text:
    A11A1928.
    HARPER v. BARGE AIR CONDITIONING, INC.
    (722 SE2d 84)
   Dillard, Judge.

Following a trial by jury, Jocelyn Harper appeals a verdict in favor of Barge Air Conditioning, Inc. (“Barge”) on Harper’s claims related to an incident in which she sustained brain damage as a result of carbon-monoxide poisoning. On appeal, Harper argues that the trial court erred in (1) failing to strike two potential jurors for cause and (2) failing to strike the entire jury venire after Barge made reference to a collateral source of recovery during voir dire. For the reasons set forth infra, we reverse the judgment in favor of Barge and remand for a new trial.

The underlying facts of this case are not fully borne out by the record before us, but they are set forth in great detail in a prior opinion issued by this Court. Indeed, this appeal is the second in a history of litigation between Harper and Barge, in which Harper contends that “she suffered brain damage after being exposed to high levels of carbon monoxide at her former place of employment, AutoZone.” Specifically, Harper alleges that on the day she was injured, a technician from Barge had serviced a heating, ventilating, and air conditioning unit at the store; and she thereafter filed suit against the company under a theory of respondeat superior.

In the parties’ first appearance before this Court, we reversed the trial court’s grant of a directed verdict in favor of Barge and remanded for retrial of Harper’s personal-injury action. The current appeal follows the retrial of this matter, which resulted in a jury verdict in favor of Barge.

Harper argues in this appeal that her right to a fair and impartial jury trial was violated by two errors committed during jury selection. Namely, she contends that two biased jurors should have been excused by the trial court for cause and that the entire jury venire was tainted by a question from Barge that “nakedly telegraphed to the panel that the plaintiff was already being compensated by a worker’s compensation payout.” We will address each of these enumerations in turn.

1. First, Harper argues that the trial court abused its discretion and erred in denying her motion to strike two jurors who expressed bias in favor of Barge. We agree.

At the outset, we note that “it shall be good cause of challenge that a juror has expressed an opinion as to which party ought to prevail or that he has a wish or desire as to which shall succeed.” And when a challenge has been made upon either ground, the trial court has a duty “to hear the competent evidence respecting the challenge as shall be submitted by either party, the juror being a competent witness.” In this regard, our Supreme Court has explained that

when a prospective juror has a relationship with a party to the case that is either close or subordinate, or one that suggests bias, the trial court must do more than “rehabilitate” the juror through the use of any talismanic question. The court is statutorily bound to conduct voir dire adequate to the situation, whether by questions of its own or through those asked by counsel.

We require this because a trial judge “is the only person in a courtroom whose primary concern, indeed primary duty, is to ensure the selection of a fair and impartial jury.” But because trial courts are vested with broad discretion in evaluating and ruling upon a potential juror’s impartiality, we will only reverse when there has been a “manifest abuse” of the trial court’s discretion.

In the case sub judice, Harper takes issue with two potential jurors that the trial court refused to strike for cause after the jurors admitted that they would be inclined to find in Barge’s favor due to having personal and professional relationships with Barge’s counsel. The first was Juror 30, from whom Harper’s counsel elicited the following testimony after asking whether any member of the jury venire knew opposing counsel:

JUROR [30]: I’m a CPA in Cordele.
[COUNSEL]: You know —
JUROR [30]: I mean, he’s my client and my attorney, so you know I’ve worked on many occasions with him.
[COUNSEL]: I’m not sure this is — I don’t want to be inappropriate with the question, but is he your current client?
JUROR [30]: Yes.
[COUNSEL]: Is it on a personal basis?
JUROR [30]: Yes.
[COUNSEL]: Well, I’ve asked a few times, but I’m going to have to ask again if that would — he’s your client, would you be inclined to try to find in his favor?
JUROR [30]: What do you think? Of course.

Counsel for Harper thereafter moved on to Juror 32, who had also indicated that she knew opposing counsel. In questioning Juror 32, the following colloquy transpired:

JUROR [32]: His son graduated with my daughter and he’s (Inaudible). He’s represented me on several things.
[COUNSEL]: And I don’t want to pry too much, but can you give me just a real general idea of the types of things he’s represented —
JUROR [32]: On a house closing, the will, and my divorce.
[COUNSEL]: He was — he represented you in that process?
JUROR [32]: (No Audible Response).
[COUNSEL]: Would your experience with [Barge’s counsel], him being your lawyer previously, would that affect you if you’re asked to be on this jury and find either for or against his client?
JUROR [32]: That could probably affect it.
[COUNSEL]: Would you be inclined to tilt towards [Barge’s counsel]?
JUROR [32]: Yes, sir.

And when it came time for Barge’s counsel to question the potential jurors, he acknowledged that some knew him and that others knew the defendant due to living and working together in the same small community. He then explained to the panel that the attorneys were not looking for jurors who were uneasy about serving but were instead “looking for ... if you are so fixed in your mind that you have already developed a definite fixation and you’ll be unable to set that aside in spite of the evidence.” Barge’s counsel then questioned the panel as a whole as to whether anyone was “so prejudiced, so fixed in their mind that they can’t follow the Judge’s questions and they can’t follow the evidence that is produced in this trial.” Neither Juror 30 nor Juror 32 responded to this line of inquiry.

Thereafter, Barge’s counsel made additional remarks about wanting to empanel jurors who would not rush to judgment, who would wait to hear all of the evidence, and who were “a little bit curious,” before asking whether there was “any juror in here that cannot do these things.” Again, neither Juror 30 nor Juror 32 responded to this line of inquiry.

Thereafter, when it came time for the parties to make their respective motions to excuse jurors, Harper sought to strike Jurors 30 and 32 for cause on the basis that they had both expressed a bias in favor of Barge. In response, Barge’s counsel argued that the two jurors had not met the standard required to be struck for bias, namely “a prejudice so fixed that you can’t follow the evidence.” The trial court denied Harper’s motions to strike for cause, and Harper used two peremptory strikes on Jurors 30 and 32, which prevented her from using those strikes as to other potential jurors. And after the jury returned a verdict in favor of Barge, the trial court likewise denied Harper’s motion for new trial on this same ground.

Our review of the record reveals that the trial court abused its discretion by failing to strike Jurors 30 and 32 for cause. Indeed, once Harper challenged Jurors 30 and 32 for cause, the trial court was required to “conduct an inquiry, either through its own questioning or allowance of questions by counsel, sufficient to evaluate the potential juror’s fairness and impartiality.” But this inquiry needed to consist of more than attempted “rehabilitation” of the jurors through “talismanic” questions, “such as whether the juror can set aside his personal feelings and decide the case based solely on the evidence and the law.”

Here, the trial court made absolutely no inquiry of Jurors 30 and 32, despite their admissions to bias in favor of Barge. And the most that can be said of any generalized inquiry by Barge’s counsel is that it consisted solely of the very “talismanic” questions this Court has previously cautioned against. Moreover, the questions posed by Barge’s counsel to the jury venire were asked of the panel as a whole as opposed to Jurors 30 and 32 specifically. Thus, we conclude that the trial court clearly abused its discretion in failing to make the proper inquiry and/or failing to strike for cause when Jurors 30 and 32 explicitly expressed bias toward Barge based on their relationships with its counsel—a situation, we note, that starkly contrasts with cases in which a potential juror had a relationship with a party or counsel but expressed no bias.

Accordingly, we reverse the judgment in favor of Barge and remand the case for a new trial. In doing so, we “deplore the significant burden a [second] retrial will impose, not only on the parties, but on the community as well,” and “[w]e are particularly troubled by the trial court’s willingness to infect a trial with this kind of error when a solution (excusing the juror[s] for partiality) was so readily available.” Nevertheless, we remain steadfast in our commitment as a Court to safeguarding the sacrosanct and cherished right to a fair and impartial jury trial, and we will continue to remand this case back to the trial court until Harper is provided with same.

2. Likewise, we are required to reverse based on Harper’s second enumeration of error, which also relates to voir dire and which we address to avoid any possible repetition at retrial. Specifically, Harper contends that Barge “tainted” the jury pool by asking a prejudicial question that referred to a collateral source of recovery. We agree.

The record shows that at the beginning of Barge’s voir dire of the jury venire, in the midst of engaging in the generalized questions discussed supra, counsel made the following statement: “So that my questions will have some basis and some foundation[,] let me tell you just a little bit about what this case is about.” Barge’s counsel then gave a brief description of the background facts and issues in the case—namely, whether Barge was responsible for the discharge of carbon monoxide inside the AutoZone. When Harper’s counsel objected, Barge’s counsel again explained that the purpose was to “give a short statement about what the case is about so the questions will have some meaning to them.”

After finishing the summary of the case and the other aforementioned questions, Barge’s counsel immediately asked the following:

Now, has any member of this jury panel ever made a Workers’ Compensation claim and at the same time sued another third party for the same injury? Have any of y’all ever had one of those kind of claims?

No juror responded. After the jury venire had been excused for lunch and the court had entertained motions to strike, Harper requested a new jury panel and argued that Barge’s question had poisoned the jury pool and prejudiced Harper. The trial court denied the motion. In doing so, the trial court erred.

In Georgia, the collateral-source rule “bars the defendant from presenting any evidence as to payments of expenses of a tortious injury paid for by a third party and taking any credit toward the defendant’s liability and damages for such payments.” Thus, while it would have been permissible to question the jury panel as to whether they had ever filed a personal-injury claim in general or whether they had any relation to an insurance company involved in the litigation, the question posed by Barge’s counsel was inherently prejudicial because its wording permitted the jury to infer that Harper had already been compensated by a collateral source. Indeed, Barge’s counsel repeatedly mentioned that the summary of the case immediately preceding his question was intended to give the jury venire enough information to put his questions into context. And by failing to grant Harper’s motion for a new panel or—at the very least—provide a curative instruction, the trial court further compounded the error discussed in Division 1, supra.

Decided December 16, 2011

Reconsideration denied December 30, 2011

Bell & Mulholland, Lloyd N. Bell, Robert E. Mulholland, for appellant.

Crim & Bassler, Harry W Bassler, for appellee.

Accordingly, for all the foregoing reasons, we reverse the judgment in favor of Barge and remand for a new trial.

Judgment reversed and case remanded for new trial.

Mikell, C. J., and Smith, P. J., concur.

        See Harper v. Barge Air Conditioning, Inc., 300 Ga. App. 901, 901-05 (1) (686 SE2d 668) (2009) (physical precedent only).

        Id. at 901 (1).

        Id.

        See id. at 907 (2).

