text:
    A16A0399.
    R&G INVESTMENTS & HOLDINGS, LLC v. AMERICAN FAMILY INSURANCE COMPANY.
    (787 SE2d 765)
   BARNES, Presiding Judge.

R&G Investments & Holdings, LLC sued American Family Insurance Company, seeking insurance payments and bad faith penalties for American Family’s refusal to pay claims for losses to certain residential apartment buildings caused by vandalism and water damage. Following discovery, R&G Investments moved for partial summary judgment on its claim related to one of the vandalized buildings (Building S) and for summary judgment on American Family’s related defenses, including a defense based on the insurance policy’s vacancy exclusion. Concluding that genuine issues of material fact existed on the claim and defenses pertaining to Building S, the trial court denied R&G Investments’s motion for partial summary judgment and its subsequent motion for reconsideration. R&G Investments later moved for partial summary judgment on its claim related to the building that had sustained water damage (Building T), and American Family cross-moved for summary judgment on the ground that the claim was barred by the policy’s vacancy exclusion. The trial court denied R&G Investments’s motion for partial summary judgment and granted American Family’s cross-motion for summary judgment on the water-damage claim pertaining to Building T.

On appeal, R&G Investments challenges these summary judgment rulings by the trial court. For the reasons discussed below, we conclude that the uncontroverted evidence of record showed that Building S was under renovation at the time it was vandalized, and that, as a result, the insurance policy’s vacancy exclusion did not bar coverage of the vandalism loss to that building. Accordingly, we reverse the trial court’s denial of summary judgment to R&G Investments on American Family’s vacancy-exclusion defense to that specific claim. We affirm the trial court’s summary judgment rulings in all other respects.

Summary judgment is proper if the pleadings and evidence “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law[.]” OCGA § 9-11-56 (c). “On appeal from the grant or denial of summary judgment, the appellate courts conduct a de novo review, construing all reasonable inferences in the light most favorable to the nonmoving party” Bank of North Ga. v. Windermere Dev., Inc., 316 Ga. App. 33, 34 (728 SE2d 714) (2012).

So viewed, the record reflects that R&G Investments owns a residential apartment complex insured by American Family When American Family issued the insurance policy in December 2011, R&G Investments had only recently bought the apartments and had decided to renovate them.

In February 2012, the apartment complex was unoccupied and undergoing extensive renovation at the direction of R&G Investments. The renovations to the individual apartment buildings were in various stages of completion. One night that month, several of the unoccupied apartment buildings, including Building S, were damaged by vandalism. R&G Investments sought coverage for the loss from American Family.

In November 2012, a water pipe burst in one of the apartment units in Building T, causing flooding in that unit and several adjacent ones. The renovations to Building T had been completed by that time, but only one of the eight units in the building had been leased to a tenant. R&G Investments also sought coverage for this loss from American Family.

R&G Investments ultimately sued American Family, seeking payment of the insurance proceeds for the vandalism and water damage to the apartment buildings, as well as bad faith penalties and attorney fees for American Family’s refusal to pay the claims. American Family answered, denying liability, and asserted several defenses, including that coverage of the losses was barred by the policy’s vacancy exclusion and by R&G Investments’s failure to fully cooperate with American Family’s investigation of the claims.

Following discovery, R&G Investments moved for partial summary judgment on Count 4 of its complaint, which sought recovery for the vandalism loss to Building S, and for summary judgment on several of American Family’s related defenses. R&G Investments argued that the policy’s vacancy exclusion was inapplicable to its residential apartment buildings, and that even if it did apply, Building S was undergoing renovations and thus was not “vacant” as defined by the exclusion. R&G Investments further argued that it had fully cooperated with American Family’s investigation of its vandalism claim, and that American Family was subject to bad faith penalties as a matter of law.

The trial court denied R&G Investments’s summary judgment motion and its subsequent motion for reconsideration. The trial court concluded that the vacancy exclusion was applicable to R&G Investments’s apartment buildings and that genuine issues of material fact precluded the grant of summary judgment to R&G Investments on the remaining matters.

R&G Investments later moved for partial summary judgment on Count 5 of its complaint, which sought recovery for the loss to Building T caused by the burst water pipe. American Family filed a cross-motion for summary judgment on that count, contending that the uncontroverted evidence showed that coverage for the loss was barred by the policy’s vacancy exclusion. The trial court denied R&G Investments’s motion for partial summary judgment and granted American Family’s cross-motion for summary judgment on Count 5 of the complaint. This appeal by R&G Investments followed.

1. At the outset, we note that R&G Investments has set forth several enumerations of error related to the trial court’s summary judgment rulings, but the argument in its brief fails to follow the order and number of the enumerations of error, as required by Court of Appeals Rule 25 (c) (1). Our requirements for briefs

were created not to provide an obstacle, but to aid parties in presenting arguments in a manner most likely to be fully and efficiently comprehended by this Court; a party will not be granted relief should we err in deciphering a brief which fails to adhere to the required form.

(Punctuation and footnote omitted.) Currid v. DeKalb State Court Probation Dept., 274 Ga. App. 704, 706 (1) (618 SE2d 621) (2005). “Accordingly, if we have missed something in the record or misconstrued an argument, the responsibility rests with counsel” for R&G Investments. (Citation and punctuation omitted.) Pruitt v. State, 323 Ga. App. 689, 690 (1) (747 SE2d 694) (2013).

We also note that by order dated November 5, 2015, this Court denied R&G Investments’s motion to exceed the 30-page limit for briefs in civil cases. See Court of Appeals Rule 24 (f). While R&G Investments’s brief complies with this page limitation, R&G Investments at several places in its brief points to the page limitation and refers to pages of the record from the trial court where it raised additional arguments. To the extent that R&G Investments is attempting to incorporate by reference those additional arguments into its appellate brief, that “practice is not approved by this Court[,] and we decline to look in the record for matters which should have been set forth in the brief.” (Punctuation and footnote omitted.) Ellison v. Burger King Corp., 294 Ga. App. 814, 815 (1) (670 SE2d 469) (2008).

2. R&G Investments argues that the trial court erred in concluding that the policy’s vacancy exclusion applied to its residential apartment buildings. We disagree.

“In Georgia, insurance is a matter of contract, and the parties to an insurance policy are bound by its plain and unambiguous terms.” Richards v. Hanover Ins. Co., 250 Ga. 613, 614 (1) (299 SE2d 561) (1983). “In construing an insurance contract, a court must consider it as a whole, give effect to each provision, and interpret each provision to harmonize with each other.” York Ins. Co. v. Williams Seafood of Albany, Inc., 273 Ga. 710, 712 (1) (544 SE2d 156) (2001). If aprovision in the insurance contract is susceptible to more than one reasonable interpretation, the provision should be construed against the insurer. Cincinnati Ins. Co. v. Magnolia Estates, Inc., 286 Ga. App. 183, 185 (648 SE2d 498) (2007). However, a party’s proposed interpretation of a provision in an insurance contract is not reasonable and should be rejected if it would render a portion of the contract meaningless. Id. The construction and legal effect of an insurance contract are issues of law subject to de novo review on appeal. Infinity Gen. Ins. Co. v. Litton, 308 Ga. App. 497, 498 (2) (707 SE2d 885) (2011).

Among other provisions, the insurance policy at issue in this case excluded coverage for property damage caused by vandalism or water if the insured building was “vacant” for more than 60 consecutive days before the loss or damage occurred, but provided that a building under renovation was not considered vacant for purposes of the exclusion. The vacancy exclusion provided that when the policy is issued to the owner of the insured building, the building is considered vacant

unless at least 31% of its total square footage is: (i) Rented to a lessee or sub-lessee and used by the lessee or sub-lessee to conduct its customary operations; and/or (ii) Used by the building owner to conduct customary operations.

The policy defined “operations” as “business activities occurring at the described premises.”

“Under Georgia law, an insurance company is free to fix the terms of its policies as it sees fit, so long as they are not contrary to the law, and it may insure against certain risks while excluding others.” (Citation and punctuation omitted.) Sorema North American Reinsurance Co. v. Johnson, 258 Ga. App. 304, 306 (574 SE2d 377) (2002). A vacancy exclusion “is intended to protect the insurer from the higher risk of loss associated with property that is not attended.” Id. Consequently, vacancy exclusions worded like the provision in the present case “contemplate[ ] that customary operations occur on the insured premises.” (Emphasis in original.) Id.

R&G Investments argues that the vacancy exclusion is a form contract provision inapplicable as a whole to its insured residential apartment buildings. According to R&G Investments, a residential apartment building is not occupied by its tenants or its owner for their customary business activities; rather, such buildings are occupied principally for the non-commercial activities (such as cooking, cleaning, sleeping, etc.) of its residents. Because the vacancy exclusion contemplates that customary business activities would be conducted on the premises, R&G Investments maintains that the parties did not intend for the exclusion to have any application to the residential apartment buildings insured in the present case.

R&G Investments’s construction of the vacancy exclusion is unreasonable. Aconstruction of the vacancy exclusion that renders it inapplicable as a whole to residential apartment buildings would have the result of reading the provision entirely out of the parties’ insurance policy, given that all of R&G Investments’s insured buildings were residential apartments. The construction of an insurance contract that renders a provision mere surplusage clearly should be avoided under our rules of construction, and therefore we must reject R&G Investments’s proposed interpretation. See Magnolia Estates, Inc., 286 Ga. App. at 185.

