text:
    A11A0600.
    EASON et al. v. MARINE TERMINALS CORPORATION et al.
    (710 SE2d 867)
   McFadden, Judge.

Robert Eason, Reginald Brown, Dahral Green and Arthur Sheffield appeal the dismissal of their lawsuit against Marine Terminals Corporation (“MTC”), Concentra Medical International, Ceres Marine Terminals, Inc., Georgia Stevedore Association and H. Curtis Jenkins III. The plaintiffs’ claims are for invasion of privacy and defamation. The claims arise out of defendants’ administration of drug and alcohol screening policies, which are set out in collective bargaining agreements. The trial court granted the defendants’ motion to dismiss the complaint, finding that the plaintiffs had not exhausted the remedies in their collective bargaining agreements and that the complaint was deficient. Because some but not all of the plaintiffs’ claims require the interpretation of collective bargaining agreements, and thus are preempted by Section 301 of the Labor Management Relations Act of 1947, 29 USC § 185 and because the complaint was sufficient under the notice pleading standard, we affirm in part and reverse in part.

A court may dismiss a complaint

only where [the] complaint shows with certainty that the plaintiff would not be entitled to relief under any state of facts that could be proven in support of his claim. We review the dismissal de novo, construing the complaint’s allegations and all possible inferences therefrom in favor of the plaintiff.

(Citations and punctuation omitted.) Northeast Ga. Cancer Care v. Blue Cross &c. of Ga., 297 Ga. App. 28, 29 (676 SE2d 428) (2009). The plaintiffs allege that Eason and Sheffield are employees of MTC, and Brown and Green are employees of Ceres. The parties are governed by collective bargaining agreements entered between the International Longshoreman’s Association and the South Atlantic Employers’ Negotiating Committee, of which MTC and Ceres are members. The union and the employers’ negotiating committee negotiated a random drug and alcohol testing policy to include in the collective bargaining agreements. The random drug and alcohol testing policy provides that testing shall be in accordance with the procedures set forth in the “policy on drugs” provision of the collective bargaining agreements. It also provides that all rules, enforcement provisions and penalties governing the collective bargaining agreements’ “policy on drugs” shall apply to personnel tested pursuant to the random drug and alcohol testing policy. MTC and Ceres hired Concentra to perform the random drug and alcohol tests.

The plaintiffs were tested under this policy in February and March 2005. Eason’s, Brown’s and Green’s test results came back false positive. According to the plaintiffs’ complaint, “Ceres and MTC posted the drug test results.”

The plaintiffs contend that the defendants violated their rights to privacy by testing them in the open, in the presence of other employees, thereby subjecting their private medical information to public scrutiny. They contend that their rights to privacy were further violated when the defendants posted their drug test results in public.

In addition, Eason, Brown and Green contend that the posting of false positive test results amounted to defamation because it created the impression that they had engaged in criminal behavior. And Eason contends that defendant Jenkins slandered him by telling others about the drug test results.

The plaintiffs attached to their complaint a copy of the random drug and alcohol testing policy which provided that, “[disputes arising from the administration of this program shall be subject to the grievance procedure.”

The defendants moved to dismiss the complaint on the ground that the plaintiffs were required to exhaust the remedies in the collective bargaining agreements before filing suit. The plaintiffs countered that their claims are based exclusively on state law, not the parties’ collective bargaining agreements. The trial court determined that the plaintiffs’ claims concern the application and interpretation of the random drug testing provision in the collective bargaining agreements. Concluding that the claims are “inextricably intertwined with interpretation of the drug testing policy,” the court found them to be subject to the grievance procedures and mandatory arbitration provisions of the collective bargaining agreements. The trial court also found that the plaintiffs’ complaint was “woefully deficient.” The court therefore granted the motion to dismiss. The plaintiffs then filed this appeal.

1. If the trial court correctly determined that the plaintiffs’ claims are inextricably intertwined with the random drug testing policy of the collective bargaining agreements, thereby requiring interpretation of the agreements, it follows that the claims are preempted by federal labor law, and the trial court properly dismissed the complaint. “[A]n application of state law is preempted by § 301 of the Labor Management Relations Act of 1947 ... if such application requires the interpretation of a collective-bargaining agreement.” Lingle v. Norge Div. of Magic Chef, 486 U. S. 399, 413 (108 SC 1877, 100 LE2d 410) (1988). See also Dugger v. Miller Brewing Co., 199 Ga. App. 850, 852 (1) (406 SE2d 484) (1991) (physical precedent only) (The test for determining whether or not a state cause of action is preempted under § 301 is whether the plaintiffs claim “is sufficiently independent of the [cjollective Mar-gaining [ajgreement.”).

The issue, then, is whether the plaintiffs’ complaint alleging torts based on Georgia law requires interpretation of the collective bargaining agreements. We note that the case upon which the plaintiffs primarily rely, Wright v. Universal Maritime Svc. Corp., 525 U. S. 70 (119 SC 391, 142 LE2d 361) (1998), did not involve the issue of preemption of a state law claim but instead involved whether an arbitration provision in a collective bargaining agreement barred a longshoreman’s suit under the Americans with Disabilities Act, a federal statutory law.

In determining whether the plaintiffs’ state tort law claims require interpretation of the terms of the collective bargaining agreements, we first look to the elements of the state law claims. Lightning v. Roadway Express, 60 F3d 1551, 1557 (11th Cir. 1995).

(a) The plaintiffs first allege the tort of invasion of privacy. That tort protects

the right to be free from unwarranted publicity as well as from the publicizing of one’s private affairs with which the public has no legitimate concern. There are at least three elements necessary to recovery for an invasion of one’s right of privacy: (a) the disclosure of private facts must be a public disclosure; (b) the facts disclosed to the public must be private, secluded or secret facts and not public ones; (c) the matter made public must be offensive and objectionable to a reasonable man of ordinary sensibilities under the circumstances.

(Citations and punctuation omitted.) Dortch v. Atlanta Journal &c., 261 Ga. 350, 352 (2) (405 SE2d 43) (1991). Pertinent to determining whether a plaintiff may recover for invasion of privacy is the consideration of whether the allegedly tortious behavior is reasonable under the circumstances. See Anderson v. Mergenhagen, 283 Ga. App. 546, 551 (2) (642 SE2d 105) (2007). In this regard, when the disclosure is intracorporate or between members of unincorporated groups or associations, and is heard by one who, because of his duty or authority has reason to receive the communication, there is no public disclosure and thus no invasion of privacy. Wilson v. Home Depot USA, 288 Ga. App. 582, 587 (2) (654 SE2d 408) (2007). See also Galardi v. Steele-Inman, 266 Ga. App. 515, 519 (2) (597 SE2d 571) (2004).

The plaintiffs contend that the defendants violated their rights to privacy by testing them in the open, in the presence of other employees, thereby subjecting their private medical information to public scrutiny and by posting their drug test results in public. Determining whether this conduct was reasonable under the circumstances — circumstances that include the existence of drug testing provisions in the collective bargaining agreements — requires interpretation of the collective bargaining agreements themselves. The parties’ agreements as to the manner in which the defendants would administer the random drug testing policy are necessarily relevant to any allegation that the policy was administered in a tortious manner. See Allis-Chalmers Corp. v. Lueck, 471 U. S. 202, 218-219 (105 SC 1904, 85 LE2d 206) (1985). “[DJeciding whether a party acted reasonably and in good faith in carrying out a right or obligation under the collective bargaining agreement requires a reference to the contract and an interpretation of its provisions, thereby invoking § 301 preemption.” Clark v. Newport News Shipbuilding &c. Co., 937 F2d 934, 937 (4th Cir. 1991). See also Jackson v. Liquid Carbonic Corp., 863 F2d 111, 121 (1st Cir. 1988) (employee’s state law invasion of privacy claims were preempted by § 301 where “[t]he central thesis of his suit question [ed] whether [the employer]’s drug-testing protocol was reasonable” in light of the union’s grant of authority to the employer to conduct medical examinations and to post reasonable rules), cert. denied, 490 U. S. 1107 (109 SC 3158, 104 LE2d 1021) (1989).

