text:
    A14A1231.
    HEATH v. COLOR IMPRINTS USA, INC. et al.
    (765 SE2d 751)
   Miller, Judge.

Richard P. Heath sued Color Imprints USA, Inc., and Michael and John Saylor (collectively “the Defendants”) seeking to recover over $25,000 in past due payments for accounting and bookkeeping services that Heath allegedly rendered to Color Imprints d/b/a 1 Stop Creative Promotional Solutions (“Color Imprints”). The parties filed cross-motions for summary judgment, and the trial court granted the Defendants’ motion as to Heath’s claim. Heath appeals, contending that the trial court erred in granting summary judgment to the Defendants. For the reasons that follow, we affirm the grant of summary judgment to Michael and John Saylor and reverse the grant of summary judgment to Color Imprints.

On appeal from the grant of summary judgment this Court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

(Citations and punctuation omitted.) Campbell v. The Landings Assn., 289 Ga. 617, 618 (713 SE2d 860) (2011).

So viewed, the limited record before us shows that the Saylors are shareholders and officers of Color Imprints. In January 2008, Heath began performing services for Color Imprints. Heath claimed that he issued invoices to Color Imprints for professional services from February 2008 through December 2009 and Color Imprints paid him $4,200 during this period. The Saylors never entered into a written agreement obligating them to be responsible for any debt of Color Imprints to Heath.

In July 2012, Heath filed a suit on account, initially claiming that the Defendants owed him $41,833.77 for professional services rendered. Heath subsequently amended his complaint, reducing the amount of his suit on account to $25,412.87. The Defendants answered and raised defenses, including fraud, no privity of contract, the Statute of Frauds, and payment of $5,400 in full satisfaction of Heath’s claims. The Defendants also counterclaimed for abusive litigation, punitive damages and attorney fees. Without explicitly addressing Heath’s motion for summary judgment, the trial court granted summary judgment to the Defendants as to Heath’s claim for a suit on account.

1. Heath contends that the trial court erred in granting summary judgment to the Defendants based solely on his failure to file a responsive pleading to the Defendants’ motion. We discern no error.

A review of the trial court’s order makes clear that the trial court did not automatically grant summary judgment to the Defendants based on Heath’s failure to file a response to the Defendants’ motion for summary judgment. Rather, the trial court reviewed the pleadings and record and determined that there was no genuine issue of material fact. The trial court correctly noted that Heath, by failing to respond to the Defendants’ motion for summary judgment, waived his right to present evidence in opposition. Landsberg v. Powell, 278 Ga. App. 13, 15 (627 SE2d 922) (2006).

2. Heath contends that the trial court erred in granting summary judgment to the Defendants because they admitted their liability as a matter of law by failing to timely respond to his request for admissions.

UnderOCGA § 9-ll-36(a) (2), requests for admissions are deemed admitted if a party fails to respond within 30 days. See G. H. Bass & Co. v. Fulton County Bd. of Tax Assessors, 268 Ga. 327, 330-331 (2) (486 SE2d 810) (1997). However, the trial court has discretion to permit a party to withdraw admissions if the court is satisfied “(1) that withdrawal of the admissions will subserve or advance the presentation of the merits of the action and (2) that there is no satisfactory showing that withdrawal will prejudice the party who obtained the admissions.” (Citation omitted.) Porter v. Urban Residential Dev. Corp., 294 Ga. App. 828, 829 (1) (670 SE2d 464) (2008).

The party seeking to withdraw the admissions has the burden of establishing the first prong by showing that the admitted request either can be refuted by admissible evidence having a modicum of credibility or is incredible on its face, and the denial is not offered solely for purposes of delay.

(Citation and punctuation omitted.) Porter, supra, 294 Ga. App. at 829 (1); see also Intersouth Properties v. Contractor Exchange, 199 Ga. App. 726, 728 (1) (405 SE2d 764) (1991). If the party seeking to withdraw the admissions satisfies the first prong, the burden is on the respondent to satisfy the second prong, i.e., to show that he would be prejudiced by the withdrawal. Intersouth Properties, supra, 199 Ga. App. at 728 (1).

Here, Heath served the Defendants with a request for admissions in December 2012, seeking admissions that Heath performed accounting and consulting work for Color Imprints from 2005 to 2009 at the Defendants’ request, and the Defendants accepted his invoices for that work, approved the work, made periodic payments throughout August 2009, and failed to respond to Heath’s attempts to contact them after December 2009. Since the Defendants did not file a timely response to Heath’s requests, they were deemed admitted by operation of law. OCGA § 9-11-36 (a) (2).

(a) The Saylors.

Heath argues that the Saylors failed to refute his request for admissions by admissible credible evidence. We disagree.

After Heath filed his motion for summary judgment, the Defendants filed a motion to withdraw their admissions on the basis that settlement negotiations had been ongoing and the parties had agreed to extend the discovery period until negotiations were complete. Michael and John Saylor also served Heath with their responses to his request for admissions in April 2013. Color Imprints, however, filed no separate response. Nonetheless, the trial court found that all of the Defendants had, in their responses, refuted the admissions that Heath sought to have admitted and continued the matter to allow Heath to file a brief on the issue of prejudice.

The Saylors responded to and denied Heath’s requested admissions. Specifically, the Saylors denied that they individually or jointly employed Heath to perform accounting, tax, and consulting services for Color Imprints from July 2007 through December 2009. Heath filed no brief on the issue of prejudice and has made no showing that he would be prejudiced by the withdrawal of the admissions. Intersouth Properties, supra, 199 Ga. App. at 728 (1) (respondent has burden of showing prejudice); Brankovic v. Snyder, 259 Ga. App. 579, 582-583 (578 SE2d 203) (2003) (no error in allowing defendants to withdraw admissions where they presented responses to the request for admissions and where defendants had already denied liability in answer). Accordingly, the trial court did not abuse its discretion in allowing the Saylors to withdraw their admissions. See Brankovic, supra, 259 Ga. App. at 582-583.

(b) Color Imprints.

Heath also argues that Color Imprints failed to file a timely response to Heath’s request for admissions, thereby admitting its liability by operation of law. We agree.

As set forth above, Color Imprints, as the party seeking to withdraw its admissions, had the burden of showing that the admissions could be refuted or were incredible and the denial was not offered solely to delay. Porter, supra, 294 Ga. App. at 829 (1). Color Imprints never responded to Heath’s request and therefore did not meet this burden. See Intersouth Properties, supra, 199 Ga. App. at 728 (1) (party who did not specifically address items in request for admissions not entitled to withdraw admissions). In light of Color Imprints’s failure to respond to Heath’s requests, the trial court abused its discretion in allowing Color Imprints to withdraw its admissions.

3. Finally, Heath argues that the trial court erred in granting summary judgment to the Defendants on his suit on account.

A suit on open account is available as a simplified procedure to the provider of goods and services where the price of such goods or services has been agreed upon and where it appears that the plaintiff has fully performed its part of the agreement and nothing remains to be done* except for the other party to make payment.

(Citations and punctuation omitted.) Five Star Steel Constr. v. Klockner Namasco Corp., 240 Ga. App. 736, 738-739 (1) (c) (524 SE2d 783) (1999). “A verified answer to a claim for open account that sets out the defenses of payment, set-off, and accord and satisfaction creates a factual issue.” Id. at 738 (1) (b).

(a) The Saylors.

A review of Heath’s complaint and the attached invoices shows that he seeks payment for services allegedly rendered to Color Imprints. The Saylors are shareholders and officers of Color Imprints.

Under Georgia’s Statute of Frauds, promises to answer for the debt of another must be in writing. OCGA § 13-5-30. Heath admitted that neither Saylor executed a written agreement accepting responsibility for Color Imprints’s debt to Heath. Accordingly, the Saylors were entitled to judgment as a matter of law, and the trial court did not err in granting their motion for summary judgment.

Decided November 13, 2014.

Dewey N. Hayes, Jr., for appellant.

Patrick S. Ferris, for appellees.

(b) Color Imprints.

As to Color Imprints, however, there exists an issue of fact that precludes the grant of summary judgment. Specifically, it is clear from the record that Heath provided some services to Color Imprints. Nevertheless, there is a question of fact as to how much of the account, if any, remains to be paid because the admissions do not include a final amount due and owing.

Notably, Heath claims that he is owed $25,412.87. His own invoicing shows that Color Imprints made payments of $4,200. Color Imprints, in its answer, claimed that the Defendants paid Heath $5,400 in full satisfaction of his claims. Color Imprints’s answer setting out the defense of payment creates a factual issue as to the amount owed. Five Star Steel, supra, 240 Ga. App. at 738 (1) (b). Accordingly, the trial court erred in granting summary judgment to Color Imprints.

In sum, the trial court erred in allowing Color Imprints to withdraw its admissions without responding to the same, and we reverse the grant of summary judgment to Color Imprints because there is a genuine issue of material fact remaining. We affirm the trial court’s grant of summary judgment to the Saylors.

Judgment affirmed in part and reversed in part.

Doyle, P. J., and Dillard, J., concur.

       The Defendants’ counterclaims were not addressed in either party’s motion for summary judgment, and these claims are not at issue on appeal.

       As an initial matter, we note that Heath’s brief sets out numerous arguments relating to the trial court’s grant of summary judgment despite a single enumerated error, in violation of our Rules of Court. Court of Appeals Rule 25 (a), (c). In spite of Heath’s violation, we will exercise our discretion to consider what we believe are his main arguments, to the extent that we are able to discern them. See Stagl v. Assurance Co. of America, 245 Ga. App. 8, 9 (1) (539 SE2d 173) (2000).