In construing the terms of an insurance contract, we look to “what a reasonable person in the insured’s position would understand them to mean.” Gulf Ins. Co. v. Mathis, 183 Ga. App. 323, 324 (358 SE2d 850) (1987). Under the insurance policy issued in this case, American Family agreed to insure apartment buildings which R&G Investments intended to renovate and use for residential leasing purposes. Under the vacancy exclusion, which applied if an insured building was vacant for more than 60 consecutive days before the loss, a building was considered vacant unless it was under renovation or at least 31 percent of its square footage was being used by the owner for its customary business activities. The customary business activity of the owner of a residential apartment building, of course, is the leasing of apartments to tenants for profit. Accordingly, bearing in mind the purpose behind a vacancy exclusion, we conclude that a reasonable person in R&G Investments’s position would have understood the exclusion to mean that an insured apartment building would be considered vacant if it was not under renovation and less than 31 percent of the square footage was occupied by tenants. Hence, the vacancy exclusion is susceptible of only one reasonable construction and applies to R&G Investments’s residential apartment buildings, as the trial court properly concluded.

3. After concluding that the vacancy exclusion applied to R&G Investments’s residential apartment buildings, the trial court found that there were genuine issues of material fact as to whether there had been any renovations to the unoccupied Building S at the time of the vandalism, and thus as to whether the building was “vacant” for purposes of the exclusion. The trial court relied on the affidavit of American Family’s senior field adjuster in deciding that genuine factual issues existed. On appeal, R&G Investments argues that the uncontroverted evidence showed that Building S was under renovation when the vandalism occurred and that the trial court erred in relying upon the senior field adjuster’s affidavit, which contained inadmissible hearsay and an attached exhibit that was not properly authenticated. We agree.

In moving for summary judgment on the issue of whether the vandalism loss to Building S was excluded from coverage under the vacancy exclusion, R&G Investments submitted the affidavit of the current resident manager of the apartment complex to prove that Building S was under renovation at the time of the loss. The resident manager had assisted in the management of the apartment buildings in February 2012 when the vandalism occurred. She averred that during that month, the apartment complex was in the final stages of a complete renovation by R&G Investments, with the renovations completed in some buildings but ongoing in others. The manager further averred that the renovations to the apartment buildings on the rear section of the property, which included Building S, were still in the process of being completed in February 2012 when the vandalism occurred.

The resident manager also was examined under oath about the renovations by counsel for American Family During her examination under oath, the manager testified that she would “walk the property” to observe the status of the renovations on the buildings, and that the renovations to Building S had been started but not completed before the vandalism occurred.

In response, American Family submitted the affidavit of its senior field adjuster assigned to the vandalism claim. The field adjuster averred that after the claim was reported to him, he requested an onsite inspection of the property by Americlaim in March 2012. In the next paragraph of his affidavit, the field adjuster stated, without any further explanation, “On April 10, 2012, I received Mr. Dierker’s report on the Building S, including photographs taken during his site inspection. (Copy of Erik Dierker’s report is attached hereto as Exhibit ‘A’).” The next paragraph stated, “Mr. Dierker advised me that in the course of his inspection as to Building S, there did not appear to be any renovation work completed on that building.” The field adjuster never averred that he had any personal knowledge regarding Building S or of the onsite inspection that had been conducted there.

Attached to the senior field adjuster’s affidavit as Exhibit A was a multi-page report with photographs under a cover page listing “Eric Dierker” as the “Claim Rep” and “Estimator” for a company named “Adjustment Services Inc.” Among other things, the cover page of the report listed the “Property” as Building S, the “Date Inspected” as March 16,2012, and stated, “This is a repair estimate only” American Family did not submit an affidavit from Mr. Dierker or any other employee of Adjustment Services as part of its opposition to summary judgment.

In its reply brief in further support of its motion for summary judgment, R&G Investments argued that American Family had failed to submit any competent evidence creating a genuine issue of material fact regarding the renovation of Building S. R&G Investments asserted that the senior field adjuster’s affidavit contained inadmissible hearsay and failed to lay a proper foundation for the admission of the report and photographs attached as an exhibit thereto.

The trial court denied summary judgment to R&G Investments on the issue of whether Building S was under renovation when the vandalism occurred, and thus on whether coverage of the claim was excluded by the policy’s vacancy exclusion. The trial court found “that the affidavit of the [senior field adjuster] ... was sufficient to raise an issue of fact as to whether Building ‘S’ was under renovation, precluding summary judgment in favor of [R&G Investments]

The trial court’s reliance on the senior field adjuster’s affidavit was in error. “A party opposing a motion for summary judgment, where the moving party has presented evidence of the necessary certitude, must, in [its] opposing affidavits, set forth specific facts showing a genuine issue to be decided.” (Citations and punctuation omitted.) Bogart v. Wisconsin Institute for Torah Study, 321 Ga. App. 492, 495 (3) (739 SE2d 465) (2013).

[T]o be considered by the trial court, affidavits opposing summary judgment must be made on personal knowledge and must set forth such facts as would be admissible in the evidence. All hearsay evidence, unsupported conclusions, and the like, must be stricken or eliminated from consideration in a motion for summary judgment.

(Citation and punctuation omitted.) Smith v. Dill’s Builders, 332 Ga. App. 491, 493 (2) (773 SE2d 444) (2015). See Holcomb v. Norfolk Southern R. Co., 295Ga. App. 821, 822 (673 SE2d 268) (2009) (“Rules as to the admissibility of evidence are applicable in summary judgment proceedings, since the statute provides that all affidavits, depositions, etc. shall set forth such facts as would be admissible in the evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. OCGA § 9-11-56 (e).”) (citation and punctuation omitted). Furthermore, the affiant generally must lay a proper foundation for the admission of any document attached to the affidavit as an exhibit. See Thomason v. FIA Card Svcs., N.A., 330 Ga. App. 603, 605 (768 SE2d 785) (2015). The requirement of authentication “shall be satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” OCGA § 24-9-901 (a).

Here, the single statement as to the status of the renovation work to Building S in the senior field adjuster’s affidavit was the recitation of a statement made to the adjuster by Mr. Dierker that “there did not appear to be any renovation work completed on that building.” The adjuster’s recitation of this out-of-court statement clearly constituted inadmissible hearsay and should not have been considered on summary judgment. See OCGA § 24-8-801 (c) (“ ‘Hearsay’ means a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”).

Nor should the report and photographs attached as Exhibit Ato the senior field adjuster’s affidavit have been considered. The field adjuster made no effort in his affidavit to lay a proper foundation for the admission of the exhibit as a business record or otherwise, and the exhibit was not self-authenticating under any of the categories enunciated in OCGA § 24-9-902. Compare Jaycee Atlanta Dev. v. Providence Bank, 330 Ga. App. 322, 325 (2) (765 SE2d 536) (2014) (guaranties attached as exhibits to affidavit were self-authenticating under OCGA § 24-9-902 (2)). The exhibit thus was not competent evidence regarding the renovations to Building S.

Because the senior field adjuster’s affidavit did not include any admissible evidence regarding the status of the renovation work to Building S, the trial court erred in relying upon the affidavit to find that genuine issues of material fact existed on the issue of renovation. And given that there was no other evidence in the record that rebutted the affidavit and testimony of R&G Investments’s rental manager that Building S was under renovation when the vandalism occurred, the uncontroverted evidence showed that the building was not “vacant” under the policy’s vacancy exclusion. Consequently, the vacancy exclusion did not bar coverage for the vandalism loss to Building S as a matter of law, and the trial court erred in failing to grant summary judgment to R&G Investments on this issue.

4. The insurance policy required R&G Investments to produce relevant documents, submit to an examination under oath, and otherwise fully cooperate with American Family’s investigation of a claim. Under Georgia law, an insured is required “to provide any material information to the insurer that the insurer is entitled to receive under the insurance policy,” and a failure to provide the requested information, “absent an excusable failure to do so, constitutes a breach of the insurance contract” that bars recovery by the insured. (Punctuation omitted.) Hines v. State Farm Fire & Cas. Co., 815 F2d 648, 651 (11th Cir. 1987), citing Halcome v. Cincinnati Ins. Co., 254 Ga. 742, 744 (334 SE2d 155) (1985). See Allstate Ins. Co. v. Hamler, 247 Ga. App. 574, 576-578 (545 SE2d 12) (2001). However, if there are factual questions regarding the degree of the insured’s compliance with the insurer’s request for information or the reasonableness of the insured’s explanation for noncompliance, a jury must resolve whether the insured sufficiently cooperated with the insurer’s request. See United Acoustical & Drywall Systems v. Fidelity & Cas. Co. of N.Y., 222 Ga. App. 824, 827 (2) (476 SE2d 277) (1996); Diamonds & Denims v. First of Ga. Ins. Co., 203 Ga. App. 681, 683 (417 SE2d 440) (1992).

