author: Mikell, Presiding Judge.

text:
    A12A0430.
    L-3 COMMUNICATIONS TITAN CORPORATION et al. v. PATRICK.
    (729 SE2d 505)
   Mikell, Presiding Judge.

In this renewal personal injury action, the trial court denied defendants’ motion for summary judgment, ruling that the plaintiff’s opinions were admissible as expert testimony under OCGA § 24-9-67.1 (b). The trial court issued a certificate of immediate review, and this Court granted defendants’ application for interlocutory appeal. We conclude that plaintiff’s expert testimony fails to meet the requirements of OCGA § 24-9-67.1 (b) and was therefore inadmissible. Absent that testimony, plaintiff has not shown any causal connection between defendants’ alleged negligence and the turnstile malfunction which resulted in plaintiff’s injuries. Therefore, the trial court erred in denying defendants’ motion for summary judgment. Accordingly, we reverse.

We review de novo the grant or denial of a motion for summary judgment, applying the following standard:

Summary judgment is appropriate when no genuine issues of material fact remain and the evidence, construed in the light most favorable to the nonmoving party, warrants judgment as a matter of law. A defendant may obtain summary judgment by showing that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case.

Properly construed, the record reflects that, while passing through one of the turnstiles at his workplace on September 6, 2001, David L. Patrick was injured when the turnstile reversed direction and one of its bars struck him in the head. He sued defendants L-3 Communications Titan Corporation, the party which had contracted to maintain the turnstiles, and two of its employees, Todd A. Manley and Roger G. Swift, whose duties included maintenance of the turnstiles. Patrick claimed that defendants’ negligent maintenance of the turnstile, specifically, defendants’ failure to lubricate the turnstile and its pawl mechanism properly, caused the turnstile’s backlash and his resulting injury.

In support of his claim that a lack of lubrication caused the turnstile to ricochet, Patrick submitted his own affidavit, giving his opinion as an expert in the mechanics of turnstiles and pawl assemblies that “lack of adequate and scheduled lubrication” of the offending turnstile caused the incident at issue here. Defendants moved for summary judgment, asserting that Patrick’s expert testimony should be disregarded because this testimony did not meet the standard for reliability set forth in OCGA § 24-9-67.1 (b). Following a Daubert hearing, the trial court ruled that expert testimony was necessary to explain to the average juror why an unlubricated turnstile, when forced to turn, would move in the opposite direction; that Patrick was qualified as a mechanic with expertise in turnstiles and pawl assemblies; and that Patrick’s lack-of-lubrication theory was admissible expert testimony to explain the turnstile’s movement in the opposite direction. Defendants’ motion for summary judgment was denied, and this appeal followed.

1. Defendants contend that Patrick’s opinion of the cause of the incident at issue was inadmissible as expert testimony, on the ground that his testimony failed to meet the reliability requirements of OCGA § 24-9-67.1 (b). We agree.

We recognize that “[t]he issue of the admissibility or exclusion of expert testimony rests in the broad discretion of the court, and consequently, the trial court’s ruling thereon cannot be reversed absent an abuse of discretion.” We also note that defendants were unable to direct us to an apposite case in which an appellate court in Georgia has reversed a trial court’s ruling on the admissibility of expert testimony under OCGA § 24-9-67.1 (b), nor has our research found such a case. Nonetheless, it is possible for a trial court to abuse its discretion in ruling on the admissibility of expert testimony, and we find an abuse of discretion in the case before us.

OCGA § 24-9-67.1 (b), which governs the admissibility of opinion testimony by qualified experts in civil cases, provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact in any cause of action to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise, if:
(1) The testimony is based upon sufficient facts or data...;
(2) The testimony is the product of reliable principles and methods', and
(3) The witness has applied the principles and methods reliably to the facts of the case.

“In determining the admissibility of expert testimony, the trial court acts as a gatekeeper, assessing both the witnesses] qualifications to testify in a particular area of expertise and the relevancy and reliability of the proffered testimony.” As noted above, however, the trial court must act within its discretion in ruling on the admissibility of expert testimony. Moreover, the burden of establishing the reliability of the expert’s opinion falls on the proponent, in this case,

Patrick, who is required to show that his proffered expert testimony is “based upon sufficient facts or data” and is “the product of reliable principles and methods,” which he “applied ... reliably to the facts of the case.” As our Supreme Court has explained,

[Reliability is examined through consideration of many factors, including whether a theory or technique can be tested, whether it has been subjected to peer review and publication, the known or potential rate of error for the theory or technique, the general degree of acceptance in the relevant scientific or professional community, and the expert’s range of experience and training.

Applying these principles to the instant case, we conclude that the trial court abused its discretion in ruling Patrick’s testimony admissible. In his affidavit, Patrick attributed the turnstile’s ricochet to a lack of proper lubrication:

When the turnstile and its pawl assembly are not adequately lubricated and are set to spin in only one direction, the turnstile will not spin freely but will require more force to turn it than is usually required. At a certain point the force exerted by a person trying to enter through the turnstile becomes sufficient to overcome the friction created by the unlubricated pole. This suddenly released force causes the pole to spin with much greater force than is now necessary and the pole spins quickly to its stopping point. At that point a properly lubricated and functioning pawl should catch the pole and prevent the pole and spoke from returning in the opposition [sic] direction. However, where the pawl is not operating properly, the force of the impact of the pole on its intended stopping point causes an equal and forceful reaction in the opposite direction. This causes the pole and its spokes to backlash against the person who initially furnished the force. The less lubrication there has been, the more force the person using the turnstile must exert to cause it to spin. The more force the person uses, the greater the force of the backlash.

Patrick opined, based on his years of experience as a mechanic, that the turnstile “failed” on the day in question “because of lack of adequate and scheduled lubrication.” He described the incident in which he was injured as follows: inadequate lubrication caused the turnstile to be difficult to turn; when he used enough force to start it to turn, it “suddenly broke free of the point binding it and spun quickly to its stopping point”; the pawl assembly, due to lack of lubrication, failed to prevent the turnstile from backlashing; and the turnstile “then returned towards [him] with all the force that [he] exerted to get it to move in the first place,” striking him in the face and causing his injury.

At the hearing, however, Patrick could not testify as to whether the turnstile reached its intended “stopping point”:

Q: Your testimony today is that [the turnstile] did not go to its intended stopping point?
A: Sir, I can’t read the machine’s mind. I don’t think it has a mind of where it’s going. It’s a mechanical device. It either functions properly or it doesn’t.

Patrick also conceded at the hearing that rather than spinning quickly, as described in his affidavit, the turnstile was hard to push; that it “never turned freely”; and that “it required a steady amount of force through its cycle to make it move forward.” Nonetheless, he testified that the turnstile, upon reaching its stopping point, then “moved fast enough to come back and hit [him] and [he] couldn’t avoid it.” But he was unable to explain why the turnstile, if difficult to move in the intended direction due to lack of lubrication, would not be slow to move in the reverse direction as well:

Q: What I’m trying to understand is why would [the turnstile] spin back toward you with so much force that you can’t control it, you can’t stop it if the same friction that made it so hard for you to push it to begin with is still working against it moving? That same friction would still be slowing it down as it’s coming toward you.
A: That would be fair that it would be slowing down, but I did have to push it considerable [sic] to get it moving and I’m sure it came back just as hard as I was pushing it.

When asked about the speed of the backlash, Patrick admitted that his opinions were not based on the laws of physics:

Q:... Your testimony is that it is possible the bars could move back toward you faster than you were pushing them if there — even if there’s no other force moving them other than the force you applied it’s possible that [the turnstile] moved back faster.
A: I would say yes, sir, it was possible.
Q: That’s based on your understanding of physics, is that possible?
A: That’s not based on my understanding of any physics, sir.
Q: All right. What is it based on?
A: That’s based on the possibility that it could occur, that it’s a mechanical device. It was certainly hard to push forward. I didn’t try pushing it backwards. I don’t know how hard it was to push backwards. The pawl assembly is engaged when it’s moving forward and that could have caused additional force to be required to push it forward. I didn’t test it going backwards.

In contrast, however, Patrick later explained that the pawl was not “engaged” on the forward journey: “[t]he pawl assembly allows [the turnstile] to move forward in that clicking fashion. It just keeps it from coming backwards. That’s the purpose of that pawl.” And even though Patrick did not “try pushing it backwards,” he testified that the turnstile “came back just as hard” as he had been pushing it in the intended direction. In other words, Patrick asserted that he himself had to supply the force to move the allegedly stiff, unlubricated turnstile forward; but that after he stopped supplying that force, the turnstile reversed direction and returned toward him with the same or, possibly, greater speed.

Patrick’s testimony at the hearing thus shows clearly that his lack-of-lubrication theory did not explain why the turnstile, upon reaching a stopping point, suddenly ricocheted with such speed that he could not avoid it. We note that Patrick himself never examined the workings of the particular turnstile which injured him, nor did he examine any of the similar turnstiles nearby. Further, although Patrick contends that his theory is supported by the testimony of other witnesses who experienced difficulty in operating the turnstiles in question, their testimony went only to the fact that the turnstiles were hard to turn and sometimes stopped altogether; it did not provide any support for the proposition that a badly-lubricated turnstile would stop and then ricochet in the manner described by Patrick. Another co-worker testified that the turnstiles were difficult to push but became easier to push after he oiled them. Even if this testimony can be seen as “tests” which showed that the turnstiles suffered from lack of lubrication, it provides no support for Patrick’s theory that the lack of lubrication caused the turnstiles to backlash “quickly.”