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A14A1248.
    DONOVAN v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    (765 SE2d 755)
   Miller, Judge.

Lara Donovan was injured in an automobile accident involving a vehicle driven by Jonathon McMillon. Donovan sued McMillon and three underinsured motorist (“UM”) carriers, including State Farm, her mother’s insurance carrier. McMillon’s insurance carrier, Progressive Insurance Company, paid Donovan the $25,000 limit of his liability insurance policy. State Farm subsequently moved for summary judgment, contending that it is entitled to a set-off for the $25,000 paid by McMillon’s insurer. The trial court granted State Farm’s motion, and Donovan appeals. On appeal, Donovan contends that State Farm is not entitled to set off the $25,000 paid under McMillon’s insurance policy against State Farm’s $25,000 UM coverage limit. For the reasons that follow, we affirm.

On appeal from the grant of summary judgment this Court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

(Citations and punctuation omitted.) Campbell v. The Landings Assn., 289 Ga. 617, 618 (713 SE2d 860) (2011).

So viewed, the evidence shows that in October 2009, Donovan was riding as a passenger in a pickup truck when the truck was involved in a collision with McMillon’s vehicle. At the time of the accident, Donovan, who is an adult, resided with her mother in Thomasville, Georgia. Donovan sustained injuries in the accident that she claims exceed $100,000.

In addition to McMillon’s $25,000 liability insurance policy issued by Progressive Insurance, three UM policies potentially provide coverage: (1) the State Farm policy issued to Donovan’s mother; (2) a Grange Mutual Casualty Company policy issued to Donovan’s mother; and (3) a GMAC policy issued to the owner of the truck in which Donovan was riding as a passenger. Each of the UM policies has a $25,000 coverage limit. The Grange and GMAC policies are standard/excess UM policies, which potentially provide coverage in excess of McMillon’s $25,000 liability insurance limits. The State Farm UM policy is a difference-in-limits policy.

In her sole enumeration of error, Donovan contends that the trial court erred in holding that State Farm is entitled to a set-off for the $25,000 in liability coverage that she received from McMillon’s insurer. Specifically, Donovan argues that both stacking and priority of payments rules apply under Georgia law when more than one UM carrier is available regardless of the type of policies involved. Under the circumstances of this case, the trial court did not err in granting summary judgment to State Farm.

The purpose of uninsured motorist or UM coverage is to place the injured insured in the same position as if the offending uninsured motorist were covered with liability insurance. . . . The Georgia uninsured motorist statute is designed to protect the insured as to his actual loss, within the limits of the policy or policies of which he is a beneficiary.

(Citations and punctuation omitted.) State Farm Mut. Automobile Ins. Co. v. Adams, 288 Ga. 315, 316-317 (702 SE2d 898) (2010). Under Georgia law, there are two types of available UM coverage. OCGA § 33-7-11 (b) (1) (D) (ii). The first option is an excess policy which provides for UM insurance in excess of any available liability insurance. OCGA § 33-7-11 (b) (1) (D) (ii) (I). The second option is a difference-in-limits policy which provides for UM coverage only for the amount of the difference between the available liability insurance and the limits ofthe insured’s UM coverage. OCGA § 33-7-11 (b) (1) (D) (ii) (II).

Where more than one UM policy is available to cover an injured party’s damages, Georgia law allows an insured to stack the limits of all available UM coverage to satisfy a judgment. See Progressive Classic Ins. Co. v. Nationwide Mut. Fire Ins. Co., 294 Ga. App. 787, 788 (670 SE2d 497) (2008). Georgia courts employ three priority-of-payment rules or tests for determining the order in which the available UM policies should be stacked: the “receipt of premium” test, the “more closely identified with” test, and the “circumstances of the injury” test. See Progressive, supra, 294 Ga. App. at 788. In cases involving more than one difference-in-limits UM policy, trial courts use these priority of payment rules to determine which UM carrier is entitled to a set-off for the available amount of liability insurance coverage. See Ga. Farm Bureau Mut. Ins. Co. v. State Farm Mut. Automobile Ins. Co., 255 Ga. 166, 167 (336 SE2d 237) (1985) (applying receipt of premium test to determine which UM insurer was entitled to set-off); Travelers Indem. Co. v. Maryland Cas. Co., 190 Ga. App. 455, 457 (379 SE2d 183) (1989) (applying more closely identified test).

Decided November 13, 2014

Whitehurst Blackburn & Warren, Christopher K. Rodd, Malia Phillips-Lee, for appellant.

Alexander & Vann, George R. Lilly II, for appellee.

Here, the trial court was not required to apply the priority of payment rules, because this case involves only one insurance carrier ■— State Farm — who is entitled to a set-off for the $25,000 that Donovan received from McMillon’s liability insurance carrier. Neither Grange nor GMAC is entitled to a set-off because they provide excess UM coverage. See Frank E. Jenkins III & Wallace Miller III, Ga. Auto. Ins. Law § 39-5 (d) (regardless of priority of payment rules, insurers providing excess, i.e. added-on, UM coverage are not entitled to any set-off for available liability coverage). Moreover, Donovan stipulated that neither the Grange nor the GMAC policies are entitled to a set-off against McMillon’s liability insurance limits.

State Farm, on the other hand, is entitled to a set-off under OCGA § 33-7-11 (b) (1) (D) (ii) (II) because State Farm is the sole difference-in-limits UM carrier whose policy potentially provides coverage for Donovan’s claims. See Jenkins & Miller, Ga. Auto. Ins. Law § 39-5 (d). After applying the $25,000 set-off to the $25,000 limits under the State Farm policy, there is now no further coverage with this carrier. Accordingly, no issue of fact remains regarding the availability of UM coverage under the State Farm policy, and State Farm is entitled to summary judgment as a matter of law.

Judgment affirmed.

Doyle, P. J., and Dillard, J., concur.

       The other two UM carriers, Grange Mutual Casualty Company and. Integon Mutual Insurance Company (“GMAC”), are not parties to this appeal. Additionally, we note that the insurance policies are not included in the appellate record on appeal. Nevertheless, Donovan and State Farm entered into a stipulation of facts with regard to the accident and the insurance policies at issue in this case. Accordingly, we need not remand this case for the trial court to supplement the record on appeal.

       Under the “receipt of premium” test, the insurer that receives a premium from the injured insured is deemed to be primarily responsible for providing coverage. Under the “more closely identified with” test, the policy with which the injured party is most closely identified must provide primary coverage. If neither of those tests is helpful in a particular case, the courts look to the circumstances of the injury to see which policy provides primary coverage.
      (Citations omitted.) Progressive, supra, 294 Ga. App. at 788.


text:
    A14A1439.
    SALLEE v. THE STATE.
    (765 SE2d 758)
   Miller, Judge.

Following a jury trial, Mark Thomas Sallee was convicted of one count of insurance fraud (OCGA § 33-1-9). In an out-of-time appeal, Sallee appeals from the denial of his motion for new trial, contending that (1) insufficient evidence supported his conviction; (2) the trial court erred in denying his general and special demurrers and his plea in abatement; (3) there was a fatal variance in the evidence; (4) the trial court erred in denying his motion for a mistrial based on juror misconduct; (5) the trial court improperly commented on the evidence; (6) Sallee was selectively and vindictively prosecuted; (7) the trial court was biased; and (8) Sallee’s trial counsel was ineffective. This Court discerns no error. For the reasons that follow, we affirm Sallee’s conviction.

Viewed in the light most favorable to the conviction, the evidence shows that from 1995 to 2005, home builder John David Grice was married to Kim Grice Pack. In 2005, Grice purchased a 25-acre lot in Cutcane Ridge subdivision in Mineral Bluff for development and subsequently conveyed Lot 5 (“the Property’) to Pack. Pack obtained a loan from Home Bank, and Grice built a house on the Property. Pack also obtained a builder’s risk insurance policy on the Property from Zurich Assurance Company of America (“Zurich”).

In 2006, after Grice and Pack divorced, Pack entered into a sales contract to sell the Property to Grice. On Friday, August 4,2006, Pack sold the Property to Grice for $180,000. Pack paid off her Home Bank loan and earned a profit of approximately $15,000. Grice financed the purchase with a new loan from Home Bank, but he did not obtain any insurance on the Property.

Attorney Michael Birchmore, representing Home Bank, handled the closing. At closing, Pack executed a warranty deed, Grice executed a security deed, and both Pack and Grice signed a settlement statement.

Two days later, on August 6, 2006, a fire on the Property destroyed the house. The next day, Grice told Birchmore about the fire and asked Birchmore to delay recording the deed because Grice did not have insurance on the Property. In a letter to Home Bank, Birchmore proposed recording the deed the following day, and he sent the documents to be recorded on August 8. The deeds, however, were not filed, and the original deed was lost. Shortly after the fire, Pack contacted Zurich to see if the fire was covered by her builder’s risk policy, but Zurich determined that Pack would not be able to file a claim since she had sold the Property prior to the fire.

Grice retained Sallee to represent him in a malpractice claim against Birchmore for failing to ensure that Grice had insurance on the property at the time of the sale. Grice told Sallee that he had executed a security deed and Pack had executed a warranty deed at the August 4, 2006 closing, and Pack had been paid approximately $15,000. Sallee ultimately decided not to pursue any claims against Birchmore; however, Sallee advised Grice to make a claim against Pack’s insurance policy because the closing had not been completed and the deed to the Property, showing that Grice was the owner, had not yet been recorded.

