author: Andrews, Judge. MIKELL, Chief Judge, McFADDEN, Judge,

text:
    A11A0941.
    JOHNSON v. THE STATE.
    (720 SE2d 654)
   Andrews, Judge.

Arron Lavell Johnson was found guilty at a bench trial of possession of a schedule II controlled substance (3, 4-methylene-dioxymethamphetamine) in violation of the Georgia Controlled Substances Act. Johnson and the State stipulated to evidence that he was in possession of the controlled substance and agreed to try the case based on the transcript produced at the pre-trial hearing on his motion to suppress evidence of the controlled substance, the Georgia Bureau of Investigation Crime Lab report, and the City of Snellville Police incident report. Johnson’s sole enumeration of error is that the trial court erred by denying his motion to suppress evidence found in a search of his person showing that he was in possession of the controlled substance. For the following reasons, we affirm.

1. The trial court correctly denied Johnson’s motion to suppress and admitted the evidence found in the search.

The State produced evidence that, while police officers detained Johnson to investigate their suspicion of criminal activity, they patted down Johnson for weapons and searched his person pursuant to his consent and found the controlled substance in his possession. Johnson contended in support of his suppression motion that the consent to search was tainted and invalid because it was obtained while he was illegally detained by police for questioning and for the pat-down in violation of the Fourth Amendment protection against unreasonable search and seizure. To the contrary, the evidence shows that the detention and the pat-down were proper and that the search conducted during the detention was pursuant to valid consent.

The relevant facts were undisputed, there were no credibility issues, and the trial court denied the motion to suppress without making findings or giving any explanation. Accordingly, the standard of appellate review is de novo, and we independently review the evidence to determine whether the trial court erred in its application of the law to the undisputed facts. State v. Palmer, 285 Ga. 75, 79 (673 SE2d 237) (2009); State v. Woods, 280 Ga. 758-759 (632 SE2d 654) (2006); Silva v. State, 278 Ga. 506, 507 (604 SE2d 171) (2004).

The evidence showed the following: At about 3:00 a.m., Snellville police received a call from a Steak and Shake restaurant, which was open for business at that hour, reporting that the restaurant’s video camera showed that a black male dressed in all black was suspiciously “hanging out” or “hiding” near the restaurant’s dumpster located behind the restaurant. The restaurant employees and the police were aware that an armed robbery had recently occurred at the restaurant. Three police officers were dispatched to the scene. A short distance from the restaurant, one of the officers saw a man, later identified as Johnson, who matched the description of the man seen behind the restaurant. The officer saw Johnson walking away from the restaurant near a Kroger grocery store (the only other store open in the area), called the other two officers on his radio, and then stopped Johnson to question him about what he was doing in the area. The officer approached Johnson, patted him down for weapons, and found none. The officer testified that he was aware of the prior armed robbery at the restaurant, that he suspected another armed robbery was possibly about to occur, and that he conducted the pat-down for his own safety to determine if Johnson was armed. At about the same time, the other two officers arrived where Johnson was stopped. The officers asked Johnson what he was doing in the area at that time of day, and Johnson responded that he was there “to get the phone number of a cab company.” At that point, one of the officers asked Johnson if he had any narcotics on him, which he denied, and asked for consent to search his person for narcotics. Johnson consented to the search, and the officer conducting the search found the controlled substance at issue on Johnson’s person and arrested him.

There is no violation of the Fourth Amendment protection against unreasonable searches and seizures where a police officer stops a person to investigate the officer’s reasonable suspicion “that the person stopped is, or is about to be, engaged in criminal activity.” United States v. Cortez, 449 U. S. 411, 417 (101 SC 690, 66 LE2d 621) (1981); Terry v. Ohio, 392 U. S. 1, 9 (88 SC 1868, 20 LE2d 889) (1968). To establish reasonable suspicion to make an investigative stop, the totality of the circumstances must show that the officer had “specific and articulable facts which, taken together with rational inferences from those facts . . . [provided] a particularized and objective basis for suspecting the particular person stopped of criminal activity.” Vansant v. State, 264 Ga. 319, 320 (443 SE2d 474) (1994) (punctuation omitted). In considering the totality of the circumstances, “[t]his process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person.” United States v. Arvizu, 534 U. S. 266, 273 (122 SC 744, 151 LE2d 740) (2002) (citations and punctuation omitted). Even where the circumstances may be susceptible to an innocent explanation, ‘‘[a] determination that reasonable suspicion exists . . . need not rule out the possibility of innocent conduct.” Id. at 277. Moreover, in conducting an investigatory stop, an officer is entitled to conduct a limited pat-down of the suspect for weapons if the officer reasonably believes that the suspect poses a threat to his safety or that of others. Terry, 392 U. S. at 28-31. It is not required that the officer “be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Id. at 27.

Applying these standards, the evidence was sufficient to show that the officers who stopped and questioned Johnson had a basis for a reasonable suspicion that Johnson was, or was about to be, engaged in criminal activity, and had a reasonable belief that he posed a threat to their safety. Johnson matched the description of the man seen by restaurant employees hiding or loitering at 3:00 a.m. behind the restaurant where they worked at which an armed robbery had recently occurred. Given these circumstances, it was reasonable for the officers to suspect that Johnson was about to engage in criminal activity and to stop him to investigate what he was up to. In response to initial questions about why he was there, Johnson responded that he was there “to get the phone number of a cab company.” In light of the report that Johnson was seen loitering or hiding behind the restaurant, this improbable response could only have served to heighten reasonable suspicions that he was about to engage in some type of illegal activity. The fact that one of the officers who stopped Johnson subjectively characterized his explanation for being present there as “probable” was irrelevant to the Fourth Amendment inquiry. “An action is ‘reasonable’ under the Fourth Amendment, regardless of the individual officer’s state of mind, as long as the circumstances, viewed objectively, justify the action. The officer’s subjective motivation is irrelevant.” Brigham City v. Stuart, 547 U. S. 398, 404 (126 SC 1943, 164 LE2d 650) (2006) (citation and punctuation omitted); Johnson v. State, 299 Ga. App. 474, 478-480 (682 SE2d 601) (2009) (on motion for reconsideration). Rather, it is this Court’s duty to determine whether the officers’ actions were reasonable under the Fourth Amendment in light of all the objective facts, including Johnson’s unlikely explanation that he was moving about in the area at that hour “to get the phone number of a cab company.” Under the circumstances, the officers’ general questions about what he was doing and the specific question related to narcotic activity were reasonably within the scope of the investigative detention. Moreover, given Johnson’s suspicious activity behind the restaurant and the prior armed robbery at the restaurant, it was also reasonable for the officer who initially stopped Johnson to believe that he could be armed and to pat him down for weapons. But even assuming the pat-down was not supported by a reasonable belief that Johnson was armed and posed a danger, because it was brief, yielded no evidence, and was not a basis for the further investigative detention, it did not taint Johnson’s subsequent consent to the search. Langston v. State, 302 Ga. App. 541, 544, n. 3 (691 SE2d 349) (2010); St. Fleur v. State, 296 Ga. App. 849, 852-853 (676 SE2d 243) (2009). It follows that Johnson’s consent to the officer’s request to search his person for narcotics was valid, and the trial court correctly denied the motion to suppress.

2. The evidence was sufficient to show beyond a reasonable doubt that Johnson was guilty of the charged offense. OCGA § 16-13-30 (a); Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Phipps, P. J., and Dillard, J., concur. Mikell, C. J., concurs specially and in the judgment only. Smith, P. J., and Barnes, P J., concur in the judgment only. McFadden, J., dissents.

MIKELL, Chief Judge,

concurring specially.

I write separately because I believe both the majority and the dissent have used the incorrect standard of review. I agree with the majority that any initial illegality did not taint the subsequent consent to search, and I agree with the judgment reached by the majority.

1. Standard of Review. I object, as set out in my special concurrence in State v. Austin, to the line of Georgia decisions holding, or at least reciting, that whenever the evidence in the trial court was “undisputed” or “uncontroverted,” the review on appeal is de novo. Far stronger ammunition than a special concurrence by a judge of an intermediate appellate court, however, is our Supreme Court’s 2010 decision in Miller v. State. The standard of review on appeal was the reason for granting certiorari, and the majority opinion’s holding is that the use of a de novo standard by our court was reversible error. The first paragraph of the opinion makes the holding crystal clear. As stated by Justice Melton, “we find that the Court of Appeals erred by applying a de novo standard of review.” Why the Court of Appeals continues to err in the face of this controlling precedent mystifies me.

Here, there was testimony at the hearing on the motion to suppress, and it was the trial court’s duty to make a credibility determination regarding the officer who testified. Although no written findings of fact were entered, the trial court obviously made a credibility determination by denying the motion to suppress. Where such a determination is made, a clearly erroneous standard of review applies.

If any of my colleagues are in doubt about the proper standard of review on appeal, I urge them, indeed I beg them, to glance at Division 2 of Judge Melton’s excellent majority opinion in Miller. This Division leaves no doubt about the current thinking of a majority of the justices. Because Miller, a 2010 decision, is the latest expression of our Supreme Court on the standard of review, it overruled by implication that Court’s earlier rulings in Palmer and Underwood.

2. (a) I agree with the dissent that the first officer’s encounter with the defendant, “which included the pat-down, was a second-tier encounter.” But the dissent wrongly conflates the Terry stop, which was clearly legal, and the pat-down, whose constitutionality is more nearly arguable.

A second-tier, or Terry, police-citizen encounter is a “brief investigatory stop[ ] that must be supported by reasonable suspicion.” Discussion of whether the officer had “reasonable suspicion,” i.e., suspicion that a crime had been committed or was about to be committed, shows the wisdom of our deferring to the findings of the trial judge, who is familiar with his bailiwick, with possible subtle differences in dialect or habits of speech in his or her judicial circuit, and with jargon used by local law enforcement officers and by lay witnesses. For example, it is highly improbable that Officer Spahr, in his testimony about Johnson’s explanation for being at the shopping center at 3:00 a.m. while dressed all in black, used the term “probable” in the sense and with the force that the word has for us when we discuss, for example, “probable” cause. And Officer Spahr was apparently under the illusion that all Terry stops include a pat-down.