(b) The four elements of the tort of defamation are: “(1) a false and defamatory statement concerning the plaintiff; (2) an unprivileged communication to a third party; (3) fault by the defendant amounting at least to negligence; and (4) special harm or the actionability of the statement irrespective of special harm.” (Punctuation omitted.) Bollea v. World Championship Wrestling, 271 Ga. App. 555, 557 (1) (610 SE2d 92) (2005). Communications made in good faith in the performance of a legal duty, however, are privileged. OCGA § 51-5-7 (2).

The plaintiffs contend that the defendants’ posting of Eason’s, Brown’s and Green’s false positive test results amounted to a defamation because it created the impression that they had engaged in criminal behavior and exposed them to public hatred, contempt and ridicule. When determining whether a state defamation claim is preempted under § 301, “courts look beyond the allegations of the complaint to determine whether the wrong complained of actually arises in some manner from the breach of the defendants’ obligations under a collective bargaining agreement.” (Punctuation omitted.) Garley v. Sandia Corp., 236 F3d 1200, 1211 (10th Cir. 2001). “[I]t is difficult to understand how the plaintiffis] could establish that the challenged publications were unprivileged . . . without interpreting the [collective bargaining agreement] provisions that identified the duties imposed on all defendants.” DeCoe v. Gen. Motors Corp., 32 F3d 212, 217 (6th Cir. 1994). Determining whether the plaintiffs were defamed by the defendants’ actions requires the examination of the defendants’ rights and obligations under the collective bargaining agreements to decide whether their actions were privileged or authorized. Id. “[Section] 301, however, preempts state causes of action from permitting this sort of inquiry.” Garley, supra. The defamation claim is therefore preempted. Compare Luecke v. Schnucks Markets, 85 F3d 356, 361 (8th Cir. 1996) (state law defamation action based on publication of allegedly false statement that plaintiff had refused to take a drug test not preempted because, inter alia, collective bargaining agreement in effect at the time action arose “made no mention whatever of a drug testing policy or of procedures for enforcement, nor did it impose any requirement of confidentiality’ ’).

(c) Under OCGA § 51-5-4 (a), slander, or oral defamation, consists of

(1) Imputing to another a crime punishable by law; (2) Charging a person with having some contagious disorder or with being guilty of some debasing act which may exclude him from society; (3) Making charges against another in reference to his trade, office, or profession, calculated to injure him therein; or (4) Uttering any disparaging words productive of special damage which flows naturally therefrom.

Eason contends that defendant Jenkins is liable individually and as a union business agent for slandering him by telling others about his false positive drug test result, causing others to speculate whether Eason was engaged in illegal drug use. To the extent Eason asserts claims against Jenkins in his capacity as a union business agent, it is necessary to interpret the collective bargaining agreements to determine whether Jenkins’s statements were privileged as the good faith performance of a legal duty. OCGA § 51-5-7 (2); see also Lewis v. Meredith Corp., 293 Ga. App. 747, 749 (1) (667 SE2d 716) (2008) (“[Statements made during private, intra-corporate investigations conducted in good faith performance of a private duty are privileged and are not ‘published’ for purposes of a defamation claim.”).

Decided May 25, 2011.

Buckley & Klein, Edward D. Buckley III, for appellants.

Ashman, Lasky & Cooper, Jeffrey W. Lasky, Ellis, Painter, Ratterree & Adams, Maury Bowen, Bouhan, Williams & Levy, Walter C. Hartridge, Hall, Booth, Smith & Slover, James E. Looper, Jr., Steven E Bristol, for appellees.

To the extent Eason contends that Jenkins made statements in his individual capacity to individuals outside the scope of the collective bargaining agreements, then those statements would have been made outside the scope of Jenkins’s employment, and they would not be privileged as the good faith performance of a legal duty. Consequently, no interpretation of the collective bargaining agreements is required, and Eason may proceed on this claim. See Meier v. Hamilton Standard Electronic Systems, 748 FSupp. 296, 299 (E.D. Pa. 1990) (plaintiffs contentions that defamatory statements were made to individuals who were outside the scope of the employer’s collective bargaining agreement and thus who would not have had a legitimate interest in them were not “inextricably intertwined” or “substantially dependent” on an interpretation of the collective bargaining agreement).

2. To the extent that the trial court dismissed Eason’s slander claim against Jenkins individually on the ground that it was “woefully deficient,” we reverse. The complaint included all that was required, namely “a short and plain statement of the claim that [gave] the defendants] fair notice of what the claim [was] and a general indication of the type of litigation involved; the discovery process bears the burden of filling in details.” Dillingham v. Doctors Clinic, P.A., 236 Ga. 302, 303 (223 SE2d 625) (1976).

For these reasons, we reverse the grant of the motion to dismiss Eason’s slander claim against Jenkins individually. We affirm the grant of the motion to dismiss the remainder of the plaintiffs’ claims.

Judgment affirmed in part and reversed in part.

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


source: Caselaw Access Project

author: McFADDEN, Judge.

license: Public Domain

text:
    A11A0626.
    COX v. HARDRICK.
    (710 SE2d 873)
   McFADDEN, Judge.

Barbara Cox sued Carolyn Hardrick for personal injuries allegedly arising out of an automobile collision. Hardrick moved for summary judgment on the ground that the lawsuit is barred by the doctrine of judicial estoppel since it was not listed as an asset in Cox’s previous bankruptcy proceeding. The trial court granted summary judgment to Hardrick, and Cox appeals. Because there exist genuine issues of material fact as to whether the claim is judicially estopped, we reverse.

Under the doctrine of judicial estoppel, a party is precluded from asserting a position in a judicial proceeding which is inconsistent with a position previously successfully asserted by it in a prior proceeding. Therefore, the doctrine is commonly applied to preclude a bankruptcy debtor from pursuing a damages claim that the debtor failed to include in his or her assets in the bankruptcy petition because a failure to reveal assets, including unliquidated claims, operates as a denial that such assets exist, deprives the bankruptcy court of the full information it needs to evaluate and rule upon a bankruptcy petition, and deprives creditors of resources that may satisfy unpaid obligations.

(Citation and punctuation omitted.) Sevostiyanova v. Tempest Recovery Svcs., 307 Ga. App. 868, 870 (1) (705 SE2d 878) (2011). However, we have also held that a debtor who initially fails to list a claim as an asset

can avoid the application of judicial estoppel simply by filing a motion to amend the debtor’s bankruptcy petition or a motion to reopen the debtor’s bankruptcy case to declare the omitted claim or cause of action. Indeed amending the bankruptcy petition to include the claim, even after the bankruptcy case was closed, precludes judicial estoppel from barring the claim.

(Citations and punctuation omitted.) CSX Transp. v. Howell, 296 Ga. App. 583, 586 (1) (675 SE2d 306) (2009).

Decided May 25, 2011.

Nkosi J. Bey, for appellant.

In response to Hardrick’s motion for summary judgment, Cox averred that she had moved to reopen the bankruptcy case and had amended her bankruptcy petition to include the instant claim as a potential asset. As an exhibit to the response, she provided a copy of a bankruptcy amendment which does list her personal injury claim as an asset. At the summary judgment hearing, her attorney stated in his place that the bankruptcy petition had been amended and that the bankruptcy court had reopened the case.

The trial court, however, ruled that Cox’s documentary evidence was inadequate because it did not bear the “imprint from the clerk’s office at the bankruptcy court.” Indeed, documents purporting to be from a bankruptcy court are inadmissible if they are uncertified. In the Interest of A. D. L., 253 Ga. App. 64, 65 (1) (557 SE2d 489) (2001); OCGA § 24-7-24 (a). Compare Venable v. Venable, 153 Ga. 689 (112 SE 891) (1922) (documents from bankruptcy proceeding certified by clerk of court admissible). But by the same token, the purported bankruptcy documents relied upon by Hardrick to support her motion for summary judgment are also uncertified. As Hardrick concedes in her appellate brief, the documents relied upon by both sides “came straight from the Federal Bankruptcy Court’s online filing system.”