In opposing summary judgment, American Family contended that R&G Investments had not fully cooperated in its investigation of the vandalism claim because it failed to produce documentation reflecting the renovations performed on each of the damaged apartment buildings, thereby preventing American Family from determining what specific renovations were performed to Building S and when they were done. American Family also contended that R&G Investments should have designated a corporate representative other than its resident manager to submit to the examination under oath because other employees had more relevant information about the specific renovations. R&G Investments disputed these points, and the trial court held that whether R&G Investments sufficiently cooperated with American Family’s investigation was a factual question to be resolved by the jury

On appeal, R&G Investments contends that the trial court erred in denying its motion for summary judgment on the issue of whether it sufficiently cooperated with American Family’s investigation of its vandalism claim. Specifically, according to R&G Investments, American Family could not rely on the insurance policy’s provisions requiring cooperation with its investigation of the vandalism claim as a defense to this suit because American Family (a) never made a proper demand for an examination under oath to R&G Investments; (b) waived and was estopped from relying on the cooperation provisions; and (c) was not harmed by R&G Investments’s alleged failure to cooperate because the vacancy exclusion did not apply to the residential apartment buildings. We will address these arguments each in turn.

(a) R&G Investments’s argument that the uncontroverted evidence showed that American Family never made a proper demand for an examination under oath is without merit. Counsel for American Family submitted an affidavit with accompanying exhibits detailing the specific requests made to R&G Investments to submit to an examination under oath, identify a corporate representative fully competent to testify on behalf of the company about the renovations to the property and the vandalism loss, and produce relevant documents in connection with the examination. The affidavit clearly demonstrated that, at the very least, there was a factual dispute as to whether American Family made a proper demand for an examination under oath, precluding summary judgment on the issue.

(b) We likewise reject R&G Investments’s argument that the uncontroverted evidence showed that American Family waived and was estopped from relying on the policy’s cooperation provisions. Although somewhat unclear from its brief, R&G Investments appears to argue that because American Family investigated the vandalism claim without a proper reservation of rights, it waived and was estopped from raising any potential defenses to that claim, including any defenses based on R&G Investments’s failure to cooperate. But a reservation of rights is a term of art applicable in the specific context where an insurer undertakes a defense of its insured. See Hoover v. Maxum Indem. Co., 291 Ga. 402, 405 (1) (730 SE2d 413) (2012). In contrast, “[e]ven without disclaiming liability and giving notice of its reservation of rights, any insurer who merely proceeds to investigate a claim with knowledge of facts which might otherwise constitute a defense to coverage is not estopped from thereafter setting up the defense.” (Emphasis omitted.) Brazil v. Govt. Employees Ins. Co., 199 Ga. App. 343, 344 (2) (404 SE2d 807) (1991). See OCGA § 33-24-40 (3) (“Without limitation of any right or defense of an insurer otherwise, none of the following acts by or on behalf of an insurer shall be deemed to constitute a waiver of any provision of a policy or of any defense of the insurer under the policy:... Investigating any loss or claim under any policy[.]”). Thus, R&G Investments has failed to demonstrate that it was entitled to summary judgment on the basis of waiver or estoppel.

(c) R&G Investments also appears to contend that because the vacancy exclusion was inapplicable as a whole to its residential apartment buildings, American Family had no basis for investigating whether the exclusion barred coverage of the vandalism claim, and thus was not harmed by R&G Investments’s alleged failure to fully cooperate in the investigation of that claim. But, as discussed supra in Division 2, the vacancy exclusion applied to R&G Investments’s apartment buildings, and therefore American Family was entitled to investigate whether the exclusion barred the vandalism claim.

5. R&G Investments also argues that the trial court erred in denying its motion for summary judgment on the issue of whether it was entitled to bad faith penalties under OCGA § 33-4-6 for American Family’s refusal to pay its vandalism claim. We disagree.

To support a cause of action under OCGA § 33-4-6, the insured bears the burden of proving that the refusal to pay the claim was made in bad faith. . . . Penalties for bad faith are not authorized where the insurance company has any reasonable ground to contest the claim and where there is a disputed question of fact.

(Footnote omitted.) Assurance Co. of America v. BBB Svc. Co., 259 Ga. App. 54, 57 (2) (576 SE2d 38) (2002). “Bad faith is shown by evidence that under the terms of the policy upon which the demand is made and under the facts surrounding the response to that demand, the insurer had no good cause for resisting and delaying payment.” (Punctuation and footnote omitted.) Atlantic Title Ins. Co. v. Aegis Funding Corp., 287 Ga. App. 392, 393 (651 SE2d 507) (2007). The question whether the insurer acted in good or bad faith is normally for the jury. Id.

Decided June 9, 2016

Reconsideration denied June 28, 2016

Kenneth C. Pollock, for appellant.

Fain, Major & Brennan, James F. Taylor III, for appellee.

As previously noted, there are disputed questions of fact as to whether R&G Investments sufficiently cooperated with American Family’s investigation of the vandalism claim, and thus whether it breached the insurance policy and was barred from recovery on that basis. Thus, at a minimum, a factual question remains as to whether American Family had a reasonable ground for contesting the vandalism claim and good cause for resisting payment to R&G Investments. Summary judgment thus was properly denied to R&G Investments on the issue of bad faith penalties.

Judgment affirmed in part and reversed in part.

Boggs and Rickman, JJ., concur.

       The vacancy-exclusion defense was the ninth defense to liability in American Family’s answer.

       Specifically, R&G Investments moved for summary judgment on American Family’s third defense (“Plaintiff may not recover against American Family as Plaintiff has failed to comply with all conditions precedent to making a claim under this policy.”); fourth defense (“Plaintiff’s lawsuit is premature due to Plaintiff’s failure to comply with the policy condition regarding Suit Against Us.”); fifth defense (“Plaintiff’s prayer for bad faith penalties and attorney’s fees is insufficient in fact and in law. American Family has at all times acted in good faith and with reasonable and probable cause with respect to the actions it has taken, and Plaintiff therefore fails to state a claim under OCGA § 33-4-6 for any bad faith penalties and attorney’s fees.”); seventh defense (“Plaintiff has failed to comply with all statutory preconditions for asserting a claim under OCGA § 33-4-6.”); eighth defense (“Plaintiff’s [c]om-plaint is barred as a result of Plaintiff’s failure to comply with [its contractual] duties in the event of loss or damage, as Plaintiff has repeatedly failed to provide American Family with requested documents and further failed to produce a corporate representative competent to testify as to all aspects of this loss for Examination Under Oath.”); and ninth defense (“Plaintiff’s claims are excluded in part under the vacancy provisions contained within the applicable American Family policy.”).

       R&G Investments’s challenge in its reply brief to the affidavit on the grounds of hearsay and lack of proper foundation was sufficient to preserve its objection to the affidavit. See D’Agnese v. Wells Fargo Bank, N.A., 335 Ga. App. 659, 661 (782 SE2d 714) (2016).

       Because R&G Investments filed its motion for summary judgment pertaining to Building S in September 2014, Georgia’s revised Evidence Code applies. See Ga. L. 2011, p. 99, § 101 (revised Evidence Code “shall become effective on January 1, 2013, and shall apply to any motion made or hearing or trial commenced on or after such date”).

       Because we conclude that the vacancy exclusion did not bar coverage for the vandalism loss to Building S, we need not address R&G Investments’s alternative argument that American Family waived and was estopped from relying upon the vacancy exclusion.

       Among other things, the policy required R&G Investments to provide upon request “complete inventories of the damaged and undamaged property,” including the “quantities, costs, values and amount of loss claimed”; to “[cjooperate with [American Family] in the investigation or settlement of the claim”; and to submit to an examination under oath “about any matter relating to this insurance or the claim, including [R&G Investments’s] books and records.”


source: Caselaw Access Project

author: Ellington, Presiding Judge.

license: Public Domain

text:
    A15A0792.
    RTT ASSOCIATES, INC. v. GEORGIA DEPARTMENT OF LABOR.
    (789 SE2d 211)
   Ellington, Presiding Judge.

RTT Associates, Inc., brought this action in the Superior Court of Fulton County against the Georgia Department of Labor for breach of contract and breach of the implied covenants of good faith and fair dealing. In an earlier appeal, we reversed the trial court’s grant of summary judgment in the Department’s favor on the basis of sovereign immunity RTT Associates, Inc. v. Georgia Dept. of Labor, 333 Ga. App. 173, 173-179 (1) (775 SE2d 644) (2015). We also affirmed the trial court’s denial of RTT’s motion for judgment on the pleadings. Id. at 179-180 (2).

The Supreme Court of Georgia granted the Department’s petition for a writ of certiorari to determine whether we erred in reversing the trial court’s order granting summary judgment in the Department’s favor. The Supreme Court found as a matter of law that RTT failed to meet its burden of showing a waiver of sovereign immunity and reversed. Georgia Dept. of Labor v. RTT Associates, Inc., 299 Ga. 78, 80-85 (1)-(3) (786 SE2d 840) (2016). Accordingly, our decision in RTT Associates, Inc. v. Georgia Dept. of Labor, 333 Ga. App. at 173-179 (1), is vacated, and the judgment of the Supreme Court is made the judgment of this Court.

Decided June 28, 2016.

Balch & Bingham, Christopher S. Anulewicz, Joshua M. Moore, for appellant.

Samuel S. Olens, Attorney General, Julie A. Jacobs, Senior Assistant Attorney General, Elizabeth A. Harris, Brittany H. Bolton, Assistant Attorneys General, for appellee.

The writ of certiorari did not reach Division 2 of our decision. We have reviewed Division 2 of our decision and conclude that it is consistent with the Supreme Court’s ruling. As a result, our decision in RTT Associates, Inc. v. Georgia Dept. of Labor, 333 Ga. App. at 179-180 (2), became binding upon return of the remittitur and remains the judgment of this Court. See Center for a Sustainable Coast, Inc. v. Georgia Dept. of Natural Resources, 326 Ga. App. 288, 289 (2), (3) (756 SE2d 554) (2014).

