author: Phipps, Chief Judge. McMlLLIAN, Judge,

text:
    A14A1824.
    SMITH v. GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY. CHUPP v. GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY.
    A14A1825.
    (771 SE2d 452)
   Phipps, Chief Judge.

Amy Smith, individually and as next friend of Tyasia Brown, filed a personal injury action against Bobby Chupp, alleging that Brown, her daughter, suffered severe and permanent injuries as a result of having ingested lead-based paint in the house they rented from Chupp.

Georgia Farm Bureau Mutual Insurance Company (“GFBM”), with which Chupp had a commercial general liability insurance policy on the property, filed a declaratory judgment action against Smith and Chupp, seeking a determination that it was not required to provide coverage for the alleged injuries or to defend Chupp in the personal injury action because the alleged injuries came within the policy’s “[pollution exclusion.” The trial court granted summary judgment to GFBM in the declaratory judgment action.

In Case No. A14A1824, Smith appeals from the grant of summary judgment in the declaratory judgment action. In Case No. A14A1825, Chupp appeals from the same ruling. For the reasons that follow, we reverse the judgment in both cases.

In her personal injury complaint, Smith alleged that she and her daughter (who was born in 2004) resided as tenants in Chupp’s rental house for several years, beginning in 2004; that a health department inspection of the premises in 2007 revealed that the house had been painted with lead-based paint and that deteriorated lead-based paint was present throughout the house; that said paint was cracking, chipping, and peeling; that the child had been exposed repeatedly and continuously over a period of years to high levels of lead from lead paint; that medical tests conducted in 2007 revealed that the child had lead in her bloodstream; that an investigator’s report concluded that “the likely primary cause for the [child’s] elevated blood lead level is ingestion of leaded paint chips or dust”; that the child’s exposure to the lead-based paint during her infancy resulted in debilitating, permanent disabilities; and that Chupp breached his duties to, inter alia, keep the premises safe by abating the premises of lead paint and to warn Smith of the dangers posed by lead on the premises, the presence of which he had knowledge.

At issue in this case is whether the lead-based paint claims asserted in Smith’s personal injury action are excluded from coverage pursuant to the insurance policy’s “pollution exclusion.” We hold that the claims are not excluded.

Under the “Coverages” section of the policy, Section I, Paragraph 1, Subparagraph (a) provides in relevant part:

We will pay those sums that the insured becomes legally obligated to pay as damages because of “bodily injury” or “property damage” to which this insurance applies. We will have the right and duty to defend the insured against any “suit” seeking those damages. However, we will have no duty to defend the insured against any “suit” seeking damages for “bodily injury” or “property damage” to which this insurance does not apply. We may, at our discretion, investigate any “occurrence” and settle any claim or suit that may result.

Subparagraph (b) pertinently states:

This insurance applies to “bodily injury” and “property damage” only if: (1) [t]he “bodily injury” or “property damage” is caused by an “occurrence” that takes place in the “coverage territory.”

The term “[occurrence” is defined in the policy as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.”

The policy contains a section called “Exclusions.” It provides:

This insurance does not apply to:

(f) Pollution
(1) “Bodily injury” or “property damage” arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of “pollutants”: (a) At or from any premises, site or location which is or was at any time owned or occupied by, or rented or loaned to, any insured.

The policy defines “pollutants” as follows:

“Pollutants” mean any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. Waste includes materials to be recycled, reconditioned or reclaimed.

Case No. A14A1824

1. Smith contends that the trial court erred by granting summary judgment to GFBM because there is no exclusion in the policy which allows GFBM to deny insurance coverage for bodily injury resulting from lead-based paint ingestion. We agree with Smith.

This court reviews “the trial court’s grant of summary judgment de novo to determine whether the evidence of record, viewed in a light most favorable to the nonmoving party, demonstrates any genuine issue of material fact.” 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. “[T]he opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom favorably toward the party opposing the motion.”

The cardinal rule of [contract] construction is to ascertain the intention of the parties. If that intention is clear and it contravenes no rule of law and sufficient words are used to arrive at the intention, [the contract] shall be enforced irrespective of all technical or arbitrary rules of construction.

When a policy of insurance is so drawn as to require an interpretation, and it is fairly susceptible to two different constructions, the construction to be adopted will be the one most favorable to the insured.

Policies of insurance will be liberally construed in favor of the object to be accomplished, and conditions and provisions therein will be strictly construed against the insurer, as they are issued upon printed forms, prepared by experts at the insurer’s instance, in the preparation of which the insured has no voice.

Furthermore,

[i]n construing an insurance policy, the test is not what the insurer intended its words to mean, but what a reasonable person in the position of the insured would understand them to mean. The policy should be read as a layman would read it and not as it might be analyzed by an insurance expert or an attorney.

‘Where the claim is one of potential coverage, doubt as to liability and insurer’s duty to defend should be resolved in favor of the insured.” Exclusions from coverage in insurance policies require narrow construction on the theory that the insurer, having affirmatively expressed coverage through broad promises, assumes a duty to define any limitations on the coverage in clear and explicit terms. “Where the insurer seeks to invoke an exclusion contained in its policy, it has the burden of proving the facts come within the exclusion.”

We agree with Smith that lead-based paint is not clearly a “pollutant” as defined by the policy. As set out above, under the policy, a “pollutant” is “any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. Waste includes materials to be recycled, reconditioned or reclaimed.” The policy’s definition of “pollutant” does not include the words “lead,” “lead-based paint,” or even “paint.” Whether lead-based paint is properly classifiable as one of the substances specifically enumerated in the policy’s definition of “pollutant” is not clear.

In Kerr-McGee Corp. v. Ga. Cas. & Surety Co., this court held that a pollution exclusion clause (similar to the clause at issue in this case) was “so broad that a reasonable insured would not know what would be excluded under this provision as to cause of pollution, i.e., old lead paint in an apartment [.] . . .” The court held that the exclusion clause did not apply to exclude coverage for injuries resulting from the release of an industrial chemical (titanium tetrachloride), and reversed the grant of declaratory judgment to the insurance carrier.

The issue of whether lead-based paint is considered a “pollutant” for the purposes of a pollution exclusion clause in a liability insurance policy is one of first impression in Georgia. And in other jurisdictions, there is “conflict in judicial opinions regarding whether lead paint is a ‘pollutant’ under [a] pollution exclusion.” We agree with those decisions that have found that a pollution exclusion clause like the one in this case does not bar coverage for injuries allegedly arising out of the ingestion or inhalation of lead-based paint.

In one such case, Sullins v. Allstate Ins. Co., the Court of Appeals of Maryland held that the terms “contaminants” and “pollutants” in a pollution exclusion clause like the one in the policy at issue here were ambiguous, and must be construed against the insurer (as the drafter of the policy). The court explained that “an insured could reasonably have understood the provision at issue to exclude coverage for injury caused by certain forms of industrial pollution, but not coverage for injury allegedly caused by the presence of leaded materials in a private residence.”

We hold that if GFBM had intended to exclude injuries caused by lead-based paint from coverage in the policy at issue in this case, it was required, as the insurer that drafted the policy, to specifically exclude lead-based paint injuries from coverage. Inasmuch as ambiguities in an insurance contract are strictly construed against the insurer as drafter of the document, and an exclusion from coverage sought to be invoked by the insurer is likewise strictly construed, as in this case, the trial court erred by holding that Smith’s claims came within the policy’s exclusions.

Notably, the case of Reed v. Auto-Owners Ins. Co., upon which the trial court in this case relied, is inapposite. That case involved the issue of whether carbon monoxide gas released into a home came within the parameters of an excludable pollutant as defined by the insurance policy. There, “a straightforward reading of the pollution exclusion clause, and in particular the provision defining a ‘[pjollutant[ ]’ as ‘any solid, liquid, gaseous or thermal irritant or contaminant, including... fumes,’ ” compelled the conclusion that the carbon monoxide gas claim came within the pollution exclusion clause.

Case No. A14A1825

2. Chupp contends that the court erred by granting summary judgment to GFBM on the issue of coverage because injuries resulting from lead-based paint are covered and the pollution exclusion is ambiguous and to be construed against the insurer, and because coverage also existed for Smith’s “failure to warn” claim. As discussed in Division 1, the claim was covered and not excluded, and the court erred by granting summary judgment to GFBM.

3. Chupp contends that the court erred by granting summary judgment on GFBM’s duty to defend him against Smith’s lawsuit. We agree.

Under Georgia law,

[a]n insurer’s duty to defend turns on the language of the insurance contract and the allegations of the complaint asserted against the insured. We look to the allegations of the complaint to determine whether a claim covered by the policy is asserted. If the facts as alleged in the complaint even arguably bring the occurrence within the policy’s coverage, the insurer has a duty to defend the action. . . . [Furthermore,] [t]he duty to defend is excused only when a complaint unambiguously excludes coverage under the policy.

Inasmuch as there was coverage for the claim and the exclusion did not apply, GFBM had a duty to defend Chupp against Smith’s lawsuit. The trial court erred by holding otherwise.

Judgments reversed.

Ellington, P. J., concurs in judgment only. McMillian, J., concurs specially.

McMlLLIAN, Judge,

concurring specially.

I write separately to make it plain that contrary to the majority’s conclusion that an insurer must “specifically exclude lead-based paint injuries from coverage,” it has never been the law in the state of Georgia that a pollution exclusion clause in an insurance contract must specifically list the exact pollutant in order for the clause to exclude coverage. See, e.g., Reed v. Auto-Owners Ins. Co., 284 Ga. 286 (667 SE2d 90) (2008) (carbon monoxide is a “pollutant” even though pollution exclusion clause only referred to “fumes”); Truitt Oil & Gas Co., Inc. v. Ranger Ins. Co., 231 Ga. App. 89, 91 (498 SE2d 572) (1998) (“In light of the policy language and the usual significance of the words used in the policy, it was unnecessary for the policy to specifically list gasoline as a pollutant.”); American States Ins. Co. v. Zippro Constr. Co., 216 Ga. App. 499, 501 (1) (455 SE2d 133) (1995) (asbestos falls within definition of pollution exclusion because it is a “known respiratory ‘irritant,’ ” “solid ‘contaminant,’ ” and a “ ‘waste,’ within the meaning of the policy and as the asbestos was treated” in that case).