“In determining whether the trial court properly granted summary judgment we review the record de novo, construing the evidence and all inferences from the evidence strongly in favor of the nonmoving party. [Cit.]” (Punctuation omitted.) Clark v. Perino, 235 Ga. App. 444 (509 SE2d 707) (1998). Further, our review of a “summary judgment ruling requires a determination of whether the parties submitted competent evidence to support their claims.” (Citations omitted.) JR Real Estate Dev. v. Cheeley Investment, 309 Ga. App. 250, 256 (1) (c), n. 2 (709 SE2d 577) (2011). Because both sides relied on uncertified bankruptcy court documents, the trial court’s summary judgment ruling is not supported by competent evidence. However, even if the evidence presented by both parties is deemed to be competent, that evidence cannot sustain summary judgment in favor of Hardrick. See Clark, supra at 446 (1) (evidence of amended bankruptcy filings sufficient to preclude summary judgment on issue of judicial estoppel). See also Jowers v. Arthur, 245 Ga. App. 68, 71 (537 SE2d 200) (2000) (trial court erred in applying judicial estoppel to grant summary judgment).

Judgment reversed.

Phipps, F J., and Andrews, J., concur.

Jeffrey P. Raasch, for appellee.


author: BARNES, Presiding Judge.

text:
    A11A0366.
    SEYMOUR ELECTRICAL AND AIR CONDITIONING SERVICE, INC. v. STATOM et al.
    (710 SE2d 874)
   BARNES, Presiding Judge.

Willie Ed and Betty Statom brought this negligence action against Seymour Electrical and Air Conditioning Service, Inc., alleging that they were injured by carbon monoxide poisoning from a gas furnace that was improperly installed and repaired. Seymour moved for summary judgment and argued, among other things, that there was no competent evidence that the Statoms’ alleged injuries were caused by exposure to carbon monoxide. The trial court denied the motion, but granted a certificate of immediate review. We granted Seymour’s application for interlocutory appeal and now reverse.

On appeal from the trial court’s denial of a motion for summary judgment, we apply a de novo standard of review and construe the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmoving party. Cowart v. Widener, 287 Ga. 622, 624 (1) (a) (697 SE2d 779) (2010). Construed in this manner, the evidence showed that Seymour is a Georgia corporation that installs and repairs residential heating, air conditioning, and electrical systems. In May 2007, Seymour installed a new gas furnace in the Statom house. The furnace was fueled by propane gas.

In the summer of 2008, the Statoms’ propane gas supplier detected a gas leak and determined that it was coming from the furnace. In July 2008, Seymour returned to the house to fix the propane gas leak in response to the Statoms’ complaints. As part of its repairs, Seymour replaced the furnace gas valve. However, Seymour failed to convert the replacement valve nozzle from its factory setting for natural gas to the setting for propane gas. The failure to properly convert the nozzle led to incomplete combustion inside the furnace, the product of which was soot and carbon monoxide. Normally, carbon monoxide is vented outside a house through the flue pipe that extends through the roof, but if a crack develops in the metal housing of the furnace, carbon monoxide can escape into the house.

After the initial installation of the furnace in May 2007, but before the faulty replacement of the valve nozzle in July 2008, the Statoms began experiencing a variety of medical symptoms, including headaches, nausea, burning throats, burning eyes, stomach pain, fatigue, and memory loss. As a result of her symptoms, Mrs. Statom was hospitalized for three days and missed at least a month of work.

The Statoms moved out of their house for approximately six months while efforts were made to identify and correct any problems that might be causing their symptoms. Several consultants inspected the house for potential environmental hazards. During the course of these inspections, mold was discovered in the house, and some of the consultants believed that it was the cause of the Statoms’ symptoms. Consequently, the Statoms hired a construction firm that performed mold cleaning operations, replaced the carpet, demolished and replaced two bathrooms, and replaced the kitchen cabinets. The construction firm finished the cleaning and remodeling work in October 2008.

In November 2008, a service technician with a different heating and air conditioning company discovered that the replacement valve nozzle on the furnace, which had been installed in July 2008, had not been properly converted from natural gas to propane gas. The technician corrected the problem and noted in his service order invoice that the “[flurnace was not correctly converted to propane gas, which caused carbon monoxide [and] soot to enter [the] house.”

In December 2008, the Statoms moved back into their house. Over the ensuing months, their medical symptoms substantially subsided. The Statoms then commenced this negligence action against Seymour, contending that their medical symptoms had been the result of carbon monoxide poisoning and seeking damages for physical and emotional injury. Seymour moved for summary judgment, arguing, among other things, that there was no competent evidence of causation. Concluding that genuine issues of material fact existed, the trial court denied the motion.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiffs case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiffs claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial.

(Emphasis omitted.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

The essential elements of a negligence claim are the existence of a legal duty; breach of that duty; a causal connection between the defendant’s conduct and the plaintiffs injury; and damages. Wilson v. Mallard Creek Holdings, 238 Ga. App. 746, 747 (519 SE2d 925) (1999). “Questions of negligence generally are for the jury, and may be resolved on summary judgment only where the evidence is plain, palpable and undisputable.” (Punctuation and footnote omitted.) Allstate Ins. Co. v. Sutton, 290 Ga. App. 154, 158 (3) (658 SE2d 909) (2008). Nevertheless, “[n]o matter how negligent a party may be, if his act stands in no causal relation to the injury[,] it is not actionable.” (Citation and punctuation omitted.) Hudson v. Swain, 282 Ga. App. 718, 721 (639 SE2d 319) (2006). And for a plaintiffs negligence claim to survive summary judgment, the evidence of causation must be based on more than mere guesses or speculation. Id. at 722, n. 2.

Here, the evidence, construed favorably to the Statoms, demonstrates that Seymour was negligent in its installation of the furnace and in its subsequent replacement of the valve nozzle. The issue is whether there is any competent evidence that Seymour’s negligence caused the Statoms’ medical symptoms, which they claim were the result of carbon monoxide leaking from the furnace. Notably, although the Statoms sought medical attention for their symptoms, they have failed to come forward with any evidence that a physician ever tested them for carbon monoxide poisoning or diagnosed them as having that condition. Nor have the Statoms cited to any expert medical testimony submitted to the trial court establishing a causal link between their medical symptoms and their alleged exposure to carbon monoxide. Rather, the Statoms simply argue that a jury could infer that the carbon monoxide from the furnace caused their medical symptoms without any need for expert medical evidence because the dangers associated with its inhalation are well known.

We conclude that summary judgment should have been granted to Seymour because no genuine issue of material fact exists with respect to causation. While expert testimony is unnecessary to establish causation in many negligence cases, some cases raise causal issues that can be resolved by a jury only with the assistance of experts with specialized medical knowledge. Cowart, 287 Ga. at 627 (2) (b). And resolution of the causal issues in the present case clearly requires such knowledge:

The diagnosis and potential continuance of a disease or other medical condition are medical questions to be established by physicians as expert witnesses and not by lay persons. Thus, we have required expert medical testimony, based at least on reasonable probability, to establish a causal link between exposure to a substance and a medical condition.

(Punctuation and footnotes omitted; emphasis supplied.) Sutton, 290 Ga. App. at 160 (3) (b) (plaintiffs were required to present expert medical testimony to establish causal link between their respiratory conditions and exposure to mold in their house). See Cowart, 287 Ga. at 628 (2) (b) (citing Sutton with approval and noting that “the link between a defendant’s actions and the plaintiffs injury is beyond common knowledge and experience” in “toxic tort” cases); Magnan v. Miami Aircraft Support, 217 Ga. App. 855, 857 (2) (459 SE2d 592) (1995) (plaintiff required to present expert medical testimony establishing causal link between his eye problems and exposure to a pesticide).

Indeed, we affirmed summary judgment to a defendant in a case in which the plaintiffs contended that they were injured by carbon monoxide poisoning from an improperly installed gas water heater, where the plaintiffs similarly failed to present any medical evidence establishing a causal link between their injuries and their alleged exposure to carbon monoxide. See Wilson, 238 Ga. App. at 747-748. Compare Atkins v. MRP Park Lake, 301 Ga. App. 275, 276 (687 SE2d 215) (2009) (blood gas test revealed that plaintiff had excessive amount of carbon monoxide in her blood, and emergency room physician and subsequent treating physician diagnosed plaintiff with carbon monoxide poisoning); Harper v. Barge Air Conditioning, 300 Ga. App. 901, 903 (686 SE2d 668) (2009) (physical precedent only) (plaintiffs blood tested positive for high levels of carbon monoxide, and plaintiff was diagnosed with and hospitalized for carbon monoxide poisoning). Likewise, we have held that while it may be common knowledge that certain fumes are generally dangerous to breathe, a plaintiff still must present expert medical evidence establishing that the fumes caused that particular plaintiff’s medical problems. See Shiver v. Ga. & Fla. Railnet, 287 Ga. App. 828, 830 (2) (652 SE2d 819) (2007) (discussing claim brought under Federal Employer’s Liability Act, but noting that such claims require a plaintiff to “prove the traditional common law elements of negligence,” including causation) (punctuation and footnote omitted). This is especially true if there is some evidence of exposure to toxic substances or chemicals other than the one alleged by the plaintiff as the source of his or her injuries, as in the present case where there was some evidence of exposure to mold.