(b) The Terry stop in this case passes muster under either the Georgia or the United States Constitution. But technically speaking, we consult here only the latter, because Johnson did not invoke our state Constitution in the trial court. The trial court must have decided that the varied inferences to be drawn from the testimony boiled down to the following facts: the time was 3:00 a.m.; only two businesses were open in the shopping center, a grocery store and a restaurant; restaurant personnel reported Johnson hiding or lurking among the restaurant’s dumpsters; and the restaurant had been the victim of a recent armed robbery. The officer must have suspected that Johnson was or was about to be involved in criminal activity. On those facts, i.e., inferences, a brief investigative stop was constitutional.

Based on those facts, a trial court need not, as a matter of law, find that a Terry stop was justified. A trial court could legally reach a contrary conclusion. A ruling either way would be authorized by the above-listed facts.

(c) Not every investigative, Terry-type stop includes a pat-down. When it does, the officer must have had additional, specific suspicions, and the trial court must have found additional facts, in order for the pat-down to pass constitutional muster. Under federal law, a pat-down as part of a Terry stop is permissible only when it is “supported by a reasonable belief that the defendant was armed and presently dangerous. ”

(d) We need not decide whether the pat-down was legal, because the pat-down had nothing to do with Officer Rankin’s asking for consent, or with Johnson’s being present to give consent, or with the finding of the contraband. If the pat-down were a “poisonous tree,” the contraband was not its “fruit.” It was, however, the “fruit” of the Terry stop which preceded the pat-down. That stop was legal, and so the consent search was legal.

3. The dissent in the case at bar, as well as authoritative precedents from our Supreme Court and the United States Supreme Court and persuasive opinions from the Eleventh Circuit Court of Appeals, discuss whether an allegedly unconstitutional act by the police “tainted” a later discovery of contraband. In theory, all evidence which was discovered later as a result of the original illegal act by the police; or, in other words, was obtained by exploiting the original illegal act; or, in yet other words, was “caused” by the original illegal act, should be suppressed under the exclusionary rule laid down in Wong Sun v. United States. One problem with the rule in Wong Sun is that it might result in the suppression of evidence which would not have been obtained absent the illegal act, but was obtained long after that act or after such intervening acts as would seem to make suppression unjust. Thus, the precedents posit that the connection between the illegal act and evidence obtained later might be so attenuated that any “taint” from the illegal act is removed, so that the later evidence need not be suppressed. Elaborate rules have been promulgated to decide whether or not the taint has been removed. But confusion can arise when those rules are used unnecessarily.

There is no need to use a “taint” analysis, or the elaborate rules thereunder, when the illegal act was not a cause-in-fact of the later obtaining of the evidence. In other words, when the later evidence was not the “fruit of the poisonous tree” in the first place, why get into a complicated “taint” analysis?

4. In the case at bar, the contraband evidence was arguably obtained via the consent search, which resulted from the original Terry stop of Johnson by Officer Spahr. That stop was not illegal, so there was no poisonous tree for the evidence to be the fruit of. Pretermitting whether the pat-down was legal, it is irrelevant to our inquiry. It was not a cause-in-fact of the discovery of the contraband.

I agree with the judgment only.

McFADDEN, Judge,

dissenting.

The majority opinion takes liberties with the evidence. When the majority finds Officer Spahr’s testimony convenient, it accords his opinion unwarranted deference. When it finds his testimony as to a different opinion inconvenient, it disregards his testimony and ascribes to him an opinion exactly opposite of the one he expressed. I therefore respectfully dissent.

Officer Spahr lacked authority to conduct the pat-down; and Johnson’s consent to the subsequent search that turned up the drugs was not freely and voluntarily given, but rather was tainted by the illegal pat-down. Therefore, the trial court should have granted Johnson’s motion to suppress, and I would reverse his conviction.

1. Although I agree with the majority that the applicable standard is de novo review, I begin with analysis of the standard of review in order to respond to Chief Judge Mikell’s special concurrence. Normally “a trial court’s ruling on disputed facts and credibility at a suppression hearing must be accepted on appeal unless clearly erroneous.” Stale v. Palmer, 285 Ga. 75, 79 (673 SE2d 237) (2009), citing Petty v. State, 283 Ga. 268, 269 (2) (658 SE2d 599) (2008). “But where, as here, the facts are not in dispute and no findings were made by the trial court, the appellate court owes no deference to the trial court’s ruling and the standard of review is de novo.” Palmer, 285 Ga. at 79, citing Vansant v. State, 264 Ga. 319 (1) (443 SE2d 474) (1994).

Notwithstanding Chief Judge Mikell’s objection, Palmer mandates de novo review in the present case. Palmer may not be distinguished on the basis that the evidence here includes testimony. It is true that our Supreme Court has held that a “trier of fact can choose to reject even ‘undisputed’ testimony if that factfinder believes that witness’ testimony to be unreliable.” Tate v. State, 264 Ga. 53, 56 (3), n. 5 (440 SE2d 646) (1994). But in Palmer, as here, an arresting officer testified at the suppression hearing; and the Supreme Court reversed our application of “a deferential standard of review to the trial court’s findings.” 285 Ga. at 77. See also State v. Underwood, 283 Ga. 498, 500 (661 SE2d 529) (2008) (“The Court of Appeals applied the wrong standard of review to the trial court’s judgment. In cases such as this, where the facts relevant to a suppression motion are undisputed, the proper standard of review on appeal is de novo, not clearly erroneous.”), reversing State v. Underwood, 285 Ga. App. 640, 642 (647 SE2d 338) (2007) (“Based on our review of the hearing transcript and . . . construing that evidence to support the trial court’s findings, as we must on appeal, we cannot say that finding was clearly erroneous. Tate v. State, 264 Ga. 53 (1)[.]”).

Nor is there support for the Chief Judge’s position in Miller v. State, 288 Ga. 286 (702 SE2d 888) (2010). It is true, as he points out, that the first paragraph of that opinion clearly holds that this court had erred in applying de novo review. But the body of the opinion makes equally clear the basis for that holding. Justice Melton “focus[ed] on the facts found by the trial court in its order,” (emphasis in original) id. at 287, including the trial court’s “overt[ ] . . . credibility determination.” Id. at 288. According to Justice Melton’s majority opinion, the trial court’s order repeatedly and “explicitly addresses the unreliability of [the arresting officer’s] testimony,” id. at 288, and contains language that “is overtly a credibility determination.” Thus, Justice Melton concluded, the clearly erroneous standard of review applied “in [that] case.” Id. at 289.

Contrary to Chief Judge Mikell, Miller dovetails with Palmer, supra, 285 Ga. 75. As detailed above, Palmer mandates de novo review where “the facts are not in dispute and no findings were made by the trial court.” (Emphasis supplied.) 285 Ga. at 79. I therefore reject Chief Judge Mikell’s argument that Miller implicitly overruled Palmer and Underwood, 285 Ga. App. 640. Palmer and Underwood are distinguishable on their facts from Miller. It follows that Miller did not overrule them by implication. See, e.g., Boring v. State, 303 Ga. App. 576, 580-581 (2) (694 SE2d 157) (2010) (declining to find that a case overruled others by implication when the cases were factually distinguishable).

Where, as here, none of the evidence is contradicted and the trial court makes no findings of fact, the appellate courts face the potentially difficult question whether the trial court nevertheless disbelieved some of that testimony. By expressly setting out such credibility determinations, trial courts can assure their findings of fact will receive the deference on appeal to which they are entitled.

2. I now turn to the question whether Officer Spahr had constitutionally adequate grounds to conduct the pat-down search. I would find that the state did not meet its burden of establishing that Officer Spahr reasonably suspected that Johnson was armed and dangerous or otherwise a threat to his personal safety. So Officer Spahr did not have constitutionally adequate grounds for the pat-down.

“There are three levels of police-citizen encounters: (1) consensual police-citizen communication that involves no coercion or detention; (2) brief investigatory stops that must be supported by reasonable suspicion; and (3) arrests, which must be supported by probable cause.” (Citation omitted.) State v. Baker, 261 Ga. App. 258, 259 (582 SE2d 133) (2003). Officer Spahr’s encounter with Johnson, which included the pat-down, was a second-tier encounter. Id. To be constitutional, a second-tier encounter requires reasonable suspicion that the person stopped is engaged in criminal activity. Chapman v. State, 279 Ga. App. 200, 202 (630 SE2d 810) (2006). Pat-downs, a subset of second-tier encounters, require, in addition, reasonable suspicion that the suspect is armed and presently dangerous. Terry v. Ohio, 392 U. S. 1, 27 (III) (88 SC 1868, 20 LE2d 889) (1968).

Before an officer places a hand on the person of a citizen in search of anything, he must have constitutionally adequate, reasonable grounds for doing so. If an officer conducts a pat-down for weapons without sufficient justification, any evidence discovered is inadmissible under the exclusionary rule. Constitutionally adequate, reasonable grounds for a pat-down for weapons for officer or bystander safety are present when, based on particular and articulable facts, the officer actually and reasonably suspects that the individual is armed and dangerous or is otherwise a threat to personal safety.

(Citations and punctuation omitted.) Santos v. State, 306 Ga. App. 772, 774 (1) (703 SE2d 140) (2010). A pat-down is constitutionally permissible under the Fourth Amendment if it is “supported by a reasonable belief that the defendant was armed and presently dangerous. ...” (Punctuation omitted.) Molina v. State, 304 Ga. App. 93, 95 (695 SE2d 656) (2010), citing Ybarra v. Illinois, 444 U. S. 85, 92-93 (II) (100 SC 338, 62 LE2d 238) (1979).

