argue that it is sufficient to show that McKean had knowledge of all the material facts because, as attorney in fact, McKean was acting in the place of his mother and he therefore had the necessary knowledge to ratify his earlier execution of the ADR agreement on behalf of his mother. We find no binding authority for these arguments. And we do not agree that a principal necessarily ratifies prior acts by the attorney-in-fact when a principal grants someone power of attorney to perform those acts on behalf of the principal in the future, or that the attorney-in-fact himself is necessarily authorized to ratify all previous actions he or she previously has taken in the principal’s name without the principal’s knowledge. See Dobbins v. Blanchard, 94 Ga. 500 (21 SE 215) (1894) (power of attorney appointing husband to act for wife and expressly ratifying all his acts made for her “after this date” is not authority for, or ratification of, acts taken by husband prior to power of attorney).

The case of Thompson v. Fed. Express Corp., 809 FSupp. 950 (M.D. Ga. 1992), upon which the appellees rely, is distinguishable and not persuasive authority for the present case. In Thompson, in July 1989, without authority from her husband who was incapable of signing for himself, a wife signed a subrogation agreement on her husband’s behalf that his employer required as a condition of her husband receiving medical expense and disability benefits provided by his employer as a result of an automobile accident with a third party; the wife even applied for some of the benefits on her husband’s behalf. Id. at 952. Almost two years later, the wife was appointed guardian of her husband’s person and property. Id. Both before and after she was appointed as her husband’s guardian, the wife received and deposited benefit checks from her husband’s employer. Id. The district court found that although the wife had no legal authority to sign for her husband at the time, the subrogation agreement was enforceable against the husband because the wife ratified the agreement by accepting the employer’s benefits after having been named guardian with the knowledge that she had previously signed the reimbursement agreement on his behalf. Id. at 954. Thus, without any citation to authority — Georgia or otherwise — the district court concluded that the wife “ratified her earlier signing of the reimbursement agreement.” Id.

Even setting aside the lack of cited authority for the district court’s conclusions, the case is distinguishable because in the present case, there is no evidence that Patricia or McKean acting on her behalf ever accepted any benefits of the ADR agreement. Neither McKean nor his mother ever sought any of the theoretical benefits of alternative dispute resolution, such as reduced costs as compared to litigation. The appellees, therefore, have not shown that Patricia or McKean accepted any benefits of the ADR agreement. For these reasons, we find Thompson v. Federal Express to be inapplicable. The case of Lankford v. Orkin Exterminating Co. is distinguishable for essentially the same reason. 266 Ga. App. 228, 229-230 (1) (597 SE2d 470) (2004) (where mother signed pest control agreement “for” her daughter/homeowner, with whom she lived, both mother and daughter were bound by arbitration clause in agreement where they both accepted the benefits of, paid for, and signed for pesticide treatments for the home and where the mother filed suit alleging breach of the contract that contained the arbitration clause).

For the above reasons, we conclude that the appellees have failed to carry their burden of showing that Patricia McKean assented to the ADR agreement or that she ratified her son’s action of signing the ADR agreement on her behalf. Accordingly, the trial court erred by concluding that a valid and enforceable agreement to arbitrate exists.

2. The appellees also contend that the ADR agreement can be enforced because Patricia was a third-party beneficiary to the ADR agreement. The premise of this argument is flawed. The ostensible parties to the ADR agreement are the nursing home and Patricia, and McKean attempted to sign the agreement as his mother’s representative. The fact that the agreement fails because Patricia never consented to its terms does not promote McKean, who did not sign the agreement in his individual capacity, to the position of being a party to the agreement such that the appellees can argue that his mother was a third-party beneficiary thereto. Several cases from other jurisdictions cited by the defendants are distinguishable because in those cases, the person signing the arbitration agreement signed for the patient and in a second capacity. See JP Morgan Chase & Co. v. Conegie, 492 F3d 596, 600 (5th Cir. 2007) (where mother on behalf of incompetent daughter signed nursing home agreement that was “with, or on behalf of, [daughter] and/or her family,” arbitration agreement contained therein could be enforced against daughter under federal law); THI of South Carolina at Columbia, LLC v. Wiggins, 2011 U. S. Dist. LEXIS 103638 (Case No. CA-3:11-888-CMC) (D. S.C. 2011) (under South Carolina law, where daughter signed nursing home contract with arbitration clause for her father “and/or” as a “fiduciary party,” father was bound to arbitration clause as a third-party beneficiary to the contract). Moreover, there are other jurisdictions that reject the defendants’ third-party beneficiary arguments. See, e.g., Licata v. GGNSC Malden Dexter LLC, 2 NE3d 840 (Mass. 2014).

3. Without citation of authority, the defendants also claim that McKean should be estopped or otherwise equitably barred from avoiding arbitration because he signed the ADR agreement and his mother later granted him power of attorney. But in general, estoppels are not favored by the law. White v. White, 274 Ga. 884, 885 (1) (561 SE2d 801) (2002). And the party asserting the benefit of estoppel “must have acted in good faith, and must have exercised reasonable diligence.” Collins v. Grafton, 263 Ga. 441, 443 (2) (435 SE2d 37) (1993); Cedartown N. Partnership, LLC v. Georgia Dept. of Transp., 296 Ga. App. 54, 56 (1) (673 SE2d 562) (2009). Here, the ADR agreement required McKean to indicate his capacity for signing on behalf of his mother, and McKean indicated that he signed as his mother’s “son.” As shown above, this notation does not provide a legal basis for an agency relationship; the notation also strongly suggests that McKean did not have his mother’s power of attorney, was not acting as her guardian or conservator, and had no other legal basis for claiming to have authority to sign the ADR agreement. Yet the appellees have not shown that they made any further inquiry regarding McKean’s capacity to sign. Thus, the appellees failed to present evidence to show that they exercised any diligence to explore McKean’s asserted authority in response to McKean essentially indicating that he lacked authority to sign for his mother. We therefore reject the appellees’ argument that McKean must arbitrate because he is estopped to deny the validity of the ADR agreement. See Hogsett v. Parkwood Nursing & Rehab. Center, 997 FSupp.2d 1318, 1329 (N.D. Ga. 2014) (rejecting argument that daughter, who had no power of attorney, who signed on behalf of her mother on a nursing home arbitration agreement was thereby precluded from pursing a wrongful death claim in her individual capacity).

Decided November 7, 2014.

Slappey & Sadd, James N. Sadd, Daniel M. Epstein, for appellants.

Hawkins Parnell Thackston & Young, David C. Marshall, Christian J. Lang, Daniel N. Mills, for appellees.

For the foregoing reasons, we reverse the decision of the trial court.

Judgment reversed.

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

       A National Institutes of Health website defines paraplegia as “[p]aralysis of the lower half of your body, including both legs.” See http://www.nlm.nih.gov/medlineplus/paralysis.html.

       A National Institutes of Health website defines subarachnoid hemorrhage as “bleeding in the area between the brain and the thin tissues that cover the brain.” See www.nlm. nih.gov/medlineplus/ency/article/000701.htm.