Decided May 26, 2011.

Michael L. Wetzel, for appellant.

Hurt, Stolz & Cromwell, James W. Hurt, Jr., Bell & Mulholland, Lloyd N. Bell, for appellees.

In light of this precedent, and given the absence of any expert medical evidence establishing a causal link between the Statoms’ symptoms and their alleged exposure to carbon monoxide, we conclude that the trial court erred in denying Seymour’s motion for summary judgment. We therefore reverse the judgment and remand with the instruction that the trial court enter summary judgment in favor of Seymour.

Judgment reversed and case remanded.

Adams and Blackwell, JJ., concur.

       In a later deposition, the technician claimed that the service order invoice was incorrect and that he did not detect any carbon monoxide in the house despite using a carbon monoxide detector. The parties dispute whether the service order invoice constituted sufficient competent evidence that carbon monoxide leaked from the furnace into the Statom house. We need not resolve this dispute in light of our conclusion, discussed infra, that the Statoms failed to present sufficient competent evidence showing that their alleged exposure to carbon monoxide caused their medical symptoms.


author: Dillard, Judge.

text:
    A11A0437.
    ROBERTS v. THE STATE.
    (710 SE2d 878)
   Dillard, Judge.

Following a jury trial, Paul Alan Roberts was convicted of one count of burglary. Roberts appeals his conviction and the denial of his motion for new trial, challenging the sufficiency of the evidence and arguing that the trial court erred in defining the term “entry” in response to the jury’s request and in finding that he failed to show that he received ineffective assistance of counsel. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the jury’s guilty verdict, the evidence shows that in the early morning hours of November 7, 2005, a Henry County police officer received a dispatch, indicating that a security alarm had been set off at a local tool-supply business. Upon arriving at the scene, the officer observed that one of the store’s back doors was open and that the bottom half of the door had been shattered by a sewer manhole cover that was lying on the ground a few feet away. The officer also noticed that there was a blood stain on part of the door frame and, therefore, called an evidence technician to collect samples of the blood for DNA analysis. Once inside the store, the officer saw that its office had been ransacked and that numerous tools appeared to be missing from the displays. Shortly thereafter, the store’s manager arrived on the scene and confirmed that eight nail guns, two circular saws, two mitre saws, and an air compressor had been stolen.

Over a year later, the police learned through CODIS that the DNA profile generated from the blood stain on the tool store’s door matched the DNA profile of Paul Roberts, who was at that time incarcerated in the Henry County jail on other charges. Consequently, Roberts was indicted for burglary.

During Roberts’s trial, the officer who responded to the initial dispatch testified regarding his investigation of the burglary, and the manager of the tool-supply business testified as to the types of tools that were stolen. Additionally, the State’s prosecutor proffered the lab report indicating that Roberts’s DNA profile matched the DNA profile of the blood sample collected at the scene of the burglary. The State’s prosecutor also introduced similar-transaction evidence, showing that Roberts had previously been convicted of burglarizing two other hardware stores. At the trial’s conclusion, the jury found Roberts guilty of burglary. Subsequently, Roberts filed a motion for new trial, which the trial court denied after a hearing. This appeal follows.

1. Roberts contends that the evidence was insufficient to support his conviction of burglary. We disagree.

When a criminal conviction is appealed, the evidence must be viewed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence. We do not weigh the evidence or determine witness credibility “but only determine whether a rational trier of fact could have found the defendant [ ] guilty of the charged offenses beyond a reasonable doubt.” Accordingly, the jury’s verdict will be upheld “[a]s long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case[.]”

A person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within a building or any room or part thereof. In this matter, Roberts’s blood was found at the scene of a business that had one of its back doors smashed open and numerous items stolen. Nevertheless, Roberts argues that this circumstantial evidence was insufficient to support his conviction. In doing so, Roberts correctly notes that “[t]o warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” However, it is well established that

[qjuestions of reasonableness are generally for the fact-finder and where the circumstantial evidence is sufficient to exclude every reasonable hypothesis save that of the guilt of the accused, the appellate court will not disturb the fact-finder’s guilty verdict unless it is unsupportable as a matter of law.

And here, there was no evidence to explain how Roberts’s blood could have been left at the scene at a time other than when the crime was committed. Furthermore, the State introduced evidence showing that Roberts previously committed two strikingly similar burglaries. Based on this evidence, the jury could appropriately infer that Roberts committed the burglary of the tool-supply store.

2. Roberts contends that the trial court erred in defining the term “entry” in response to the jury’s request. Specifically, he argues that in defining “entry” the court confused the jury as to the elements of burglary. We disagree.

Shortly after the jury began its deliberations, it sent a note to the trial court asking for a definition of the term “entry.” After conferring with counsel, the court responded to the jury as follows: “This is the first definition of enter in Black’s Law Dictionary, [Njinth Edition: ‘To come or go into.’ Now, in that same edition, entry is ‘the act of entering real property.’ So that is the definition.” And while his trial counsel did not object to the trial court’s response, Roberts nevertheless contends that the court’s definition was harmful as a matter of law because it implied that his entry onto the property of the tool-supply store, rather than entry into the building, was sufficient to support a burglary conviction. Roberts’s claim lacks merit. In fact, “[i]t is the court’s duty to instruct on any point the jury requests and to do it in plain, clear language”; and that is exactly what the trial court did in the case sub judice.

But even if we were to assume arguendo that the trial court’s definition of “entry” constituted error, “an erroneous charge does not warrant a reversal unless it was harmful and, in determining harm, the entirety of the [court’s] jury instructions must be considered.” And here, in reviewing the entirety of the jury instructions, it is clear that no harm occurred because the trial court charged the jury on the burglary statute and its requirement of proof that a defendant entered “the building or dwelling place of another.” Accordingly, the trial court’s definition of “entry” did not, in the context of the charge as a whole, prejudice Roberts and therefore does not constitute reversible error.

3. Finally, Roberts contends that the trial court erred in finding that he failed to demonstrate that his trial counsel provided ineffective assistance. We disagree.

To prevail on his claim of ineffective assistance of counsel, Roberts “must show that counsel’s performance was deficient and that the deficient performance so prejudiced [him] that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different.” There is a strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct, and a criminal defendant must overcome this presumption. And unless clearly erroneous, we will uphold a trial court’s factual determinations with respect to claims of ineffective assistance of counsel. A trial court’s legal conclusions in this regard, however, are reviewed de novo. With these principles in mind, we will now address Roberts’s claim.

Decided May 26, 2011.

Brown & Gill, Angela B. Dillon, for appellant.

Tommy K. Floyd, District Attorney, Atha H. Pryor, Thomas L. Williams, Assistant District Attorneys, for appellee.

Roberts argues that his trial counsel performed deficiently by failing to object to the trial court’s reading of the definition of “entry” to the jury. However, given our holding in Division 2, any objection to the trial court’s defining “entry” for the jury would have lacked merit. And “[t]he failure to pursue a futile objection does not amount to ineffective assistance.” Furthermore, as we also noted in Division 2, even if the trial court’s definition of “entry” constituted error, it was harmless in light of the entirety of the court’s jury instructions. Accordingly, Roberts has not shown that he was prejudiced by the charge, and he cannot prevail on his ineffective-assistance claim.

Judgment affirmed.

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

        See, e.g., Goolsby v. State, 299 Ga. App. 330, 330-31 (682 SE2d 671) (2009); see also Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

       CODIS, the Combined DNA Indexing System, is a database of DNA profiles linked among the states through the Federal Bureau of Investigation.