Accordingly, both of the trial court’s rulings are affirmed.

Judgment affirmed.

Dillard and McFadden, JJ., concur.


author: BARNES, Presiding Judge.

text:
    A16A0003.
    THE STATE v. BANKSTON.
    (788 SE2d 506)
   BARNES, Presiding Judge.

The State appeals after the trial court accepted a plea of guilty by the defendant, Sharke Bankston, to two counts of robbery by intimidation. The State contends that the trial court exceeded its jurisdiction by rejecting a negotiated plea to the indicted crimes of armed robbery and entering judgment on uncharged lesser offenses over the objection of the State. Based on the recent Supreme Court decision in State v. Kelley, 298 Ga. 527 (783 SE2d 124) (2016), we reverse the trial court’s judgment.

The facts are not in dispute and “where the evidence is uncon-troverted and no question regarding credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.” Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994).

According to police reports, on November 22, 2013, Bankston entered a SunTrust Bank location, approached a teller, “stuck his hand in his pants and claimed to have a gun.” After demanding that the teller hand over money, Bankston told her “I will shoot all of you,” and then left with $600. On November 29, 2013, Bankston entered a Midtown Bank location, and repeated the above procedure, leaving with $1,221.99.

On December 13, 2013, police arrested Bankston at his residence. Bankston gave statements, signed an admission of guilt, and consented to a search of his room, where the police found items that the perpetrator was seen wearing during the robberies. A grand jury indicted Bankston on two counts of armed robbery The trial court held a plea hearing on June 18, 2015, and over the State’s objection, allowed Bankston to plead guilty to two counts of robbery by intimidation, sentencing him to twenty years, to serve seven. The State filed a motion for reconsideration, and now timely appeals.

The State contends that the trial court erred by entering judgment on an unindicted lesser included offense over the State’s objection, impermissibly engaging in plea negotiations. In Kelley, the Supreme Court concluded

that the trial court does not have the authority to accept a guilty plea to an uncharged, lesser included offense without the consent of the State, and that, where the State makes a timely and specific objection, it has the legal authority to withdraw its consent from a negotiated plea and demand a trial when it learns that the trial court does not intend to follow the sentencing recommendation.

Kelley, 298 Ga. at 527.

At the plea hearing, Bankston freely and voluntarily admitted his guilt to the robbery charges, but denied he was ever in possession of a firearm. The State responded that, had the case proceeded to trial, it would offer evidence to prove that both bank tellers handed over money because they believed Bankston was armed, which was all it needed to prove. The State then asked for the negotiated recommendation of punishment to be twenty years, to serve ten, on each count of armed robbery, which is the mandatory minimum sentence for that offense. After discussing Bankston’s mental health issues, his older age at 61, and the recidivist punishment the State sought, the trial court reduced the conviction to two counts of robbery by intimidation and sentenced Bankston to twenty years, to serve seven.

On appeal, the State contends that the trial court exceeded its jurisdiction by entering judgment on an unindicted lesser included offense. First, this issue is preserved for appellate review because the State objected to the lesser charge when it argued to the trial court that it intended to prove the charges of armed robbery against Bankston if the case proceeded to trial. See Kelley, 298 Ga. at 531 (State must object to the trial court’s rejection of the negotiated plea in favor of a lesser charge to preserve for appellate review.).

Decided June 28, 2016.

Paul L. Howard, Jr., District Attorney, Paige Reese Whitaker, Marc A. Mallon, Assistant District Attorneys, for appellant.

Jennifer Lubinsky, for appellee.

Second, although the trial court has wide discretion in rejecting a plea agreement, “a trial court may not compel the State to accept a plea to an offense other than that which is charged in the charging instrument.” Kelley, 298 Ga. at 530. See Bostic v. State, 184 Ga. App. 509, 511 (4) (361 SE2d 872) (1987) (court cannot accept a nonnegoti-ated plea of guilty to an offense other than the offense charged).

“[Wjhere the State has agreed to a reduced charge in exchange for a specific sentence, the State has the authority to withdraw from that negotiated plea and demand a trial if the trial court rejects that sentence in favor of one to which the State does not consent.” Kelley, 298 Ga. at 531. See Stripling v. State, 289 Ga. 370, 376 (3) (711 SE2d 665) (2011) (“If judgment on such a plea is objected to by the State, the State cannot be deprived of the opportunity to have its full case adjudicated, just as where a defendant enters a plea of not guilty.”). Lastly,

where a trial court intends to reject a sentence recommended as part of a plea agreement to a lesser charge, the trial court must, on the record and before sentencing, inform the State of its intention and allow the State to exercise its authority to withdraw its consent to the plea[.]

Kelley, 298 Ga. at 531. Because the trial court rejected the State’s plea negotiation and reduced the conviction to a lesser charge without giving the State the opportunity to withdraw its consent, we reverse the trial court’s judgment.

Judgment reversed.

Boggs and Rickman, JJ., concur.


text:
    A16A0711.
    SMITH et al. v. NORFOLK SOUTHERN RAILWAY COMPANY.
    (788 SE2d 508)
   BARNES, Presiding Judge.

This appeal arises out of a fatal collision between a freight train and a pickup truck at a railroad crossing. Before the collision between the train and pickup truck, the truck was involved in a motor vehicle accident with another car and had come to rest on the railroad tracks as a result. Apassenger in the truck subsequently was killed when the train owned by Norfolk Southern Railway Company entered the crossing and struck the truck. The plaintiffs, who are the children of the deceased truck passenger, filed this wrongful death action against Norfolk Southern, asserting claims for negligence per se and ordinary negligence on the ground that the train engineer allegedly had failed to blow the train’s horn upon approaching the railroad crossing in the manner required by a federal railroad regulation and the standard of ordinary care. Norfolk Southern answered, denying liability on the alleged grounds that its engineer’s actions were reasonable in light of the sudden emergency that had transpired and were not the proximate cause of the truck passenger’s death. The case was tried before a jury, which returned a verdict in favor of Norfolk Southern.

On appeal from the final judgment entered on the verdict, the plaintiffs contend that the trial court erred by charging the jury on the defense of sudden emergency for several reasons. The plaintiffs first contend that the evidence did not support the charge on sudden emergency. The plaintiffs also contend that a charge on the sudden emergency defense was improper because the defense was preempted by a federal railroad regulation. Furthermore, the plaintiffs contend that even if a sudden emergency charge was proper, the charge as given by the trial court was an incomplete statement of the defense. Lastly, the plaintiffs contend that a separate, introductory portion of the jury charge also contained an erroneous definition of the sudden emergency defense.

For the reasons discussed below, we conclude that there was evidence to support a charge on the defense of sudden emergency As to the plaintiffs’ remaining challenges to the jury charge, we conclude that the plaintiffs waived those challenges by failing to raise them in the trial court and have failed to show that any defect in the charge rose to the level of substantial error. We therefore affirm the judgment entered in favor of Norfolk Southern.

“On appeal, the evidence is construed most strongly to support the verdict and judgment.” Tice v. Cole, 246 Ga. App. 135, 135 (537 SE2d 713) (2000). So construed, the evidence shows that the sequence of events giving rise to this litigation began at the intersection of Buford Highway and Amwiler Road in Gwinnett County Amwiler Road crosses over three railroad tracks near the intersection.

On the late afternoon of March 12, 2013, Tony Lungaro was a passenger in a pickup truck traveling southbound on Buford Highway toward the intersection with Amwiler Road. The driver of the truck was Lungaro’s employee, Lorenzo Wilkerson. As the truck approached where Buford Highway intersects with Amwiler Road, the traffic light for Buford Highway turned yellow. According to an eyewitness, Wilkerson did not stop or slow down the truck. As the light turned red, Wilkerson drove the truck into the intersection and collided with a van traveling northbound on Buford Highway that was in the process of making a left turn onto Amwiler Road.

The impact of the collision knocked both vehicles off course. The van came to rest on a grassy area near Buford Highway The pickup truck was propelled approximately 90 feet onto one of the railroad tracks that crossed Amwiler Road. After the truck came to rest on the railroad tracks, the crossing gates closed, and the lights and bells at the crossing activated. Other drivers began to honk their horns and to yell at the occupants of the truck to call their attention to the crossing signals.

The crossing signals activated because a freight train was traveling northbound from Atlanta to South Carolina and was approaching the crossing at Amwiler Road. The train was operated by an experienced Norfolk Southern locomotive engineer familiar with the train route. The train had three engine cars and seventy-five freight cars, was approximately one mile long, weighed 8,900 tons, and included several cars that carried hazardous materials. The train was traveling within the speed limit at 48 mph as it approached the crossing at Amwiler Road.

A regulation issued by the Federal Railroad Administration requires that the horn on the lead locomotive of a train be blown at least 15 seconds before the train enters a public highway railroad crossing. 49 CFR § 222.21 (a), (b) (2). The horn must be blown in the sequence of two long blasts, one short blast, and one long blast, with the sequence repeated or prolonged until the locomotive occupies the crossing. See 49 CFR § 222.21 (a). Norfolk Southern’s internal operating rules are consistent with the federal railroad regulation.

Pursuant to the federal railroad regulation and Norfolk Southern’s internal operating rules, the locomotive engineer began the first long blast of the horn before arriving at the Amwiler Road crossing. The engine bell, which also alerts others to the approach of the train, turned on automatically during the first horn blow and remained on throughout the incident at issue. The headlight and two “ditch lights” on the front of the train were activated as well.