       OCGA § 15-12-134; see also Mobley v. Wright, 253 Ga. App. 335, 337 (3) (559 SE2d 78) (2002) (“Where the juror appears partial to one side or the other or through voir dire demonstrates a lack of impartiality, such constitutes good cause for the judge in his discretion to remove the juror to preserve the integrity of an impartial and fair jury trial and serve thereby the ends of justice.”). See generally Cambrón v. State, 164 Ga. Ill, 114 (137 SE 780) (1927) (“In the interest of [a] fair trial, if error is to be committed, let it be in favor of the absolute impartiality and purity of the jurors, rather than in a too-technical observance of the letter of cases previously adjudicated and an attempt to bring the facts of other cases within some particular ruling.” (punctuation omitted)).

       OCGA § 15-12-134.

        Kim v. Walls, 275 Ga. 177, 178 (563 SE2d 847) (2002) (emphasis supplied).

        Id. (punctuation omitted).

        Id.

       Emphasis supplied.

       Emphasis supplied.

        Remillard v. Longstreet Clinic, P.C., 267 Ga. App. 230, 231 (599 SE2d 198) (2004); see also Kim, 275 Ga. at 178.

        Remillard, 267 Ga. App. at 231.

        See Bennett v. Mullally, 263 Ga. App. 215, 217-18 (1) (587 SE2d 385) (2003) (new trial proper when “presiding judge failed to conduct voir dire adequate to the situation” and did not attempt to rehabilitate a juror who expressed bias). Compare Hardy v. Tanner Med. Ctr., Inc., 231 Ga. App. 254, 256 (4) (499 SE2d 121) (1998) (juror who “initially stated that she might not be able to be totally impartial” was sufficiently rehabilitated through further inquiry). Cf. Clack-Rylee v. Auffarth, 273 Ga. App. 859, 862 (616 SE2d 193) (2005) (holding that when potential juror “made it clear throughout the voir dire that he drew a distinction between his personal, religious faith . . . and his legal obligations!,]” trial court did not abuse its discretion in forgoing further inquiry because juror did not express a disqualifying bias).

        See Clack-Rylee, 273 Ga. App. at 860 (advising that when bias is shown, “the trial court must do more than ‘rehabilitate’ the juror through the use of any talismanic question” (punctuation omitted)); Bennett, 263 Ga. App. at 217-18 (1) (same); Walls v. Kim, 250 Ga. App. 259, 260 (549 SE2d 797) (2001) (holding that juror was not rehabilitated by judge’s asking if she could “set aside her preconceived notions and decide the case on the law and evidence”); see also Garduño v. State, 299 Ga. App. 32, 34-35 (2) (682 SE2d 145) (2009) (“[J]urors who have expressed a bias may well mistakenly believe that they can set aside their preconceptions and inclinations-certainly every reasonable person wants to believe he or she is capable of doing so.” (punctuation omitted)).

        See Bennett, 263 Ga. App. at 217 (1) (holding that trial court never attempted to rehabilitate juror who expressed bias when “[t]he only rehabilitation undertaken by the court” occurred when it asked all jurors if they were willing to follow the law). Compare Rucker v. State, 270 Ga. 431, 432-33 (2) (510 SE2d 816) (1999) (trial court rehabilitated juror through questioning directed at her specifically); Remillard, 267 Ga. App. at 233-35 (2) (a)-(b) (trial court conducted its own adequate inquiry, specifically addressing two jurors who had expressed sentiments of potential bias).

        See Berry v. State, 302 Ga. App. 31, 33 (1) (690 SE2d 428) (2010) (holding that court would not imply bias when juror admitted to having a friendship and business relationship with district attorney but also stated that she was not biased); Remillard, 267 Ga. App. at 232 (1) (holding that court would not presume prejudice when six jurors admitted to having continuing patient relationships with doctors employed by defendant but also testified that the relationship “would not affect their ability to render a fair verdict in the case”); Smith v. Folger, 237 Ga. App. 888, 889 (2) (517 SE2d 360) (1999) (holding that potential juror was not disqualified by wife’s representation by defense counsel when he expressed no bias); see also Ford Motor Co. v. Gibson, 283 Ga. 398, 406 (7) (659 SE2d 346) (2008) (holding that trial court did not abuse discretion in rehabilitating jurors who expressed general distrust of corporations but unequivocally expressed no bias toward either party in the case); Moore v. Moore, 281 Ga. 81, 84 (4) (635 SE2d 107) (2006) (holding that husband completely failed to meet the burden of rebutting presumption of impartiality regarding prospective juror whose wife was a current client of opposing counsel).

        See Guoth v. Hamilton, 273 Ga. App. 435, 440-41 (1) (615 SE2d 239) (2005) (reversing and remanding for a new trial because appellant exhausted all peremptory challenges when trial court failed to strike jurors for cause); see also Pickering v. Wagnon, 91 Ga. App. 610, 612 (86 SE2d 621) (1955) (reversible error when plaintiff exhausted peremptory strikes).

        Guoth, 273 Ga. App. at 440-41 (1) (punctuation omitted).

        See Ga. Const. Art. I, Sec. I, Para. XI (a) (providing that the right to a jury trial “shall remain inviolate”); Melson v. Dickson, 63 Ga. 682 (1879) (holding that “an impartial jury is the corner-stone of the fairness of trial by jury”); Jones v. Cloud, 119 Ga. App. 697, 706 (5) (168 SE2d 598) (1969) (same); id. at 707 (5) (“A jury trial is a travesty unless the jurors are impartial.” (punctuation omitted)); see also Morris S. Arnold, A Historical Inquiry into the Right to Trial by Jury in Complex Civil Litigation, in The Bill of Rights: Original Meaning and Current Understanding 399, 400 (Eugene W Hickok, Jr. ed. 1993) (“That special affection for the jury ought to be viewed as relevant not just to the fact that jury trial was ‘preserved’ in the Constitution; it is relevant as well to interpreting the scope of the actual provision, for it gives the right granted an aura and the Constitution a meaning they would not otherwise have if the institution of jury trial had been regarded more or less indifferently.”).

        Kelley v. Purcell, 301 Ga. App. 88, 91 (686 SE2d 879) (2009) (punctuation omitted).

        See Yale v. Stapleton Corp., 377 Fed. Appx. 839, 840 (II) (11th Cir. 2010) (holding that district court did not err in explaining the nature of workers’ compensation to potential juror after court inquired whether members of panel had ever filed a lawsuit; explanation and question did not suggest that plaintiff had ever received workers’ compensation benefits); McMillin v. Union Elec. Co., 820 SW2d 352, 354 (Mo. Ct. App. 1991) (holding that question about workers’ compensation was permissible when asked in context of all types of personal-injury claims).

        See Crosby v. Spencer, 207 Ga. App. 487, 490 (6) (428 SE2d 607) (1993) (“It is proper to qualify the jury relative to the possible interest which the members may have in an insurance carrier having a financial interest in the outcome of the suit.” (punctuation omitted)).

        Compare Yale, 377 Fed. Appx. at 841 (II) (“[Nlothing in the court’s exchange with the prospective jurors in this case suggested that the plaintiff had filed a worker’s compensation claim or received worker’s compensation benefits.”); McMillin, 820 SW2d at 354 (question about workers’ compensation in context of claims in general provided no indication of having been “designed to inject insurance into the case” or having been “asked in bad faith”). Cf. Cincinnati Ins. Co. v. Reybitz, 205 Ga. App. 174, 177 (1) (a) (421 SE2d 767) (1992) (“The admission of evidence of no-fault insurance coverage is inherently prejudicial in a negligence action against the insured.”).

        Compare Yale, 377 Fed. Appx. at 841 (II); McMillin, 820 SW2d at 354.

        See Mitchell v. State, 284 Ga. App. 209, 209 (1) (644 SE2d 147) (2007) (“When a panel of potential jurors is exposed to a prejudicial remark or question, the remedies are to request a postponement until a new panel of jurors can be selected or to challenge the poll of the jury.”).


source: Caselaw Access Project

author: Miller, Presiding Judge.

license: Public Domain

text:
    A11A1533.
    JACKSON v. THE STATE.
    (722 SE2d 80)
   Miller, Presiding Judge.

Curtis Jackson, proceeding pro se, appeals from the trial court’s denial of his motion for an out-of-time appeal. We discern no error and affirm.

[A]n out-of-time appeal is a judicial creation that serves as the remedy for a frustrated right of appeal. In order for an out-of-time appeal to be granted, the burden is on the movant to establish that the procedural deficiency that resulted in the loss of the defendant’s right to direct appeal was due to error of counsel. If there is evidence sufficient to authorize a finding that the movant’s conduct caused the loss of the right to direct appeal, the movant is not entitled to an out-of-time appeal. We review a trial court’s denial of a motion for an out-of-time direct appeal for an abuse of discretion.

(Punctuation and footnotes omitted; emphasis in original.) Jeffcoat v. State, 299 Ga. App. 54, 55 (682 SE2d 131) (2009). .

The record shows that following Jackson’s conviction, he filed a notice of appeal from the trial court’s order denying his motion for new trial. Although the trial court’s order was entered on April 22, 2010, Jackson’s notice of appeal was not filed until June 8, 2010. Since Jackson’s notice of appeal was filed untimely, this Court dismissed Jackson’s appeal.

Decided December 8, 2011

Reconsideration denied January 9, 2012

Curtis Jackson, pro se.

Richard G. Milam, District Attorney, Lauren A. Love, Assistant District Attorney, for appellee.

Following the dismissal, Jackson filed a motion for an out-of-time appeal. In support of his motion, Jackson claimed that he timely delivered the package containing the notice of appeal, along with 20 other motions, to the prison mailroom. Jackson asserted that he weighed and placed postage on the package, but it was returned as undelivered twice due to insufficient prepaid postage. In his third attempted mailing, Jackson placed more postage on the package, and thereafter, it was successfully mailed and delivered.

To the extent Jackson argued that the “mailbox” rule enunciated in Massaline v. Williams, 274 Ga. 552, 554 (554 SE2d 720) (2001), applied to render his notice of appeal as having been timely filed when he delivered it to the prison mailroom, his argument is unavailing. “The ‘mailbox’ rule . . . applies only in the context of habeas corpus proceedings. Riley v. State, 280 Ga. 267, 268 (626 SE2d 116) (2006).” (Punctuation omitted.) Lewis v. State, 300 Ga. App. 586, 587 (685 SE2d 485) (2009). The rule “does not exempt a pro se prisoner from complying with the statutory requirements to file a timely notice of appeal in any non-habeas criminal or civil filing.” (Citation and punctuation omitted.) McCroskey v. State, 291 Ga. App. 15, 16 (2) (660 SE2d 735) (2008).

