author: Phipps, Presiding Judge.

text:
    A10A1784.
    INFINITY GENERAL INSURANCE COMPANY v. LITTON.
    (707 SE2d 885)
   Phipps, Presiding Judge.

Jason Litton brought an action for damages for personal injuries he sustained in an automobile accident on November 27, 2007. He claimed that he was working for his employer, JM Brick and Stone, at the time of the accident. Infinity General Insurance Company (“Infinity”), the commercial vehicle liability insurer of Jim Menden-hall d/b/a JM Brick and Stone (“Mendenhall”), answered the complaint in its own name, thereby becoming a party to the action. After a jury trial, the trial court entered a judgment that Mendenhall’s policy with Infinity provided $1,000,000 per person in uninsured motorist (UM) coverage. Asserting that the policy’s unambiguous terms provided only $50,000 per person in UM coverage, Infinity appeals the court’s denial of its motions for directed verdict and judgment notwithstanding the verdict. For the following reasons, we agree with Infinity that the court erred in denying Infinity’s motions, and accordingly we reverse.

1. As an initial matter, we consider our jurisdiction over this appeal. Litton has moved to dismiss the appeal on the ground that the notice of appeal was filed more than 30 days after the entry of the judgment on the jury verdict. Infinity responds that its notice of appeal was timely because it was filed within 30 days of the trial court’s order on Infinity’s motion for judgment notwithstanding the verdict, which Infinity filed within 30 days of the entry of the judgment. We agree with Infinity that the notice of appeal was timely, and accordingly we deny Litton’s motion to dismiss.

2. Infinity asserts that the trial court erred in denying its motions for directed verdict and judgment notwithstanding the verdict regarding the amount of UM coverage provided by the policy between Infinity and Mendenhall that was in effect at the time of the accident.

On appeal from the denial of a motion for directed verdict or for j.n.o.v., we construe the evidence in the light most favorable to the party opposing the motion, and the standard of review is whether there is any evidence to support the jury’s verdict. However, the construction, interpretation and legal effect of a contract . . . [are] issue[s] of law which [are] subject to de novo review.

The evidence showed that Infinity’s predecessor-in-interest issued a commercial vehicle insurance policy to Mendenhall in 2005 (the 2005 policy). The 2005 policy was a new insurance contract that provided, inter alia, $1,000,000 per person in personal liability coverage and $50,000 per person in UM coverage. The term of the 2005 policy was one year, expiring on July 5, 2006.

On May 31, 2006, Infinity sent Mendenhall a document titled “Renewal Notice,” which instructed him to make a payment by July 5, 2006 to renew his policy. Infinity, however, did not receive a payment from Mendenhall until July 18, 2006. Infinity issued a policy (the 2006 policy) with a declarations page that stated that it was a “renewal with lapse” and further stated: “THIS POLICY HAS BEEN RENEWED WITH A LAPSE IN COVERAGE. Please refer to the new term dates at the top of the form.” The declarations page set forth an effective policy date of July 17, 2006. It also set forth UM coverage of $50,000 per person and other coverage in the same amounts as the 2005 policy.

In July 2007, Infinity issued a policy to Mendenhall (the 2007 policy), which indicated on the declarations page that it was a renewal of the 2006 policy. It set forth UM coverage of $50,000 per person and other coverage in the same amounts as the 2006 and 2005 policies.

Litton argues that, notwithstanding the 2007 policy’s statement that it provided $50,000 in UM coverage, the policy in fact provided $1,000,000 in UM coverage pursuant to OCGA § 33-7-11 (a) (1). Pertinently, that Code section requires insurance policies issued in Georgia to contain provisions for UM coverage which at the option of the insured shall be (i) not less than $25,000 per person, or (ii) equal to the policy’s bodily injury liability insurance coverage, if higher than $25,000 per person. It further provides: “In any event, the insured may affirmatively choose [UM] limits in an amount less than the limits of liability [for bodily injury].” This Code section “was intended to make a policy’s liability limits the default provision for UM coverage, unless an insured affirmatively elects UM coverage in a lesser amount.” But OCGA § 33-7-11 (a) (3) provides, in pertinent part, that UM coverage “need not be provided in or supplemental to a renewal policy where the named insured had rejected the coverage in connection with a policy previously issued to said insured by the same insurer.” It further provides that the “amount of coverage need not be increased from the amounts shown on the declarations page on renewal once coverage is issued.”

Mendenhall elected less UM coverage than his liability coverage under the 2005 policy, and in subsequent years he made no further elections related to UM coverage. The parties dispute whether the 2006 policy, which Infinity issued following the lapse in coverage occasioned by Mendenhall’s late payment, was a new contract of insurance or a renewal of Mendenhall’s prior policy. Litton contends that the 2006 policy was a new contract, and that Mendenhall’s failure to affirmatively elect lesser UM coverage in connection with that policy resulted in the 2006 policy providing the default of $1,000,000 in UM coverage (equal to the bodily liability coverage provided therein); consequently, Litton contends, when the 2007 policy renewed the 2006 policy, it too provided UM coverage of $1,000,000, notwithstanding its statement to the contrary. Infinity counters that the 2006 policy was a renewal of the 2005 policy and that, pursuant to OCGA § 33-7-11 (a) (3), no additional election by Mendenhall was needed to retain the $50,000 election in UM coverage in both the 2006 and 2007 policies.

An insurance policy is governed by the ordinary rules of contract construction. The hallmark of contract construction is to ascertain the intention of the parties. However, when the terms of a written contract are clear and unambiguous, the court is to look to the contract alone to find the parties’ intent.

Whether an ambiguity exists in an insurance contract is a question of law for the court. An insurance contract will be deemed ambiguous only if its terms are subject to more than one reasonable interpretation.

A “renewal” of an automobile insurance policy is defined in pertinent part as the “issuance and delivery by an insurer of a policy superseding at the end of the policy period a policy previously issued and delivered by the same insurer and providing no less than the coverage contained in the superseded policy.” The Supreme Court of Georgia has held that a lapse in coverage between the expiration of the first policy and the effective date of the superseding policy does not preclude the superseding policy from being a renewal. Similarly, we have held that a policy issued by the successor-in-interest to the original insurer can be a renewal policy under this definition.

In Zurich American Ins. Co. v. Beasley, we addressed whether, for purposes of determining the amount of UM coverage, an insurance contract was a renewal of an earlier policy or a new contract of insurance. In that case, an original insurance policy had been issued indicating that it was a new contract of insurance, and several subsequent policies were issued indicating on their faces that they were renewal policies. Citing the principle of contract construction that words in the policy are to be given their usual and customary meaning, we determined that, as a matter of law, the policy in effect at the time of the accident in that case was a renewal contract. We explained:

[W]here the policy expressly provides that it is intended as a renewal, this language should be given deference in determining the parties’ intent. Furthermore, the subsequent policies serve the purpose of a renewal contract, under the commonly understood meaning, by continuing the obligation to insure.

Under the rationale in Zurich American Ins. Co., the 2006 policy at issue here was a renewal of an earlier policy of insurance, rather than a new contract of insurance. The declarations page of the 2006 policy stated twice on its face that it was a renewal. It also stated on its face that it provided the same amount of coverage (including UM coverage) as the prior policy. Thus, by its terms, the 2006 policy carried forward the same obligation to insure that Infinity had under the prior policy. The lapse in time between the expiration of Mendenhall’s prior policy and the effective date shown on the 2006 policy does not conflict with the policy’s statements that it was a renewal, because a renewal policy can begin on a date other than the expiration of the prior policy.

Thus, the terms of the 2006 policy did not allow for an interpretation that it was a new contract rather than a continuation of Infinity’s prior obligation to insure Mendenhall. Consequently, the language of the 2006 policy is unambiguous and controls the parties’ intent. Although Litton points to evidence that an employee of Infinity viewed the 2005 policy as having been cancelled, extrinsic evidence of the parties’ intent cannot vary the terms of an unambiguous contract.

Decided March 17, 2011

Drew, Eckl & Farnham, Stephanie F. Brown, Stevan A. Miller, for appellant.

Miller, Cowart & Howe, Wallace Miller III, Robert B. Sullivan, for appellee.

Because, as a matter of law, the 2006 policy was a renewal of an earlier policy, Mendenhall was not required to make a new affirmative election of UM coverage to retain the $50,000 in coverage provided under the earlier policy. Likewise, Mendenhall was not required to make a new election of UM coverage in the 2007 policy, which was a renewal of the 2006 policy. Infinity was entitled to judgment, as a matter of law, that the 2007 policy provided UM coverage of $50,000 per person, as indicated on the policy’s declarations page, and the trial court erred in denying its motions for directed verdict and judgment notwithstanding the verdict.

Judgment reversed.

Miller, P. J., and McFadden, J., concur.