The state has the burden of proving that the pat-down was lawful. Molina, 304 Ga. App. at 95. That burden entails proving that the officer reasonably believed the suspect to have been “armed or otherwise dangerous.” Lewis v. State, 307 Ga. App. 593, 595 (705 SE2d 693) (2011); Meadows v. State, 303 Ga. App. 40, 42 (1) (692 SE2d 708) (2010). See Terry v. Ohio, 392 U. S. at 7. The majority correctly notes that a second-tier encounter is authorized if the officer has reasonable suspicion “that the person stopped is, or is about to be, engaged in criminal activity.” United States v. Cortez, 449 U. S. 411, 417 (II) (A) (101 SC 690, 66 LE2d 621) (1981). See also Terry v. Ohio, 392 U. S. at 16-19. As a practical matter, a reasonable suspicion that a person is about to be engaged in criminal activity often encompasses a reasonable suspicion that a person is armed and dangerous. Officer Spahr’s testimony was not sufficient to establish reasonable suspicion either that Johnson was armed or otherwise dangerous or that he was about to engage in criminal activity.

Officer Spahr articulated no particular facts from which he could have reasonably drawn either inference. Officer Spahr testified that he decided to pat down Johnson because of his presence, at 3:00 a.m., in the parking lot of a shopping center at which an armed robbery had occurred a few weeks earlier. He explained that

[t]he purpose of that is at the time that I conducted the Terry pat-down, I was one of the only officers on the scene, and so just for my safety dealing with the subject one-on-one at that time of night in this situation where it may have been an armed robbery or something like that about to occur, then I just feel that for my safety I need to pat the subject down and make sure he doesn’t have any weapons upon his person.

But that is not a sufficient reason. See State v. Hopper, 293 Ga. App. 220, 222 (666 SE2d 735) (2008) (“A person’s mere presence in a high crime area does not give rise to reasonable suspicion of criminal activity, even if police observe conduct which they believe consistent with a general pattern of such activity.”).

Unable to find sufficient support in the officer’s testimony, the majority turns to the written police reports, which were stipulated into evidence. Attempting to justify reliance on those reports, the majority misreads United States v. Arvizu, 534 U. S. 266, 273 (122 SC 744, 151 LE2d 740) (2002). It correctly quotes the holding in Arvizu that de novo review entails consideration of the ability of trained and experienced officers to draw inferences “that might well elude an untrained person.” And it is true that this court has recognized that de novo review authorizes us “to give due weight to inferences drawn from [the historical] facts by resident judges and local law enforcement officers.” Higdon v. State, 261 Ga. App. 729, 733 (a) (583 SE2d 556) (2003) (quoting Ornelas v. United States, 517 U. S. 690, 699 (116 SC 1657, 134 LE2d 911) (1996)). But the majority’s analysis exceeds the outer limits of those propositions. As the United States Supreme Court held in Ornelas, de novo review is not compatible with “a policy of sweeping deference.” 517 U. S. at 697. And'we have held that the inferences drawn must be specific, articulable and based on fact. Higdon, 261 Ga. App. at 733. The United States Supreme Court persuasively illustrated the sort of inference to which deference is authorized in Arvizu, supra, 534 U. S. 266.

We think it quite reasonable that a driver’s slowing down, stiffening of posture, and failure to acknowledge a sighted law enforcement officer might well be unremarkable in one instance (such as a busy San Francisco highway) while quite unusual in another (such as a remote portion of rural southeastern Arizona). [The searching officer] was entitled to make an assessment of the situation in light of his specialized training and familiarity with the customs of the area’s inhabitants.

Id. at 275-276. See also Higdon, 261 Ga. App. at 733, quoting Ornelas, 517 U. S. at 700 (“To a layman(, for example, a) loose panel below the back seat armrest in (an) automobile . . . may suggest only wear and tear, but to (an experienced officer), who (has) searched roughly 2,000 cars for narcotics, it suggests that drugs may be secreted inside the panel. An appeals court should give due weight to a trial court’s finding that the officer was credible and the inference was reasonable.”).

It follows that the majority errs in holding that we should defer to Officer Spahr’s testimony “that he suspected another armed robbery was possibly about to occur” simply because of his “experience and specialized training.” We may not accord the officer such “sweeping deference.” See Ornelas, 517 U. S. at 697.

Officer Spahr did not testify about any circumstances that he observed that would cause a reasonable person to conclude that an armed robbery was about to occur or that any other crime had occurred or was about to occur. There is no evidence connecting Johnson to the earlier robbery at the restaurant or, apart from the simple possession for which he has been convicted, to any other criminal conduct.

Relying on the brief summaries of the restaurant employee’s initial telephone report set out in the officers’ written reports, the majority notes that Johnson had been seen “loitering or hiding behind the restaurant.” Cf. OCGA § 16-11-36 (setting out the elements of the misdemeanor of loitering). But when the officer approached Johnson, he was walking toward the open grocery store at the other side of the shopping center. As detailed above, Johnson gave the officer an explanation of his presence, and the officer testified that he found that explanation “probable.” The majority would reject the officer’s unambiguous sworn testimony. Instead it examines the one-sentence summary of Johnson’s explanation in the officer’s written report — “When asked what he was doing in the shopping center the subject stated that he lived off of Pinehurst View Court and had come to the shopping center to get the phone number of a cab company.” — and declares that explanation to be “improbable” and to be a basis for “heightened] reasonable suspicion.”

The majority’s construction of the evidence is unsustainable. Having sought to over-extend the principle that we may defer to certain inferences drawn by experienced, trained officers, the majority pivots and cites the countervailing rule that reasonable-suspicion analysis is objective and not controlled by the officers’ state of mind. See Brigham City, Utah v. Stuart, 547 U. S. 398, 404 (126 SC 1943, 164 LE2d 650) (2006); Johnson v. State, 299 Ga. App. 474, 478 (682 SE2d 601) (2009). The difficulty with applying that rule here is that the only evidence in this record is Officer Spahr’s testimony and written report and Officer Rankin’s written report. The majority rejects Officer Spahr’s testimony and forms his own contrary conclusion on the basis of Officer Spahr’s written report.

The single relevant sentence in Officer Spahr’s report is too slender a reed to support the weight the majority would attach to it. More fundamentally, especially given the limited information in this record, the officer’s determination that Johnson’s explanation was “probable” is the sort of inference to which we should defer. See Higdon, 261 Ga. App. 729; see also Arvizu, 534 U. S. 266; Ornelas, 517 U. S. 690.

Both the majority and the Chief Judge find unconvincing Johnson’s explanation of his conduct, as that explanation is reflected in Officer Spahr’s report. I agree that what Officer Spahr wrote is unconvincing. He provides no details of the explanation. He does not explain why he found it “probable.” But, as detailed above, notwithstanding the majority’s and Chief Judge’s determination to misunderstand him, Officer Spahr’s testimony made it clear that he found it so.

And the majority would substitute its judgment not only for the officer’s but also for that of the prosecuting attorney, who having had the opportunity to confer with the officer, chose not to elicit additional testimony about Johnson’s explanation or about the officer’s reasons for finding it credible.

Our Supreme Court has rejected the majority’s approach. See Miller, 288 Ga. at 290 (“the dissent’s analysis requires it to make credibility determinations not made by the trial court”); Palmer, 285 Ga. at 79 (because “the facts are not in dispute and no findings were made by the trial court, . . . the standard of review is de novo”). We cannot deem the state’s burden of proof to have been satisfied simply by invoking the trial court’s authority to disbelieve the state’s own witness.

Chief Judge Mikell would go even further. Invoking “subtle differences in dialect or habits of speech” and local “jargon,” he proposes that we defer to the trial court’s possible determination that Officer Spahr did not mean what he plainly said. If this court were authorized to decide cases on the basis of speculation about hidden meanings in plain language, there would be no such thing as principled appellate review.

If we were policy makers writing on a blank slate, we would be free to adopt a policy that would authorize a pat-down when a lone officer questions someone who seems to match a suspicious-person report at 3:00 in the morning. And respect for the dangers inherent in police work might lead us to do so. But we are not policy makers writing on a blank slate. And there are countervailing considerations. As our Supreme Court reminded us in Vansant, when it reversed us and reinstated a trial court’s grant of a motion to suppress:

No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.

Vansant, 264 Ga. at 321, citing Terry, 392 U. S. 1.

3. Since the pat-down was illegal, the relevant question becomes whether Johnson’s consent to the subsequent search that turned up the drugs was voluntarily given and not the product of the illegal pat-down. Contrary to Chief Judge Mikell, the legality of the Terry stop itself is not at issue; so there is no reason to discuss whether the consent was also a product of the Terry stop. As to the relevant question, the state failed to meet its burden of proof.

Officer Spahr did not discover the MDMA during the illegal pat-down. Officer Rankin found the drugs when he conducted a search pursuant to Johnson’s consent. The question, then, is “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” (Punctuation omitted.) McKinney v. State, 261 Ga. App. 218, 219 (2) (582 SE2d 463) (2003). “[I]n order to eliminate any taint from an involuntary seizure or arrest, there must be proof both that the consent was voluntary and that it was not the product of the illegal detention.” (Emphasis supplied.) Brown v. State, 188 Ga. App. 184, 187 (372 SE2d 514) (1988). Simply put, the state must prove not only that Johnson’s consent was voluntary but also that his consent was not the product of the illegal pat-down. See State v. Poppell, 277 Ga. 595, 597 (3) (592 SE2d 838) (2004).

Johnson argues that he did not freely and voluntarily give his consent because he was surrounded by three officers, one of whom had already conducted the illegal pat-down, and he was not told that he could leave. In other words, Johnson contends that the encounter had not de-escalated into a first-tier encounter, and therefore his consent was not voluntary. See State v. McMichael, 276 Ga. App. 735, 737 (1) (624 SE2d 212) (2005).

The [s]tate has the burden of proving that the consent was freely and voluntarily given under the totality of the circumstances. The crucial test is whether the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.