Moreover, the evidence shows that Jackson himself weighed and placed the improper amount of postage on his package prior to it being mailed. Since Jackson’s own conduct caused the loss of his right to direct appeal, the trial court did not abuse its discretion in denying his motion for an out-of-time appeal. See McCroskey, supra, 291 Ga. App. at 16 (2).

Judgment affirmed.

Ellington and Doyle, JJ., concur.

       See OCGA § 5-6-38 (a) (mandating that a notice of appeal must be filed within 30 days after entry of the decision or judgment sought to be appealed).


text:
    A11A1824.
    MURRAY v. HOOKS.
    (722 SE2d 82)
   Miller, Presiding Judge.

Ayn Murray, proceeding pro se, appeals from the trial court’s order granting Isaac Hooks’s petition for legitimation and awarding him physical custody of their son. On appeal, Murray generally contends that the trial court erred in its custody award and violated her due process rights by failing to provide her an adequate opportunity to be heard. For the reasons stated below, we affirm.

A fundamental requirement of due process in any proceeding is that litigants have notice and an opportunity to be heard, but due process does not guarantee a particular form or method of state procedure. Nodvin v. State Bar of Ga., 273 Ga. 559, 560 (3) (544 SE2d 142) (2001). “Due process is flexible and calls for such procedural protections as the particular situation demands.” (Citations and punctuation omitted.) Id. Additionally, due process does not provide an individual the right to have all arguments considered at a particular hearing. In the Interest of P. N, 291 Ga. App. 512, 514 (1) (662 SE2d 287) (2008).

The record shows that Isaac Hooks filed the petition for legitimation of his biological child in October 2007. In January 2008, the trial court awarded Hooks temporary custody of the child, finding that the child was deprived due to Murray’s incarceration. In March 2008, the trial court entered a final order of legitimation and awarded physical custody to Hooks, noting that a hearing on the matter had been scheduled, but Murray failed to appear. Murray subsequently moved to vacate this final order. The court granted Murray’s motion, but held that the temporary custody order remained in effect. The court then set the matter for a 60-day status conference to be held in June 2010, and scheduled a bench trial for February 28, 2011. On February 14, 2011, Murray filed a “Motion for Emergency Hearing,” acknowledging that she was aware of the scheduled bench trial. Thereafter, on February 28, 2011, the trial court conducted a bench trial on Hooks’s amended petition, which included a prayer for custody. Following trial, the trial court awarded joint legal custody of the child to both parents, with visitation to Murray, and physical custody of the child to Hooks.

The above evidence shows that Murray received notice of the February 2011 bench trial. Although Murray’s notice of appeal did not request that a transcript of the bench trial be included in the record, the trial court’s order indicates that Murray appeared at the trial. “In the absence of a transcript, we must assume the trial court’s findings were supported by evidence presented, and the actions taken by the trial court during the hearing were appropriate.” (Citations and punctuation omitted.) Baugh v. Robinson, 179 Ga. App. 571, 572 (346 SE2d 918) (1986) (holding that, without the hearing transcript, this Court assumes that an appellant was not denied due process rights or the opportunity to be heard); see also Chariot v. Goldwire, 310 Ga. App. 463, 464 (1) (713 SE2d 667) (2011) (holding that in the absence of transcripts from a custody hearing, this Court assumes that the evidence “adduced therein was sufficient to support the trial court’s findings that the custody and visitation decision was in the best interest of the child”).

Decided December 15, 2011

Reconsideration denied January 9, 2012

Ayn Murray, pro se.

John G. Walrath, for appellee.

To the extent Murray argues that her due process rights were violated based on the court’s prior January and February 2008 hearings held in her absence, her claim affords no basis for reversal. Murray has not demonstrated any harm from the January 2008 temporary custody order because it was superseded by the final custody order, or from the March 2008 order because it was vacated. See generally In the Interest ofB. B., 267 Ga. App. 360, 362 (2) (599 SE2d 304) (2004) (“[Wjithout harm, the alleged error presents no basis for reversal.”). Moreover, even if there were any procedural violations as to these initial hearings, they were cured by the subsequent February 2011 hearing, where, as discussed above, we assume that she received adequate notice and an opportunity to be heard. See Pryor Organization, Inc. v. Stewart, 274 Ga. 487, 491 (3) (554 SE2d 132) (2001) (“An initial procedural violation can be cured by a subsequent procedural remedy.”) (citation omitted).

Judgment affirmed.

Ellington and Doyle, JJ., concur.


author: BARNES, Presiding Judge.

text:
    A11A1657.
    WESTMORELAND et al. v. JW, LLC.
    (722 SE2d 102)
   BARNES, Presiding Judge.

This action involves a landlord-tenant dispute over the amount of unpaid rent that was owed for the use of commercial property. Appellee JW, LLC is the current landlord. Appellants Robert L. Westmoreland, Larry Holder, and Lonnie Holder d/b/a Pizing’s Wings and Things (collectively, “Pizing’s”) were the tenants during the time in question. Following a bench trial, the trial court agreed with JW as to the amount of unpaid rent that was owed by Pizing’s and entered judgment in JW’s favor. On appeal, Pizing’s argues that the trial court erred: (1) by allowing JW to reopen its case-in-chief and introduce into evidence the written assignment agreement entered between the original landlord and JW; (2) by failing to find that the parties had mutually departed from the strict terms of the lease; and (3) by holding Pizing’s liable for rent accruing after JW filed the instant lawsuit. For the reasons discussed below, we affirm.

On appeal from the entry of judgment in a bench trial, we view the evidence in the light most favorable to the trial court’s verdict. Cox Interior v. Bayland Properties, 293 Ga. App. 612, 613 (1) (667 SE2d 452) (2008). So viewed, the evidence showed that in January 2005, Pizing’s entered into an agreement to lease space in a shopping center for the operation of a sports bar and restaurant (the “Lease”). While the Lease was entered into for an original term of five years, it contained a separate provision authorizing automatic renewal for one additional five-year term. Pursuant to the Lease, Pizing’s was required to pay base rent in addition to a share of operating expenses and common area maintenance (“CAM”) charges on a monthly basis.

The Lease named F&M Shoppes of Friendship, LLC (“F&M”) as the landlord. JW, LLC subsequently purchased the shopping center and became the successor-in-interest to F&M. F&M and JW entered into an agreement under which F&M assigned its rights and obligations under the Lease to JW

In 2008, Pizing’s was seriously affected by the downturn in the economy and was struggling to keep open the sports bar and restaurant. Pizing’s advised JW that it would have difficulty continuing to make rent payments and needed “some relief on the rent.” It is undisputed that from November 2008 onward, Pizing’s either made no monthly rent payment or made a monthly rent payment in an amount less than what was specified in the Lease. The parties dispute, however, whether they agreed that Pizing’s would remain liable for the accrued shortfall between the monthly rent specified in the Lease and the reduced rent that was actually paid from November 2008 onward.

In October 2009, the principals of Pizing’s sold the sports bar and restaurant to an individual named Mickey Mixon. JW never entered into a written lease agreement with Mixon, but JW agreed to accept rental payments from him rather than Pizing’s once he began operating the sports bar and restaurant in November 2009. Mixon ultimately failed to make rental payments, leading JW to file a dispossessory action and successfully obtain a writ of possession and judgment for past due rent against him. However, JW was unable to collect on its judgment against Mixon. The parties dispute whether Pizing’s remained liable for any deficiencies in the rent payments from November 2009 onward, when Mixon began operating the sports bar and restaurant.

In January 2010, JW filed the instant action against Pizing’s for breach of the Lease. Following a bench trial in which the parties disputed the amount of unpaid rent that was owed by Pizing’s, the trial court entered judgment in favor of JW in the principal amount of $91,405.84 for unpaid rent, plus prejudgment interest, attorney fees, and litigation expenses. This appeal followed.

1. During the bench trial, after the parties rested, the trial court allowed JW to reopen its case-in-chief and introduce into evidence the written assignment agreement between F&M and JW. Pizing’s argues that the trial court erred in reopening the evidence to admit the assignment agreement without requiring JW to authenticate the document and without allowing Pizing’s to cross-examine any witnesses about the document. As such, Pizing’s asserts that JW was not entitled to rely upon the terms and provisions of the Lease, including the payment terms, and that the relationship between the parties instead was simply a tenancy-at-will that continued on a month-to-month basis.

Pizing’s argument lacks merit. A trial court has broad discretion to allow a party to reopen the evidence after the party has presented its case-in-chief and rested. See Taylor v. State, 282 Ga. 502, 504 (3) (651 SE2d 715) (2007); Bloomfield v. Bloomfield, 282 Ga. 108,110 (1) (d) (646 SE2d 207) (2007). Furthermore, Pizing’s never objected to the introduction of the assignment agreement on the specific ground that it lacked proper authentication or that Pizing’s should be permitted to cross-examine a witness regarding the document; thus, any objection on those particular grounds has been waived. See Belans v. Bank of America, 306 Ga. App. 252, 256 (3) (701 SE2d 889) (2010).

In any event, any alleged error by the trial court in admitting the assignment agreement was harmless. During its case-in-chief, JW introduced into evidence, without objection, two written addenda made part of the Lease that were executed after the shopping center had been sold to JW The addenda, which were signed on behalf of Pizing’s and JW, specifically recited that the original landlord had sold and assigned the Lease to JW and expressly defined JW as the current “Landlord.” Both addenda provided that they would be made part of the Lease and that all terms and conditions of the Lease would remain in force and effect except where modified by the addenda. Hence, the two addenda incorporated into the Lease provided independent evidence, separate and apart from the assignment agreement itself, that JW was entitled to enforce the terms and conditions of the original Lease. It follows that the admission of the assignment agreement, even if error, caused no harm. See Teems v. Bates, 300 Ga. App. 70, 79 (3) (684 SE2d 662) (2009) (admission of evidence was harmless because it was cumulative of other evidence admitted without objection).

2. In the bench trial, Pizing’s raised the affirmative defense of mutual departure. On appeal, Pizing’s argues that the trial court incorrectly calculated the amount of overdue rent because the court should have found that there had been a mutual departure from the strict terms of the Lease regarding the amount of monthly rent that was owed. Specifically, Pizing’s contends that the uncontroverted evidence showed that it was never required, as a matter of practice, to pay CAM charges as part of its monthly rent and that JW orally agreed in November 2008 to modify the Lease to reduce the amount of monthly rent that was owed until the economy improved.