       See Thompson v. Allstate Ins. Co., 285 Ga. 24, 25 (673 SE2d 227) (2009).

       See OCGA § 9-11-50 (b) (“[n]ot later than 30 days after entry of judgment, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict”).

       See OCGA § 5-6-38 (a) (“when a . . . motion for judgment notwithstanding the verdict has been filed, the notice [of appeal] shall be filed within 30 days after the entry of the order granting, overruling, or otherwise finally disposing of the motion”).

        Parris Props. v. Nichols, 305 Ga. App. 734, 735 (1) (700 SE2d 848) (2010) (citation and punctuation omitted); see Savannah Yacht Corp. v. Thunderbolt Marine, 297 Ga. App. 104, 109 (1) (676 SE2d 728) (2009) (where appellant’s argument that trial court erred in denying motion for directed verdict turned on construction of contract, which involved a question of law for the court, we review the court’s ruling de novo); Huckaby v. Cheatham, 272 Ga. App. 746, 749 (1) (612 SE2d 810) (2005) (to the extent that the construction of a contract presented a question of law, appellate court owed no deference to trial court’s legal analysis in reviewing its ruling on a motion for directed verdict or judgment notwithstanding the verdict).

       See OCGA § 33-7-11 (a) (1) (A), (B); see also Soufi v. Haygood, 282 Ga. App. 593, 594 (639 SE2d 395) (2006).

       OCGA § 33-7-11 (a) (1) (B).

        Soufi, supra at 595 (citation omitted).

       OCGA § 33-7-11 (a) (3).

        Park ‘N Go ofGa. v. United States Fidelity & Guar. Co., 266 Ga. 787, 791 (471 SE2d 500) (1996) (citations and footnote omitted). See Progressive Preferred Ins. Co. v. Brown, 261 Ga. 837, 838 (1) (413 SE2d 430) (1992) (whether subsequent insurance policy renewed obligation of earlier policy or was a new contract depended on parties’ intent).

        Banks v. Brotherhood Mut. Ins. Co., 301 Ga. App. 101, 102 (1) (686 SE2d 872) (2009).

       Id. at 103 (1).

       OCGA § 33-24-45 (h) (2).

        Progressive Preferred Ins. Co., supra at 839 (2).

        Zurich American Ins. Co. v. Beasley, 293 Ga. App. 8, 11 (666 SE2d 83) (2008).

       Id.

       Id. at 10-11.

       Id. (footnotes omitted).

       See Zurich American Ins. Co., supra at 10-11; see also Borders v. Global Ins. Co., 208 Ga. App. 480, 483 (2) (430 SE2d 854) (1993).

       See Zurich American Ins. Co., supra at 11; see also Livoti v. Aycock, 263 Ga. App. 897, 904 (1) (590 SE2d 159) (2003) (the term “renewal” in Georgia case law refers to a contract that continues the same obligation as an earlier contract; an obligation is renewed when the same obligation is carried forward by the new paper or undertaking, whatever it may be).

       See Progressive Preferred Ins. Co., supra at 838-839 (2).

       See Banks, supra; Park ‘N Go ofGa., supra. Compare Brannen v. Gulf Life Ins. Co., 201 Ga. App. 241, 242 (2) (410 SE2d 763) (1991) (finding ambiguity on the face of a policy as to whether it was to constitute a new policy, where it was stamped “duplicate” but contained a typewritten provision that it was to take the place of a prior policy and that the prior policy was rendered “void”).

        Simpson v. Pendergast, 290 Ga. App. 293, 296 (1) (659 SE2d 716) (2008).

       See OCGA § 33-7-11 (a) (3); Soufi, supra at 595-596.

       See OCGA § 33-7-11 (a) (3); Soufi, supra.

       See Savannah Yacht Corp., supra at 111 (1) (reversing judgment in part where jury’s verdict was inconsistent with unambiguous terms of contract and trial court erroneously denied motion for directed verdict on contract issue); Huckaby, supra at 751 (1) (finding that trial court erred in failing to direct verdict consistent with unambiguous terms of contract); Indian Trail Village v. Smith, 152 Ga. App. 301, 302-303 (1), (2) (262 SE2d 581) (1979) (reversing denial of motions for directed verdict and judgment notwithstanding the verdict where application of rules of contract construction required, as matter of law, interpretation of contract inconsistent with jury verdict).


source: Caselaw Access Project

author: Doyle, Judge.

license: Public Domain

text:
    A10A1855.
    DOCKERY v. THE STATE.
    (707 SE2d 889)
   Doyle, Judge.

A Lumpkin County Superior Court convicted Rockey Allen Dockery of possession of methamphetamine with intent to distribute. Dockery appeals, arguing that the trial court erred by (1) giving an impermissible sequential jury charge; (2) refusing to charge the jury on the law of equal access; (3) admitting hearsay statements; and (4) allowing an audiotaped statement to go out with the jury during deliberations. Dockery also contends that his trial counsel was ineffective for failing to timely object to improper closing argument by the prosecutor. For the reasons that follow, we affirm.

On appeal from a criminal conviction, the evidence is construed in the light most favorable to the verdict of guilt, and the presumption of innocence no longer applies. An appellate court does not weigh the evidence or judge the credibility of the witnesses, but only determines whether the adjudication of guilt is supported by sufficient competent evidence.

Viewed in this light, the evidence showed that on May 4, 2006, Officer Mitchell Selaine used a confidential informant to purchase narcotics from 1109 Blackburn Road, Dockery’s residence. The purchase was made from an individual named Terry Rollins, who told the confidential informant that he “did not have any more marijuana,” but Dockery was supposed to have returned that day and had not shown up, so Rollins “did not know if [Dockery] would be back . . . with meth[amphetamine].” This statement was introduced at trial through the testimony of Officer Selaine.

On May 15, Officer Selaine executed a search warrant for 1109 Blackburn Road based on the sale of drugs to the confidential informant. The search team consisted of numerous officers, who secured the perimeter of the residence, and Officer Selaine testified that no one fled the scene. Upon entering the residence, officers brought Dockery out front and searched his person, resulting in the discovery of 21.38 grams of methamphetamine contained in 13 separate bags in Dockery’s front shirt pocket as well as $732 in cash in his front pants pocket, even though Dockery was not employed at the time. Dockery first told Officer Selaine that he put the methamphetamine there himself, and later he told the officer that Rollins put the narcotics in the pocket prior to fleeing the house. In addition to the narcotics on Dockery’s person, a small amount of liquid methamphetamine was discovered inside the residence near a piece of mail addressed to Dockery as well as syringes and other drug paraphernalia.

Dockery and Rollins were indicted in a four-count indictment, only one of which pertained to Dockery. Rollins later pleaded guilty.

At trial, Dockery did not testify, but the defense called several witnesses who testified that Rollins lived at the home and paid rent to Dockery, and a woman also lived there and gave Dockery $600 to hold for her. Barbara Marie Croy also testified that approximately 30 seconds prior to the officers’ entry to the home, Rollins put something into Dockery’s shirt pocket before fleeing the house.

The jury found Dockery guilty of one count of possession of methamphetamine with intent to distribute. Dockery filed a motion for new trial, which was denied after a hearing. Dockery appeals his conviction, and we affirm.

1. Dockery first argues that his conviction must be reversed because the trial court’s jury instruction on possession of methamphetamine, as a lesser included offense, was an improper sequential charge.

It is within the discretion of the trial court to determine whether supplemental jury instructions are necessary. On appeal, we review the trial court’s determination for abuse of that discretion, taking into account the sensitive nature of the judge’s responsibility at this stage of the trial and the duty of the trial judge to provide impartial and effective guidance on the law for the jury to follow in its deliberations.

As authority in support of his contention, Dockery relies on Cantrell v. State. Dockery, however, misapprehends Cantrell, which explains that jury unanimity on the greater charge is not required before the jury may deliberate on the lesser included charge. Thus, “[a] trial court may instruct a jury to consider a greater offense before it considers a lesser offense. A trial court may not, however, instruct the jury that it must reach a unanimous verdict on the greater offense before considering the lesser offense.” The record in this case demonstrates that neither the trial court nor the verdict form required the jury to reach a unanimous verdict on the greater offense before considering the lesser-included offense. The jury was instructed to consider the lesser offense of possession of methamphetamine only if they did not believe beyond a reasonable doubt that Dockery was guilty of possession of methamphetamine with intent to distribute. “Such a sequential charge is acceptable so long as the trial court does not insist upon unanimity with regard to the jury’s decision on the greater offense.”

2. Next, Dockery argues that the trial court abused its discretion by refusing to charge the jury on the doctrine of equal access. We disagree.