Decided March 30, 2015

Jonathan W. Johnson, Childers, Schlueter & Smith, C. Andrew Childers, for appellant (case no. A14A1824).

Strauss & Frost, John L. Strauss, for appellant (case no. A14A1825).

James Bates Brannan Groover, Duke R. Groover, Lee M. Gillis, Jr., for appellee.

Moreover, I believe that the majority’s reliance on Sullins v. Allstate Ins. Co., 340 Md. 503, 516 (667 A2d 617) (1995), for the proposition that “an insured could reasonably have understood the provision at issue to exclude coverage for injury caused by certain forms of industrial pollution, but not coverage for injury allegedly caused by the presence of leaded materials in a private residence” is off the mark. In Reed, our Supreme Court has already rejected the notion that a similarly worded pollution exclusion clause “ ‘can’ reasonably be read as being ‘limited to what is commonly or traditionally considered environmental pollution.’ ” 284 Ga. at 288.

Accordingly, for these and other reasons, I do not agree with all that is said in the majority’s opinion, making the majority’s decision nonbinding physical precedent only pursuant to Court of Appeals Rule 33 (a).

        Bd. of Commrs. of Crisp County v. City Commrs. of City of Cordele, 315 Ga. App. 696 (727 SE2d 524) (2012) (punctuation and footnote omitted).

        Becton v. Tire King of North Columbus, 246 Ga. App. 57 (539 SE2d 551) (2000).

        Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595-596 (370 SE2d 843) (1988) (citations omitted).

       OCGA § 13-2-3.

        Western Pacific Mut. Ins. Co. v. Davies, 267 Ga. App. 675, 681 (1) (601 SE2d 363) (2004).

       Id. (footnote omitted).

        Bartlett v. American Alliance Ins. Co., 206 Ga. App. 252, 255 (2) (424 SE2d 825) (1992) (citations and punctuation omitted).

        Penn-America Ins. Co. v. Disabled American Veterans, 268 Ga. 564, 565-566 (490 SE2d 374) (1997).

        Alley v. Great American Ins. Co., 160 Ga. App. 597, 600 (287 SE2d 613) (1981).

        Interstate Life & Accident Ins. Co. v. Wilmont, 123 Ga. App. 337 (1) (180 SE2d 913) (1971) (citations omitted).

       256 Ga. App. 458 (568 SE2d 484) (2002) (physical precedent only).

       The pollution exclusion provision in Kerr-McGee “defined pollutant to ‘mean[ ] any solid, liquid, gaseous, or thermal irritant or contaminant including smoke, vapor, soot, fumes, acid, alkalis, chemicals and waste. Waste includes material to be recycled, reconditioned or reclaimed.’ ” Id.

       Id. at 462.

         Id.

        Sullins v. Allstate Ins. Co., 340 Md. 503, 516 (667 A2d 617) (1995).

       See, e.g., Lefrak Organization, Inc. v. Chubb Custom Ins. Co., 942 FSupp. 949, 951, 953 (S.D. N.Y 1996) (pollution exclusion clause did not preclude coverage for lead paint poisoning); Cepeda v. Varveris, 234 AD2d 497 (651 NYS2d 185) (1996) (same); GA Ins. Co. v. Naimberg Realty Assoc., 233 AD2d 363, 364 (650 NYS2d 246) (1996) (same); Gen. Accident Ins. Co. v.Idbar Realty Corp., 163 Misc2d 809, 812-813 (622 NYS2d 417) (1994) (same); Generali-U.S. Branch v. Caribe Realty Corp., 160 Misc2d 1056, 1060-1061 (612 NYS2d 296) (1994) (same); Atlantic Mut. Ins. Co. v. McFadden, 413 Mass. 90, 91-92 (595 NE2d 762) (1992) (same); Porterfield v. Audubon Indem. Co., 856 S2d 789, 791, 806 (Ala. 2002); Ins. Co. of Illinois v. Stringfield, 292 Ill. App. 3d 471, 472-473, 477 (685 NE2d 980) (1997). Compare, e.g., Lititz Mut. Ins. Co. v. Steely, 567 Pa. 98, 108 (785 A2d 975) (Pa. 2001).

       Supra.

       Id. at 509-510 (III).

       Id. at 511 (III); see also Sphere Drake Ins. Co. v. Y.L. Realty Co., 990 FSupp. 240, 243-244 (S.D. N.Y. 1997) (holding that pollution-exclusion clauses like the one in the policy at issue in the present case do not bar coverage in lead-based paint poisoning cases).

       See, e.g., Hartford Underwriter’s Ins. Co. v. Estate of Turks, 206 FSupp.2d 968 (E.D. Mo. 2002) (policy’s pollution exclusion specifically defined “pollutant” as “including... chemicals, lead paint, . . .”).

       See ALEA London Ltd. v. Woodcock, 286 Ga. App. 572, 576 (2) (649 SE2d 740) (2007).

       284 Ga. 286 (667 SE2d 90) (2008).

       Id. at 287-288.

        Nationwide Mut. Fire Ins. Co. v. Somers, 264 Ga. App. 421, 424-425 (2) (591 SE2d 430) (2003).

       See generally id. at 425 (2).


source: Caselaw Access Project

author: BOGGS, Judge.

license: Public Domain

text:
    A14A1826.
    In the Interest of C. A. J., a child.
    (771 SE2d 457)
   BOGGS, Judge.

In this private deprivation action brought by the maternal grandmother of nine-year-old C. A. J., the trial court found the child to be deprived and placed her in the permanent custody of the grandmother. For reasons that follow, we affirm the deprivation determination, but we are constrained to reverse the permanent custody award, and therefore remand for further proceedings.

1. On appeal from a deprivation finding, we construe the evidence favorably to the juvenile court’s ruling and determine whether any rational trier of fact could have found by clear and convincing evidence that the child was deprived. See In the Interest of M. M., 315 Ga. App. 673, 676 (2) (727 SE2d 279) (2012). This court does not weigh the evidence or resolve issues of witness credibility. Id. Rather, we defer to the juvenile court’s factfinding and “affirm unless the appellate standard is not met.” Id.

So viewed, the record shows that the mother and C. A. J.’s putative father had a volatile relationship that involved frequent fighting, verbal abuse, and physical confrontations. The two never married, but they lived together following C. A. J.’s birth at various residences in Georgia and South Carolina. At some point while the mother and father were together, the mother entered into a romantic relationship with the father’s brother, Phillip Jones. When the father found out about the affair, he warned the mother not to expose C. A. J. to Jones, who had previously been convicted of child molestation.

In May 2011, the mother ended her relationship with the father and moved into her parents’ home with C. A. J., who was then five years old. The mother continued seeing Jones following the move, spending the majority of her time at his residence while C. A. J. remained at the grandparents’ home. According to the grandmother, the mother’s personal possessions were at their home, but the mother “was never physically” there. The mother subsequently married Jones and became pregnant with his child. C. A. J., however, remained with her grandparents.

On November 1, 2011, the mother visited her parents’ home and had a heated argument with the grandmother in front of C. A. J. While C. A. J. watched, the mother shoved the grandmother against a wall and threatened to remove C. A. J. from the home. Two days later, the grandmother filed a private deprivation petition alleging that the mother was unable to provide a stable home for C. A. J., was mentally incapable of caring for her, and had not supported her financially since leaving her with her grandparents. Through this petition, the grandmother requested legal and physical custody of C. A. J.

Following a December 2011 hearing, the juvenile court found C. A. J. to be deprived based on, among other things, the mother’s failure to protect C. A. J. from exposure to domestic violence; her relationship with Jones, a convicted child molester and registered sex offender; and her decision to permit interaction between Jones and C. A. J. The juvenile court awarded temporary custody to the grandmother and entered a concurrent plan of reunification and nonreunification. It also developed reunification case plan goals that required the mother to obtain a psychological evaluation and follow all treatment recommendations; demonstrate an ability to protect C. A. J. from domestic violence and sexual abuse; and pay child support.

The mother submitted to a psychological evaluation on January 30,2012, and the evaluating psychologist recommended that she take part in counseling. The mother commenced counseling the following May with goals to evaluate her relationship with Jones and address how she could keep C. A. J. safe from the risk he posed as a sex offender. In the meantime, C. A. J. also began therapy. According to C. A. J.’s therapist, the child immediately indicated that she liked living with her grandparents because her parents often fought, which she found distressing. She also reported that she was afraid of Jones, who was mean to her and watched her while she undressed.

In April 2012, the grandmother informed C. A. J.’s therapist that C. A. J. had been “very agitated” after returning from a recent visit with the mother. C. A. J. subsequently told the therapist that during the visit, Jones stated that he loved her, sat her on his lap, kissed her on the lips, and placed his hands inside her thighs. Believing that C. A. J. had disclosed an incident of molestation, the therapist reported the outcry to the Department of Family and Children Services (“DFACS”). Jones was arrested in May 2012, and, based on C. A. J.’s initial outcry as well as disclosures in other interviews, he was charged with aggravated child molestation and child molestation. Shortly after Jones’s arrest, the juvenile court suspended all contact between the mother and C. A. J., citing the mother’s failure to protect her daughter from Jones, her assertions in court that Jones was innocent and that C. A. J. had lied about the molestation, and the possibility that she might try to influence C. A. J.’s testimony.

According to the grandparents, the mother made little effort to check on C. A. J.’s well-being after the juvenile court suspended contact. She also offered minimal financial support for C. A. J., making only one of the monthly child support payments required by her case plan goals.

At an October 2012 evidentiary hearing, the mother testified that, through counseling, she had learned that she needed to end her relationship with Jones to protect her daughter. But she admittedly maintained contact with Jones following his May 2012 arrest, visiting him in jail, writing him letters, and speaking with him by telephone. She asserted, however, that she had recently “separate [d]” herself from Jones. According to the mother, she no longer communicated with or visited him, and she informed him in August 2012 that she wanted a divorce. Nevertheless, she had not commenced divorce proceedings at the time of the hearing, and less than one month before the hearing, she told Jones over the telephone that she loved him.