During the first horn blow, the engineer “saw something come across the crossing and kind of make a sudden stop right on . . . [the] track.” Upon realizing that it was a stationary vehicle, the engineer stopped blowing the horn and carried out a sequence of emergency steps aimed at stopping or slowing down the train. According to the engineer, “it was either blow the horn or put the train in emergency And I put the train in emergency.” The engineer put the train into emergency because the truck was “not going to move” from the track and he was concerned about a possible derailment, which would have been a “catastrophe” in light of the hazardous materials onboard. The engineer moved the throttle to the idle position and sequentially applied four different, train brakes, causing him to be “jostled around a little bit” inside the lead engine car and to be “shook up in [his] seat.” The engineer “got back... onto the horn as quick as ... [he] could” and resumed blowing the horn shortly before arriving at the Amwiler Road crossing.

The engineer was able to slow the train down, but not to stop it. As the train approached the crossing, the pickup truck remained on the tracks facing in the direction of the oncoming train. Wilkerson, the driver of the pickup truck, was slumped over in the driver’s seat and did not respond to the approaching train. Lungaro exited from the passenger side of the truck and remained standing there, facing the opposite direction from which the train was approaching. According to an eyewitness, Lungaro appeared to be in a “daze” and “just kept standing there like he was trying to figure out what was going on.” As the train blew its horn for the second time, Lungaro “turned to run, but it was too late.” The train hit the pickup truck, and the truck hit Lungaro and killed him. Wilkerson was severely injured but survived the impact from the train. The train did not derail, and the locomotive engineer was not injured. It took the engineer a half mile to bring the train to a complete stop on the tracks.

Video from a camera mounted in the train showed that approximately 22 seconds elapsed from the time the pickup truck came to a rest on the railroad tracks until the impact with the train. The video also recorded when the engineer was blowing the horn on the train. The video reflected that the engineer first sounded the horn for four seconds, starting twenty-two seconds before the collision and ending eighteen seconds before the collision. The engineer blew the horn a second time approximately two seconds before the train hit the truck. During the approximately 16-second gap between the first and second horn blasts, the engineer applied the four different train brakes as part of the emergency procedure aimed at stopping or slowing down the train.

Following the collision, the plaintiffs sued Norfolk Southern for the wrongful death of their father, Lungaro. The plaintiffs alleged that Norfolk Southern was liable under theories of negligence per se and ordinary negligence based on the 16-second gap between the first and second horn blasts sounded by the locomotive engineer as the train approached the railroad crossing. According to the plaintiffs, the engineer had failed to continuously blow the horn in the manner prescribed by 49 CFR § 222.21, the railroad’s internal operating rules, and the standard of ordinary care, and thus had failed to properly warn Lungaro of the approaching train. The plaintiffs asserted that if the train horn had been properly sounded, it would have alerted Lungaro to the train and would have caused him to flee from the tracks for his own safety

Norfolk Southern answered, denying liability. Norfolk Southern alleged that the locomotive engineer’s decision to apply the four brakes to slow the train rather than continuously blow the horn was reasonable in light of the sudden emergency that had transpired. Norfolk Southern further alleged that the actions of the engineer were not the proximate cause of Lungaro’s death, and that the true proximate cause was the negligence of the drivers of the pickup truck and van involved in the motor vehicle accident.

A jury trial ensued over several days in August 2015. Following the close of evidence, the trial court charged the jury on, among other things, Norfolk Southern’s defense of sudden emergency. The plaintiffs objected on the ground that the evidence did not support a charge on sudden emergency and that the charge had the effect of granting “immunity” to Norfolk Southern.

The jury subsequently returned a verdict in favor of Norfolk Southern. The verdict form differentiated between the plaintiffs’ claim for negligence per se based on the alleged violation of 49 CFR § 222.21 and their claim for ordinary negligence. With respect to the negligence per se claim, the jury found that the plaintiffs had not proven by a preponderance of the evidence that Norfolk Southern “violated 49 CFR § 222.21 and that such violation was a proximate cause of Tony Lungaro’s death.” With respect to the ordinary negligence claim, the jury found the plaintiffs had not proven by a preponderance of the evidence that Norfolk Southern “was in any other way negligent and that such negligence was a proximate cause of the injuries to . . . [Lungaro].” The trial court thereafter entered judgment on the jury verdict in favor of Norfolk Southern, resulting in this appeal by the plaintiffs.

1. As previously noted, Norfolk Southern argued at trial that the locomotive engineer’s decision to implement emergency braking procedures rather than continuously blow the train horn was reasonable in light of the sudden emergency posed by the disabled pickup truck, and the trial court charged the jury on the defense of sudden emergency On appeal, the plaintiffs first contend that the trial court erred by charging the jury on the defense of sudden emergency because there was no evidence to support such a defense. According to the plaintiffs, there was no evidence that the engineer was faced with a choice between blowing the horn and applying the emergency braking procedures without time for deliberation or thought, and thus the sudden emergency defense had no application. We disagree.

It is well established that if a defendant “is confronted with a sudden emergency without sufficient time to determine with certainty the best course to pursue, he is not held to the same accuracy of judgment as would be required of him if he had time for deliberation,” and the existence of the emergency can be considered by the jury in deciding whether the defendant exercised ordinary care. Luke v. Powell, 63 Ga. App. 795, 804 (12 SE2d 196) (1940). The sudden emergency defense

is available where the evidence shows that there has been a sudden peril caused by circumstances in which the defendant did not participate and which offered him a choice of conduct without time for thought; under such circumstances, negligence in his choice might be attributable not to lack of care but to lack of time to assess the situation.

Jimenez v. Morgan Drive Away, 238 Ga. App. 638, 641 (2) (a) (519 SE2d 722) (1999). See Holt v. Scott, 226 Ga. App. 812, 815 (2) (487 SE2d 657) (1997). “The defense of sudden emergency applies only to those acts that occur immediately after the apprehension of the danger or crisis,” Rayfield v. Farris, 253 Ga. App. 167, 168 (558 SE2d 748) (2002), and the defense “requires that the person confronted by the emergency have the opportunity to exercise one of several reasonable alternative courses of action. In the absence of such factors, there can be no conduct to which to apply the standard and the . . . [defense] is inapplicable.” (Citation and punctuation omitted.) Metropolitan Atlanta Rapid Transit Auth. v. Mehretab, 224 Ga. App. 263, 264 (1) (480 SE2d 310) (1997).

A jury charge on the sudden emergency defense is authorized if the defendant presents any evidence, however slight, to support such a defense, Stephens v. Hypes, 271 Ga. App. 863, 866 (610 SE2d 631) (2005), even if there is conflicting evidence that would allow the jury ultimately to find that an emergency did not exist. See Franklin v. Hennrich, 196 Ga. App. 372, 374-375 (2) (a) (395 SE2d 859) (1990). This is because the ultimate issue of whether an emergency existed should be presented to and resolved by the jury “except in plain and indisputable cases.” Kelly v. Adams, 197 Ga. App. 574, 576-577 (2) (398 SE2d 848) (1990). Whether there was slight evidence authorizing a charge on the sudden emergency doctrine is a legal question, and we review the issue de novo on appeal. See One Bluff Drive, LLC v. K. A. P., Inc., 330 Ga. App. 45, 47 (1) (766 SE2d 508) (2014).

There was evidence presented at trial sufficient to support a charge on the sudden emergency defense. As an initial matter, there was evidence that the locomotive engineer was not at fault in the creation of the emergency situation, given that the pickup truck was propelled onto the railroad tracks in front of the approaching train as a result of its collision with another vehicle.

Furthermore, there was evidence that when the engineer realized the sudden peril in front of him, the circumstances offered him a choice of alternative courses of action without time for thought or for careful reflection. Specifically, the engineer testified that upon identifying that the object in front of him was a truck stopped on the tracks, he had to choose quickly between continuing to blow the horn or carrying out a sequence of emergency braking procedures aimed at stopping or slowing the train. As the engineer explained, “[I]t was either blow the horn or put the train in emergency. And I put the train in emergency” The engineer testified that he “blew the horn the best. . . [he] could in that situation,” but that “everything happened so fast,” he “got jostled a little bit,” and he chose to carry out the emergency braking procedures. Furthermore, the video camera mounted in the train reflected that only 22 seconds elapsed from the time the truck became disabled on the tracks until the impact with the train.

Under these circumstances, the trial court was authorized to charge the jury on the sudden emergency defense. See Willis v. Love, 232 Ga. App. 543, 545 (2) (a) (502 SE2d 487) (1998) (charge on sudden emergency defense was authorized in vehicle collision case, where there was evidence that the defendant driver, who came upon a wreck at an upcoming intersection without any prior warning after cresting a hill, chose to apply brake rather than attempt to pass another car). Compare Butgereit v. Enviro-Tech Environmental Svcs., 262 Ga. App. 754, 757 (2) (586 SE2d 430) (2003) (evidence did not support a charge on sudden emergency defense, where defendant driver “did not contend that he had a choice between attempting to stop and taking some other action, nor did he testify that he considered any course of conduct other than braking”). And while the plaintiffs assert that there was sufficient time for careful reflection by the engineer and that the engineer could have applied the horn and brake simultaneously, it was for the jury to resolve any conflicts in the evidence after being instructed on the sudden emergency defense. See Franklin, 196 Ga. App. at 374-375 (2) (a). Hence, there was a sufficient evidentiary basis for the trial court to charge the jury on the sudden emergency defense.