Dockery was discovered with 21.38 grams of methamphetamine in 13 separate baggies in his left front shirt pocket as well as $732 in currency in his pants pocket. The doctrine of equal access applies only to cases of constructive possession, and here, the evidence showed that Dockery actually possessed on his person methamphetamine, packaged such that the jury could find that he intended to distribute the contraband. Accordingly, the trial court did not abuse its discretion by denying Dockery’s request to charge on the doctrine of equal access.

3. Dockery also argues that the trial court erred by allowing Rollins’s statement into evidence through Officer Selaine’s testimony. We disagree.

OCGA § 24-3-5 states that “[a]fter the fact of conspiracy is proved, the declarations by any one of the conspirators during the pendency of the criminal project shall be admissible against all.”

A conspiracy may be shown by proof of an agreement between two or more persons to commit a crime. The existence of the conspiracy agreement may be established by direct proof, or by inference, as a deduction from acts and conduct, which discloses a common design on their part to act together for the accomplishment of the unlawful purpose. The existence of a common design or purpose between two or more persons to commit an unlawful act may be shown by direct or circumstantial evidence.

The evidence adduced at trial provided sufficient circumstantial evidence of a conspiracy to possess methamphetamine with intent to distribute such that it was proper to allow Rollins’s hearsay statements implicating Dockery in a conspiracy to distribute methamphetamine and other narcotics. When the search warrant was executed on Dockery’s home, Dockery claimed that Rollins was in the home immediately prior to the officers’ entry and that Rollins deposited the methamphetamine into Dockery’s front shirt pocket. Additionally, the methamphetamine was contained in 13 individual bags, and Dockery also possessed in his pants pocket a large amount of currency. Testimony showed that Rollins was living in his home, and Dockery claimed that Rollins, and not he, was selling any narcotics located in the home. This circumstantial evidence is sufficient to show the prima facie existence of a conspiracy between Rollins and Dockery to distribute methamphetamine. Simply because Dockery disavowed any involvement in the scheme does not show error on the part of the trial court for allowing into evidence Rollins’s statement to a criminal informant, which implicated Dock-ery as a seller of narcotics.

4. Dockery contends that the trial court erred by allowing into jury deliberations his recorded statement to officers, which he contends was not admitted into evidence by the State.

The statement was played during the State’s case, but there seemed to be some confusion at trial as to whether the State introduced the evidence. Although the prosecutor stated that the recording itself was not going “into evidence,” it appears that she intended the statement to be part of the evidence, but to prevent the actual recording from going to the jury during deliberations. Additionally, it is not clear from the record whether the recording was actually replayed for the jury or sent to the jury to be viewed again. Assuming that the tape was sent out with the jury, it would be a violation of the continuing witness rule. A violation of the continuing witness rule, however, does not require reversal if the error was harmless.

The Supreme Court of Georgia has adopted the highly probable test when determining if an error is harmless. If it is highly probable that the error did not contribute to the judgment then the error is harmless. The proper test to determine whether error is harmless (due to overwhelming evidence of guilt) is not whether there is sufficient other evidence to convict but whether it is highly probable that the error did not contribute to the judgment.

The statement that it appears Dockery made on the recording (it is not before us in the record) was also testified to by an officer at the scene that Rollins put the methamphetamine in his pocket before running out of the house. Nevertheless, it is highly probable that the error did not contribute to the judgment based on the overwhelming proof of Dockery’s guilt. It appears from the information available to us that the recording was cumulative of the statements Dockery made at the scene as testified to by the officers, and it therefore supported Dockery’s argument to the jury that he did not intentionally possess the methamphetamine. Thus, it is unlikely that any error occurred in allowing the jury to re-hear Dockery’s recorded statement with regard to this evidence. Accordingly, this enumeration is without merit.

5. Finally, Dockery contends that his trial counsel was ineffective for failing to contemporaneously object to the prosecution’s improper closing argument, which implied that the trial court’s ruling on evidence constituted a credibility determination.

To prevail on a claim of ineffective assistance of trial counsel, appellant must show counsel’s performance was deficient and that the deficient performance prejudiced him to the point that a reasonable probability exists that, but for counsel’s errors, the outcome of the trial would have been different. A strong presumption exists that counsel’s conduct falls within the broad range of professional conduct.

During closing argument, the prosecutor referenced Officer Selaine’s testimony concerning Rollins’s out-of-court statement, saying that “Selaine heard the tape and he told you exactly what. . . Rollins said on the tape. [The trial court] also listened to the tape to make sure that what Agent Selaine told you was correct. So there was no need for [the prosecution] to play the tape for you.” At the end of the State’s closing, trial counsel objected to the statement, and the trial court sustained the objection, issuing the following curative instruction:

Decided March 17, 2011

Brian Steel, for appellant.

N. Stanley Gunter, District Attorney, Thomas D. Wight, Assistant District Attorney, for appellee.

During the course of the State’s closing argument, reference was made to the fact that the Court heard some items which were otherwise testified to later by Agent Selaine. I want to remind you [that] by no ruling or comment which I have made have I intended to express any opinion upon the facts of the case, credibility of witnesses, upon evidence, or upon whether the defendant is guilty or not guilty of the charges. Often Courts hear pieces of evidence outside your presence for a variety of reasons, but the Court has no opinion as to the veracity of any matter. All of that, as I’ve given you in charge earlier, is for you to decide.

Trial counsel did not object to this instruction, and Dockery now contends that this was ineffective assistance of counsel because the instruction supported the State’s argument that the tape in fact existed, contrary to Dockery’s argument during closing. Thus, Dock-ery contends that trial counsel was ineffective for not moving for a mistrial.

Pretermitting whether trial counsel’s failure to move for mistrial after the trial court sustained his objection to the argument and issued the instruction above, this enumeration fails to establish the necessary prejudice to show ineffective assistance of counsel. The instruction above does not absolutely state that a recording of Rollins’s statement existed, and in light of the evidence adduced at trial, Dockery has failed to establish that trial counsel’s decision not to renew his motion for mistrial after issuance of the curative instruction would have resulted in a different outcome at trial.

Judgment affirmed.

Ellington, C. J., and Andrews, J., concur.

       OCGA § 16-13-30 (b).

       (Punctuation omitted.) Wilson v. State, 256 Ga. App. 741 (1) (569 SE2d 640) (2002).

       Approximately .25 grams of suspected methamphetamine was scraped from a spoon taken from the residence.

       (Citation and punctuation omitted.) Waddell v. State, 277 Ga. App. 772, 775 (2) (627 SE2d 840) (2006).

       266 Ga. 700 (469 SE2d 660) (1996).

       See id. at 701-703.

       (Footnote omitted.) Armstrong v. State, 277 Ga. 122, 123 (2) (587 SE2d 5) (2003).

       Compare Camphor v. State, 272 Ga. 408, 414-415 (6) (d) (529 SE2d 121) (2000) (holding that it was not erroneous for the trial court to charge:
      If you find beyond a reasonable doubt that this defendant did commit the crime of burglary then you would be authorized to find the defendant guilty. If you have a reasonable doubt that the defendant committed the offense of burglary it would be your duty to give him the benefit of the doubt and find him not guilty. Should you find the defendant not guilty of the crime of burglary, you would be authorized to consider under the evidence whether or not he did, at said time and place, commit the lesser offense of criminal trespass.)
      (punctuation omitted) with Kunselman v. State, 232 Ga. App. 323, 324 (1) (501 SE2d 834) (1998) (holding that it was reversible error for the court to instruct the jury that “if you find the defendant not guilty of burglary, you would then and only then be authorized to consider the lesser included offense of criminal trespass”) (punctuation omitted).

       (Punctuation omitted.) Allison v. State, 259 Ga. App. 775, 779 (4) (577 SE2d 845) (2003).

       See Waddell, 277 Ga. App. at 775 (2).

       See Davis v. State, 304 Ga. App. 355, 363-364 (6) (696 SE2d 381) (2010).

       (Punctuation and footnotes omitted.) Brooks v. State, 281 Ga. 14, 15 (2) (635 SE2d 723) (2006).

       See id. at 15-16 (2).

       The statement is not contained in the record, but it appears that Dockery reiterated his statements to officers that Rollins had put the methamphetamine in his pocket.

       See Sagenich v. State, 255 Ga. App. 663, 665 (2) (566 SE2d 327) (2002); Summage v. State, 248 Ga. App. 559, 561 (1) (546 SE2d 910) (2001) (a “trial court has discretion to allow the jury to rehear recorded statements, if it is done in open court”).

       See Summage, 248 Ga. App. at 561 (1).

       (Citations and punctuation omitted.) Morrow v. State, 229 Ga. App. 242, 245 (4) (493 SE2d 616) (1997).

       See, e.g., id.; Owens v. State, 248 Ga. 629, 631-632 (284 SE2d 408) (1981).

       We note that the closing arguments were not transcribed, but the relevant facts are not contested by the parties.