We believe that our Supreme Court’s decision in HNTB II is apposite to the case before us. Pretermitting the issue of whether Patrick was qualified to testify as an engineering expert, he has “failed to provide any indication of the principles and methods [he] employed ... in reaching his conclusions, rendering them unreliable as defined by OCGA § 24-9-67.1 (b) (2) and (3) because they cannot be validated against accepted standards, tested or reviewed.” Although he repeatedly stated that it was “common knowledge,” Patrick failed to cite any treatise or authority supporting his belief that an unlubricated turnstile and pawl mechanism would backlash so quickly that it could not be avoided. As he admitted at the hearing, his hypothesis was also unsupported by any testing indicating that similar accidents would occur under similar unlubricated conditions. “[Patrick’s] conclusions, based solely on his own assertions, were unsupported by either the Daubert factors or any other reasonable reliability criteria.” In this case, we conclude that the trial court abused its discretion in admitting “opinion evidence which is connected to existing data only by the ipse dixit of the expert.”

Decided June 25, 2012

Reconsideration denied July 27, 2012

Brown, Readdick, Bumgartner, Carter, Strickland & Watkins, Terry L. Readdick, Steven G. Blackerby, for appellants.

Killian & Boyd, Robert P. Killian, for appellee.

2. In light of our conclusion in Division 1 above, we do not address defendants’ remaining enumeration of error.

Judgment reversed.

Miller and Blackwell, JJ., concur.

        McCullough v. Reyes, 287 Ga. App. 483, 484 (651 SE2d 810) (2007).

       (Punctuation and footnote omitted.) Butler v. Union Carbide Corp., 310 Ga. App. 21, 30 (2) (712 SE2d 537) (2011), citing Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). See OCGA § 9-11-56 (c).

       This lawsuit was a renewal of an earlier lawsuit, which Patrick dismissed without prejudice. In that lawsuit, Patrick asserted that the turnstile malfunctioned because a pawl •— a device intended to prevent reverse motion of the turnstile — had been removed or modified. In the renewal action, Patrick asserted that the pawl malfunctioned due to defendants’ negligent failure to lubricate the turnstile adequately.

        Daubert v. Merrell Dow Pharmaceuticals, 509 U. S. 579 (113 SC 2786, 125 LE2d 469) (1993). See OCGA § 24-9-67.1 (d) (“Upon motion of a party, the court may hold a pretrial hearing to determine whether the witness qualifies as an expert and whether the expert’s testimony satisfies the requirements of subsections (a) and (b) of this Code section”).

         (Footnote omitted.) Cotten v. Phillips, 280 Ga. App. 280, 283 (633 SE2d 655) (2006). Accord Butler, supra at 25 (1).

       The cases cited by defendants in their letter brief following oral argument in this case did not involve application of OCGA § 24-9-67.1 (b). Bravo v. State, 304 Ga. App. 243 (696 SE2d 79) (2010) (criminal case to which OCGA § 24-9-67.1 does not apply); Hankla v. Jackson, 305 Ga. App. 391, 395-396 (2) (a) (699 SE2d 610) (2010) (medical malpractice case involving application of special rules for such cases found in subsection (c) of OCGA § 24-9-67.1); Smith v. Harris, 294 Ga. App. 333, 335-337 (1) (670 SE2d 136) (2008) (same).

       In Hamilton-King v. HNTB Ga., 296 Ga. App. 864, 866 (1) (676 SE2d 287) (2009), this Court reversed as an abuse of discretion a trial court’s exclusion of expert testimony proffered by plaintiffs; however, our Supreme Court reversed this decision in HNTB Ga. v. Hamilton-King ("HNTB II"), 287 Ga. 641 (697 SE2d 770) (2010).

       OCGA § 24-9-67.1 (a).

       (Emphasis supplied.)

       (Citations omitted; emphasis supplied.) HNTB II, supra at 642 (1).

        Butler, supra at 26 (1).

       OCGA § 24-9-67.1 (b) (l)-(3).

       (Citation omitted.) HNTB II, supra, citing Kumho Tire Co. v. Carmichael, 526 U. S. 137, 141 (119 SC 1167, 143 LE2d 238) (1999) (in exercisingits gatekeeping obligation, trial court may apply Daubert factors to determine reliability of testimony of engineers and other nonscientist experts); and Daubert, supra at 593-594 (II) (C) (listing pertinent factors for consideration in determining reliability of expert testimony).

       (Emphasis supplied.)

       (Emphasis supplied.)

       (Emphasis supplied.)

       (Emphasis supplied.)

       (Emphasis supplied.)

       At the hearing, Patrick testified that the Navy, which owned the turnstiles in question, did not allow examination or testing of the turnstiles; he also noted, however, that he “didn’t believe testing would have had any bearing on my decision.”

       Nor did Patrick’s demonstrative evidence, the small “rotator assembly” with which Patrick demonstrated the workings of a pawl for the trial court, address this problem, because he did not attempt to use this mechanical device to show how lack of lubrication would cause “backlash.”

       Supra.

       (Punctuation and footnote omitted.) Id. at 643 (1).

       See id.

       See id. at 644 (1). We recognize that Georgia law does not require evidence of testing or error rates in every case, but such evidence could provide some foundation for Patrick’s opinion testimony. See id. As noted above, such evidence is absent here.

       Id., citing Mason v. Home Depot U. S. A., 283 Ga. 271, 279 (5) (658 SE2d 603) (2008) (trial court properly excluded expert’s testimony as not the product of reliable principles and methods, because it was based solely on personal experience and opinion unsupported by scientific journals or reliable techniques).

       (Punctuation omitted.) Id., citing Gen. Elec. Co. v. Joiner, 522 U. S. 136, 146 (III) (118 SC 512, 139 LE2d 508) (1997).


source: Caselaw Access Project

author: Barnes, Presiding Judge.

license: Public Domain

text:
    A12A0480.
    PATEL v. EPPS.
    (731 SE2d 62)
   Barnes, Presiding Judge.

Because Mrunalini Patel appeals from an order of the superior court reviewing the decision of a special master appointed under the Auditors Statute, OCGA § 9-7-1 etseq., she was required to follow the discretionary appeal procedure mandated by OCGA § 5-6-35 (a) (1). Rather than follow that procedure, Patel filed a direct appeal under OCGA § 5-6-34. Consequently, we must dismiss this appeal for lack of jurisdiction.

The record shows that Patel and Thomas Epps own adjoining residential lots in an Atlanta subdivision. When Patel began constructing a concrete wall, a dispute arose between the parties over the location of the boundary line between their lots. Unable to resolve their dispute, Epps filed suit against Patel in the Superior Court of Fulton County, alleging that the wall crossed the boundary line and encroached onto his property.

With the consent of the parties, the superior court appointed a special master under the Auditors Statute, OCGA § 9-7-1 et seq., “to resolve all issues, factual and legal, presented in the above-captioned matter relating to the boundary lines separating the properties owned by the parties.” After inspecting the area of the disputed boundary line with the parties’ surveyor witnesses and conducting an evidentiary hearing, the special master issued her report containing findings of fact and conclusions of law in which she found in favor of Epps regarding the location of the boundary line.

Pursuant to OCGA § 9-7-13, the superior court subsequently recommitted the report to the special master to evaluate whether to modify it. A second hearing was conducted by the special master, after which she entered a supplemental report that incorporated the findings of fact contained in the first report and included additional conclusions of law.

The superior court thereafter entered its “Final Order and Judgment” in which the court reviewed and adopted the original and supplemental reports of the special master as the order of the court. Patel filed a direct appeal from the superior court’s order.

“Although not raised by the parties, we first must address whether a direct appeal was authorized in this case.” Martinez v. Martinez, 301 Ga. App. 330 (1) (687 SE2d 610) (2009). See Forest City Gun Club v. Chatham County, 280 Ga. App. 219, 220 (633 SE2d 623) (2006) (“This [CJourt has a duty to inquire into its jurisdiction to entertain each appeal and review the alleged errors of the trial court.”) (footnote omitted). OCGA § 5-6-35 (a) (1) provides that an application for a discretionary appeal is required for appeals “from decisions of the superior courts reviewing decisions of. . . auditors.” Construing this provision, our Supreme Court has held that “the judgment in a case in which the superior court has reviewed an auditor’s final report which contains findings of fact and conclusions of law [is] subject to the discretionary appeal procedure.” (Citation, punctuation and emphasis omitted.) McCaughey v. Murphy, 267 Ga. 64, 65 (1) (473 SE2d 762) (1996). See Ravan v. Stephens, 248 Ga. 289, 289-290 (282 SE2d 312) (1981); Citizens & Southern Nat. Bank v. Rayle, 246 Ga. 727, 731 (273 SE2d 139) (1980).

Here, the superior court expressly stated that it was referring issues relating to the boundary dispute to a special master in accordance with the Auditors Statute, OCGA § 9-7-1 et seq., and pointed out that its use of the term “special master” was synonymous with the term “auditor.” See OCGA § 9-7-1. The special master thereafter entered reports containing findings of fact and conclusions of law which the superior court reviewed and adopted as its own. Accordingly, under OCGA § 5-6-35 (a) (1) and the Supreme Court precedent construing it, Patel was required to follow the discretionary appeal procedure in this case. See McCaughey, 267 Ga. at 65 (1); Ravan, 248 Ga. at 289-290; Citizens & Southern Nat. Bank, 246 Ga. at 731. Because Patel failed to follow that procedure, we have no jurisdiction over this appeal, which must be dismissed.

Appeal dismissed.

Adams and McFadden, JJ., concur.

On Motion for Reconsideration.

Patel has filed a motion for reconsideration of our decision. Citing to McCaughey v. Murphy, 267 Ga. 64 (473 SE2d 762) (1996), and Sorrentino v. Boston Mut. Life Ins. Co., 206 Ga. App. 771, 772 (1) (426 SE2d 594) (1992), Patel argues that the superior court’s order was directly appealable because the report and supplemental report submitted to the court by the special master appointed under the Auditors Statute did not resolve all of the underlying factual and legal issues in the case. But McCaughey and Sorrentino stand only for the proposition that a direct appeal is authorized when the auditor’s report fails to contain separate findings of fact and conclusions of law. Because the report and supplemental report submitted to the superior court in the present case contained separate findings of fact and conclusions of law, McCaughey and Sorrentino are inapposite.