The mother further claimed that the grandmother is controlling and manipulative, and that the grandfather sexually abused her when she was five years old. The abuse allegations, however, were investigated by DFACS after the mother made an outcry to a teacher, and the grandfather was not arrested or charged with a crime. The mother also told an evaluating psychologist that she had never been abused as a child, and she requested that the grandfather accompany C. A. J. on supervised visitations. Moreover, significant evidence demonstrates that C. A. J. has thrived in her grandparents’ care. The grandparents and other family members testified that the mother did not attend to the needs of C. A. J., who exhibited behavioral problems, had nightmares, and was withdrawn when she first came to live with the grandparents. But with the help of therapy and a stable environment, C. A. J. has adjusted well, is happy, and no longer displays aggressive behaviors.

Following the October 2012 hearing, the juvenile court once again deemed C. A. J. deprived based on, among other things, the mother’s instability, her unresolved mental health concerns, her involvement with Jones, and her failure to meet C. A. J.’s emotional needs. We find no error.

A deprived child is one who “[i]s without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health or morals.” Former OCGA § 15-11-2 (8) (A). Deprivation is established through “ ‘proof of parental unfitness arising from either intentional or unintentional misconduct resulting in the abuse or neglect of the child or by what is tantamount to physical or mental incapability to care for the child.’ ” In the Interest of W. W, 308 Ga. App. 407, 410 (707 SE2d 611) (2011). The ultimate issue in a deprivation petition is the child’s welfare, not parental fault or who is responsible for the conditions resulting in deprivation. Id.

The evidence shows that the mother became romantically involved with and ultimately married Jones, a convicted child molester and registered sex offender, whom she permitted to interact with C. A. J. When C. A. J. reported that Jones had touched her inappropriately, the mother defended Jones and expressed disbelief about the outcry. Several family members testified that the mother showed little concern for C. A. J.’s needs while the child was in her care, and since May 2011, she has provided only minimal financial support. Moreover, after the juvenile court suspended visitation between the mother and C. A. J., the mother made no effort to contact her family about C. A. J.’s welfare. During this same time period, however, she frequently visited and communicated with her husband, who had been arrested for molesting C. A. J.

Given the circumstances, the juvenile court was authorized to find clear and convincing evidence that the mother’s failure to protect C. A. J. from Jones, her neglect of C. A. J.’s mental and emotional needs, and her failure to financially support her child resulted in a lack of proper parental care and control. See In the Interest of A. R, 299 Ga. App. 886, 889 (684 SE2d 22) (2009) (affirming deprivation finding based on clear and convincing evidence that mother did not fully appreciate what needed to be done to protect her daughter from sexual abuse by stepfather); In the Interest of T. J., 281 Ga. App. 308, 312 (1) (636 SE2d 54) (2006) (in case involving termination of parental rights, mother’s failure to financially support child “weighed in favor of likely continued deprivation”). Indeed, we have held that the failure of a mother to protect her child from sexual abuse that occurred while in her care supports a finding that termination of parental rights was in the child’s best interest. See In the Interest of C-J. N., 289 Ga. App. 423, 427 (2) (657 SE2d 329) (2008). And as in that case, here the mother was specifically required to demonstrate an ability to protect C. A. J. from sexual abuse as part of her case plan. See id. Nevertheless, a scant four months later, C. A. J. reported that Jones kissed her on the lips and placed his hands inside her thighs. And despite asserting that she had cut all contact with Jones, she continued to communicate with him following his arrest for those acts.

The record further demonstrates that the mother’s actions have adversely impacted her daughter. C. A. J.’s behavior and social interactions improved when she came into her grandparents’ care, and her grandfather testified that she has not exhibited aggression since the juvenile court suspended contact with the mother. In addition, C. A. J.’s therapist testified that C. A. J. does not feel safe with her mother, is in fear of Jones, and will need therapy “off and on for a long time.”

We recognize that the mother offered contrary evidence at the deprivation hearing. She challenged the grandparents’ fitness to care for C. A. J., testified that she had ended her relationship with Jones, and presented evidence that she was progressing in therapy. But “ [i] t is the province of the juvenile court to weigh the evidence and determine its credibility.” (Citation and punctuation omitted.) In the Interest of W. W., supra, 308 Ga. App. at 410. And under these circumstances, the court was authorized to find C. A. J. deprived at the time of the October 2012 deprivation hearing. See id. at 410-411; In the Interest of A. R, supra, 299 Ga. App. at 889; In the Interest of T. J., supra, 281 Ga. App. at 312 (1).

2. After deeming C. A. J. deprived, the juvenile court entered its disposition, finding that reunification with the mother would be detrimental and that “placement” with the grandmother “for the purposes of adoption” is in C. A. J.’s best interest. Elsewhere in its order, the juvenile court made clear that by “placement,” it meant “permanent custody . . . for the purposes of adoption.”

Juvenile courts have exclusive original jurisdiction over deprivation actions. See Ertter v. Dunbar, 292 Ga. 103, 104-105 (734 SE2d 403) (2012); former OCGA § 15-11-28 (a) (1). In such cases, “the juvenile court may award temporary custody of [a] child adjudicated to be deprived.” Ertter, supra, 292 Ga. at 105. Issues of permanent child custody, however, fall within the superior court’s jurisdiction. See Mauldin v. Mauldin, 322 Ga. App. 507, 509 (1) (745 SE2d 754) (2013). A juvenile court, therefore, “does not have authority to award permanent custody without a transfer order from a superior court.” Ertter, supra; see also Mauldin, supra; former OCGA § 15-11-28 (c) (1) (describing concurrent jurisdiction of juvenile court to hear custody cases “transferred by proper order of the superior court”).

The record contains no evidence of a superior court transfer here. To the contrary, the grandmother commenced this proceeding in juvenile court as a private deprivation action. Accordingly, a permanent custody award was not within the juvenile court’s jurisdiction. See Ertter, supra, 292 Ga. at 104-105; Mauldin, supra, 322 Ga. App. at 509 (1).

Decided March 30, 2015.

Bray & Johnson, Marjorie M. Musgrave, for appellant.

The Taylor Law Group, Clarence O. Taylor TV, Thompson, Meier & King, William E. Carian, for appellee.

Moreover, we cannot construe the court’s disposition as a grant of custody pursuant to former OCGA § 15-11-58 (i), which permits a juvenile court to place a deprived child with a willing relative until the child’s eighteenth birthday. See former OCGA § 15-11-58 (i) (1) (A). As explained by our Supreme Court, such placement does not constitute permanent custody. See Ertter, supra, 292 Ga. at 105 (“The juvenile court’s authority to place a child in the custody of a ‘wining’ and ‘qualified’ relative is not authority to award permanent custody of the child.”). And long-term placement under former OCGA § 15-11-58 (i) (1) is only appropriate “if the court finds that referral for termination of parental rights and adoption is not in the best interest of the child.” The juvenile court explicitly granted the grandmother “permanent custody” for purposes of adoption, removing this case from the placement provisions in former OCGA § 15-11-58 (i) (1).

The juvenile court lacked authority to grant the grandmother permanent custody over C. A. J. for purposes of adoption. See Ertter, supra; Mauldin, supra; see also former OCGA § 15-11-58 (o) (2) (describing placement options that juvenile court may consider during permanency hearing). The custody award, therefore, cannot stand. We are therefore constrained to reverse the juvenile court’s custody disposition and remand for further consideration of all custody issues in light of this court’s affirmance of the finding of deprivation.

Judgment affirmed in part and reversed in part, and case remanded.

Barnes, P. J., and Branch, J., concur.

       In its order, the juvenile court also denied the putative father’s petition to legitimate C. A. J. That ruling is not at issue in this appeal.

       In 2013, the General Assembly adopted a new Juvenile Code to replace Chapter 11 of Title 15 of the Georgia Code. Ga. L. 2013, p. 294, § 1-1. The new Juvenile Code went into effect on January 1, 2014, and applies to juvenile proceedings commenced on or after that date. Id. Because the proceedings in this case commenced before January 1, 2014, the former Code applies here. See In the Interest of S. R. R., 330 Ga. App. 817, 820, n. 5 (769 SE2d 562) (2015).

       Similarly, there is no argument that the juvenile court appointed the grandmother as C. A. J.’s permanent guardian under former OCGA § 15-11-30.1 (a) (2). Neither the deprivation petition nor the court’s order references guardianship, and the order does not meet the statutory requirements for appointing a permanent guardian. See former OCGA § 15-11-30.1 (a) (2) (C) (permanent guardianship orders must establish reasonable visitation schedule or specifically include any restriction on parent’s right to visitation). Furthermore, long-term guardianship is only appropriate where termination of parental rights and adoption are not in the child’s best interest. See former OCGA § 15-11-30.1 (a) (2) (A) (ii).


author: McFadden, Judge. RAY, Judge,

text:
    A14A1848.
    ASHLEY v. THE STATE.
    (771 SE2d 462)
   McFadden, Judge.

After a jury trial, Thad Lee Ashley was convicted of kidnapping, criminal attempt to kidnap, entering an automobile, and criminal trespass. He argues, among other things, that the evidence was insufficient to support his kidnapping and attempted kidnapping convictions and that the trial court erred in admitting character evidence. We agree that the challenged evidence improperly placed Ashley’s character into issue and, accordingly, we reverse. We find, however, that the other evidence was sufficient to support the convictions, and therefore Ashley may be retried. See Lively v. State, 262 Ga. 510, 512 (3) (421 SE2d 528) (1992).

1. Sufficiency of the evidence.

In considering whether the evidence was sufficient to support a defendant’s conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979) (citation omitted; emphasis in original). So viewed, the evidence showed that in September 2011, Ashley was subject to a criminal trespass warning that barred him from the mobile home park in which his father lived. Nevertheless, on September 4, Ashley approached seven-year-old K. L. in the mobile home park. At that time, K. L. was inside her family’s minivan in front of her home, helping to buckle younger children into their seats. Ashley grabbed K. L. by the wrist and pulled her out of the vehicle. The girl broke free from Ashley and ran, screaming and shaking, to her nearby mother. Ashley began to walk away, then returned to the minivan and reached inside toward two-year-old B. L., who scrambled away from him. The girls’ mother yelled at Ashley, who fled. Ashley gave law enforcement officers several conflicting explanations for his behavior, including that he was under the influence of drugs and that he believed the minivan belonged to his father.