We are unpersuaded. “[A] mutual departure from the terms of an agreement results in a quasi-new agreement suspending the original terms of the agreement until one party has given the other reasonable notice of its intent to rely on the original terms.” Vakilzadeh Enterprises v. Housing Auth. of County of DeKalb, 281 Ga. App. 203, 206 (635 SE2d 825) (2006). See OCGA § 13-4-4. But “[t]he question whether the parties’ mutual conduct caused a waiver and effected a quasi-new agreement ordinarily is a question for the jury,” and the factfinder’s determination will not be disturbed if there is any evidence to support it. Kusuma v. Metametrix, 191 Ga. App. 255, 257 (3) (381 SE2d 322) (1989). See Mahsa, Inc. v. Al-Madinah Petroleum, 276 Ga. App. 890, 894 (1) (625 SE2d 37) (2005).

Here, JW’s managing partner testified that the monthly amount of base rent and CAM due under the Lease was $6,805, and that Pizing’s had paid all amounts due and owing until November 2008. Mr. Westmoreland, one of the principals of Pizing’s, confirmed on cross-examination that the total amount of rent due up to November 2008 was $6,805 a month and that Pizing’s was current on its rent payments until that point in time. According to JW’s managing partner, JW agreed to allow Pizing’s to temporarily pay a reduced amount of monthly rent beginning in November 2008 until the economy improved, but with the understanding between the parties that there would be no permanent rent forgiveness and that Pizing’s would remain liable for the accrued shortfall in base rent and CAM charges. Shortly thereafter, JW sent a letter dated December 18, 2008 to Pizing’s that was consistent with this understanding of the parties’ arrangement in that it contained a chart of the shortfall in rent that was to be carried over from month to month. Pizing’s never responded to the letter. JW sent another letter dated September 2, 2009 reflecting that the shortfall in rent had continued to accrue and discussing how Pizing’s ultimately could go about paying back the shortfall. Again, Pizing’s did not respond to the letter. Given this combined evidence, the trial court was authorized to find that the parties never mutually departed from the terms of the Lease to relieve Pizing’s from paying CAM charges or to permanently forgive a portion of the monthly rent that was owed. See Mahsa, Inc., 276 Ga. App. at 894 (1).

Pizing’s relies upon J. E. M. Enterprises v. Taco Pronto, 145 Ga. App. 573, 573-574 (1) (244 SE2d 253) (1978) and B-Lee’s Sales Co. v. Shelton, 141 Ga. App. 870, 870-873 (1) (234 SE2d 702) (1977), but both of those cases are clearly distinguishable. J. E. M. Enterprises, 145 Ga. App. at 573-574 (1), did not address whether the evidence demanded a finding of mutual departure; rather, the issue was whether certain testimony concerning an oral modification of a contract was admissible. In B-Lee’s Sales Co., 141 Ga. App. at 870, the landlord twice agreed to a reduced rate of rent and told the tenants to just “do the best you can” in making rent payments. Unlike in the present case, there was no evidence that the parties had agreed that the tenants would remain liable for the shortfall between the original rent amount and the reduced amount.

3. Pizing’s maintains that the uncontroverted evidence showed that JW terminated the Lease and released it from any future rent obligations by renting the same space in the shopping center to Mixon, who purchased the sports bar and restaurant from Pizing’s and began operating the business in November 2009. Consequently, Pizing’s contends that the trial court erred in holding it responsible for any unpaid rent that accrued after that date.

We disagree. As an initial matter, to the extent that Pizing’s assigned the Lease to Mixon, “unless there exists evidence of intent for an assignment to act as a novation, an original tenant is not normally released from liability when a lease is assigned.” Fagbemi v. JDN Realty Corp., 275 Ga. App. 540, 542 (621 SE2d 765) (2005). Furthermore, the Lease provided that among other remedies, the landlord had the option, upon the tenant’s default, either to terminate the lease and sue for damages, or to reenter the premises and rent to another party, with the defaulting tenant being liable for any deficiency between the rent owed under the Lease and the rent obtained on re-letting. And the question of which of these two contractual remedies was exercised by JW was for the trier of fact to decide. See Nobles v. Jiffy Market Food Store Corp., 260 Ga. App. 18, 22 (2) (579 SE2d 63) (2003); Buford-Clairmont v. Jacobs Pharmacy Co., 131 Ga. App. 643, 646-647 (1) (206 SE2d 674) (1974).

JW’s managing partner testified that he had a meeting with Mixon and the principals of Pizing’s regarding the renting of the space to Mixon, that at no time did he indicate that Pizing’s would be released from any future delinquent rental payments, and that he sent a letter to Pizing’s to this effect. Hence, there was some evidence from which the trial court was authorized to find that no novation occurred and that JW had exercised its contractual right to reenter the premises and rent to another party, with Pizing’s remaining liable for any deficiencies. Compare Pinkerton’s, Inc. v. Palmer, Inc., 113 Ga. App. 859, 860-861 (149 SE2d 859) (1966) (landlord terminated lease with old tenant as a matter of law where landlord engaged in extensive refurbishment and renovations of the premises on behalf of a new tenant after the old tenant had vacated the premises with only five months remaining on a five-year lease).

Pizing’s argues that JW is judicially estopped from taking the position that Pizing’s continued to be liable for rent after November 2009 in light of JW’s dispossessory action filed against Mixon. But the doctrine of judicial estoppel depends on three factors, including that “the party’s later position must be clearly inconsistent with its earlier position.” (Citation and punctuation omitted.) SuperValu v. KR Douglasville, LLC, 272 Ga. App. 710, 714 (3) (613 SE2d 154) (2005). Because the Lease provided JW with the option of reentering the premises and renting it to another party without releasing Pizing’s from liability for any deficiency in rent, there was nothing inconsistent in JW renting the premises to Mixon, pursuing a dispossessory action against him for his unpaid rent, and then pursuing Pizing’s for the deficiency between the rent owed under the Lease and whatever amount was ultimately obtained from Mixon.

4. Lastly, Pizing’s maintains that the trial court incorrectly held it liable for rent accruing after January 2010, the month that JW filed the instant suit. According to Pizing’s, JW was not entitled to recover rent installments that came due after the suit was commenced, given the absence of a formal amendment of the complaint.

Again, we disagree. “When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” OCGA § 9-11-15 (b). See Mtg. Sav. Co. v. KKFB Investment Co., 196 Ga. App. 283, 284 (1) (396 SE2d 16) (1990). OCGA § 9-11-15 (b) has been applied where a landlord during the course of trial seeks the recovery of rent installments that became overdue only after the filing of the complaint. See Price v. Age, Ltd., 194 Ga. App. 141, 144-145 (3) (390 SE2d 242) (1990). Compare Nickerson v. Candler Bldg., 156 Ga. App. 396, 399-400 (5) (274 SE2d 582) (1980) (concluding that default judgment for unpaid rent was properly limited to payments that were overdue at the time suit was filed).

Decided January 9, 2012.

Sanders & Ranck, Janney E. Sanders, for appellants.

Mills & Hoopes, Timothy S. Walls, Zachary R. Poole, for appel-lee.

At the bench trial, JW introduced documentary evidence detailing the total amount of unpaid rent that had accrued up through July 2010, and JW’s principal similarly testified that JW was seeking unpaid rent that had accrued into the summer of 2010. It was not until closing argument that Pizing’s objected and raised for the first time the issue of whether JW could seek rent that had become overdue after the filing of the complaint. By failing to make a contemporaneous objection to the documentary evidence and testimony of JW’s principal, Pizing’s consented under OCGA § 9-11-15 (b) to the implied amendment of the pleadings to include a claim for the additional unpaid rent. See Sugarloaf Mills Limited Partnership cfee. v. Record Town, 306 Ga. App. 263, 268 (3) (701 SE2d 881) (2010).

Judgment affirmed.

Adams and Blackwell, JJ., concur.

       Embedded in this enumeration of error is the assertion by Pizing’s that the trial court erred in calculating damages by failing to give it credit for a security deposit that it paid upon executing the Lease. But “a party cannot expand [its] enumerations of error through argument or citation in [its] brief.” (Citation and punctuation omitted.) Smyrna Dev. Co. v. Whitener Limited Partnership, 280 Ga. App. 788, 790 (1) (635 SE2d 173) (2006). See Brown v. State, 307 Ga. App. 99, 104 (2) (c) (704 SE2d 227) (2010). Hence, Pizing’s has waived and abandoned this assertion of error for purposes of appeal. See Smyrna Dev. Co., 280 Ga. App. at 790 (1).


author: McFadden, Judge.

text:
    A11A2297.
    A11A2298.
    GOVERNMENT EMPLOYEES INSURANCE COMPANY v. KRALICK et al. MASON et al. v. GOVERNMENT EMPLOYEES INSURANCE COMPANY.
    (722 SE2d 107)
   McFadden, Judge.

These appeals arise from a declaratory judgment action brought by Government Employees Insurance Company (GEICO) against several defendants to determine accident coverage under automobile and umbrella insurance policies. In Case No. A11A2297, GEICO appeals, challenging the trial court’s grant of a motion in limine. And in Case No. A11A2298, several defendants appeal, challenging a directed verdict as to the umbrella policy. Because GEICO has failed to show that the trial court abused its discretion in excluding references to irrelevant evidence and the defendants have failed to show that there is a conflict in the evidence, we affirm the judgment of the trial court in both cases.

On August 27, 2005, Werner Kralick purchased a Yamaha 450 all-terrain vehicle (ATV). Approximately two weeks later, on September 10, 2005, Kralick’s daughter, Sarah Kralick, and her friend, Amy Stowers, were involved in an accident while riding the ATY At the time of the accident, Kralick had a homeowners insurance policy with Allstate Insurance Company, and an automobile insurance policy and an umbrella policy with GEICO.

Allstate filed a petition for declaratory judgment against GEICO, the Kralicks, Stowers and her parents, Brick and Pam Mason. GEICO filed a cross-claim for declaratory judgment. Both Allstate and GEICO moved for summary judgment on the grounds that their respective policies did not cover the accident. Allstate was dismissed from the action after the trial court granted its motion, and that summary judgment ruling was affirmed on appeal. Mason v. Allstate Ins. Co., 298 Ga. App. 308 (680 SE2d 168) (2009). But the trial court denied summary judgment to GEICO, and it was substituted as the only remaining plaintiff in the consolidated pre-trial order.