2. The plaintiffs also contend that the trial court erred by charging the jury on the defense of sudden emergency because the defense was preempted by 49 CFR § 222.21, the federal railroad regulation that specifies the manner in which a train horn must be blown at a public railroad crossing. Additionally, the plaintiffs contend that even if a charge on the sudden emergency defense was appropriate, the charge as given was an incomplete statement of the law because it omitted a portion of the pattern jury charge on sudden emergency. We discern no reversible error because the plaintiffs failed to raise these specific objections to the charge in the court below, and they have failed to show that the alleged defects in the charge rose to the level of substantial error.

OCGA § 5-5-24 (a) provides that in civil cases, “no party may complain of the giving or the failure to give an instruction to the jury unless he objects thereto before the jury returns its verdict, stating distinctly the matter to which he objects and the grounds of his objection.” “To be considered sufficient under this code section, an objection must be ‘stated distinctly enough for a “reasonable” trial judge to understand its nature, enabling him to rule intelligently on the specific point.’ ” Walker v. Mitchell, 174 Ga. App. 738, 739 (2) (331 SE2d 82) (1985), quoting Christiansen v. Robertson, 237 Ga. 711, 712 (229 SE2d 472) (1976).

The obvious purpose of this provision is to afford the trial court an opportunity to correct the charge which has been given, and to consider the grounds of an objection at a time before the jury has retired to consider its verdict and at a time when corrections can be made in the charge if upon such consideration the court deems a correction proper.

(Citation omitted.) McDowell v. Hartzog, 292 Ga. 300, 301 (736 SE2d 395) (2013).

Based on the same rationale, review of an objection to a jury charge on appeal is “limited strictly to the ground of objection stated . . . [at] trial.” (Citation and punctuation omitted.) Kent v. Henson, 174 Ga. App. 400, 403 (2) (330 SE2d 126) (1985). See Goodyear Tire & Rubber Co. v. Johnson, 120 Ga. App. 395, 397-398(3) (170 SE2d 869) (1969). Thus, in reviewing a jury charge pursuant to OCGA § 5-5-24 (a), we will not consider challenges to the charge on appeal that are different, from the objections that were raised in the court below. See Tucker Nursing Center v. Mosby, 303 Ga. App. 80, 87 (5) (692 SE2d 727) (2010); Georgia Ports Auth. v. Hutchinson, 209 Ga. App. 726, 729 (7) (434 SE2d 791) (1993); Shennett v. Piggly Wiggly Southern, 197 Ga. App. 502, 505 (399 SE2d 476) (1990) (on motion for rehearing); Walker v. Mitchell, 174 Ga. App. 738, 738 (2) (331 SE2d 82) (1985).

Here, the plaintiffs did not object to the trial court’s charge on the sudden emergency defense on the ground that the defense was preempted by federal law or on the ground that the charge as given was an incomplete statement of the law because it omitted a portion of the pattern jury charge. Rather, the plaintiffs objected to the charge solely on the grounds that the evidence did not support a charge on sudden emergency and that the charge granted “immunity” to Norfolk Southern. Because the trial court was never afforded an opportunity to rule on the specific objections now raised by the plaintiffs on appeal, the plaintiffs’ challenge to the charge on those grounds has been waived for purposes of appellate review under OCGA § 5-5-24 (a). See Tucker Nursing Center, 303 Ga. App. at 87 (5); Hutchinson, 209 Ga. App. at 729 (7); Shennett, 197 Ga. App. at 505; Walker, 174 Ga. App. at 738 (2).

Nevertheless, even if a challenge to a jury charge has been waived under OCGA § 5-5-24 (a), a trial court’s charge can constitute reversible error under the exception set forth in OCGA § 5-5-24 (c). Subsection (c) of the statute provides that “[njotwithstanding any other provision of... [OCGA § 5-5-24], 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.” Instances of reversal under subsection (c) are “very rare.” (Citations and punctuation omitted.) Waller v. Rymer, 293 Ga. App. 833, 836 (1) (668 SE2d 470) (2008). A charge constituting substantial error harmful as a matter of law “is one that is blatantly apparent and prejudicial to the extent that it raises the question of whether the losing party has, to some extent at least, been deprived of a fair trial because of it, or a gross injustice is about to result or has resulted directly attributable to the alleged errors.” (Citation and punctuation omitted.) Shilliday v. Dunaway, 220 Ga. App. 406, 411 (8) (469 SE2d 485) (1996).

Even assuming arguendo that there was error in the giving of the sudden emergency charge, we conclude that it did not rise to the level of substantial error harmful as a matter of law. In addition to raising the defense of sudden emergency, Norfolk Southern presented evidence and argued to the jury that the motor vehicle accident resulting from the negligence of the drivers of the pickup truck and van proximately caused Lungaro’s death, rather than the actions of the locomotive engineer. Norfolk Southern also presented evidence and argued to the jury that any additional blowing of the horn by the engineer would not have changed the outcome, given that Lungaro was visibly dazed from the severe impact of the motor vehicle accident, and multiple other warning signals did not cause him to flee from the tracks. The jury thereafter returned a special verdict on the negligence per se and ordinary negligence claims expressly finding that the plaintiffs had not proven by a preponderance of the evidence that Norfolk Southern “violated 49 CFR § 222.21 and that such violation was a proximate cause of Tony Lungaro’s death,” and that the plaintiffs had not proven by a preponderance of the evidence that Norfolk Southern “was in any other way negligent and that such negligence was a proximate cause of the injuries to . . . [Lungaro].”

Decided June 28, 2016

Warshauer Law Group, Michael J. Warshauer, Trent S. Shuping, for appellants.

Under these circumstances, and particularly in light of the special verdict, we cannot say that the trial court’s charge on the sudden emergency defense was so erroneous and prejudicial as to deprive the plaintiffs of a fair trial or result in a gross miscarriage of justice. There is simply no indication from the record before us that the jury’s verdict in favor of Norfolk Southern was based on the sudden emergency defense rather than the competing defense theory of lack of proximate cause, and the plaintiffs therefore cannot show that they were harmed by any alleged error in the sudden emergency charge.

“Any charge which is not necessarily harmful to the complaining party is not such substantial error as to require reversal of the case, in the absence of a proper [objection] to the charge.” Moon v. Kimberly, 116 Ga. App. 74, 75 (2) (156 SE2d 414) (1967). Accordingly, any error in the sudden emergency charge was not of such magnitude as to constitute substantial error under OCGA § 5-5-24 (c). See Nelson v. Miller, 169 Ga. App. 403, 405 (312 SE2d 867) (1984) (any error in charging the jury on defense of accident did not rise to the level of substantial error, where “[t]he record disclose[d] no evidence that the jury’s verdict in favor of . . . [defendant] was based on the accident theory rather than a theory of comparative negligence”). See also Shilliday, 220 Ga. App. at 411 (8) (even if trial court erred in charging jury on assumption of risk and sudden emergency, it did not constitute substantial error).

3. The plaintiffs also challenge a separate, introductory portion of the trial court’s charge in which the court provided a general overview to the jury of the claims raised by the plaintiffs and the defenses raised by Norfolk Southern. According to the plaintiffs, this introductory portion of the charge also included an erroneous description of the sudden emergency defense asserted by Norfolk Southern, necessitating the grant of a new trial.

The plaintiffs did not object to the introductory portion of the charge in the trial court and thus have waived any challenge on appeal under OCGA § 5-5-24 (a). See Adams v. Wright, 162 Ga. App. 550, 552 (5) (293 SE2d 446) (1982). And the alleged defect in the charge did not rise to the level of substantial error under OCGA § 5-5-24 (c) for the same reasons discussed supra in Division 2. We therefore discern no basis for reversal.

Judgment affirmed.

Boggs and Rickman, JJ., concur.

Hall, Bloch, Garland & Meyer, Eileen Crowley, Daryl G. Clarida, Keith M. Hayasaka, for appellee.

       The plaintiffs are Santino Smith and Nicole Lungaro.

       49 CFR § 222.21 provides in relevant part:
      (a) Except as provided in this part, the locomotive horn on the lead locomotive of a train, lite locomotive consist, individual locomotive or lead cab car shall be sounded when such locomotive or lead cab car is approaching a public highway-rail grade crossing. Sounding of the locomotive horn with two long blasts, one short blast and one long blast shall be initiated at a location so as to be in accordance with paragraph (b) of this section and shall be repeated or prolonged until the locomotive occupies the crossing. This pattern may be varied as necessary where crossings are spaced closely together.
      (b)(1).'..
      (2) Except as provided in paragraphs (b)(3) and (d) of this section, or when the locomotive horn is defective and the locomotive is being moved for repair consistent with section 229.9 of this chapter, the locomotive horn shall begin to be sounded at least 15 seconds, but no more than 20 seconds, before the locomotive enters the crossing. It shall not constitute a violation of this section if, acting in good faith, a locomotive engineer begins sounding the locomotive horn not more than 25 seconds before the locomotive enters the crossing, if the locomotive engineer is unable to precisely estimate the time of arrival of the train at the crossing for whatever reason.

       The plaintiffs also sued the driver of the van that collided with the pickup truck, but they settled with him before trial.


author: Branch, Judge.

text:
    A15A2386.
    MORALES v. THE STATE.
    (788 SE2d 535)
   Branch, Judge.