Grice and Sallee then approached Pack and told her that they had determined that because the deeds had not been filed, Pack could file an insurance claim on the Property. Grice offered Pack $5,000 for her part in filing the claim. In October 2007, Sallee submitted an insurance claim to Zurich on Pack’s behalf.

In March 2008, Sallee filed a bad faith lawsuit against Zurich on Pack’s behalf. Although Sallee knew that Pack had received approximately $15,000 at closing, he told Zurich that Pack had not been paid for the sale of the property.

In December 2008, Sallee sent Pack a proof of loss statement to be filed with Zurich, claiming a loss of approximately $118,000. Sallee told Pack that he had found a loophole, the insurance claim was a windfall, and she could collect “free money’ because Birchmore had not handled the closing properly. On December 8, 2008, Pack signed the proof of loss statement, and Sallee submitted the statement to Zurich.

Pack later told Grice that she wanted to drop the claim because she had lied. Nonetheless, in December 2008, Zurich issued a check for just under $118,000 to Pack and Sallee. Sallee never told Pack that he had received the check, and Pack never signed the check. Sallee cashed the check but later returned approximately $77,000 to Zurich, saying that he could not disburse the funds. Sallee kept the remainder of the money, approximately $40,000, as his fee.

The jury found Sallee guilty on one count of insurance fraud based on the submission of Pack’s proof of loss statement.

1. Sallee contends that the evidence was insufficient to convict him of insurance fraud because there was no evidence that he made any affirmative misrepresentations, it was a matter of public record that Pack no longer owned the property at the time of the fire, and the insurance company did not rely on any alleged misrepresentation when paying Pack’s claim. We discern no error.

A person commits the crime of insurance fraud by making or aiding in the making of a false or fraudulent written statement or representation of any material fact or by filing a claim “for the purpose of procuring or attempting to procure the payment of any false or fraudulent claim or other benefit by an insurer[.]” OCGA § 33-1-9 (a). Furthermore, “[e]very person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime.” OCGA § 16-2-20 (a). Although “mere presence at the scene of the commission of a crime is not sufficient evidence to convict one of being a party thereto, presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred.” (Citations and punctuation omitted.) McWhorter v. State, 198 Ga. App. 493 (1) (402 SE2d 60) (1991).

Pack’s interest in the property terminated when she sold it. See Roach v. Ga. Farm Bureau Mut. Ins. Co., 173 Ga. App. 229, 230 (325 SE2d 797) (1984) (insured’s interest in property terminates when property is sold). Nevertheless, Sallee approached Pack after the sale and encouraged her to file an insurance claim on the Property. Sallee knew that Pack’s loan on the Property had been paid off on August 4, 2006 at the closing but nonetheless filed Pack’s signed proof of loss statement with Zurich on December 8, 2008, in which she falsely claimed a loss of approximately $118,000 under her insurance policy.

While Sallee argues that there was no insurance fraud because an employee of Zurich testified that Zurich did not rely on Sallee’s misrepresentations when it paid Pack’s claim, reliance is not an element of criminal insurance fraud.

Rather, the State must prove that the defendant made a false statement for the purpose of procuring or attempting to procure payment of a false or fraudulent claim. Once a defendant makes a false statement for such purpose, the crime is complete, and it is irrelevant whether or not the claim is subsequently paid,

(Punctuation and footnote omitted.) Callaway v. State, 247 Ga. App. 310, 314 (1) (b) (542 SE2d 596) (2000). Thus, it matters not whether Zurich relied on Sallee’s misrepresentation in deciding whether to pay Pack’s claim. Given the evidence set forth above, a jury was authorized to conclude that Sallee aided Pack in making a false or fraudulent written statement for the purpose of procuring or attempting to procure the payment of a false claim, which was all that was required to convict Sallee of insurance fraud. See id.

2. Sallee contends that the trial court erred in denying his general and special demurrers. We discern no error.

An accused may challenge the sufficiency of an indictment by filing a general or special demurrer. A general demurrer challenges the sufficiency of the substance of the indictment, whereas a special demurrer challenges the sufficiency of the form, of the indictment. An indictment is sufficient to withstand a general demurrer if an accused would be guilty of the crime charged if the facts as alleged in the indictment are taken as true; however, if an accused can admit to all of the facts charged in the indictment and still be innocent of a crime, the indictment is insufficient and is subject to a general demurrer.
An indictment is sufficient to withstand a special demurrer if it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.

(Citations and punctuation omitted.) Raybon v. State, 309 Ga. App. 365, 366 (710 SE2d 579) (2011). We review a trial court’s ruling on a general or special demurrer de novo in order to determine whether the allegations in the indictment are legally sufficient. See State v. Marshall, 304 Ga. App. 865 (698 SE2d 337) (2010); see also State v. Corhen, 306 Ga. App. 495, 501 (4) (700 SE2d 912) (2010).

As to Count 2, the indictment alleged that on December 8, 2008, in violation of OCGA § 33-1-9, Sallee, Grice and Pack, individually and as parties concerned in the commission of crime

knowingly [made] and [aided] in the making of a fraudulent representation of material fact, to wit: Kim Grice [Pack] signed a Sworn Proof of Loss Statement claiming she had a loss of $117,849.82, a written statement, relating to a policy of insurance, for the purpose of procuring the payment of a fraudulent claim by Zurich Insurance Company^]

(a) General demurrer.

Sallee contends that the indictment was defective because it failed to contain all of the essential elements of insurance fraud, specifically, the fraudulent representation of a material fact in violation of a specified penal statute. An indictment is sufficient if “it states the offense in the statutory language or so plainly that the nature of the offense may easily be understood by the jury, and each of the named defendants would be guilty of the crime charged if the facts as alleged in the count are taken as true.” Corhen, supra, 306 Ga. App. at 501 (4); see also OCGA § 17-7-54 (a).

Here the indictment specifically charged Sallee in Count 2 of violating OCGA § 33-1-9 and further indicated, tracking the statute’s own language, that the fraudulent misrepresentation was Pack’s statement that she had suffered a loss of $117,849.82. Sallee would be guilty of insurance fraud if the facts alleged in the indictment were taken as true. Accordingly, the indictment was sufficient to withstand a general demurrer. See State v. Horsley, 310 Ga. App. 324, 325-326 (2) (714 SE2d 1) (2011) (reversing trial court’s grant of general demurrer where indictment tracked the language of the applicable statute and plainly stated the allegations).

(b) Special demurrer.

Sallee also contends that the trial court erred in denying his special demurrer because the indictment did not identify a particular fraudulent claim. The indictment specifically identified the fraudulent statement as Pack’s December 8, 2008 proof of loss statement. The indictment was sufficient to withstand a special demurrer because it stated the elements of the offense, apprised Sallee of the charges against him so that he could prepare his defense, and protected Sallee against subsequent prosecutions for the same offense. See Marshall, supra, 304 Ga. App. at 866.

3. Sallee contends that there was a fatal variance in the evidence because the indictment alleged that Sallee assisted Pack in making a fraudulent representation when she signed the sworn proof of loss statement but the State argued at trial that Sallee committed insurance fraud when he failed to correct Pack’s misstatement. We do not agree.

Our courts have departed from an overly technical application of the fatal variance rule, focusing instead on materiality. The true inquiry, therefore, is not whether there has been a variance in proof, but whether there has been such a variance as to affect the substantial rights of the accused. It is the underlying reasons for the rule which must be served: 1) the allegations must definitely inform the accused as to the charges against him so as to enable him to present his defense and not to be taken by surprise, and 2) the allegations must be adequate to protect the accused against another prosecution for the same offense. Only if the allegations fail to meet these tests is the variance “fatal.”

(Citation omitted.) Hernandez v. State, 319 Ga. App. 876, 878 (1) (738 SE2d 701) (2013).

Here, as discussed above, the indictment adequately apprised Sallee of the charges against him, did not mislead him as to the charges he faced, and adequately set forth the allegations in a manner to protect him against subsequent prosecutions for the offense charged. See Hernandez, supra, 319 Ga. App. at 878 (1). Moreover, the evidence adduced at trial was sufficient to sustain his conviction and consistent with the allegations in the indictment. Specifically, the evidence showed that Sallee assisted Pack in making an affirmative fraudulent representation when she signed the sworn proof of loss statement claiming that she suffered a loss, when in fact she had not. Accordingly, Sallee has not shown that a variance in the evidence, if any, affected his substantial rights.

4. Sallee contends that the trial court erred in denying his motion for a mistrial based on juror misconduct. We disagree.

When irregular juror conduct is shown, there is a presumption of prejudice to the defendant, and the prosecution carries the' burden of establishing beyond a reasonable doubt that no harm occurred. However, in order for juror misconduct to upset a jury verdict, it must have been so prejudicial that the verdict is deemed inherently lacking in due process.

(Punctuation and footnotes omitted.) Holcomb v. State, 268 Ga. 100, 103 (2) (485 SE2d 192) (1997). “The decision whether to remove a juror from a panel lies within the sound discretion of the trial court and will not be overturned absent an abuse of that discretion.” (Citation omitted.) Tolbert v. State, 300 Ga. App. 51, 53 (2) (684 SE2d 120) (2009). This Court also reviews the denial of a mistrial for abuse of discretion. Watson v. State, 289 Ga. 39, 42 (7) (709 SE2d 2) (2011).

On the third day of Sallee’s trial, Juror M., a local attorney, shared with a State’s witness, another local attorney, his thoughts on the case. The trial court removed Juror M. from the jury and replaced him with an alternate. After individually questioning the other jurors, who said that they had not heard any comments and could remain fair and impartial, the trial court denied Sallee’s motion for a mistrial.