Prior to trial, the Masons and Stowers (collectively, “the Masons”) filed a motion in limine, seeking to prohibit any reference by GEICO to Kralick’s failure to add the ATV to the automobile insurance policy because the accident occurred during a 30-day automatic coverage period after the ATV had been purchased. The trial court granted the motion in limine, and the case proceeded to trial before a jury. At the close of the evidence, GEICO moved for a directed verdict as to the umbrella policy based on the policy’s exclusion of coverage for motorized vehicles designed principally for off-road use. The trial court granted the motion, directing a verdict in favor of GEICO as to the umbrella policy. As to the automobile insurance policy, the jury returned a verdict finding that the accident was covered under that policy, and the trial court ordered that the verdict be entered as the final judgment of the court.

Case No. A11A2297

1. GEICO claims that the trial court erred in granting the motion in limine to prohibit any references to Kralick’s failure to add the ATV to his automobile insurance policy. We disagree.

The purpose of a motion in limine is to prevent the asking of prejudicial questions and the making of prejudicial statements in the presence of the jury with respect to matters which have no proper bearing on the issues in the case. Dept. of Transp. v. Taylor, 264 Ga. 18, 21 (3) (c), n. 2 (440 SE2d 652) (1994). “We review-a trial court’s ruling on a motion in limine for abuse of discretion. A motion in limine is properly granted when there is no circumstance under which the evidence under scrutiny is likely to be admissible at trial.” (Citation and punctuation omitted.) Hankla v. Jackson, 305 Ga. App. 391, 392 (1) (699 SE2d 610) (2010).

In this case, the automobile insurance policy contained the following provision: “[W]e insure all private passenger, farm and utility autos owned or leased by you on the date of the acquisition, and you ask us to add it to the policy no more than 30 days later.” With regard to such “automatic insurance” clauses, this court has previously adopted the general rule that coverage of newly acquired vehicles “is effective automatically during the notice period irrespective of whether notice of acquisition is given.” Ga. Mut. Ins. Co. v. Criterion Ins. Co., 131 Ga. App. 339, 340 (1) (a) (206 SE2d 88) (1974).

The “automatic insurance” clause in standard automobile liability policies is intended to meet the necessity for maintaining coverage in the situation resulting from the recognized custom among insured owners of acquiring other [vehicles] by replacement and new purchases during the life of their policies. Where the “automatic insurance” clause requires notice of the acquisition of a new [vehicle] to be given the insurer within a specified time after delivery, a failure to give notice prior to an accident occurring after the expiration of the designated period precludes coverage of the new [vehicle]. However, where the accident takes place within the notice period but before any notice has been given, it is generally held that the requirement of notice is a condition subsequent rather than a condition precedent and that such coverage is automatically effected upon delivery of the new [vehicle] and remains in effect until the end of the specified period, irrespective of whether notice has been given.

(Citation and punctuation omitted; emphasis in original.) Id.

Here, it is undisputed that the accident occurred approximately two weeks after Kralick had acquired the ATV Consequently, the accident took place within the 30-day notice period set forth in the automatic insurance clause. And the trial court was correct in ruling that notice of the new acquisition was unnecessary to effectuate coverage of the vehicle since coverage was automatic during that time period. See Ga. Mut. Ins. Co., supra at 341 (1) (a). Because Kralick’s failure to add the ATY to the policy had no bearing on the issue of coverage, the trial court did not abuse its discretion in granting the motion in limine to prohibit references to such an irrelevant and potentially prejudicial matter. Compare generally Early County v. Fincher, 184 Ga. App. 47, 48 (1) (360 SE2d 602) (1987) (trial court erred in denying motion in limine to exclude irrelevant evidence of an insurance policy).

Case No. A11A2298

2. The Masons and Stowers contend that the trial court erred in directing a verdict in favor of GEICO as to the umbrella policy. The contention is without merit.

A directed verdict is authorized if there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demands a particular verdict. OCGA § 9-11-50 (a). “The appellate review of directed verdicts is based upon the ‘any evidence’ rule to support the case of the nonmoving party; when there is ‘any evidence,’ a directed verdict must be reversed.” (Citation and punctuation omitted.) Teklewold v. Taylor, 271 Ga. App. 664, 665 (610 SE2d 617) (2005).

In this case, the umbrella policy contains an amendment which excludes from coverage “[t]he maintenance or use of any motorized vehicle that is designed for use principally off public roads that is not registered for use on public roads.” The Masons and Stowers do not contend that the ATV was not such an off-road vehicle, but argue that a directed verdict based on this exclusion was improper because there is a conflict in the evidence as to whether this exclusion was delivered to Kralick. In support of this argument, they rely on Kralick’s testimony, in response to questions from his attorney, that he could not say if he had read the version of the umbrella policy in effect at the time because he did not even know if he had gotten it or not.

Even if, as the appellants suggest, Kralick’s claim that he did not know if he had gotten the policy can be construed as affirmative evidence that he had not in fact received it, that testimony is in direct conflict with Kralick’s previous testimony on cross-examination. During that testimony, Kralick was shown the umbrella policy and he acknowledged that it bore his correct address and was in effect at the time of the accident. The umbrella policy, including the exclusion in question, was then admitted into evidence without objection. Kralick testified that when he gets such a policy he also gets the bill for it, that he got the $441 bill for the umbrella policy in this case, and that he paid that bill. When asked if in exchange for that payment he expected to get the coverage as defined by the policy, he testified: “I expected to get what I had an understanding with GEICO, with the policy, yes.” Kralick was then asked if he had read the umbrella policy, and he testified: “I scanned through it, as I said.” When asked if he had read the exclusions, Kralick testified: “Again, we’re looking at page upon page, so I scanned it. If I said I understood all of it, I’d be lying.” He then testified once again that he had scanned the policy. When specifically asked if he had read the exclusion pertaining to off-road vehicles, he responded: “I probably missed it.” And when asked if that exclusion was part of the policy for which he had paid $441, he testified: “Again, it’s on the last page, yes.”

Decided January 9, 2012.

Cruser & Mitchell, Joseph R. Cruser, Raymond R. Grant II, for appellant.

Smith, Welch, Webb & White, John P. Webb, Andrew J. Gebhardt, Beck, Owen & Murray, Charles D. Jones, for appellees.

The rule in Georgia is that the testimony of a party who offers himself as a witness in his own behalf at trial is to be construed most strongly against him when it is self-contradictory, vague or equivocal. Where the favorable portion of a party’s self-contradictory testimony is the only evidence of his right to recover or of his defense, the opposing party is entitled to a directed verdict.

(Citations and punctuation omitted.) Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 28 (1) (343 SE2d 680) (1986). Here, Kralick’s testimony that he could not say if he had read the policy because he did not know if he had received it contradicted his earlier testimony, repeated several times, that he had actually scanned the policy. Construing the testimony most strongly against the equivocating party, it shows that Kralick received the umbrella policy with the $441 bill, he paid the bill for that policy, he looked over the policy and exclusions, but he may have failed to read the exclusion pertaining to off-road vehicles. Of course, an insured has an obligation to read and examine an insurance policy, and the failure to do so cannot be relied upon to create a conflict in the evidence. See MacIntyre &c. v. Rich, 267 Ga. App. 78, 79-82 (1) (599 SE2d 15) (2004). Because there is no conflict in the evidence as to the issue of the insured’s receipt of the policy, the trial court did not err in directing a verdict. See Quality Control Elec. v. Electronic Security Svcs. Co., 225 Ga. App. 671, 672 (1) (484 SE2d 696) (1997).

Judgments affirmed.

Phipps, P. J., and Andrews, J., concur.


author: PHIPPS, Presiding Judge.

text:
    A11A1646.
    VANRAN COMMUNICATIONS SERVICES, INC. v. VANDERFORD.
    (722 SE2d 110)
   PHIPPS, Presiding Judge.

We granted VanRan Communications Services, Inc.’s application for interlocutory review of the trial court’s order denying in part its motion for summary judgment. At issue is whether VanRan is entitled to judgment as a matter of law on its shareholder/former employee’s claims for (1) an annual bonus and (2) the removal and installation of certain directors and officers of VanRan. Because the trial court erred in denying VanRan’s motion for summary judgment on those claims, we reverse.

C. W Vanderford and Doranne Satterlee started a telephone equipment business called VanRan Communications Services, Inc. In 2003, C. W. Vanderford and Satterlee executed a buy-sell agreement providing, among other things, that “if either party dies or is mentally disabled, the remaining partner will control all decisions re: the corporation.” In 2006, C. W Vanderford died.

C. W Vanderford’s son, Charles M. Vanderford (hereafter “Vanderford”), was employed by VanRan from 1988 through 2008. In addition to a salary, in some years of his employment Vanderford received a bonus from VanRan. In 2009, VanRan’s board of directors voted to terminate Vanderford’s employment following reports that he had, inter alia, become disruptive and violent and had been involved in altercations with other employees. The board further decided to not pay Vanderford a bonus for 2008.

Vanderford sued VanRan and Satterlee, seeking a declaration that the buy-sell agreement entitled him to continued employment with VanRan and that he was entitled to receive a bonus for work performed in 2008. Vanderford later added a claim for breach of obligation of good faith based on the alleged violation of the buy-sell agreement and seeking to, among other things, have Satterlee and another person removed as directors and officers of VanRan and have himself appointed as a director and officer. At the time of the amendment, Satterlee was a director and CEO of VanRan, and was a 51 percent owner of the voting shares of VanRan. Vanderford was not a director or officer of VanRan at that time, but owned 24.5 percent of the voting shares of VanRan.

VanRan and Satterlee moved for summary judgment. The trial court granted summary judgment to VanRan and Satterlee on Vanderford’s claim for continued employment and the related claim of good faith, and to Satterlee on all claims asserted against her individually; the court denied summary judgment to VanRan on the claim for the bonus and for requested changes in VanRan’s leadership. We granted VanRan’s interlocutory appeal from the denial of its motion for summary judgment as to those two claims.

A trial court properly grants summary judgment when the moving party demonstrates there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. The moving party may discharge his burden by demonstrating the absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party is required to point to specific evidence giving rise to a triable issue.

When reviewing the grant or denial of a motion for summary judgment, this court conducts a de novo review of the law and the evidence.

1. The claim for the bonus. In his complaint, Vanderford claimed he was entitled to receive “not less than $175,000.00” from VanRan as a bonus for work he performed in 2008. He based this amount, implicitly, upon the amount VanRan allegedly paid another employee as a bonus for 2008. Vanderford has conceded that the buy-sell agreement contained no provision related to the payment of employee bonuses, and that there was no other written agreement or document entitling him to an annual bonus. VanRan was entitled to summary judgment on this claim.