       (Punctuation omitted.) Hubbard, 285 Ga. at 793 (3). See Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

       See Morrow, 229 Ga. App. at 245 (4).


text:
    A10A2019.
    KELLEY et al. v. HEDWIN CORPORATION.
    (707 SE2d 895)
   Doyle, Judge.

In this products liability suit, Ernie and Donna Kelley appeal from the grant of summary judgment to Hedwin Corporation. The Kelleys’ suit is based on injuries sustained by Ernie, a hospital employee, when he cleaned up formaldehyde spilled by a nurse from a five-gallon plastic storage container originally manufactured by Hedwin Corporation. For the reasons that follow, we affirm the grant of summary judgment to Hedwin.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiffs case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiffs claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the non-moving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.

The record shows that Ernie, a clinical engineer at a hospital, was at home one evening when he received an emergency call from hospital staff informing him that a chemical spill had occurred at the hospital. He replied that the hospital’s “Environmental Services” personnel should clean up the spill, and the nurse explained that they had refused to do so. Ernie told the nurse he would come to the hospital, and upon arrival, he observed a large spill of liquid on the floor. He could smell strong fumes, and before he began cleaning, he was told that the spill was embalming fluid containing formaldehyde. Ernie then helped other staff clean up the spill with mops and buckets. He did not wear a mask, and he experienced coughing and restricted breathing as he cleaned.

The nurse who spilled the liquid deposed without dispute that the liquid came from a five-gallon collapsible plastic cube regularly used at the hospital to store and dispense embalming fluid. The cube had a mouth on one side, such that a full cube could be rotated up to substitute a spigot for the cap with which it was shipped (with the liquid not reaching the top of the cube), and the cube could be rotated down to dispense the liquid from the spigot. The nurse testified that the spigot was apparently not fastened tightly, and as soon as she touched the spigot, it fell off, and liquid poured rapidly out of the open mouth of the cube. The liquid spilled on the nurse, and someone retrieved the Material Safety Data Sheet to determine what hazards it presented. Based on what she learned, the nurse went home to shower and change clothes. The nurse then returned to work and finished her shift.

It is undisputed that Hedwin manufactured the empty container only, and it did not sell formaldehyde, fill the container with formaldehyde, package or label the filled container, nor sell the formaldehyde-filled container to the hospital. Furthermore, it did not manufacture or install the spigot on the container in question. The filled container was provided to the hospital by a separate entity, Cardinal Health.

The Kelleys sued Hedwin and Cardinal Health, alleging personal injury and loss of consortium claims based on negligent manufacturing, negligent design, and failure to warn. The trial court granted summary judgment to Hedwin, giving rise to this appeal.

On appeal, the Kelleys argue that the trial court improperly granted summary judgment (1) because Hedwin failed to adequately warn users that the gravity-fed spigot could cause a large spill if uncapped, and (2) because the container’s gravity-fed design was defective. We disagree.

1. Failure to warn. With respect to the failure to warn argument, “there is no duty resting upon a manufacturer or seller to warn of a product-connected danger which is obvious or generally known.” It is both obvious and generally known that a poorly-capped container placed on its side will spill large amounts of liquid regardless of design, and it is undisputed that the spill occurred because a hospital employee failed to properly replace or install the spigot. Thus, employees were or should have been aware of the risk of a spill about which Ernie claims they should have been warned. The Kelleys’ own expert opined that the dispensing method used here is “common,” and the fact that it could leak if the cap is poorly installed is not “new.” Therefore, in light of the circumstances of this case, we conclude that the Kelleys’ failure to warn argument fails as a matter of law.

2. Negligent design. With respect to a negligent design argument, the burden on the defendant at summary judgment is “to show plainly and indisputably an absence of any evidence that a product as designed is defective.” The presence of a design defect is determined by engaging in a “balancing test whereby the risks inherent in a product design are weighed against the utility or benefit derived from the product” as designed. Although such questions are normally the province of the jury, the test does not foreclose judgment as a matter of law in cases where the absence of a design flaw is plainly and indisputably shown by the evidence.

Georgia courts employ the risk-utility test according to the following non-exhaustive list of factors:

the usefulness of the product; the gravity and severity of the danger posed by the design; the likelihood of that danger; the avoidability of the danger, i.e., the user’s knowledge of the product, publicity surrounding the danger, or the efficacy of warnings, as well as common knowledge and the expectation of danger; the user’s ability to avoid danger; the state of the art at the time the product is manufactured; the ability to eliminate danger without impairing the usefulness of the product or making it too expensive; and the feasibility of spreading the loss in the setting of the product’s price or by purchasing insurance. We note that a manufacturer’s proof of compliance with industry-wide practices, state of the art, or federal regulations does not eliminate conclusively its liability for its design of allegedly defective products.
Alternative safe design factors include: the feasibility of an alternative design; the availability of an effective substitute for the product which meets the same need but is safer; the financial cost of the improved design; and the adverse effects from the alternative.
In regard to the benefits aspect of the balancing test, factors that could be considered include the appearance and aesthetic attractiveness of the product; its utility for multiple uses; the convenience and extent of its use, especially in light of the period of time it could be used without harm resulting from the product; and the collateral safety of a feature other than the one that harmed the plaintiff.

Here, the Kelleys provided an affidavit from an expert who opined that a container used to dispense a hazardous liquid should not be of a design where there is a “potential to spill all the contents in a very short time if the valve were to come off.” Aside from failure to warn issues, he recommended that: (1) containers designed for use in the manual dispensing of toxic liquid should be designed so that all connections are above the normal maximum liquid level; (2) a means should be provided to prevent the flow of toxic liquid by siphon flow; and (3) manual dispensing should be done with a hand pump installed on an upright container.

Nevertheless, the expert’s opinion fails to address the fact that the containers are specifically designed to be modular and useful for multiple purposes — allowing the end user to decide how to fill the container and how to dispense the liquid chosen. The container as designed accommodates a variety of filling and dispensing methods, including the hand pump method recommended by the Kelleys’ expert. The record shows that the dispensing method here, a spigot, was not chosen, designed, or manufactured by Hedwin. Nor did Hedwin manufacture, design, or label the outer cardboard packaging of the formaldehyde product shipped by a third party and dispensed by the hospital. Thus, Hedwin’s design was appropriate for pairing with the hand pump recommended for toxic chemicals, and the design of the container itself, as manufactured by Hedwin, was not defective.

Decided March 17, 2011.

J. Hugh Gordon, for appellants.

Moreover, the alleged risk associated with this modular, universal design — that an improperly capped container on its side will readily spill its contents — is an obvious danger of which any hospital employee should have been aware and could avoid. Indeed, as noted above, the Kelleys’ own expert opined that the method of dispensing that occurred here “is common,” and the fact that gravity will empty an open container placed on its side is “not a new revelation.”

The record contains other evidence of the utility of the design, which, among other things, was state of the art when designed, could be packaged in a variety of boxes, minimized the costs of shipping and storing empty containers, avoided “glugs” that can cause spills when dispensing, promoted total emptying thereby reducing waste, and complied with government packaging and shipping regulations. Based on the record before us, and in light of the obvious and avoidable nature of the risk from spilling, we conclude that the trial court did not err in granting summary judgment to Hedwin on the negligent design claim.

Judgment affirmed.

Ellington, C. J., and Andrews, J., concur.

Coleman Talley, Edward F. Preston, for appellee.

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

       Cardinal Health is not a party to this appeal. We further note that the Kelleys’ appellate brief makes only a truncated argument, seeks to supplement the record, and requests “a reasonable amount of time to review the record and complete their Appeal.” Such a compound filing is not authorized under this Court’s rules. See Court of Appeals Rule 41 (b). Further, after the record was supplemented (consistent with the Kelleys’ request) pursuant to Hedwin’s proper motion, the Kelleys filed no motion nor a reply brief. We exercise our discretion to address the merits of the arguments made in the Kelleys’ appellate brief as best we can discern them.

       The Kelleys do not argue on appeal that the spilled container itself was flawed in some way making it different from others of the same design manufactured by Hedwin. Therefore they do not assert a negligent manufacturing argument. See, e.g., Banks v. ICI Americas, 264 Ga. 732, 733 (1) (450 SE2d 671) (1994) (in a negligent manufacturing case “it is assumed that the design of the product is safe and had the product been manufactured in accordance with the design it would have been safe for consumer use”).

       (Punctuation omitted.) Moore v. ECI Mgmt., 246 Ga. App. 601, 606 (2) (542 SE2d 115) (2000) (danger of electrocution from miswiring an electrical appliance was both open and obvious to an experienced installer). See also Daniels v. Bucyrus-Erie Corp., 237 Ga. App. 828, 829 (516 SE2d 848) (1999) (discussing application of the open and obvious rule in the context of a failure to warn claim); Bodymasters Sports Indus, v. Wimberley, 232 Ga. App. 170, 174-175 (2) (501 SE2d 556) (1998) (because plaintiff was aware of the danger she claims she should have been warned against, the failure to post signs warning of such danger could not have been the proximate cause of her injury).