Replacing the juror who committed misconduct and then individually polling the remaining jurors to ascertain that they could remain fair and impartial was an adequate remedy and did not deprive Sallee of a fair trial. See Tolbert, supra, 300 Ga. App. at 55 (2) (“Here, the trial judge thoroughly questioned each juror under oath about what he or she said or heard, and whether he or she had the ability to remain a fair and impartial juror and found that no [further] misconduct occurred and that each [remaining] juror could remain impartial.”); see also OCGA § 15-12-172. Accordingly, Sallee has not shown error in the denial of his motion for mistrial.

5. Sallee contends that the trial court improperly commented on the evidence during Sallee’s cross-examination in violation of OCGA § 17-8-57. We do not agree.

It is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused. Should any judge violate this Code section, the violation shall be held by the... Court of Appeals to be error and the decision in the case reversed, and a new trial granted in the court below [.]

OCGA § 17-8-57. However, “[t]o constitute an improper comment under OCGA § 17-8-57, the trial court’s statement must express an opinion about whether the evidence had proven a material issue in the case, whether a witness was credible, or whether the defendant was guilty.” (Citation and punctuation omitted.) Anthony v. State, 282 Ga. App. 457, 458 (1) (638 SE2d 877) (2006).

“Atrial judge may propound questions to a witness to develop the truth of the case or to clarify testimony, and the extent of such an examination is a matter for the trial court’s discretion.” (Citations omitted.) Finley v. State, 286 Ga. 47, 51 (9) (a) (685 SE2d 258) (2009). Moreover, “[a] trial court’s instruction to a defendant to give responsive answers does not indicate an opinion as to either the defendant’s credibility or his guilt or innocence.” (Citation omitted.) Anthony, supra, 282 Ga. App. at 458 (1).

During Sallee’s cross-examination, the following exchange occurred:

STATE: Okay. Don’t you have a duty as an attorney if there is a statement made to a third party that you later find out about, that you have got to correct that?
SALLEE: There’s a duty if that is hidden. [The Birchmore] affidavit [] was a public record made —
COURT: The question was, do you have a duty to correct a misstatement when you find out there has been a misstatement?
SALLEE: Not if it’s a matter of public record.
COURT: That’s not an answer to the question. Will you answer the question?
SALLEE: I cannot answer the question as posed. I have a duty —
COURT: You’re saying you don’t have a duty to correct something that you know that it’s wrong?
SALLEE: No. That’s not what I’m saying, your Honor.
COURT: What are you saying? That’s the question to you.
You are a lawyer. You found out there has been a misstatement. Don’t you as an attorney have a duty to correct the misstatement?
SALLEE: I have a duty also to my client. I have a duty to my client. I did not feel that was a misstatement. I have a duty to my client. Zurich at that time had agreed to make the claim. It was a public record. I did not feel that it was a misstatement at that time.

Here, the trial court attempted to clarify Sallee’s testimony as to whether he had a duty to correct a client’s misstatement, and, in so doing, it did not express an opinion as to Sallee’s guilt or credibility. See Anthony, supra, 282 Ga. App. at 458 (1) (no error where trial court directed defendant to answer the questions asked but expressed no opinion as to whether defendant’s answers were truthful). Moreover, the trial court cautioned the jury explicitly that “[b]y no ruling or comment which the [trial court] has made during the progress of the trial has the [trial court] intended to express any opinion upon the facts of this case, upon the credibility of the witnesses, upon the evidence, or upon the guilt or innocence of the defendant.” Under these circumstances, the trial court did not violate OCGA § 17-8-57. See Ellis v. State, 292 Ga. 276, 282 (3) (736 SE2d 412) (2013).

6. Sallee also contends that he was selectively and vindictively prosecuted because he had previously represented criminal defendants in Fannin County. We disagree.

Whether to prosecute and what charge to bring before a grand jury are decisions that generally rest in the prosecutor’s discretion. Nevertheless, selectivity in the enforcement of criminal laws is subject to constitutional constraints, the equal protection clause of the Fourteenth Amendment, while the due process clause of the Fourteenth Amendment protects against vindictive exercise of the prosecutor’s discretion. The conscious exercise of selectivity in enforcement is not a federal constitutional violation if the selection is not deliberately based upon unjustifiable standards, as race, religion or other arbitrary classification. Pursuit of a course of action designed to penalize one’s reliance on a legal right is patently unconstitutional. For this reason, where there is actual or a realistic likelihood of vindictiveness in post trial proceedings, a presumption of prosecutorial vindictiveness is said to arise.

(Citations omitted.) Lee v. State, 177 Ga. App. 698, 700 (1) (340 SE2d 658) (1986). Here, both Pack and Grice were also charged with insurance fraud, although they both decided to testify truthfully in exchange for immunity. There is no evidence that Sallee was prosecuted based on his race, religion, or other arbitrary classification. Accordingly, there is no presumption of vindictive prosecution in this case. See id. Consequently, Sallee’s claim fails.

7. Sallee also summarily contends that the trial court was biased. We disagree.

Prior to trial, all the judges of Fannin County Superior Court recused themselves to avoid any appearance of impropriety. The Honorable Hugh Stone, Senior Superior Court Judge, was assigned to try the case, and Sallee points to nothing in the record as evidence of bias. Moreover, Sallee made no motion to recuse Judge Stone and did not seek a mistrial based on any alleged bias. Consequently, Sallee has failed to preserve this issue for appellate review. See Works v. State, 301 Ga. App. 108, 112 (3) (686 SE2d 863) (2009). “If [Sallee] was aware of a possible basis for recusal, he had no right to sit back, hope for a favorable ruling or sentencing, and then raise the issue for the first time in an amended motion for a new trial.” (Footnote omitted.) English v. State, 290 Ga. App. 378, 381-382 (2) (659 SE2d 783) (2008).

8. Sallee also contends that his trial counsel rendered ineffective assistance.

In order to prevail on a claim of ineffective assistance, [Sallee] must show that counsel’s performance was deficient and that the deficient performance so prejudiced [Sallee] that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. [Sallee] must overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct. In reviewing a lower court’s determination of a claim of ineffective assistance of counsel, an appellate court gives deference to the lower court’s factual findings, which are upheld unless clearly erroneous; the lower court’s legal conclusions are reviewed de novo.

(Citations and punctuation omitted.) Hampton v. State, 279 Ga. 625, 626-627 (619 SE2d 616) (2005). With these principles in mind, we turn to review Sallee’s claims.

(a) Sallee contends that his trial counsel was deficient in failing to object to the trial court’s instruction that the Birchmore affidavit was admitted for the purpose of showing Sallee’s knowledge of the conveyance when the affidavit was a public record. We disagree.

The trial court instructed the jury:

Sometimes, things are admitted into evidence for a limited purpose, and [the Birchmore affidavit] is admitted into evidence on the question of the party’s knowledge, if any, of the transfer of title by Kim Grice [Pack] to John David Grice. The affidavit itself does not convey and is not a conveyance of any interest in property.

Here, Pack and Sallee testified that Sallee was aware at the time he submitted the proof of loss to Zurich that the Property had been conveyed to Grice prior to the fire. Consequently, even if trial counsel was deficient in failing to obj ect, there is no reasonable likelihood that the jury’s verdict would have been different had trial counsel objected to the limiting instruction.

(b) Sallee contends that his trial counsel was deficient in failing to object to the State’s closing argument that Sallee should be convicted based on his failure to correct Pack’s misstatement. We discern no error.

The trial court repeatedly instructed the jury that the attorneys’ closing arguments were not evidence, and “qualified jurors under oath are presumed to follow the instructions of the trial court.” Allen v. State, 277 Ga. 502, 504 (3) (c) (591 SE2d 784) (2004). Given the trial court’s instruction, there is no reasonable probability that the verdict would have been different but for trial counsel’s failure to object to the State’s closing argument.

(c) Sallee contends that his trial counsel was deficient in failing to object to the State’s questions during Sallee’s cross-examination. We disagree.

Specifically, Sallee contends that trial counsel was ineffective in failing to object to the State’s questions as to whether Sallee had a duty to refrain from counseling a client to engage in illegal conduct, whether Sallee had ever built a house, how many houses he owned, and whether he had ever had a fire. Here, the questions were not material and thus there is no reasonable probability that trial counsel’s alleged deficiency impacted the verdict.

(d) Sallee also contends that his trial counsel was deficient in failing to object and move for a mistrial based on the trial court’s questioning of Sallee regarding whether Sallee was obligated to correct a client’s misstatement. As set forth above in Division 5, the trial court made no improper comment on the evidence. “The failure to pursue a futile objection does not amount to ineffective assistance.” Ventura v. State, 284 Ga. 215, 218 (4) (663 SE2d 149) (2008). Therefore, trial counsel was not deficient in failing to object.

(e) Sallee contends that trial counsel was ineffective in failing to request a mistrial after the trial court admonished the jurors to pay attention to the proceedings and removed the county sheriff from the courtroom. We discern no error.

(i) During trial, outside the presence of the jury, the State alerted the trial court that the previously-discharged juror, Juror M., was sitting in the courtroom, making eye contact with and possibly communicating with a current juror, Juror G. The trial court instructed Juror M. not to communicate with or look toward the jury. The trial court also asked Juror M. to move to a different area of the courtroom and instructed the jury to pay attention to the testimony and not the audience. Later that day, outside the presence of the jury, the State asked the trial court to determine whether Juror M. had communicated with Juror G. The trial court then questioned Juror G., who denied any communication. Juror G. remained on the jury.