Vanderford deposed that the bonuses he had previously received were not based on a specific formula or percentage of profits, that he was not guaranteed any particular amount, that the bonuses were “to be based on how well we did and what we did, ...” and that the amount of the bonuses was decided by Satterlee and his father.

A promise to pay future compensation is not enforceable unless it, among other things, is for an exact amount or based upon a formula or method for determining the exact amount of the bonus. The rationale behind this rule is that “the sum of money to be paid for performance of services under a contract should be definitely and objectively ascertainable from that contract.” Where an employee bonus is based even in part on the exercise of discretion, the promise to pay a bonus in the future amounts to a promise to change the terms of compensation in the future and, thus, is an unenforceable executory obligation. Thus, assuming arguendo that there was a contract to pay Vanderford an annual bonus, because the amount was not definitely and objectively ascertainable from the contract, it was not enforceable. Notably, the buy-sell agreement specifically provided that the surviving party (here, Satterlee) would control all decisions regarding the corporation.

Vanderford posits, however, that in this case the indefinite contract to pay a bonus became definite and enforceable through the subsequent words and conduct of the parties. He states that prior to 2003, he earned a salary and commissions at VanRan, but that when he changed positions at VanRan in 2003, he no longer earned commissions and experienced a decrease in pay. According to Vander-ford, Satterlee and his father orally agreed in 2003 to pay him bonuses or a “share of the profits” to maintain his pre-2003 compensation levels.

However, as noted above, Vanderford admitted on deposition that he was not guaranteed any particular amount and that the decision as to the amount of any bonus was made by Satterlee and his father. And an accountant/board member for VanRan deposed that Satterlee recommended to the board that Vanderford receive no bonus for 2008, and that the board voted on and approved the recommendation. When asked if the payment of bonuses for VanRan employees was within the board’s discretion, the accountant/board member responded “I never knew that it was any other way.” Because the payment of a bonus and the amount thereof were discretionary, any promise to pay a bonus was unenforceable. Thus, the trial court erred in denying VanRan’s motion for summary judgment on Vanderford’s claim for the bonus.

2. The OCGA § 14-2-941 claim. In his amended complaint, Vanderford sought, inter alia, the removal of certain directors and officers and his own appointment as a director and officer of VanRan, pursuant to OCGA § 14-2-941.

OCGA § 14-2-941 (a) pertinently provides that if the court finds that one or more of the grounds for relief described in OCGA § 14-2-940 (a) exist, it may order, among other things, the removal from office of any director or officer and/or the appointment of any individual as a director or officer. OCGA § 14-2-940 (a) (1) pertinently provides that a shareholder of a statutory close corporation may petition the superior court for any of the relief described in OCGA § 14-2-941 (a) if the directors or those in control of the corporation have acted, are acting, or will act in a manner that is illegal, oppressive, fraudulent, or unfairly prejudicial to the petitioner, whether in his capacity as shareholder, director or officer of the corporation.

Vanderford based his requests on an alleged discrepancy between VanRan’s income as reported on one of its internal financial documents for 2008 and its income as reported on VanRan’s federal income tax return for the same year. He claimed that VanRan either incorrectly reported revenue information in its internal records or falsely reported revenue to the Internal Revenue Service (“IRS”).

VanRan moved for summary judgment, asserting that there was no evidence that those in control of VanRan had acted, were acting or would act in a manner that was illegal, oppressive, fraudulent, or unfairly prejudicial to Vanderford as a shareholder. To support its motion, VanRan submitted the affidavit of a certified public accountant who was also a member of VanRan’s board of directors. The accountant averred that: he had provided accounting services to VanRan since 1986, including the preparation of its annual tax returns; he had reviewed VanRan’s internal financial reports for 2008 and prepared the tax return for that year; the difference between the gross revenue reported on VanRan’s 2008 internal financial reports and that reported on VanRan’s 2008 tax return resulted from the application of two different accounting methods (cash versus accrual methods), which methods he explained; comparing the two numbers “is essentially comparing apples to oranges”; many companies, like VanRan, utilize an accrual accounting method for internal reports and a cash accounting method for tax reporting purposes; under such circumstances, the two reports reflecting income “would almost never match”; and the internal financial reports were prepared by bookkeepers (not certified public accountants), were preliminary in nature, and were used solely as management tools.

In response, Vanderford submitted his own affidavit, stating that the accountant was not involved in the daily business of VanRan, that the accountant had no access to VanRan’s financial records prior to 2008, and that in 2008 the accountant approved a particular employee’s bonus based on a sales figure he “apparently knew” had been inflated. On appeal, Vanderford points also to the testimony of VanRan’s bookkeeper/receptionist, who acknowledged on deposition that VanRan’s meeting minutes (dated December 15, 2008) indicated that VanRan “anticipated gross revenues exceeding $10 [million] this year.” The bookkeeper acknowledged also that she “remember[ed] that the gross revenues for . . . 2008 were closet ] to $10 million or exceeded $10 million”; and that the tax return VanRan filed with the IRS showed gross receipts in the amount of approximately $8.3 million.

Decided January 10, 2012.

Michael J. Gorby, Mary D. Peters, Jeffrey D. Cooper, for appellant.

On appeal, Vanderford asserts that VanRan committed fraud by underreporting its income to the IRS, and that the bookkeeper’s testimony alone provides sufficient circumstantial evidence for a jury to consider his OCGA § 14-2-941 claim. However, Vanderford has not pointed to any evidence of fraud. There is evidence that the two figures are different, that two different accounting methods (both commonly used) were utilized, by different persons in different professions, and that such figures would “almost never” match. Thus, VanRan pointed out the absence of evidence on one or more essential elements of Vanderford’s case — that VanRan made a false representation, and did so with knowledge that it was false. Vanderford was required to point to specific evidence giving rise to a triable issue.

But Vanderford offered no evidence to rebut the accountant’s explanation, and otherwise failed to point to specific evidence showing that VanRan falsely reported income and did so with knowledge that the report was false. Bare conclusions and contentions unsupported by an evidentiary basis in fact are insufficient to oppose a motion for summary judgment. Inasmuch as Vanderford failed to carry his burden on summary judgment of coming forward with rebuttal evidence to demonstrate the existence of a genuine issue of fact on his claim of fraud, the trial court erred in denying VanRan’s motion for summary judgment on Vanderford’s OCGA § 14-2-941 claim.

Judgment reversed.

Andrews and McFadden, JJ., concur.

Mahaffey, Pickens & Tucker, Matthew P Benson, for appellee.

        Smith v. Saulsbury, 286 Ga. App. 322, 324 (1) (c) (649 SE2d 344) (2007) (footnotes omitted).

        Field v. Lowery, 300 Ga. App. 812, 813 (686 SE2d 422) (2009).

        Arby’s v. Cooper, 265 Ga. 240, 241 (454 SE2d 488) (1995).

        Edwards v. Central Ga. HHS, 253 Ga. App. 304, 307 (2) (558 SE2d 815) (2002).

        Arby’s, supra at 242.

        SeeSteinemann v. Vaughan & Co., 169 Ga. App. 573, 576-577 (1) (313 SE2d 701) (1983).

       See Arby’s, supra at 241.

       OCGA § 14-2-941 (a) (3), (4).

       See Gallagher v. McKinnon, 273 Ga. App. 727 (615 SE2d 746) (2005).

       “The tort of fraud has five elements: a false representation by a defendant, scienter, intention to induce the plaintiff to act or refrain from acting, justifiable reliance by plaintiff, and damage to plaintiff.” Serchion v. Capstone Partners, 298 Ga. App. 73, 76-77 (2) (679 SE2d 40) (2009) (citation, punctuation and footnote omitted).

       See generally id.

       Id. at 77 (2).

       See generally id.

        Griffin v. State Bank of Cochran, 312 Ga. App. 87, 91 (1) (a) (718 SE2d 35) (2011).

       See id. (to survive motion for summary judgment on her fraud claim, plaintiff was required to present some evidence of each element of the fraud tort; grant of summary judgment was proper if one essential element of fraud claim was eliminated).


author: Andrews, Judge.

text:
    A11A1699.
    LUCKEY v. THE STATE.
    (722 SE2d 114)
   Andrews, Judge.

Jimmie Luckey appeals after a jury found him guilty of DUI per se, DUI less safe, reckless driving, and speeding. Luckey claims that the trial court erred in denying his motion in limine to suppress the results of the Intoxilyzer breath test. After reviewing the record, we conclude there was no error and affirm.

1. When we review a trial court’s decision on a motion to suppress, the evidence is construed most favorably to uphold the findings and judgment of the trial court; the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous and will not be disturbed if there is any evidence to support them.

Fowler v. State, 294 Ga. App. 864, 865 (670 SE2d 448) (2008).

The evidence at the motion to suppress hearing and at trial, was that Luckey was stopped after he drove by an officer at 84 miles per hour in a 55 mile-per-hour zone. While the officer was in pursuit of Luckey, he observed Luckey driving erratically and changing lanes without using a turn signal. The officer said that Luckey had a flushed face, watery, bloodshot eyes, mumbled when he spoke, and had a strong odor of alcohol on his breath. The officer conducted field sobriety tests and determined that Luckey was under the influence of alcohol to the extent that he was a less safe driver and arrested him. After the officer read Luckey the implied consent rights, Luckey consented to an Intoxilyzer breath test, the results of which showed a blood-alcohol concentration of 0.157 grams.

After Luckey was taken to the Atlanta pre-trial facility, he said that he wanted an independent test. The officer asked Luckey where he wanted to go for the test, and Luckey did not respond, stating merely that he did not want the arresting officer to be the one to take him. The officer testified: “I explained to him [that] I would be more than happy to take him wherever he wanted to go, however, I was going to be the transporting officer.” Luckey never identified any facility for the blood test, and when told that the arresting officer was the only person available to take him, responded only that he “did not want [the arresting officer] to take him.” According to the testimony at trial, the recording of the encounter shows that the arresting officer did try to find someone else to take Luckey to get the blood test but could not find another officer able to do so.

The trial court held that the officer tried to reasonably accommodate Luckey but Luckey remained “steadfast in his position” that he would not go with the arresting officer. This appeal followed.

2. OCGA § 40-6-392 (a) (3) states:
The person tested may have a physician or a qualified technician, chemist, registered nurse, or other qualified person of his own choosing administer a chemical test or tests in addition to any administered at the direction of a law enforcement officer. The justifiable failure or inability to obtain an additional test shall not preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer[.]