       OCGA § 16-7-1 (a).

        See, e.g., English v. State, 301 Ga. App. 842, 842 (689 SE2d 130) (2010).

        Lott v. State, 303 Ga. App. 775, 775 (1) (694 SE2d 698) (2010) (citing Jackson, 443 U. S. at 319 (III) (B)).

        Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001) (citation and punctuation omitted).

       OCGA § 16-7-1 (a).

       OCGA § 24-4-6.

        Lighten v. State, 259 Ga. App. 280, 282 (1) (576 SE2d 658) (2003) (punctuation and footnote omitted).

        See Adams v. State, 284 Ga. App. 534, 535-36 (1) (644 SE2d 426) (2007) (holding that defendant’s blood on the window ledge of the building that was broken into was sufficient to support burglary conviction) (physical precedent only as to Division 3); Marion v. State, 276 Ga. App. 553, 554 (623 SE2d 739) (2005) (holding that defendant’s fingerprints at the scene of the crime, which were otherwise unexplained, and evidence of defendant’s prior commission of similar crimes were sufficient to support burglary conviction); Massey v. State, 247 Ga. App. 827, 828 (1) (545 SE2d 66) (2001) (holding that defendant’s fingerprints at the scene of the crime were sufficient to support burglary conviction despite the fact that stolen items were never recovered).

       Under OCGA § 5-5-24 (c), “the appellate courts shall consider and review erroneous charges where there has been a substantial error in the charge which was harmful as a matter of law, regardless of whether objection was made hereunder or not.”

        Green v. State, 240 Ga. App. 377, 380 (6) (523 SE2d 581) (1999) (footnote omitted) (holding that providing jury with dictionary definition of term “tacitly” was not error).

        Foote v. State, 265 Ga. 58, 59-60 (2) (455 SE2d 579) (1995) (citations omitted).

        See Mubarak v. State, 305 Ga. App. 419, 421 (2) (699 SE2d 788) (2010) (holding that providing jury with dictionary definition of “maliciously” was not error).

        Chapman v. State, 273 Ga. 348, 349-50 (2) (541 SE2d 634) (2001); see also Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SC 2052, 80 LE2d 674) (1984).

        Chapman, 273 Ga. at 350 (2).

        Id. ; Henderson v. State, 303 Ga. App. 898, 898 (1) (695 SE2d 334) (2010).

        Henderson, 303 Ga. App. at 898 (1).

        See Butler v. State, 277 Ga. App. 57, 61 (2) (625 SE2d 458) (2005) (holding that trial court’s jury charge was not error, and thus, any objection by defendant’s trial counsel would have been futile).

        Ventura v. State, 284 Ga. 215, 218 (4) (663 SE2d 149) (2008) (citation omitted).

        See Rabie v. State, 286 Ga. App. 684, 687 (2) (649 SE2d 868) (2007).


text:
    A11A0466.
    UNIFUND CCR PARTNERS v. MEHRLANDER.
    (710 SE2d 882)
   Dillard, Judge.

Unifund CCR Partners, assignee of Direct Merchants Bank, N.A. (“Unifund”), appeals the trial court’s award of attorney fees and litigation expenses to Betty Mehrlander pursuant to OCGA § 9-15-14. Unifund contends that the trial court erred by granting the award (1) prior to expiration of the 30-day period in which Unifund was entitled to respond to Mehrlander’s motion, (2) without conducting a hearing, and (3) in an order devoid of the required findings of fact and conclusions of law. For the reasons set forth infra, we vacate the tried court’s order and remand the case sub judice with direction.

Unifund brought a garnishment action against Mehrlander after obtaining a default judgment against her. Mehrlander then moved to set aside the default judgment and filed a counterclaim against Unifund for malicious garnishment. Thereafter, Unifund consented to setting aside the default judgment and dismissed its garnishment action. Mehrlander, however, continued to pursue her counterclaim against Unifund and, within 45 days of the trial court’s denial of same, filed a motion seeking attorney fees and litigation expenses under OCGA § 9-15-14 (a) and (b). The trial court granted Mehr-lander’s motion for attorney fees and litigation expenses without holding a hearing, before allowing Unifund a full 30 days to respond to Mehrlander’s motion, and without setting forth findings of fact and substantiated conclusions of law in its order. In response, Unifund filed a discretionary application for appeal with this Court, and shortly thereafter, the trial court entered an order attempting to vacate its earlier grant of attorney fees and litigation expenses. At that point, however, the trial court no longer had jurisdiction over this case, and leave to appeal was ultimately granted by this Court.

We review a trial court’s ruling on a motion for attorney fees and litigation expenses under OCGA § 9-15-14 (a) using the “any evidence” standard, and one based on OCGA § 9-15-14 (b) for an “abuse of discretion.” But here, we are unable to conduct any kind of meaningful appellate review as a result of the trial court (1) failing to hold a hearing on Mehrlander’s motion for attorney fees and litigation expenses, (2) ruling on the motion prior to the expiration of the 30-day period in which Unifund was entitled to file a responsive brief (without otherwise providing Unifund with an opportunity to be heard on the matter — e.g., a hearing), and (3) failing to include in its order an explanation for the statutory bases upon which the award of attorney fees and litigation expenses was granted, as well as express findings of fact and conclusions of law in support of same.

Accordingly, the trial court’s award of attorney fees and litigation expenses is vacated and the case is remanded to the trial court with direction that an evidentiary hearing be conducted upon proper notice in order to determine the amount, if any, of reasonable and necessary attorney fees and/or litigation expenses. On remand, the trial court is also directed to (1) reconsider the award of attorney fees and litigation expenses, (2) provide, if necessary, an explanation of the statutory basis or bases for any award given under OCGA § 9-15-14 (a) and/or (b), as well as any findings of facts and conclusions of law necessary to support such an award, and (3) enter a new judgment from which the losing party may appeal.

Decided May 26, 2011.

James T. Freaney, for appellant.

Dubberly & McGovern, B. Daniel Dubberly III, for appellee.

Unifund’s remaining enumeration of error is that the trial court’s award of attorney fees and litigation expenses was not warranted. In light of our holdings supra, “these contentions are not [yet] ripe for our review.”

Judgment vacated and case remanded with direction.

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

       Reasonable attorney fees and litigation expenses “shall” be awarded when there “existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim” and “may” be awarded when the trial court “finds that an attorney or party brought or defended an action . . . that lacked substantial justification.” OCGA § 9-15-14 (a), (b). An action lacks “substantial justification” when it is “substantially frivolous, substantially groundless, or substantially vexatious.” OCGA § 9-15-14 (b).

       Mehrlander did not file an appellee’s brief. As such, we accept Unifund’s statement of facts as true because it is uncontroverted, and Mehrlander’s failure to point out material inaccuracies or incompleteness in the appellant’s brief “constitute[s] consent to a decision based on [Unifund’s] statement of facts.” Ct. App. R. 25 (b) (1).

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

       Mehrlander’s motion asserted that Unifund’s claim completely lacked “any justiciable issue of law or fact” such that “it could not reasonably be believed that a court could accept the claim” and that Unifund’s claim “lacked substantial justification.” See OCGA § 9-15-14 (a), (b).

       Unifund’s timely response to Mehrlander’s motion was filed after the trial court had already entered its order.

        See OCGA § 5-6-35 (h) (“The filing of an application for appeal shall act as a supersedeas to the extent that a notice of appeal acts as supersedeas.”).

        E.g., Rescigno v. Vesali, 306 Ga. App. 610, 615-16 (4) (703 SE2d 65) (2010); Wallace v. Noble Village at Buckhead Senior Housing, 292 Ga. App. 307, 310 (664 SE2d 292) (2008); C.A. Gaslowitz & Assocs. v. ZML Promenade, 230 Ga. App. 405, 406 (496 SE2d 470) (1998).

        See Cotting v. Coding, 261 Ga. App. 370, 372 (2) (582 SE2d 527) (2003) (holding that when appellate court was “in the dark” regarding trial court’s basis for ruling on attorney fees, the attorney-fees award could not be properly reviewed and the case was remanded for clarification of the court’s award).

