text:
    A14A0742.
    WATSON v. THE STATE.
    (765 SE2d 24)
   McFADDEN, Judge.

After a jury trial, Patrick Watson was convicted of two counts of sexual battery (as lesser included offenses to the indicted offenses of child molestation) against his teenaged daughter, K. P., and one count of child molestation against his daughter’s friend, M. S. Watson argues that the evidence did not support the child molestation conviction, but we find the evidence sufficient. He argues that the trial court gave an erroneous “unanimity charge” to the jury, but we find the challenged charge did not insist upon unanimity. He argues that the trial court improperly charged the jury that a minor cannot consent to sexual conduct in the context of sexual battery, but we find that the challenged charge correctly stated the law and Watson did not raise or obtain a ruling in the trial court on whether the statute setting forth the offense of sexual battery is overly broad when applied to a minor. Watson argues that the trial court erred in preventing him from presenting certain good character evidence, but we find that he did not lay a foundation for the evidence. He argues his counsel was ineffective for failing to object to the alleged “unanimity” jury charge, but we find no deficiency because the charge did not insist on unanimity. Finally, he argues that the trial court should have merged his two sexual battery convictions for sentencing purposes, but we find that the convictions were to charges in the indictment that Watson committed separate and distinct acts. Accordingly, we affirm.

1. Trial evidence.

K. P., who was 14 years old at the time of the August 2008 trial, testified that she moved in with Watson when she was 11 years old. On three or four occasions, when she informed Watson that she needed a larger bra, he examined her breasts by touching them under her clothing. He did this even though K. P. told him it made her feel uncomfortable. On several other occasions, Watson examined and touched K. P.’s pubic area to determine if she was shaving that area. Again, Watson persisted in this conduct even though K. P. told him it made her uncomfortable. K. P. described an instance where, as she was leaving the bathroom wearing a towel, Watson stopped her and asked her if she had shaved her pubic area. K. P. testified that she “ended up laying down in front of him and the bottom part of [her] towel he lifted up and he touched to see if [she] shaved.”

K. P. testified that her friend M. S. spent the night with K. P. on November 11, 2007. While the two girls were in K. P.’s bedroom, they overheard what they believed to be sexual activity between Watson and a female acquaintance in another room, and they began joking and giggling about it. Later, Watson entered K. P.’s bedroom wearing a towel, and he asked if the girls were sexually aroused. He then sat on the bed and touched K. P.’s thigh near her vagina. K. P. discussed this incident with police the following day.

M. S., who was 15 years old at the time of trial, testified about the November 11 incident. She said that Watson came into the bedroom wearing a towel and asked K. P. if she was aroused. M. S. was lying on her stomach on the bed, and Watson lay across her legs, reached out his hand and touched her breasts, and then placed his hand on her buttocks. M. S. testified that she jumped off the bed and Watson then put his hand down her pants, touching her vagina. When M. S. moved Watson’s hand away, he again placed it on her pubic area, this time over her clothing. The next day, M. S. reported this incident to a friend, to a relative, and to the police. M. S. also testified that, on a previous occasion, Watson had told her he “want[ed] to taste [her]” and “eat [her] pussy.”

A special agent for the United States Naval Criminal Investigative Services testified that he became involved in the case because Watson was employed by the Navy. He testified that he interviewed Watson, who offered several different accounts of the November 11 incident. At points during the interview, Watson stated that he had asked if the girls were sexually aroused; that he had touched M. S.’s vagina (which he claimed was accidental); that he had talked with both girls about shaving their pubic regions; that during the shaving discussion he had pulled M. S.’s shorts to the side, exposed and touched her pubic area, and used two fingers to rub the hair next to her vagina; that he had made sexually explicit comments to the girls; that he had previously told M. S. he wanted to perform oral sex on her; and that he had showed K. P. how to check her breasts for lumps after she complained of breast pain. The jury heard a recording of that interview.

At trial, Watson presented witnesses who testified that K. P. had a reputation for untruthfulness. He also presented his direct naval commander, from whom he attempted to elicit testimony about his good reputation in the workplace, but the trial court excluded the testimony as irrelevant. On cross-examination, the state elicited from this witness that Watson had a reputation for truthfulness. Finally, Watson presented testimony from his former girlfriend, who had lived with Watson and K. P. for two years and who testified that she had discussed issues about shaving and adolescent development with the girl.

2. Sufficiency of the evidence.

Watson argues that the evidence was insufficient to support the jury verdict that he committed child molestation by “placing] his hand upon the vagina of [M. S.], a child under the age of sixteen, with the intent to arouse and satisfy [his] sexual desires,” as alleged in the indictment. We disagree. The evidence, viewed in the light most favorable to the verdict, Morris v. State, 322 Ga. App. 682 (1) (746 SE2d 162) (2013), showed that M. S. was under the age of 16, that Watson had expressed a sexual interest in her, and that on the evening of November 11 he had asked about her sexual arousal and put his hand down her pants, touching her vagina. This evidence authorized the jury to find Watson guilty of child molestation. See OCGA § 16-6-4 (a) (1) (a person commits child molestation by doing “any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person”); Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

3. Jury charges.

Watson challenges the jury charges in two respects. He argues that the trial court erred in her charge on sexual battery as a lesser included offense to child molestation, a charge given in connection with the crimes against K. P. Watson also argues that the trial court erred when, in charging on sexual battery, the trial court instructed the jury that a person under the age of 16 lacked the legal capacity to consent to sexual conduct. Neither argument provides grounds for reversal.

(a) Charge on lesser included offense.

Watson argues that, as to several counts, the trial court improperly instructed the jury that it was required to reach a unanimous verdict on the greater offense of child molestation before it could consider the lesser offense of sexual battery. He so challenges instructions as to several counts of child molestation and as to the verdict form. Discussing one of the counts alleging molestation of K. P, the trial court instructed:

Now, Ladies and Gentlemen, sexual [b]attery is a lesser included offense of child molestation. If you believe the Defendant is not guilty of child molestation as alleged in Count Two of this indictment you must then decide whether the Defendant is guilty of sexual battery[.]

The trial court gave similar instructions as to other counts alleging child molestation. Discussing the verdict form, the trial court instructed:

The first thing you need to do in each one of these is to answer the first question. And it says, for example, in question one, as to Count Two, child molestation, we, the jury, find the defendant either guilty or not guilty. You put your verdict in here. Once you put your verdict in here, depending upon what your verdict is you still need to read what, the instructions in parentheses. If you find the Defendant guilty go to question two. If you find the Defendant not guilty answer the following question. And the following question is, as to sexual battery on Count Two, we, the jury, find the Defendant either guilty or not guilty. Now, Ladies and Gentlemen, whether you get to the second part depends on your answer in the first part so please be sure to understand that by going over this I’m not suggesting any answers, I’m just telling you you need to read and decide then after your first answer whether you need to answer what’s after the parentheses or drop down to the next question.

We disagree with Watson’s argument that these were impermissible “unanimity” charges. A jury must consider a greater offense before it can vote on a lesser offense. Cantrell v. State, 266 Ga. 700, 703, n. 3 (469 SE2d 660) (1996). Accordingly, although a trial court may not instruct the jury that it must reach a unanimous verdict on a greater offense before considering a lesser offense, the trial court may instruct the jury to consider the greater offense before considering the lesser offense. Armstrong v. State, 277 Ga. 122, 123 (2) (587 SE2d 5) (2003). A sequential charge that instructs the jury to consider a lesser offense only if it did not believe the defendant to be guilty of the greater offense, “is acceptable so long as the trial court does not insist upon unanimity with regard to the jury’s decision on the greater offense.” Yaeger v. State, 274 Ga. 216, 219 (3) (552 SE2d 809) (2001) (citations omitted); see also Cantrell, 266 Ga. at 702, n. 2 (explaining that Supreme Court had “no quarrel” with charge that jury “should not consider a lesser offense unless the defendant be found not guilty of the greater offense ... so long as the court does not insist upon unanimity and is willing to accept a verdict on the lesser charge”) (citation omitted).

The charges challenged by Watson were sequential charges that instructed the jury to first consider the greater offense and to proceed to consider the lesser offense if it found Watson not guilty of the greater offense. In that respect they were indistinguishable from the acceptable charges discussed by our Supreme Court in cases such as Yaeger, 274 Ga. at 219 (3), Camphor v. State, 272 Ga. 408, 414-415 (6) (d) (529 SE2d 121) (2000), and Cantrell, 266 Ga. at 702, n. 2. Compare Kunselman v. State, 232 Ga. App. 323, 325 (1) (501 SE2d 834) (1998) (trial court erred in giving charge that instructed jury to consider the lesser included offense if and only if it found the defendant not guilty of the greater offense and, “[sjhortly thereafter,... [giving] the usual pattern charge requiring a unanimous verdict”). Because, in this case, “neither the trial court nor the verdict form required the jury to reach a unanimous verdict on the greater offense before considering the lesser-included offense,” there is no reversible error. Armstrong, 277 Ga. at 123 (2).

(b) Charge on minor’s ability to consent in the context of sexual battery.

Watson argues that the trial court erred when, in the charge on sexual battery, the trial court instructed the jury over Watson’s objection that “under Georgia law a person under the age of sixteen lacks legal capacity to consent to sexual conduct.” He argues that the rule regarding a minor’s inability to consent should not apply to the offense of sexual battery because it removes the element of “lack of consent” from that offense, rendering the offense overly broad. We find no ground for reversal.