In construing this Code section, this Court has recognized that

a suspect is entitled to a meaningful opportunity to choose the testing facility. If the suspect’s choice is unreasonable, however, a law enforcement officer is justified in refusing to accommodate the request. The trial court must determine whether, under the totality of the circumstances, the suspect’s request was reasonable. The factors the trial court may consider in resolving this issue include the following: (1) availability of or access to funds to pay for the requested test; (2) a protracted delay in the giving of the test if the officer complies with the accused’s requests; (3) availability of police time and other resources; (4) location of the requested facilities; and (5) opportunity and ability of (the) accused to make arrangements personally for the testing.

Smith v. State, 277 Ga. App. 81, 83 (625 SE2d 497) (2005).

In this case, Luckey argues that the officer was not justified in assuming that his refusal to go with the officer and his demand that someone else take him for the test, relieved the officer of the responsibility of accommodating his request for an independent blood test. But, the law is that

before the duty of the police arises to transport a defendant to the location of the independent test, and before there is a breach of that duty which may give reason to suppress the evidence of the state administered test, the defendant must first show that he had made arrangements with a qualified person of his own choosing, that the test would be made if he came to the hospital, that he so informed the personnel at the jail where he was under arrest, and that those holding him either refused or failed to take him to the hospital for that purpose.

Smith, supra at 83.

In McDaniel v. State, 218 Ga. App. 555 (462 SE2d 446) (1995), the defendant contended that the results of her state-administered test must be suppressed because the officer did not ask her where and by whom she wished the elective test performed. This Court held that “[e]ven if the evidence showed the officer did not ask such a question, it was not required. The officer advised McDaniel of her right to an independent test by a person of her own choosing, as OCGA § 40-6-392 (a) (3) required him to do.” Id.

Likewise, in Crawford v. City of Forest Park, 215 Ga. App. 234, 236 (450 SE2d 237) (1994), this Court held that although

the officer must not prevent a defendant from exercising his right to an independent test, it is not his duty to ensure the performance of such a test. ... In this case, [the officer] made reasonable efforts to accommodate defendant’s request for an independent test, but defendant changed his mind about having it. Accordingly, the test results were admissible, and the trial court did not err in denying defendant’s motion to suppress.

See also Morgan v. State, 212 Ga. App. 394, 396-397 (442 SE2d 257) (1994) (“It is the responsibility of the arrestee, not the officer, to designate the specifics of (any) independent testing and the officer must be apprised by the arrestee of those specifics before the officer has a duty to facilitate the arrestee’s election.”) (punctuation omitted).

Here, contrary to Luckey’s assertion, the officer never refused to accommodate Luckey’s request for an independent test. The evidence is undisputed that the officer was willing to take Luckey for an independent blood test at the place of Luckey’s choosing. Therefore, under the totality of the circumstances, we conclude that the trial court did not err in finding that the officer’s failure to assist Luckey in obtaining a breath test was justified. Thus, the trial court did not err in denying Luckey’s motion to suppress on this basis. See Fowler, supra at 867.

Decided January 11, 2012.

Cynthia S. Griffin, for appellant.

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

3. Luckey also argues that, for purposes of sentencing, the offense of speeding merged into that of reckless driving. He contends that the speeding offense is included in the reckless driving offense as a matter of fact because the jury found him not guilty on the lane change violations; therefore, the only evidence to support the reckless driving charge was the speeding violation. The State concedes that the two offenses should have been merged for sentencing, and we agree. Accordingly, Luckey’s sentence for speeding is vacated, and this case is remanded to the trial court for re-sentencing.

Judgment affirmed, sentence vacated, and case remanded.

Phipps, P. J., and McFadden, J., concur.

       This Court considers both the transcript of the hearing and the trial transcript when reviewing a motion to suppress. Pittman v. State, 286 Ga. App. 415, 416 (650 SE2d 302) (2007).

       A crime is “included in” the other where “(i)t is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of (the other crime).” Drinkard v. Walker, 281 Ga. 211, 213 (636 SE2d 530) (2006).


author: Ellington, Judge.

text:
    A11A2062.
    STOKES v. COWETA COUNTY BOARD OF EDUCATION.
    (722 SE2d 118)
   Ellington, Judge.

In this workers’ compensation action, an administrative law judge (“ALJ”) for the State Board of Workers’ Compensation granted Vanessa Stokes’ claim for benefits after finding that she sustained an injury arising out of and in the course of her employment. The Board’s Appellate Division reversed the ALJ’s decision and denied benefits. Stokes then appealed to the Superior Court of Coweta County, which affirmed the decision of the Board. Pursuant to a granted application for discretionary appeal, Stokes appeals, seeking reinstatement of the ALJ’s award. For the following reasons, we reverse and remand.

Pursuant to OCGA § 34-9-103 (a),
[a]ny party dissatisfied with a decision of an [ALJ] of the trial division of the State Board of Workers’ Compensation may appeal that decision to the appellate division of the State Board of Workers’ Compensation which shall have original appellate jurisdiction in all workers’ compensation cases.

The Appellate Division is authorized “to weigh the evidence [of record] and assess the credibility of witnesses[.]” (Citation and footnote omitted.) Syntec Indus, v. Godfrey, 269 Ga. 170, 171 (1) (496 SE2d 905) (1998). If, after assessing the evidence of record, the Appellate Division determines that the findings of the AU were supported by a preponderance of the competent and credible evidence, the Appellate Division must accept the factual findings of the ALJ. Id. “But, if after assessing the evidence of record, the appellate division concludes that the award does not meet the statute’s evidentiary standards, the appellate division may substitute its own alternative findings for those of the ALJ, and enter an award accordingly.” (Punctuation and footnote omitted.) Id.

After a workers’ compensation decision becomes final at the administrative level, the parties have a right of direct appeal to the superior court, pursuant to OCGA § 34-9-105 (b). Ga. Mountain Excavation v. Dobbins, 309 Ga. App. 155, 156 (710 SE2d 205) (2011). As a reviewing court, the superior court applies an any-evidence standard of review to the Board’s findings of fact, construing the evidence in the light most favorable to the party prevailing before the Board, and lacks authority to substitute itself as a factfinding body in lieu of the Board. Home Depot v. McCreary, 306 Ga. App. 805, 808-809 (2) (703 SE2d 392) (2010); Lowndes County Bd. of Commrs. v. Connell, 305 Ga. App. 844, 844-845 (701 SE2d 227) (2010); Harris v. Peach County Bd. of Commrs., 296 Ga. App. 225 (674 SE2d 36) (2009). “[EJrroneous applications of law to undisputed facts, as well as decisions based on erroneous theories of law, [however,] are subject to the de novo standard of review” in the superior court. (Citation and punctuation omitted.) Home Depot v. McCreary, 306 Ga. App. at 808-809 (2). See also Amedisys Home Health v. Howard, 269 Ga. App. 656, 657 (605 SE2d 60) (2004) (Determinations of whether an injury or death are compensable under the Workers’ Compensation Act are “mixed questions of law and fact.”) (citation and punctuation omitted). “Where it affirmatively appears that the [Board’s decision] is based upon an erroneous legal theory, and that for this reason the [B]oard has not considered all of the evidence in the light of correct and applicable legal principles, the case should be remanded to the [B]oard for further findings.” (Citation omitted.) Murph v. Maynard Fixturecraft, 252 Ga. App. 483, 486 (2) (555 SE2d 845) (2001).

An appeal to this Court from a decision of a superior court reviewing a decision of the Board is not a matter of right but rather is discretionary. OCGA § 5-6-35 (a) (1). Appeals to this Court are governed by the same standards of review as appeals to the superior court under OCGA § 34-9-105. Home Depot v. McCreary, 306 Ga. App. at 808-809 (2); Goswick v. Murray County Bd. of Ed., 281 Ga. App. 442 (636 SE2d 133) (2006); see also Harris v. Peach County Bd. of Commrs., 296 Ga. App. at 225-226 (“The question of whether the trial court applied the correct legal standard in evaluating the evidence ... is one of law, which we review de novo.”) (citation and punctuation omitted).

Viewed in the light most favorable to the employer as the prevailing party, the record shows the following. Stokes was employed as head custodian at an elementary school, and one of her duties was to unlock and open the gates leading to the school parking lot before other employees arrived each morning. On May 3, 2010, Stokes drove up to the front gate at 5:45 a.m.; it was very dark and raining heavily. According to Stokes, she pulled her car as close to the gate as she could so that her headlights would shine on the lock. While she was unlocking the gate, her car began to roll downhill, away from the gate. Stokes ran toward the car in an attempt to stop it. She testified that trying to stop her car was not a decision but, “when [she] saw [her] car moving, [she] just went on instinct” and that she did not want to damage school property or her car. After taking just a few steps, Stokes tripped and fell. The car rolled over her left foot. The car stopped in a wooded area on school property. A few days after the accident, her foot had to be amputated.

To be compensable under the Workers’ Compensation Act, an employee’s accidental injury must arise both “out of” and “in the course of” his or her employment. OCGA § 34-9-1 (4).

The words “arising out of’ mean that there must be some causal connection between the conditions under which the employee worked and the injury which she received. The causative danger must be incidental to the character of the employment, and not independent of the relation of master and servant. The accident must be one resulting from a risk reasonably incident to the employment.

(Citation and punctuation omitted.) Harris v. Peach County Bd. of Commrs., 296 Ga. App. at 227. See also Ray Bell Constr. Co. v. King, 281 Ga. 853, 855 (642 SE2d 841) (2007) (accord); Employers Ins. Co. v. Wright, 108 Ga. App. 380, 382 (133 SE2d 39) (1963) (An on-the-job injury is compensable “if after the event it is apparent to the rational mind that there is a causal connection between the conditions under which the employment was performed and the resulting injury.”) (citations omitted); Pike v. Maryland Cas. Co., 107 Ga. App. 49, 51 (129 SE2d 78) (1962) (An injury may arise out of the employment, even if the employee is injured while doing something that is beyond the scope of tbe employee’s specific duties, where the employee has some discretionary authority and the employer has not instructed the employee that the act is forbidden.).

The words “in the course of the employment” relate to the time, place, and circumstances under which the accident takes place, and an accident arises in the course of the employment when it occurs within the period of employment at a place where the employee may reasonably be in the performance of [her] duties and while [she] is fulfilling those duties or engaged in something incidental thereto.

(Citations and punctuation omitted.) Ray Bell Constr. Co. v. King, 281 Ga. at 854-855. “An injury to an employee occurring during working hours and on the employer’s premises ordinarily and presumptively will be considered as arising out of and in the course of employment[.]” (Citations omitted.) Miles v. Brown Transport Corp., 163 Ga. App. 563, 564 (294 SE2d 734) (1982).