On appeal from his conviction for rape, Christian Morales argues that the evidence did not support the jury’s verdict and that the trial court erred when it denied his motion to suppress his statement to police and when it admitted only the incriminating portions of that statement. We find no reversible error and affirm.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.” Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165) (2004) (citation omitted). We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979) (citation omitted).

So viewed, the record shows that on the evening of March 3,2013, the victim, a mother of three, went to a DeKalb County club to dance, fully clothed, with men for a dollar per song. After she had danced with a few men, Morales approached the victim as she was eating and began talking to her. Morales, who was accompanied by several others, wrote his name and phone number on the victim’s hand and asked her to call him. As the victim prepared to leave the club, Morales offered the victim a ride, which she refused, telling him that she was going to take a taxi. As the victim went down the steps to the club’s taxi stand, Morales insisted that she ride home with him. When the victim continued to refuse, Morales put his hand over her mouth and told her to be quiet or something was going to happen to her.

Morales and another man, Elman Mendez, then forced the victim into the back seat of a car driven by a third man, Ruperto Mencho, who drove to a nearby park. A fourth man called Zurdo, who had been seated in the front seat of the car and was wearing a white shirt, took the victim out of the car, beat her, placed her on the grass, and told her that she was going to die. When it became clear that the victim was not going to lose consciousness, the man called the other men for help in taking the victim’s clothes off and holding her down on the ground. Zurdo forcibly penetrated the victim’s vagina with his penis while he held his hand over the victim’s mouth. Zurdo then forced his penis into the victim’s mouth, during and after which Mencho and Morales also had forcible intercourse with the victim. The victim’s cell phone, money, and keys were taken during the attack. Morales later confessed to being present throughout the attack, to having intercourse with the victim, and to ejaculating inside her a “little.”

As Mendez also attempted to rape the victim, the three other men heard sirens and fled. When Mendez apologized to the victim, the victim responded that if he stayed with her, she would not tell the police anything about the incident. When Mendez agreed, the victim took him to a house nearby, telling him that her aunt lived there. No one answered the door at that house, however. At the second house, a woman opened the door, but she began to scream for the police when the victim told her that she had been raped. Although no one responded at the third house, two police cars soon arrived on the street, and the victim, who was found walking with Mendez, mouthed the words “Help me” to one of the police officers. After she had been separated from Mendez, the victim told the officers that she had been attacked by four men, including Mendez. On the basis of information gained from Mendez the following day, police arrested Mencho and Morales. Zurdo was never apprehended.

At the hospital to which the victim was taken by police, an examination showed that the victim, who was crying, dirty, and disheveled, had suffered numerous external injuries, including scratches on her face and bruises on her neck, inner thighs, and genitals, as well as injuries to her cervix. Two unarmed detectives were present at an interview with Morales, who was not restrained. One of the detectives, who spoke Spanish, read a Miranda warning printed in Spanish to Morales and obtained Morales’s initials and signature on that warning. The detective then interviewed Morales in Spanish. During thefirstpart ofthe 52-minute interview, all ofwhich was transcribed, Morales admitted that the other men had told him that they “were going to rape” the victim, but denied that he had done so. Toward the end of the interrogation, however, Morales admitted that he had intercourse with the victim and had ejaculated a “little” into her body In the course of the interview, the detective urged Morales to “tell the judge” “sincerely” that he had “made a mistake” and to write the words “Forgive me for everything” on his recorded statement.

Mencho, Morales, and Mendez were charged with rape and kidnapping. Only Mencho’s DNA was detected in a swab taken from the victim’s vagina. Mencho pled guilty to rape, and Mendez to aggravated assault with intent to rape. After a hearing, Morales’s motion to suppress his statement on the ground that it was not voluntarily given was denied. After a trial at which Morales did not testify, a jury acquitted him of kidnapping but found him guilty of rape. Morales was convicted and sentenced to life in prison. His motion for new trial was denied.

1. Although Morales challenges the sufficiency of the evidence against him, that evidence, including his confession to having intercourse with the victim after his confederates had beaten and raped her, authorized the jury to conclude that Morales had sexual intercourse with the victim forcibly and against her will and was therefore guilty of rape. See OCGA § 16-6-1 (a) (1) (defining rape); McKenzie v. State, 187 Ga. App. 840, 842 (1) (371 SE2d 869) (1988) (affirming co-defendants’ convictions for rape when victim had cervical abrasions consistent with forcible sex); Jackson, supra.

2. Morales argues that the trial court erred in denying his motion to suppress his statement because (a) his Miranda rights were not waived knowingly and intelligently and (b) his statement to police was not freely and voluntarily given. We disagree.

On appellate review of “a trial court’s grant or denial of a motion to suppress, the trial court’s findings on disputed facts will be upheld unless clearly erroneous, and its application of the law to undisputed facts is subject to de novo review.” Barrett v. State, 289 Ga. 197, 200 (1) (709 SE2d 816) (2011) (citation omitted). “[Wjhether a defendant lacks the capacity to understand and waive such rights due to a mental deficiency or illiteracy is a question of fact for the trial court to determine.” Id. at 199. “The admissibility of a defendant’s statements is determined based on the totality of the circumstances.” Drake v. State, 296 Ga. 286, 288 (2) (766 SE2d 447) (2014) (citation omitted).

(a) The record shows that at the time of his interview, Morales was 18 years old, had been in the United States for four months, and had finished the sixth grade in Guatemala. The copy of the Miran da warnings that Morales initialed and signed was in Spanish, and was read to Morales in Spanish, and the transcript of the interview shows that when Morales responded to questions as to whether he understood his Miranda rights, he responded, “Hmm” and nodded his head, at which point the detective told him that he was required to respond affirmatively by saying, ‘Tes,” which Morales did. This trial court did not clearly err when it concluded that, under the totality of the circumstances, Morales understood his Miranda rights and knowingly and voluntarily, without coercion, waived those rights. Barrett, 289 Ga. at 200 (trial court’s factual finding that defendant did not suffer from cognitive impairment sufficient to show that he did not have the capacity to understand and knowingly waive Miranda rights was not clearly erroneous).

(b) OCGA § 24-8-824 provides: “To make a confession admissible, it shall have been made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury”

The promise of a benefit that will render a confession involuntary . . . must relate to the charge or sentence facing the suspect. Generally, the “hope of benefit” to which the statute refers has been construed as a hope of lighter punishment.

Foster v. State, 283 Ga. 484, 485-486 (2) (660 SE2d 521) (2008) (citations and punctuation omitted). Specifically, neither a police officer’s nor a family member’s exhortation that a defendant tell the truth or ask for forgiveness constitutes an impermissible hope of benefit. Lee v. State, 270 Ga. 798, 800 (2) (514 SE2d 1) (1999) (officer’s advice that a defendant should “help [him] self out” was merely an encouragement to tell the truth, which did not amount to a hope of benefit under former OCGA § 24-3-50); see also Duke v. State, 268 Ga. 425, 426 (2) (489 SE2d 811) (1997); Davenport v. State, 277 Ga. App. 758, 759 (627 SE2d 133) (2006) (victim’s mother’s promise that if the defendant “confess[ed] right away,” the family would ask the judge “for some amount of mercy,” did not amount to any hope of benefit).

Here, this officer’s statements that Morales should “tell the judge” “sincerely” that Morales had “made a mistake” and write the words “Forgive me for everything” on his recorded statement were mere exhortations that Morales should tell the truth. Because “no ‘hope of benefit’ springs from such an admonishment,” Edenfield v. State, 293 Ga. 370, 375 (2) (744 SE2d 738) (2013), this trial court did not err when it concluded that Morales’s confession was voluntary Id.; see also Drake, 286 Ga. at 290-291 (3) (affirming trial court’s determination that officers’ pleas that defendant should tell the truth, their exaggerations of the strength of incriminating evidence, their falsehood that the victim had survived the shooting, and their insistence that they wanted to “help” did not, under the totality of the circumstances, make that defendant’s statement involuntary); Johnson v. State, 295 Ga. 421, 425 (2) (761 SE2d 13) (2014) (officer’s suggestion that defendant would be “well served by offering his version of events as a means of justifying or mitigating his role in the assaults” at issue did not render that defendant’s statement involuntary) (citations omitted).

3. Morales also argues that in light of the admission of the incriminating portions of his statement into evidence, the trial court should have also admitted the earlier portions of that statement under the “rule of completeness” codified at OCGA §§ 24-1-106 and 24-8-822, and therefore erred when it granted the State’s motion in limine to exclude those earlier portions. The State responds that because the earlier portions of the statement are self-serving declarations, they are not admissible as admissions against interest and remain inadmissible hearsay. We agree that Morales’s entire statement should have been admitted under the rule of completeness, but conclude that the error was harmless.

(a) We review a trial court’s ruling on a motion in limine for an abuse of discretion. Hankla v. Jackson , 305 Ga. App. 391, 392 (1) (699 SE2d 610) (2010). However,

[b]y its very nature, the grant of a motion in limine excluding evidence suggests that there is no circumstance under which the evidence under scrutiny is likely to be admissible at trial. In light of that absolute, the grant of a motion in limine excluding evidence is a judicial power which must be exercised with great care.

Andrews v. Wilbanks, 265 Ga. 555, 556 (458 SE2d 817) (1995) (citation omitted).