The jury found Ashley guilty of kidnapping K. L. and attempting to kidnap B. L. Ashley argues that this evidence was insufficient to support these convictions, that as to K. L. the evidence did not demonstrate the element of asportation and that as to both girls the evidence did not show that he possessed the necessary criminal intent. We are not convinced.

(a) Asportation.

Under the current version of the kidnapping statute, which applies to this case, “[a] person commits the offense of kidnapping when such person abducts or steals away another person without lawful authority or warrant and holds such other person against his or her will.” OCGA § 16-5-40 (a). “[S]light movement shall be sufficient; provided, however, that any such slight movement of another person which occurs while in the commission of any other offense shall not constitute the offense of kidnapping if such movement is merely incidental to such other offense.” OCGA § 16-5-40 (b) (1). “Movement shall not be considered merely incidental to another offense if it: (A) Conceals or isolates the victim; (B) Makes the commission of the other offense substantially easier; (C) Lessens the risk of detection; or (D) Is for the purpose of avoiding apprehension.” OCGA § 16-5-40 (b) (2).

Ashley argues that, when he pulled K. L. from the minivan, his movement of her was merely incidental to the offense of entering an automobile. We disagree. The offense of entering an automobile is committed when a person “enter [s] any automobile or other motor vehicle with the intent to commit a theft or felony.” OCGA § 16-8-18. The state charged Ashley with committing this offense by entering the minivan with the intent to commit the felony of kidnapping. The movement of K. L. was a required element of the felony upon which the entering an automobile offense was based. As such, the movement of K. L. was not incidental to the offense of entering an automobile but instead made the commission of that offense easier. See OCGA § 16-5-40 (b) (2) (B).

Ashley does not otherwise challenge the sufficiency of the evidence to show asportation. And we find that the evidence was sufficient under the current version of OCGA § 16-5-40, which makes clear that only slight movement is required to show asportation as long as the movement is not incidental to another offense. See generally Hammond v. State, 289 Ga. 142, 143 (710 SE2d 124) (2011) (explaining that law prior to the 2008 decision of Garza v. State, 284 Ga. 696 (670 SE2d 73) (2008), required only slight movement to satisfy asportation element of kidnapping and that amendments to OCGA § 16-5-40, effective July 1, 2009, reestablished the sufficiency of slight movement). In many Georgia cases construing the slight movement requirement we have found similar movement of even a few feet sufficient to support a kidnapping conviction. See, e.g., Ellis v. State, 282 Ga. App. 17, 20 (1) (637 SE2d 729) (2006) (defendant dragged victim “a few feet” toward an open window); Boykin v. State, 264 Ga. App. 836, 839 (1) (592 SE2d 426) (2003) (defendant forced victim to get out of car and lie on ground); Phillips v. State, 259 Ga. App. 331, 331-332 (1) (577 SE2d 25) (2003) (defendant grabbed victim as she tried to run out of store and forced her back into store, moving her six to eight feet during struggle); Estes v. State, 234 Ga. App. 150, 151 (505 SE2d 840) (1998) (defendant told victim to get into vehicle, grabbed victim, and struggled with her, during which defendant moved victim “a little” and victim took “a single step” toward vehicle before victim broke away from defendant); Giddens v. State, 190 Ga. App. 723,725 (3) (380 SE2d274) (1989) (defendant pushed victim into car).

(b) Intent.

Ashley argues that there was insufficient evidence to show that he had the criminal intent to kidnap either girl. In support of this argument he cites to evidence that he mistakenly believed the minivan belonged to his father.

“A person will not be presumed to act with criminal intention but the trier of facts may find such intention upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.” OCGA § 16-2-6. Criminal intent “does not mean an intention to violate a penal statute but an intention to commit the act prohibited thereby. Expressed another way, intent refers to the proposition that one intends the consequences of his voluntary actions.” Schwerdtfeger v. State, 167 Ga. App. 19, 20 (1) (305 SE2d 834) (1983) (citations and punctuation omitted). “The presence or lack of criminal intent is for the jury to decide based on the facts and circumstances proven at trial.” Thomas v. State, 320 Ga. App. 101, 104 (2) (739 SE2d 417) (2013) (citation omitted).

The evidence in this case authorized the jury to find that Ashley had the criminal intent necessary to find him guilty of kidnapping K. L. and attempting to kidnap B. L. The evidence showed that Ashley approached the girls, whom he did not know, while they were in their mother’s open minivan. He grabbed K. L., lifted her, and carried her out of the minivan against her will. When Ashley picked her up, K. L. began yelling and struggling before breaking free from him. Ashley then reentered the minivan and tried to grab B. L., who scrambled away from him. As the girls’ mother yelled at him, Ashley fled. These facts, including Ashley’s flight from the scene, presented evidence of consciousness of guilt. Thomas, 320 Ga. App. at 104-105 (2).

Although Ashley offered an explanation for these actions that he argued showed he lacked criminal intent, the jury was authorized to reject that explanation. See Thomas, 320 Ga. App. at 105 (2); Schwerdtfeger, 167 Ga. App. at 20 (1). And his claimed intoxication is not relevant to the issue of his criminal intent in this case. See Guyse v. State, 286 Ga. 574, 578 (2) (690 SE2d 406) (2010) (voluntary intoxication generally is not excuse for criminal act); Foster v. State, 258 Ga. 736, 745 (10) (374 SE2d 188) (1988) (intoxication defense involves separate issue from lack of intent to commit crime).

2. Character evidence.

Nevertheless, we must reverse because the trial court improperly allowed the state to present character evidence against Ashley. That evidence depicted Ashley as a person who behaved in a manner around children that made others uncomfortable, and it included three specific incidents in the summer of 2011 in which Ashley had engaged in questionable conduct around children at the mobile home park swimming pool. There was evidence that Ashley squirted a young boy with a water gun so hard that he made the boy cry. There was evidence that he looked at young girls in a manner that made one girl’s mother uncomfortable and gave another onlooker a “very bad vibe.” Finally, there was evidence that Ashley often picked at and teased children in his family, making them cry. One of the children he picked at was his ten-year-old niece, whom he would flick with his finger on the back of the head or rib cage, even though she strongly disliked this behavior. The niece testified to a specific incident at the pool where Ashley flicked her on her side and she threatened to hit him. The trial court allowed the state to introduce the above evidence after the state argued that the evidence concerned similar transactions.

Georgia’s former Evidence Code, which applied at the time of the trial in this case, provided: “The general character of the parties and especially their conduct in other transactions are irrelevant matter unless the nature of the action involves such character and renders necessary or proper the investigation of such conduct.” Former OCGA § 24-2-2(2012). (Similar transaction evidence is addressed in Georgia’s new Evidence Code at OCGA § 24-4-404 (b).)

To admit evidence of an independent offense or act committed by the accused, the state must show that it seeks to introduce the evidence for an appropriate purpose, there is sufficient evidence to establish that the accused committed the independent offense, and there is a sufficient connection or similarity between the independent offense and the crime charged so that proof of the independent act tends to prove the crime charged.

Jackson v. State, 291 Ga. 54, 55 (2) (727 SE2d 454) (2012) (citation omitted). In other words, “[s]imilar transaction evidence may be admitted if it is substantially relevant for some purpose other than to show a likelihood that the defendant committed the crime on trial because he is a person of criminal character.” Porter v. State, 264 Ga. App. 526, 531 (4) (591 SE2d 436) (2003) (citation and punctuation omitted). “The evidence is not to be admitted, however, if it merely raises an improper inference about the character of the accused.” Chua v. State, 289 Ga. 220, 232 (2) (710 SE2d 540) (2011) (citation omitted). On appellate review, “[w]e accept the trial court’s findings of fact unless they are clearly erroneous and will uphold the decision to admit the similar transaction evidence unless there has been an abuse of discretion.” Jackson, 291 Ga. at 55 (2) (citation omitted).

The trial court admitted the similar transaction evidence in this case for the sole purpose of showing Ashley’s criminal intent. The evidence, however, was not relevant to show that purpose. The state has not argued that Ashley’s behavior in the earlier incidents was criminal. While a similar transaction need not be a crime, see Chua, 289 Ga. at 232 (2), the fact that a person engaged in a noncriminal behavior does not evince criminal intent. The state sought to use acts in which Ashley lacked criminal intent to prove that he had criminal intent in another instance.

Our Supreme Court has held that, “[w]here the extrinsic offense is offered to prove intent, its relevance is determined by comparing the defendant’s state of mind in perpetrating both the extrinsic and charged offenses.” Bradshaw v. State, 296 Ga. 650, 657 (3) (769 SE2d 892) (2015) (citation and punctuation omitted). Applying this rule, the Court determined that evidence of a similar transaction was relevant to establish a defendant’s intent in the charged offense because the similar transaction and the charged offense “involve [d] the same mental state.” Id. Accord United States v. Dickerson, 248 F3d 1036, 1047 (IV) (A) (11th Cir. 2001) (to establish that similar transaction, offered as proof of intent, is relevant to issue other than defendant’s character, as required under Federal Rules of Evidence, “it must be determined that the extrinsic offense requires the same intent as the charged offense”) (citations and punctuation omitted). This case, in contrast, involves instances where Ashley had different mental states — lacking criminal intent on the one hand and allegedly possessing criminal intent on the other hand.