Furthermore, it is clear from the superior court’s “Final Order and Judgment” adopting the original and supplemental reports of the special master that the superior court itself treated the reports as addressing and resolving all of the underlying factual and legal issues pertaining to the claims still pending in the case. Thus, Patel’s contention is really that the superior court erred in how it construed the special master’s reports, a contention that goes to the merits of the superior court’s ruling rather than to the threshold question of jurisdiction. See Horne v. Andrews, 264 Ga. App. 145, 147 (2) (589 SE2d 719) (2003) (“Jurisdiction either exists or does not exist without regard to the merits of the case.”) (punctuation and footnote omitted).

Patel also argues that the superior court’s order is directly appealable under OCGA § 5-6-34 (d) because the order went beyond simply reviewing and adopting the original and supplemental reports of the special master. The superior court’s order, when read in conjunction with the briefs filed by the parties in the court below, addressed and ruled on two interrelated issues: (1) whether to approve Patel’s exceptions filed pursuant to OCGA § 9-7-14 of the Auditors Statute and modify the special master’s reports, and (2) whether to grant Patel’s request to have her exceptions of fact to the special master’s reports triedbefore a jury pursuant to OCGA § 9-7-17 of the Auditors Statute. In its order, the superior court rejected Patel’s exceptions and instead adopted the special master’s reports as the order of the court. The superior court also denied Patel’s request to have the exceptions of fact tried before a jury, based upon the court’s finding that all nonequitable claims had been voluntarily abandoned by Epps.

Contrary to Patel’s suggestion, the superior court’s denial of Patel’s request to have the exceptions of fact tried before a jury does not render the court’s order directly appealable under OCGA § 5-6-34 (d).

[T]he underlying subject matter generally controls over the relief sought in determining the proper procedure to follow to appeal. A party should review the discretionary application statute to see if it covers the underlying subject matter of the appeal. If it does, then the party must file an application for appeal as provided under OCGA § 5-6-35. This approach fulfills the legislature’s intent to give appellate courts more discretion in managing their caseload. Otherwise, any party could avoid the discretionary review procedure by seeking relief, however inappropriate, that would trigger the right to a direct appeal.

(Footnote omitted.) Rebich v. Miles, 264 Ga. 467, 469 (448 SE2d 192) (1994). See Ferguson v. Composite State Bd. of Med. Examiners, 275 Ga. 255, 256-257 (1) (564 SE2d 715) (2002). Here, the underlying subject matter involved the superior court’s review of a decision by a special master appointed under the Auditors Statute for which an application for discretionary appeal was required under OCGA § 5-6-35 (a) (1). And Patel’s request for a jury trial was not independent of her challenge to the special master’s decision, given that her request was predicated on a provision of the Auditors Statute itself (OCGA § 9-7-17) and addressed the same exceptions of fact forming her challenge to the special master’s decision. Consequently, in light of the underlying subject matter, Patel was required to file an application in accordance with that statute irrespective of the superior court’s ruling on her request for a jury trial. See Ravan v. Stephens, 248 Ga. 289 (282 SE2d 312) (1981) (concluding that discretionary appeal was required in case where superior court reviewed and approved auditor’s report, but also issued a permanent injunction).

Decided May 31, 2012

Reconsideration denied July 27, 2012

Arnall, Golden & Gregory, Andrew B. Flake, for appellant.

Flynn & Gottlieb, Jon A. Gottlieb, for appellee.

This conclusion is supported by Citizen & Southern Nat. Bank v. Rayle, 246 Ga. 727, 728 (273 SE2d 139) (1980). In that case, our Supreme Court dismissed an appeal for failure to follow the discretionary appeal procedure, where the appellant was seeking to appeal a superior court order reviewing and approving an auditor’s report, although one of the enumerated errors was the superior court’s “denial of a jury trial.” The Supreme Court held that “[i]n accordance with the intended purpose” of the discretionary appeal statute, “all of the enumerated errors in [the] case [were] subject to the application” requirement imposed by that statute. Id. at 731. Rayle directly controls and is binding precedent supporting the dismissal of this appeal.

For these combined reasons, Patel has failed to show that we overlooked a material fact that would require a different result on appeal. Nor has Patel shown that we overlooked controlling authority or erroneously construed or misapplied any of the authorities cited in the original opinion. Therefore, Patel’s motion for reconsideration is denied. See Court of Appeals Rule 37 (e).

Motion for reconsideration denied.

       Patel appealed directly to the Supreme Court of Georgia, but the appeal was transferred to this Court for lack of Supreme Court jurisdiction.

       The discretionary appeal procedure required by OCGA § 5-6-35 (a) (1) does not apply where, in contrast to the present case, the special master is appointed pursuant to Uniform Superior Court Rule 46. See Standard Bldg. Co. v. Schofield Interior Contractors, 315 Ga. App. 516 (1) (726 SE2d 760) (2012); Alston & Bird LLP v. Mellon Ventures II, 307 Ga. App. 640, 642 (1) (706 SE2d 652) (2010).

       OCGA § 5-6-34 (d) provides in relevant part:
      Where an appeal is taken under any provision of subsection (a), (b), or (c) of [OCGA § 5-6-34], all judgments, rulings, or orders rendered in the case which are raised on appeal and which may affect the proceedings below shall be reviewed and determined, by the appellate court, without regard to the appealability of the judgment, ruling, or order standing alone and without regard to whether the judgment, ruling, or order appealed from was final or was appealable by some other express provision of law contained in this Code section, or elsewhere.


text:
    A12A0517.
    LEWIS v. THE STATE.
    (735 SE2d 1)
   Barnes, Presiding Judge.

A jury convicted Alphonzo Jamal Lewis of aggravated assault (family violence) for hitting the victim with his “hands, fists, and/or feet” and with battery (family violence) by striking her with a curtain rod. The trial court sentenced him as a recidivist to twenty years, to serve five years in prison followed by fifteen years on probation. On appeal, Lewis enumerates eleven errors, but argues six, involving the admission of similar transaction evidence, evidentiary rulings, and objections to the State’s closing arguments. For the reasons that follow, we affirm.

Viewing the evidence at trial in the light most favorable to the verdict, the evidence showed that Lewis lived with the victim and struck her repeatedly on June 28, 2009. The victim recanted at trial and testified that she had lied to the police when she told them Lewis had hit her because she was angry at him for not paying her cell phone bill, and that the bruises, scratches, and fractured rib she had then were not caused by Lewis.

The victim’s previous statements and testimony from the investigating officers and other witnesses established that Lewis came home drunk one night at 3:00 a.m. and accused the victim of seeing other men. The victim went to another bedroom, but Lewis kicked in the door, followed her into the bathroom, pulled down the shower rod and hit her with it, then dragged her into the hallway and threw her on top of her dog’s cage. He then dragged her into the living room and choked and kicked her. Later that day, the victim went to the hospital, accompanied by Lewis, and received medicine for a stomach ailment, but did not tell the health care workers about everything that was hurting. When the victim went to work two days later, her co-workers called her mother and the police because, as they told her, she was looking “[l]ike someone had beat [her] up or something.”

The victim’s mother testified that the victim was “crying and hysterical” and complained that her side and back were hurting. She had a mark on her back that looked like a footprint and scratches around her neck. She told a co-worker, the responding police officer, and a detective that Lewis had assaulted her and gave details of the beating. She went to the emergency room because her wrists and side were hurting, and was diagnosed with a cracked rib.

The State presented evidence of prior difficulties between Lewis and the victim. The victim’s brother testified that in May 2009, Lewis accused him of stealing money and said, “I should beat your sister in front of you.” Lewis shoved the victim, and her brother responded by hitting Lewis across the head. In his written statement to police, the brother said that Lewis then sprayed him with mace. The State also introduced evidence of two similar transactions, in which Lewis struck women with whom he had a relationship.

Lewis was indicted on four counts of aggravated assault, one count of aggravated battery, and one count of false imprisonment. The trial court directed verdicts of acquittal on the charges of aggravated battery, false imprisonment, and two of the aggravated assault charges, and the jury convicted Lewis of one count of aggravated assault and one count of battery as a lesser included offense of a second count of aggravated battery.

1. Lewis argues that the trial court erred in denying his motion for a directed verdict on Count 2, which charged him with aggravated assault with his hands, fists, or feet, arguing that the State submitted no evidence that these objects were likely to result in serious bodily injury when used offensively.

Aggravated assault has two essential elements: (1) that an assault, as defined by OCGA § 16-5-20, was committed on the victim, and (2) that it was aggravated by either (a) an intention to murder, rape, or rob, or (b) the use of a deadly weapon. OCGA § 16-5-21. Although hands and feet are not considered per se deadly weapons within the meaning of OCGA § 16-5-21 (a) (2), the jury may find them to be so depending on the circumstances surrounding their use, including the extent of the victim’s injuries. Under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence was sufficient to convict [Lewis] of aggravated assault.

(Citation omitted.) Dixon v. State, 268 Ga. 81, 82-83 (1) (485 SE2d 480) (1997).

2. Lewis argues that the trial court erred in denying his motion for a mistrial after the State prefaced a question to the victim with, “There was a revocation hearing, another hearing, and we won’t go into the gist of the nature of the hearing.” Lewis objected, and out of the jury’s hearing, the State explained that its reference to “revocation” was inadvertent and that it realized it should not have mentioned the word but had been looking at the transcript. The court ruled:

I find no basis for a mistrial simply based upon the use of the word “revocation.” I find that it was inadvertent and not intentional and that it did not address specifically whether or not the defendant was on probation, that he was charged with anything or that it was a court proceedings based upon allegations that he had violated the law in any terms of probation.