The trial court’s charge “was an accurate statement of the law and was adjusted to the facts of this case.” Johnson v. State, 296 Ga. App. 112, 113 (1) (673 SE2d 596) (2009) (citations omitted). “The age of consent in Georgia is 16,” Chase v. State, 285 Ga. 693, 696 (2) (681 SE2d 116) (2009) (citations omitted), and we have upheld the giving of charges regarding the inability of a person under the age of 16 to consent in sexual battery cases. See Engle v. State, 290 Ga. App. 396, 398 (2) (659 SE2d 795) (2008); Carson v. State, 259 Ga. App. 21, 24 (5) (b) (576 SE2d 12) (2002); Hendrix v. State, 230 Ga. App. 604, 606 (3) (497 SE2d 236) (1997); see also Haynes v. State, 302 Ga. App. 296, 302 (3), n. 4 (690 SE2d 925) (2010) (applying age of consent to hold that the state is “not required to prove lack of consent to establish sexual battery”). Our cases in that regard are consistent with the principle, expressed by our Supreme Court in connection with a case involving rape, “that the element of‘against her will’was automatically shown by [the minor victim’s] age.” Drake v. State, 239 Ga. 232, 233 (1) (236 SE2d 748) (1977). See also Lee v. State, 300 Ga. App. 214, 216 (1) (684 SE2d 348) (2009) (holding state could prove aggravated sexual battery by showing, among other things, “that the victim did not consent or lacked the capacity to consent” in case where defendant father argued he had been addressing minor daughter’s medical and hygiene needs) (citations omitted; emphasis supplied); Strickland v. State, 223 Ga. App. 772, 776-777 (1) (b) (479 SE2d 125) (1996) (indictment charging that defendant intentionally touched breast of minor victim included all necessary elements to show sexual battery although it did not allege lack of consent, because victim could not legally consent).

Nevertheless, in his appellate brief Watson argues that the rule that someone under 16 cannot consent to sexual conduct, when applied to the sexual battery statute, OCGA § 16-6-22.1, renders that statute overly broad. That statute provides that “[a] person commits the offense of sexual battery when he or she intentionally makes physical contact with the intimate parts of the body of another person without the consent of that person,” and it defines “intimate parts” to mean “the primary genital area, anus, groin, inner thighs, or buttocks of a male or female and the breasts of a female.” OCGA § 16-6-22.1 (a), (b). Watson argues that, if persons under the age of 16 can never consent to the touching of their intimate parts, then the statute criminalizes conduct that, he asserts, “does not necessarily involve immoral/indecent conduct and does not always involve a sexual act.” See generally Strickland, 223 Ga. App. at 774 (1) (a) (noting that sexual battery requires only general intent). He offers, as examples of overbreadth, scenarios such as a mother putting diaper rash cream on a child, a grandfather (or a mall Santa Claus) allowing a child to sit on his lap, and teenage basketball players blocking each other from rebounds with their buttocks and hips.

We acknowledge the possibility that the language of OCGA § 16-6-22.1 could be construed to include nonsexual scenarios such as those proposed by Watson. But Watson’s challenge to the statute’s potential overbreadth is a challenge to its constitutionality. The appellate courts of this state “will not pass upon the constitutionality of a statute when the challenge was not directly and properly made in the trial court and distinctly ruled on by the trial court.” In re D. H., 283 Ga. 556, 557 (3) (663 SE2d 139) (2008) (citations omitted). Although Watson argued generally in his motion for new trial that the trial court’s jury charge violated his constitutional rights, he did not properlyraise a constitutional challenge to OCGA § 16-6-22.1. See id. at 557-558 (3) (setting forth the specific showings that party must make to properly raise constitutional challenge to statute). Moreover, the trial court did not distinctly rule on the constitutional challenge. Consequently, Watson is procedurally barred from raising a constitutional challenge to OCGA § 16-6-22.1 on appeal. Id. at 557 (3).

4. Good character evidence.

Watson argues that the trial court erred in preventing his commanding naval officer from testifying about Watson’s good character. He proffered that the witness would testify that he knew Watson’s reputation among the employees at his job, and that the reputation was “very good.” The witness admitted, however, that he had no knowledge of Watson’s reputation in the community outside of his workplace. The trial court ruled the proffered testimony inadmissible on the grounds that Watson’s reputation on the job was not relevant. We find no error. Under the rules of evidence in effect at the time of trial, “[r] estricting counsel from asking a witness about an individual’s reputation at business and among the employees is not error, as this is not the correct test” for the admission of good character evidence. Haralson v. State, 223 Ga. App. 787, 792 (5) (479 SE2d 115) (1996) (citations omitted). See also Doss v. State, 264 Ga. App. 205, 207-208 (3) (590 SE2d 208) (2003); Foster v. State, 170 Ga. App. 222, 225 (9) (316 SE2d 828) (1984). (Under Georgia’s new Evidence Code, OCGA §§ 24-4-404 and 24-4-405 govern the admission of evidence regarding a criminal defendant’s good character.)

5. Effectiveness of counsel.

Watson argues that his trial counsel was ineffective in failing to object to the allegedly improper “unanimity” jury charges discussed in Division 3 (a), supra. Because the charges were not improper, trial counsel was not deficient in failing to object to them. See Williams v. State, 309 Ga. App. 688, 691-692 (2) (710 SE2d 884) (2011). Consequently, Watson has not shown he received ineffective assistance of counsel. See Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984) (requiring party claiming ineffective assistance to show both deficient performance by trial counsel and actual prejudice).

Decided October 22, 2014

Ross & Pines, Noah H. Pines, for appellant.

Jacquelyn L. Johnson, District Attorney, Andrew J. Ekonomou, Katie M. Gropper, Assistant District Attorneys, for appellee.

6. Merger.

Watson argues that the trial court was required to merge for purposes of sentencing his two convictions of sexual battery against K. P. The first conviction was for sexual battery as a lesser included offense to child molestation, which the indictment alleged Watson committed by “placing] his hand upon the pubic area of [K. P.],” and the second conviction was for sexual battery as a lesser included offense to child molestation, which the indictment alleged Watson committed by “placing] his hand upon the breasts of [K. P].” Because these counts of the indictment charged Watson with separate and distinct acts, the trial court did not err in refusing to merge for sentencing purposes the convictions that were based on those counts. See Anderson v. State, 306 Ga. App. 423, 424 (2) (702 SE2d 458) (2010) (trial court did not err in refusing to merge convictions where counts in indictment charged defendant with committing offenses by separate and distinct acts). Compare Daniels v. State, 320 Ga. App. 340, 343-344 (2) (739 SE2d 773) (2013) (trial court erred in refusing to merge convictions where counts in indictment charged defendant with identical conduct). The fact that Watson was convicted for lesser included offenses on those counts does not change this result.

Judgment affirmed.

Andrews, P. J., and Ray, J., concur.


source: Caselaw Access Project

author: Phipps, Chief Judge.

license: Public Domain

text:
    A14A0893.
    McCLURE v. McCURRY et al.
    (765 SE2d 30)
   Phipps, Chief Judge.

After they were sued in 2008 by David McClure d/b/a McClure Contracting, Riverstone Professional Building, LLC obtained summary judgment, and Chris McCurry obtained a favorable jury verdict. Subsequently, citing OCGA § 9-15-14, the trial court granted attorney fees to Riverstone Professional Building and McCurry. In this appeal, McClure challenges the awards of attorney fees, setting forth these grounds: (i) the issue of attorney fees was not included in the pretrial order; (ii) the order awarding the attorney fees failed to contain required elements; and (iii) McCurry was denied summary judgment and a directed verdict. We find that the first ground presents no basis for disturbing either award. Regarding the second ground, we agree with McClure — the trial court’s order does not contain elements required for substantive review; therefore, we do not reach the merits of the third ground. We affirm in part, vacate in part, and remand the case with direction.

1. McClure challenges the propriety of the awards, pointing out that the issue of attorney fees was not included in the pretrial order. This challenge is unavailing.

OCGA § 9-11-16, which concerns pretrial orders, provides that “[u]pon the motion of any party, or upon its own motion, the court shall direct the attorneys for the parties to appear before it for a conference” and “shall make an order which recites the action taken at the conference and the agreements made by the parties as to any of the matters considered and which limits the issues for trial.” Accordingly, this court has recognized that the issue of attorney fees and litigation expenses — where pursued, for instance, under OCGA § 13-6-11 — may be waived, if not included in the pretrial order. “The question of whether attorney fees are appropriate under [OCGA § 13-6-11] is for the jury.”

But the appellees’ motion in this case was expressly premised upon OCGA § 9-15-14, which statute sets forth procedural provisions for the recovery of attorney fees and litigation expenses upon the grounds delineated therein. As this court has held,

[subsection] (f) provides that “an award of reasonable and necessary attorney’s fees or expenses of litigation under this Code section shall be determined by the court without a jury and shall be made by an order of court. . . .” (Emphasis supplied.) There is no ambiguity in the statute; the legislature clearly intended for the court, not a jury, to determine whether fees and costs should be awarded under OCGA § 9-15-14.

Regarding the timing of a movant’s request, OCGA § 9-15-14 (e) provides: “Attorney’s fees and expenses under this Code section may be requested by motion at any time during the course of the action but not later than 45 days after the final disposition of the action.”

As McClure acknowledges in his brief, the appellees “filed their Motion... during the pendency of [the] action.” Hence, the appellees’ motion was timely filed. McClure cites no authority for his argument that the appellees’ quest for attorney fees was subsequently lost for failure to include it in the pretrial order, and we find none. Moreover, McClure’s argument disregards the plain language of OCGA § 9-15-14 that allows for the filing of a motion even after the trial, so long as the motion is filed “not later than 45 days after the final disposition of the action.”

Given the foregoing, the trial court did not err in rejecting this challenge to the motion for attorney fees, and that portion of the order is affirmed.

2. McClure’s contention that the trial court’s order fails to contain required elements is correct.

It is well settled that an order granting attorney fees under OCGA § 9-15-14 must “contain express findings of fact and conclusions of law as to the statutory basis for any such award and the conduct which would authorize [the award] .” Further, in Williams v. Becker, the Supreme Court of Georgia held that where the trial court awards attorney fees under OCGA § 9-15-14, the order must specify “whether the award is made under subsection (a) or (b) or both.”

In the order here, the trial court recited language from both subsections (a) and (b) of OCGA § 9-15-14, and concluded that “the case against . . . McCurry lacked substantial justification as defined in the code” and that “the action against [Riverstone Professional Building] was substantially baseless and frivolous.”

As McClure points out, the trial court did not include in its order any factual finding(s) that underlay those conclusions. And as the appellees acknowledge in their brief, the trial court did not specify whether either award was made pursuant to OCGA § 9-15-14 (a) or (b). Appellees posit, however, that “[b]ecause ‘frivolous’ and ‘lacked substantial justification’ are elements of OCGA § 9-15-14 (b) and not OCGA § 9-15-14 (a), the attorney’s fees granted to both Appellees were granted under OCGA § 9-15-14 (b).” We need not adopt appellees’ position, because the order is insufficient for substantive review even if premised upon only OCGA § 9-15-14 (b).

Decided October 22, 2014.