(Citations and punctuation omitted.) Davis v. State, 306 Ga. App. 185, 188 (2) (702 SE2d 14) (2010).

To determine whether the encounter became consensual, the courts must look to the totality of the circumstances in determining whether a reasonable person would have felt free to leave. A nonexhaustive list of factors that have been identified by courts in making this determination includes the existence and nature of any prior seizure; whether there was a clear and expressed endpoint to any such prior detention; the character of police presence and conduct in the encounter under review (for example — the number of officers, whether they were uniformed, whether police isolated subjects, physically touched them or directed their movement, the content or manner of interrogatories or statements, and “excesses” factors stressed by the United States Supreme Court); geographic, temporal and environmental elements associated with the encounter; and the presence or absence of express advice that the citizen-subject was free to decline the request for consent to search. In general, a full examination must be undertaken of all coercive aspects of the police-citizen interaction.

(Citations and punctuation omitted.) McMichael, 276 Ga. App. at 737-738.

The only testimony about Johnson’s consent was Officer Spahr’s testimony that, “Officer Rankin asked for consent to search the person — or the subject person for narcotics. The subjéct’s reply was, yes he could search his person. . . . And he consented to the search.” Officer Rankin did not testify at the hearing. Officer Spahr testified that nothing led him to believe that Johnson objected to the request. Johnson never asked if he could leave, nor did any of the officers tell him he was free to leave. Given that Johnson had just been subjected to an illegal pat-down search; that there had been no clear endpoint to that illegal detention; that Johnson, alone in a parking lot at 3:00 a.m., was then encircled by three uniformed and armed officers, who continued to question him; that another officer then requested his consent to another, more intrusive search of his person; and that the officers did not advise Johnson that he was free to leave or free to decline consent, I conclude that the police conduct would not have communicated to a reasonable person that he was at liberty simply to ignore the officers and go about his business. Accordingly, I would hold that the state did not satisfy its burden of showing that Johnson freely and voluntarily consented to the search.

Further, I would hold that Johnson’s consent was tied to the illegal pat-down. “The relevant factors [in making this determination] include the temporal proximity of an illegal seizure and consent, intervening circumstances, and the purpose and flagrancy of the official misconduct.” Brown, 188 Ga. App. at 187. Officer Spahr continued his conversation with Johnson after the illegal pat-down, never telling Johnson that he could leave, and the other officers arrived, asking the same questions that Officer Spahr had just asked. During this questioning, Johnson gave his consent.

[Tjhere was no significant lapse of time between the unlawful detention and the consent [, and] no intervening circumstances dissipated the effect of the unlawful detention. . . . Therefore, we [should] hold that the consent was the product of the illegal detention, and that the taint of the unreasonable [pat-down] was not sufficiently attenuated.

Id.

Chief Judge Mikell’s special concurrence asserts, at Division 2, that “any initial taint” arising out of the pat-down “was dissipated by the fact that,” when he asked Johnson to consent to another, more intrusive search, Officer Rankin “was apparently unaware of the initial pat-down.” The Chief Judge’s special concurrence goes on to charge that our analysis disregards causation and therefore constitutes an unwarranted and unprecedented extension of the exclusionary rule. He is mistaken on both counts. Both of his mistakes arise from a misunderstanding of the core legal issue before us. The Chief Judge erroneously confines his analysis to the motives and knowledge of the second officer. It is true, of course, that considerations relating to officers’ motives and incentives underlie much Fourth Amendment law. But the core legal issue before us is whether the state met its burden of proving “both that the consent [to the second, more intrusive search] was voluntary and that it was not the product of the illegal detention.” Brown, 188 Ga. App. at 187. Our application of that standard has entailed analysis of the relevant chain of causation; but contrary to the Chief Judge’s analysis, that chain does not run through Officer Rankin’s knowledge and motivations.

Decided December 1, 2011.

Marvin E Hicks III, for appellant.

Daniel J. Porter, District Attorney, Richard A. Vandever, Assistant District Attorney, for appellee.

Arguing that the pat-down did not taint Johnson’s consent to the subsequent search, the majority cites Langston v. State, 302 Ga. App. 541, 544, n. 3 (691 SE2d 349) (2010) and St. Fleur v. State, 296 Ga. App. 849, 850 (676 SE2d 243) (2009). Those cases are not on point. Although both involve pat-downs, both arose in a significantly different context — the expansion of traffic stops. In the former, the officer examined Langston’s license and rental agreement and inquired about the rental agreement’s apparent expiration. In the latter “St. Fleur [argued] that the search of his vehicle was rendered illegal despite the drug dog’s ‘alert,’ because the dog sniff and subsequent search followed an unjustified pat-down frisk of his person.” St. Fleur, 296 Ga. App. at 852 (2). Neither case sheds any light on the application of the factors identified in McMichael, 276 Ga. App. at 735, and Brown, 188 Ga. App. at 184, to the present case. Their only apparent relevance is that both note that a pat-down search takes only a few seconds. But if that is the majority’s argument, it proves too much. Brevity notwithstanding, an illegal pat-down search can taint subsequent consent to an additional search. See Debord v. State, 276 Ga. App. 110, 114 (622 SE2d 460) (2005).

For these reasons, the trial court should have granted Johnson’s motion to suppress, his conviction should be reversed, and I respectfully dissent.

       Even assuming that questioning about narcotic activity was unrelated to the suspicion which supported the lawful investigative detention, the additional questioning and consensual search relating to narcotics did not constitute a Fourth Amendment violation. The record shows that this questioning took place during Johnson’s otherwise lawful investigative detention, and “[a] valid ongoing seizure is not rendered ‘unreasonable’ simply because, during its course, certain unrelated questions, which the detainee is free to decline to answer, are posed to him or her.” Salmeron v. State, 280 Ga. 735, 738 (632 SE2d 645) (2006); Aponte v. State, 296 Ga. App. 778, 779-782 (676 SE2d 279) (2009).

       310 Ga. App. 814, 821-825 (714 SE2d 671) (2011) (Mikell, J., concurring specially).

       288 Ga. 286 (702 SE2d 888) (2010).

       Id.

       I acknowledge that a special rule, allowing de novo review, may apply when the trial court makes no explicit findings of fact. But the better practice would be to posit what would be the minimal findings of fact required to support the trial court’s decision on the motion and to review those under a clearly erroneous standard.

       Supra at 289-290 (2).

        State v. Palmer, 285 Ga. 75 (673 SE2d 237) (2009).

        State v. Underwood, 283 Ga. 498 (661 SE2d 529) (2008).

       (Footnote omitted.) State v. Baker, 261 Ga. App. 258, 259 (582 SE2d 133) (2003).

       It is unlikely that we would permit an inference of criminal intent to be drawn solely from testimony that a citizen was dressed “all in black.” Many people prefer black clothing without harboring criminal intent.

       The dissent makes the same mistake as did Officer Spahr. Appellate reports, state and federal, include many examples of Terry stops which were not accompanied by a pat-down, and the particulars of the suspicion required for a valid Terry stop may not be the same as the circumstances required for a valid pat-down, as discussed below.

       (Punctuation omitted.) Molina v. State, 304 Ga. App. 93, 95 (695 SE2d 656) (2010), citing Ybarra v. Illinois, 444 U. S. 85, 92-93 (II) (100 SC 338, 62 LE2d 238) (1979). See also Arizona v. Johnson, 555 U. S. 323, 327 (129 SC 781, 172 LE2d 694) (2009).

       Compare St. Fleur v. State, 296 Ga. App. 849, 853 (2) (676 SE2d 243) (2009) (“officers did not exploit the pat-down as a means for discovering the [contraband]”) (footnote omitted), with Brown v. State, 188 Ga. App. 184, 187 (372 SE2d 514) (1988) (“the consent was the product of the [unconstitutional act]”).

       E.g., Oregon v. Elstad, 470 U. S. 298, 306 (II) (A) (105 SC 1285, 84 LE2d 222) (1985); State v. Poppell, 277 Ga. 595, 597 (3) (592 SE2d 838) (2004) (evidence at issue was clearly “fruit of the poisonous tree”; therefore, “taint” analysis was unnecessary); Burnham v. State, 265 Ga. 129, 134 (5) (c) (453 SE2d 449) (1995) (evidence at issue, a confession, was product of illegal arrest and was not sufficiently attenuated to remove “taint”); Moore v. State, 263 Ga. 11-12 (1) (427 SE2d 766) (1993) (later-obtained evidence, a confession, not “tainted” because illegality was a technical Miranda violation and not a due process violation); Devier v. State, 253 Ga. 604, 616 (7) (a) (323 SE2d 150) (1984) (later-obtained evidence, a confession, not obtained by exploitation of the illegality, i.e, not “fruit of the poisonous tree”). See also United States v. Miller, 821 F2d 546, 549-550 (II) (C) (11th Cir. 1987); United States v. Thompson, 712 F2d 1356, 1361-1362 (III) (11th Cir. 1983).

       371 U. S. 471 (83 SC 407, 9 LE2d 441) (1963).

       Suppose a defendant is properly arrested, pursuant to a valid arrest warrant. After “booking” and while being escorted to his cell in the county jail, he is unconstitutionally assaulted by a deputy sheriff who has no connection with his case. Eight hours later, an inventory search of the defendant’s car reveals contraband. Would we waste time analyzing whether the assault had “tainted” the later finding of the contraband?


source: Caselaw Access Project

author: Blackwell, Judge.

license: Public Domain

text:
    A11A1323.
    VANN v. FINLEY et al.
    (721 SE2d 156)
   Blackwell, Judge.