       The trial court wrote:
      After becoming Ms. McKean’s attorney-in-fact within the thirty (30) day revocation period of the agreement, Plaintiff did nothing to revoke it.... Furthermore, the signature line indicates that Plaintiff was acting as Ms. McKean’s agent as it read “I am a person duly authorized by Resident or by law to execute this Agreement.”

       Georgia courts have used the terms “apparent,” and “implied” authority interchangeahly. See Zanac, Inc. v. Frazier Neon Signs, 134 Ga. App. 501, 503-504 (2) (215 SE2d 265) (1975).

       Although potentially persuasive, federal district court precedent is not binding on this Court. Macon-Bibb County Hosp. Auth. v. Nat. Treasury Employees Union, 265 Ga. 557, 558 (1) (458 SE2d 95) (1995); Winburn v. McGuire Investment Group, 220 Ga. App. 384, 385 (1) (469 SE2d 477) (1996).

       Although Patricia accepted the benefits of admission to the nursing home, the nursing home admission agreement is not in the record. Thus, even though the ADR agreement states that it is incorporated by reference into the admission agreement, without more, we cannot conclude that Patricia, or McKean acting on her behalf, accepted the benefits of the ADR agreement by accepting nursing home care.


text:
    A14A0815.
    HOLCOMB v. LONG.
    (765 SE2d 687)
   Dillard, Judge.

Michael Holcomb filed a civil action against Charles Long d/b/a Charles Long Farms (“Long”), alleging that Long’s negligence in saddling one of the horses that he owned and a faulty saddle resulted in Holcomb falling from the horse and suffering serious injuries. Long moved for summary judgment, which the trial court granted. Holcomb now appeals, arguing that the trial court erred in ruling that Long was entitled to civil immunity under Georgia’s Injuries From Equine Or Llama Activities Act (“Equine Activities Act”) because none of the exceptions to immunity outlined in the statute applied. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the nonmovant, the record shows that Holcomb and Long were acquaintances through their membership in a local civic organization, and Holcomb had previously mentioned that he and his granddaughter were interested in riding the horses at Long’s farm. Long extended an invitation to Holcomb and his granddaughter and, consequently, on April 7, 2011, they went to Long’s farm to ride horses. Upon their arrival, Long inquired as to their riding experience, and Holcomb stated that he had ridden horses often as a young man (while his granddaughter had very little riding experience). Subsequently, Long first saddled a horse named “Elvis” for Holcomb’s granddaughter and then saddled a very docile horse named “Tumbleweed” for Holcomb to ride. Next, he directed Holcomb and his granddaughter to first ride within the fenced corral so that he could assess their respective levels of competency.

After about ten or fifteen minutes, Long saw that Holcomb and his granddaughter could handle the horses rather well and, therefore, told them that they could ride out to the pasture and nearby trails, which they did. Holcomb and his granddaughter then rode for approximately one hour, during which time Holcomb did not notice anything wrong with Tumbleweed’s saddle. But as they headed toward the trails, Holcomb turned backward to his left in the saddle to see if his granddaughter was immediately behind him. And as he did so, the horse flexed its body to its left, and the saddle began to slide to the right. The horse then began to gallop, but with the saddle continuing its slide to the right, Holcomb fell, struck his head on a fence post, and suffered serious injuries.

Thereafter, Holcomb filed suit against Long to recover damages for the injuries he suffered, alleging, inter alia, that the accident was the result of Long’s failure to re-tighten the front girth, or cinch, of the saddle, as well as his failure to utilize a cinch hobble to secure the saddle. Long answered, and discovery ensued.

In deposition testimony, Holcomb’s expert opined that the accident was a result of Long’s failure to adequately tighten Tumbleweed’s saddle. Specifically, Holcomb’s expert testified that the front girth of the saddle should have been re-tightened after five or ten minutes of riding because it tends to loosen for various reasons as the saddle settles on the horse. However, he did not believe it was likely that the lack of a cinch hobble contributed to the accident. In his own deposition, Long agreed that a saddle will loosen as a horse walks or sweats and conceded that he did not re-check Tumbleweed’s saddle at any point after Holcomb began riding.

Once discovery concluded, Long filed a motion for summary judgment, arguing that the Equine Activities Act cloaked him with civil immunity and, therefore, barred Holcomb’s lawsuit. Holcomb responded, arguing that two of the statute’s exceptions to its general grant of immunity applied, and thus, summary judgment was not warranted. Nevertheless, after holding a hearing on the matter, the trial court granted summary judgment in favor of Long. This appeal follows.

At the outset, we note that it is well established that summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” If summary judgment is granted by a trial court, it enjoys no presumption of correctness on appeal, “and an appellate court must satisfy itself de novo that the requirements of OCGA § 9-11-56 (c) have been met.” And in our de novo review of a trial court’s grant of a motion for summary judgment, we are charged with “viewing the evidence, and all reasonable conclusions and inferences drawn from the evidence in the light most favorable to the nonmovant.” With these guiding principles in mind, we turn now to Holcomb’s specific claims of error.

1. Holcomb contends that the trial court erred in finding that the Equine Activities Act barred his lawsuit, arguing that Long was not entitled to immunity because he provided faulty tack or equipment. We disagree.

In interpreting any statute, we necessarily begin our analysis with familiar and binding canons of construction. Indeed, in considering the meaning of a statute, our charge as an appellate court is to “presume that the General Assembly meant what it said and said what it meant.” And toward that end, we must afford the statutory text its plain and ordinary meaning, consider the text contextually, read the text “in its most natural and reasonable way, as an ordinary speaker of the English language would,” and seek to “avoid a construction that makes some language mere surplusage.” In sum, where the language of a statute is plain and susceptible of only one natural and reasonable construction, “courts must construe the statute accordingly.”

With regard to the Equine Activities Act, the General Assembly left little doubt as to how it expected this statute to be construed. Indeed, the Act’s preamble (OCGA § 4-12-1) explicitly provides:

The General Assembly recognizes that persons who participate in equine activities ... may incur injuries as a result of the risks involved in such activities. The General Assembly also finds that the state and its citizens derive numerous economic and personal benefits from such activities. The General Assembly finds, determines, and declares that this chapter is necessary for the immediate preservation of the public peace, health, and safety. It is, therefore, the intent of the General Assembly to encourage equine activities ... by limiting the civil liability of those involved in such activities.

The General Assembly then established the limits of such civil liability in OCGA § 4-12-3 (a), which, in relevant part, provides:

Except as provided in subsection (b) of this Code section, an equine activity sponsor, an equine professional,... or any other person . . . shall not be liable for an injury to or the death of a participant resulting from the inherent risks of equine activities... and, except as provided in subsection (b) of this Code section, no participant or participant’s representative shall make any claim against, maintain an action against, or recover from an equine activity sponsor, an equine professional,... or any other person for injury, loss, damage, or death of the participant resulting from any of the inherent risks of equine activities.

In the case sub judice, there is no dispute that the parties were engaged in “equine activities” as defined by the statute or that Holcomb was a “participant” in such activities. Nevertheless, while acknowledging the general applicability of OCGA § 4-12-3 (a), Holcomb argues that summary judgment was not warranted because Long provided faulty equipment or tack and, therefore, under OCGA § 4-12-3 (b) (1) (A), was not entitled to civil immunity.