William L. Colvin, for appellant.

Flint, Connolly & Walker, Douglas H. Flint, for appellees.

Under the circumstances presented here, the awards of attorney fees to the appellees must be vacated and the case remanded for the trial court to reconsider the issue, then enter an order not inconsistent with this opinion. Further, as McClure has aptly pointed out, any grant of attorney fees under OCGA § 9-15-14 to McCurry must particularly take into account Porter v. Felker and its progeny, given that McCurry’s motions for summary judgment and for directed verdict were denied.

Judgment affirmed in part and vacated in part, and case remanded with direction.

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

       OCGA § 9-11-16 (a).

       OCGA § 9-11-16 (b) (emphasis supplied); see Graham v. Graham, 291 Ga. 1, 2 (727 SE2d 101) (2012) (“OCGA § 9-11-16 provides that upon the motion of any party, or upon its own motion, the court shall direct the attorneys for the parties to appear before it for a conference and shall make a pretrial order summarizing the action taken and the agreements made at the conference and delineating the issues left for trial.”) (punctuation omitted; emphasis supplied).

       See generally Parks v. Breedlove, 241 Ga. App. 72-73 (1) (526 SE2d 137) (1999).

       Id. (footnote omitted; emphasis supplied).

         Dismer v. Luke, 228 Ga. App. 638, 640 (2)(492 SE2d 562) (1997) (notingthatOCGA § 9-15-14 “makes substantive and procedural provision for a trial court, sitting as the trior of fact, to make an award of attorney’s fees and expenses of litigation as a sanction against certain enumerated abuses”) (citations omitted).

        Dismer, supra (quoting OCGA § 9-15-14 (f)) (citations and punctuation omitted).

       OCGA § 9-15-14 (e). Accord Moore v. Dixon, 264 Ga. 797, 800 (4) (452 SE2d 484) (1994) (noting that, effective April 5, 1994, a motion for attorney fees and expenses under OCGA § 9-15-14 may he made “at any time during the course of the action but not later than 45 days after the final disposition of the action,” whereas the former version of that statute required a motion for attorney fees and expenses to he brought “within 45 days after the final disposition of the [underlying] action”); Ga. L. 1994, p. 856, § 2; Betallic, Inc. v. Deavours, 263 Ga. 796, 797 (439 SE2d 643) (1994) (Hunstein, J., dissenting) (advocating, so as to best effectuate the purpose of former OCGA § 9-15-14, a construction of “the use of the word ‘within’in subsection (e) to mean ‘not later than,’ rather than ‘during’ ”).

        In re Serpentfoot, 285 Ga. App. 325, 328-329 (4) (a) (646 SE2d 267) (2007).

       294 Ga. 411 (754 SE2d 11) (2014).

       Id. at 413-414 (2) (a) (citation omitted).

       Subsection (a) provides that “reasonable and necessary attorney’s fees and expenses of litigation shall be awarded” if there existed such a “complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim, defense, or other position.”

       Subsection (b) authorizes “reasonable and necessary attorney’s fees and expenses of litigation” if “an attorney or party brought or defended an action, or any part thereof, that lacked substantial justification” or “the action, or any part thereof, was interposed for delay or harassment,” or “an attorney or party unnecessarily expanded the proceeding by other improper conduct, including, but not limited to, abuses of discovery procedures available under Chapter 11 of this title, the ‘Georgia Civil Practice Act.’ As used in this Code section, ‘lacked substantial justification’ means substantially frivolous, substantially groundless, or substantially vexatious.”

       The transcript of the motion hearing shows that the appellees’ counsel cited the trial court to both subsections (a) and (b) of OCGA § 9-15-14.

       The appellees do not speculate whether the trial court’s conclusion that the action against Riverstone Professional Building was “substantially baseless” falls within the ambit of subsection (a), subsection (b), or both.

       See In re Serpentfoot, supra (holding that the order awarding attorney fees did not contain required elements for purposes of OCGA § 9-15-14 (b), where the trial court concluded that the appellant “has been unreasonably and stubbornly litigious and has been frivolous in her conduct in these proceedings”); see also Cason v. Cason, 281 Ga. 296, 299-300 (3) (637 SE2d 716) (2006) (holding that the order did not contain findings sufficient to support an award of attorney fees under OCGA § 9-15-14 (b), where the award was due to appellant’s “stubborn litigiousness”); see generally Interfinancial Midtown v. Choate Constr. Co., 284 Ga. App. 747, 751-753 (3) (b) (644 SE2d 281) (2007) (determining that the order awarding attorney fees under OCGA § 9-15-14 lacked necessary findings, where the trial court did not specify the subsection under which the award was made and concluded only that the appellant’s position was “without justification,” that the position had an “utter lack of merit,” and that the amount awarded would “fairly compensate[ ]” appellee for fees incurred in defending against appellant’s position).

        Robinson v. Williams, 280 Ga. 877, 880 (3) (635 SE2d 120) (2006); see Williams v. Becker, supra at 414 (2) (a) (“If the court fails to make [requisite] findings, the fees award must be vacated and the case remanded for reconsideration.”) (citation omitted); O’Keefe v. O’Keefe, 285 Ga. 805, 806 (684 SE2d 266) (2009) (vacating judgment and remanding case, where order granting attorney fees failed to state the statutory provision relied on and failed to set forth the required facts to support an imposition of attorney fees under OCGA § 9-15-14); In re Serpentfoot, supra at 329 (4) (a) (explaining that because the trial court’s order lacked required elements, “the issue of attorney fees must be remanded for an explanation of the statutory basis for the award and any findings necessary to support it”) (punctuation and footnote omitted); Interfinancial Midtown, supra (vacating the award of attorney fees under OCGA § 9-15-14 and remanding the case, where the order granting attorney fees under OCGA § 9-15-14 lacked necessary findings).

       261 Ga. 421, 422 (3) (405 SE2d 31) (1991) (holding that “a trial court’s award [of attorney fees under OCGA § 9-15-14] to a party whose motion for summary judgment was denied must be vacated except in unusual cases where the trial judge could not, at the summary judgment stage, foresee facts authorizing the grant of attorney fees”).

       See, e.g., Atwood v. Southeast Bedding Co., 236 Ga. App. 116, 118-119 (3) (511 SE2d 232) (1999) (affirming award of attorney fees under OCGA § 9-15-14, although party had failed to prevail on motion for summary judgment and on motion for directed verdict; explaining that “[i]n considering an award under OCGA § 9-15-14, a trial court is not necessarily bound by the denial of a motion for directed verdict.... A court’s consideration of such a motion in the midst of trial should not automatically govern the application of OCGA § 9-15-14 relief, as the context and issue may differ.”) (citing Porter, supra, for the principle that “we cannot require trial courts to be infallible. More importantly, if additional facts authorize an [attorney fees] award and the trial court is powerless to make an award, then the purposes of... OCGA § 9-15-14 (deterrence of litigation abuses and recompensation for legal fees and costs) are thwarted.”) (punctuation and footnote omitted)); Gantt v. Bennett, 231 Ga. App. 238, 245-246 (9) (499 SE2d 75) (1998) (applying Porter, supra, to reverse award of attorney fees granted under OCGA § 9-15-14, where the party awarded fees had been denied summary judgment and a directed verdict).


author: MCMILLIAN, Judge.

text:
    A14A0762.
    CITY OF BROOKHAVEN et al. v. CITY OF CHAMBLEE.
    (765 SE2d 33)
   MCMILLIAN, Judge.

This appeal presents an issue of first impression: whether a municipality has the authority pursuant to OCGA § 36-36-21 to annex land that the General Assembly has designated for annexation to another municipality, subject to a referendum, before the referendum takes place. We find that municipalities do not have such authority.

The facts underlying this appeal are undisputed, and thus the application of law to these facts is subject to de novo review. Fayette County v. Steele, 268 Ga. App. 13 (601 SE2d 403) (2004). In 2013, the General Assembly passed Local Act 205 (the “Act”), which established boundaries for an area of land (the “Annexation Area”) for annexation by the City of Chamblee, Georgia (“Chamblee”). Ga. L. 2013, pp. 4320-4322. The Annexation Area included “Century Center,” a commercial development owned by Highwoods Properties, Inc. (“Highwoods”). Section 1 of the Act provided a legal description of the Annexation Area and stated that it was creating a new charter for Chamblee “by annexing [the area] to the existing corporate limits” of the city. Ga. L. 2013, p. 4320. Section 2 of the Act provided that “the election superintendent of DeKalb County shall call and conduct an election as provided in this section for the purpose of submitting this Act to the electors of the [Annexation Area] for approval or rejection.” Id. at 4321. The legislation further provided that the superintendent was to conduct this referendum “on the Tuesday after the first Monday in November, 2013,” and that “[i]f more than one-half of the votes cast on such question are for approval of the annexation, then this Act shall become effective on December 30, 2013.” Id. But “[i]f more than one-half of the votes cast on such question are for rejection of the annexation, this Act shall not become effective and shall be automatically repealed on the first day of January immediately following such election date.” Id. The Act was signed by the Governor on May 6, 2013. Ga. L. 2013, p. 4322.

Thereafter, on July 1, 2013, Highwoods applied to the City of Brookhaven, Georgia (“Brookhaven”) for annexation of Century Center into that city’s corporate limits under the “100 percent method” of annexation outlined in OCGA § 36-36-21. After Brookhaven’s city council scheduled a vote on the issue, Chamblee filed a petition seeking a declaratory judgment and injunctive relief against Brookhaven. Chamblee initially obtained a temporary restraining order enjoining the Brookhaven city council from voting on the annexation. Subsequently, the trial court allowed Highwoods to intervene in the action as a defendant, without objection by Chamblee or Brookhaven. And on August 19, 2013, the trial court issued an interlocutory injunction barring Brookhaven “from acting to annex any portion of the [Annexation Area] until further order of this Court.” In September 2013, the parties filed cross-motions for summary judgment.

In the interim, Brookhaven and Highwoods filed an emergency motion in the Supreme Court of Georgia seeking relief from the August 19 injunction. On October 3,2013, the Supreme Court granted the motion, staying the trial court’s interlocutory injunction “to the extent that it prohibits a vote by the City Council of Brookhaven on the annexation of Century Center or otherwise interferes with acts of a legislative character.” Thereafter, on October 11,2013, Brookhaven and Highwoods filed a document entitled “Notice of Annexation” in the trial court, which stated that “on Tuesday, October 8, 2013, the City of Brookhaven annexed the territory known as Century Center,” but which did not include any supporting documentation.