Lewis argues that the trial court’s failure to give a curative instruction was error requiring the grant of a new trial under OCGA § 17-8-75 and O’Neal v. State, 288 Ga. 219 (702 SE2d 288) (2010). The statute provides:

Where counsel in the hearing of the jury make statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same. On objection made, the court shall also rebuke the counsel and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds; or, in his discretion, he may order a mistrial if the prosecuting attorney is the offender.

OCGA § 17-8-75. “The code section in question is designed to prohibit counsel from stating prejudicial facts which are not in evidence. [Cit.]” Adams v. State, 260 Ga. 298, 299 (392 SE2d 866) (1990) (district attorney’s statement during closing argument that “there are no eyewitnesses [to the crime] because [the defendant’s] done away with them” was permissible deduction from evidence, not statement of facts not in evidence). The statute requires the trial court to give a curative instruction when the defendant objects to a prosecutor’s improper statement, regardless of whether defense counsel requests one. O’Neal, 288 Ga. at 221 (1) (after defendant objected to prosecutor’s invitation to jurors during closing to return to court over the next year “and see how many times we have this much evidence,” trial court’s failure to give curative instructions required new trial).

OCGA § 17-8-75 does not apply in this situation, however, because the State did not state prejudicial facts which were not in evidence and did not inject into the case illegal elements “calculated to place before the jury, indirectly and inferentially, a fact which under the rules of evidence the assistant solicitor would not be permitted to demonstrate directly.” Brown v. State, 118 Ga. App. 617, 619 (165 SE2d 185) (1968). The State simply made an inadvertent reference to the nature of a hearing at which the victim’s statement differed from her testimony at trial.

As a general rule, it is in the trial court’s discretion whether to grant a mistrial based on improper character evidence. In considering whether the trial court properly denied the motion, we may consider the nature of the statement, the other evidence in the case, and the court’s and counsel’s action in dealing with the impropriety.

(Citation and punctuation omitted.) King v. State, 269 Ga. App. 658, 661 (4) (605 SE2d 63) (2004). Lewis notes that the State’s improper revocation reference almost directly followed the victim’s unsolicited improper reference to a probation violation, which also engendered a motion for a mistrial. The trial court denied the motion but gave curative instructions.

Considering the nature of the State’s improper reference, the other evidence in the case, and the court’s and counsel’s actions in dealing with the impropriety, we conclude that the trial court did not abuse its discretion by denying Lewis’s motion for a mistrial.

3. Lewis contends that the trial court erred in overruling his objections to the State’s closing argument. We agree that the arguments were improper, but not that they constitute reversible error.

Closing argument must be “derived from evidence properly before the factfinder,” Williams v. State, 279 Ga. 600, 602 (2) (619 SE2d 649) (2005), and prosecutors and defense counsel are permitted wide latitude in their closing arguments. Spiller v. State, 282 Ga. 351, 354 (3) (647 SE2d 64) (2007); Cooper v. State, 281 Ga. 760, 763 (4) (c) (642 SE2d 817) (2007). Indeed, “[t]he permissible scope of argument is vast: counsel may draw from the evidence properly before the factfinder ‘any inference apparently reasonable and legitimate.’ Smalls v. State, 105 Ga. 669, n. 3 (31 SE 571) (1898).” Morgan v. State, 267 Ga. 203 (1) (476 SE2d 747) (1996). But while “[t]he range of discussion during closing argument is wide,... counsel should not go outside the facts appearing in the case and lug in extraneous matters as if they were a part of the case.” (Citation and punctuation omitted.) Conner v. State, 251 Ga. 113, 122-123 (6) (303 SE2d 266) (1983).

Here, the prosecutor argued, “I have been doing this for 29 years, a long time. When I first got into this business, I had domestic abuse cases. And just as [one of the witnesses] told you, there are many, many, many of them and most of the women will recant — the vast majority.” Lewis objected and was overruled. Lewis made the same objection when the prosecutor continued, “Women will come in and be battered and they will say to you, ‘I don’t want to press charges,’ ” and the trial court made the same ruling. Lewis also objected unsuccessfully when the prosecutor argued that “[p]eople in domestic situations get killed” and when the prosecutor began to describe an elderly man’s murder to illustrate that a jury will convict based on eyewitness testimony even when the police make mistakes in failing to gather evidence.

The prosecutor’s arguments referring to her prior criminal experience, the frequency with which the victims she dealt with recanted, and people being killed in domestic situations were not supported by evidence, and the trial court erred in denying Lewis’s objections to them. Conner, 251 Ga. at 123 (6). Likewise, while a prosecutor may analogize between a defendant and historical criminals such as Jesse James, James v. State, 265 Ga. App. 689, 690-691 (1) (a) (595 SE2d 364) (2004), the prosecutor’s reference to the murder of an elderly man in this case was not such an analogy and was improper.

The test to determine whether a nonconstitutional error such as the trial court’s failure to sustain an objection to an improper closing argument is reversible error is whether “it is highly probable that the error did not contribute to the judgment.” Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976). In this case, despite the victim’s testimony that she had previously lied to everyone about Lewis striking her, the evidence to the contrary was strong.

Furthermore, the trial court charged the jury fully as to what constituted evidence, including instructing them that evidence did not include the attorneys’ opening statements or closing arguments. All things considered, including the strength of the State’s evidence in this case, we conclude that it is highly probable that the trial court’s error in failing to comply with OCGA § 17-8-75 did not contribute to the verdicts.

Arrington v. State, 286 Ga. 335, 346 (16) (a) (687 SE2d 438) (2009).

4. Lewis argues that the trial court erred in allowing the State to introduce two similar transactions in which Lewis struck a woman with whom he had a relationship. After a hearing, the trial court granted the State’s motion to introduce the transactions for the purpose of showing Lewis’s state of mind and course of conduct. At trial, the State presented evidence that in September 2004, a police officer responded to a call at Lewis’s apartment and heard a crying female say, “Stop, don’t hurt me.” No one answered the door so the officer entered using a key from the manager and talked to a woman who was visibly upset and said that Lewis had caused a mark on her arm. The woman testified that Lewis had grabbed her arm because they were arguing and she was about to leave, but denied she had a bruise and admitted she did not want to testify. Lewis pled guilty to simple battery arising from this incident.

Another woman testified that she and Lewis had been arguing in July 2007 and he slapped her in the face because she would not leave him alone. She admitted making a written statement to police alleging that Lewis had hit her in the face twice, but explained that she later attempted to get the charges against him dropped because she had started the altercation. She also denied having been in a relationship with Lewis except “possibly [having his] child,” but DNA testing established Lewis was not the father.

We find no error in the trial court’s decision to admit this evidence.

Evidence that a defendant has committed an independent offense or bad act is admissible if the State shows and the trial court rules that there is a sufficient connection or similarity between the independent offenses or acts and the crime charged so proof of the former tends to prove the latter. When considering the admissibility of similar transaction evidence, the proper focus is on the similarities, not the differences, between the separate crime and the crime in question. We will uphold the trial court’s decision to admit a similar transaction unless it is an abuse of discretion.

(Citation omitted.) Muhammad v. State, 290 Ga. 880, 882-883 (2) (725 SE2d 302) (2012).

We find no abuse of discretion in the trial court’s decision to admit this similar transaction evidence.

In cases of domestic violence, prior incidents of abuse against family members or sexual partners are more generally permitted because there is a logical connection between violent acts against two different persons with whom the accused had a similar emotional or intimate attachment. A prior act can show the accused’s attitude or mindset (i.e., his bent of mind) as to how children or sexual partners should be treated or “disciplined.” A prior act can also show his actual course of conduct in reacting to disappointment or anger in such a relationship, evidencing a pattern.

Smith v. State, 232 Ga. App. 290, 295 (1) (501 SE2d 523) (1998).

5. Lewis contends the trial court erred in overruling his objection to a detective’s testimony that it was common for victims of domestic violence to change their stories about being abused. After the detective testified to that effect, Lewis objected on the ground that “what other people do or may not do is not relevant and germane to the facts of this particular case.” The trial court responded that the detective could not testify based on any particular expertise in the field of domestic violence, but only about her own experiences in handling such cases. The witness then testified that she had handled thousands of domestic violence cases in the previous 15 years and in 99.5 percent of those cases, the victims came in and changed their stories.

Decided June 18, 2012

Reconsideration denied July 27, 2012

James N. Finkelstein, for appellant.

Lewis argues that “the obvious purpose of this testimony was to suggest to the jury that [the victim’s] sworn testimony in the courtroom was a lie,” and an improper comment on whether the victim was telling the truth. We agree. While an expert qualified to testify as an expert in the field of the cycle of domestic violence may be qualified to testify that in such cases, “a victim often will go into denial, minimize the violence which has occurred, and become reluctant to prosecute her partner,” Hawks v. State, 223 Ga. App. 890, 893 (4) (479 SE2d 186) (1996), this witness was not so qualified. “The fact that, in the officer’s previous experience, it was not uncommon for domestic violence victims to recant their stories was not relevant to explain either the conduct or the testimony of the victim[ ] in the instant case.” (Citation and punctuation omitted.) Howie v. State, 281 Ga. App. 730, 732 (637 SE2d 134) (2006).

Nonetheless, considering the facts of this case and the evidence as a whole, including the testimony of the two similar transaction witnesses who apparently recanted or minimized their initial complaints against Lewis for striking them, we find it highly improbable that the challenged testimony contributed to the verdict.