       See Daniels, 237 Ga. App. at 830 (warning not effective if the user is already aware of risk and a bystander cannot allege failure to warn if he ignored purported means of warning).

       See Moore, 246 Ga. App. at 606 (2).

       (Emphasis omitted and supplied.) Dean v. Toyota Indus. Equip. Mfg., 246 Ga. App. 255, 260 (3) (540 SE2d 233) (2000).

        Banks, 264 Ga. at 734 (1).

       See Ogletree v. Navistar Inti. Transp. Corp., 271 Ga. 644, 646 (522 SE2d 467) (1999).

       Banks, 264 Ga. at 736-737 (1), n. 6.

       The Kelleys do not dispute that the box label did contain warnings about the hazards of formaldehyde.

       See Moore, 246 Ga. App. at 605.

       See id. at 604 (1). Although the Kelleys do not specifically argue a strict liability theory on appeal, we note that “[t]he sine qua non of a products liability claim, regardless of whether the plaintiff proceeds under a theory of strict liability or negligence, is a defect in the product.” Boswell v. OHD Corp., 292 Ga. App. 234, 235 (664 SE2d 262) (2008). Based on our conclusions herein and the record in this case, a strict liability argument does not preclude summary judgment in this case. Compare Owens v. GMC, 272 Ga. App. 842, 846 (2) (613 SE2d 651) (2005) (plaintiff alleging strict liability “must show that the device did not operate as intended and this was the proximate cause of his injuries.”).


text:
    A10A2038.
    THOMAS v. BROWN et al.
    (707 SE2d 900)
   Doyle, Judge.

On December 29, 2004, Appellant B. E. Thomas filed suit against W. Bobby Brown to recover various debts and seeking equitable distribution (“the 2004 case”). On April 4, 2005, Thomas filed a second action against Brown, adding Claudia Brown as a defendant and seeking to recover under various promissory notes and rental income (“the 2005 case”). The trial court consolidated the two cases, which proceeded to trial. Following a jury verdict, the trial court entered judgment in favor of Thomas and against both defendants in the amount of $515,300.76. Thomas filed a motion for new trial, which the trial court denied. This appeal followed.

1. Thomas argues that the trial court erred by consolidating the two cases because neither he nor a third-party defendant consented thereto. This argument provides no basis for reversal.

OCGA § 9-11-42 (a) provides:

When actions involving a common question of law or fact are pending before the court, if the parties consent, the court may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.

In Ford v. Uniroyal Goodrich Tire Co., the Supreme Court noted that although the requirement of party consent in OCGA § 9-11-42 (a) “conflicts with the general intent of the consolidation rule,” given the express language of the statute, a trial court order consolidating cases without the consent of the parties constitutes reversible error, even in the absence of a showing of harm.

Here, Thomas not only consented, he actually requested the consolidation at a March 9, 2006 hearing regarding a discovery dispute in the 2004 lawsuit. Specifically, Thomas’s trial counsel stated at the hearing that “I have a motion to consolidate both cases since I think that they do intermingle with one another.” Bobby consented to the motion, and the trial court verbally granted the motion to consolidate. On April 21, 2009, Thomas stipulated the case to the trial calendar. Then, on May 20, 2009, more than three years after his motion to consolidate, Thomas filed a motion that the two cases be tried separately, arguing that the claims, parties, and causes of action in the two cases were “separate and distinct.” Shortly thereafter, the trial court entered a written order consolidating the two cases.

Under these circumstances, we find Thomas’s enumeration meritless. He requested consolidation, and the fact that he later rescinded his consent thereto does not render erroneous the trial court’s failure to separate the two cases for trial. To hold otherwise would be to require trial courts to set aside consolidation orders every time a party revoked its consent, a result not required by the statute and one that would, in the words of the Supreme Court, “conflictt ] with the general intent of the consolidation rule,” for which the “objective is to give the [trial] court broad discretion to decide how cases on its docket are to be tried so that the business of the court may be dispatched with expedition and economy while providing justice to the parties.” Further, it is well settled that “[a] party will not be heard to complain of a ruling which it sought or to which it acquiesced.”

We are also unpersuaded by Thomas’s argument that a third party — United Community Bank of North Georgia (“United”) — did not consent to consolidation. First, the Browns dismissed United before trial. More importantly, given that he specifically sought consolidation, Thomas’s argument that United failed to consent thereto is unavailing.

2. Thomas contends that the trial court erred by permitting Bobby to be absent from trial and substituting Bobby’s son-in-law, Ron Mayhew, “to act in his stead and in his place.”

Before the trial began, Thomas’s trial counsel noted Bobby’s absence and objected thereto, as well as to “Mayhew’s presence in court.” Bobby’s trial counsel provided two affidavits, which Thomas’s counsel reviewed and characterized as one dated September 2008, that accompanied an application for conservatorship of Bobby; and another dated June 2008 from Bobby’s physician stating that Bobby’s health had declined to such an extent that he was unable to attend trial. After reviewing the affidavits, the trial court ruled that it would excuse Bobby’s presence and permit Mayhew to remain in the courtroom for the duration of the trial.

Pretermitting whether the trial court abused its discretion in excusing Bobby’s presence from trial and permitting Mayhew to remain at the defendants’ table for the trial, Thomas has not demonstrated that he was harmed by these rulings. “Because harm as well as error must be shown to warrant reversal, this enumeration is without merit.”

3. In his final enumeration, Thomas argues that the trial court erred by granting Claudia Brown’s motion to open her default.

Under OCGA § 9-11-55 (b), a prejudgment default may be opened on one of three grounds if four conditions are met. The three grounds are: (1) providential cause, (2) excusable neglect, and (3) proper case; the four conditions are: (1) showing made under oath, (2) offer to plead instanter, (3) announcement of ready to proceed with trial, and (4) setting up a meritorious defense. The question of whether to open a default on one of the three grounds noted above rests within the discretion of the trial judge.

The factors to consider in determining whether to open a default include

whether and how the opposing party will be prejudiced by opening the default; whether the opposing party elected not to raise the default issue until after the time under OCGA § 9-11-55 (a) had expired for the defaulting party to open default as a matter of right; and whether the defaulting party acted promptly to open the default upon learning no answer had been either filed or timely filed. Further, any additional delay occasioned by a failure to file promptly for opening default upon its discovery can be considered in determining whether defendants’ neglect was excusable.

The law favors the opening of defaults because

the rule permitting opening of default is remedial in nature and should be liberally applied, for default judgment is a drastic sanction that should be invoked only in extreme situations. Whenever possible[,] cases should be decided on their merits!,] for default judgment is not favored in law.

“The sole function of an appellate court reviewing a trial court’s denial of a motion to open default is to determine whether all the conditions set forth in OCGA § 9-11-55 have been met and, if so, whether the trial court abused its discretion based on the facts peculiar to each case.”

Here, Thomas filed his complaint in the 2005 case against Claudia and Bobby on April 4, 2005, and both defendants were served on April 11, 2005. Attorney Dale Wren filed an answer on Bobby’s behalf on May 6, 2005. Wren did not file an answer on behalf of Claudia, who believed that Wren had done so. The parties proceeded with discovery until December 28, 2006, when Thomas filed a motion to dismiss, alleging therein for the first time that Claudia had not filed an answer to the complaint; Thomas did not move for a default judgment. Claudia became aware that she was in default on January 3, 2007, and she immediately requested that her current counsel file an answer on her behalf. Thereafter, on January 8, 2007, Claudia filed a motion to open default, which included her offer to plead instanter and announcement of ready to proceed to trial, an answer setting forth a meritorious defense, and her sworn affidavit in support thereof, detailing her reasons for failing to timely file an answer.

The trial court granted Claudia’s motion to open the default, concluding that opening

the default is proper in this case due to excusable neglect and because the facts and circumstances set forth a proper case for [opening] default. The parties have been proceeding as if Claudia Brown were a party for over a year, her claims and defenses are co-extensive with those of her husband (co-defendant Bobby Brown) [,] and the parties have been on notice as to their claims and defenses. Furthermore, opening the default against Claudia Brown will add no further burden to any party’s ability to prosecute or defend the claims in this case. As the defendant has pa[id] costs and complied with all the requirements to open the default pursuant to OCGA § 9-11-55 (b), the defendant Claudia Brown’s motion to open default is hereby GRANTED.

Decided March 17, 2011.

Richardson & Chenggis, George G. Chenggis, for appellant.

Kaufman, Miller & Sivertsen, Jeremy B. Liebman, for appellees.