After Michelle Borror and Ryan Holt died in an electrical fire at their mobile home in Richmond County, their parents sued Lewis Vann, an electrical inspector with the Augusta License Inspection Department, for wrongful death. The Department assigned Vann to inspect the home before Georgia Power connected electricity to it, and the parents allege that Vann negligently failed to inspect the home at all or, at the least, to inspect it properly, and they assert that his negligence is a proximate cause of the deaths of their children. After discovery was complete, Vann moved for summary judgment, but the court below denied his motion. Vann now appeals from the denial of summary judgment, contending that he has immunity with respect to his duty to inspect the home and, in any event, that there is no evidence from which a jury properly might find that his negligence, if any, is a proximate cause of the deaths. Upon our review of the record, we see no error in the denial of summary judgment, and we affirm the judgment below.

The standard for summary judgment is settled and familiar. Summary judgment is warranted when one or more material facts are undisputed, as shown by the pleadings and the evidence of record, and these facts entitle one party to judgment as a matter of law. Strength v. Lovett, 311 Ga. App. 35, 39 (2) (714 SE2d 723) (2011). If the record shows that the plaintiff cannot possibly prove an essential element of his case for which he would bear the burden of proof at trial, see Cowart v. Widener, 287 Ga. 622, 623 (1) (697 SE2d 779) (2010), or if it shows that the defendant has proved conclusively an affirmative defense to the claims of the plaintiff, see Weston v. Dun Transp. & Stringer, Inc., 304 Ga. App. 84, 85 (695 SE2d 279) (2010), the defendant is entitled to summary judgment. When a defendant moves for summary judgment based on the inability of the plaintiff to prove an element of his case, the defendant need only point “to an absence of evidence in the record by which the plaintiff might carry the burden to prove that element,” and if the defendant does so, the plaintiff “cannot rest on his pleadings, but rather must point to specific evidence giving rise to a triable issue.” Strength, 311 Ga. App. at 39 (2) (citations and punctuation omitted). When a defendant, however, moves for summary judgment based on an affirmative defense, the defendant must come forward with evidence sufficient to prove each element of his defense, and he is entitled to summary judgment only if he does so, and only if the plaintiff then fails to come forward with any evidence to dispute one or more elements of the defense. See Weston, 304 Ga. App. at 85. We review the denial of a motion for summary judgment de novo, viewing the evidence in the record, as well as any inferences that might reasonably be drawn from that evidence, in the light most favorable to the nonmoving party. Strength, 311 Ga. App. at 36.

So viewed, the record in this case shows that Holt leased a mobile home in July 2006 for himself and Borror, and Georgia Power was asked to connect electrical power to the home. Because it had been vacant for more than 180 days, however, a reconnect inspection was required before electrical power could be connected, and Georgia Power advised that someone should contact the Augusta License Inspection Department to schedule an inspection. The Department was contacted, and it assigned Vann to conduct the inspection.

According to Vann, he made arrangements to inspect the mobile home on the morning of August 1, and so that he could enter the home as a part of the inspection, he arranged for one of its residents to meet him on that day. Vann went to the home at the appointed time, he said, but neither Borror nor Holt appeared. After waiting “quite a long time,” Vann proceeded to inspect the electrical pole at the mobile home, the electrical meter, the service panel underneath the meter, and the yard surrounding the home. According to Vann, nothing about the pole, meter, service panel, or yard suggested that it might be unsafe to connect electrical power to the mobile home, and he saw no signs of blight. Vann then hung a door tag on the front door of the home, which advised the residents that an inspector had come to the home for an inspection and that they should contact the Department to schedule “an appointment” with the inspector. Vann wrote his phone number on the tag. Later that afternoon, Vann testified, an unidentified “young woman” called him about the tag, and he told her that her home needed smoke detectors, to which she responded that smoke detectors either had been installed or soon would be. After speaking with this woman, Vann signed an electrical release form, and based on this form, the Department notified Georgia Power that it could connect electrical power to the home.

Although Vann maintains that he actually visited and inspected the exterior of Borror and Holt’s home on August 1, there is some evidence that he did not. Vann admitted at his deposition, for instance, that he did not notice damage to the container that enclosed the electrical meter during his inspection of the meter, notwithstanding that other evidence in the record shows that the damage was obvious. Vann also admitted that he did not see a lock that had been placed on the container, even though another witness said that the lock was so large and obvious that it could be seen from a distance of 30 to 40 feet. When Vann completed his paperwork following the inspection, he described the home as a “blue trailer,” although other evidence shows that the mobile home was white. Vann also failed to notice a “junked car” in the side yard of the mobile home, as well as several obviously abandoned and rotting trailers on the property surrounding the mobile home, all of which was visible from the yard. In addition, two witnesses, both of whom were near Borror and Holt’s home on the morning of August l, testified that they never saw any inspectors at the home on that day. There is conflicting evidence, therefore, about whether Vann conducted any inspection of the mobile home before the Department authorized Georgia Power to connect electrical power. The evidence is undisputed, however, that Vann never entered the home to inspect its interior. In any event, Georgia Power connected electrical power to the home a few days later.

Then, in the early morning hours of August 22, tragedy struck. An electrical fire erupted in the kitchen of the mobile home, smoke filled the home, and Borror and Holt died of smoke inhalation, failing to escape before succumbing to the smoke. There is conflicting evidence about whether a smoke detector was installed in the home at the time of the fire. An owner of the mobile home testified that a smoke detector had been installed, and he claimed that he found a partially burned smoke detector at the scene of the fire, albeit several years after the fire occurred. But an investigator for the Augusta-Richmond County Fire Department and two other fire investigators searched the fire scene within days of the fire, and they testified that they found no smoke detector and no evidence that one had been installed. One investigator offered his opinion, based on his investigation of the fire scene, that no smoke detector had been installed. Moreover, there is evidence in the record that this fire generated significant smoke, that a smoke detector would have sounded within a minute of detecting such smoke, and that properly functioning smoke detectors “more often than not” successfully wake sleeping residents, and in light of this evidence, the fact that Borror and Holt failed to escape the fire is, we think, additional proof that no smoke detector had been installed.

In March 2007, Borror and Holt’s parents filed this lawsuit, alleging that Vann negligently failed either to inspect the home at all or to properly inspect it before the Department authorized Georgia Power to connect electrical power. If Vann had properly inspected the home, the parents contend, he would have seen that no smoke detector had been installed, and he would have insisted upon the installation of a smoke detector before electrical power was connected. And if that had happened, the parents assert, Borror and Holt likely would have escaped the fire with their lives.

1. We first consider the contention that Vann has immunity for his inspection of the mobile home. The doctrine of official immunity “offers public officers and employees limited protection from suit in their personal capacity,” Cameron v. Lang, 274 Ga. 122, 123 (1) (549 SE2d 341) (2001), and it requires the courts, when a public officer or employee is sued individually, to distinguish between his ministerial and discretionary duties. The doctrine permits a public officer or employee to be sued individually for the negligent performance of his ministerial duties, but he can be sued individually for the performance of his discretionary duties only if he acts wilfully, wantonly, or beyond the scope of his authority. Gilbert v. Richardson, 264 Ga. 744, 752 (6) (452 SE2d 476) (1994). Our Supreme Court has explained the distinction between ministerial and discretionary duties:

A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. A discretionary act, however, calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.

Murphy v. Bajjani, 282 Ga. 197, 199 (1) (647 SE2d 54) (2007). “The determination of whether an action is discretionary or ministerial depends on the character of the specific actions complained of, not the general nature of the job, and is to be made on a case-by-case basis.” McDowell v. Smith, 285 Ga. 592, 594-595 (678 SE2d 922) (2009) (citation and punctuation omitted). This Court has acknowledged before that the line between ministerial and discretionary duties sometimes is a hazy one, and some duties may properly be characterized as ministerial, even though some aspect of the duty may involve an exercise of judgment, and some duties may properly be characterized as discretionary, notwithstanding that some aspect of the duty may involve the performance of a required act. Todd v. Brooks, 292 Ga. App. 329, 331 (665 SE2d 11) (2008). See also Golden v. Vickery, 285 Ga. App. 216, 218-219 (645 SE2d 695) (2007). When a public officer or employee is absolutely required to perform a specific task, “even though the manner in which it is [to be performed] is left to the employee’s discretion,” the duty to perform the task is properly characterized as ministerial. Cotton v. Smith, 310 Ga. App. 428, 434 (2) (714 SE2d 55) (2011) (citation and punctuation omitted).

In this case, the parents contend that Vann had a ministerial duty to actually inspect the mobile home in which their children died before Georgia Power was authorized to connect electrical power and that Vann had a ministerial duty to enter the home and check for smoke detectors as a part of his inspection. Vann responds that the evidence in the record shows definitively that his duties with respect to an inspection of the home were merely discretionary and that, for this reason, he is entitled to summary judgment. Vann fails to persuade us.

The record clearly shows that Vann had a ministerial duty to inspect the mobile home. The evidence is undisputed that Augusta-Richmond County absolutely requires a reconnect inspection of any dwelling that has been vacant for 180 days or more before Georgia Power can connect electrical power to the dwelling, and the evidence shows that it was the policy of the Department to authorize Georgia Power to connect electrical power to such a dwelling only after one of its electrical inspectors had completed a reconnect inspection. The evidence also is undisputed that the mobile home that Holt leased in July 2006 had been vacant for more than 180 days and that the Department assigned the responsibility of conducting a reconnect inspection of the mobile home to Vann. This evidence compels the conclusion that Vann had a ministerial duty to actually conduct a reconnect inspection at the mobile home before the Department authorized Georgia Power to connect electrical power. See Georgia Dept. of Transp. v. Heller, 285 Ga. 262, 267-268 (2) (674 SE2d 914) (2009) (where municipal taxicab inspector had no discretion to inspect taxi without proof of prior inspection by taxi company and had no discretion to decline to check tire tread, his “unauthorized and inadequate inspection that allowed the taxi in question to be cleared for operation” amounted to a breach of his ministerial duties); Barnard v. Turner County, 306 Ga. App. 235, 238 (1) (701 SE2d 859) (2010) (“Where there is an established policy requiring an official to take specified action in a specified situation, the policy creates a ministerial duty on the part of the official to perform the specified task.”) (punctuation omitted); Happoldt v. Kutscher, 256 Ga. App. 96, 98-99 (1) (567 SE2d 380) (2002) (where a county has established a policy requiring its employee to inspect construction sites and to review plats to ensure compliance with a specific county ordinance, the performance of such tasks is ministerial). The fact that some aspects of the manner in which a reconnect inspection is to be performed may be left to the discretion of the inspector does not render the duty to inspect discretionary. See Cotton, 310 Ga. App. at 434 (2).