6. Finally, Lewis asserts that the State misstated the law regarding its burden of proof during closing argument and that the trial court erred in overruling his objection. This enumeration has no merit, however, because the record shows that the trial court did not overrule the objection. Instead, the court issued curative instructions to the jury, after which Lewis thanked the court. Very shortly after that the court began its charge and instructed the jury about the State’s burden of proof and the definition of reasonable doubt. Lewis thus obtained the relief he asked for, and this enumeration raises no issue for review.

Judgment affirmed.

Adams, J., concurs. McFadden, J., concurs in Divisions 1, 3, 4 and 6 and concurs in judgment only in Divisions 2 and 5.

Gregory W. Edwards, District Attorney, Victoria M. Johnson, Assistant District Attorney, Heather H. Lanier, for appellee.

       The appellant’s brief fails to comply with Court of Appeals Rule 25 (c) (1), which provides that “[t]he sequence of arguments in the briefs shall follow the order of the enumeration of errors, and shall he numbered accordingly.” We will address the enumerations in the order argued, but remind counsel that the rules regarding the structure of briefs are designed to assist the court in fully considering the merits of the appellant’s arguments.


author: McFadden, Judge.

text:
    A12A0581.
    SPRUILL et al. v. GEORGIA DEPARTMENT OF HUMAN SERVICES et al.
    (729 SE2d 654)
   McFadden, Judge.

Denise Spruill and Lisa Scroggins, as the permanent legal guardians of minor twins A. M. and A. M., filed a lawsuit against the Georgia Department of Human Services and the Georgia Department of Human Resources (collectively, “the department”), claiming negligent investigation of a report that the twins were suffering from neglect and malnourishment. The department moved to dismiss the complaint on the basis of sovereign immunity. The trial court granted the motion and dismissed the complaint, finding that the state’s waiver of sovereign immunity under the Georgia Tort Claims Act, OCGA § 50-21-20 et seq., did not apply based on the discretionary function exception to such waiver. Spruill and Scroggins appeal. Because the allegedly negligent investigation did not constitute a discretionary function as that term is defined in the Act, the department is not protected by sovereign immunity, and we therefore reverse.

“We review de novo a trial court’s ruling on a motion to dismiss based on sovereign immunity grounds, which is a matter of law. Factual findings are sustained if there is evidence supporting them, and the burden of proof is on the party seeking the waiver of immunity.” (Citations and punctuation omitted.) Ga. Dept. of Transp. v. Smith, 314 Ga. App. 412, 413 (1) (724 SE2d 430) (2012).

On November 6, 2007, the twins’ pediatrician, Dr. John Mynatt, reported to the Department of Family and Children Services that the children were suffering from severe neglect and malnourishment. He also reported that the parents were suspected of drug and alcohol abuse. The case was assigned to caseworker Eric Jackson, who went to the family’s home on November 8 to investigate. No one answered the door, but later that day Jackson spoke with the twins’ mother on the telephone. She claimed that the family was in North Carolina, and Jackson agreed to visit the family several days later. On November 13, 2007, Jackson went to the residence to investigate the report of neglect and determine if the twins were of proper body weight. When he arrived, the one-year-old twins were clothed in full-body jumpers and one of them was wrapped in a blanket. Jackson acknowledges that his interaction with the children was “[v] ery little to none.” He spent five to seven minutes in their presence, did not pick them up or hold them, and made no effort to remove their clothing to conduct a visual examination of them. Jackson did not remove the twins from the home, and a week later they were admitted to the hospital in critical condition. They each weighed under ten pounds, were malnourished, had emaciated bodies with open sores, and were within days of dying.

The appellants argue that the trial court erred in finding that Jackson’s allegedly negligent investigation of the reported neglect, including his failure to undress the twins to properly assess their condition, constituted a discretionary function for which the state is protected from liability by sovereign immunity. We agree.

Under the Georgia Tort Claims Act, the state has waived its sovereign immunity for the torts of state officials and employees subject to certain exceptions and limitations. OCGA §§ 50-21-23; 50-21-24. One such exception is the “discretionary function exception,” under which the state has no liability for “[t]he exercise or performance of or the failure to exercise or perform a discretionary function or duty on the part of a state officer or employee, whether or not the discretion involved is abused.” OCGA § 50-21-24 (2). The Act defines a “discretionary function” as one “requiring a state officer or employee to exercise his or her policy judgment in choosing among alternate courses of action based upon a consideration of social, political, or economic factors.” OCGA § 50-21-22 (2).

Our Supreme Court has emphasized that the discretionary function exception applies to policy decisions.

In Department of Transp. v. Brown, [267 Ga. 6 (471 SE2d 849) (1996),] we specifically approved of cases from other jurisdictions that construed their discretionary function exception to apply only to “basic governmental policy decisions,” and adopted that same construction for the discretionary function exception set forth in the [Georgia Tort Claims Act]. Further emphasizing our concern that the discretionary function exception should be limited to basic governmental policy decisions, we noted that the scope of the discretionary function exception urged by the Department of Transportation, which would include any decision affected by social, political, or economic factors, is so broad as to make the exception swallow the waiver. [For instance, w]hether to buy copier paper from a particular vendor, and in which colors, are decisions that might be affected by all three factors, but they are not policy decisions.

Decided June 29, 2012

Reconsideration denied July 27, 2012

James A. Attwood, for appellants.

Samuel S. Olens, Attorney General, Jennifer L. Dalton, Senior Assistant Attorney General, Ronald S. Boyter, Assistant Attorney General, for appellees.

(Citations and punctuation omitted.) Brantley v. Dept. of Human Resources, 271 Ga. 679, 680 (523 SE2d 571) (1999).

Based on such reasoning, the Supreme Court went on to hold that the decision whether to leave a two-year-old child unattended in a swimming pool was not a basic governmental policy decision and instead was a decision “of routine child care, and therefore does not fall within the discretionary function exception.” Brantley, 271 Ga. at 683. Likewise, the Supreme Court has found that decisions on emergency medical treatment of juveniles in state custody are not discretionary functions under the Act. See Edwards v. Dept. of Children & Youth Svcs., 271 Ga. 890, 893 (525 SE2d 83) (2000). And this court has held that foster parents failing to properly care for and supervise a child in their home does not rise to the level of a discretionary function insulating the state from liability. See Ga. Dept. of Human Resources v. Bulbalia, 303 Ga. App. 659, 662-663 (1) (694 SE2d 115) (2010).

The reasoning of these cases is equally applicable to the appellants’ claims in this case. Jackson’s decisions regarding the investigation of the reported neglect and malnourishment of the minor children, including his decision not to visually inspect the condition of their bodies, were not governmental policy decisions that are insulated from judicial review. Instead, those were matters of a routine investigation of reported child neglect that do not fall within the discretionary function exception. Accordingly, we reverse the trial court’s dismissal of the complaint.

Judgment reversed.

Barnes, R J., and Adams, J., concur.


author: Doyle, Presiding Judge.

text:
    A12A0628.
    COURTER et al. v. PILOT TRAVEL CENTERS, LLC.
    (730 SE2d 493)
   Doyle, Presiding Judge.

This appeal arises from the trial court’s grant of summary judgment to defendant Pilot Travel Centers, LLC, in a negligence and personal injury action. Kenneth Courter, his employer J & R Schugel Trucking, Inc., and its workers’ compensation carrier Great West Casualty Company filed this action following an incident in which Courter slipped and fell at one of Pilot’s fuel service stations, sustaining injuries that prevented him from carrying out his duties of employment. Following the grant of summary judgment, the plaintiffs appealed, challenging the trial court’s conclusion that Courter had equal knowledge of the hazard causing his fall and that he failed to exercise ordinary care for his own safety. Finding no error, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. [] A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

Viewed in this manner, the record establishes that Courter became a licensed commercial driver in 1996. Prior to the accident in question, he had never slipped and fallen anywhere to his recollection, nor had he seen or heard of other truck drivers slipping and falling on diesel fuel at a truck stop. He had walked through diesel fuel before and was aware that it was slippery. He also knew that diesel is even more slippery when mixed with water, and that water is often splashed on the pavement when truck drivers wash their windshields at truck stops.

On August 24, 2006, while on his way from Indiana to a warehouse in Georgia, Courter stopped at a Pilot center just north of Cartersville, Georgia, in order to wash his windshield and get coffee. Courter arrived at the fuel location at about 10:30p.m., and pulled up to a covered, well-lit fuel island. After stopping his truck with the driver’s side door about four feet away from the fuel island, Courter applied the parking brakes, opened the door, and observed that the concrete surface was wet. He also saw that the pavement was discolored due to diesel fuel having been spilled on the ground, like at “every other truck stop.” He was not concerned that the ground might be slippery.

Courter climbed down from the truck, holding the hand rails of the truck with his hands, and upon setting both feet on the ground, he felt that it was slippery. Upon sensing this, he chose not to get back into the truck to go to a different fuel island because he wished to clean his windshield. Instead, after waiting three or four seconds, he tried to turn around and close the door, at which time he slipped and fell onto his left side, landing on his hip, elbow, and foot. Because the ground was so slippery, Courter was unable to get up initially after falling down, and he had to grab the steps of his truck to pull himself up.

Courter then got back into the truck, pulled out of the fuel island, and went inside the service station to inform the cashiers of his fall. The cashiers informed their manager, who then spoke with Courter, filled out an accident report, took pictures of him, and then instructed a worker to wash down the fuel island with a pressure washer. As Courter waited inside the service station, he felt pain in his elbow and had a scrape on his left hand, but did not ask for medical attention at the scene aside from a first aid kit to clean up his abrasions. Initially, he did not feel further pain, but thereafter began to experience pain in his elbow, shoulder, and neck.

Due to Courter’s injuries, the plaintiffs filed suit, and following the trial court’s grant of summary judgment, they timely appealed to this Court.

Appellants first contend that the trial court erred by concluding that Courter had equal knowledge of the hazard as a matter of law. We disagree.