It is true that the Bradshaw and Dickerson cases, cited above, did not address our former Evidence Code. Nevertheless, they are persuasive. While Georgia’s new Evidence Code is more restrictive than the former Evidence Code in the sense that it no longer lists bent of mind or course of conduct as proper purposes for similar transaction evidence, see Johnson v. State, 292 Ga. 22, 25 (2), n. 3 (733 SE2d 736) (2012), in other respects the new Evidence Code’s treatment of similar transaction evidence is, as one commentator has noted, a rule of inclusion that expands the admission of such evidence. See R. Carlson et al., Carlson on Evidence, p. 120 (3d ed. 2015). Moreover, the adoption of our new Evidence Code did not change the requirement that similar transaction evidence be relevant to show a proper purpose; that requirement is found in cases decided under both the old and new Codes. See Bradshaw, 296 Ga. at 655 (3); Porter, 264 Ga. App. at 531 (4). Nor did the adoption of the new Evidence Code change Georgia’s definition of relevant evidence; under both Codes evidence is relevant if it logically tends to prove or disprove any material fact at issue in the case. See OCGA § 24-4-401; City of Atlanta v. Landmark Environmental Indus., 272 Ga. App. 732, 744 (10) (613 SE2d 131) (2005) (citing former OCGA § 24-2-1). Simply put, there is no reason to discount our Supreme Court’s discussion in Bradshaw of how to determine the relevance of similar transactions to prove criminal intent.

Considering Bradshaw’s instruction that we “compar[e] the defendant’s state of mind in perpetrating both the extrinsic and charged offenses,” Bradshaw, 296 Ga. at 657 (3), we find there was not a sufficient similarity or connection such that evidence that Ashley had engaged in certain acts without a criminal intent tended to prove that he had the requisite criminal intent for the kidnapping and attempted kidnapping offenses. Instead, the evidence merely raised an inference about Ashley’s character — that he is a person who engages in annoying and disturbing behavior around children. As such, the evidence should not have been admitted. See Chua, 289 Ga. at 232 (2).

In his ruling, the trial court also found that Ashley’s behavior at the pool was part of “a series of incidents that culminate [d] in the [kidnapping,]” and suggested that the evidence of the pool incidents might be admissible as part of a single transaction rather than as separate, similar transactions. See generally Burger v. State, 242 Ga. 28, 32 (8) (247 SE2d 834) (1978) (if separate act is committed as part of same transaction as that for which accused is being tried, and forms part of res gestae, evidence of it is admissible). Nothing from the record, however, shows that Ashley’s behavior around children in the summer of 2011 was intrinsic to the crimes charged in this case — the kidnapping and attempted kidnapping of different children two months later. See generally Peoples v. State, 295 Ga. 44, 52 (4) (b) (757 SE2d 646) (2014) (rejecting state’s argument that evidence of prior robbery was evidence of charged crimes associated with subsequent home invasion, rather than similar transaction, because the evidence of the robbery was “extrinsic to the crimes charged; it did not bear directly on [defendant’s] alleged conduct in this case, nor was it intrinsic to, or inextricably intertwined with, the crimes at the [victims’] house”) (citation omitted).

The admission of the improper character evidence against Ashley requires reversal. The jury found Ashley guilty of kidnapping and attempted kidnapping rather than the lesser included offenses of simple battery and simple assault. A significant amount of the state’s evidence addressed Ashley’s character, and we cannot say that it was highly probable that the error in admitting that character evidence did not contribute to the jury’s verdict. See Peoples, 295 Ga. at 55 (4) (c).

3. Remaining claims of error.

Given our disposition, we do not address Ashley’s remaining claims of error.

Judgment reversed.

Andrews, P. J., Barnes, P. J., and Doyle, P. J., concur. Boggs, Ray, and Branch, JJ., dissent.

RAY, Judge,

dissenting.

Because I believe that the trial judge did not abuse its discretion in admitting similar transaction evidence of Ashley’s prior conduct around young children, I respectfully dissent to Division 2 of the majority opinion and otherwise would affirm the conviction.

The majority relies upon United States v. Dickerson, 248 F3d 1036, 1047 (IV) (A) (11th Cir. 2001), for the proposition that similar transaction evidence, when offered as proof of intent, must demonstrate that the extrinsic offense “requires the same intent as the charged offense” under the Federal Rules of Evidence. It is telling that both the majority and Ashley’s appellate brief fail to cite to any relevant Georgia law in support of this holding. This is because Georgia’s case law construing our former Evidence Code imposed no such requirement. Federal Rule of Evidence 404 (b), relied upon by Dickerson, and our new Evidence Code apply a more restrictive standard than our former Evidence Code in admitting evidence of similar transactions for the purpose of showing a defendant’s intent.

Under our former Evidence Code, “there [was] no requirement that the independent acts be identical to the crime charged; the proper focus is on the similarity, not the differences, between the separate [acts] and the crime in question.” (Citation and punctuation omitted.) Jones v. State, 316 Ga. App. 442, 446 (2) (a) (729 SE2d 578) (2012). Moreover, when the State introduces prior acts to show a defendant’s intent, “a lesser degree of similarity is required than when such evidence is introduced to prove identity.” (Citation and punctuation omitted.) Kinder v. State, 284 Ga. 148, 151 (3) (663 SE2d 711) (2008). Accord Jones, supra (finding evidence of prior attacks committed by a defendant with little or no provocation was relevant to show his intent in a domestic violence case where he alleged he acted in self-defense); Carver v. Stone, 258 Ga. 385, 385 (369 SE2d 471) (1988) (defendant, a member of the KKK, was charged with making terroristic threats to a person of a different race; trial court did not abuse its discretion in allowing prosecution to present substantial evidence, unrelated to the incident involving the victim, of defendant’s racist statements and beliefs to prove his “intent to terrorize”).

Decided March 30, 2015

Cynthia W. Harrison, for appellant.

Brian K. Fortner, District Attorney, Emily K. Richardson, Assistant District Attorney, for appellee.

Here, the trial court found that the prior acts were logically connected to the current charges: the same trailer park, the same approximate time period, a series of incidents culminating in the crime charged, and all involving inappropriate contact with young children. Ashley’s defense at trial is that he could not form the requisite intent to commit the crimes charged because of his drug use. This was sufficient to raise an issue concerning his state of mind, and it created a possibility that the jury could have concluded that while he committed the charged acts, he did not intend to do so. Intent is, therefore, at issue in this case, and the trial court did not abuse its discretion in allowing evidence that Ashley had a history of demonstrating an inappropriate interest in and behavior around young children as evidence that he did, in fact, intend to commit the crimes charged.

I am authorized to state that Judge Boggs and Judge Branch join in this dissent.


author: Boggs, Judge. BARNES, Presiding Judge,

text:
    A14A1849.
    GREEN v. THE STATE.
    (771 SE2d 518)
   Boggs, Judge.

Following a bench trial, Fred Green was found guilty of burglary. He appeals, asserting that the trial court erred by (1) denying his motion to suppress evidence obtained through the use of a Global Positioning System (“GPS”) device placed on his co-defendant’s truck by the police; and (2) failing to make an inquiry or establish on the record that he validly waived his right to a jury trial. For the reasons explained below, we disagree and affirm.

“On appellate review of a ruling on a motion to suppress, the trial court’s findings on disputed facts will be upheld unless clearly erroneous, and its application of the law to undisputed facts is subject to de novo review.” (Citations and punctuation omitted.) Brown v. State, 295 Ga. 695, 697 (2) (763 SE2d 710) (2014).

So viewed, the record shows that on March 26,2012, surveillance cameras recorded two black males in a light-colored, extended cab pickup truck leaving a Sandy Springs neighborhood where a burglary had taken place. Two days later, surveillance video showed the same color and type truck leaving an apartment complex following a burglary. When another burglary occurred in the same area on April 3, 2012, a detective began reviewing a license tag reader at an intersection in close proximity to the burglary locations for a light-colored, extended cab pickup truck around the time of the April 3 burglary.

This review revealed a truck matching this description traveling in the direction of the apartment complex with an empty truck bed at 4:43 a.m. At 5:18 a.m., the tag reader showed the same light-colored extended cab pickup truck returning through the intersection with what appeared to be an air conditioning unit in the truck bed. At 5:21 a.m., the police were notified of a burglary at the apartment complex in which a four-ton air conditioning unit was taken.

A police detective determined that the truck observed by the tag reader was registered to Lester Thompkins who resided in Clayton County. On April 5, the police observed Thompkins leave his residence dressed all in black around 1:30 a.m. and return around 5:00 a.m. Later the same day, they obtained an order from the Clayton County Superior Court for placement and monitoring of a GPS tracking device on Thompkins’ truck. A detective placed the device on Thompkins’ truck at 11:00 p.m. the same day.

A multi-jurisdictional burglary task force organized six of its members to conduct surveillance on the truck from the evening of April 5 through the early morning hours of April 6. Investigators were assigned to various locations so that the truck could be watched almost continuously. At 2:26 a.m., the truck left Thompkins’ home and then stopped at 2:48 a.m. near Green’s residence, where a member of the task force saw “a black male, dressed all in black g[e]t into the passenger side of the pickup truck while it was stopped.”

A combination of GPS monitoring and task force surveillance showed that the truck traveled in and out of various apartment complexes located near Cumberland Parkway in Cobb County. Task force members did not have the vehicle in sight at all times. A task force member saw the truck approaching an apartment complex located at 50 Adams Lake Boulevard while occupied by two black males, but lost sight of the truck before it entered the front gate; GPS monitoring showed that the truck entered the apartment complex. The police officer notified the Cobb County police department to assist them in entering the gated apartment complex. By the time the Cobb County officers arrived ten or fifteen minutes later, GPS monitoring showed that the truck had left the apartment complex.

When a Cobb County police officer entered the apartment complex, he discovered forced entry into a maintenance shed. Police asked an on-call maintenance technician for the complex to come to the shed and make a list of missing items. The technician informed them that two tool boxes had been taken and that these items had been present less than 12 hours earlier.

Approximately one hour after entering the Adams Lake Boulevard complex, the truck returned to Thompkins’ Riverdale address, where a police officer saw it back into the driveway. Thompkins and Green got out of the truck and began to unload various items from the truck bed, including what appeared to be a red air compressor and two very large toolboxes. After unloading the truck, the men re-entered it, and Thompkins drove it through various locations in south Fulton County, Riverdale, and Clayton County for approximately 90 minutes.

When the truck returned to Thompkins’ home, officers stopped it as it was backing into the driveway and detained both men by placing them in the back of a patrol car in handcuffs. After obtaining a search warrant for Thompkins’ residence, the task force discovered an identification card for the Adams Lake Boulevard apartment’s maintenance technician inside a drawer of the large toolbox previously unloaded from the truck bed. The GPS monitoring of the truck lasted a total of eight hours.