Based on that filing, Brookhaven and Highwoods asserted in supplemental briefing on the cross-motions for summary judgment that Brookhaven’s annexation of the Century Center property was a fait accompli. And they argued that allowing Chamblee’s annexation to proceed by enforcing the Act would mean that the Act would serve both to deannex the Century Center property from the corporate limits of Brookhaven and to annex it to the corporate limits of Chamblee. As a result, they contended that the Act would violate this state’s constitutional requirement that all legislation have a single subject matter. See Ga. Const, of 1983, Art. Ill, Sec. V, Par. III. On October 28,2013, the trial court issued an order granting Chamblee’s summary judgment motion and allowing Chamblee to proceed with its annexation. The Order also denied Highwoods’s and Brookhaven’s summary judgment motions, without addressing their constitutional argument. Highwoods appealed that order the same day.

Subsequently, on November 5,2013, voters approved Chamblee’s annexation by referendum. Under the terms of the Act, that annexation became effective on December 30, 2013, but in response to an emergency motion filed by Highwoods, this Court issued an order on December 19, 2013, enjoining Chamblee from proceeding with the annexation of the Century Center property pending resolution of this appeal.

1. The issues in this case require us to consider the relative powers of annexation granted to the General Assembly and to municipalities under Georgia law. The starting point of our analysis is the provision of the Georgia Constitution vesting all legislative power in the General Assembly. Ga. Const, of 1983, Art. Ill, Sec. I, Par. I. Historically, our Supreme Court determined that the power of annexation is legislative in nature and that the legislature could not delegate such power to municipalities because the Georgia Constitution did not authorize it to do so. See DuPre v. City of Marietta, 213 Ga. 403, 405-406 (2) (99 SE2d 156) (1957); Phillips v. City of Atlanta, 210 Ga. 72, 75 (77 SE2d 723) (1953). See also Ballentine v. Willingham, 237 Ga. 60, 61 (1) (226 SE2d 593) (1976) (“It has always been within the power of the General Assembly to extend or diminish the corporate limits of a municipality.”). Therefore, annexation by a municipality required a local act by the General Assembly. See Bruck v. City of Temple, 240 Ga. 411, 413 (3), n. 3 (240 SE2d 876) (1977).

But in 1954, the Georgia Constitution was amended to allow the General Assembly “[to provide] by law for the self-government of municipalities and to that end [it was] expressly given the authority to delegate its power so that matters pertaining to municipalities may be dealt with without the necessity of action by the General Assembly.” Ga. Const, of 1983, Art. IX, Sec. II, Par. II. This amendment thus granted the General Assembly the authority to delegate the power of annexation to municipalities. See Niskey Lake Water Works, Inc. v. Garner, 228 Ga. 864, 866 (188 SE2d 864) (1972).

The General Assembly subsequently passed legislation delegating to municipalities the authority to annex adjoining land under three alternative methods: (1) the “100% method,” by which a municipality may annex adjoining land upon application by all the owners of the land, with certain exceptions, OCGA §§ 36-36-20 to 36-36-23; (2) the “60% method,” by which a municipality may annex adjoining land upon application by a minimum of 60% of adjoining landowners, OCGA §§ 36-36-30 to 36-36-40; and (3) the “Resolution and Referendum method,” by which a municipality may, on its own initiative, annex contiguous lands meeting certain requirements, by resolution and referendum, OCGA §§ 36-36-50 to 36-36-61. Nevertheless, the General Assembly has expressly retained its authority to annex or deannex by local act and has clarified that none of the alternative annexation methods “is intended to or shall be construed to in any way to restrict, limit, or otherwise impair the authority of the General Assembly to annex or deannex by local Act.” OCGA § 36-36-10. See also OCGA § 36-36-16.

2. In this case, the General Assembly exercised its authority to annex by local act by designating a particular tract of land for annexation by Chamblee and by providing that the electors in the Annexation Area would vote on the issue in a referendum. But before the referendum could take place, Highwoods petitioned Brookhaven to annex the Century Center property under the 100% method, and the Brookhaven city council voted to approve the annexation. High-woods argues on appeal that the trial court erred in relying on the Act to grant summary judgment to Chamblee because under its terms, the Act would not become effective until later, after referendum approval, which occurred approximately one month after the Brook-haven council’s vote.

Thus, we must determine the Act’s status at the time the Brookhaven city council voted to annex Century Center. Under Georgia law, the baseline rule is that local legislation is intended to have the effect of law “immediately upon approval by the Governor or upon [its] becoming law without his approval, unless a different effective date is specified in the Act. . . .” OCGA § 1-3-4 (b). Among other things, the Act both identified the Annexation Area for inclusion within the Chamblee corporate limits and directed the elections superintendent in DeKalb County to hold a referendum to allow a vote on whether that designated area should be annexed. If the voters approved the annexation, the Act then stated that it would become effective on December 30, 2013. Thus, we find that the Act was in effect when signed by the Governor with regard to setting the referendum for a vote on the designated Annexation Area. See Smith v. City Council of Augusta, 203 Ga. 511, 519 (2) (47 SE2d 582) (1948) (“It is obvious... that the legislature intended the portions of the [Act] providing for a referendum to become effective immediately upon its approval by the Governor.”).

Highwoods argues, however, that the Act was not yet in effect when Brookhaven voted to annex Century Center based on the language that the Act would only become effective on December 30, after a positive referendum vote. But this argument ignores the language of the Act providing that if the voters disapproved the annexation, the Act not only would “not become effective,” it would also be “automatically repealed.” (Emphasis supplied.) Ga. L. 2013, p. 4321. Highwoods’s argument that the Act was not in effect when the Brookha ven city council voted would render the word “repealed” mere surplusage, because the General Assembly would have had no need to repeal an Act that was never in effect.

“In construing statutes, a court must give meaning to and harmonize all parts of the statute to give them sensible and intelligent effect, while avoiding constructions that make any part of the statute mere surplusage.” (Citation and punctuation omitted.) Cherokee Warehouses, Inc. v. Babb Lumber Co., 244 Ga. App. 197, 198 (535 SE2d 254) (2000). Although the language providing that the Act would not become effective until December 30, 2013 was inartfully worded, when we apply the principles of statutory construction, we find that the Act went into effect upon the Governor’s signature on May 6, 2013, to initiate the referendum process on the defined Annexation Area, and the referendum was a condition precedent for annexation. Smith, 203 Ga. at 519 (2). However, the annexation itself was not intended to become effective until December 30, 2013, if it received voter approval. Thus, we reject Highwoods’s contention that the Act was not in effect until after the referendum and that the trial court improperly relied on the Act in granting summary judgment to Chamblee.

3. We next consider whether Brookhaven could exercise its power to annex Century Center out of the designated Annexation Area while the referendum process was pending, and we conclude that it could not.

As a starting point, we consider the intent of the General Assembly in enacting the alternative annexation methods vis-a-vis the General Assembly’s authority to annex by local act. Although a municipality’s exercise of its delegated power for annexation has been deemed an exercise of the General Assembly’s legislative power, our Supreme Court has also recognized that “municipalities can receive and retain only such legislative power of the General Assembly as that body determines from time to time they should exercise.” (Citation and punctuation omitted.) Higdon v. City of Senoia, 273 Ga. 83, 86 (3) (538 SE2d 39) (2000) (quoting Plantation Pipe Line Co. v. City of Bremen, 227 Ga. 1, 7 (1) (178 SE2d 868) (1970)). And we must keep in mind that “allocations of power from the state are strictly construed.” Kemp v. City of Claxton, 269 Ga. 173, 176 (1) (496 SE2d 712) (1998).

The pivotal question, therefore, focuses on the scope of the General Assembly’s delegation of annexation authority to municipalities, and we find OCGA § 36-36-10 particularly instructive on that issue. OCGA § 36-36-21 provides that the 100% method of annexation relied upon by Highwoods must be exercised in accordance with Article 1 of the Georgia Code’s annexation chapter. That article includes OCGA § 36-36-10, in which the General Assembly specifically set out its intent that the alternative annexation methods were not intended and should not be construed “to in any way restrict, limit, or otherwise impair” the exercise of its constitutionally granted annexation powers.

Because the words “restrict, limit, or otherwise impair” are not defined, we “must afford [this] statutory text its ‘plain and ordinary meaning.’ ” (Citations and punctuation omitted.) Deal v. Coleman, 294 Ga. 170, 172 (1) (751 SE2d 337) (2013). See also Clement v. State, 309 Ga. App. 376, 379 (1) (a) (710 SE2d 590) (2011). Black’s Law Dictionary defines the term “restriction” as meaning “[a] limitation or qualification”; the term “limit” as meaning to restrict, restrain, or to set a boundary, such as on power, right or authority; and the term “impair” as meaning “[t]o diminish the value of.” Black’s Law Dictionary (9th ed. 2009). Accordingly, under OCGA § 36-36-10, the alternative annexation methods were not intended to limit, restrict, restrain, set a boundary on, or otherwise diminish the value of the General Assembly’s annexation powers.

Applying these plain meanings, we find that permitting Brook-haven to annex the Century Center property would clearly restrict, limit, and/or impair the General Assembly’s authority to annex in this case. Section 1 of the Act defined the territory to be annexed by Chamblee to include the Century Center property, and Section 2 of the Act sets the date of the referendum on the annexation of that territory, required publication of the election, and spelled out the words to be used in the referendum ballot. Allowing Brookhaven to annex a portion of this territory before the referendum could take place would, in essence, allow it to unilaterally effectuate an amendment to the Act during a period of time when the General Assembly was not even in session. Such action clearly would limit, restrain, set a boundary on, and otherwise diminish the value of the General Assembly’s exercise of its annexation powers through local act.

Moreover, the referendum initiated by the Act had to proceed in accordance with Georgia law. And in odd years such as 2013, such referendums may only be held on the third Tuesday in March or the Tuesday after the first Monday in November. See OCGA § 21-2-540 (c) (2) (A) (setting times for special elections); OCGA § 21-2-2 (33) (defining special elections); Stiles v. Earnest, 252 Ga. 260, 261 (1) (312 SE2d 337) (1984) (a referendum is a special election under Georgia law). Accordingly, the referendum in this case could not have occurred before November 5, 2013. The required timing for the referendum further supports our conclusion that a municipality may not carve out a portion of the legislature’s designated Annexation Area before the referendum could lawfully proceed.