The record supports the trial court’s conclusion that each of the four conditions precedent had been met. Claudia believed that her attorney had filed an answer on her behalf, Wren did file an answer on behalf of Claudia’s husband, the parties proceeded with discovery, Claudia immediately filed an answer and motion to open default once she realized that she was in default, and Thomas has failed to establish any specific claim of prejudice resulting from the opening of default. “Under the circumstances, we hold that the trial court did not abuse its discretion by opening the default and allowing the case to proceed on the merits.”

4. The Browns’ motion for sanctions is denied.

Judgment affirmed.

Ellington, C. J., and Andrews, J., concur.

       The verdict indicates that the jury awarded $497,297.82 in damages to Brown for his equitable contribution claim; it also found for Brown in his claim regarding rental payments, but awarded him $0.

       (Emphasis supplied.)

       267 Ga. 226 (476 SE2d 565) (1996).

       (Punctuation omitted.) Id. at 229 (3).

       Id. at 229 (2).

       Id. at 229-230 (3).

        Firstline Corp. v. Valdosta-Lowndes County Indus. Auth., 236 Ga. App. 432, 434 (2) (511 SE2d 538) (1999). See also Imperial Massage & Health Studio v. Lee, 231 Ga. 482 (2) (202 SE2d 426) (1973) (“In the absence of fraud or mistake, a party cannot complain of a judgment, order, or ruling that his own conduct produced or aided in causing.”).

       It does not appear that the affidavits were admitted into evidence.

       (Punctuation omitted.) Accurate Printers, Inc. v. Stark, 295 Ga. App. 172, 178 (4) (671 SE2d 228) (2008).

       (Citations, punctuation and emphasis omitted.) Follmer v. Perry, 229 Ga. App. 257, 258 (1) (493 SE2d 631) (1997).

       (Punctuation omitted.) Vibratech, Inc. v. Frost, 291 Ga. App. 133, 145 (2) (661 SE2d 185) (2008).

       (Punctuation omitted.) Id. at 144-145 (2).

       (Punctuation omitted.) K-Mart Corp. v. Hackett, 237 Ga. App. 127, 128 (1) (514 SE2d 884) (1999).

       The Browns had retained new counsel, who filed an entry of appearance on November 28, 2005.

       (Emphasis omitted.)

        Albee v. Krasnoff, 255 Ga. App. 738, 741 (1) (566 SE2d 455) (2002). See also Rogers u. Coronet Ins. Co., 206 Ga. App. 46, 49 (2) (424 SE2d 338) (1992).


text:
    A10A2275.
    SERNA v. THE STATE.
    (707 SE2d 904)
   Doyle, Judge.

Following a jury trial, Juan Antonio Serna appeals from his conviction of sexual battery, possession of dangerous drugs, and furnishing alcohol to a person under 21 years of age. Serna challenges the dangerous drug count only, contending that (1) the evidence was insufficient to prove that he committed the crime as alleged in the indictment, (2) the trial court erred by instructing the jury on fatal variance, and (3) the evidence did not suffice to show intent. For the following reasons, we affirm.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the appellant ... no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia. Conflicts in the testimony of the witnesses, including the State’s witnesses, are a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.

So viewed, the evidence showed that a group of college students and friends gathered in an apartment for a birthday celebration. The group drank alcoholic drinks and socialized over the course of the evening, and Serna, a professor at the college who knew several of the students, also attended. At one point, Serna offered to provide the students with a high quality tequila, and he left to retrieve the tequila. By the time he returned to the apartment, most of the attendees had left, but K. M., one of Serna’s former students and teaching assistants, remained in the apartment. Serna and K. M. drank a shot of tequila together, and Serna offered K. M. a small bottle containing a substance he asked K. M. to sniff, which rendered K. M. “very dizzy . . . very heavy and just kind of stuck where [he] was.” Serna then proceeded to sexually touch K. M. without K. M.’s consent. Serna soon left the apartment, and K. M. called campus security after he recovered from the effect of the sedative administered by Serna.

Serna was arrested, and police found in his residence a bottle labeled “Amsterdam Poppers” matching K. M.’s description of the bottle containing the sedative. Serna was charged with several crimes based on the assault, and a jury found him guilty of sexual battery, possession of dangerous drugs, and furnishing alcohol to a minor. After Serna’s motion for new trial was denied, he filed this appeal.

1. Serna contends that the evidence was insufficient to show that he committed the dangerous drug violation as alleged in the indictment. Serna does not challenge the sufficiency of the evidence as to the finding that he unlawfully possessed a dangerous drug; instead, he argues that the offense was not proven as alleged. Thus, Serna essentially contends that there was a fatal variance between the proof and the indictment.

Our courts no longer employ 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.

Here, the indictment accused Serna of possessing “a dangerous drug, to wit: Amyl Nitrate, in violation of Dangerous Drug Act, Code Section 16-13-70 [et seq.], in that said accused possessed a bottle of liquid labeled ‘Amsterdam Poppers[,’] also known as Amyl Nitrate, contrary to the laws of this state. ...” Serna correctly points out that amyl nitrate is not included in the list of dangerous drugs, although he concedes that the trial evidence showed that the bottle he possessed contained alkyl nitrite, which is classified as a dangerous drug.

These facts are materially the same as those in Hardin v. State, in which this Court affirmed the conviction of a defendant who was indicted for possessing a certain compound alleged to be a controlled substance, but which was actually a nonexistent compound with a name similar to an actual controlled substance. This Court concluded that the difference was due to an “obvious typographical error in the indictment” and found the variance to be harmless. We find this reasoning persuasive here in light of the similarity in name between the indicted chemical and the proven chemical. Further, the indictment notified Serna of the date of the offense, the type of offense, and the basis for the offense; and Serna was convicted of the same offense listed in the indictment. Based on these circumstances, Serna’s defense was not compromised at trial, and he was protected from a second prosecution for the same offense. Therefore, the variance between the allegations in the indictment and proof at trial was not fatal.

2. Serna also contends that the trial court erred by leaving for the jury the question of whether any variance between the indictment and proof at trial was fatal. To the extent the trial court relied on the jury to determine whether the variance was fatal, we agree, but we find the error to be harmless in light of our holding in Division 1.

3. Finally, Serna contends that the evidence was insufficient to show his intent to possess a dangerous drug because he was unaware that the chemical compound in the “Amsterdam Poppers” bottle was classified as a dangerous drug under OCGA § 16-13-71. We disagree.

OCGA § 16-13-72 provides that “it shall be unlawful for any person . . . to . . . possess in this state any dangerous drug,” except under certain medical and pharmacological circumstances not present in this case. The term “dangerous drug” is defined to include alkyl nitrite, which was the compound Serna possessed. Serna argues that because he was unaware of the precise chemical compound in the bottle and of its “dangerous drug” status in the Criminal Code, he lacked the requisite criminal intent to be guilty of possessing the dangerous drug.

Nevertheless, “[i]gnorance of the law excuses no one.” “The fact that the defendant was ignorant of the fact that [ ]he was violating the law does not relieve h[im] of criminal intent if [ ]he intended to do the act which the legislature has prohibited.” Serna does not contend that he did not possess the chemical or that his possession was accidental. Furthermore, with respect to Serna’s knowledge of the nature of the chemical,

Decided March 17, 2011.

Robert S. Lanier, Jr., for appellant.

Richard A. Mallard, District Attorney, Daphne H. Jarriel, Assistant District Attorney, for appellee.

both knowledge and possession may be proved, like any other fact, by circumstantial evidence. And it has long been the law that knowledge may be proved by facts and circumstances from which a jury could reasonably infer that a defendant knowingly possessed contraband. Thus, OCGA § 16-2-6 provides that a jury may find criminal intention upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.

At trial, there was evidence supporting an inference that Serna used the dangerous drug to sedate his sexual battery victim. This conduct demonstrated Serna’s knowledge of the harmful effect of the compound and authorized the jury to conclude that Serna intended to possess a dangerous drug, even if he was subjectively unaware of the precise chemical compound in the bottle and its regulated nature. Thus, based on the facts of this case and the longstanding principles quoted above, we conclude that Serna’s argument fails.

Judgment affirmed.

Ellington, C. J., and Andrews, J., concur.

       OCGA § 16-6-22.1 (b).

       OCGA § 16-13-72.

       OCGA § 3-3-23.1 (a).

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       (Punctuation omitted.) McKay v. State, 234 Ga. App. 556, 556-557 (1) (507 SE2d 484) (1998).

       (Punctuation omitted; emphasis supplied.) Cooper v. State, 286 Ga. 66, 68 (2) (685 SE2d 285) (2009).