Thompkins and Green were indicted in Cobb County for the Adams Lake Boulevard burglary and were tried together. Before trial, Thompkins filed a written motion to suppress evidence illegally acquired through use of the GPS tracking device in violation of his Fourth Amendment rights. He also contended that the Clayton County Superior Court’s order was “unlawful” and “illegally acquired.” His assertions included that: (1) the order authorizing installation of the GPS device and GPS monitoring was not supported by probable cause; and (2) the Clayton County Superior Court lacked jurisdiction to authorize GPS monitoring of the vehicle outside of Clayton County.

Green “adopted as his own the co-defendant’s motion to suppress.” In the motion to suppress hearing, Green argued that he had standing to contest evidence acquired through the use of the GPS device placed upon Thompkins’ truck. The trial court reserved ruling on the motion and asked the parties to provide him with a proposed order within ten days. It subsequently denied both defendants’ motions “because probable cause existed for the issuance of the [GPS monitoring] Order and because the Order was complied with by State law enforcement authorities.” It also concluded that the Clayton County Superior Court could authorize GPS monitoring outside of Clayton County.

Following his conviction on July 16, 2013, Green filed a timely motion for new trial. He later amended his motion to assert that the trial court should have suppressed evidence resulting from the GPS monitoring of Thompkins’ truck based upon this court’s decision in Hamlett v. State, 323 Ga. App. 221 (753 SE2d 118) (2013). The trial court denied this portion of Green’s motion for new trial, reasoning:

The Court finds that Defendant does not have standing to challenge the order authorizing police to place a tracking device on his co[-] defendant’s vehicle or to the execution of that order by the police. Defendant has asserted no interest in the co [-] defendant’s pickup truck; he has asserted no interest in property seized by a subsequent search of his co [-] defendant’s residence; and he has identified no recognized expectation of privacy that the police violated during the investigation that led to Defendant’s arrest. Defendant’s lack of standing forecloses his claims that the Court erred in not granting a motion to suppress evidence for any of the grounds asserted in his Amended Motion for New Trial.

1. Green contends that the trial court erred in finding that he lacked standing. “The burden is on the defendant to show that he has standing to contest the alleged violation.” (Citation and punctuation omitted.) Brown, supra, 295 Ga. at 698 (2).

In Jones v. United States,_U. S._(132 SCt 945, 181 LE2d 911) (2012), the Supreme Court of the United States held that “the Government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search’ ” under the Fourth Amendment.132 SCt at 949 (II) (A). It did so, not based upon “the reasonable-expectation-of-privacy” test enunciated in Katz v. United States, 389 U. S. 347, 351 (88 SCt 507, 19 LE2d 576) (1967), but instead a “common-law trespassory test.” 132 SCt at 952 (II) (A). Based upon this test, the Supreme Court reasoned that the government’s conduct in physically occupying private property for the purpose of obtaining information “would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.” Id. at 949 (II) (A). In reaching this conclusion, the Supreme Court clarified that “the Katz reasonable-expectation-of-privacy test had been added to, not substituted for, the common-law trespassory test.” (Emphasis in original.) Id. at 952. See also Florida v. Jardines,_U. S._(II) (133 SCt 1409, 185 LE2d 495) (2013). Therefore,

[w]hen one contends that he was aggrieved by an unreasonable search and seeks to suppress evidence obtained as a result of the search, he must show, among other things, that an agent of the government either trespassed upon his property, see United States v. Jones,_U. S._(II) (A) (132 SC 945, 181 LE2d 911) (2012), or invaded some other place or thing in which he has a reasonable expectation of privacy. See Bond v. United States, 529 U. S. 334, 337-339 (120 SC 1462, 146 LE2d 365) (2000).

Hatcher v. State, 314 Ga. App. 836, 838 (1) (726 SE2d 117) (2012) (physical precedent only), cert. denied, 314 Ga. App. 909 (2012).

In this case, Green asserts that he has standing based upon his reasonable expectation of privacy. But in Devega v. State, 286 Ga. 448 (689 SE2d 293) (2010), the Supreme Court of Georgia held that no Fourth Amendment violation occurred when police investigators asked a cell phone provider to “ping” the defendant’s phone and send a signal to locate it through the use of the phone’s GPS system. Id. at 453-454 (4) (d). The Supreme Court reasoned that the defendant

had no reasonable expectation of privacy while traveling in his car on Cobb Parkway and onto the base. When he traveled over the public streets he voluntarily conveyed to anyone who wanted to look the fact that he was traveling over particular roads in a particular direction, the fact of whatever stops he made, and the fact of his final destination when he exited from public roads onto the base.

(Citation and punctuation omitted.) Id. at 454 (4) (d). See also Smarr v. State, 317 Ga. App. 584, 593-595 (3) (c) (732 SE2d 110) (2012).

Green attempts to distinguish Devega, on the ground that it was decided before Jones, supra, and therefore “may well have been changed by Jones.” But the Jones majority did not apply a reasonable expectation of privacy analysis, and it is undisputed that Green had no property interest in Thompkins’ truck as a mere passenger. Consequently, the Supreme Court of Georgia’s opinion still controls over the facts presented here. Additionally, other jurisdictions considering the standing of a passenger to assert a Fourth Amendment violation based upon GPS tracking of another’s vehicle have reached similar results. See United States v. Davis, 750 F3d 1186, 1191 (A) (10th Cir. 2014), cert. denied, Davis v. United States,_U. S._(135 SCt 989, 190 LE2d 868) (2015); United States v. Cabrera, No. 11-117-GMS, 2014 U. S. Dist. LEXIS 96288, at *24-28 (I) (D. Del., July 15, 2014); United States v. Allen, No. 1:13-cr-00108, 2014 U. S. Dist. LEXIS 47588, at *14-17 (II) (A) (S.D. Ind., April 7, 2014); Hendrix v. United States, No. 1:12CV00017 SNLJ, 2013 U. S. Dist. LEXIS 78865, *11 (III) (C) (E.D. Mo. June 5, 2013); United States v. McCoy, No. 2:11-cr-438-MMD-CWH, 2012 U. S. Dist. LEXIS 190273, at *9-13 (II) (A) (1) (D. Nev., August 9, 2012). Compare Commonwealth v. Rousseau, 990 NE2d 543, 552-553 (1) (b) (Mass. 2013) (fact that police monitored passenger’s movements with GPS tracker over a 31-day period sufficient to confer standing under Massachusetts Declaration of Rights). We therefore affirm the trial court’s denial of Green’s motion to suppress based upon his lack of standing.

Green cites a footnote to our post -Jones decision in Hamlett, supra, to support his contention that he nonetheless has standing to complain. 323 Ga. App. at 221, 222, n. 1. But this footnote is nonbinding dicta. Our analysis in Hamlett is therefore limited to the Fourth Amendment claim of a vehicle owner with regard to the placement of a GPS tracking device.

Moreover, while a passenger has standing to challenge the constitutionality of a traffic stop generally, a passenger cannot challenge his detainment based upon an independent violation of another person’s Fourth Amendment rights. Davis, supra. As the Tenth Circuit Court of Appeals has explained in a similar case,

the fruit of the poisonous tree doctrine applies only when the defendant has standing regarding the Fourth Amendment violation which constitutes the poisonous tree____So framed, th[is] case presents a classic “fruit of the poisonous tree” scenario, where the poisonous tree — the GPS device — bore tainted fruit — the seizure of the car (and [the defendant]) and the discovery of the evidence therein. Because [the defendant] did not own or regularly drive the car to which the GPS device was attached, it appears he lacks a sufficient Fourth Amendment interest to challenge this derivative evidence. [The defendant] views the situation differently: at oral argument, his counsel identified the “poisonous tree, with respect to [the defendant],” as the subsequent stop, not the initial attachment and use of the GPS device. And because the stop resulted in a seizure of his person, he argues that he may reach back and “contest the warrantless GPS search to the extent it enabled the police to effect the stop of the Sentra.”
We disagree. The warrantless attachment and use of the GPS device was the Fourth Amendment violation — the poisonous tree — that allowed agents to locate, stop, and seize evidence from the car in which [the defendant] was riding — the tainted fruit. . . . Because the poisonous tree was planted in someone else’s orchard, [the defendant] lacks standing to challenge its fruits. . . .
Thus, [the defendant] cannot challenge the legality of the traffic stop in this case, as its legality turns on a violation of someone else’s Fourth Amendment rights.

(Citations, punctuation and footnotes omitted.) Davis, supra, 750 F3d at 1190-1191 (A). Similarly, Georgia courts have held: “Aperson who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person’s premises or property has not had any of his Fourth Amendment rights infringed.” (Citations and punctuation omitted.) Barlow v. State, 327 Ga. App. 719, 722 (761 SE2d 120) (2014). “The Fourth Amendment right against unreasonable search and seizure is a personal right and may not be asserted vicariously. [Cit.]” Hall v. State, 258 Ga. App. 502, 504 (1) (a) (574 SE2d 610) (2002). Accordingly, we have held that a visitor to an apartment present during the execution of a search warrant had no standing to contest the validity of the search warrant of another’s property, even though that search resulted in the visitor’s arrest. Moody v. State, 232 Ga. App. 499, 504 (4) (a) (502 SE2d 323) (1998). See also Womble v. State, 290 Ga. App. 768, 769 (1) (660 SE2d 848) (2008).

Finally, the Supreme Court of Georgia’s decision in Wilder v. State, 290 Ga. 13 (717 SE2d 457) (2011), does not require a different result. In Wilder, the Supreme Court held that the defendant had “standing to contest the seizure of his own personal property from the premises of another.” (Emphasis in original.) Id. at 15 (1). Here, no property of Green was seized or searched by the police.

2. Based upon our holding in Division 1, we need not address Green’s contention that the Clayton County Superior Court’s order authorizing the police to monitor a GPS tracking device on Thompkins’ truck outside of Clayton County was void.

3. In his remaining enumeration of error, Green contends that “[t]he trial court erred in not making an inquiry or establishing on the record that [he] personally, knowingly, voluntarily, and intelligently waived his right to a jury trial.” We disagree.