The relevant part of OCGA § 4-12-3 (b) (1) (A) provides:

Nothing in subsection (a) of this Code section shall prevent or limit the liability of an equine activity sponsor, an equine professional, ... or any other person if the equine activity sponsor, equine professional, ... or person . . . [pjrovided the equipment or tack, and knew or should have known that the equipment or tack was faulty, and such equipment or tack was faulty to the extent that it did cause the injury.

And here, Holcomb specifically contends that Long’s failure to re-tighten the front girth during the ride and Long’s provision of a saddle that did not include a cinch hobble to connect the front and rear girths constituted providing “faulty tack” within the meaning of the statute, causing the saddle to slide off the horse he was riding. However, we do not agree that the term “faulty tack” can fairly be construed so broadly.

To begin with, Holcomb’s own expert acknowledged that cinch hobbles are not always used and stated that he did not think it likely that the lack of a cinch hobble caused the accident in this instance. Thus, we find no support for Holcomb’s argument that the lack of a cinch hobble in this case amounted to “faulty tack” under the statute.

Furthermore, while the expert testified that Holcomb’s fall was a result of Long’s failure to re-tighten the front girth, he also stated that he observed nothing defective about the girth or saddle itself. Consequently, even assuming that Long’s failure to re-tighten the front girth caused the accident, we are not persuaded that such inaction constitutes “faulty tack” within the meaning of the statute. Although we have found no Georgia case law defining “faulty tack,” we decline to construe that exception as encompassing tack that is inadequately secured but otherwise in good working order. Indeed, doing so would run afoul of the General Assembly’s expressed desire of creating broad immunity for equine professionals engaging in equine activities with narrowly defined exceptions.

2. Holcomb also contends that the trial court erred in finding that the Equine Activities Act barred his lawsuit, arguing that Long was not entitled to immunity because he wantonly disregarded Holcomb’s safety. Again, we disagree.

This additional exception to civil immunity, which Holcomb claims applies here, is found in OCGA § 4-12-3 (b) (3) and provides:

Nothing in subsection (a) of this Code section shall prevent or limit the liability of an equine activity sponsor, an equine professional, ... or any other person if the equine activity sponsor, equine professional, ... or person . . . [cjommits an act or omission that constitutes willful or wanton disregard for the safety of the participant, and that act or omission caused the injury. . . .

In Muller v. English, this Court construed the Equine Activities Act for the first time. And with regard to the statute’s use of the terms “willful” and “wanton,” we held that

[wjilful [misconduct] is based on an actual intention to do harm or inflict injury; wanton conduct is that which is so reckless or so charged with indifference to the consequences as to be the equivalent in spirit to actual intent. Wilful misconduct, or wilful failure or refusal to perform a duty required by statute, is more than negligence or even gross negligence; it involves conduct of a criminal or quasi-criminal nature, the intentional doing of something, either with the knowledge that it is likely to result in serious injury, or with the wanton and reckless disregard of its probable consequences.

Here, as previously noted, the evidence shows that Holcomb fell from Tumbleweed as a result of the saddle’s front girth loosening, rendering the saddle unstable. Additionally, Holcomb’s expert testified that Long should have re-tightened the saddle during Holcomb’s ride. And although Holcomb testified that Long admitted to him that he noticed the saddle beginning to loosen while Holcomb rode in the pasture, such evidence — at most — would establish Long’s negligence or perhaps gross negligence. But negligence does “not show criminal or quasi-criminal conduct, recklessness, or indifference to the consequences so as to amount to evidence of willful or wanton disregard for the safety of the participant.” Accordingly, the trial court did not err in ruling that Long was entitled to civil immunity under OCGA § 4-12-3 (a).

Decided November 10, 2014.

Coppedge & Associates, Warren N. Coppedge, Jr., Daniel H. Laird III, for appellant.

Jenkins & Bowen, Frank E. Jenkins III, Robert L. Walker, for appellee.

3. Holcomb further contends that the trial court erred in ruling that no genuine issue of material fact existed as to whether the lack of a cinch hobble proximately caused the accident. However, in light of our holding in Division 1, supra, this contention is a nonstarter.

As previously noted, OCGA § 4-12-3 (b) (1) (A) provides that nothing in O C GA § 4-12 - 3 (a) prevents or limits liability if the equine activity sponsor, equine professional, or person “[p]rovided the equipment or tack, and knew or should have known that the equipment or tack was faulty, and such equipment or tack was faulty to the extent that it did cause the injury.” While the last part of this subsection requires a showing of proximate cause, such a showing is predicated on first establishing that the tack in question was faulty. Given our holding that Holcomb failed to show that the lack of a cinch hobble constituted “faulty tack” within the meaning of the statute, we need not address this issue.

Judgment affirmed.

Doyle, P. J., and Miller, J., concur.

        See OCGA § 4-12-1 et seq.

        See Martin v. Herrington Mill, LP, 316 Ga. App. 696, 697 (730 SE2d 164) (2012) (“[A] de novo standard of review applies to an appeal from a grant or denial of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.” (punctuation omitted)).

       The front cinch is the wide strap that fits under the horse and attaches to the rigging to secure the saddle. On English style saddles, this part is more commonly known as a girth. See Western Saddle Guide, http://www.western-saddle-guide.com/cinch.html (last visited October 15, 2014).

       The cinch hobble connects the front and flank cinches together. See Western Saddle Guide, http://www.western-saddle-guide.com/cinch-connecting-strap.html (last visited October 15, 2014).

        See OCGA § 4-12-1 et seq.

       OCGA § 9-11-56 (o).

        Cowart v. Widener, 287 Ga. 622, 624 (1) (a) (697 SE2d 779) (2010).

        Benefield, v. Tominich, 308 Ga. App. 605, 607 (1) (708 SE2d 563) (2011) (punctuation omitted).

        Deal v. Coleman, 294 Ga. 170, 172 (1) (a) (751 SE2d 337) (2013) (citation and punctuation omitted); see Arby’s Restaurant Group, Inc. v. McRae, 292 Ga. 243, 245 (1) (734 SE2d 55) (2012) (same); Martinez v. State, 325 Ga. App. 267, 273 (750 SE2d 504) (2013) (same).

        See Deal, 294 Ga. at 172 (1) (a) (“To that end, we must afford the statutory text its plain and ordinary meaning.”) (citation and punctuation omitted); State v. Able, 321 Ga. App. 632, 636 (742 SE2d 149) (2013) (“A judge is charged with interpreting the law in accordance with the original and/or plain meaning of the text at issue (and all that the text fairly implies) . . . .”); Singletary v. State, 310 Ga. App. 570, 572 (713 SE2d 698) (2011) (“In construing these statutes, we apply the fundamental rules of statutory construction that require us to construe the statutes according to their terms, [and] to give words their plain and ordinary meaning....”) (citation and punctuation omitted).