        C.A. Gaslowitz & Assocs., 230 Ga. App. at 406 (holding that “a party opposing a claim for attorney fees has a basic right to confront and challenge testimony as to the value and need for legal services” (citation and punctuation omitted)); see also Evers v. Evers, 277 Ga. 132, 132 (1) (587 SE2d 22) (2003) (“A hearing is required in order to enter an award of attorney fees.” (citation omitted)); Sawyer v. Sawyer, 253 Ga. App. 619, 619 (4) (560 SE2d 86) (2002) (although award of attorney fees was not an abuse of discretion, trial court erred in failing to hold a hearing regarding same). Compare Tavakolian v. Agio Corp., 304 Ga. App. 660, 664 (3) (697 SE2d 233) (2010) (holding that party, by conduct, waived the right to an evidentiary hearing on the issue of attorney fees).

        See Unif. Sup. Ct. R. 6.2 (providing that “[u]nless otherwise ordered by the judge, each party opposing a motion shall serve and file a response, reply memorandum, affidavits, or other responsive material not later than 30 days after service of the motion”); see also Butler v. Bolton Road Partners, 222 Ga. App. 791, 792 (1) (476 SE2d 265) (1996) (holding that trial court’s issuance of an order prior to the 30-day time period outlined in Rule 6.2 does not constitute reversible error when the party opposing the motion was still given an opportunity to respond to the merits of same); Hosley v. Davidson, 211 Ga. App. 529, 530-31 (1) (439 SE2d 742) (1993) (holding that when a trial court does not issue an order extending or limiting the 30-day period to respond, the guidelines of Rule 6.2 control).

        See Evers, 277 Ga. at 132 (2) (“In order to award attorney fees, a trial court must make findings of fact and conclusions of law which are sufficient to support the award.” (citation omitted)); DeRossett Enters. v. Gen. Electric Capital Corp., 275 Ga. App. 728, 731-32 (4) (621 SE2d 755) (2005) (holding that trial court committed reversible error by failing to make findings of fact identifying the conduct giving rise to award); see also Note Purchase Co. of Ga. v. Brenda Lee Strickland Realty, 288 Ga. App. 594, 595 (1) (654 SE2d 393) (2007) (“When a trial court exercises its discretion to award . . . attorney fees and costs, ... it is incumbent upon the court to specify the conduct upon which the award is made.” (citation and punctuation omitted)).

        See Green v. McCart, 273 Ga. 862, 863 (1) (548 SE2d 303) (2001); Sawyer, 253 Ga. App. at 620 (4).

        See DeRossett Enters., 275 Ga. App. at 732 (4); Meacham v. Franklin-Heard County Water Auth., 302 Ga. App. 69, 77 (4) (690 SE2d 186) (2009) (vacating and remanding because “the trial court failed to . . . identify the statutory basis under either subsection (a) or (b) [of OCGA § 9-15-14], and to include the requisite findings of conduct that authorize the award”); Note Purchase Co. of Ga., 288 Ga. App. at 596 (1) (“[T]his case must be remanded to the trial court for a hearing on attorney fees followed by the entry of judgment containing findings of fact and conclusions of law as to the statutory basis for the award, if any, and the conduct for which it is authorized.” (footnote omitted)).

        Moore v. Moore, 307 Ga. App. 889, 890 (3) (706 SE2d 465) (2011) (citation and punctuation omitted).


author: MCFADDEN, Judge.

text:
    A11A0801.
    WILLIAMS v. THE STATE.
    (710 SE2d 884)
   MCFADDEN, Judge.

In Williams v. State, 301 Ga. App. 731 (688 SE2d 650) (2009), we affirmed Adam J. Williams’s convictions of two counts of felony obstruction of a law enforcement officer, but remanded the case to the trial court for resolution of Williams’s claim of ineffective assistance of trial counsel. Upon remand, the trial court conducted a hearing and rejected the claim. Williams now appeals.

Having failed to demonstrate that trial counsel’s performance was both defective and prejudicial to his defense, Williams has failed to demonstrate ineffective assistance of counsel. We therefore affirm.

As detailed in our earlier decision, the incident occurred when Williams was incarcerated in the Lowndes County jail.

When being fed the evening meal, Williams took two food trays claiming that he had not received his sandwich at the time lunch was served. Officer R. T. Holmes told Williams that prison rules limited him to a single meal because taking a second tray would deny another inmate a meal. Officer Holmes ordered Williams to put one tray back and twice attempted to take one of the food trays back from him, and after numerous failed attempts to gain Williams’[s] compliance, Officer Holmes asked Williams to step aside, intending to contact his supervisor on the issue. Williams again refused to cooperate and instead began eating from one of the food trays he held. When Williams reached for food on the second tray, Officer Holmes knocked the food trays to the floor. Williams responded, hitting Holmes in the chin. As Williams attempted to hit him a second time, Officer Holmes caught Williams by the collar and a hand-to-hand struggle ensued.
Officer Miguel Rivera was the first officer to respond. Finding Williams on top of Holmes and choking him, Rivera struck Williams and he and Rivera began to fight. Eventually, other officers arrived at the scene and were forced to use a taser gun to subdue Williams. The fracas left Officer Holmes with an abrasion under one eye and visible marks to his throat from being choked. Officer Rivera suffered a “busted lip,” a black eye and two cuts to his head.

Williams, supra at 732.

When reviewing a trial court’s ruling on the effectiveness of trial counsel, “we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” Suggs v. State, 272 Ga. 85, 88 (4) (526 SE2d 347) (2000).

The two-prong test for determining the validity of a claim of ineffective assistance of counsel provided in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), asks whether counsel’s performance was deficient and, if so, whether this deficiency prejudiced the defense; that is, whether there is a reasonable probability that the outcome of the proceedings would have been different, but for counsel’s deficiency.

(Citation, punctuation and footnotes omitted.) Bruce v. State, 252 Ga. App. 494, 498 (2) (555 SE2d 819) (2001).

Although the Supreme Court in Strickland discussed the performance component prior to the prejudice component, it acknowledged that a court addressing the ineffective assistance issue is not required to approach the inquiry in that order or even to address both components if the defendant has made an insufficient showing on one.

Mahoney v. State, 296 Ga. App. 570, 571 (2) (675 SE2d 285) (2009).

1. Williams argues that trial counsel should have introduced evidence of the federal standards on reasonable force and the local jail’s policy on reasonable force. However, we previously held that under applicable Georgia law, the evidence did not show unreasonable force was used against Williams under the circumstances. Williams, supra at 733 (1). We observed that a correctional officer is within the lawful discharge of his or her duties when enforcing jail rules and that “such officer may use that force reasonably necessary to effect compliance with the same or to make an arrest, if appropriate, and an inmate has no right to resist the exercise of such reasonable force.” Id. Given our holding that under the facts of the case and binding Georgia law there was no showing of unreasonable force, Williams has not shown that the failure to introduce evidence of reasonable force policies prejudiced his defense. Id.

2. Williams argues that trial counsel was ineffective for failing to request certain jury charges and for failing to object to the felony obstruction jury charge. “Decisions about which jury charges to request are strategic and provide no grounds for reversal unless such tactical decisions are so patently unreasonable that no competent attorney would have chosen them.” (Citations and punctuation omitted.) Hickson v. State, 308 Ga. App. 50, 55 (5) (706 SE2d 670) (2011).

Williams asserts that trial counsel should have requested a charge to the effect that the jury must determine whether the officers used reasonable force in light of departmental policy. Similarly, Williams contends that trial counsel should have requested a charge to the effect that the jury should consider the severity of Williams’s behavior when determining whether the officers’ behavior was reasonable. Given our holding that the officers did not use unreasonable force under the circumstances, Williams has not shown with any reasonable probability that failure to request such charges affected the outcome of the trial. Bruce, supra.

Williams argues that trial counsel should have requested a charge to the effect that the jury should consider whether the officers were motivated by malice or ill will toward Williams, or were attempting to provoke him. Similarly, he contends that trial counsel should have requested a charge under OCGA § 16-3-21 (b) (1) and (3). Those subsections provide:

[a] person is not justified in using force ... if he (1) [initially provokes the use of force against himself with the intent to use such force as an excuse to inflict bodily harm upon the assailant;... or (3) [w]as the aggressor or was engaged in a combat by agreement unless he withdraws from the encounter and effectively communicates to such other person his intent to do so and the other, notwithstanding, continues or threatens to continue the use of unlawful force.