A criminal defendant must personally and intelligently participate in the waiver of the constitutional right to a trial by jury. When the purported waiver of this right is questioned, the State bears the burden of showing that the waiver was made both intelligently and knowingly, either (1) by showing on the record that the defendant was cognizant of the right being waived; or (2) by filling a silent or incomplete record through the use of extrinsic evidence which affirmatively shows that the waiver was knowingly and voluntarily made.

(Citation and punctuation omitted.) Seitman v. State, 320 Ga. App. 646 (740 SE2d 368) (2013). “The waiver, however, need not follow any particular form. The only real issue is whether the defendant intelligently agreed to a trial without jury.” (Citation, punctuation and footnote omitted.) Simmons v. State, 321 Ga. App. 743, 745 (1) (743 SE2d 434) (2013). On appeal, “[w]e will affirm a trial court’s determination that a defendant validly waived the right to a jury trial unless that determination is clearly erroneous.” (Citation, punctuation and footnote omitted.) Id.

Here, the record shows that Green signed a “Consent for Trial Before Judge and Waiver of Right to a Jury Trial.” This document was filed with the trial court one day before Green’s trial, and the same day on which it was signed. It was signed by Green and his attorney and acknowledged that he had a right to a trial by a jury of 12 persons, the right to a unanimous verdict, and the right to be determined guilty beyond a reasonable doubt by the jury. It stated that he voluntarily and “upon his own free will and accord” was signing the consent form and giving up his right to a trial by jury and consenting to the trial judge determining his guilt or innocence. Finally, it stated that no one forced or threatened him to sign the consent form. At the beginning of the trial, the trial court stated, “We’re here for a bench trial. Both defendants have waived their jury trial.”

Although Georgia appellate courts have often noted that it would be preferable to have defendant’s personal participation spread on the record in open court, to forestall subsequent claims of lack of participation or an intelligent or knowing waiver, nonetheless, there is no legal precedent requiring an in court waiver of the right of a jury trial.

Seitman, supra, 320 Ga. App. at 649. Based upon the totality of the circumstances here, the record shows that the State fulfilled its burden of demonstrating that Green personally, voluntarily, knowingly, and intelligently waived his right to a jury trial. See id.; Gardner v. State, 261 Ga. App. 425, 426 (2) (582 SE2d 566) (2003).

Judgment affirmed.

Branch, J., concurs. Barnes, P. J., concurs specially in Division 1 and concurs fully in Divisions 2 and 3.

BARNES, Presiding Judge,

concurring specially.

While I concur fully in Divisions 2 and 3 of the majority opinion and in the majority’s conclusion that the trial court’s denial of the motion to suppress should be affirmed, I do not agree with all that is said in Division 1. Therefore, the majority’s decision in Division 1 is physical precedent only. Court of Appeals Rule 33 (a).

I agree with the majority that the reasonable-expectation-of-privacy test first formulated by Justice Harlan in his concurrence in Katz v. United States, 389 U. S. 347, 360 (88 SCt 507, 19 LE2d 576) (1967), applies in the present case, given that Green was a mere passenger in the vehicle to which the Global Positioning System (“GPS”) device was attached.1 write separately, however, to emphasize that the GPS tracking at issue here lasted for eight hours, and thus this case does not address whether law enforcement’s use of the GPS for longer-term monitoring of an individual’s movements would impinge on reasonable expectations of privacy under Katz.

Decided March 30, 2015

Forrest K. Shealy, for appellant.

D. Victor Reynolds, District Attorney, John R. Edwards, Assistant District Attorney, for appellee.

Nor has the issue of long-term GPS tracking and its privacy implications been addressed by the Supreme Court of Georgia. In Devega v. State, 286 Ga. 448, 453 (4) (d) (689 SE2d 293) (2010), police investigators relied upon “ping” information to locate a cell phone through its GPS system. Investigators used the information to track a vehicle as it traveled on a roadway to its destination. Id. Based on those facts, the Supreme Court of Georgia held that the defendant had no reasonable expectation of privacy to challenge the tracking on Fourth Amendment grounds. Id. at 453-454 (4) (d). Devega, therefore, did not address a situation where the investigators used a GPS system for more extensive, long-term surveillance.

Notably, however, since the Supreme Court of Georgia’s decision in Devega, a majority of the justices of the Supreme Court of the United States have indicated that long-term GPS monitoring of a person would impinge upon reasonable expectations of privacy and constitute a “search” of the person under the Fourth Amendment. In United States v. Jones, _U. S._(132 SCt 945, 181 LE2d 911) (2012), Justice Alito wrote a concurrence joined by Justices Ginsburg, Breyer and Kagan. Justice Alito concluded that “the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.” Id. at 964. Justice Sotomayor wrote a separate concurrence, but expressly agreed with Justice Alito regarding the use of long-term GPS monitoring of an individual. See id. at 955 (“I agree with Justice Alito that, at the very least, ‘longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.’ ”). Hence, a majority of the justices would appear to accept that long-term GPS surveillance of an individual violates his or her reasonable expectation of privacy under Katz.

Nevertheless, ultimate resolution of the long-term surveillance issue and its Fourth Amendment implications must wait for another day. Given the relatively abbreviated nature of the GPS monitoring that occurred in this case, Green had no reasonable expectation of privacy that would permit him to challenge the monitoring under the Fourth Amendment.

       It is important to note the limitations of the Supreme Court’s holding in Jones, supra. It expressly declined to address the appellant’s ability to raise a Fourth Amendment objection because he was the “exclusive driver” as opposed to the registered owner. 132 SCt at 949 (II) (A), n. 2. The Supreme Court did note in dicta that “[i]f Jones was not the owner he had at least the property rights of a bailee.” Id. And while it affirmed the D. C. Circuit Court of Appeals’decision in United States v. Maynard, 615 F3d 544 (D. C. Cir. 2010), it did not adopt its reasoning. As one commentator has noted, the D. C. Circuit “articulated a ‘mosaic theory,’ observing that ‘the whole of one’s movements is not exposed constructively even though each individual movement is exposed, because that whole reveals more — sometimes a great deal more — than does the sum of its parts.’ ” (Citation and footnote omitted.) Murphy, Back to the Future: The Curious Case of United States v. Jones, 10 Ohio St. J. Crim. L. 325, 332 (2012). Therefore, this court’s previous extended quote from this portion of the D. C. Circuit’s opinion in Maynard, supra, should not be construed as the proper analysis to be employed in Fourth Amendment cases in Georgia. See Hamlett, supra, 323 Ga. App. at 227, n. 10. Cf. Jordan v. Moses, 291 Ga. 39, 41-43 (727 SE2d 460) (2012) (Court of Appeals improperly cited law from its own decision rather than Supreme Court opinion affirming the decision).

       The issue of the passenger’s standing was not before us as the passenger did not contend on appeal that his motion to suppress should have been granted based upon the illegal placement of the GPS tracking device. Hamlett, supra, 323 Ga. App. at 221-222. Our holding that the conviction of both defendants must be reversed turned on the fact that they had been tried jointly. Id. at 232 (1) (b), n. 14. Therefore, suppression of the GPS evidence as to the owner of the car made the evidence unavailable for the State to use against his co-defendant. Id.

       The Katz test also would apply in situations involving electronic monitoring of a vehicle where there has been no physical invasion of property, such as where the law enforcement officers monitor a GPS device installed by the vehicle driver or car manufacturer rather than a device physically attached to the vehicle by the officers.


author: Phipps, Chief Judge.

text:
    A14A1960, A14A1961.
    BARKING HOUND VILLAGE, LLC et al. v. MONYAK et al.; and vice versa.
    (771 SE2d 469)
   Phipps, Chief Judge.

These appeals arise out of a claim for damages for the death of a dog (a mixed-breed dachshund) owned by Robert and Elizabeth Monyak. In 2012, the Monyaks boarded their two dogs (the dachshund and a mixed-breed labrador retriever) for approximately ten days at a kennel owned and operated by Barking Hound Village, LLC (hereinafter the “BHV”) and managed by William Furman. Three days after the Monyaks picked up their dogs, the dachshund was diagnosed with acute renal failure. It received kidney dialysis treatments to treat the condition, and died approximately nine months later, in March 2013.

The Monyaks filed suit against BHV and Furman for damages, alleging that while boarded at the kennel, the dachshund was administered toxic doses of a non-steroidal, anti-inflammatory medication which had been prescribed to the labrador retriever, not the dachshund. The Monyaks had left the medication at the kennel, with directions to administer it to the labrador retriever. The Monyaks alleged various claims of negligence by BHV and Furman, and they sought compensatory damages, including over $67,000 in veterinary and other expenses allegedly incurred in treating the dachshund. The Monyaks also alleged fraud and deceit, and they sought damages for litigation expenses as well as punitive damages.

BHV and Furman filed a motion for summary judgment with regard to all the Monyaks’ claims. The trial court issued an order denying the motion, except as to fraud; the trial court granted summary judgment as to the fraud claim.

We granted the application for interlocutory appeal by BHV and Furman, and they timely filed a notice ofappeal(CaseNo. A14A1960), challenging the partial denial of their motion for summary judgment and the trial court’s ruling as to the appropriate measure of damages for the loss of the dog. Thereafter, the Monyaks filed a cross-appeal (Case No. A14A1961), challenging the grant of summary judgment to BHV and Furman on the fraud claim.

Case No. A14A1960

1. BHV and Furman contend that the trial court erred in partially denying their motion for summary judgment. The trial court ruled as follows.

At trial, [the Monyaks] will be permitted to present evidence of the “actual value” of [the dachshund] to them, as demonstrated by reasonable veterinary and other expenses incurred in treating [the dachshund’s] illness. In addition, [the Monyaks] may introduce evidence of non-economic factors demonstrating [the dachshund’s] intrinsic value---The Court is mindful of the caveat expressed by the Court of Appeals in Cherry[1] that purely “fanciful” factors should not be considered.

BHV and Furman assert that the proper measure of damages was the market value of the dachshund, and that since the Monyaks failed to introduce such evidence, they (BHV and Furman) were entitled to judgment as a matter of law with regard to the negligence claims.