        See Arizona v. Inter Tribal Council of Arizona, Inc., _ U. S. _ (133 SCt 2247, 2254, 186 LE2d 239) (2013) (Scalia, J.) (“Words that can have more than one meaning are given content, however, hy their surroundings.”) (citation and punctuation omitted); Deal, 294 Ga. at 172 (1) (a) (“[W]e must view the statutory text in the context in which it appears [.]”); Hendry v. Hendry, 292 Ga. 1, 3 (1) (734 SE2d 46) (2012) (same); In the Interest of L. T., 325 Ga. App. 590, 592 (754 SE2d 380) (2014) (same); Martinez, 325 Ga. App. at 273 (same); see also Scherr v. Marriott Intern., Inc., 703 F3d 1069, 1077 (7th Cir. 2013) (Manion, J.) (“In statutory construction cases, we begin with the language of the statute itself and the specific context in which that language is used.”) (citation and punctuation omitted); OCGA § 1-3-1 (b) (“In all interpretations of statutes, the ordinary signification shall be applied to all words . . . .”).

        Deal, 294 Ga. at 172-73 (1) (a); see Luangkhot v. State, 292 Ga. 423, 424 (1) (736 SE2d 397) (2013) (same); Martinez, 325 Ga. App. at 273 (same).

        In the Interest of L. T., 325 Ga. App. at 592 (citation and punctuation omitted); see also Ga. Transmission Corp. v. Worley, 312 Ga. App. 855, 856 (720 SE2d 305) (2011) (same); Singletary, 310 Ga. App. at 572 (same).

        Luangkhot, 292 Ga. at 424 (1) (punctuation omitted); see Deal, 294 Ga. at 173 (1) (a) (“[I]f the statutory text is clear and unambiguous, we attribute to the statute its plain meaning, and our search for statutory meaning is at an end.”) (punctuation omitted); Martinez, 325 Ga. App. at 273 (same).

       As a part of an act passed hy the General Assembly and approved by the governor, the preamble of a statute may properly be considered by our courts to the extent that it sheds light on the meaning of the substantive terms contained in the statute. See JIG Real Estate, LLC v. Countrywide Home Loans, Inc., 289 Ga. 488, 492-93 (712 SE2d 820) (2011); Concerned Citizens of Willacoochee v. City of Willacoochee, 285 Ga. 625, 626 (680 SE2d 846) (2009); Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 218 (1st ed. 2012) (noting that “[s]ome courts and commentators have said that the prologue [i.e., preamble to a statute] cannot be invoked when the text is clear. This limitation is reasonable if it means that the prologue cannot give words and phrases of the dispositive text itself a meaning that they cannot bear. But the limitation is unreasonable and erroneous if it means that the prologue cannot be considered in determining which of various permissible meanings the dispositive text bears. If the prologue is indeed an appropriate guide to meaning, it ought to be considered along with all other factors in determining whether the instrument is clear. The factors undermining its reliability affect its weight, not its relevance”).

        See OCGA § 4-12-2 (2) (“ ‘Engages in an equine activity’ means riding, training, assisting in providing medical treatment of, driving, or being a passenger upon an equine, whether mounted or unmounted, or any person assisting a participant or show management.”).

        See OCGA § 4-12-2 (12) (“ ‘Participant’ means any person, whether amateur or professional, who engages in an equine activity or who engages in a llama activity, whether or not a fee is paid to participate in such activity.”).

       OCGA § 4-12-3 (b) (1) (A).

       See Mays v. Valley View Ranch, Inc., 317 Ga. App. 143, 150-51 (2) (b) (ii) (730 SE2d 592) (2012) (holding that defendant’s failure to provide quick release tie ropes when plaintiff was tacking up her horse did not constitute faulty equipment for purposes of the faulty equipment exception to the Equine Activities Act’s civil-immunity provision).

        See Hubner v. Spring Valley Equestrian Ctr., 1 A3d 618, 631 (III) (C) (N. J. 2010) (holding that faulty equipment exception in New Jersey Equine Activities Liability Act did not encompass cavaletti (rails placed on the ground for training purposes), which were in good working order but allegedly faulty because they were not secured, given the fact that in passing the act, the legislature provided that the provisions expressing the scope of the risks assumed would be read broadly in favor of the facility operators, while the obligations of the operators would be narrowly construed); cf. Zuckerman v. Coastal Camps, Inc., 716 FSupp.2d 23, 29-33 (II) (B) (1)-(2) (D. Me. 2010) (holding that genuine issues of material fact existed as to whether tack provided by equine activity sponsor constituted faulty tack, so as to fall under exception to protection provided by Maine Equine Activities Act in action in which plaintiff alleged that defendant negligently saddled her horse and further noting the lack of any suggestion that act was meant to repudiate possibility of simple negligence arising in the context of equine activities).

        See U.S. Bank Nat’l Ass’n v. Gordon, 289 Ga. 12, 15 (709 SE2d 258) (2011) (“[Statutes ‘in pari materia,’ i.e., statutes relating to the same subject matter, must be construed together.” (citation and punctuation omitted)); Deal, 294 Ga. at 172 (1) (a) C‘[W]e must view the statutory text in the context in which it appears [.]”); Hendry, 292 Ga. at 3 (1) (same); In the Interest of L. T., 325 Ga. App. at 592 (same); Martinez, 325 Ga. App. at 273 (same).

       221 Ga. App. 672 (472 SE2d 448) (1996).

        Id. at 676 (2) (c) (citations and punctuation omitted); accord Adams v. Hare, 244 Ga. App. 605, 609 (2) (b) (536 SE2d 284) (2000).

        Muller, 221 Ga. App. at 678 (2) (c) (punctuation omitted); accord Adams, 244 Ga. App. at 609 (2) (b).

        See Adams, 244 Ga. App. at 609 (2) (b) (holding that former owner’s alleged failure to disclose horse’s dangerous behavior did not constitute wilful and wanton disregard for plaintiff’s safety within the meaning of OCGA § 4-12-3 (b) (3)); Muller, 221 Ga. App. at 677-78 (2) (c) (holding that defendant’s conduct in riding a horse with a known propensity to kick did not constitute wilful or wanton disregard for plaintiff’s safety).

       OCGA § 4-12-3 (b) (1) (A) (emphasis supplied).

       In reviewing the summary judgment order, we recognize that the trial court focused on whether Holcomb established that the lack of a cinch hobble proximately caused the accident rather than whether the lack of a cinch hobble constituted faulty tack or equipment. Nevertheless, “[sjummary judgment may be affirmed if it is right for any reason.” Jones v. Bd. of Regents of the Univ. Sys. of Ga., 262 Ga. App. 75, 77 (1) (585 SE2d 138) (2003).


author: Doyle, Presiding Judge.

text:
    A14A0768.
    CITY OF ATLANTA v. KOVALCIK et al.
    (765 SE2d 693)
   Doyle, Presiding Judge.