Whether Vann had a ministerial duty to enter the home and check for smoke detectors is a closer question, but because there is some evidence from which a trier of fact might conclude that Vann absolutely was required to do these things, it is not a question that properly can be resolved on summary judgment. Vann and other employees of the Department insist that the scope of a reconnect inspection is left to the discretion of the inspector, and they say that no inspector is absolutely required to enter a dwelling and look for anything inside it, including smoke detectors, before electrical power can be connected. At his deposition, however, Vann admitted that, as the senior electrical inspector at the Department, he has trained other electrical inspectors how to conduct reconnect inspections, and he taught them to check for smoke detectors. Moreover, Vann admitted in his verified response to an interrogatory that reconnect inspections “are performed pursuant to policy using the International Property Maintenance Code, 2003 edition,” and he admitted at his deposition that the International Property Maintenance Code “is the policy and procedure manual that governs how reconnect inspections are performed” and that the International Property Maintenance Code requires that smoke detectors be installed in residences. Other Department employees testified that they routinely look for smoke detectors as a part of a reconnect inspection. The owners of the mobile home that Holt leased, who own several other mobile homes in the same park, testified that, in their experience with the Department, a reconnect inspection involves an inspection of the interior of the dwelling. And the manager of another mobile home park in Augusta testified by affidavit that, in his experience, “every time [the Department] conducted a reconnect inspection,” the inspector examined both the exterior and interior of the home, and the inspector “always” checked for functioning smoke detectors. In light of this evidence, we cannot say on summary judgment that Vann did not have a ministerial duty to enter the mobile home and check for smoke detectors. For these reasons, the court below properly denied summary judgment on the basis of official immunity.

2. We turn next to the contention that, even if Vann were negligent in the performance of a ministerial duty, the parents cannot prove that his negligence was a proximate cause of their children’s deaths. We previously have explained the concept of proximate cause in this way:

The injury must be the natural and probable consequence of the wrongful conduct, such a consequence as under the surrounding circumstances of the case might and ought to have been foreseen by the wrong-doer as likely to flow from his act. The injury must be the direct result of the misconduct charged; but it will not be considered too remote if, according to the usual experience of mankind, the result ought to have been apprehended.

Strength, 311 Ga. App. at 40 (2) (a) (citation and punctuation omitted). We also have explained that the question of proximate cause is usually reserved for the jury and can be decided on summary judgment only “in plain and indisputable cases.” Villanueva v. First American Title Ins. Co., 313 Ga. App. 164 (721 SE2d 150) (2011) (citation and punctuation omitted). Thus, summary judgment on the issue of proximate cause can be granted only where “reasonable persons could not differ as to both the relevant facts and the evaluative application of legal standards (such as the legal concept of ‘foreseeability’) to the facts.” Id. (citation and punctuation omitted). See also Zwiren v. Thompson, 276 Ga. 498, 500 (578 SE2d 862) (2003) (“What amounts to proximate cause is undeniably a jury question and is always to be determined on the facts of each case upon mixed considerations of logic, common sense, justice, policy, and precedent.”) (citations and punctuation omitted).

The evidence in the record shows that faulty wiring in a light fixture in the kitchen of the mobile home sparked the fire, that the fire produced a tremendous amount of smoke, and that Borror and Holt died as a result of smoke inhalation. The relevant question, therefore, is whether any negligent breach by Vann of his ministerial duties might be found to be a proximate cause of their deaths. The parents contend that their children died for want of a working smoke detector, that Vann would have noticed the absence of smoke detectors and caused smoke detectors to be installed, if only he had properly performed his ministerial duties with respect to a reconnect inspection, and that if smoke detectors had been installed, their children likely would have survived the fire. We think this is a viable theory of proximate causation, and whether it has merit is for a jury to decide.

To support their theory of proximate cause, the parents presented the expert testimony of a fire investigator, who opined that the mobile home probably burned for about ten to twenty minutes. A properly installed smoke detector, however, typically would sound within a minute of the ignition of the fire, the expert said. The expert also explained that smoke detectors are designed specifically to wake people up and that studies show that, “more often than not,” the devices successfully wake people and alert them to a fire. This evidence and other evidence in the record would permit a jury to conclude, we think, that the lack of a smoke detector, and therefore any breach by Vann of a ministerial duty to check for smoke detectors, was a proximate cause of the deaths at issue. See Housing Authority of City of Atlanta v. Jefferson, 223 Ga. App. 60, 62 (2) (476 SE2d 831) (1996) (affirming denial of summary judgment on the issue of proximate cause and finding that the question of whether the lack of a smoke detector contributed to the plaintiffs injuries was for the jury).

Vann also argues that Georgia Power and the owners of the mobile home were negligent — Georgia Power because it connected electrical power even after finding that the container that enclosed the meter was damaged, and the owners because they failed to install a smoke detector — and that their negligence amounts to intervening and superseding causes of Borror and Holt’s deaths, which break any chain of causation that leads back to him. Perhaps there is some intervening and superseding cause that breaks the causal chain, but that is a question, we think, for a jury to decide. As to Georgia Power, we note that Georgia Power did, in fact, defer connecting power until the damage to the container was repaired, and Vann points us to no evidence that the damage to the container contributed to the fire or that Georgia Power, in the course of investigating the damage to the container, should have discovered the faulty wiring that did cause the fire or any absence of smoke detectors. And as to the owners, if no smoke detector was, in fact, installed at the mobile home, perhaps they were negligent in failing to install one. But generally speaking, the intervening negligence of another will relieve a defendant of liability only if the defendant could not have reasonably foreseen the negligence of the other. Cotton, 310 Ga. App. at 440. Here, a jury might well conclude that an electrical inspector should have reasonably anticipated, based on his experience in conducting reconnect inspections, that an owner might not have installed a smoke detector in the dwelling. Indeed, the evidence that inspectors routinely check for smoke detectors when conducting reconnect inspections suggests as much. Perhaps a jury might find the conduct of Georgia Power or the owners to be an intervening and superseding cause, but a jury might also find such conduct to be merely a concurring cause. See Glisson v. Freeman, 243 Ga. App. 92, 108 (5) (532 SE2d 442) (2000) (“[T]he proximate cause of an injury may be two separate and distinct acts of negligence acting concurrently; and . . . the person injured may recover from either or both of the persons responsible. The mere fact that the plaintiffs injuries would not have been sustained had only one of the acts of negligence occurred will not of itself operate to limit the other act as constituting the proximate cause.”). Proximate cause in this case is a question for the jury, and the court below did not err when it denied summary judgment on the basis of proximate causation.

Decided December 1, 2011

Shepard, Plunkett, Hamilton & Boudreaux, Daniel W Hamilton, for appellant.

Joseph R. Neal, Jr., Douglas M. Nelson, Christopher J. Hudson, Stanley C. House, Charles M. Cork III, for appellees.

Judgment affirmed.

Barnes, E J., and Adams, J., concur.

       The parents also sued the owners of the mobile home, who had rented it to Borror and Holt, and Georgia Power Company. Neither the owners nor Georgia Power, however, is a party to this appeal.

       Vann also appeals from the denial in part of his motion to exclude the opinions of an expert witness pursuant to OCGA § 24-9-67.1, but this part of his appeal does not warrant much discussion. In his enumerations of error, Vann claims that the court below erred when it failed to exclude five particular opinions offered by this expert. But in his principal brief on appeal, Vann offers no reasoned argument in support of this claim, and instead, he just refers this Court to some papers that he filed below. A mere reference to papers contained in the record on appeal, however, does not satisfy our requirement that the briefs on appeal contain reasoned argument in support of each claim of error, and for this reason, we must conclude that Vann has abandoned this claim. See Court of Appeals Rule 25 (c) (2) (“Any enumeration of error which is not supported in the brief by citation of authority or argument may be deemed abandoned.”) (emphasis supplied); see also Gooch v. Tudor, 296 Ga. App. 414, 422 (3) (674 SE2d 331) (2009); In the Interest of R. S., 287 Ga. App. 228, 232 (2) (651 SE2d 156) (2007). Although Vann offers some reasoned argument in his reply brief in support of this claim — about one of the five opinions of the expert that is mentioned in his enumerations of error and a sixth opinion that is not — we do not consider arguments that are raised for the first time in a reply brief. See Hart v. Redmond Regional Med. Center, 300 Ga. App. 641, 641, n. 2 (686 SE2d 130) (2009).

       Vann also contends on appeal that he is entitled to summary judgment on the parents’ claim for punitive damages, arguing that there is no allegation or evidence in this case that he “acted with the specific intent to cause harm.” The absence of any proof of a specific intent to cause harm might well be a reason to limit any award of punitive damages in this case to $250,000, see OCGA § 51-12-5.1 (g), but it is no reason to preclude a jury from considering whether punitive damages in some lesser amount might be warranted. Although Vann attempts in his reply brief to make a new argument about punitive damages — he says in his reply brief that there also is no evidence of “willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences,” evidence that is, in fact, required to authorize an award of punitive damages, see OCGA § 51-12-5.1 (b) — as we already have explained, see note 2 supra, we do not consider arguments raised for the first time in a reply brief.

       It appears from the record that different witnesses have referred to this inspection by different names. Some have referred to it as a “wiring inspection,” some have called it an “electrical inspection,” and Vann and other employees of the Department have referred to it as a “reconnect inspection.” In this opinion, we refer to the inspection as a “reconnect inspection.”