       We note that Serna did not file a general demurrer to the indictment in the trial court; therefore, in this direct appeal from the denial of a motion for new trial, we do not consider the argument that the indictment failed to allege the commission of any crime.
      When an indictment is absolutely void in that it fails to charge the accused with any act made a crime by the law and, upon the trial, no demurrer to the indictment is interposed and the accused is convicted under the indictment and judgment is entered on the verdict, the accused’s proper remedy is a motion in arrest of judgment or habeas corpus. A motion for [directed verdict or] new trial is not the proper method to attack the sufficiency of an indictment and does not provide a basis for this Court to review the indictment.
      (Citations and punctuation omitted.) McKay, 234 Ga. App. at 559 (2).

       See OCGA § 16-13-71 (b) (21.1).

       142 Ga. App. 795 (237 SE2d 202) (1977).

       See id. at 796 (2).

       Id.

       Compare Smith v. State, 202 Ga. App. 664, 665 (415 SE2d 481) (1992) (reversing conviction of offense not charged in indictment).

       See Hardin, 142 Ga. App. at 796 (2). See also Murray v. State, 157 Ga. App. 596, 598-599 (4) (278 SE2d 2) (1981) (finding no fatal variance despite a discrepancy in the name of the chemical compound).

       See OCGA § 16-13-71 (b) (21.1).

       OCGA § 1-3-6.

        Wilson v. State, 57 Ga. App. 839, 841 (197 SE 48) (1938). See Mincey u. State, 303 Ga. App. 257, 257-258 (692 SE2d 809) (2010).

       (Citations and punctuation omitted.) Riley v. State, 292 Ga. App. 202,205 (2) (663 SE2d 835) (2008).

       Cf. In the Interest of T. S., 211 Ga. App. 46, 47 (2) (438 SE2d 159) (1993) (affirming finding of delinquency for inhaling fumes of substance defined as “model glue,” when juvenile inhaled spray paint fumes containing acetone). See also Duvall v. State, 305 Ga. App. 545, 546 (1) (699 SE2d 761) (2010), cert, granted, Duvall v. State (Case No. S10G2079, Feb. 7, 2011).


text:
    A10A2296.
    HARRIS v. THE STATE.
    (707 SE2d 908)
   Doyle, Judge.

Following a jury trial, James Edward Harris was convicted of rape, sexual battery, aggravated battery, and assault. Harris appeals the denial of his motion for new trial, arguing that (1) the evidence was insufficient; (2) trial counsel was ineffective by stipulating to the admission of the results of a polygraph examination; (3) trial counsel was ineffective by failing to file a motion to sever his trial from that of his co-defendant; and (4) the trial court erred by denying his motion to retain an expert to testify regarding the inherent unreliability of polygraph examinations. We affirm, for reasons that follow.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.” We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether a “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”

So viewed, the record shows that on June 10, 2005, M. L. was visiting a friend’s house in Macon, where others were present, including Wendell Simmons, with whom M. L. was familiar. While at the house, Simmons used crack cocaine and drank alcohol; M. L., who had used crack cocaine earlier in the day, consumed alcohol. At some point, a man, later identified as Terry Jackson, asked Simmons to drive him home; M. L. accompanied them and a third man (later identified by M. L. as Harris) to a house in south Macon.

While there, M. L. had consensual sexual intercourse with Simmons in exchange for a ride home. When M. L. refused to have sex with Harris and Jackson as well, Harris hit her in the face with a gun, and the three men ripped her clothes off. Each of the three men forced M. L. to have vaginal intercourse and forcibly sodomized her, anally and orally. The men also punched her with their fists, making her stand on a sofa while they “would run from a distance and just hit [her].” The men hung M. L. upside down by her feet, and Harris burned her buttock with a hot iron and then poured salt and alcohol on the burn. When M. L. passed out, the men poured liquid on her face to revive her, and they forced her to clean up her blood from various rooms in the house. During the incident, while M. L. begged and pleaded for her life, Simmons told her they were going to kill her. M. L. cowered on the sofa and covered her face because she “didn’t want to see them shoot [her],” and Simmons then fired his gun at the floor. Harris also wielded a knife and threatened to “cut” and kill her. The men discussed needing to get a shovel to dispose of her body.

M. L. finally passed out, and when she regained consciousness the following morning, Simmons was raping her again, and Harris and Jackson were gone. Thereafter, Simmons gave M. L. permission to leave, telling her that, “You’re not gonna make it to the end of the street. You’ll be dead before you get there.” M. L. left the house, noting details about its appearance so she could identify it later, and she went to her niece’s house and called 911.

On the way to the hospital in an ambulance, M. L. identified the house where the attack occurred. Police found Simmons asleep and naked in the bedroom, and they arrested him. Police also found M. L.’s blood and other items in various rooms of the house, including the gun, an iron, shell casings from two separate firearms, a bucket and cloth, and bloody clothes.

At the hospital, M. L. was treated for facial contusions, a concussion, a fractured jaw, pain and swelling in her genital and anal regions, a urinary tract infection, and a second-degree burn on her buttock. No semen or other DNA evidence was recovered from the victim. According to the treating nurse, M. L. admitted that she had been smoking crack.

M. L. provided names for two of her assailants: “Boo,” who was later determined to be Simmons, and “J. B. Harris” or “Tim.” The police later obtained the name of Terry Jackson as one of the assailants, and M. L. positively identified him from a photographic lineup on June 29, 2005. Thereafter, the police identified Harris as a possible suspect, and they presented a photographic lineup to M. L. containing his photograph on September 13, 2005. M. L. positively identified Harris as one of her attackers “[within] about five seconds” of viewing the array. Harris, Jackson, and Simmons were arrested and charged with rape, aggravated sodomy, aggravated battery, and aggravated assault.

Following their arrests, counsel for Harris and Simmons entered into stipulations with the State, agreeing therein to submit to a polygraph examination, which would be admissible at trial, and agreeing “that the voluntariness or accuracy of said test and the qualifications of the polygraph examiner will not be contested because the test was performed as a joint decision of the State and the Defendant.” The polygraph examiner detected no indicators of deception with regard to Simmons; he did detect deception on the part of Harris.

Jackson’s trial was severed from the other two defendants, who were tried together. At Harris’s and Simmons’s trial, M. L. identified all three men as her attackers, and the polygraph examiner testified regarding the results of Harris’s and Simmons’s examinations. Harris testified and denied raping, beating, or burning M. L. He did admit, however, that he, Jackson, Simmons, and M. L. rode together in the car to the house in south Macon on the night of the attack and that they were in the house together. According to Harris, he left after he saw Simmons hit M. L. in the face; when he left, M. L., Simmons, Jackson, and “others” were present, and M. L. was “fine.” The jury found both men guilty of rape, sexual battery (as a lesser included offense to aggravated sodomy), aggravated battery, and simple assault (as a lesser included offense to aggravated assault). This appeal follows.

1. Harris challenges the sufficiency of the evidence as to his convictions, pointing to the testimony of an alibi witness and arguing that the victim gave conflicting names for Harris, including “Wolf,” “Tim,” and “J. B.” He also points out that there was no physical evidence connecting him to M. L.’s assault and rape and argues that the only evidence linking him to the crimes was M. L.’s testimony.

“The testimony of a single witness is generally sufficient to establish a fact.” “The weight of the evidence and witness credibility are not reviewable on appeal.” Here, M. L.’s testimony that Harris raped, sodomized, punched, burned, and threatened to kill her was sufficient to authorize his convictions.

2. Harris argues that the trial court erred by denying his ex parte motion for funds to retain “a polygraph expert to testify regarding the inherent unreliability of polygraphs in general.” We find no basis for reversal.

The Supreme Court of Georgia has expressly held “that upon an express stipulation of the parties that they shall be admissible, the results of a lie detector test shall be admissible as evidence for the jury to attach to them whatever probative value they may find them to have.” Here, before administration of the polygraph examination, Harris and the State specifically stipulated to the admissibility of the results thereof and that neither party would contest the voluntariness or accuracy of the test, nor the qualifications of the examiner. In denying Harris’s motion for funds, the trial court concluded that the relief sought therein “r[a]n contrary to the spirit of the agreement into which [Harris] voluntarily entered” and that “[t]he ends of justice would not be served by the granting of th[e] motion.”

Harris relies upon Sisson v. State, in which we concluded that a defendant who stipulated to the admissibility of the results of a polygraph examination was entitled to present testimony from his own expert regarding the results of the examination. Harris’s reliance is misplaced. In Sisson, the defendant stipulated only to the admissibility of the examination results. As we noted in that case, “[m]erely because a party stipulates to admissibility of testimony or evidence, does not deny that party the right to contest the accuracy of that testimony or evidence.” Here, in contrast to Sisson, Harris stipulated to the admissibility, accuracy, and voluntariness of the examination.