In this interlocutory appeal, the City of Atlanta appeals from the denial of its motion for summary j udgment in a wrongful death action brought by the parents of Stephanie Kovalcik, who died in a nighttime car wreck at a newly reconfigured intersection in the City. The City contends that the trial court erred because (1) the City cannot be liable for any lighting defects in the absence of an underlying roadway defect, (2) the City had no duty to maintain the lighting, and (3) the undisputed facts show that the City had not assumed maintenance responsibility for the lighting. For the reasons that follow, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

The background facts in this case are largely undisputed and are the same as those recited in Dept. of Transp. v. Kovalcik, in which this Court recently addressed an appeal by the Georgia Department of Transportation (“DOT”) based on the same wreck.

[T]he DOT, the City of Atlanta, and the Buckhead Community Improvement District (“BCID”) began planning a road improvement project to redesign a portion of Peachtree Road (“Project”), a State route within the City limits. In February 2004, the DOT and the City entered into an agreement to undertake certain improvements including the Project. The agreement stated that the City would [“] accomplish all of the design activities for the project in accordance with the DOT’s Plan Development Process, the applicable guidelines of the American Association of State Highway and Transportation Officials, the DOT’s Standard Specifications Construction of Roads and Bridges, the [DOT’s] Plan Presentation Guide, Project schedules, and applicable guidelines of the DOT.[”]
The contract further provided that the DOT [“] shall review and has approval authority for all aspects of the Project provided however this review and approval does not relieve the City of its responsibilities under the terms of this agreement. The DOT will work with the [Federal Highway Administration] to obtain all needed approvals with information furnished by the City.[”]
Pursuant to an agreement between the BCID and the City, the BCID retained URS Corporation to deliver construction plans that included road design, signage, pavement markings, curbs, traffic signals, and landscaping. URS prepared the plans and, through an iterative process of review and feedback, the DOT approved them.
In January 2006, the DOT awarded a construction contract to Infrasource Paving and Concrete Services, and contracted with Parsons Brinkerhoff Shuh & Jernigan (“PBS J”) to provide construction, engineering, and inspection services for the Project. . . .
Active construction ended [with a ribbon cutting ceremony] in October 2007, and a final inspection was performed in January 2008. On a rainy night in March 2008, Cameron Bridges approached the intersection in Stephanie’s car with her as his passenger. The complaint alleges that Bridges was heading south on Peachtree Road, and, intending to turn left onto Piedmont Road, Bridges entered what he believed to be the left-hand turn lane. Instead, the vehicle entered a short left-hand turn lane immediately preceding the Piedmont intersection so that drivers could turn left into a parking lot at the northeast corner of Peachtree and Piedmont. This shorter turn lane was bounded by a concrete divider, which allegedly caused the vehicle to roll when Bridges mistakenly drove into it. [Several newly installed street lights in the area were not illuminated on the night of the crash.]
Stephanie died of injuries she suffered in the crash, and the Kovalciks filed suit against the DOT, the City, BCID, URS, PBSJ, and others.

Following discovery, the City moved for summary judgment, arguing that it was not involved with the design, construction, or inspection activities — all of which were conducted by various contractors according to the agreements between the City, BCID and DOT. The City also argued that the street lighting was not under the purview of the City at the time of the accident. The trial court, in a two-sentence order, denied the City’s motion, concluding that “a jury should determine whether [the City] assumed, or should have assumed, responsibility for the streetlights at issue herein.” The trial court certified its decision for immediate review; this Court then granted the City’s application for interlocutory review.

1. The City first argues that defective lighting cannot give rise to liability on the part of the City absent some underlying defect in the street. The City relies on Roquemore v. City of Forsyth, which addressed a suit against a city by a pedestrian hit by a car at an intersection. In that case, the Court summarized the relevant law as follows:

The law is well settled in this State that a municipal corporation is bound to keep its streets and sidewalks in a reasonably safe condition for travel in the ordinary modes, by night as well as by day, and if it fails to do so, it is liable for damages for injuries sustained in consequence of such failure. But it is also undisputed that the decision whether to provide lighting on a particular city street is a discretionary function of a municipality. Such lighting is a discretionary act of the municipality, and for the exercise or failure to exercise such a power no right of action accrues. And it would seem that the discretion to install a system of lighting would include a discretion to discontinue it.
In reconciling a city’s duty to maintain safe streets with its discretion in providing lighting on those streets, the Supreme Court of Georgia has held that “the character of the light at a dangerous point in the street, or its absence, may be shown as a circumstance bearing on” the issue of whether a city has maintained a street in a reasonably safe condition, or whether it was negligent in that regard. But the mere absence of an ordinary street light at a given point will not constitute such negligence as to render the city liable if the city otherwise has performed its obligation to keep the streets safe and free from defects. The [C]ourt explained that “neither the absence of lights nor defective lights is in itself negligence, but is only evidence on the principal question, whether, at the time and place where an injury occurred, the streets were in a reasonably safe condition.” And Georgia courts have never held that the temporary failure of a street-light to burn at a point where there is no obstruction, excavation, or other extraordinary defect in the street, gives rise to any liability against a city or its agents.

Based on the emphasized language, the City argues that it has no liability stemming from the mere absence of working street lights at the site of the crash. Therefore, the City asserts that the trial court erred by concluding that a jury could find that liability could flow from the City’s responsibility for the lighting at the crash site.

This argument does not require reversal in light of the somewhat peculiar factual circumstances of this case. The evidence shows that the crash occurred at the site of a newly redesigned intersection with an unusual left-turn configuration. The regular left-turn-only lane was marked by overhead signage, but it was immediately preceded by a shorter, unsigned left-turn lane with a concrete divider extending into the path of the regular turn lanes and diverting traffic into a private parking lot. A driver traveling in the shortened turn lane would necessarily encounter the concrete divider unless he turned into the private lot. In light of the physical design of the curb and the traffic routing feature of the shortened turn lane, notice to drivers about lane designations was vital to safe passage through the intersection. In fact, the investigating officer observed damage indicating several other unrelated curb strikes at the newly constructed turn lane in the same location as the Kovalcik crash. He further observed that eight out of ten streetlights were out at the time of the crash, and the lack of lighting was a concern to him based on the unusual design and the fact that it was dark and raining, and visibility was poor. Further, because of the City’s role in the design and construction of the intersection, there is evidence that the City knew or should have known that the lighting was not yet operational. Under these unusual circumstances, absence of lighting could be considered as evidence on the issue of whether, at the time and place of the crash, the newly constructed intersection was being maintained in a reasonably safe condition.

Decided November 12, 2014

2. The City next takes issue with the wording of the trial court’s conclusion, i.e., “that a jury should determine whether [the City] assumed, or should have assumed, responsibility for the streetlights at issue.” Essentially, the City argues that determining the extent of the City’s duty to maintain the lights is a legal question and not a factual question for the jury. It is true that the existence of a duty is a legal question not for the factfinder, but we do not read the trial court’s order as inconsistent with this maxim. The trial court’s ruling simply reserves for the jury the question whether the City, as a matter of fact, actually did assume responsibility for the lighting or whether the City failed to do what it agreed to do (with regard to the lighting) despite any argument that it was not legally required to. Therefore, we discern no error on this ground.