“[A] proprietor may be liable only if he had superior knowledge of a condition that exposed an invitee to an unreasonable risk of harm.” Although “summary judgment is granted only when the evidence is plain, palpable, and undisputed,”

[t]he mere ownership of land or buildings does not render one liable for injuries sustained by persons who have entered thereon or therein; the owner is not an insurer of such persons, even when he has invited them to enter. Nor is there any presumption of negligence on the part of an owner or occupier merely upon a showing that an injury has been sustained by one rightfully upon the premises.

Decided July 11, 2012

Reconsideration denied July 27, 2012

Turkheimer & Hadden, John D. Hadden, Carlock, Copeland & Stair, Christopher A. Whitlock, Aaron L. Michelman, for appellants.

McLain & Merritt, Wiliam S. Sutton, for appellee.

Here, Courter admitted that he saw that the pavement was wet prior to alighting from his vehicle. He also admitted that he saw staining from diesel fuel and other foreign substances on the pavement. Courter further deposed that he was aware that the combination of diesel fuel and water can render the ground particularly slippery. Under these facts, Courter cannot show that Pilot had superior knowledge of the wetness and staining which caused him to fall. Our courts have noted that it is “common-sense” that “everyone knows that wet surfaces can become slippery,” and in this case Courter deposed that he was aware of the particular risk of wet, fuel-stained ground surfaces. Therefore, even assuming that Pilot had constructive knowledge of the condition of the ground, the trial court correctly concluded that the record lacks evidence showing Pilot’s superior knowledge of the hazard causing Courter’s fall. Because Courter had this knowledge and observed the hazard even prior to stepping onto the pavement, we discern no error.

Judgment affirmed.

Andrews and Boggs, JJ., concur.

       OCGA § 9-11-56 (c).

        Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

       The appellants’ brief conflates concepts of general premises liability with the affirmative defense of assumption of the risk. Nevertheless, the trial court’s order employed a premises liability analysis, which we review here.

       (Punctuation omitted.) Dickerson v. Guest Svcs. Co. of Va., 282 Ga. 771, 772 (653 SE2d 699) (2007). See also Robinson v. Kroger Co., 268 Ga. 735, 748-749 (2) (b) (493 SE2d 403) (1997).

       See Robinson, 268 Ga. at 748 (2) (b).

       (Punctuation omitted.) Hadaway v. Cooner Enterprises, 172 Ga.App. 113, 114 (321 SE2d 830) (1984).

       See, e.g., Walker v. Sears Roebuck & Co., 278 Ga. App. 677, 681 (2) (629 SE2d 561) (2006) (summary judgment was appropriate because the premises owner lacked superior knowledge compared to plaintiff, who deposed that she also was aware that customers track water into stores on rainy days).

        Dickerson, 282 Ga. at 772.

       See Music v. Steamco, Inc., 265 Ga. App. 185, 186 (593 SE2d 370) (2004).


text:
    A12A0764.
    MARTINEZ-VARGAS v. THE STATE.
    (730 SE2d 633)
   Barnes, Presiding Judge.

Following the denial of his motion to suppress, Geovany Martinez-Vargas was convicted of possession of marijuana with intent to distribute in a stipulated bench trial. On appeal from his conviction, he contends that the trial court erred in denying his motion to suppress because the affidavit supporting the search warrant application was legally insufficient to support a finding of probable cause. Martinez-Vargas further contends that he received ineffective assistance of trial counsel and that we should remand the case for a hearing on the issue of his trial counsel’s ineffectiveness, as this is his first opportunity to raise the issue. For the reasons discussed below, we are constrained to affirm the trial court’s denial of the motion to suppress. However, we remand the case to the trial court for a determination of Martinez-Vargas’s ineffectiveness claim.

1. The standards that apply to the different levels of judicial scrutiny involved in the warrant process are well established. A magistrate may issue a search warrant only if the affidavit supporting the warrant application sets forth “facts sufficient to show probable cause that a crime is being committed or has been committed.” OCGA § 17-5-21 (a).

In determining whether probable cause exists, the task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

(Citations and punctuation omitted.) Daniel v. State, 306 Ga. App. 48, 50 (2) (701 SE2d 499) (2010). See State v. Palmer, 285 Ga. 75, 77 (673 SE2d 237) (2009).

In evaluating a magistrate’s decision to issue a search warrant upon a defendant’s filing of a motion to suppress, a trial court

may then examine the issue as a first level of review, guided by the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant, and the principle that substantial deference must be accorded a magistrate’s decision to issue a search warrant based on a finding of probable cause.

Palmer, 285 Ga. at 77. The trial court should remain cognizant that “the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.” (Citation and punctuation omitted.) Id.

When this Court thereafter reviews the trial court’s grant or denial of the motion to suppress, we apply the totality of the circumstances analysis enunciated in Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983), and we ask whether the magistrate “had a ‘substantial basis’ for concluding that probable cause existed to issue the search warrant,” always mindful that the magistrate’s conclusion is to be afforded “substantial deference.” (Citation and punctuation omitted.) Palmer, 285 Ga. at 78. See Henson v. State, 314 Ga. App. 152, 154-155 (723 SE2d 456) (2012). In conducting this inquiry, we construe the evidence in the light most favorable to upholding the trial court’s decision on the motion to suppress, adopt its findings on disputed facts and credibility unless clearly erroneous, and review de novo its application of the law to undisputed facts. Palmer, 285 Ga. at 78. See Robinson v. State, 312 Ga. App. 736, 745 (4) (a) (719 SE2d 601) (2011).

Guided by these principles, we turn to the evidence adduced at the hearing on the motion to suppress. The evidence showed that on April 5, 2010, a special agent assigned to the Narcotics Unit of the Henry County Police Department received information that a silver Toyota Tacoma truck with a matching camper top bearing a “Georgia Educator” license tag might be involved in transporting large quantities of illegal narcotics to several residences in Henry County. Officers saw a truck matching that description several times in the area of the Willow Springs subdivision in Henry County, but they initially were unsuccessful in tracking the truck to a particular residence there.

On May 25, 2010, a police sergeant who oversaw the Narcotics Unit observed the truck enter the Willow Springs subdivision. He waited a few minutes and then entered the subdivision to look for the truck. The sergeant located the truck parked in the driveway of 173 Willow Springs Lane, contacted the special agent who had received the original tip about the truck, and advised him of its location. The special agent met the sergeant in the subdivision and confirmed that the truck parked in the driveway matched the description provided in the original tip.

Because the truck had been seen at 173 Willow Springs Lane, the special agent began investigating the residence. Additional surveillance was conducted, but the truck was not seen again at the residence after May 25. The agent determined the garbage pickup schedule for the Willow Springs subdivision, and on June 1, 2010, he conducted a “trash pull” at the residence where the truck had been seen. In searching through the trash, the agent was unable to find any identifying information on any of the mail because all of it had been shredded or torn by hand. However, the agent did find a compressed marijuana bud in the trash. Based upon his knowledge, training, and experience in the Narcotics Unit, the agent believed that the compressed nature of the bud was significant because it indicated that the bud was part of a large bale of marijuana.

After finding the compressed marijuana bud, the special agent and other narcotics officers conducted additional surveillance at the residence on June 3, 2010. They observed a sports utility vehicle in the driveway backed up to the closed garage. Two men later identified as Jose Alfredo Sanchez-Valencia and Manuel Zuniga were observed leaving the residence and getting inside the vehicle. The special agent and a police lieutenant who served as the commander of the Narcotics Unit then approached the two men, requested identification, and asked to speak with them.

Because Sanchez-Valencia could not speak English, the special agent and lieutenant spoke with Zuniga. When the lieutenant walked between the garage door and the rear of the truck to talk to Zuniga, he smelled raw marijuana, but he could not determine the exact source of the odor.

When asked by the lieutenant if he lived at the residence, Zuniga responded that he was staying there but that the homeowner was away on business. The lieutenant asked Zuniga for consent to search the residence, but Zuniga responded that the officers “needed a warrant.” Zuniga also informed the lieutenant that another man was asleep in a bedroom inside the residence and indicated that there were two handguns in the same bedroom.

After speaking with Zuniga, the lieutenant informed him that officers would be performing a “protective sweep” of the residence. Officers from the Henry County Criminal Apprehension and Gang Enforcement (“C.A.G.E.”) unit then were called to the scene to perform a “protective sweep” for people inside the residence. During the subsequent “protective sweep,” officers from the C.A.G.E. unit entered the residence without a warrant. Although the officers were unable to locate any individuals inside the residence, they saw a large amount of marijuana in a bedroom closet. The officers relayed this information to the special agent, who had stayed outside.

Later that day, the special agent submitted an affidavit in support of a search warrant for the residence to a magistrate in Henry County. The affidavit contained the following factual assertions: (1) on April 5, 2010, the agent had been informed by a “reliable source” that a silver Toyota Tacoma truck with a matching camper top bearing a “Georgia Educator” license tag was possibly involved in transporting large quantities of illegal narcotics to several residences in Henry County; (2) on May 25, 2010, an officer observed the aforementioned truck parked at 173 Willow Springs Lane; (3) garbage from that residence which was searched by the agent during a “trash pull” on June 1,2010 contained a “compressed” marijuana bud, which the agent knew “by knowledge, training[,] and experience to be from a large bale of marijuana”; (4) the police lieutenant who approached Sanchez-Valencia and Zuniga during the surveillance on June 3, 2010 smelled the odor of raw marijuana “coming from the house” while standing near the garage; and (5) a large amount of marijuana had been observed in plain view in the master bedroom closet when officers from the C.A.G.E. unit entered the residence on June 3, 2010 to secure it after learning that another individual and firearms were located inside. No oral testimony was provided to the magistrate in support of the search warrant application. Based on the assertions in the search warrant affidavit, the magistrate issued the warrant.