Under the deviation rule, “[w]here [an] employee breaks the continuity of [her] employment for purposes of [her] own and is injured before [she] brings [herself] back into the line of employment, [her] injury does not arise out of or in the course of [her] employment^]” (Citation omitted.) Gen. Accident &c. Corp. v. Prescott, 80 Ga. App. 421, 423 (1) (56 SE2d 137) (1949). Our courts have found such a deviation from employment when an employee leaves the employer’s premises to go home or to a restaurant for a meal, runs a personal errand such as going to a shop, or, while traveling on business, goes on an excursion solely for personal entertainment. An injury that occurs during a time when the employee is off duty and is free to do as he or she pleases and when the employee is not performing any job duties is not compensable under the Workers’ Compensation Act. ATC Healthcare Svc. v. Adams, 263 Ga. App. 792, 793-795 (589 SE2d 346) (2003); Blair v. Ga. Baptist &c., Inc., 189 Ga. App. 579, 582 (2) (377 SE2d 21) (1988); Aetna Cas. cfee. Co. v. Honea, 71 Ga. App. 569, 572 (1) (31 SE2d 421) (1944).

In reversing the ALJ’s award of benefits in this case, the Board concluded that the accident did not arise out of Stokes’ employment. The Board found that Stokes’ job duties included opening the gate, unlocking the building, emptying trash cans, sweeping, and so on, but did not include “going after a moving vehicle.” When Stokes turned away from the gate, after putting her key in the gate’s lock, and pursued her car, the Board found, she “undertook a personal mission, in pursuit of [her] personal property, not connected to her duties with the [ejmployer.” In addition, the Board found that Stokes did not pursue the car in an attempt to prevent injury to herself or another employee or damage to the employer’s property.

Under the circumstances presented, we conclude that the Board’s decision was based upon an erroneous theory regarding what conduct constitutes a deviation from employment that will bar compensation under the Act. It is undisputed that, at the instant Stokes’ car began to roll, she was on duty (not on break); she was physically located precisely where her job duties required her to be at that time, that is, at the driveway gate; and, she was unlocking the gate, a task required by her job duties and of benefit to the employer. Indeed, but for the necessity that she stop her car on the sloped driveway and exit the car to open the gate, the accident would not have occurred. This is not a case where an employee consciously decided to take advantage of a break in her work day, when she was free to do as she pleased, to run a personal errand. Rather, Stokes responded instinctively and instantaneously to an unexpected and dangerous situation that arose directly out of the performance of her job duties. Although it appears that, as luck would have it, no one would have been hurt, and no school property would have been damaged, if Stokes had had the presence of mind to simply stand and let the car roll away, it contravenes the humanitarian purpose of the Workers’ Compensation Act and distorts the definition of a deviation from employment to say that her attempt to stop the rolling car was a purely personal mission. Because it affirmatively appears that the Board’s decision was based upon an erroneous legal theory, the judgment of the superior court affirming the decision of the Board is reversed with direction that the case be remanded to the Board for action in accordance with what is stated in this opinion. Murph v. Maynard Fixturecraft, 252 Ga. App. at 486 (2); Ocean Accident &c. Corp. v. Bates, 104 Ga. App. 621, 621-622 (122 SE2d 305) (1961).

Decided January 11, 2012

Dennis, Corry, Porter & Smith, Harold W. Whiteman, Jr., for i appellant.

David W. Willis, for appellee.

Judgment reversed and case remanded with direction.

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

       See also Lowndes County Bd. of Commrs. v. Connell, 305 Ga. App. 844 (701 SE2d 227) (2010) (“As a factfinder, the State Board is authorized to assess witness credibility, weigh conflicting evidence, and draw different factual conclusions from those reached by the . . . AU . . . who initially heard the dispute.”) (citation and punctuation omitted).

       See OCGA § 34-9-105 (c):
      The findings made by the members within their powers shall, in the absence of fraud, be conclusive; but upon such hearing the court shall set aside the decision if it is found that:
      (1) The members acted without or in excess of their powers;
      (2) The decision was procured by fraud;
      (3) The facts found by the members do not support the decision;
      (4) There is not sufficient competent evidence in the record to warrant the members making the decision; or
      (5) The decision is contrary to law.

       See also Mayor &c. of Savannah v. Stevens, 278 Ga. 166 (1) (598 SE2d 456) (2004) (A workplace injury is not compensable unless it satisfies both of these independent and distinct criteria.); OCGA § 34-9-23 (The Workers’ Compensation Act “shall be liberally construed only for the purpose of bringing employers and employees within the provisions of this chapter and to provide protection for both. . . . The provisions of [the Act] shall be construed and applied impartially to both employers and employees.”).

       See generally, John Bourdeau, Ga. Jurisprudence of Workers’ Compensation, § 7:5 (updated June 2011) (Generally, the positional risk doctrine provides that an injury is compensable so long as the employee’s work required him or her to be in the particular location when peril struck.); James B. Hiers, Jr. et al., Ga. Workers’ Compensation Law & Practice, § 5-3 (5th ed.) (Georgia cases largely merge three analytical approaches to the “arising out of” the course of the employment requirement: the increased-risk, the actual-risk, and the positional-risk doctrines).

       See also Olde South Custom Landscaping v. Mathis, 229 Ga. App. 316, 318 (494 SE2d 14) (1997) (“[W]hen an employee steps aside from his employer’s business to do some act of his own, not connected with his employer’s business, the relationship of employer and employee, or master and servant, is, as to that act, completely suspended, and an accident occurring at that time, resulting in injury to the employee, does not arise out of the employment within the meaning of the [Workers’] Compensation Act.”) (citation and punctuation omitted); see, e.g., American Mut. &c. Ins. Co. v. Lemming, 187 Ga. 378, 380-381 (200 SE 141) (1938) (An employee deviated from his employment as a repairman for a mill, when he helped build a turkey pen in woods adjacent to the company’s property, at the request of the company’s president, who raised turkeys as a hobby.); see generally John Bourdeau, Ga. Jurisprudence of Workers’ Compensation, § 7:10 (updated June 2011) (deviation from employment); James B. Hiers, Jr. et al., Ga. Workers’ Compensation Law & Practice, § 5-8 (5th ed.) (deviation from employment).

       See, e.g., ATC Healthcare Svc. v. Adams, 263 Ga. App. 792, 793-795 (589 SE2d 346) (2003) (An employee’s injury from falling at a restaurant did not arise out of her employment because it occurred during a scheduled lunch break when the employee was free to use her time in any manner she wished and while the employer exercised no control over her activities.); Ladson Motor Co. v. Croft, 212 Ga. 275, 277-278 (92 SE2d 103) (1956) (A watchman deviated from his employment when he left his employer’s premises and walked to a fruit stand to drink coffee.); Ansa Mufflers Corp. v. Law, 192 Ga. App. 45 (383 SE2d 574) (1989) (An operations manager deviated from his employment when he was driving home for lunch in his personal car. The employee testified that he was not on an errand for his employer at the time and that he would take up his employment duties again after lunch.).

       See, e.g., Iso-Graphics, Inc. v. Evans, 205 Ga. App. 880, 881-882 (424 SE2d 24) (1992) (An employee deviated from her employment when she drove to an auto repair shop to pick up a fellow employee, who was the son of the company president and who had left his personal car there for repairs.); Aetna Cas. &c. Co. v. Honea, 71 Ga. App. 569, 572 (1) (31 SE2d 421) (1944) (Where an employee was free to go where and do what she pleased during her lunch hour, she deviated from her employment when, at the beginning of her lunch hour, she departed her work station on her way to a hairdresser.).

       See, e.g., U. S. Fidelity &c. Co. v. Skinner, 188 Ga. 823, 829-830 (5'SE2d 9) (1939) (A traveling salesman deviated from his employment when, while traveling to Savannah to meet with his supervisor at the company’s main office, the salesman and a fellow employee were spending free time before the meeting to drive to Tybee Island to eat a seafood dinner and to see the ocean.).

       Cf. Edwards v. Liberty Mut. Ins. Co., 130 Ga. App. 23, 24 (2) (202 SE2d 208) (1973) (An unscheduled break to use the restroom out of necessity is not time that is released to an employee “as free time during which he may do as he will[,]” and, therefore, “it cannot be construed as an altogether personal pursuit” that does not arise out of and in the course of his employment.).

       See Globe Indem. Co. v. Legien, 47 Ga. App. 539, 540 (2) (171 SE 185) (1933) (An employee does not deviate from “his employment if, when confronted with a sudden emergency, he steps beyond his regularly designated duties in an attempt to save himself from injury, to rescue another employee from danger, or to save his employer’s property.”) (citation and punctuation omitted); see generally John Bourdeau, Ga. Jurisprudence of Workers’ Compensation, § 7:13 (updated June 2011) (emergencies).

        Ray Bell Constr. Co. v. King, 281 Ga. at 854 (“The Workers’ Compensation Act in Georgia is intended to have broad application so as to cover a wide variety of injuries and the pain and suffering incident to such injuries. It is a humanitarian measure which should be liberally construed to effectuate its purpose.”) (citations and punctuation omitted).

        Amedisys Home Health v. Howard, 269 Ga. App. at 657-658 (A 24-hour on-call field nurse did not deviate from her employment when, after completing her patient visits and while still on-call, she picked up a pizza for her family’s dinner and went home, with the intention of completing time-sensitive paperwork for her employer there.); Graves v. Builders Steel Supply, 186 Ga. App. 736, 737 (368 SE2d 188) (1988) (An employee did not deviate from his employment when he attempted to repair a drill press which had been used by a fellow employee but which the claimant was not authorized to use. The repair would have benefitted the employer, and “the gap between [the] claimant’s regular work and the repair of the drill press [was] narrow enough to conclude that the attempted repair was an incident of [the] claimant’s regular work.”) (citations omitted); Hartford Accident &c. Co. v. Souther, 110 Ga. App. 84, 85 (3) (137 SE2d 705) (1964) (A tow truck operator did not .deviate from his employment when, after delivering a disabled vehicle to its appointed place and while en route back to the garage, he stopped at the place where he had picked up the car to see whether a ring he had lost during the service call was lying there.); cf. Montgomery v. Maryland Cas. Co., 169 Ga. 746, 747 (6) (151 SE 363) (1930) (Because a watchman had his dog at work for companionship and not at his employer’s instruction or in furtherance of his job duties, the watchman’s death as a result of trying to rescue the dog after it fell in the river did not arise out of and in the scope of his employment.).