3. Finally, the City argues that there is no evidence that the City did in fact assume responsibility for the lighting. But there is evidence that the City would assume responsibility for operating signals and lighting upon completion of construction, and there is evidence that the City considered the newly-designed intersection safe for public passage when it opened the intersection in October 2007 despite the lack of working lighting. Further, there is evidence that at the time of the wreck the lighting had been energized “for quite a while,” and simply needed to be entered into the City’s billing account with the power company. Accordingly, we discern no error in the trial court’s ruling that a question remains as to whether the City, as a factual matter, did assume or should have assumed responsibility for the lighting at the intersection.

Judgment affirmed.

Miller and Dillard, JJ., concur.

Laura S. Burton, for appellant.

Robin F. Clark, Deitch & Rogers, Andrew T. Rogers, for appellees.

       (Citation omitted.) Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

       328 Ga. App. 185 (761 SE2d 584) (2014).

       The facts in Dept, of Transp. v. Kovalcik were reviewed under a different standard of review, but the relevant factual background is largely undisputed, so the factual recitation therein is helpful here.

      (Punctuation and footnote omitted.) Id. at 186-187.

       274 Ga. App. 420 (617 SE2d 644) (2005).

       (Citations and punctuation omitted; emphasis supplied and omitted.) Id. at 422, quoting Williams v. Mayor &c. of Washington, 142 Ga. 281, 283 (1) (82 SE 656) (1914).

       Compare Roquemore, 274 Ga. App. at 423 (no liability because no evidence of actual or constructive knowledge on the part of the city).

       Cf. Hall v. City Council of Augusta, 49 Ga. App. 77, 78 (3) (174 SE 172) (1934) (“evidence as to the character and position of lights at or near the scene of the accident, or their absence therefrom, could be adduced as a circumstance tending to show whether or not the street was in a reasonably safe condition”). Compare Roquemore, 274 Ga. App. at 422 (noting “no evidence in the record of any defect, obstruction or other dangerous condition in the street where the accident occurred”).

       (Emphasis supplied.)

       See, e.g., Norfolk Southern R. Co. v. Zeagler, 293 Ga. 582, 586-587 (2) (748 SE2d 846) (2013) (“[A]t the summary judgment stage, keeping the legal question of duty distinct from the factual questions of foreseeability, breach, and causation is essential to ensure that the court does not inappropriately decide factual issues that should be submitted to the jury.”).


author: DOYLE, Presiding Judge. DILLARD, Judge,

text:
    A14A0832.
    LINGO v. THE STATE.
    (765 SE2d 696)
   DOYLE, Presiding Judge.

James Lingo appeals his conviction for robbery, arguing that the trial court erred by admitting evidence of his gang affiliation. We agree, but nevertheless affirm because Lingo has failed to establish harm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and an appellant no longer enjoys the presumption of innocence. This Court determines whether the evidence is sufficient under the standard of Jackson v. Virginia,[ ] and does not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, we must uphold the jury’s verdict.

So viewed, the record shows that on January 14, 2012, middle schoolers Richard Dominguez and Donovan Martinez were approached at a Gwinnett County car wash by three males who asked to borrow a phone. One of the males pointed a knife at Dominguez and demanded his phone, another grabbed it, and then all three assailants ran. According to Dominguez, the man with the knife was white, wore a red and black varsity school jacket and a black baseball cap, had on a ski mask that covered the bottom half of his face, and had a centimeter long “open” star mark on his face below his left eye. Dominguez described the other two assailants as black males wearing gray hooded jackets. Martinez testified that two of the men were black and the third man, who wielded the knife, was white, wore a black ski mask over his mouth, a red varsity j acket, and a red hat, and had a star under one of his eyes.

Police showed Dominguez a photographic lineup, which contained a photograph of Lingo taken before he got his tattoo; Dominguez was unable to identify him. At a February 29,2012 hearing, Dominguez initially identified Lingo, who was sitting at the defense table, as the white assailant, but clarified that he was not sure of his identification; at trial, however, Dominguez testified that Lingo was the white assailant. Martinez identified Lingo at trial as the assailant who wielded a knife during the robbery.

On January 25,2012, teenager Patrick Reed was walking through the parking lot of the Club Lakes apartment complex in Gwinnett County when a male grabbed him from behind and put him in a choke hold. Another man approached, and the two began punching Reed, threw him to the ground, and kicked him. One of the men directed the other to get Reed’s phone and check his pockets. One of the men took money from Reed, but the assailants fled when someone came out of his or her home before the assailants could wrestle Reed’s phone from him. According to Reed, the man who initially grabbed him was white, wore a red hat, red jacket, and green tennis shoes, and he had a star tattoo under his left eye; the other man was black and wore a navy blue jacket. A police officer investigating a separate incident in the late afternoon on January 25, 2012, saw Lingo in the Club Lakes apartment complex wearing a red jacket and a red baseball cap. Reed was unable to identify the assailants from a photographic lineup, but he identified Lingo as one of the assailants in a subsequent court proceeding in February 2012.

On January 27, 2012, Reed’s sister was driving through the Club Lakes apartment complex when she saw two men matching the description Reed gave of the men who assaulted him two days before. After calling Reed and confirming his description, she called the police, and followed the two men to a nearby market, where police arrived. Lingo, who was one of the men pointed out by Reed’s sister, had a small tattoo under his left eye and was wearing red pants, red and black shoes, and a red Atlanta Braves cap. Lingo’s co-defendant, Ralik Jones, was also present. Police searched Lingo’s apartment and found a red and gray sweatshirt; green Nike shoes; a black, white, and red varsity jacket; and a blue and gray jacket.

Lingo was charged with armed robbery and aggravated assault in connection with the January 12 incident involving Martinez and Dominguez; Lingo and co-defendant Jones were charged with robbery in connection with the January 25 incident involving Reed. Lingo made an oral motion in limine before trial to exclude any evidence regarding his participation in a gang. After hearing argument, the trial court denied the motion, permitting the State to introduce testimony from an officer regarding Lingo’s gang membership for the purpose of showing identity, concluding that the probative value of the evidence outweighed its prejudicial effect.

During the trial, Investigator Kevin Sipple testified that on May 13, 2010, Lingo advised that he was a two-star general in the Black P Stone Nation gang and that the gang’s predominant colors are black and red, with green as an associate color. Sipple also testified that Lingo’s co-defendant, Jones, was a member of the same gang, and the gang members all predominantly wore the gang colors.

With regard to the charges involving Martinez and Dominguez, the trial court directed a verdict of acquittal as to the aggravated assault charge, and the jury found Lingo not guilty of armed robbery. With regard to the charges involving Reed, the jury found Lingo not guilty of armed robbery, but guilty of robbery, and Lingo was sentenced to twenty years, to serve eight in confinement.

Lingo appeals the denial of his subsequent motion for new trial, arguing that the trial court erred by admitting the evidence of his gang affiliation. We agree, but affirm for the reasons that follow.

“As a general rule, admission of evidence is a matter resting within the sound discretion of the trial court, and appellate courts will not disturb the exercise of that discretion absent evidence of its abuse.”

Lingo’s trial began on March 11, 2013, after the effective date of Georgia’s new Evidence Code, which applies to trials commenced on or after January 1, 2013. “The new Code adopted, in large measure, the Federal Rules of Evidence, and its sections are comparable to corresponding federal rules. Because of this similarity, it is proper that we give consideration and great weight to constructions placed on the Federal Rules by the federal courts.”