Thus, we find that the General Assembly did not intend the alternative methods of annexation to establish a system for municipalities to race the legislature to annex land that it already has designated for annexation under local law. To the contrary, we find that OCGA § 36-36-10 prohibited Brookhaven from attempting to annex Century Center during the Act’s referendum process.

Highwoods also contends that a local law such as the Act cannot prevent Brookhaven’s exercise of its authority to annex, which was delegated by general law, because the Georgia Constitution provides that “no local... law shall be enacted in any case for which provision has been made by an existing general law.” Ga. Const, of 1983, Art. Ill, Sec. VI, Par. IV. We find no merit to this argument because it ignores the express limitations imposed by general law on the delegation of annexation authority to municipalities. Even though the General Assembly may only annex by local act, its enactment of OCGA § 36-36-10 reserved to itself priority in exercising the legislative power of annexation and limited the municipalities’ annexation power accordingly.

We find, therefore, that the trial court properly granted Chamblee’s motionfor summary judgment and denied Highwoods’s motion.

4. Highwoods also contends that enforcement of the Act following Brookhaven’s vote to annex the property would be in violation of the Georgia Constitution’s one-subject-matter rule, because the Act would simultaneously deannex the Century Center property from Brookhaven and annex it to Chamblee. See Ga. Const, of 1983, Art. Ill, Sec. V, Par. III. This argument fails.

Highwoods raised this constitutional issue before the trial court following the vote by the Brookhaven city council, but the trial court did not issue a ruling on the issue. “After [a] constitutional issue has been properly raised in the trial court, the trial court must rule upon the issue; the appellate court lacks subject matter jurisdiction to decide issues never ruled upon by the trial court.” In re July-August, 2003 DeKalb County Grand Jury, 265 Ga. App. 870, 871-872 (2) (595 SE2d 674) (2004). Georgia courts previously have held that a constitutional issue is waived for appellate review where the trial court fails to rule upon it. Haynes v. Wells, 273 Ga. 106, 108 (3) (538 SE2d 430) (2000); DeKalb County Grand Jury, 265 Ga. App. at 872 (2). However, the Supreme Court of Georgia more recently has directed that this Court remand a case for the trial court’s consideration of a constitutional issue, even if this Court has determined that summary judgment was otherwise appropriate. City of Decatur v. DeKalb County, 284 Ga. 434, 438 (2) (668 SE2d 247) (2008).

Although, here, we have found that the trial court properly granted summary judgment to Chamblee, we do not believe a remand is necessary for consideration of Highwoods’s constitutional argument because it is based on the false premise that Brookhaven annexed the Century Center property when its city council voted on the issue. As we have found that Brookhaven lacked the authority to annex that property during the pendency of Chamblee’s referendum process, no annexation by Brookhaven has occurred. Thus, no issue arises as to whether enforcement of the Act will violate Art. Ill, Sec. V, Par. Ill of the Georgia Constitution.

Decided October 23, 2014

Barnes Law Group, Roy E. Barnes, Holland & Knight, Robert S. Highsmith, Jr., Galloway Law Group, Andrea C. Jones, Laurel A. David, Riley McLendon, William F. Riley, Jr., Cecil G. McLendon, Jr., Leonid M. Felgin, for appellants.

Wilson, Morton & Downs, Robert E. Wilson, Stephen G. Quinn, for appellee.

Judgment affirmed.

Andrews, P. J., and McFadden, J., concur.

       As Highwoods notes, the Act originated in the legislature as House Bill 619. Ga. House Journal 2013, pp. 2845, 4066, 4070, available at http://www.house.ga.gov/clerk/en-US/ HouseJournals.aspx.

       The City of Brookhaven, Georgia joined Highwoods in filing the notice of appeal in this case but never filed any appellate briefing. Accordingly, Brookhaven’s appeal is deemed abandoned, leaving Highwoods as the sole appellant.

       That statute allows municipal corporations “to annex to the existing corporate limits thereof unincorporated areas contiguous to the existing corporate limits at the time of such annexation... upon the written and signed applications of all of the owners of all of the land.” OCGA § 36-36-21.

       OCGA § 36-36-10 provides in full:
      It is the express intent of the General Assembly in enacting the provisions of this chapter to provide for alternative methods for annexing or deannexing an area or areas into or from the corporate limits of a municipality. Except as otherwise expressly provided in this chapter, no provision of this chapter relating to annexation or deannexation by any such alternate method is intended to or shall be construed to in any way restrict, limit, or otherwise impair the authority of the General Assembly to annex or deannex by local Act.

       Georgia law requires such a referendum “if the number of residents in the area to be annexed exceeds 3 percent of the population of the municipal corporation or 500 people, whichever is less.” OCGA § 36-36-16 (b). Although Chamblee’s argument below suggests that the population of the Annexation Area met this requirement, the appellate record does not provide clear evidence on this issue. In any event, OCGA § 36-36-16 (b) empowers the legislature to provide for a referendum without regard to the population requirements. See also Wall v. Bd. of Elections of Chatham County, 242 Ga. 566, 572 (6) (250 SE2d 408) (1978) (holding that the General Assembly had authority to set referendum prior to statutory grant of such power).

       We note that Highwoods conceded in the trial court that at the very least “H[ouse] B[ill] 619 [Local Act 205] [was] effective for the purpose of holding the Referendum.”

       In 2013, the General Assembly was in session during the period January 14 to March 28, 2013. Ga. House Journal 2013, pp. 1, 48-49, 100, 2806-2808, 2861, 4877.

       We note that Georgia law provides that annexation, by local act or otherwise, does not become effective for all purposes until December 31 of the year in which it occurs. No annexation becomes lawful for ad valorem tax purposes on an earlier date. OCGA § 36-36-2 (a) and (b). However, in the case of a local act, the act itself may provide that the annexation becomes effective for other purposes on an earlier date, OCGA § 36-36-2 (a), and in the case of annexation by alternative method, the annexation becomes effective for all other purposes on the first day of the month following the month in which the requirements for annexation are met. OCGA § 36-36-2 (b).

       Therefore, the Act did not need to contain an express provision prohibiting municipalities from seeking to annex any portion of the designated Annexation Area in the interim, because the legislature had already prevented any such action under OCGA § 36-36-10.

       In order to maintain the status quo pending any further appellate proceedings, our December 19, 2013 order enjoining Chamblee from proceeding with the annexation of the Century Center property owned by Highwoods is to remain in effect until remittitur is filed in the trial court or until further order of this Court or the Supreme Court of Georgia.

       That provision reads, in relevant part, “No bill shall pass which refers to more than one subject matter . . . .” Ga. Const, of 1983, Art. Ill, Sec. V, Par. III.

       Moreover, we note that Brookhaven took no further action after its city council’s vote, because it was enjoined from doing so. The trial court enjoined Brookhaven from taking any action to annex Century Center, and the Supreme Court’s order on emergency motion stayed only that portion of the injunction that prohibited a vote by the city council or other actions of a legislative nature. The order expressly stated that the injunction remained “in full force and effect” as to any executive or other nonlegislative acts in furtherance of annexation.


author: ANDREWS, Presiding Judge.

text:
    A14A0881.
    COPE v. EVANS.
    (765 SE2d 40)
   ANDREWS, Presiding Judge.

Monette Evans sued John Cope, M.D., an orthopedic surgeon, for medical malpractice claiming that she was injured when Dr. Cope breached the applicable medical standard of care by failing to recognize and treat a staph infection in her hip joint before proceeding with hip replacement surgery. We granted Dr. Cope’s application for an interlocutory appeal from the denial of his motion for summary judgment. Because we find no evidence in the record that Dr. Cope violated the applicable standard of care, he was entitled to summary judgment, and we reverse.

After Ms. Evans fell and fractured her hip, Dr. Cope performed surgery in September 2006 to repair the fracture. X-rays taken in October 2006 showed that the September 2006 surgery failed because a screw used to fix the fracture started to come loose from the bone. After the hip repair surgery failed, Dr. Cope performed a second surgery in October 2006 in which he replaced Ms. Evans’s injured hip. When Dr. Cope entered the hip during the replacement surgery, he encountered some clear yellow fluid which he testified appeared to be the result of inflammation caused by the loose screw from the first surgery. According to Dr. Cope, he saw nothing before or during the second surgery that suggested an infection was present in the hip. Nevertheless, Dr. Cope ordered a gram stain test and a culture on the fluid for the purpose of determining if bacteria might be present. The gram stain test was conducted during the surgery; the test showed no bacteria (an indication of lack of infection); and Dr. Cope completed the surgery. Four days after the hip replacement surgery was completed, the culture of the fluid grew staphylococcus bacteria indicating that, unknown to Dr. Cope when he performed the surgery, an antibiotic-resistant staph infection was present in the hip at the time of the surgery. Expert medical evidence showed that Dr. Cope knew at the time he performed the first and second surgeries that Ms. Evans was taking immunosuppressive drug therapy for a prior kidney transplant, and that this made her more susceptible to bacterial infection. Expert medical evidence also showed that, when Dr. Cope put hip replacement hardware in the hip joint during the second surgery, this had the effect of making the existing staph infection more difficult to treat. The infection was eventually eliminated after Ms. Evans was hospitalized for about six weeks of antibiotic treatment. After Ms. Evans continued to have pain in the replaced hip, she had the hip examined in April 2008 by another orthopedic surgeon, J. Kevin Brooks, M.D. Dr. Brooks determined that the hip replacement hardware placed by Dr. Cope in the second surgery had loosened. In September 2008, Dr. Brooks performed another hip replacement surgery on Ms. Evans’s hip to revise the earlier replacement surgery performed by Dr. Cope. Based on his review of Ms. Evans’s medical records, Dr. Brooks’s opinion was that the probable cause of the failure of the first hip repair surgery performed by Dr. Cope was the development of a staph infection; that the infection was present in the hip when Dr. Cope replaced the hip in the second surgery; and that the infection likely caused the loosening of the replacement hardware placed by Dr. Cope in the second surgery.