       Around the time of the fire, Vann did not routinely conduct reconnect inspections, but he has conducted 100 or more reconnect inspections while employed with the Department. The Department inspector usually responsible for reconnect inspections of mobile homes apparently was unavailable when an inspection was requested at the home of Borror and Holt.

       Notably, several Department employees other than Vann testified that, during a reconnect inspection, they routinely check the meter and the container that encloses it, and they would not authorize a reconnect if the container was damaged.

       Vann insists that the primary purpose of a reconnect inspection is to facilitate the enforcement of land use ordinances by identifying blighted properties. During a reconnect inspection, Vann testified, the inspector is supposed to look out for properties that do not comply with the ordinances concerning, among other things, overgrown weeds and shrubbery, junked cars, and trash. The director of the Department and all of its current electrical inspectors agreed that ordinance enforcement is one of the main purposes of a reconnect inspection. According to both Vann and the director, the presence of a junked car in the side yard of a mobile home would be, without more, a sufficient basis for failing the home on a reconnect inspection.

       One of these witnesses was a neighbor of Borror and Holt, and the other is one of the owners of the mobile home that Holt leased.

       After the Department authorized Georgia Power to connect electrical power, a Georgia Power lineman went to the mobile home on August 2, but he noticed the damage to the container that enclosed the meter, and he declined to connect electrical power until this damage was repaired. Someone at Georgia Power apparently notified the owners of the mobile home of this damage, and they repaired it. The same Georgia Power lineman returned to the home a day or so later and, seeing that the damage had been repaired, connected electrical power.

       Neither Borror nor Holt had significant burns from the fire itself, and both were found in or near the bedrooms in the back of the mobile home, away from the kitchen.

       Vann claims immunity under the doctrine of official immunity, which protects public officers and employees generally, but he also claims special immunity as an inspector under the Building and Housing Code, the Uniform Act for the Application of Building and Fire Related Codes to Existing Buildings, the Minimum Fire Safety Standards Code, the International Property Maintenance Code, which has been adopted by Augusta-Richmond County, and the Augusta-Richmond County Code. None of these claims of statutory immunity, however, has much merit or warrants much discussion. With respect to the Building and Housing Code, OCGA § 8-2-171 (d) provides that no municipal or county inspector “inspecting a pre-owned manufactured home pursuant to this Code section shall be liable for any injuries to persons resulting from any defects or conditions in such pre-owned manufactured home” (emphasis supplied), but this statute was enacted nearly four years after Vann says he inspected the mobile home at issue here, and he could not possibly have conducted any inspection at that time “pursuant to” a statute that had not yet been enacted. As for the Uniform Act, OCGA § 8-2-222 relieves municipal and county employees of liability “for damages sustained as a result of any fire or hazard covered by this article by reason of inspection or other action taken or not taken pursuant to this article” (emphasis supplied), and as for the Minimum Fire Safety Standards Code, OCGA § 25-2-38.1 (a) similarly relieves municipal and county employees of liability “for damages sustained as a result of any fire or related hazard covered in this chapter by reason of any inspection or other action taken or not taken pursuant to this chapter.” (Emphasis supplied.) But Vann points us to no evidence in the record that he conducted any inspection of the mobile home at issue pursuant to the Uniform Act or the Minimum Fire Safety Standards Code. Finally, as for the ordinances of Augusta-Richmond County and its adoption of the International Property Maintenance Code, we note that our Constitution authorizes only the General Assembly to immunize public officers and employees from liability “for injuries and damages caused by the negligent performance of, or negligent failure to perform, their ministerial functions,” Ga. Const., Art. I, Sec. II, Par. IX (d), and no local ordinance can supersede the Constitution. See State v. Hartrampf, 273 Ga. 522, 523-524 (544 SE2d 130) (2001). Accordingly, if Vann is charged with negligence in the performance of a ministerial duty, Augusta-Richmond County cannot cloak him with immunity, and if he is not so charged, the doctrine of official immunity is sufficient to protect him.

       Vann was asked: “And so have you ever taught [other electrical inspectors] on an existing dwelling where power has been off for 180 days or more to check for — to make sure smoke detectors are in the dwelling?” Vann responded: “Yeah. We tell them check — you know, check the smoke detectors, yes. You know, talk to the people, tell them — make sure they get a smoke detector . . . .”

       Vann argues on appeal that his conduct could not have been a proximate cause of the fire because an interior inspection of the mobile home would not have revealed the faulty wiring that sparked the fire. The question, however, is not whether his conduct caused the fire, but whether it caused the deaths of Borror and Holt.


author: McFADDEN, Judge.

text:
    A11A1344.
    VILLANUEVA et al. v. FIRST AMERICAN TITLE INSURANCE COMPANY.
    (721 SE2d 150)
   McFADDEN, Judge.

Derick Villanueva and The Villanueva Law Firm, LLC (formerly known as Moss & Villanueva, LLC) appeal the denial of their motion for summary judgment and the grant of partial summary judgment to First American Title Insurance Company in this action stemming from a real estate closing. Because Villanueva was not a party to the contract upon which First American bases its claim, we reverse the grant of summary judgment to First American on its breach of contract claim and hold that Villanueva is entitled to summary judgment on that claim. As a matter of first impression, we hold that legal malpractice claims are not per se unassignable and Homecomings Financial assigned its claim to First American. Consequently First American may proceed in its own name, and we reject Villa-nueva’s contention that the case should be dismissed on the basis that it cannot. We also hold that whether an intervening criminal act insulates Villanueva from liability turns on foreseeability and is therefore a jury question. We therefore affirm the denial of Villa-nueva’s motion for summary judgment on the legal malpractice claim.

Summary judgment is appropriate when the evidence, viewed favorably to the nonmoving party, shows that no genuine issues of material fact remain and the moving party is entitled to judgment as a matter of law. See OCGA § 9-11-56 (c). Many of the underlying facts in this case are undisputed. Villanueva is a 2000 graduate of Emory University and a 2003 graduate of Syracuse Law School, and he is a member of the Georgia Bar. In January 2007, he began working as an associate attorney in George Moss’s law firm, The Moss Firm/Lenox Title. The firm had been organized in 2005 as The Moss Firm, LLC.

Within months, Villanueva became uncomfortable with the firm’s operations, particularly Moss’s connection with a nonlawyer, Neal Allen, and the fact that Allen had access to the escrow account the firm used, an account in the name of Lenox Title, LLC. Villanueva knew that lawyers should not allow nonattorneys access to the escrow account. In fact, only Allen and Margaret Moss, George Moss’s wife, were signatories on that account; neither was an attorney. George Moss was not a signatory on the account. Villa-nueva also believed Moss displayed signs of senility.

In spite of his misgivings, Villanueva opened a new firm with Moss, Moss & Villanueva, in April 2007. Villanueva and Moss agreed that Villanueva would use Moss’s office because Villanueva did not have enough money to start his own firm. Villanueva never had access to the Lenox Title trust account used by the Moss Firm, but he did have access to a Moss & Villanueva escrow account once it had been established.

On May 18, 2007, Villanueva acted as the closing attorney for Natasha Merritt’s refinance of her mortgage. Homecomings Financial, LLC was the lender in the refinance transaction. Merritt’s property was subject to two earlier mortgages totaling close to $1.2 million. Homecomings prepared closing instructions directed to “Moss Law Firm” that required the closing attorneys to pay off the earlier mortgages. Homecomings made clear that its loan was to be recorded in first lien position. Villanueva signed the closing instructions as the settlement agent.

A document called a disbursement authorization form prepared by Homecomings listed the settlement agent as “Moss Law Firm,” while the various HUD-1 settlement statements listed the settlement agent as “Lenox Title, LLC.” The HUD-1 settlement statements also listed various disbursements to “Moss & Villanueva LLC/Lenox Title,” including attorney fees, document preparation fees, post closing fees, and fees for a title examination and tax report. Villanueva signed the settlement statements.

Villanueva instructed Homecomings to send the refinance funds to the Lenox Title escrow account, in spite of his misgivings about Allen’s access to that account. The Moss & Villanueva escrow account had not yet been established, although the firm had been. Homecomings wired the funds into the Lenox Title account. After the closing, Villanueva forwarded the closing documents to Homecomings along with a cover letter on Moss & Villanueva letterhead.

After the closing, in accordance with their usual practice, Villanueva gave the paperwork to George Moss and asked him to pay off Merritt’s earlier mortgages. But the mortgages were not paid off. In an apparent attempt to hide the problem, Allen made some payments on Merritt’s mortgages. He closed the Lenox Title account on August 3, 2007, withdrawing more than $500,000. At the time, close to $800,000 was still owed on Merritt’s first mortgages. Moss died on March 21, 2008.

First American had issued title insurance for the refinance transaction, insuring Homecomings. In its closing protection letter to Homecomings, First American agreed to reimburse Homecomings for actual loss it incurred in connection with the closing conducted by The Moss Firm when the loss arose out of the failure of the “Approved Closer” to comply with the written closing instructions. The letter provided that if First American reimbursed Homecomings in accordance with these terms, it would be “subrogated to all rights and remedies [Homecomings] would have had against any person or property. ...” First American, as the title insurer, paid off the loans.

First American filed this lawsuit against Moss’s estate, Villa-nueva, the Villanueva Law Firm, LLC f/k/a Moss & Villanueva, LLC (together, “Villanueva”), Lenox Title, Allen, and others. It alleged that the attorney defendants committed malpractice and breached an agreement with Homecomings, to which First American was subrogated, by failing to pay off Merritt’s first mortgages.

Villanueva moved for complete summary judgment, and First American moved for partial summary judgment against Villanueva. It sought summary judgment on its breach of contract claim as well as one of Villanueva’s defenses.

The trial court granted First American’s motion and denied Villanueva’s without specifying the basis of its decision. It also decided that First American is the proper party in interest and therefore denied as moot First American’s motion to add or substitute Homecomings as plaintiff. Villanueva filed this appeal.