But Williams has pointed to no evidence introduced at trial of malice, ill will or provocation or that the officers were the aggressors. Therefore, Williams has not shown that evidence supported such charges or that trial counsel was deficient for failing to request them. See Somchith v. State, 272 Ga. 261, 263 (3) (527 SE2d 546) (2000) (requested jury charges must be supported by evidence).

Williams contends that trial counsel should have objected to the portion of the felony obstruction charge referring to “offering to do violence.” The trial court charged the jury on the entire felony obstruction Code section, OCGA § 16-10-24 (b), omitting only the words “probation supervisor, parole supervisor, or conservation ranger.” The Code section provides:

Whoever knowingly and willfully resists, obstructs, or opposes any law enforcement officer, prison guard, correctional officer, probation supervisor, parole supervisor, or conservation ranger in the lawful discharge of his official duties by offering or doing violence to the person of such officer or legally authorized person is guilty of a felony. . . .

The court also charged the jury that it must decide Williams’s guilt for the offenses as set forth in the indictment.

Williams argues that trial counsel should have objected to the charge because there was no evidence that he offered — or threatened — violence. Although instructions to the jury must be tailored to fit the charge in the indictment and the evidence admitted at trial,

it is not usually cause for new trial that an entire Code section is given. A charge on a [C]ode section in its entirety is not error where a part thereof is applicable and it does not appear that the inapplicable part misled the jury or erroneously affected the verdict. Further, in such event, any error is not harmful if the trial judge confined the elements of the crime to those charged in the indictment.

(Citations and punctuation omitted.) Potts v. State, 207 Ga. App. 863, 865 (1) (429 SE2d 526) (1993). Because the trial court instructed the jury to consider the evidence in light of the charges in the indictment, there was no error. Consequently, trial counsel was not deficient for failing to object to the charge.

Decided May 26, 2011.

John G. Wolinski, for appellant.

J. David Miller, District Attorney, Laura A. Wood, Assistant District Attorney, for appellee.

3. Williams argues that trial counsel should have filed a motion in limine to restrict the use of Williams’s criminal record for impeachment purposes, and her failure to do so prevented Williams from testifying in his own defense.

At the hearing on the ineffective assistance of counsel issue, trial counsel testified that she discussed with Williams whether he should testify, informing him that the choice was his. But she counseled him that should he choose to testify, the state could impeach him with his prior convictions. We find that there is no reasonable probability that the outcome of the proceedings would have been different, but for Williams’s failure to testify. Bruce, supra.

As Williams concedes on appeal, the facts were essentially undisputed. Williams testified at the hearing on the ineffective assistance of counsel claim, and his testimony was consistent with the other evidence. Williams testified that when he took two dinner trays, Officer Holmes snatched them out of his hands, so he hit Holmes. Holmes called for assistance and then rushed Williams. The two men struggled to the floor, putting each other in headlocks. Williams escaped Holmes’s headlock and began choking him. As Williams was beginning to squeeze Holmes’s neck, Officer Rivera came in. Williams and Rivera then began fighting. Williams hit Rivera twice in the body and twice in the face, and then pushed Rivera onto his back.

There is no reasonable probability that Williams’s testimony would have resulted in a different outcome, and he has thus not shown that trial counsel was ineffective for failing to enable him to testify.

Judgment affirmed.

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


author: McFadden, Judge.

text:
    A11A0744.
    FRANCOIS v. THE STATE.
    (711 SE2d 45)
   McFadden, Judge.

A jury found Derrick Francois guilty of aggravated battery, possession of a firearm during the commission of a felony, and five counts of aggravated assault with a deadly weapon. Francois appeals, challenging the admission of hearsay testimony at trial. Because any error was either harmless or not preserved for appellate review, we affirm.

Viewed favorably to the jury’s verdict, the evidence shows that while waiting at a bus stop on March 15, 2007, Arthur Cofield saw Francois in a white Chevrolet Impala. The two had a history of bad blood between them, including a prior incident in which “weapons were drawn.” Francois looked at Cofield, then the Impala left the area. Ten minutes later, Cofield boarded a bus to the College Park MARTA station.

When the bus reached the train station, Cofield noticed the white Impala pull into the bus area. He got off the bus and saw Francois standing nearby with a gun. Cofield ran into the station as Francois began shooting at him. Cofield quickly boarded a MARTA train and called the police.

Back at the train station, four people were struck by bullets. Bystanders reported that a black male with dreadlocks emerged from a white Impala, fired several times into a crowd of people getting off a bus, then returned to the Impala, which sped away. Based on the reports from Cofield and other witnesses, the police prepared a photographic lineup that included Francois’s picture. Cofield identified Francois as the shooter in the lineup and at trial. Two other individuals who witnessed the incident also identified Francois as the gunman at trial.

The jury found Francois guilty of multiple crimes arising out of the March 15, 2007 shooting. On appeal, Francois does not challenge the sufficiency of the evidence supporting his convictions. He instead argues that the trial court erred in admitting hearsay evidence at trial. We find no reversible error.

1. To support his claim on appeal, Francois points to the testimony of two officers who investigated the shooting. The State asked one officer whether, during the course of his investigation, any witnesses connected Francois to a white Impala. Francois objected on hearsay grounds, but the officer was allowed to testify that two individuals who did not appear at trial — Latoya Smith and Nykesa Burley — “put Francois in a white Impala, driving it and getting a ride in that same Impala.”

The State also asked another officer whether his investigation revealed that Francois was driving a white Impala. Francois again objected on hearsay grounds, and that objection was sustained, although the officer responded “yes” before the court ruled. The State then asked the second officer if he had interviewed Latoya Smith. When Francois objected, the court noted that “there is nothing objectionable about that question.” After the officer stated that he had spoken with Smith, the State inquired: “Did your investigation reveal whether or not [Francois] was looking for [Cofield]?” Francois did not object to this question, and the officer responded, “Correct.”

(a) Francois first claims that the trial court improperly allowed the officers to link him to the white Impala through the hearsay statements of Smith and Burley. Even if the trial court erred in admitting the officers’ testimony, however, reversal is not required. As explained by our Supreme Court, “[t]he erroneous admission of hearsay testimony is not reversible error where the hearsay is cumulative of legally admissible evidence of the same fact.” Belmar v. State, 279 Ga. 795, 797 (2) (621 SE2d 441) (2005); see also Wiggins v. State, 280 Ga. 627, 630 (2) (b) (632 SE2d 80) (2006) (admission of hearsay is harmless when it is cumulative of admissible evidence). And in this case, other evidence connected Francois to the car.

Cofield testified that he saw Francois in a white Impala on March 15, 2007, and the Impala later appeared at the College Park MARTA station. Several other witnesses saw the shooter emerge from a white Impala, and two individuals identified Francois as the gunman. Although Francois challenges the credibility of these witnesses and argues that the State’s evidence against him was tenuous, the objected-to testimony was cumulative. See Belmar, supra; Wiggins, supra.

Moreover, the record shows that Francois called the second officer as a witness at trial. Before the State asked the officer the questions at issue here, defense counsel inquired on direct examination whether a white Impala was registered to Francois. The officer responded: “No, I never did run across any information with him having one registered. But, going through my investigation, I interviewed two people that put him in a white Impala.” Francois did not object to this testimony. The jury thus heard — without any complaint from Francois — essentially the same testimony that he is now challenging on appeal. We therefore hold that admission of the objected-to testimony did not harm Francois and does not require reversal. See Hughes v. State, 290 Ga. App. 475, 478 (2) (659 SE2d 844) (2008) (“[E]ven if counsel timely objects to certain testimony, its admission is not error where substantially the same evidence is subsequently admitted without objection.”) (punctuation omitted).

(b) Francois also argues that the State impermissibly used the second officer’s hearsay testimony to establish that Francois was “looking” for Cofield before the shooting. Francois, however, did not object to this testimony. Although he objected to other questions, he raised no complaint when the State asked whether the officer’s investigation revealed that Francois was looking for Cofield. Accordingly, this argument has been waived for purposes of appeal. See Hughes, supra.

Decided May 2, 2011

Reconsideration dismissed May 27, 2011.

Long D. Vo, for appellant.