Here, the trial court questioned Juror G. and determined that there had been no juror misconduct. Thus, there was no necessity for a mistrial, and a mistrial motion would have been meritless. See Tolbert, supra, 300 Ga. App. at 55 (2) (no mistrial required where jurors could remain fair and impartial). “That counsel did not pursue a meritless motion cannot constitute a basis for a claim of ineffective assistance of counsel.” (Citation omitted.) Leonard v. State, 292 Ga. 214, 217-218 (4) (735 SE2d 767) (2012).

(ii) After the trial court asked Juror M. to move to a different part of the courtroom, two sheriff deputies stood by him. Trial counsel then asked the trial court to remove the county sheriff from the courtroom because the sheriff had posted on Facebook that Sallee, who was representing a client in an action against the sheriff, was on trial for fraud. Outside of the jury’s presence, the trial court asked the sheriff to leave the courtroom, and the sheriff agreed to do so.

Here, the jury knew that Sallee was on trial for fraud. Moreover, Sallee has not shown that the fact that the sheriff left the courtroom had any effect on the jury or that but for counsel’s alleged deficiency, the result of the trial would have been different.

(f) Sallee contends that trial counsel was ineffective in failing to subpoena the entire file from Zurich or interview Linda Meskis, a Zurich employee who had worked on Pack’s claim. We disagree.

(i) At the hearing on Sallee’s new trial motion, trial counsel testified that he did not subpoena the insurance file because he already had the file’s contents. Since trial counsel had the file, he could not have been deficient in failing to subpoena it.

(ii) As to Meskis, Sallee failed to make any proffer as to what Meskis would have testified. Therefore, it is impossible for him to show that there is a reasonable probability the results of the proceedings would have been different had trial counsel interviewed Meskis. See Goodwin v. Cruz-Padillo, 265 Ga. 614, 615 (458 SE2d 623) (1995) (“The failure of trial counsel to employ evidence cannot be deemed to be prejudicial in the absence of a showing that such evidence would have been relevant and favorable to the defendant.”) (punctuation omitted).

(g) Sallee contends that trial counsel was ineffective in failing to request jury charges explaining the reasonable reliance element of fraud. As set forth in Division 1 above, reasonable reliance is not an element of criminal fraud. Accordingly, trial counsel could not have been ineffective for failing to request an incorrect statement of law. See Leonard, supra, 292 Ga. at 217-218 (4) (counsel not required to make meritless motions).

(h) Sallee also contends that trial counsel was ineffective in failing to request a jury charge that attorneys are not subject to a different standard in applying criminal laws. See Pope v. State, 179 Ga. App. 739, 743 (3) (347 SE2d 703) (1986) (“behavior which might be unethical and might even subject an attorney to discipline by the State Bar does not necessarily rise to the level of criminal conduct”). Here, the jury was correctly instructed on the elements of insurance fraud, and there is sufficient evidence to support Sallee’s conviction for that crime. There were no special instructions required, and Sallee cannot substantiate his claim that his trial counsel was ineffective.

For all of the stated reasons, this case is affirmed.

Judgment affirmed.

Doyle, P. J., and Dillard, J., concur.

Decided November 13, 2014

Mark T. Sallee, pro se.

W. Jeffrey Langley, District Attorney, Charles C. Olson, Gary D. Bergman, Assistant District Attorneys, for appellee.

       The jury acquitted Sallee of a second count of insurance fraud. Following his conviction, attorney Sallee was disbarred.

        Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

       On August 16, 2006, Home Bank issued a cancellation and satisfaction, noting that Pack’s 2005 loan had been paid in full.

       A Zurich employee testified that the company “made a business decision” to pay Pack’s claim because it was facing the bad faith lawsuit filed by Sallee.

       For the same reason, we reject Sallee’s contention that the trial court erred in denying his plea in abatement because the indictment failed to allege a fraudulent claim in violation of a specified penal statute.

       Sallee also contends that the trial court erred in not granting a mistrial based on the fact that Sallee’s trial occurred before a local election, which Sallee argues improperly influenced the jury. Sallee does not specify how the upcoming local election affected the jury. Moreover, since Sallee did not seek a mistrial on this basis at trial, he has waived the issue. “Where an entirely different objection or basis for appeal is argued in the brief which was not presented at trial we will not consider that basis as we are limited to those grounds presented to and ruled upon by the trial court.” (Citation and punctuation omitted.) Godfrey v. State, 227 Ga. App. 576, 577 (2) (489 SE2d 364) (1997).

       In October 2007, Birchmore prepared and recorded an affidavit setting forth the facts related to the closing and attaching a copy of the original warranty deed.


author: Phipps, Chief Judge.

text:
    A14A0763.
    PAYNE v. THE STATE.
    (765 SE2d 770)
   Phipps, Chief Judge.

After a jury trial, Michael Payne was convicted of robbery by force (Count 1), robbery (by intimidation) (Count 2), and two counts of simple battery (Counts 3 and 4). He appeals, contending that: (1) the evidence was insufficient to support the conviction for robbery by intimidation; (2) even if the evidence was sufficient to support the robbery by intimidation conviction, the conviction is invalid because that offense should have merged with the robbery by force offense for sentencing purposes; and (3) his trial counsel provided ineffective assistance. We affirm the judgment in part, vacate the judgment in part, and remand the case for resentencing.

The evidence showed that Payne proposed to James Knight and other individuals an idea to rob Payne’s former employer, G. S., as she left work at a restaurant on July 22, 2007. Payne drove himself, Knight, and another individual to the restaurant. As Payne had predicted, G. S. exited the restaurant with another person around 5:00 p.m., carrying a bag of money underneath her arm. Knight approached G. S. and the other person (a woman), as G. S. was at her vehicle and the other woman was walking toward her vehicle. Knight sprayed both women with pepper spray, grabbed the money bag from G. S., and fled to Payne’s vehicle. Payne drove away from the scene. The money bag contained cash, which was later divided among the three perpetrators, including Payne.

Payne was indicted for, inter alia, robbery by force (Count 1) in that he did “on July 22, 2007, . . . with intent to commit theft, take property of another, to wit: a bag containing United States currency, the property of [G. S.], from the immediate presence of [G. S.] by force”; and robbery (Count 2) in that he did

on July 22, 2007 . . . with intent to commit theft, . . . take property of another, to wit: a bag containing United States currency, from the person and immediate presence of [G. S.] by use of intimidation, use of threat, and by placing such person in fear of immediate serious bodily injury to herself.

On March 22, 2011, the trial court sentenced Payne to imprisonment for 20 years, to serve 10 years in confinement and the balance on probation, on Count 1, and to imprisonment for 20 years, to serve 10 years in confinement and the balance on probation, on Count 2.

1. We first address Payne’s challenge to the sufficiency of the evidence to support the robbery by intimidation conviction, and Payne’s contention that

[ejven if the State established the essential elements of robbery by intimidation beyond a reasonable doubt, [his] sentence as to count 2 [robbery by intimidation] is invalid and therefore must be vacated because it should have merged with count 1 [robbery by force] for sentencing as a matter of fact because there was only one act of robbery against one victim.

The state concedes, and we agree, that the trial court should have merged the robbery offenses for sentencing purposes, and that the case should be remanded for resentencing. Payne does not challenge the sufficiency of the evidence to sustain the robbery by force conviction, and the evidence adduced was, in fact, sufficient to prove beyond a reasonable doubt that he committed robbery by force. Accordingly, we vacate the sentences entered on both robbery counts and remand the case to the trial court to merge the robbery by intimidation count into the robbery by force count and to resentence Payne for robbery by force. Because, on remand, there will be no sentence entered for robbery by intimidation and thus, no conviction for that offense, we need not address Payne’s challenge to the sufficiency of the evidence as to that count.

2. Payne contends that his trial attorney provided ineffective assistance when he failed to: (a) impeach two witnesses; and (b) object when a witness testified that she had suspected that Payne was involved in the robbery. These contentions present no basis for reversal.

Pursuant to Strickland v. Washington, [] in order to prevail on [a claim of ineffective assistance of trial counsel], the defendant must show both that counsel’s performance was deficient, and that the deficient performance was prejudicial to his defense. To meet the first prong of the required test, the defendant must overcome the strong presumption that counsel’s performance fell within a wide range of reasonable professional conduct, and that counsel’s decisions were made in the exercise of reasonable professional judgment. The reasonableness of counsel’s conduct is examined from counsel’s perspective at the time of trial and under the particular circumstances of the case. To meet the second prong of the test, the defendant must show that there is a reasonable probability that, absent any unprofessional errors on counsel’s part, the result of his trial would have been different.

(a) Jeff Whitley, a man whom Knight considered his uncle, testified that after he became aware that Payne had been arrested for this incident, he contacted police and arranged for police to meet with him and Knight so that Knight could confess and get a better deal than Payne for his involvement in the robbery. Whitley testified: “[Knight] is kind of slow, and I felt that they had used [him] to [commit the robbery]... and if anything happened, [Knight] would be the one [to take] the fall.” At trial, when the investigator who later met with Knight and Whitley was asked, “Now when you spoke with Mr. Whitley, was he inquiring from you about a reward?” she replied, “No. In fact, I was the one who mentioned a reward to him.” Payne contends that the foregoing testimony made it appear as though Whitley’s motive in contacting the police was to “look out for” Knight, as Whitley had so testified, but that other information, that trial counsel had been provided in discovery but failed to put before the jury, showed that Whitley’s motive for contacting police was to obtain reward money.