[I]n order to establish medical malpractice, the evidence presented by the patient must show a violation of the degree of care and skill required of a physician. Such standard of care is that which, under similar conditions and like circumstances, is ordinarily employed by the medical profession generally.

Johnson v. Riverdale Anesthesia Assoc., 275 Ga. 240, 241 (563 SE2d 431) (2002) (citation and punctuation omitted), overruled on other grounds, Condra v. Atlanta Orthopaedic Group, 285 Ga. 667, 669 (681 SE2d 152) (2009). There is a rebuttable presumption that medical or surgical services were performed in an ordinary and skillful manner. Beach v. Lipham, 276 Ga. 302, 303-304 (578 SE2d 402) (2003). “To overcome the presumption in the typical case, the injured patient must present evidence from expert medical witnesses that the defendants did not exercise due care and skill in performing their services.” Id. at 304. To prevail on a motion for summary judgment, “the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.” Lau’s Corp. v. Haskins, 261 Ga. 491, 491 (405 SE2d 474) (1991); OCGA § 9-11-56. The moving party on summary judgment may carry this burden by affirmatively presenting evidence which negates an essential element of the nonmoving party’s claim, or by demonstrating the absence of evidence to support an essential element of the nonmoving party’s claim. Lau’s Corp., 261 Ga. at 491.

Ms. Evans does not claim that Dr. Cope breached a medical standard of care during his performance of the first surgery to repair her hip in September 2006, nor does she claim that staph bacteria invaded her hip joint because Dr. Cope breached a standard of care. Rather, her malpractice action is based on the claim that Dr. Cope violated the applicable medical standard of care when he failed to recognize and treat a staph infection in her hip before he proceeded with the hip replacement surgery in October 2006.

Ms. Evans argues that expert testimony given by Dr. Brooks supports her malpractice claim. Dr. Brooks and Dr. Cope both gave testimony showing that, when infection is recognized to exist before or during hip replacement surgery, the standard of care requires that replacement hardware not be placed in the infected hip; rather, the standard is to treat and eliminate known infection before placing the hardware in the hip. Dr. Cope testified that he did not see evidence of or recognize any infection in Ms. Evans’s hip before or during the October 2006 hip replacement surgery, and that he placed the replacement hardware in her hip unaware that a staph infection was present. Based on his review of medical records, Dr. Brooks testified that he found no basis to conclude that Dr. Cope violated any standard of care during his treatment of Ms. Evans. Dr. Brooks found no reason to disagree with Dr. Cope’s operative report on the October 2006 surgery, which noted the absence of evidence of infection. As to Dr. Cope’s October 2006 surgery to replace the hip, Dr. Brooks testified that Dr. Cope used good surgical technique, including use of the gram stain test during the surgery to determine if the clear yellow fluid encountered in the hip was a sign of infection. According to Dr. Brooks, the fluid could have been associated with arthritis or infection in the joint, and it was appropriate for Dr. Cope to order the gram stain test during the surgery to look for infection. Dr. Brooks testified that, based on the results of the gram stain test which showed some inflammatory cells, but no bacteria present, there was no reason for Dr. Cope not to proceed with the hip replacement surgery. Given the fact that no bacteria was detected in the gram stain test, Dr. Brooks was asked, “[I]n that situation, is it within the standard of care to proceed with the hip revision surgery?,” and he responded, “Tes.”

Ms. Evans points out that, in addition to testifying that Dr. Cope complied with the standard of care, Dr. Brooks described his own treatment of her hip beginning in April 2008 after the staph infection had been recognized and treated. Dr. Brooks testified that, before he performed the September 2008 hip replacement surgery, he was aware that Ms. Evans had been treated for a prior antibiotic-resistant staph infection in her hip, although he did not know to what extent the infection had been treated. Prior to performing that surgery, Dr. Brooks did various diagnostic testing to look for possible infection in the hip. Ms. Evans contends that the testimony given by Dr. Brooks showing he tested her hip for infection before the September 2008 surgery in ways that Dr. Cope did not test before the October 2006 surgery was evidence showing that Dr. Cope violated the applicable standard of care before the October 2006 surgery.

Testimony from Dr. Brooks about the diagnostic testing he did for infection before the September 2008 surgery did not create a factual issue precluding summary judgment in favor of Dr. Cope. Dr. Brooks tested Ms. Evans for infection under different circumstances than those encountered by Dr. Cope. Dr. Brooks treated Ms. Evans after she had incurred a known antibiotic-resistant staph infection in her hip, and he pointed out that he did not know the extent to which the prior infection had been treated. Dr. Brooks made clear his opinion that Dr. Cope’s treatment of Ms. Evans complied with the applicable standard of care. Moreover, Dr. Brooks did not testify that the various diagnostic testing he did was the medical standard of care under the circumstances facing Dr. Cope before the October 2006 surgery, or under the circumstances existing prior to his September 2008 surgery. The only reasonable construction which can be given to Dr. Brooks’s testimony about diagnostic testing he undertook prior to the September 2008 surgery is that it described his personal practice. Even assuming that Dr. Cope and Dr. Brooks treated Ms. Evans under similar conditions and like circumstances, testimony from Dr. Brooks about his personal treatment of Ms. Evans was relevant to cast doubt on his testimony that Dr. Cope’s treatment of Ms. Evans complied with the standard of care. Condra, 285 Ga. at 669-672. But testimony about Dr. Brooks’s personal treatment preferences was not evidence which, standing alone, could establish those preferences as the medical standard of care. Dendy v. Wells, 312 Ga. App. 309, 314 (718 SE2d 140) (2011); Condra, 285 Ga. at 672 (noting the difference between the general medical standard of care and the personal treatment preferences of particular physicians, and reaffirming “the principle that a mere difference in views between physicians does not by itself prove malpractice”).

Decided October 23, 2014

Brennan & Wasden, Joseph R Brennan, W. Richard Dekle, Sandra V. Foster, for appellant.

Ronald W. Hallman, Berrien L. Sutton, for appellee.

Construing the facts and reasonable inferences therefrom in favor of Ms. Evans’s claim, there was no expert medical evidence in the record that Dr. Cope violated any medical standard of care. In the absence of any evidence that Dr. Cope violated a medical standard of care, Ms. Evans failed to rebut the presumption that Dr. Cope exercised due care and skill within the standard of care, and the trial court erred by denying Dr. Cope’s motion for summary judgment. Vaughan v. Wellstar Health System, 304 Ga. App. 596, 602 (696 SE2d 506) (2010); Bregman-Rodoski v. Rozas, 273 Ga. App. 835, 836-837 (616 SE2d 171) (2005); Bowling v. Foster, 254 Ga. App. 374, 376-377 (562 SE2d 776) (2002); Lau’s Corp., supra.

Judgment reversed.

McFadden and Ray, JJ., concur.

       Dr. Cope testified that he did not violate the standard of care, and two additional orthopedic surgeons other than Dr. Brooks reviewed the medical records and gave opinions that Dr. Cope did not violate the standard of care in the treatment of Ms. Evans.

       Withher amended complaint,Ms. EvansfiledanexpertaffidavitpursuanttoOCGA § 9-11-9.1 from an orthopedic surgeon, Alexander Doman, M.D., stating that, based on review of medical records, Dr. Cope violated the applicable standard of care by failing to obtain a gram stain culture to diagnose the existing hip infection, and by failing to debride and irrigate the hip after diagnosing the infection. The medical records at issue and Dr. Cope’s testimony subsequently provided undisputed proof that, contrary to the affidavit, Dr. Cope did order a gram stain test which showed no evidence of infection. See Ezor v. Thompson, 241 Ga. App. 275, 279, n. 4 (526 SE2d 609) (1999) (OCGA §9-11-9.1 affidavit based on fact proved to be incorrect is not sufficient to preclude summary judgment). Moreover, in response to Dr. Cope’s motion for summary judgment, Ms. Evans stated that “plaintiff will not rely upon the Doman affidavit at trial, and does not rely upon it in this summary judgment proceeding.” Dr. Doman’s affidavit did not create an issue of fact precluding summary judgment.


author: DOYLE, Presiding Judge.

text:
    A14A1759.
    SNEIDERMAN v. THE STATE.
    (765 SE2d 43)
   DOYLE, Presiding Judge.

Andrea Sneiderman was convicted of one count of hindering the apprehension of a criminal, one count of concealment of material facts, three counts of making false statements, and four counts of perjury. On August 20, 2013, the trial court sentenced Sneiderman to five years imprisonment. Sneiderman thereafter filed motions for new trial, which remain pending with the trial court, and a motion for bond pending appeal, which was denied by the trial court on December 16, 2013. Sneiderman now appeals the denial of her motion for bond pending appeal. For the reasons that follow, we affirm.

Although Sneiderman began her post-sentence confinement in the State of Georgia prison system on December 16, 2013, she was released on parole by the Department of Corrections on June 16, 2014.

1. In her sole enumeration on appeal, Sneiderman argues that under the four-part test stated in Birge v. State, the trial court abused its discretion by denying her motion for bond pending appeal. Sneiderman points to the testimony at the hearing on the motion to support her argument that there was no basis for the trial court to deny the motion.

There is no constitutional right to bond pending appeal. Whether to grant an appeal bond to eligible felony defendants lies within the sound discretion of the convicting court, and we will not disturb the court’s decision absent a flagrant abuse of discretion. In exercising its discretion, the trial court must answer four questions: (1) whether there is a substantial risk the defendant will flee; (2) whether there is a substantial risk the defendant will pose a danger to others in the community; (3) whether there is a substantial risk the defendant will intimidate witnesses or otherwise interfere with the administration of justice; and (4) whether it appears the appeal is frivolous or taken only for the purpose of delay. An affirmative answer to any one of these questions will support the trial court’s decision to deny an appeal bond. Moreover, the defendant bears the burden of convincing the court to grant an appeal bond, and bond should not be granted unless the defendant presents sufficient information, evidence, or argument to convince the trial court that none of the four factors applies.

Decided October 23, 2014.

Steel Law Firm, Brian Steel, for appellant.

Robert D. James, Jr., District Attorney, Anna G. Cross, Assistant District Attorney, for appellee.