When the officers executed the search warrant, they found defendant Martinez-Vargas hiding in the attic with approximately $10,000 in United States currency. Additionally, in the master bedroom, the officers found almost $18,000 in United States currency in a drawer, two loaded handguns, and twenty-three bundles of marijuana that weighed approximately twenty-two pounds apiece. A second bedroom contained an additional 17 bundles of marijuana. Officers also found buds of marijuana, shrink wrap, cellophane rolls, an electronic parcel scale, a drug ledger, and a cash regulator. In total, the officers seized approximately 750 pounds of marijuana from the residence.

Martinez-Vargas moved to suppress the marijuana and other items seized from the residence. He maintained that the “protective sweep” was unconstitutional, that the affidavit supporting the search warrant application contained false and illegally obtained information, and that insufficient evidence in the affidavit, once the improper information was deleted, supported the magistrate’s finding of probable cause for issuance of the search warrant.

After conducting an evidentiary hearing, the trial court found that the purported “protective sweep” of the residence had been unconstitutional because it was not necessary for officer safety. The trial court further found that the assertion in the affidavit that the lieutenant involved in the June 3, 2010 surveillance had smelled marijuana “coming from the house” while near the garage was partially false because the lieutenant had testified at the evidentiary hearing that, although he had smelled raw marijuana while near the garage, he had been unable to determine the exact source of the odor. The trial court emphasized, “These problems with the application for the search warrant are serious and the Court does not condone the illegal police conduct which occurred.” Nevertheless, the court ultimately upheld the validity of the search warrant on the ground that, once the false and illegally obtained information was omitted from the affidavit, the remaining untainted information still would support a finding of probable cause. Consequently, the trial court denied Martinez-Vargas’s motion to suppress.

Martinez-Vargas moved for the trial court to reconsider its denial of his motion to suppress, and the trial court denied that motion. Following a bench trial at which he stipulated to the evidence presented at the motion to suppress hearing, Martinez-Vargas was convicted of possession of marijuana with intent to distribute.

On appeal from his conviction, Martinez-Vargas contends in several related enumerations of error that the trial court erred in denying his motion to suppress the evidence seized from the residence pursuant to the search warrant. In this regard, he claims that the trial court erred in concluding that the factual assertions remaining in the affidavit after deleting the false and illegally obtained information were sufficient to support the magistrate’s finding of probable cause for issuance of the search warrant. We disagree.

If false information is included in an affidavit supporting an application for a search warrant, that information must be deleted, and the affidavit must be reexamined to determine whether probable cause exists to issue the warrant in the absence of the deleted information. See Carson v. State, 314 Ga. App. 515, 517 (1) (b) (724 SE2d 821) (2012); Daniel, 306 Ga. App. at 52 (2). Likewise, if the affidavit

contains information which is in part unlawfully obtained, the validity of a warrant and search depends on whether the untainted information, considered by itself, establishes probable cause for the warrant to issue. If the lawfully obtained information amounts to probable cause and would have justified issuance of the warrant, apart from the tainted information, the evidence seized pursuant to the warrant is admissible.

(Citations and punctuation omitted.) Rothfuss v. State, 160 Ga. App. 863, 864 (1) (288 SE2d 579) (1982). See Glenn v. State, 288 Ga. 462, 464 (2) (704 SE2d 794) (2011).

The trial court committed no error in finding that after the false and illegally obtained information in the search warrant affidavit had been deleted, there still was sufficient untainted information to support a finding of probable cause for issuance of the warrant. Specifically, the untainted information in the affidavit reflecting that a compressed marijuana bud was found in the garbage of the residence on June 1, 2010, that the bud was from a large bale of marijuana based upon the special agent’s knowledge, training, and experience, and that the lieutenant smelled raw marijuana while near the garage of the residence two days later, would support a finding of probable cause. While the odor of marijuana alone might be insufficient to provide probable cause for the search of a residence, see, e.g., State v. Pando, 284 Ga. App. 70, 76-77 (2) (a) (643 SE2d 342) (2007) , it can serve as one of the factors, under the totality of the circumstances, that will support a finding of probable cause. See Boldin v. State, 282 Ga. App. 492,495 (2) (639 SE2d 522) (2006); State v. Fossett, 253 Ga. App. 791,793 (1) (560 SE2d 351) (2002). Here, there was the additional evidence of the compressed marijuana bud found in the trash that the special agent opined had come from a large bale of marijuana, and we have held that the discovery of drugs in the trash of a residence can provide a substantial basis for concluding that probable cause existed to issue a search warrant for the residence. See Locher v. State, 293 Ga. App. 67, 70 (2) (a) (666 SE2d 468) (2008) ; State v. Davis, 288 Ga. App. 164, 165-166 (653 SE2d 311) (2007); Butler v. State, 192 Ga. App. 710, 712 (1) (386 SE2d 371) (1989). Accordingly, we conclude that under the totality of the circumstances, the lawfully obtained, accurate information contained in the search warrant affidavit would have justified the issuance of the warrant by the magistrate.

Martinez-Vargas, however, contends that the trial court should not have relied on the factual assertion in the affidavit that the lieutenant smelled raw marijuana while near the garage of the residence, given that there were no facts in the affidavit reflecting that the lieutenant had the knowledge, training, or experience to identify that specific odor. But “[ojbservations of fellow officers of government engaged in a common investigation are a reliable basis for a warrant applied for by one of their number.” McNeal v. State, 133 Ga. App. 225, 228 (2) (211 SE2d 173) (1974). Thus, when a police officer supplies information to another officer that the latter then includes in a search warrant affidavit, the reliability of the officer informant can be presumed when assessing whether probable cause exists for issuance of the warrant. See McConville v. State, 228 Ga. App. 463, 467 (2) (491 SE2d 900) (1997). See Shivers v. State, 258 Ga. App. 253, 256-257 (573 SE2d 494) (2002) (reliability of police officer informant who smelled burned marijuana could be presumed as a matter of law). It follows that the magistrate and the trial court were authorized to presume that the lieutenant was reliable in stating to the special agent who composed the affidavit that the odor he smelled was raw marijuana.

Martinez-Vargas further contends the trial court should not have relied on the factual assertion regarding the odor of raw marijuana because the lieutenant was unable to determine the exact source of the smell. Yet, as the trial court found, to the extent that the affidavit stated that the lieutenant was standing near the garage of the residence when he smelled the raw marijuana, the affidavit was accurate. And even if the lieutenant could not identify the exact source of the smell, the fact that he was standing in close proximity to the residence when he smelled it, coupled with the drug evidence found in the trash two days earlier, was sufficient to establish probable cause to search the residence.

Lastly, Martinez-Vargas contends that the trial court should not have relied on the factual assertion in the affidavit that a compressed marijuana bud was found in the trash of the residence, because there were not enough facts in the affidavit connecting him or the residence to the drugs found in the trash. In this respect, he emphasizes that the affidavit did not refer to any mail or other documents found in the trash containing his name or the address of the residence, and did not state that anyone from the residence had been observed carrying items from the residence to the trash. But, in assessing whether probable cause exists, courts are to take a “practical, common-sense” approach. (Citations omitted.) Palmer, 285 Ga. at 77. While there was no assertion in the affidavit that mail or other documents found in the trash contained any identifying information (given that all of the mail had been shredded or torn by hand) or that the officers specifically observed someone carrying items from the residence to the trash, the affidavit did assert that the special agent had conducted a “trash pull” at the residence, and that the compressed marijuana bud was recovered as part of that “trash pull.” We conclude that these factual assertions contained in the affidavit would support a “common-sense decision” that there was a “fair probability that contraband or evidence of a crime” would be found in the residence. (Citation and punctuation omitted.) Davis, 288 Ga. App. at 166.

For these combined reasons, the trial court did not err in concluding that the remaining untainted information would support a finding of probable cause and in denying Martinez-Vargas’s motion to suppress. In affirming the trial court, we in no way condone the decision of the officers in this case to conduct a purported “protective sweep” of the inside of the residence without a warrant. Nevertheless, as the trial court ultimately concluded, that does not end the matter under our jurisprudence, where, as here, the search warrant affidavit contains additional probative information untainted by the misconduct of the officers.

2. Martinez-Vargas also argues that, because he has now been appointed new counsel, the case should be remanded so that the trial court can consider his ineffective assistance claim in the first instance.

If an appellant raises on appeal the issue of ineffectiveness of his original trial counsel, and appellant did not have the opportunity to raise such issue in the trial court, we will ordinarily remand the case to the lower court for resolution of such issue, with the right in the appellant to appeal the ruling.

(Footnote omitted.) Gregory v. State, 277 Ga. App. 664, 669 (5) (627 SE2d 79) (2006). “Nevertheless, remand is not mandated if we can determine from the record that the defendant cannot establish ineffective assistance of counsel under the two-prong test set forth in [Strickland, v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984)].” (Citation and punctuation omitted.) Jones v. State, 310 Ga. App. 705, 707, n. 1 (713 SE2d 895) (2011). The Strickland test requires the defendant to establish that his trial counsel’s performance was deficient, and that there is a reasonable probability that the outcome of the trial would have been different, but for his counsel’s deficiency. Martinez v. State, 303 Ga. App. 166, 171-172 (4) (692 SE2d 766) (2010). If the defendant cannot establish either one of the two prongs of the Strickland test, he cannot succeed on his ineffective assistance claim. Id.

Decided July 13, 2012

Reconsideration denied July 27, 2012.

According to Martinez-Vargas, his trial counsel was deficient for failing to raise additional arguments for why the unconstitutional “protective sweep” of the residence should have led to the suppression of the marijuana seized from there. Although somewhat unclear, Martinez-Vargas also contends that his trial counsel should have better argued, presumably in the motion for reconsideration that he filed in the court below, that the trial court’s factual findings in its order denying the motion to suppress were not supported by the search warrant affidavit.