The record shows that the State filed a motion in limine to exclude the “exculpatory and neutral portions” of Morales’s statement in which he denied raping the victim on the ground that self-serving declarations of a defendant are inadmissible hearsay The trial court granted the motion such that Morales was barred from cross-examining the detective as to all except the inculpatory sections of Morales’s statement unless Morales decided to testify in his own defense. At trial, and after consultation with counsel, Morales decided not to take the stand, with the result that the detective testified only on direct examination as to Morales’s admissions that he had sex with the victim and ejaculated inside her a “little.”

A party’s own admission, offered by an opponent, is not hearsay and is always admissible. OCGA § 24-8-801 (d) (2) (A). However, a self-serving declaration, such as a statement of one’s innocence, remains “inadmissible hearsay unless the declarant testifies and is subject to cross-examination.” Parker v. State, 276 Ga. 598 (2) (581 SE2d 7) (2003) (citation omitted); see also OCGA § 24-8-802 (2014) (“Hearsay shall not be admissible except as provided by” other provisions of the Evidence Code).

On appeal, the State repeats that under these general principles, the exculpatory portions of Morales’s statement remain inadmissible hearsay. But such a result would ignore Georgia’s longstanding “rule of completeness,” now codified as OCGA § 24-8-822 (formerly OCGA § 24-3-38), which provides that “[w]hen an admission is given in evidence by one party, it shall be the right of the other party to have the whole admission and all the conversation connected therewith admitted into evidence.” (Emphasis supplied.) OCGA § 24-1-106, the counterpart of Federal Rule of Evidence 106, likewise provides:

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which, in fairness, should be considered contemporaneously with the writing or recorded statement.

As the Supreme Court of Georgia has recently noted, the rule of completeness

prevents litigants from misleading the jury by presenting portions of prior statements taken out of context and is often “essential in order to arrive at the true drift, intent and meaning of what was said on the previous occasion.” Smalls v. State, 105 Ga. 669, 671 (31 SE 571) (1898). Thus, “[i]t is the universal rule, in both civil and criminal cases, that, if part of a conversation is introduced, all that is said in the same conversation which is relevant to the issue should be admitted.” West v. State, 200 Ga. 566, 569 (37 SE2d 799) (1946).

Westbrook v. State, 291 Ga. 60, 62 (2) (727 SE2d 473) (2012) (emphasis supplied); see also Fitzgerald v. State, 201 Ga. App. 361, 363 (2) (411 SE2d 102) (1991).

Further, the Eleventh Circuit has recently held that a trial court violated the rule of completeness and abused its discretion when it excluded only the exculpatory portions of a defendant’s custodial statement concerning the cocaine found in his bag soon after he disembarked from an airplane. United States v. Pacquette, 557 Fed. Appx. 933, 936-937 (II) (11th Cir. 2014). The defendant had initially claimed ownership of everything in the bag, but denied knowledge of the cocaine once that contraband was found in the same bag. Id. at 934-935. The Eleventh Circuit concluded that the defendant’s entire statement, including his denial, was “relevant to the primary issue in the case” — his “knowledge” of the cocaine found in the bag — and was also “relevant to the admitted portions of his statement” such that the trial court abused its discretion in excluding the exculpatory portions of the statement and in barring cross-examination as to the inculpa-tory portions of the same. Id. at 937 (II) (B).

Here, as in Pacquette, the State proffered only a portion of Morales’s single custodial interrogation (which lasted 52 minutes), and successfully argued for the exclusion of all other parts of that interrogation. But the earlier portions of Morales’s statement remained “relevant” to the central issue before this jury: whether he committed the crime of rape. See Westbrook, 291 Ga. at 62 (2) (“if part of a conversation is introduced, all that is said in the same conversation which is relevant to the issue should be admitted”) (citation and punctuation omitted; emphasis supplied). The earlier parts of the interrogation were also relevant to the subject of the voluntariness of his confession, which remained for the jury’s consideration even after the denial of his motion to suppress his statement. See Spence v. State, 252 Ga. 338, 343 (3) (313 SE2d 475) (1984) (“the ultimate question of the voluntary character of [a defendant’s] statement and its truthfulness is for the jury, and they are not bound by the trial court’s earlier determination on this issue”) (citation omitted). Because the earlier portions of Morales’s transcribed statement were relevant as to both whether he committed the rape and whether the statement was voluntary, the trial court violated the rule of completeness and abused its discretion when it excluded those earlier portions of that statement. See Westbrook, 291 Ga. at 62 (2) (affirming admission of a witness’s entire statement, including its inculpatory portions, when it was relevant to defendant’s self-defense claim); Pacquette, 557 Fed. Appx. at 937 (II) (B) (reversing the exclusion of portions of defendant’s custodial statement as a violation of the rule of completeness and an abuse of discretion).

(b) Even if the trial court erred in excluding most of Morales’s statement, however, we must also consider whether that error was harmless — that is, whether it is highly probable that the error did not contribute to the jury’s verdict and to the trial court’s entry of judgment on that verdict. Westbrook, 291 Ga. at 63 (2); see also Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976) (adopting the “highly probable” test for harmless error).

Morales points out that for most of the duration of his custodial statement, he denied that he had intercourse with the victim. Morales also points to his acquittal on the kidnapping charge as support for his contention that the evidence against him was short of overwhelming. The State’s evidence authorized the jury to conclude, however, that Morales approached the victim at the club, wrote his name and phone number on her hand, put his hand over her mouth and threatened her, had intercourse with her, ejaculated inside her, and fled the scene even before the approach of police. Morales also fails to note that the admission of the earlier portions of his statement would have led the jury to consider that by his own account, he remained at the scene after the three other men told him that they were “going to rape” the victim and after Zurdo and Mencho actually did so — in short, that, as he himself put it, he “just stayed there watching.” Further, Morales never suggested that he took any action to help the victim as she was raped by Zurdo and Mencho. The erroneous exclusion of this highly inculpatory evidence makes it impossible for Morales to show that he was harmed by the trial court’s error in excluding the arguably exculpatory sections of his statement.

Taken together, the admitted and improperly excluded evidence showed overwhelmingly that Morales was guilty of rape, whether principally or as a party to the crime, rendering it highly probable that any error in failing to admit the earlier portions of his statement did not contribute to the jury’s verdict. See Cole v. State, 279 Ga. App. 219, 221 (1), 225 (8) (a) (630 SE2d 817) (2006) (erroneous admission of similar transaction evidence was harmless in light of overwhelming evidence that defendant got the victim drunk, held her in a car, and raised no objection while a co-defendant raped her such that defendant was guilty as a party to the crime of rape); Westbrook, 291 Ga. at 63 (2) (any possible error in admitting hearsay evidence of defendant’s guilt under the rule of completeness was harmless in light of other, overwhelming evidence); Jackson v. State, 262 Ga. App. 451, 454 (3) (585 SE2d 745) (2003) (failure to admit defendant’s entire statement under OCGA § 24-3-38 was harmless where excluded evidence was cumulative of other evidence admitted at trial), overruled on other grounds, Carter v. State, 266 Ga. App. 691, 693 (2) (598 SE2d 76) (2004), but cited with approval in Mitchell v. State, 293 Ga. 1, 2-3 (2) (742 SE2d 454) (2013). Similarly, in light of our holding in Division 2, and having reviewed the improperly excluded portions of Morales’s statement, we cannot say that a jury considering the entire statement would likely have concluded that it was not voluntarily made. See Colton v. State, 296 Ga. 172, 180 (2) (766 SE2d 38) (2014) (any error in admitting evidence of defendant’s non-custodial statement was “harmless in light of other properly admitted evidence at trial”).

Decided June 29, 2016.

C. Christopher Flinn, for appellant.

Robert D. James, Jr., District Attorney, Deborah D. Wellborn, Assistant District Attorney, for appellee.

For all these reasons, the trial court did not err when it denied Morales’s motion for new trial.

Judgment affirmed.

Andrews, P. J., and Miller, P. J., concur.

       OCGA § 24-8-801 (d) provides in relevant part: “(2) Admissions by party-opponent. Admissions shall not be excluded by the hearsay rule. An admission is a statement offered against a party which is: (A) The party’s own statement, in either an individual or representative capacity[.]”

       Federal Rule 106 provides: “If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part - or any other writing or recorded statement - that in fairness ought to be considered at the same time.” OCGA § 24-1-106 “mirror[s]” Rule 106 of the Federal Rules of Evidence, and the Supreme Court of Georgia has held that “where the new Georgia rules mirror their federal counterparts, it is clear that the General Assembly intended for Georgia courts to look to the federal rules and how federal appellate courts have interpreted those rules for guidance.” Parker v. State, 296 Ga. 586, 592 (3) (a) (769 SE2d 329) (2015).

       The State’s citations to Williamson v. United States, 512 U. S. 594 (114 SCt 2431, 129 LE2d 476) (1994), and United States v. Allen, 416 Fed. Appx. 875 (11th Cir. 2011), are unavailing. Williamson does not mention the rule of completeness, let alone rule on it. See Williamson, 512 U. S. at 600-601 (II) (A). The statements at issue in Allen were merely those overheard by the arresting officers, and the government did not seek to introduce any transcribed statement. Allen, 416 Fed. Appx. at 883-884 (VIII) (when “[t]he government did not introduce any written or recorded statement,” the defendant could not obtain admission of his exculpatory written statement under the rule of completeness).