Payne asserts that a police report written by the investigator reflected that when Whitley had initially called police, he had inquired about whether there was a reward for information about the robbery, and that when the investigator returned Whitley’s call, Whitley was “hesitant to meet and give a statement until [the investigator] told him the restaurant owner was interested in giving a reward.” Payne contends that trial counsel should have impeached Whitley and the investigator with the investigator’s report.

At the hearing on Payne’s motion for new trial, trial counsel testified that he did not “read any more [in]to it than the fact that [Whitley] wanted to know if there was a reward and [the investigator] was willing to tell him whether there was or was not.” Indeed, the evidence at trial reflected, as trial counsel put it, that “there was a communication by both [the investigator] and Whitley regarding a reward.” Whitley testified that when he had initially contacted police, he did not know that a reward was being offered for information about the robbery, but that he later found out that a reward was available. And the investigator testified that she had told Whitley that a reward was available. Moreover, on cross-examination of Whitley, trial counsel brought out the fact that G. S. had given Whitley a $500 reward after Whitley had talked to police and after the investigator had interviewed Knight, and that it was at Whitley’s urging that Knight had met with the investigator.

“The fact that appellate counsel would have pursued the defense in [a] different way[ ] or would have chosen to . . . cross-examine [witnesses] in a different way does not render trial counsel ineffective.” Even assuming the police report showed that Whitley was motivated to tell police what he knew about the robbery, in part, because of the hope of a reward, evidence that Whitley had asked whether a reward was available is no more indicative of the alleged motivation to talk to police than was the evidence presented at trial that Whitley knew that a reward was available and, in fact, received the reward.

While other counsel, had they represented appellant, may have exercised different judgment, the fact that trial counsel chose to try the case in the manner in which it was tried, and made certain difficult decisions regarding the defense tactics to be employed with which appellant and his present counsel now disagree, does not require a finding that the representation below was so inadequate as to amount to a denial of effective assistance of counsel.

The evidence supports the trial court’s conclusion that this claim is without merit. “[T]he jury had an issue of credibility and was in position to decide whether [Whitley’s] testimony was true or perjured.” “[The jury] resolved the issue against the appellant.”

(b) At trial, G. S. testified that she had forced her eyes open during the attack, and that her attacker was not anyone who had ever worked at her restaurant. She also testified, however, that she had suspected that Payne was involved in the attack. Payne complains of his trial attorney’s failure to object to G. S.’s testimony that she suspected that he was involved in the robbery. Relying upon Evans v. State, Payne asserts that G. S.’s testimony “amounted to nothing more than opinion testimony based on speculation. Thus, it was error to admit this testimony, and counsel provided ineffective assistance when he failed to object.”

Decided November 14, 2014.

Long D. Vo, for appellant.

Layla H. Zon, District Attorney, Elizabeth K. Grofic, Assistant District Attorney, for appellee.

At trial, when G. S. was asked on direct examination “why is it that you suspected that Mr. Payne was involved,” G. S. replied that it was because “he didn’t show up for work that day and he was constantly asking me about a [large diamond] necklace” that she wore. On cross-examination, however, trial counsel elicited testimony from G. S. that the necklace was not taken from her during the robbery. Thus, the record showed that although counsel did not object to the allegedly impermissible testimony, he instead attempted to show during cross-examination that G. S.’s testimony was based on pure speculation. “This apparent trial strategy, that is, avoiding an objection that would draw the jury’s attention to the statement, and instead challenging the testimony through cross-examination cannot be found to be outside the wide range of reasonable professional assistance.”

Judgment affirmed in part and vacated in part, and case remanded for resentencing.

Ellington, P. J., and McMillian, J., concur.

       OCGA § 16-8-40 (a) (1).

       OCGA § 16-8-40 (a) (2).

       See, e.g., Poole v. State, 291 Ga. 848, 859 (9) (734 SE2d 1) (2012) (“felony murder conviction was vacated by operation of law because, where there is only one murder victim, convicting and sentencing a defendant for both malice murder and felony murder of that victim improperly subjects the defendant to multiple convictions and punishments for one crime”) (citation omitted); Andrews v. State, 328 Ga. App. 344, 348 (2) (a) (764 SE2d 553) (2014) (case remanded for resentencing where appellant’s burglary convictions should have merged because only one burglary occurred and the trial court failed to merge two separate burglary counts regarding the same incident for sentencing purposes). See generally Hewitt v. State, 277 Ga. 327, 329 (1) (b) (588 SE2d 722) (2003) (“A taking accomplished by force or intimidation is the ‘distinguishing characteristic’ of robbery ■— the ‘gist’ of the offense. The force necessary for robbery is actual violence or intimidation exerted upon the person robbed, by operating upon his fears — the fear of injury to his person, or property, or character. Intimidation is that terror . . . likely to create an apprehension of danger, and induce a person to part with his property for the safety of his person. Intimidation is [also] that act by the perpetrator which puts the person robbed in fear sufficient to suspend the free exercise of his will or prevent resistance to the taking.”) (citation and punctuation omitted); Richards v. State, 276 Ga. App. 384, 385-386 (623 SE2d 222) (2005) (“Robbery by intimidation, unlike . . . robbery by force, . . . may be accomplished without a weapon or an overt act of physical force.”); Setzer v. State, 76 Ga. App. 509, 511 (1) (46 SE2d 603) (1948) (“robbery by force and violence on the one hand, and by intimidation on the other hand, are not separate offenses, but are different grades of the same offense”); compare State v. Dixon, 194 Ga. App. 146 (1) (390 SE2d 600) (1990) (trial court erred in merging several armed robbery convictions for sentencing purposes on the theory that they had stemmed from the same incident, where each count had involved a different victim).

       See Brown v. State, 233 Ga. App. 195-196 (1) (504 SE2d 35) (1998).

       See generally Andrews, supra; Mack v. State, 283 Ga. App. 172, 176 (3) (641 SE2d 194) (2007).

       See Stinson v. State, 318 Ga. App. 351, n. 1 (733 SE2d 390) (2012), citing Slack v. State, 288 Ga. 659, 661 (2) (706 SE2d 447) (2011) (ruling that a conviction does not occur until a final judgment of conviction is entered upon a guilty verdict), and Wallin v. State, 270 Ga. 889, 890 (514 SE2d 828) (1999) (a defendant is not convicted of a merged offense).

       See generally Smith v. State, 258 Ga. 676, 679 (11) (373 SE2d 200) (1988); Travis v. State, 314 Ga. App. 280, 281, 288-289 (1), (7), n. 1 (724 SE2d 15) (2012); Merritt v. State, 288 Ga. App. 89, 90-91 (1) (653 SE2d 368) (2007); Moore v. State, 250 Ga. App. 75, 76, 78-79 (1), (3) (550 SE2d 667) (2001); Wilkins v. State, 246 Ga. App. 667, 670 (6) (541 SE2d 458) (2000); Dixon v. State, 227 Ga. App. 533, 535 (3) (489 SE2d 532) (1997).

       466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984) (footnote omitted).

        Price v. State, 325 Ga. App. 564, 567 (2) (754 SE2d 144) (2014) (citation, punctuation and footnote omitted).

        Smith v. State, 283 Ga. 237, 239 (2) (b) (657 SE2d 523) (2008).

       As the investigator did not testify at the hearing on the motion for new trial, Payne’s contention is based on his own interpretation of the investigator’s report.

       See, e.g., Hollie v. State, 298 Ga. App. 1, 3-4 (1) (679 SE2d 47) (2009); Orkin v. State, 140 Ga. App. 651-652 (1) (a) (231 SE2d 481) (1976).

        Smith, supra at 239-240 (2) (b) (citations and punctuation omitted).

        Maxey v. State, 159 Ga. App. 503, 507 (3) (284 SE2d 23) (1981) (citation and punctuation omitted).

        Morris v. State, 228 Ga. 39, 48 (10) (184 SE2d 82) (1971).

       275 Ga. 541 (2) (570 SE2d 331) (2002) (“As a general rule answers constituting mere conclusions, surmise or conjecture should be excluded from evidence.”) (citation and punctuation omitted).

        Sweet v. State, 278 Ga. 320, 324 (5) (602 SE2d 603) (2004) (citation omitted); see Braithwaite v. State, 275 Ga. 884, 887 (4) (572 SE2d 612) (2002); Alexis v. State, 313 Ga. App. 283, 288 (3) (a) (721 SE2d 205) (2011); Al-Attawy v. State, 289 Ga. App. 570, 573 (1) (657 SE2d 552) (2008).


author: ANDREWS, Presiding Judge.

text:
    A14A0945.
    MORRISON et al. v. KICKLIGHTER.
    (765 SE2d 774)
   ANDREWS, Presiding Judge.

Charles, Suzette, and Thomas Morrison sued Steve Kicklighter to recover property damage allegedly caused when Kicklighter negligently backed his vehicle into the Morrisons’ parked truck. The Morrisons sought to recover the cost of repairing damage to the truck, the diminished value of the repaired truck, and the cost of a rental vehicle during the repairs. On the basis that these losses were covered by a liability insurance policy on Kicklighter’s vehicle issued by State Farm Mutual Automobile Insurance Company, the Morrisons also brought the action pursuant to OCGA § 33-4-7 against State Farm (as an unnamed party) seeking to recover penalties and attorney fees against State Farm for allegedly failing to make a good faith effort to adjust and settle their pre-trial demand for payment of the covered losses.

Under OCGA § 33-4-7 (d):

... The insurer shall be an unnamed party, not disclosed to the jury, until there has been a verdict resulting in recovery equal to or in excess of the claimant’s demand. If that occurs, the trial shall be recommenced in order for the trier of fact to receive evidence to make a determination as to whether bad faith existed in the handling or adjustment of the attempted settlement of the claim or action in question.