OCGA § 24-4-404 (b) provides in relevant part:

Evidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. . ..

Thus, “if the evidence of other acts is relevant for some other purpose than to show a probability that the defendant committed the crime because he is a man of criminal character, the evidence is admissible despite incidentally placing the defendant’s character in issue.”

The Eleventh Circuit utilizes a three-part test for evidence of other crimes or acts to be admissible pursuant to Federal Rule of Evidence 404 (b): (1) it must be relevant to an issue other than the defendant’s character; (2) there must be sufficient proof to enable a jury to find by a preponderance of the evidence that the defendant committed the act(s) in question; and (3) the probative value of the evidence cannot be substantially outweighed by undue prejudice, and the evidence must satisfy Federal Rule of Evidence 403.

OCGA § 24-4-403, which tracks Federal Rule 403, provides that “[rjelevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”

In this case, there was no evidence whatsoever that the robberies were gang-related. Although gang affiliation may be admissible to show motive, that was not the purpose of the admission of the evidence in this case, and there was no evidence that Lingo’s gang membership was in any way related to his motive for committing the crimes. And although the Supreme Court of Georgia and this Court have previously affirmed the admission of evidence regarding a defendant’s prior gang affiliation as res gestae, here, because the evidence of Lingo’s gang affiliation was unrelated to the crimes, it was not res gestae. Moreover, Lingo’s prior gang affiliation had minimal probative value with regard to identity. The fact that Lingo was wearing gang colors — red and black — at the time the crimes were committed is not enough in itself to establish a probative connection between the crimes alleged and his gang affiliation, particularly given that others who were involved in the robberies were not wearing gang colors. Similarly, the fact that Lingo’s co-defendant was also a member of the same gang was of limited probative value, considering that they were apprehended together and in the absence of any evidence that the crimes were gang-related. Thus, the evidence of Lingo’s gang membership two years before the crimes in the case was of minimal, if any, probative value.

In the absence of a charge of violation of the Georgia Street Gang Terrorism and Prevention Act, evidence of a defendant’s gang affiliation is highly prejudicial. And in this case, the unfairly prejudicial effect of the evidence of Lingo’s gang affiliation substantially outweighed its minimal probative value. Accordingly, the trial court abused its discretion in admitting the evidence of Lingo’s gang membership.

Decided November 12, 2014.

Michael S. Marr, for appellant.

Daniel J. Porter, District Attorney, Karen M. Harris, Assistant District Attorney, for appellee.

Nevertheless, “it is fundamental that harm as well as error must be shown for reversal.” In this case, the victim identified Lingo in court; a police officer saw Lingo in the same apartment complex where the crimes occurred on the day of commission; Lingo was apprehended two days after the robbery in the same apartment complex wearing a red hat and red jacket matching that described by the victim; and the police discovered in Lingo’s home clothing matching the description of that worn by both assailants on the day of the robbery. Given this evidence and that the jury acquitted Lingo of the armed robbery of Dominguez, we conclude that the trial court’s, erroneous admission of the evidence of Lingo’s gang affiliation was harmless and does not require reversal.

Judgment affirmed.

Miller, J., concurs. Dillard, J., concurs in judgment only.

DILLARD, Judge,

concurring in judgment only.

I concur in judgment only because I do not agree with all that is said in the majority opinion. As such, the majority’s opinion decides only the issues presented in the case sub judice and may not be cited as binding precedent. See Court of Appeals Rule 33 (a).

       OCGA § 16-8-40 (a) (1).

       443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

       (Citations omitted.) Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004).

       At trial, an officer testified that when creating a photographic lineup, police intentionally either digitally remove distinguishing features, such as visible tattoos, from a suspect’s photograph or select other individuals for the lineup who have the same feature.

       Jones was not tried with Lingo.

       A police officer testified at trial that Reed stated that the white male who assaulted him was wearing a red sweatshirt with a gray center.

       Lingo and Jones were also charged with criminal attempt to commit burglary of two separate residences on January 27, 2012, but the State entered a nolle prosequi as to those charges.

       The trial court instructed the jury that the evidence was admitted for the sole purpose of establishing identity.

       Lingo was tried separately from Jones.

       (Punctuation omitted.) Williams v. State, 328 Ga. App. 876, 877 (1) (763 SE2d 261) (2014).

       (Punctuation andfootnotes omitted.) Jones v. State, 326 Ga. App. 658, 660 (1) (757 SE2d 261) (2014).

       (Citations and punctuation omitted.) Washington v. State, 294 Ga. 560, 563 (2) (755 SE2d 160) (2014).

        Jones, 326 Ga. App. at 660 (1), citing United States v. Edouard, 485 F3d 1324, 1344 (II) (C) (11th Cir. 2007); United States v. Delgado, 56 F3d 1357, 1365 (III) (B) (11th Cir. 1995).

       See, e.g., Wolfe v. State, 273 Ga. 670, 674 (4) (a) (544 SE2d 148) (2001) (gang membership was key to the defendant’s motive to commit the crimes, which he did at the request of gang members and pursuant to gang’s code of conduct, which required him to participate or to suffer repercussions); Johnson v. State, 277 Ga. App. 499, 507 (4) (627 SE2d 116) (2006) (evidence of defendant’s gang membership was admissible and “relevant to show how the defendants knew one another, and to provide a context and motive for the defendants’ joint participation in the robbery”).

       See, e.g., Corza v. State, 273 Ga. 164, 166 (2) (539 SE2d 149) (2000); Morey v. State, 312 Ga. App. 678, 684-685 (1) (b) (719 SE2d 504) (2011). Similarly, the Eleventh Circuit has held that “[ejvidence, not part of the crime charged but pertaining to the chain of events explaining the context, motive, and set-up of the crime, is properly admitted if linked in time and circumstances with the charged crime, or forms an integral and natural part of an account of the crime, or is necessary to complete the story of the crime for the jury.” (Citation and punctuation omitted.) Edouard, 485 F3d at 1344 (II) (C).

       Compare Johnson v. State, 261 Ga. App. 98, 104 (5) (c) (581 SE2d 715) (2003).

       OCGA § 16-15-1 et seq.

       See Jones v. State, 292 Ga. 656, 662 (2) (740 SE2d 590) (2013) (“it was highly prejudicial for the prosecuting attorney to argue that [the defendant] had been involved in a prior gang shooting”).

       The Eleventh Circuit has described Federal Rule of Evidence 403 “as ‘an extraordinary remedy which the courts should invoke sparingly, and the balance should be struck in favor of admissibility.’ ” Flading v. State, 327 Ga. App. 346, 351-352 (2) (759 SE2d 67) (2014), quoting United States v. Sumner, 522 Fed. Appx. 806, 810 (11th Cir. 2013). The Eleventh Circuit has also explained, however, that “[t]he major function of Rule 403 is to exclude evidence ‘of scant or cumulative probative force, dragged in by the heels for the sake of its prejudicial effect,’ ” within which category the evidence of Lingo’s gang affiliation falls in this case. United States v. Aguila-Urbay, 480 Fed. Appx. 564, 567 (11th Cir. 2012).