Here, the trial court specifically found that Sneiderman failed to satisfy the court that there was not a substantial risk of flight or that the appeal was not without merit or not instituted for the purpose of delay. Although Sneiderman presented evidence at the hearing in the form of friends and family members willing to risk their personal wealth so that she could be released on bond and that in their opinions she was not a flight risk, the trial court was also aware of the circumstances regarding Sneiderman’s conviction, which included crimes of deceit. Pretermitting the issue of whether the trial court abused its discretion by finding that Sneiderman’s appeal of the merits of the case was frivolous, we cannot say as a matter of law that the trial court abused its discretion by denying an appeal bond to Sneiderman on the basis that she failed to carry her burden of establishing that she was not a flight risk.

2. Based on the fact that Sneiderman has been released on parole and citing to this Court’s decision in Hazelrig v. State, the State has filed a motion to dismiss this appeal, arguing that the issue is moot. On the other hand, Sneiderman argues that she continues to labor under parole requirements because of the denial of bond pending appeal. Pretermitting whether the issue is moot based on her release from custody, the motion is hereby denied based on our holding in Division 1 of this opinion.

Judgment affirmed.

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

       OCGA § 16-10-50 (a). Sneiderman was acquitted of three additional counts of perjury and one additional count of making false statements.

       OCGA § 16-10-20.

       Id.

       OCGA § 16-10-70 (a).

       238 Ga. 88 (230 SE2d 895) (1976).

       (Punctuation and footnotes omitted.) Luke v. State, 282 Ga. App. 749, 750 (639 SE2d645) (2006).

       See, e.g., id. at 751.

       171 Ga. App. 97 (319 SE2d 465) (1984).


text:
    A14A1043.
    STRAUSS v. CITY OF LILBURN.
    (765 SE2d 49)
   MCMILLIAN, Judge.

Carole M. Strauss appeals the summary judgment granted to the City of Lilburn in this “trip and fall” action, asserting that genuine issues of material fact exist with respect to her knowledge of the specific hazard causing her fall. For the reasons set forth below, we agree and reverse the trial court’s grant of summary judgment.

Summary judgment is appropriate when no genuine issues of material fact remain and the moving party is entitled to judgment as a matter of law. We review the grant of summary judgment de novo, construing the evidence and all reasonable inferences in favor of the nonmoving party. E.g., McLemore v. Genuine Parts Co., 313 Ga. App. 641 (722 SE2d 366) (2012). So viewed, the record shows that on June 1, 2010, Strauss drove to downtown Lilburn (the “City”) with two visiting relatives to eat lunch at the Blue Rooster Café (the “Café”). At the time, the Café was located along a sidewalk owned by the City at 107 Main Street. In 2007, the City contracted with a third party to renovate the sidewalk area on Main Street. Following the renovation, the upper area of the sidewalk, closest to the Café, was separated from the lower area toward the street, but was connected by a single-step riser; brick columns flanked the riser. Both the upper and lower areas of the sidewalk are constructed of the same, light-colored concrete.

Although Strauss had previously been to the Café, she testified that she usually parked in a lot beside the Café and reached the sidewalk through that parking lot. However, on this occasion, she parked on the street across from the Café. She and her companions then crossed the street and approached the single-step riser connecting the lower sidewalk to the upper sidewalk where the Café’s entrance was located. However, they could not proceed that way because there were people blocking that portion of the sidewalk. Instead, they went around to the right and entered the upper sidewalk area from the end near the parking lot.

After finishing their lunch at approximately 2:00 p.m., they left the Café, and Strauss made her way toward the single-step riser to cross the street to return to her car. Strauss explained at her deposition:

I knew I was coming up to the steps, so I paid attention. I just didn’t see the step there.... The next thing, I just sort of— I was going — I j ust shot out like that, and my head was going towards the car that was parked there, and I thought I was going to hit the car head-on. And then I just splatted on the sidewalk.

Strauss conceded that there was nothing slick or anything else that caused her to trip, and the weather was sunny and bright that day. Strauss could not remember if she had ever walked down that step on her previous visits, but maintained that “historically” she “tried to park in that parking lot . . . [o]n the side.” As a result of her fall, Strauss sustained significant injuries to her right shoulder, and she subsequently filed this action against the City.

Jeffrey Gross, an expert witness retained by Strauss, testified by deposition that the single-step riser where Strauss fell is a “camouflaged hazard” due to the fact that there is no delineation of the step. Thus, according to Gross, the change in elevation at the step “is not readily apparent, especially when viewed in descent.” Gross further opined that the step should have been properly delineated with nosing or other visual cues such as signage or handrails in order to alert pedestrians to the change in elevation. Gross also testified that single steps such as the one at issue in this case are a “well-known, well-documented hazard.” The owner of the Café, who contacted 911 following Strauss’s fall, likewise testified at her deposition that the step is “invisible” on sunny days, so much so that it appears “continuous” or like “one flat surface” when walking down toward the street.

After extensive discovery, the City moved for summary judgment. The trial court found that under the undisputed material facts, “Plaintiff had equal knowledge of the static condition which she contends was a hazard,” and thus granted summary judgment to the City. This appeal followed.

In her sole enumeration of error, Strauss argues that the trial court erred in granting summary judgment in favor of the City because genuine issues of material fact exist with respect to whether the City had superior knowledge of the hazard that caused her fall. We agree.

As a general rule, owners or occupiers of land are not insurers of the safety of invitees. In a premises liability case, such as this one, the mere fact that [Strauss] fell, without more, does not give rise to liability on the part of [the City]. The true basis of the proprietor’s liability for an injury to its invitee is the proprietor’s superior knowledge of a condition that may expose the invitees to an unreasonable risk of harm. Recovery is allowed only when the proprietor had knowledge and the invitee did not.

(Citations, punctuation and emphasis omitted.) Orff v. Stonewood Restaurant Group, LLC, 285 Ga. App. 488, 489 (646 SE2d 702) (2007).

And, to survive a motion for summary judgment in a “trip and fall” case, the plaintiff must come forward with evidence that, viewed in the most favorable light for the plaintiff, would enable a rational trier of fact to find that the defendant had actual or constructive knowledge of the hazard. Only then does the burden of production shift to the defendant to produce evidence that the plaintiff’s injury was caused by his or her own negligence. And finally, should the defendant succeed in doing so, the burden shifts back to the plaintiff to come forward with evidence that creates a genuine issue of material fact on the question of negligence by the plaintiff or that tends to show that any such negligence resulted from the defendant’s own actions or conditions under the defendant’s control. See American Multi-Cinema, Inc. v. Brown, 285 Ga. 442, 444-445 (679 SE2d 25) (2009); Robinson v. Kroger Co., 268 Ga. 735, 746-749 (493 SE2d 403) (1997).

Thus, we turn first to whether Strauss has shown that the City had actual or constructive knowledge of the hazard. An owner has a duty to exercise ordinary care in inspecting the premises to discover possible dangerous conditions of which the owner does not have actual knowledge and must take reasonable precautions to protect invitees from dangers foreseeable from the arrangement or use of the premises. See Cocklin v. JC Penney Corp., 296 Ga. App. 179, 182-183 (674 SE2d 48) (2009). And, in cases such as this, where the plaintiff alleges that a static condition caused her to fall, the landowner’s notice of the hazard is presumed. Id. at 182. See also Barton v. City of Rome, 271 Ga. App. 858, 861 (610 SE2d 566) (2005). Indeed, there is no dispute that the City was aware of the single-step riser and the conditions under which it existed.

The City argues, nonetheless, that it did not have knowledge of the hazard because it had no knowledge or record of any other falls related to the step. “In other words, [the City] claims that while it knew the [step] was there, it did not know the [step] was a hazard.” Brown, 285 Ga. at 446 (emphasis in original). Like the Supreme Court in Brown, we are not persuaded. Strauss has produced evidence that single-step risers that are the same color on both elevations and are not otherwise marked are a well-known hazard. “The decision whether to recognize [Strauss’s] theory of recovery as valid under Georgia premises liability law is precisely the type of legal policy judgment [the Court] instructed in Robinson must be left to a jury to decide in light of all the attendant circumstances.” Id. (“Given [plaintiff’s] evidence of the risk posed by this particular ... sign ..., we cannot say, as a matter of law, that [defendant] fulfilled its legal duty to avoid creating an unreasonable risk of foreseeable harm to the public.”).

In attempting to shift the burden back to Strauss, the City also argues that she had actual knowledge of the hazard because she admits that she knew there was a step in the area. However, although the single-step riser is a static condition, there is no evidence that Strauss had actually walked either up or down the single-step riser before her fall. The cases relied upon by the City are readily distinguishable; nearly all involve instances in which the plaintiff had previously traversed the same specific hazard under the same circumstances and/or admitted that she was not paying attention at the time of the fall. See, e.g., LeCroy v. Bragg, 319 Ga. App. 884 (739 SE2d 1) (2013); Orff, 285 Ga. App. at 488; Echols v. Whisker’s Food & Spirits, Inc., 229 Ga. App. 240 (493 SE2d 722) (1997) (physical precedent only).

Moreover, “the rule imputing knowledge of a danger to a person who has successfully negotiated an alleged dangerous condition before applies only to cases involving a static condition that is readily discernible to a person exercising reasonable care for his own safety.” (Citation and punctuation omitted; emphasis supplied.) Perkins v. The Val D’Aosta Co., 305 Ga. App. 126, 128-129 (699 SE2d 380) (2010) (finding a question of fact remained where plaintiffs presented evidence that the step down from the curb was difficult to see when approached from above due to lighting conditions, darkened surfaces and lack of warning). Here, the evidence shows that, although Strauss was paying attention to where she was walking, she was unable to see the step down because the change in elevation was essentially camouflaged from her vantage point, which was supported by the testimony of both Gross and the Café’s owner. Thus, whether Strauss exercised ordinary care for her own safety and whether she had greater or equal knowledge of the specific hazard posed by the single-step riser are questions of fact to be resolved at trial. See Pinder v.H & H Food Services, LLC, 326 Ga. App. 493, 502 (3), n. 9 (756 SE2d 721) (2014) (physical precedent only) (citing cases in which summary judgment improper where evidence supported that static condition was camouflaged or not readily discernible by plaintiff); Cocklin, 296 Ga. App. at 182 (material issue of fact as to whether the specific hazard precipitating plaintiff’s fall was readily observable to her in the exercise of ordinary care); Jackson v. Waffle House, Inc., 245 Ga. App. 371, 375 (2) (537 SE2d 188) (2000) (question of fact remained where plaintiff had never traversed that specific area of the parking lot before). Accordingly, the trial court’s grant of summary judgment to the City must be reversed.