The trial was not recommenced for the second phase under this provision to consider the Morrisons’ bad faith claim against State Farm because the jury rendered a verdict in favor of Kicklighter on the property damage claims, and the Morrisons recovered nothing. The Morrisons appeal from the trial court’s denial of their motion for a new trial. Because we conclude that the verdict lacks any evidentiary support and was contrary to law, we reverse.

1. The Morrisons claim that there was no evidentiary basis for the verdict in favor of Kicklighter, and that the trial court erred by denying their motion for a new trial made on the general grounds. See OCGA §§ 5-5-20; 5-5-21.

On appeal from the trial court’s denial of a motion for a new trial on the general grounds set forth in OCGA §§ 5-5-20 (verdict contrary to evidence and principles of justice and equity) or 5-5-21 (verdict strongly against weight of evidence), the appellate court has no discretion to grant a new trial on that ground; “we can only review the evidence to determine if there is any evidence to support the verdict.” Cook v. Huff, 274 Ga. 186, 186 (1) (552 SE2d 83) (2001) (citation and punctuation omitted); Drake v. State, 241 Ga. 583, 585 (247 SE2d 57) (1978).

The standard of appellate review of the denial of a motion for new trial on the general grounds is essentially the same as that applicable to the denial of a motion for directed verdict or judgment n.o.v. The appellate courts can only set a verdict aside, on evidentiary grounds, as being contrary to law in that it lacks any evidence by which it could be supported.

Cook, 274 Ga. at 186 (citations and punctuation omitted).

Kicklighter admitted liability for damages caused when he negligently backed his vehicle into the Morrisons’ parked truck, and the only issue in the first phase of the trial was the Morrisons’ claims for amounts due on three elements of damage: (1) the cost of repairing the truck, (2) the diminished value of the repaired truck, and (3) the cost of a rental vehicle during the repairs. The Morrisons presented evidence establishing the dollar amounts they claimed were incurred on each of the three elements of damage. In response, Kicklighter’s defense was not that the Morrisons incurred no damage as a result of his negligence; rather, he presented evidence of lesser dollar amounts of damage incurred by the Morrisons on each of the three elements. Because the undisputed evidence showed that Kicklighter negligently caused the Morrisons to incur damages in some amount, there was no evidentiary support for the jury’s verdict in favor of Kick-lighter, and the verdict was contrary to law and must be set aside. The trial court erred by denying the motion for a new trial.

2. We address additional enumerations of error on issues likely to recur in the event of a retrial.

(a) In support of their repair costs, the Morrisons presented testimony from the manager of the automobile collision repair shop where the truck was repaired identifying published industry standards for collision repair, automobile manufacturer repair standards, and paint manufacturer standards, and stating that the repair work complied with the standards. The trial court refused to admit the standards as documentary evidence and sustained Kicklighter’s objection that the documents contained hearsay. Where identified and explained by expert testimony, industry standards relied upon by persons in the witness’s particular occupation are admissible, and are not excluded by the hearsay rule. Dayoub v. Yates-Astro Termite Pest Control Co., 239 Ga. App. 578, 581-582 (521 SE2d 600) (1999); OCGA § 24-8-803 (17). The trial court erred by sustaining the hearsay objection.

(b) Where a repair shop employee testified that she had no personal knowledge of actual repairs done to the truck, the trial court did not err by sustaining Kicklighter’s hearsay objection and refusing to allow the employee to testify that specific repairs to the truck were reasonable or necessary.

(c) To show that the diminished value of the repaired truck was less than the amount claimed by the Morrisons, Kicklighter produced testimony from a witness (a State Farm employee) as to diminished value damages. The Morrisons claim that the trial court erred by overruling their objection that the witness was not qualified to give an expert opinion on diminished value. The record shows that, before Kicklighter called this witness as part of his defense case, the Morrisons called the same witness for purpose of cross-examination in their case-in-chief. At that time, counsel for the Morrisons cross-examined the witness about his opinion on diminished value damages. The trial court did not err by finding that the Morrisons opened the door to this testimony and overruling the objection.

(d) The Morrisons claim that the trial court erred by denying their pre-trial motion in limine which sought a ruling from the court permitting them to cross-examine certain witnesses expected to be called by Kicklighter — a State Farm claims adjuster and a State Farm damage estimator — about their employment with State Farm. The Morrisons’ motion sought permission to cross-examine the witnesses about their employment with State Farm for the purpose of impeaching their credibility and showing they were biased toward finding lower repair costs to advance State Farm’s interest in avoiding payment on the claim covered by Kicklighter’s State Farm insurance policy. The trial court denied the motion ruling that “the Court will not instruct the [Morrisons] on how to refer to [State Farm’s] employees other than to order that the existence of insurance shall not be revealed to the jury during the first phase of the trial,” and that “the parties shall not disclose the existence of [Kicklighter’s] liability insurance coverage to the jury during the first phase of the trial.” The court’s order further stated that, without revealing the existence of Kicklighter’s liability insurance, the Morrisons remained free to cross-examine the witnesses for bias by other means including, for example, questioning the witnesses regarding how many vehicles they evaluate for collision damages each year, how they are compensated, how many times they have testified for the party not at fault versus at fault in a collision, and any prior dealings with the collision repair shop selected by the Morrisons.

The witnesses referred to in the motion were called by Kick-lighter during the trial to give testimony in support of his defense on the damages at issue, and the Morrisons claim that the court’s order on the motion in limine erroneously restricted their right to a thorough and sifting cross-examination under OCGA § 24-6-611 (b). We find no error. Under the procedures set forth in OCGA § 33-4-7 (d), before the jury considers a third-party claimant’s action to recover bad faith penalties and attorney fees against a liability insurer for the insurer’s failure to make a good faith effort to adjust and settle an automobile property damage claim, the jury must first return a verdict on the property damage claim equal to or greater than the claimant’s demand for settlement. Although the insurer is served with the claimant’s complaint filed against the insured tortfeasor, “[t]he insurer shall be an unnamed party, not disclosed to the jury, until there has been a verdict resulting in recovery equal to or in excess of the claimant’s demand.” OCGA § 33-4-7 (d). At that point, the trial is recommenced for a second phase (with the insurer as the named defendant in place of the insured) for the jury to consider the bad faith claim against the insurer. During the first phase of the trial, the jury renders a verdict on the claim against the insured tortfeasor, and the procedures in subsection (d) make clear that the existence of liability insurance coverage is not relevant.

Decided November 14, 2014.

Brooks Law Firm, Eugene C. Brooks, for appellants.

Brennan, Harris & Rominger, G. Mason White, for appellee.

The rule that the plaintiff be allowed the right of a thorough and sifting cross examination must be balanced against the rule that irrelevant matters of insurance coverage should be excluded from evidence. In the interest of justice, the matter of insurance which is not a germane issue, should be kept out.

Southeast Transport Corp. v. Hogan Livestock Co., 133 Ga. App. 825, 830 (212 SE2d 638) (1975). Under the circumstances, the trial court did not abuse its discretion by denying the motion in limine and limiting the scope of cross-examination. McClellan v. Evans, 294 Ga. App. 595, 596-597 (669 SE2d 554) (2008); Vol Repairs II, Inc. v. Knighten, 322 Ga. App. 416, 420-421 (745 SE2d 673) (2013).

Judgment reversed. McFadden, J., concurs.

Ray, J., concurs in Divisions 1 and 2 (a)-(c), and in the judgment.

       The Morrisons withdrew their claim against State Farm for failing to act in good faith to adjust and settle their claim for the diminished value of the repaired truck.


author: McFADDEN, Judge.

text:
    A14A0949.
    JUSTICE et al. v. SCI GEORGIA FUNERAL SERVICES, INC. et al.
    (765 SE2d 778)
   McFADDEN, Judge.

This appeal is from a grant of summary judgment to the funeral home defendants in a case arising out of their failure to ensure that the cremated remains of appellants’ decedent were in the urn that was to contain them. Appellants’ claims include breach of contract, interference with burial rights, invasion of privacy, intentional infliction of emotional distress and trespass. The grant of summary judgment on the breach of contract claim was premised on the trial court’s finding that there were no actual damages arising from the alleged breach. That finding was correct, but because nominal damages may still be recovered, summary judgment on that claim was improper and must be reversed. As to the remaining claims challenged on appeal, there exist no genuine issues of material fact, and we thus affirm the grant of summary judgment on those claims.

Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” OCGA § 9-11-56 (c). We apply a de novo standard of review “to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.” Moore v. Camara, 317 Ga. App. 651, 652 (732 SE2d 319) (2012).

So viewed, the evidence shows that Monica Rivera passed away on December 22, 2007. The following day, Rivera’s mother, Linda Justice, contracted with SCI Georgia Funeral Services, Inc., d/b/a Striffler-Hamby Mortuary, to provide cremation and memorial services for $4,850. Among other things, the contract provided for transfer of the cremated remains from the crematory to the funeral home, an urn, and a memorial service. The memorial service was held on the morning of December 28, 2007, in the Striffler-Hamby funeral home chapel. In preparing for the service, funeral director Dale Land retrieved the urn with Rivera’s name noted on it from an office in the funeral home, looked inside the urn, saw that it contained a temporary container used to hold the decedent’s ashes, and assumed that Rivera’s ashes were inside that container. Land placed the urn in the chapel for the service. At the conclusion of the service, Land gave the urn to Justice, who took it to her house and put it on her mantel.