       See, e.g., Jones, 326 Ga. App. at 666 (1).

       (Punctuation omitted.) O’Neal v. State, 288 Ga. 219, 223 (2) (702 SE2d 288) (2010), quoting Matthews v. State, 268 Ga. 798, 803 (4) (493 SE2d 136) (1997). See also Williams, 328 Ga. App. at 877 (1) (erroneous admission of evidence under OCGA § 24-4-403 is subject to harmless error analysis).


author: DOYLE, Presiding Judge.

text:
    A14A1040.
    CHARALES v. THE STATE.
    (765 SE2d 701)
   DOYLE, Presiding Judge.

Following a bench trial, Robert Charales a/k/a Robert Chakales was found guilty of driving under the influence to the extent it was less safe to drive (“DUI less safe”) and driving under the influence with an unlawful alcohol concentration (“DUI per se”). Charales appeals the denial of his subsequent motion for new trial, arguing that the trial court erred by denying his pretrial motion to suppress because (1) the checkpoint at which he was stopped was unlawful, and (2) police failed to timely read him the implied consent notice. Because the State failed to demonstrate that the law enforcement agency’s checkpoint program had an appropriate primary purpose, we reverse.

When reviewing a trial court’s ruling on a motion to suppress, the appellate court follows three fundamental principles.

First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support them. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment. These principles apply equally whether the trial court ruled in favor of the State or the defendant.

So viewed, the evidence shows that on March 14, 2009, Charales was arrested and charged with DUI less safe and DUI per se following his inability to properly perform field sobriety tests at a checkpoint implemented by the Atlanta Police Department (“APD”). With Charales’s consent, police administered two Intoxilyzer 5000 tests, which indicated blood alcohol levels of 0.206 and 0.215. Charales was charged with DUI per se and DUI less safe. Prior to trial, he filed a motion to suppress, arguing that the checkpoint was unlawful and the police failed to timely read him the implied consent notice, and the trial court denied the motion after an evidentiary hearing. Following a stipulated bench trial, the trial court found Charales guilty on both counts, and it merged the less safe count into the per se count. The trial court denied Charales’s subsequent motion for new trial, and this appeal followed.

1. Charales argues that the trial court erred by denying his motion to suppress because the State failed to prove that the APD’s checkpoint was lawful. We agree.

“[Wjhere a defendant challenges his initial stop at a police checkpoint by way of a motion to suppress, the State bears the burden of proving that the seizure was constitutional.” In Brown v. State, the Supreme Court of Georgia reaffirmed the five requirements that the State must show for a checkpoint to be upheld as constitutional as required in LaFontaine v. State:

(1) the decision to implement the [checkpoint] was made by supervisory personnel rather than the officers in the field; (2) all vehicles [were] stopped as opposed to random vehicle stops; (3) the delay to motorists [was] minimal; (4) the [checkpoint] operation [was] well identified as a police checkpoint; and (5) the “screening” officer’s training and experience [was] sufficient to qualify him to make an initial determination as to which motorists should be given field tests for intoxication.

In addition, in City of Indianapolis v. Edmond, the United States Supreme Court “supplemented LaFontaine’& test for evaluating the implementation and operation of the particular checkpoint with a distinct requirement focused on the law enforcement agency’s checkpoint program.”

At a minimum, the State must show that the law enforcement agency’s checkpoint program had an appropriate primary purpose other than ordinary crime control —■ a purpose examined at that programmatic level, rather than by trying to determine the motives of the supervisor who implemented and the officers who conducted the particular checkpoint at issue.

Decided November 12, 2014.

Chestney Law Firm, James K. Sullivan, for appellant.

In this case, pretermitting whether the checkpoint established by the APD met the five LaFontaine requirements, the State has failed to prove that the checkpoint program had an appropriate primary purpose.

Sergeant Zachery Wilson testified at the suppression hearing that he, acting as a field supervisor, called for the checkpoint that evening where Charales was stopped and arrested. According to Sergeant Wilson, the purpose of that particular checkpoint was not crime suppression, but rather to “check for driver’s license [s], seat belts[, headlights,] and safety violations.” There was, however, no testimony nor any written evidence admitted regarding the APD’s checkpoint policy or program as a whole. As the Supreme Court of Georgia recently explained,

a finding that a particular checkpoint has a primary purpose other than ordinary crime control is not enough to satisfy the Edmond requirement. Edmond requires an examination of the policy purpose of the checkpoints, viewed at the programmatic level, to ensure that an agency’s checkpoints are established primarily for a lawful and focused purpose like traffic safety rather than to detect evidence of ordinary criminal wrongdoing.

Because the State failed to show that the APD’s “ ‘checkpoint program had an appropriate primary purpose other than ordinary crime control’ when viewed at the programmatic level [,] ... we therefore must conclude that the checkpoint at which [Charales] was stopped violated the Fourth Amendment.” Thus, the trial court erred by denying Charales’s motion to suppress.

2. Based on our holding in Division 1, we need not address Charales’s second enumeration.

Judgment reversed.

Miller and Dillard, JJ., concur.

Carmen D. Smith, Solicitor-General, R. Leon Benham, Assistant Solicitor-General, for appellee.

       OCGA § 40-6-391 (a) (1).

       OCGA § 40-6-391 (a) (5).

       (Citation and punctuation omitted.) Brown v. State, 293 Ga. 787, 803 (3) (b) (2) (750 SE2d 148) (2013), quoting Miller v. State, 288 Ga. 286, 286-287 (1) (702 SE2d 888) (2010).

       The officer administered the field sobriety tests after noticing that Charales was unable to place his vehicle in park, had slurred speech and bloodshot eyes, and emanated a strong odor of alcohol; Charales denied that he had been drinking.

       Although the order denying the motion to suppress states that the motion was based on Charales’s arguments regarding the implied consent notice, the parties also presented evidence and argument regarding the legality of the checkpoint, and the trial court orally ruled at the suppression hearing that the checkpoint was proper.

       We note that a new superior court judge heard and ruled upon the motion for new trial after the judge who presided over the motion to suppress hearing and the bench trial retired.

        Brown, 293 Ga. at 799 (2) (f).

       Id.

       269 Ga. 251 (497 SE2d 367) (1998).

       (Punctuation omitted.) Brown, 293 Ga. at 793 (2) (b), quoting LaFontaine, 269 Ga. at 253 (3).

       531 U. S. 32 (121 SCt 447, 148 LE2d 333) (2000).

        Williams v. State, 293 Ga. 883, 891 (3) (b) (750 SE2d 355) (2013), citing Brown, 293 Ga. at 798-799 (2) (e).

       (Punctuation omitted; emphasis supplied.) Brown, 293 Ga. at 799 (2) (f), citing Edmond, 531 U. S. at 48 (III).

       (Punctuation omitted; emphasis in original.) Williams, 293 Ga. at 891 (3) (b).

       Id. at 893 (3) (b), quoting Brown, 293 Ga. at 799 (2) (e).