Paul L. Howard, Jr., District Attorney, Paige R. Whitaker, Christopher M. Quinn, Peggy R. Katz, Assistant District Attorneys, for appellee.

2. Alternatively, Francois contends that admission of the officers’ hearsay testimony violated his Sixth Amendment right to confrontation, requiring reversal under Crawford v. Washington, 541 U. S. 36 (124 SC 1354, 158 LE2d 177) (2004). Francois failed to preserve this claim of error for review. He objected to some of the officers’ testimony on hearsay grounds. But he did not raise a confrontation clause objection or claim that the evidence was inadmissible under Crawford. All of his arguments — including his statement at one point that “[t]he witness isn’t here” — related to hearsay.

“There is a distinct difference” between a confrontation clause objection and an objection based on hearsay. Treadwell v. State, 285 Ga. 736, 739 (1) (a) (684 SE2d 244) (2009). One does not preserve the other. See id.; Walton v. State, 278 Ga. 432, 434 (1) (603 SE2d 263) (2004). Accordingly, because Francois did not object to the officers’ testimony on confrontation clause grounds, we cannot consider his confrontation clause argument on appeal. See Treadwell, supra.

Judgment affirmed.

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


author: Andrews, Judge.

text:
    A11A0509.
    CARROLL FULMER LOGISTICS CORPORATION et al. v. HINES et al.
    (710 SE2d 888)
   Andrews, Judge.

At issue is whether the substantive law of Georgia or Florida applies to wrongful death and survival claims brought in Georgia arising out of a tractor-trailer collision that occurred in Florida. Because we find that application of Florida law under the conflict of laws rule lex loci delicti would contravene Georgia public policy, we affirm the trial court’s conclusion that Georgia law applies.

Travis Lamar Hardaway was killed when the tractor-trailer he was driving on Interstate 10 in Jacksonville, Florida struck the rear of the tractor-trailer driven by Clifford Pauldo in the course of business for Carroll Fulmer Logistics Corporation (CFL). There is evidence that Hardaway died shortly after the collision from burns and smoke inhalation when, as a result of the collision, the driver’s compartment of his tractor-trailer burst into flames. Both drivers were Georgia residents. At the time of his death, Hardaway was not married and had a year-old surviving child. Hardaway’s minor child, Travis Lamar Hardaway, Jr. (by the child’s conservator, Michael T. Smith) and Hardaway’s estate (by the estate administrator, Mary E. Hines) brought wrongful death and survival claims in Georgia against Pauldo and CFL as a nonresident corporation alleged to be vicariously liable for Pauldo’s acts. They claimed that Pauldo caused the collision when he negligently drove on the interstate well below the posted minimum speed limit. The parties filed cross-motions for summary judgment on the issue of whether Georgia or Florida substantive law controlled the claims. Pauldo and CFL appeal from the trial court’s ruling granting summary judgment on this issue in favor of Smith and Hines and denying their motion.

Conflict of laws issues in tort cases brought in Georgia are governed by the rule of lex loci delicti, which requires application of the substantive law of the place where the tort or wrong occurred. Dowis v. Mud Slingers, Inc., 279 Ga. 808 (621 SE2d 413) (2005). Because the alleged tort occurred in Florida, the rule of lex loci delicti would require application of Florida substantive law. But Georgia also recognizes a public policy exception to the rule of lex loci delicti. Under this exception, even if the tort occurred in another state, a Georgia court will not as a matter of courtesy or comity apply the other state’s substantive law “if the law of the other state contravenes the public policy of [Georgia].” Fed. Ins. Co. v. Nat. Distrib. Co., 203 Ga. App. 763, 765-766 (417 SE2d 671) (1992); Alexander v. Gen. Motors Corp., 267 Ga. 339, 340 (478 SE2d 123) (1996); OCGA § 1-3-9.

When a person’s death is the result of negligent conduct by another, and there is some evidence that, prior to death, the decedent consciously experienced pain and suffering as a result of the negligence, Georgia law provides a method for the recovery of wrongful death damages and a method for the separate recovery of damages for the decedent’s pre-death pain and suffering. The Georgia Wrongful Death Act (OCGA § 51-4-1 et seq.) provides that designated persons (including a surviving child) have the right to recover “the full value of the life of the decedent without deducting for any of the necessary or personal expenses of the decedent had he lived.” OCGA §§ 51-4-1; 51-4-2 (a). The full value of the decedent’s life is the economic value and the value of other noneconomic intangible items that the decedent would have attained to the end of his life had he lived. Brock v. Wedincamp, 253 Ga. App. 275, 280 (558 SE2d 836) (2002). Since these damages are measured from the decedent’s point of view, there is no recovery for damages, including mental or emotional suffering, experienced by the decedent’s survivors as a result of the wrongful death. Id. at 281; Bulloch County Hosp. Auth. v. Fowler, 124 Ga. App. 242, 247-248 (183 SE2d 586) (1971), overruled on other grounds, Gilson v. Mitchell, 131 Ga. App. 321, 328 (205 SE2d 421) (1974); OB-GYN Assoc. of Albany v. Littleton, 259 Ga. 663, 664 (386 SE2d 146) (1989), overruled on other grounds, Lee v. State Farm Mut. Ins. Co., 272 Ga. 583, 588, n. 8 (533 SE2d 82) (2000). The Georgia survival statute at OCGA § 9-2-41 provides that the decedent’s personal representative has the right to recover separate damages for the decedent’s pre-death physical and mental pain and suffering.

Under the same circumstances, the Florida Wrongful Death Act (Fla. Stat. § 768.16 et seq.) provides for the recovery of damages as a result of the decedent’s negligently caused injury and death. The Florida Act provides that, in an action brought by the decedent’s personal representative, designated survivors (including a surviving child) have the right to recover certain damages suffered by the survivor, not by the decedent, as a result of the decedent’s injury and death. Estate of Williams v. Tandem Health Care of Florida, 899 S2d 369, 375 (Fla. 1st Dist. App. 2005). These damages include a surviving minor child’s recovery for loss of past and future support and services, loss of parental companionship and guidance, and recovery for the child’s own mental pain and suffering from the date of the death-causing injury. Fla. Stat. § 768.21; Martin v. United Security Svcs., 314 S2d 765, 768-769 (Fla. 1975). While allowing survivors to recover for their own mental pain and suffering, the Florida Wrongful Death Act specifically eliminates any recovery for the decedent’s pre-death physical and mental pain and suffering by providing in Fla. Stat. § 768.20: “When a personal injury to the decedent results in death, no action for the personal injury shall survive, and any such action pending at the time of death shall abate.” According to the Florida Supreme Court, this “conveys an unmistakable legislative intent to incorporate into the new Wrongful Death Act the survival action formerly maintainable under [Fla. Stat. §] 46.021, but modified to substitute a survivor’s pain and suffering for a decedent’s pain and suffering as an element of damages.” Martin, 314 S2d at 770.

We need not engage in a detailed comparison of the various damages recoverable under the Georgia and Florida wrongful death acts to determine whether application of the Florida Wrongful Death Act would contravene Georgia public policy. Although both acts provide recovery of damages for wrongful death, Florida measures damages from the perspective of survivors’ losses while Georgia does so from the perspective of the lost value of the decedent’s life. Moreover, under the facts of this case, application of the Florida Act would eliminate the possibility of the separate recoveiy allowable under Georgia law for any pre-death physical and mental pain and suffering consciously experienced by Hardaway. These are differences sufficient to render the Florida Act in contravention of Georgia public policy. Applying the public policy exception to the rule of lex loci delicti, the trial court correctly ruled that Georgia rather than Florida substantive law applies to the wrongful death and survival actions.

Decided May 27, 2011

Hall, Booth, Smith & Slover, Steven D. Prelutsky, Jennifer K. Brown, W Scott Henwood, Kawania B. James, for appellants.

Hill & Bleiberg, Gary Hill, Hamilton, Westby, Antonowich & Anderson, Joseph T. Brasher, Andrew G. Daugherty, for appellees.

Judgment affirmed.

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

       Under OCGA § 51-4-5 (b) of the wrongful death act, the decedent’s personal representative also has the right to recover for “funeral, medical, and other necessary expenses resulting from the injury and death of the deceased person.”