1. Villanueva argues that he is entitled to summary judgment on the breach of contract claim, because he was not a party to the contract upon which First American bases its claim. The closing instructions, the document that forms the basis of the contract, is between Moss Law Firm and Homecomings; Villanueva signed as “settlement agent.” OCGA § 10-6-53 provides that “if the principal’s name is disclosed and the agent professes to act for him, it will be held to be the act of the principal.” Consequently, the closing instructions form a contract between Homecomings and Moss Law Firm. “[A]n agent who, acting within the scope of his authority, enters into contractual relations for a disclosed principal does not bind himself, in the absence of an express agreement to do so.” (Citation and punctuation omitted.) Action Concrete v. Focal Point Engineering, 296 Ga. App. 567, 569 (675 SE2d 303) (2009).

First American cites First Bank &c. Co. v. Zagoria, 250 Ga. 844 (302 SE2d 674) (1983), in support of its argument that Villanueva cannot escape liability by contending that the law firm, not he individually, represented Homecomings. In Zagoria, the Supreme Court held that two shareholders of a professional corporation engaged in the practice of law were jointly and severally liable to a client for the failure of one of the shareholders to remit monies owed to the client. But Zagoria was overruled by Henderson v. HSI Financial Svcs., 266 Ga. 844 (471 SE2d 885) (1996). In Henderson, the Supreme Court held that “shareholders of professional corporations are not personally liable for corporate debts except by personal conduct.” Henderson, 266 Ga. at 844. The undisputed evidence is that Villanueva was an employee of the Moss Law Firm, not a shareholder, so Zagoria is factually distinguishable in any event.

First American assumes that the contract consists of not only the closing instructions but also the HUD-1 settlement statements. Other jurisdictions have questioned or rejected the contention that HUD-1 settlement statements are contracts instead of itemized directions for disbursing funds. See, e.g., Cornelius v. Fidelity Nat. Title Co., 2009 U.S. Dist. LEXIS 22674 (W.D. Wash. 2009); Koschene v. Hutchinson, 73 Va. Cir. 103, 105 (Va. Cir. Ct. 2007). We are not required to decide the issue here because even assuming that the HUD-1 settlement statements were part of the contract, the statements listed Lenox Title, LLC, not Villanueva, as the settlement agent.

The identity of the parties is an essential term of the contract and must be certain. Peace v. Dominy Holdings, 251 Ga. App. 654, 655-656 (1) (554 SE2d 314) (2001). The evidence shows no meeting of the minds identifying Villanueva as a party to the contract. Therefore, no enforceable contract existed between Homecomings and Villanueva, and the trial court erred in granting First American summary judgment and denying Villanueva summary judgment on the breach of contract claim. Gill v. B & R Intl., 234 Ga. App. 528, 530-531 (1) (b) (507 SE2d 477) (1998).

2. Villanueva contends that he is entitled to summary judgment on the malpractice claim because legal malpractice claims are not assignable. We agree with Villanueva that the case involves an assignment, but reject his argument that legal malpractice claims are never assignable.

Although the language in the closing protection letter from First American to Homecomings purported to create a right of subrogation, we conclude that, in fact, it created an assignment. The letter provided that if First American reimbursed Homecomings for a loss, First American would be “subrogated to all rights and remedies [Homecomings] would have had against any person or property. ...” This language authorizes First American to bring an action directly against any person; it does not merely require Homecomings to reimburse First American out of any recovery Homecomings might obtain from the third party. Further, it indicates that upon payment, First American has the rights that Homecomings otherwise “would have had,” indicating that Homecomings no longer has them. Because this language transfers to First American “not merely the insured’s rights of recovery but also [its] right of action,” it amounts to an assignment. (Punctuation omitted.) Shook v. Pilot Life Ins. Co., 188 Ga. App. 714, 715 (1) (373 SE2d 813) (1988). See also Liberty Mut. Ins. Co. v. Clark, 165 Ga. App. 31, 32 (2) (299 SE2d 76) (1983); Harrell v. Carlton, 141 Ga. App. 41 (232 SE2d 384) (1977) (provision that “subrogate[d] said [insurance] company to all of the rights, claims and interest which the undersigned [insured] may have against any party, person . . . and authorizes the said Company to sue, compromise or settle in the undersigned’s name or otherwise” was an assignment, in spite of subrogation language). Compare Allstate Ins. Co. v. Welch, 259 Ga. App. 71, 72 (1) (576 SE2d 57) (2003) (the subrogation “rights of recovery” language in a policy did not entitle the insurer to succeed to the insured’s right of action).

Whether legal malpractice claims are assignable is an issue of first impression in Georgia. See Frates v. Sutherland, Asbill & Brennan, 164 Ga. App. 243, 244-245 (1) (296 SE2d 788) (1982) (declining to decide the assignability issue when summary judgment could be affirmed on other grounds). In general, under Georgia law, a right of action is assignable “if it involves, directly or indirectly, a right of property,” while “[a] right of action for personal torts or for injuries arising from fraud to the assignor may not be assigned.” OCGA § 44-12-24. “Personal torts” are torts involving an injury to the person, to the reputation, or to feelings, as distinguished from an injury or damage to real or personal property, which is a property tort. Hubbard v. Ruff, 97 Ga. App. 251, 253 (103 SE2d 134) (1958). OCGA § 44-12-24 “codifies the common law prohibition against assignment of personal injury claims.” (Citation omitted.) Govt. Employees Ins. Co. v. Hirsh, 211 Ga. App. 374 (439 SE2d 59) (1993).

Legal malpractice claims often involve injury to property in the form of financial loss, rather than personal injury, and therefore may be assignable under OCGA § 44-12-24. And here, the alleged legal malpractice is not based on fraud and does not involve an injury to the person, to the reputation, or to feelings. See Hubbard v. Ruff, 97 Ga. App. at 253. Instead, the loss is solely a financial loss, it involves a right of property, and, under the facts of this case, it is assignable. “A party may assign a cause of action involving a tortious injury to his property.” (Citation omitted.) Southern Gen. Ins. Co. v. Ross, 227 Ga. App. 191, 196 (7) (489 SE2d 53) (1997).

Citing cases from other jurisdictions, Villanueva urges us to hold that Georgia public policy prohibits the assignment of legal malpractice claims. We observe that since its enactment in 1895, the legislature has never amended OCGA § 44-12-24 to exclude legal malpractice claims from assignability. Consequently, we decline to hold that allowing the assignment of legal malpractice claims necessarily violates public policy. See Driebe v. Cox, 203 Ga. App. 8, 9 (1) (416 SE2d 314) (1992) (“[T]he trend in Georgia has been to relax the rule of strict contractual privity in malpractice actions, recognizing that under certain circumstances, professionals owe a duty of reasonable care to parties who are not their clients.”). “In fact, where the language of an [a]ct is plain and unequivocal, judicial construction is not only unnecessary but is forbidden.” (Citation and punctuation omitted.) Dixie Constr. Products v. Southeastern Council &c. Ins., 183 Ga. App. 101, 102 (357 SE2d 831) (1987). Villanueva proposes no rule of statutory construction under which his exception can be engrafted upon the plain language of the statute. “Further, [his] invitation to this court to create that exception judicially must be declined as such matters are better addressed to the Legislature.” Ga. Farm &c. Ins. Co. v. Jah, 193 Ga. App. 169, 171 (387 SE2d 447) (1989).

In sum, we hold only that there is no per se bar to the assignment of legal malpractice claims; we pretermit whether there may be cases where the special nature of the attorney-client relationship precludes assignment. Here, the trial court did not err in denying Villanueva summary judgment on this ground.

3. Villanueva argues that he was entitled to summary judgment on the ground that First American could not pursue the action in its name because Homecomings is the real party in interest. A court may not grant summary judgment on the basis of a real-party-in-interest objection because such an objection is a matter in abatement and does not go to the merits of the action. Warshaw Properties v. Lackey, 170 Ga. App. 101-102 (316 SE2d 482) (1984). Further, the trial court did not err in concluding that First American is the real party in interest because the assignment of the malpractice claim vested title in First American, allowing it to sue directly. Nationwide Mut. Ins. Co. v. Kershaw Mfg. Co., 198 Ga. App. 153, 154 (1) (401 SE2d 23) (1990).

4. Villanueva argues that Allen’s theft of funds from the escrow account was an intervening criminal act that insulates him from liability. Under Georgia law,

an unforeseeable independent, intervening criminal act of a third person which produced the injury complained of, and without which act the injury would not have occurred, is treated as the proximate cause of the injury, and the independent, intervening criminal act of the third person shall insulate and exclude any negligence on the part of the defendant.

(Citations omitted.) Simmons v. Dept. of Human Resources, 213 Ga. App. 98, 98-99 (1) (443 SE2d 654) (1994). Thus, the issue is whether Allen’s criminal acts were foreseeable. “Proximate cause is properly reserved for the jury and can only be appropriately addressed on summary judgment in plain and indisputable cases.” (Citation and punctuation omitted.) Schernekau v. McNabb, 220 Ga. App. 772, 773 (470 SE2d 296) (1996). A party is entitled to summary judgment on the issue of proximate cause “only if reasonable persons could not differ as to both the relevant facts and the evaluative application of legal standards (such as the legal concept of ‘foreseeability’) to the facts.” (Punctuation omitted.) Id.

Given the evidence that Villanueva had concerns about Allen having access to the escrow account to which he directed Homecomings to wire funds, this is not a plain and indisputable case. The trial court, therefore, did not err in denying Villanueva’s motion for summary judgment on this ground.

Decided December 1, 2011

Derick C. Villanueva, pro se.

Beloin, Brown, Blum & Wise, Frederic S. Beloin, Charles W. Brown, for appellee.

Judgment affirmed in part and reversed in part, and case remanded with direction. Phipps, P. J., concurs in the judgment only.

Andrews, J., concurs in Divisions 1, 2 and 3 and in the judgment.