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. [ ] To prevail on a motion for summary judgment, the moving party must show that there is no genuine dispute as to a specific material fact and that this specific fact is enough, regardless of any other facts in the case, to entitle the moving party to judgment as a matter of law. When a defendant moves for summary judgment as to an element of the case for which the plaintiff, and not the defendant, will bear the burden of proof at trial, the defendant may show that he is entitled to summary judgment either by affirmatively disproving that element of the case or by pointing to an absence of evidence in the record by which the plaintiff might carry the burden to prove that element. And if the defendant does so, the plaintiff cannot rest on his pleadings, but rather must point to specific evidence giving rise to a triable issue. We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant. Because this opinion addresses cross-motions for summary judgment, we will construe the facts in favor of the nonmoving party as appropriate.

The parties do not dispute that, in Georgia, a dog is considered property. “In a suit for damages to personal property, the measure of damages is the market value of the property before and after the damage to such property.”

If [personal] property is destroyed, then the damages would be the full market value of the property at the time of the impairment or loss, and... further recovery would be barred as exceeding the maximum that is otherwise allowable. . . . [A] plaintiff cannot recover an amount of damages against a tortfeasor greater than the fair market value of the property prior to the impairment.

The Monyaks argued, and the trial court agreed, that since Georgia courts have recognized an alternative measure of damages for certain items which have little or no market value but which have substantial personal value to the owner, that alternative measure of damages — the “actual value to the owner” — should be applied in this case since the dachshund had little or no market value.

Where the absence of a market value is shown, “the measure of damages for the loss of articles which have no market value is the actual value to the owner.” Not all dogs have an actual commercial or market value. The Monyaks presented evidence showing that the dachshund had little or none. Elizabeth Monyak deposed that they had obtained the dog from a rescue center, and that the dog was about eight years old at the time of boarding. Elizabeth Monyak averred by affidavit that they had adopted the dog when it was about two years old, that there was no purchase price for the dog, that it was not a pure breed, that it was never a “show” dog and never generated any revenue, that nothing had occurred during their ownership of the dog that would have increased its market value to the public at large, and that at the time they had boarded the dog at the kennel, the value of the dog to the public was “non-existent or nominal.”

In Cherry, upon which the trial court relied, the nonmarketable item, and the item with regard to which the trial court determined the appropriate measure of damages was the actual value to the owner, was a painting by the plaintiff’s mother, who had died when the plaintiff was two years old. The trial court in the instant case cited in its order other cases which it found applied the Cherry “actual value to owner” rule as the measure of damages. But none of those cases involved dogs or other household pets;* and one case involved realty, unlike this case. Notwithstanding, in two of the cases the determination of the value of damaged or destroyed property was by a measure other than market value, and in an amount which may have exceeded any market value. Accordingly, the trial court did not err in its ruling that it would permit the Monyaks to present evidence at trial of the actual value of the dog to them “as demonstrated by reasonable veterinary and other expenses incurred in treating [the dog’s] illness.”

We conclude, however, that the trial court erred in its ruling that the Monyaks could introduce evidence of “non-economic factors demonstrating [the dog’s] intrinsic value.” In coming to that conclusion, the trial court cited Cherry for the proposition that flexibility as to the measure of damages was authorized and evidence of “such other considerations as in the particular case affect its value to the owner,” was permitted. The full passage which the trial court cited from Cherry reads: “The just rule of damages [when the article sued for is not marketable property] is the actual value to him who owns it, taking into account its cost, the practicability and expense of replacing it, and such other considerations as in the particular case affect its value to the owner.”

In Cherry v. McCutchen, the “other considerations” evidence was the plaintiff’s testimony that before he found out that the portrait was missing, he had built his house with a particular area of it constructed with dimensions to display the portrait, and that his wife, likewise, had purchased decor for the room of the house where the portrait would be displayed based on the colors in the portrait. This court specifically stated that the trial court had not erred in permitting the introduction of the aforesaid evidence “for the purpose of showing the value of the picture.”

The evidence in Cherry was not non-economic; and in this case, the trial court misquoted Cherry when it stated that Cherry had cautioned that “purely ‘fanciful’ ” factors should not be considered when the measure of damages applied is the actual value to the owner. In Cherry, the court held unequivocally that the measure of damages “must not be any fanciful price that [the owner] might for special reasons place upon them,” and that “there can be no recovery for the sentimental value of the lost article.” Accordingly, damages for the intrinsic value of the dog are not recoverable, and we reverse the trial court’s judgment that the Monyaks would be permitted at trial to introduce evidence of non-economic factors demonstrating the dog’s intrinsic value.

Case No. A14A1961

2. The Monyaks contend that the trial court erred in granting summary judgment in favor of BHV and Furman on the Monyaks’ fraud claim. We disagree. In their complaint, the Monyaks claimed that BHV concealed the alleged medication error and destroyed evidence, and that such acts constituted actionable fraud.

“The elements of fraud are: false representation by the defendant, scienter, intent to induce the plaintiff to act or refrain from acting, plaintiff’s justifiable reliance on the false representation and damages to the plaintiff.” “To establish fraud, the claimant must also show that it sustained the alleged loss and damage as the proximate result of the misrepresentations having been made.”

Decided March 30, 2015

Hall Booth Smith, Joel L. McKie, Andrew K. Hazen, Mary A. Battey, for appellants.

Peters & Monyak, Jonathan C. Peters, Robert P. Monyak, for appellees.

Sutherland, Asbill & Brennan, Katherine M. Smallwood, Bryan Cave, Jennifer D. Odom, Ann W. Ferebee, Shook, Hardy & Bacon, Leonard Searcy II, amici curiae.

Because the acts upon which the Monyaks’ fraud claim rests allegedly occurred after their dog had been injured, the injury was not the proximate result of the acts. Moreover, the evidence did not show that BHV and Furman had actual knowledge prior to the day the Monyaks picked up the dogs that the dachshund had been administered medication that was not prescribed for it during its stay at the kennel, such that the kennel and Furman could have sought treatment for the dog. And the evidence showed that the Monyaks took the dachshund to its veterinarian the day after they picked up the dog from the kennel.

Although the trial court’s summary judgment decision on the [fraud claim] was based on ... different legal theories], that [the claim was duplicative and based on spoliation], we will affirm the judgment of the trial court if it is right for any reason. A grant of summary judgment must be affirmed if right for any reason, whether stated or unstated. It is the grant itself that is to be reviewed for error, and not the analysis employed.

Accordingly, the trial court did not err in granting summary judgment to BHV and Furman on the fraud claim.

Judgment affirmed in part and reversed in part, and case remanded in Case No. A14A1960. Judgment affirmed in Case No. A14A1961.

McMillian, J., concurs. Ellington, P. J., concurs in judgment only.

        Cherry v. McCutchen, 65 Ga. App. 301, 304 (16 SE2d 167) (1941).

       OCGA § 9-11-56 (o).

        Maree v. Romar Joint Venture, 329 Ga. App. 282, 283 (763 SE2d 899) (2014) (citations omitted).

       See Columbus R. Co. v. Woolfolk, 128 Ga. 631, 632 (58 SE 152) (1907).

        Southern R. Co. v. Malone Freight Lines, Inc., 174 Ga. App. 405, 410 (3) (330 SE2d 371) (1985) (citation omitted); see Driggers v. Atlanta Gas Light Co., 97 Ga. App. 502, 503 (103 SE2d 586) (1958) (citations omitted) (“In order for a petition, on whatever basis founded — whether sounding in contract or tort, to fix liability upon one who negligently damages the plaintiffs personalty, it must show that the personalty had value, and what the market value of the personalty was immediately prior and subsequent to the event that caused the damages.”) (physical precedent only).

        MCI Communications Svcs. v. CMES, Inc., 291 Ga. 461, 463-464 (728 SE2d 649) (2012) (citations and punctuation omitted).

        Cherry, supra, 65 Ga. App. at 304.

       See Columbus R. Co., supra at 635.

        Community Bank v. Handy Auto Parts, Inc., 270 Ga. App. 640, 643 (1) (607 SE2d 241) (2004) (“One need not be an expert or dealer in the article in question but may testify as to its value if he has had an opportunity for forming a correct opinion.”) (punctuation and footnote omitted).

        Cherry, supra, 65 Ga. App. at 302.

        Dept. of Transp. v. Vest, 160 Ga. App. 368, 369-370 (2) (287 SE2d 85) (1981) (when the Department of Transportation condemned property which must be duplicated for a business to survive, and there was no substantially comparable property within the area, then the loss to the forced seller was such that market value did not represent just and adequate compensation to him); Horton v. Ga. Power Co., 149 Ga. App. 328-329, 331 (254 SE2d 479) (1979) (damages recoverable for the destruction of a utility pole belonging to a power company and having value only as an integral part of a complete distribution system was the replacement cost, which was more than the original purchase price); NEDAConstr. Co. v. Jenkins, 137 Ga.App. 344-345, 350 (4) (223 SE2d 732) (1976) (where construction company and telephone company caused structural damage to a historic home, monetary award returned by jury to repair the house was not “disproportionate or absurd” where costs for repair of the house were less than its complete replacement, but more than its market value).

        Dept. of Transp. v. Vest, supra.

        Horton, supra (replacement cost recoverable); NEDA Constr. Co., supra (repair costs recoverable).

        Cherry, supra, 65 Ga. App. at 303 (citations and punctuation omitted).

       68 Ga. App. 682 (23 SE2d 587) (1942).

       Id. at 692.

       Id.

        Cherry, supra, 65 Ga. App. at 304 (punctuation omitted; emphasis supplied).

       See generally NED A Constr. Co., supra (recoverable repair costs which exceeded market value were “definite and ascertainable”).

        Tankersley v. Barker, 286 Ga. App. 788, 790 (1), n. 1 (651 SE2d 435) (2007) (citation omitted).

        Nebo Ventures, LLC v. NovaPro Risk Solutions, L.P., 324 Ga. App. 836, 842 (1) (e) (752 SE2d 18) (2013) (citation and punctuation omitted; emphasis supplied).

        Dan J. Sheehan Co. v. Fairlawn on Jones Homeowners Assn., 312 Ga. App. 787, 790 (1), n. 11 (720 SE2d 259) (2011) (citation and punctuation omitted).