For the reasons discussed supra in Division 1, the trial court applied the appropriate test and properly concluded that there was sufficient accurate information remaining in the search warrant affidavit, untainted by the unconstitutional “protective sweep,” to support a finding of probable cause and issuance of the warrant. Thus, it is clear from the existing record that Martinez-Vargas would be unable to succeed on his ineffective assistance claim to the extent that it arises out of the issues addressed in Division 1. See Stevenson v. State, 272 Ga. App. 335, 337 (1), n. 2 (612 SE2d 521) (2005) (“Atrial attorney is not ineffective in failing to pursue a futile... argument in the accused’s defense.”).

However, Martinez-Vargas also refers in his appellate brief to “other additional contentions regarding the ineffectiveness of trial counsel.” To the extent that the “other additional contentions” are unrelated to the issues resolved in Division 1, we cannot determine the merit of those contentions from the existing record. The case, therefore, is remanded to the trial court for a hearing and determination on Martinez-Vargas’s claim that his trial counsel rendered ineffective assistance, with the right of Martinez-Vargas to appeal that ruling. See Russell v. State, 267 Ga. 865, 868 (4) (485 SE2d 717) (1997); King v. State, 238 Ga. App. 575, 577(4) (519 SE2d 500) (1999).

Judgment affirmed and case remanded with direction.

Adams and McFadden, JJ., concur.

Frances C. Kuo, for appellant.

Tommy K Floyd, District Attorney, Alicia C. Gant, Assistant District Attorney, for appellee.

       At the hearing on the motion to suppress, the special agent clarified that the “reliable source” was a special agent with the federal Drug Enforcement Agency. Because this information was never conveyed to the magistrate who evaluated the warrant application, a reviewing court cannot consider it in deciding whether probable cause existed for the magistrate’s issuance of the warrant. See Lyons v. State, 258 Ga. App. 9, 10 (1) (572 SE2d 632) (2002).

       Because the factual assertions regarding the compressed marijuana bud and the smell of raw marijuana near the garage by themselves would support a finding of probable cause, we need not address Martinez-Vargas’s argument that the trial court erred by also relying on the tip supplied to the agents about the truck observed outside the residence on May 25, 2010. See generally Langford v. State, 213 Ga. App. 232, 233-234 (444 SE2d 153) (1994) (discussing standard for reviewing whether probable cause could be predicated on unnamed informant’s tip).

       Martinez-Vargas does not contend that his Fourth Amendment rights were abridged by the lieutenant standing on the driveway near the garage.

       Martinez-Vargas does not challenge the legality of the search of the trash. See Brundige v. State, 310 Ga. App. 900, 906 (3) (714 SE2d 681) (2011) (placing garbage on the curb for collection constitutes an act of abandonment that terminates any Fourth Amendment protection).

       In a separate motion filed with this Court, Martinez-Vargas argues that the case should be remanded for the trial court to consider his ineffective assistance claim. His motion is hereby granted for the reasons discussed supra in Division 2.


author: Ellington, Chief Judge.

text:
    A12A1246.
    In re ESTATE OF ESTES.
    (731 SE2d 73)
   Ellington, Chief Judge.

In 2008, Shawn Estes, represented by attorney Laurene Cuvillier, filed a Petition to Determine Heirs in the case concerning the administration of the estate of his father, Richard Estes, in the Probate Court of Gwinnett County. Estes alleged that Ashley Fusco, who claimed to be the decedent’s daughter and who had been serving as the administrator of the estate, was not a legitimate heir at law and, therefore, that he was the sole heir. In January 2010, Cuvillier filed a motion to withdraw as Estes’s counsel and filed an attorney’s lien pursuant to OCGA § 15-19-14 in the amount of $18,708.12 for services rendered in “the recovery of Shawn Estes’s share of [his father’s] estate[.]” The probate court granted Cuvillier’s motion to withdraw as counsel, based on her showing that a conflict of interest had developed that prevented her from continuing to represent him. Ultimately, the probate court determined that both Estes and Fusco were the decedent’s heirs and were entitled to equal shares of the estate. The probate court also found that Fusco committed malfeasance while serving as the administrator and owed the estate $9,031.83 and ordered her surety to pay that amount to the estate. The administrator then filed a Petition for Direction, stating that he expected the remaining distribution from the estate to Estes to be $14,000 and that, given Cuvillier’s lien, he was “uncertain whether or not the distribution should be made to Estes or to . . . Cuvillier, his former attorney, or in some other manner [.]” After a hearing, the probate court ruled that Cuvillier’s lien was not valid and directed the administrator to distribute Estes’s share directly to Estes. Cuvillier appeals, and, for the reasons explained below, we reverse and remand this case for further proceedings.

OCGA § 15-19-14 (b) provides, in pertinent part, that, “[u]pon actions, judgments, and decrees for money, attorneys at law shall have a lien superior to all liens except tax liens; and no person shall be at liberty to satisfy such an action, judgment, or decree until the lien or claim of the attorney for his [or her] fees is fully satisfied.” OCGA § 15-19-14 “is in derogation of the common law and should be strictly construed.” (Punctuation and footnote omitted.) Gilbert v. Montlick & Assocs., 248 Ga. App. 535, 538 (6) (546 SE2d 895) (2001). It is well settled that a lien for attorney fees arises under OCGA § 15-19-14 (b) when the attorney files an action on the client’s behalf. Howe & Assocs. v. Daniels, 280 Ga. 803, 804 (631 SE2d 356) (2006). Consequently, a settlement of the action without the attorney’s involvement, as when the attorney-client relationship ends before the settlement, does not defeat the lien of the attorney for his or her fees under OCGA § 15-19-14 (b). Woods v. Jones, 305 Ga. App. 349, 351 (1) (699 SE2d 567) (2010).

In this case, it is undisputed that Estes participated in the underlying judicial proceeding in order to obtain a distribution of money from the estate. It is undisputed that, for this purpose, he employed Cuvillier to provide legal counsel, pursuant to a contingent fee agreement, and agreed that, in the event the attorney-client relationship ended before a verdict or award, he would compensate the firm for services rendered to the date of the termination at a specified hourly rate. We find no indication in the record that Estes disputed Cuvillier’s assertion that the amount due under the engagement contract, for services rendered before the court permitted her to withdraw, was $18,708.12. Under these circumstances, the administrator is not authorized to satisfy Estes’s entitlement to a distribution of money from the estate until Cuvillier’s lien or claim for her fees is fully satisfied. See Woods v. Jones, 305 Ga. App. at 351 (1) (Where the client discharged the attorney who filed suit on her behalf, and retained another before settling with the tortfeasors, the lien was still valid and enforceable against the settlement proceeds. Consequently, the trial court correctly vacated the client’s voluntary dismissal of the action and entered judgment in the attorney’s favor in the amount claimed under the lien.); Lucas v. Bob Hurst Mazda-Peugeot Automobiles, 174 Ga. App. 212, 213 (1) (329 SE2d 593) (1985) (physical precedent only) (An attorney who was hired by the administratrix of a decedent’s estate and who filed suit to recover funeral and medical expenses from the tortfeasor, among other claims, was entitled to a lien against settlement proceeds remitted to the estate, even though the attorney-client relationship ended before the settlement, when the probate court replaced the administratrix.); Brooks v. Cash &c., Inc., 137 Ga. App. 176 (1) (a) (223 SE2d 225) (1976) (An attorney who represented some debtors in seeking to have a receiver dismissed was entitled to a lien against funds that the trial court ordered the receiver to pay into the registry of the court “ ‘as monies of’ the debtors . . . subject to the further order of the court,” as such order amounted to the recovery of a judgment in favor of the debtors.) (punctuation omitted). Consequently, the trial court erred in ruling that Cuvillier’s lien was invalid. This case is remanded for further proceedings consistent with this opinion.

Decided July 27, 2012.

Goldberg & Cuvillier, Ralph S. Goldberg, Laurene C. Cuvillier, for appellant.

John E. Tomlinson, for appellee.

Judgment reversed and case remanded.

Phipps, P. J., and Dillard, J., concur.

       “Because this appeal involves a question of law, we review both the record and the decision of the court below de novo.” (Citation omitted.) Outlaw v. Rye, 312 Ga. App. 579, 580 (718 SE2d 905) (2011).

       We note that Estes did not file an appellate brief.

       Cf. Griner v. Foskey, 158 Ga. App. 769, 770-771 (1) (282 SE2d 150) (1981) (Attorneys who represented the heirs to an estate in seeking to have the original administrator of an estate removed and replaced were not entitled to a lien against the estate under the predecessor to OCGA § 15-19-14 (b) (Code 1933 § 9-613 (2)) because the litigation did not bring any money to the heirs individually and, therefore, there was nothing on which a lien could operate.).

       We note that the case that the probate court cited as authority for its ruling, Outlaw v. Rye, does not require a different result. In that case, an attorney placed a lien on certain real property in which her client had an interest. Outlaw v. Rye, 312 Ga. App. at 579-580. The attorney consistently “identified her lien as a statutory lien under OCGA § 15-19-14 (c).” Id. at 583 (2), n. 3. That subsection pertinently provides that, “[u]pon all actions for the recovery of real or personal property and upon all judgments or decrees for the recovery of the same, attorneys at law shall have a lien for their fees on the property recovered superior to all liens except liens for taxes [.]” The attorney had provided services to her client, however, not in connection with an action for the recovery of real or personal property, but in connection with a custody dispute with his ex-wife. Outlaw v. Rye, 312 Ga. App. at 582 (1). We held that OCGA § 15-19-14 (c), strictly construed, does not authorize a lien in proceedings in which no real or personal property is recovered, and, consequently, the trial court correctly concluded that the lien was invalid. Id. at 581-582 (1).