Later that afternoon, Rivera’s ashes were delivered by the crematory to the funeral home. Upon learning of the delivery and that the ashes were not in the urn, Land called Justice and asked if he could come speak with her. Justice agreed, and Land then drove to her house. Once there, he explained that the ashes were not in the urn and apologized. He asked for permission to take the urn back to the funeral home so he could put the ashes in it. Justice gave him permission to do so.

After he had returned to the funeral home, Land opened the temporary container in the urn and found that it was indeed empty. He then put Rivera’s cremated remains inside it and drove back to Justice’s house. He knocked on the screen door, heard voices inside, entered and placed the urn with the ashes back on the mantel in the living room. Justice and a friend then came into the room and spoke briefly with Land. He assured Justice that he had personally placed the decedent’s ashes in the urn, apologized again, and left. Thereafter, Striffler-Hamby canceled the amount due under the contract, did not charge Justice for the services provided, and did not collect any money for the services.

Two years later, in November 2009, Justice, her mother Dorothy Wire, and other family members filed the instant lawsuit against Striffler-Hamby and Land. The trial court granted summary judgment to the defendants. This appeal followed.

1. Breach of contract.

Justice and the other appellants contend that the trial court erred in granting summary judgment on the breach of contract claim because there exists a genuine issue of material fact as to whether the failure to have the decedent’s ashes at the memorial service constituted a breach of the agreement. We agree.

In granting summary judgment, the trial court reasoned that pretermitting any breach, Justice suffered no pecuniary damage because “Striffler-Hamby zeroed out the contract such that there was no charge by the funeral home at all.” The trial court was correct in finding that the evidence, including the deposition testimony of both Justice and Wire, unequivocally shows that the funeral home did not charge them or collect payment for the services provided. But the lack of such damages flowing from the presumed breach did not authorize the court’s entry of summary judgment.

Where there exists evidence from which a jury could find that the defendant breached a contract,

the defendant is not entitled to summary judgment on the claim, even if the plaintiff fails to present any admissible evidence to establish the amount of actual damages flowing from the breach. This is because, under OCGA § 13-6-6, in every case of breach of contract, the injured party has a right to damages, but, if there has been no actual damage, the injured party may recover nominal damages sufficient to cover the costs of bringing the action.

Eastview Healthcare v. Synertx, Inc., 296 Ga. App. 393, 399 (4) (674 SE2d 641) (2009).

In this case, there is, at the very least, a genuine issue of material fact as to whether the funeral home’s failure to ensure that the decedent’s ashes were in the urn during the memorial service constituted a breach of the memorial services contract. So even though there is a lack of evidence that the appellants sustained actual damages arising from the alleged breach, such lack of evidence “does not constitute a viable basis for granting [the defendants’] motion for summary judgment. [Cits.]” Id. See also Crippen v. Outback Steakhouse Intl, 321 Ga. App. 167, 170 (1) (741 SE2d 280) (2013) (citing OCGA § 13-6-6 for proposition that “a lack of damages would not be a bar to a breach of contract claim”); Hearn v. Dollar Rent a Car, 315 Ga. App. 164, 174 (1) (e) (726 SE2d 661) (2012) (citing right to recover nominal damages in breach of contract action as basis for denying summary judgment). The trial court’s grant of summary judgment on that basis must therefore be reversed.

2. Interference with burial rights.

The appellants contend that the trial court erred in granting summary judgment on their claim of interference with burial rights. The contention is without merit.

“In this state, an unlawful and unwarranted interference with the exercise of the right of burial is a tort. This right of burial belongs to the surviving spouse of the deceased and devolves upon the next of kin of the deceased only if no spouse survives.” Habersham Mem. Park v. Moore, 164 Ga. App. 676, 678 (1) (297 SE2d 315) (1982) (citations omitted). Assuming that the right of burial belonged to the appellants as next of kin,

[t]he funeral home owed [them] the duty not to wilfully or wantonly interfere with the burial of [Rivera]. To show wilful or wanton conduct, one must demonstrate that a defendant’s acts evidenced a wilful intention to inflict the injury, or else were so charged with indifference to the consequences as to justify finding a wantonness equivalent in spirit to actual intent.

Pyle v. Pyle, 243 Ga. App. 398, 400 (2) (531 SE2d 738) (2000) (citations and punctuation omitted).

In this case, there is no evidence that Land or the funeral home acted wilfully or wantonly. Rather, at most, the evidence shows that they acted negligently in failing to ensure that the cremated remains were in the urn during the memorial service. “A demonstration of mere negligence is not sufficient to show wilful or wanton behavior.” McNeal Loftis, Inc. v. Helmey, 218 Ga. App. 628, 629 (462 SE2d 789) (1995). Because the appellants failed to show the existence of a genuine issue of material fact as to the “element [of wilful or wanton conduct] necessary to recover for tortious interference with burial rights, the trial court [did not err in granting] the motion for summary judgment as to that claim.” Id. at 630.

3. Invasion of privacy.

The appellants argue that the trial court erroneously granted summary judgment on their invasion of privacy claim. The argument is without merit.

The courts of this state “have identified four kinds of invasion of privacy for which a right of action exists, and among these is an intrusion upon the seclusion or solitude of a plaintiff or into his private affairs. [Cits.]” Benedict v. State Farm Bank, 309 Ga. App. 133, 135 (1) (a) (709 SE2d 314) (2011). The appellants allege that the failure to have the decedent’s remains present at the memorial service somehow constituted such an unreasonable intrusion upon their seclusion, solitude and private affairs. However,

[t]he unreasonable intrusion aspect of the tort of invasion of privacy involves a prying or intrusion, which would be offensive or objectionable to a reasonable person, into a person’s private concerns. In order to show the tort of unreasonable intrusion, a plaintiff must show a physical intrusion which is analogous to a trespass; however, this physical requirement can be met by showing that the defendant conducted surveillance on the plaintiff or otherwise monitored plaintiff’s activities.

Sitton v. Print Direction, 312 Ga. App. 365, 369 (2) (718 SE2d 532) (2011) (citations and punctuation omitted).

In this case, neither the funeral home nor Land pried into or intruded on the appellants’ private concerns. And there certainly is no evidence that a physical intrusion or surveillance took place. The fact that the decedent’s ashes were not in the urn during the service simply was “not an unreasonable intrusion which would support a claim for invasion of privacy, and [we therefore] affirm [ ] the trial court’s grant of summary judgment on this issue.” Yarbray v. Southern Bell Telephone & Telegraph Co., 261 Ga. 703, 706 (1) (409 SE2d 835) (1991).

4. Intentional infliction of emotional distress.

The trial court correctly granted summary judgment on the claim for intentional infliction of emotional distress.

The four elements which must be proved in order to sustain a claim of intentional infliction of emotional distress are: (1) The conduct must be intentional or reckless; (2) The conduct must be extreme and outrageous; (3) There must be a causal connection between the wrongful conduct and the emotional distress; and (4) The emotional distress must be severe.

Roddy v. Tanner Med. Center, 262 Ga. App. 202, 204 (585 SE2d 175) (2003).

The appellants cannot prove either of the first two elements. The conduct of the funeral home and Land was not intentional or reckless; rather, as recounted above in Division 2, it was, at most, negligent conduct. Moreover, “[t]o warrant the imposition of liability for such claim, the conduct must be ‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’ ” Hill v. City of Fort Valley, 251 Ga. App. 615, 616 (1) (a) (554 SE2d 783) (2001) (citation omitted).

But here, as in the similar case of Hill, the purportedly negligent conduct did not rise to this level of outrageousness. In Hill, the funeral home mistakenly buried the decedent in the wrong plot and then, believing it had permission of surviving family members, re-interred the decedent in the correct plot. This court affirmed the grant of summary judgment to the funeral home on the family’s claim of intentional infliction of emotional distress, finding that even if the funeral home was

insensitive or negligent in failing to obtain the express permission of the plaintiffs prior to moving their mother’s grave, there is nothing in the record to raise such conduct to the degree of wilfulness or wantonness that is necessary for a claim of intentional infliction of emotional distress.

Hill, supra at 617 (1) (a) (citations omitted). Likewise, the conduct of the appellees in this case, while even if insensitive or negligent, does “not rise to the level of outrageousness necessary to sustain a claim for intentional infliction of emotional distress. [Cits.]” Northside Hosp. v. Ruotanen, 246 Ga. App. 433, 436 (541 SE2d 66) (2000). See also Roddy, supra at 205 (tort of intentional infliction of emotional distress is reserved for instances in which a defendant intended to harm the plaintiff).

Decided November 14, 2014.

James D. Patrick, for appellants.

Weinberg, Wheeler, Hudgins, Gunn & Dial, John M. Hawkins, Stephen W. Mooney, for appellees.

5. Trespass.

The appellants’ claim that Land committed a trespass in violation of OCGA § 51-9-1 when he came back to and entered Justice’s house in order to return the urn containing the ashes and place it on the living room mantel is entirely without merit. “[T]here is no evidence on the present record that [Land] refused to leave the house or realty after being asked to leave, or that [he] interfered with [Justice’s] possessory interest in the realty. Accordingly, the trial court correctly found there was no claim for trespass under OCGA § 51-9-1.” Udoinyion v. Re/Max of Atlanta, 289 Ga. App. 580, 583 (657 SE2d 644) (2008) (citations omitted).

Judgment affirmed in part and reversed in part.

Andrews, P. J., concurs. Ray, J., concurs fully in Divisions 1, 2, 3, and 4, and in judgment only in Division 5.