Decided October 24, 2014.

Wood, Hernacki & Evans, Katherine V. Hernacki, for appellant.

Lokey, Mobley & Doyle, G. Melton Mobley, Dawn N. Pettigrew, for appellee.

Judgment reversed.

Phipps, C. J., and Ellington, P. J., concur.

       That developer is not a party to this litigation.

       At that location, there is no step, hut rather a small, sloping handicap ramp that leads to the sidewalk.

       “A static condition is one that does not change and is dangerous only if someone fails to see it and walks into it.” (Citations and punctuation omitted.) Bullard v. Marriott International, Inc., 293 Ga. App. 679, 681 (2) (667 SE2d 909) (2008).

       While there is evidence that one person tripped while walking up the step in 2009, it is undisputed that she did not report the incident to the City.


author: McMillian, Judge.

text:
    A14A1253.
    INGLES MARKETS, INC. v. CARROLL.
    (765 SE2d 45)
   McMillian, Judge.

Deborah Ann Carroll filed suit against Ingles Markets, Inc. (“Ingles”), alleging that Ingles was liable to her for injuries she received when a child ran into her and knocked her down while she was shopping at an Ingles store in Villa Rica, Georgia. Following discovery, Ingles filed a motion for summary judgment, which the trial court denied. This interlocutory appeal followed. Because there is no evidence that Ingles had either actual or constructive knowledge of the hazard at issue, we reverse the trial court’s denial of summary judgment to Ingles.

We review the denial of summary judgment de novo, viewing the evidence in the light most favorable to the nonmovant. See Whitfield v. Tequila Mexican Restaurant No. 1, Inc., 323 Ga. App. 801, 802 (2) (748 SE2d 281) (2013). So viewed, the record shows that on February 11,2012, Carroll was grocery shopping at an Ingles store in Villa Rica, Georgia. Right before the incident, Carroll was exiting the cereal aisle and on her way to get milk. As she was walking, she saw, from the corner of her eye, a young boy coming toward her. She noticed that he was “walking fast.” Carroll testified that the next thing she knew, he had run into her and knocked her to the ground. The boy, who appeared to be around 11-13 years old, was carrying a bag of charcoal as he was coming out of an aisle that contained items such as plates, cups, and charcoals.

In her deposition, Carroll acknowledged that she had been visiting that particular Ingles approximately three times per week since it had opened and she had never seen any children running in the store. She always found the store to be well kept and clean, and the employees were always helpful. Although Carroll had “skipped around” the store on the day in question and was almost finished with her shopping at the time of her fall, she had not previously seen the boy.

Andy Lindgren, the Villa Rica store manager, testified that he personally walks around the entire store on a daily basis, multiple times per day. At a minimum, he does this at 8:00 a.m., 12:00 p.m., and 5:00 p.m. Ingles also has a policy that requires one of the customer service managers to walk through the store every two hours and to maintain a “Store Sweep Log” of these inspections. During a “sweep,” a manager will walk the store’s entire perimeter to make sure that there are “no slip hazards, no trip hazards, no water on the floor, [and] nothing that would cause” any injuries. In addition, there are generally two to five stock clerks working in the main grocery area who are also instructed to keep a look out and clear any hazards on the floor at any time. The employees would also look for any children running up and down the aisles. Lindgren specifically instructs his employees that if they see a child running, they are to instruct the child’s parent(s) to make sure the child stops running, and if the running continues, they should be asked to leave. He had never asked a customer to leave the store because of a child continuing to run after being warned and could only recall one other time when he had to ask a child to stop running in the store.

At the time of the incident, Lindgren was assisting with stocking in a back room of the store. He later happened upon one of the customer service managers completing an incident report with Carroll, the boy, and his parents. He had personally never seen the boy before and learned that none of his employees had seen the boy running before the fall. At his deposition, Lindgren identified the Store Sweep Log maintained in February 2012, which indicated that, on February 11, two of the store’s customer service managers had performed all of the required “sweeps,” including one at 12:00 p.m. The incident report shows that Carroll fell at approximately 12:30 p.m.

In related enumerations of error, Ingles argues on appeal that the trial court erred in denying its motion for summary judgment because there is no evidence that Ingles had superior knowledge that the child was running in the store. We agree. As we have often stated,

[i]n premises liability cases, proof of a fall, without more, does not give rise to liability on the part of a proprietor, because the true basis of a proprietor’s liability for personal injury to an invitee is the proprietor’s superior knowledge of a condition that may expose the invitee to an unreasonable risk of harm.

(Citations, punctuation and emphasis omitted.) Drew v. Istar Financial, Inc., 291 Ga. App. 323, 324-325 (661 SE2d 686) (2008).

A proprietor’s knowledge of the risk of harm may be actual or constructive. “Constructive knowledge may be based either on evidence that the dangerous condition lasted so long that the defendant should have discovered it, or on evidence that an employee of defendant was in the immediate vicinity and could have easily seen the problem.” (Citation and punctuation omitted.) Herrin v. Peeches Neighborhood Grill & Bar, Inc., 235 Ga. App. 528, 532 (1) (509 SE2d 103) (1998).

In support of its contention that it had no notice of any hazard, Ingles points to the similar facts in Belk-Hudson Co. v. Davis, 132 Ga. App. 237 (207 SE2d 528) (1974), in which the plaintiff brought suit against a store after she was knocked down by “youths who were running, pushing and shoving” inside the store. Id. This Court explained:

It is the duty of one who invites members of the general public to come to his place of business to protect such customers or invitees from injury caused by misconduct of his own employees in the conduct and scope of his business, and from the misconduct of other persons who come upon the premises.

(Citation and punctuation omitted.) Id. at 238. However, the “duty of interference on the proprietor’s part does not begin until the danger is apparent, or the circumstances are such as would put an ordinarily prudent man on notice of the probability of danger.” (Citation and punctuation omitted.) Id. Moreover,

in the absence of extraordinary circumstances which make it appear likely that a customer may suffer injuries through the pushing of other customers, there exists no duty of the proprietor to provide attendants, ushers, or other supervisory personnel to safeguard customers against such an exigency.

(Citation and punctuation omitted.) Id. at 240 (where there was no evidence that defendant’s employees had any knowledge children were running, pushing or shoving, plaintiff failed to show defendant had superior knowledge of any dangerous condition in sufficient time to correct it, and the trial court therefore erred in denying defendant’s motion for directed verdict).

The record before us is devoid of any evidence that Ingles had either actual or constructive knowledge of the child running in the store. Carroll argues, nonetheless, that Ingles’ inspection procedure is deficient and that Ingles should therefore be charged with constructive knowledge. Although she concedes that Ingles “has no special obligation to protect its customers from children, or to keep a constant lookout,” she maintains that 30 minutes passed between Ingles’ last “sweep” of the store and the time that she fell, thus creating a jury question as to whether Ingles’ inspection procedures were reasonable. However, Carroll fails to establish how long the child may have been running or that a more rigorous inspection procedure would have been able to prevent her fall. To the contrary, based on her own testimony — that when she initially saw the child out of the corner of her eye, he was not running, but “walking fast” — the child could only have been running a very short time before he ran into her. Thus, only a constant patrol — the type of procedure we have specifically declined to impose on proprietors under normal circumstances — could have possibly prevented her injury here. See, e.g., Ginn v. Grothere, 220 Ga. App. 661, 663 (469 SE2d 876) (1996) (proprietor generally under no duty to patrol the premises continuously); Congleton v. Starlite Skate Center, Inc., 175 Ga. App. 438, 440 (333 SE2d 677) (1985) (same).

Moreover, the foreign substance slip and fall cases on which Carroll relies to argue that Ingles’ inspection procedure was unreasonable are factually distinguishable. See Super Discount Markets, Inc. v. Clark, 213 Ga. App. 132, 133-134 (443 SE2d 876) (1994); Gilbert v. Automotive Purchasing Svc., 254 Ga. App. 770 (563 SE2d 906) (2002). A foreign substance that falls onto the floor and stays in one place is clearly a different type of hazard than the sudden, intervening act of a third party. See, e.g., Roberts v. Wal-Mart Stores, Inc., 287 Ga. App. 316, 317-318 (651 SE2d 464) (2007) (“If a third party’s misconduct causes injury to a plaintiff while on the premises, the inquiry is whether the proprietor had superior knowledge of the danger that a third party would so act.”) (citation omitted); Elliott v. Burkhalter, 173 Ga. App. 749, 750 (327 SE2d 858) (1985) (“If the altercation and resulting injury happened suddenly and without warning and the defendant could not, by the exercise of reasonable care, have discovered or prevented it, there can be no recovery.”) (citations and punctuation omitted); Davis, 132 Ga. App. at 238 (3) (“where the proprietor has no notice of dangerous conduct on the part of customers or third persons on the occasion in question, he cannot be held liable for injuries to an invitee resulting from that conduct”). See also Whitfield, 323 Ga. App. at 803 (2) (“But even if an intervening criminal act may have been reasonably foreseeable, the true ground of liability is the superior knowledge of the proprietor of the existence of a condition that may subject the invitee to an unreasonable risk of harm.”) (citations and punctuation omitted); W. D. Enterprises, Inc. v. Barton, 218 Ga. App. 857, 858 (463 SE2d 529) (1995) (“Aproprietor is not liable for injuries to an invitee caused by unforeseeable, remote or unusual events such as the intervening acts of a third party.”) (citation and punctuation omitted).

Decided October 24, 2014.

Mabry & McClelland, Walter B. McClelland, James W. Scarbrough, for appellant.

Witcher Law Firm, Jack F. Witcher, Daniel B. Greenfield, for appellee.

We recognize, of course, that issues of premises liability are generally not susceptible of summary adjudication; however, we conclude that the evidence in this case is “plain, palpable, and undisputed” and summary judgment is therefore appropriate. Dickerson v. Guest Svcs. Co. of Va., 282 Ga. 771, 771-772 (653 SE2d 699) (2007). Accordingly, we reverse the trial court’s denial of summary judgment to Ingles.

Judgment reversed.

Phipps, C. J., and Ellington, P. J., concur.

       The boy and his parents were named in the complaint. However, each defaulted, and none is a party to this appeal.