Furthermore, the trial court in Sisson actually excluded the testimony of the proposed defense expert. In the instant case, the trial court merely denied Harris’s request for funds for a defense expert regarding polygraph examinations; it did not specifically exclude the expert testimony itself.

A motion for funds to obtain an expert witness requires a reasonable showing to the court, by the defendant, why the expert’s services are required, what services are to be performed by such expert, the identity of the expert, and the cost to provide the needed services. The defendant must also demonstrate that without the assistance of the expert, the defendant’s trial would be rendered fundamentally unfair. The trial court has discretion to grant or deny a motion for funds for an expert witness.

Here, the record is devoid of any evidence that Harris identified his potential expert by name to the trial court or that he explained in any detail the specifics of the proposed testimony, other than stating that the expert would testify “regarding the inherent unreliability of polygraphs in general.” Under these circumstances, and in light of the stipulation, we cannot say that the trial court abused its discretion by denying Harris’s motion for funds for an expert on polygraph examinations.

3. Harris contends that he received ineffective assistance of trial counsel. To prevail on this claim, Harris

must show that trial counsel performed deficiently and that the result of the trial would have been different but for the deficiency. The question of ineffectiveness is a mixed one of both law and fact: we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.

(a) Harris contends that trial counsel was ineffective when he entered into the stipulation with the State regarding the admissibility, accuracy, and voluntariness of the polygraph examination. This claim is without merit.

Trial counsel testified at the motion for new trial that after Simmons took and “passed” a polygraph examination and was released from pretrial custody, Harris suggested to trial counsel that he submit to one as well. Counsel discussed the polygraph examination with Harris on multiple occasions, including “the potential pitfalls, the reliability and unreliability of polygraphs, inexperience of the . . . polygraph examiner, and stuff of that nature. And [Harris] was adamant[,] and he was convincing, and ultimately it was his choice.” Trial counsel also testified that although his normal practice is to recommend that his clients not submit to a polygraph examination, and he initially did so in this case, he ultimately agreed that Harris should submit to one because counsel found him “exceedingly credible.” Clearly, trial counsel’s decision to enter into the stipulation was strategic. “[T]rial strategy and tactics do not establish ineffective assistance.” As our Supreme Court has held, “[stipulating to the admission of polygraph test results is a valid trial strategy!,] and there was evidence the ramifications were explained to [Harris].”

Decided March 17, 2011.

William M. Ermine, for appellant.

Howard Z. Simms, District Attorney, Wayne G. Tillis, Dorothy V. Hull, Assistant District Attorneys, for appellee.

(b) Harris further argues that trial counsel was ineffective by failing to file a motion to sever his case from that of Simmons. This claim is also without merit.

Trial counsel testified at the motion for new trial hearing that he made the strategic decision not to move to sever the trials because he wanted to support his argument that polygraph examinations are unreliable by presenting evidence that Simmons passed his polygraph examination even though more physical evidence linked Simmons to the crime scene. Counsel also believed that because there was more evidence linking Simmons to the crimes, Harris “look| ed| great” compared to Simmons. “Inasmuch as an informed strategic decision concerning severance does not amount to ineffective assistance of counsel, [Harris’s] contention on this issue is without merit.”

Judgment affirmed.

Ellington, C. J., and Andrews, J., concur.

       OCGA § 16-6-1 (a) (1).

       OCGA § 16-6-22.1 (b).

       OCGA § 16-5-24 (a).

       OCGA § 16-5-20 (a) (1).

        Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165) (2004).

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

       Each of the three men had a gun.

       (Punctuation omitted.) Bearfield v. State, 305 Ga. App. 37, 38 (699 SE2d 363) (2010).

       (Punctuation omitted.) Id. at 40 (1).

       See id.; OCGA § 16-6-1 (a) (1) (rape); OCGA § 16-6-22.1 (b) (sexual assault); OCGA § 16-5-24 (a) (aggravated battery); OCGA § 16-5-20 (a) (1) (assault).

        State v. Chambers, 240 Ga. 76, 76-77 (239 SE2d 324) (1977).

       181 Ga. App. 784 (353 SE2d 836) (1987).

       See id. at 788-789.

       Id. at 788.

        Coalson v. State, 251 Ga. App. 761, 766-767 (3) (555 SE2d 128) (2001).

       The appellate record does not contain a transcript of any hearing on the motion for expert funds. Thus, our review of this issue is limited to consideration of Harris’s motion and the order only.

       At the motion for new trial hearing, Harris’s trial counsel identified the name of the expert witness he intended to have testify, but there is no evidence that he provided the name to the trial court in support of the motion for funds.

       See id. at 767-769.

       (Punctuation and footnote omitted.) Adesida v. State, 280 Ga. App. 764, 765 (3) (634 SE2d 880) (2006).

       (Punctuation omitted.) Horne v. State, 273 Ga. App. 132, 133 (4) (614 SE2d 243) (2005).

        Thornton v. State, 279 Ga. 676, 680 (6) (b) (620 SE2d 356) (2005). See also Ellis v. State, 280 Ga. App. 660, 662 (634 SE2d 833) (2006); Horne, 273 Ga. App. at 134 (5).

       (Citation omitted.) Thornton, 279 Ga. at 680 (6) (a).


author: McFADDEN, Judge.

text:
    A11A0443.
    REESE v. THE STATE.
    (707 SE2d 913)
   McFADDEN, Judge.

A jury found Kuwanza Reese not guilty of possessing cocaine with intent to distribute, but guilty of possessing cocaine with intent to distribute near a public housing project. Reese filed a motion in arrest of judgment, arguing that the inconsistent verdicts are repugnant and require an acquittal on all charges. The trial court denied the motion, and Reese appeals. Because Georgia law does not prohibit inconsistent criminal verdicts, we affirm.

According to Reese, the “not guilty” verdict on the cocaine possession charge precluded a guilty verdict as to possession of cocaine near a public housing project. He thus argues that the guilty verdict cannot stand. But our Supreme Court has abolished the inconsistent verdict rule in criminal cases. Milam v. State, 255 Ga. 560, 562 (2) (341 SE2d 216) (1986). As a result, a defendant “cannot attack as inconsistent a jury verdict of guilty on one count and not guilty on a different count.” Coleman v. State, 286 Ga. 291, 296 (4) (687 SE2d 427) (2009).

Decided March 17, 2011.

Leonard Farkas, for appellant.

Joseph K. Mulholland, District Attorney, for appellee.

The basis for this rule is simple. A court “cannot know and should not speculate why a jury acquitted on one offense and convicted on another offense.” Artis v. State, 299 Ga. App. 287, 292 (5) (682 SE2d 375) (2009). The verdict could be the result of mistake, compromise, or lenity exercised in favor of the defendant. See id. We simply do not know. Accordingly, it is

imprudent and unworkable to allow criminal defendants to challenge inconsistent verdicts on the ground that in their case the verdict was not the product of lenity, but of some error that worked against them. Such an individualized assessment of the reason for the inconsistency would be based either on pure speculation, or would require inquiries into the jury’s deliberations that the courts generally will not undertake.

Id. at 292-293. See also English v. State, 304 Ga. App. 285, 288 (2) (696 SE2d 106) (2010).

Reese’s “inconsistent verdict” challenge is contrary to Georgia law. The trial court, therefore, properly upheld the guilty verdict and denied his motion in arrest of judgment.

Judgment affirmed.

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


author: Mikell, Judge.

text:
    A10A1808.
    CROWE v. ELDER.
    (707 SE2d 494)
   Mikell, Judge.

This is the second appearance of this case in this court. Susan Crowe, the only child of decedent Walter E. Elder, III sued Eva Smith Elder (“Elder”), the decedent’s widow, for breach of contract arising out of Elder’s failure to honor an alleged agreement regarding the ultimate distribution of the decedent’s estate. The trial court granted summary judgment to Elder, and Crowe appeals. 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.

So viewed, the evidence shows that the decedent died intestate in 2004, leaving an estate valued at approximately $3,000,000. Elder petitioned the Probate Court of Barrow County for year’s support of $3,000,000, to which Crowe filed no objection. Crowe contended that she did not object to the petition in exchange for Elder’s agreement to divide the estate equally with Crowe and the decedent’s grandsons. The petition for year’s support was granted on September 21, 2004.

On May 1, 2007, Crowe instituted the action that resulted in the first appearance of this case in this court. Crowe and the decedent’s grandchild filed a motion to set aside the year’s support in the Probate Court of Barrow County, alleging that Elder fraudulently induced Crowe’s consent to the year’s support by promising to divide the estate equally with Crowe and her children and then failed to honor that agreement. The probate court dismissed the action on the grounds that it lacked equity jurisdiction. Crowe appealed the dismissal to superior court. Elder filed a motion for summary judgment, which the trial court granted, concluding that only Crowe had standing to maintain the action and that Crowe had failed to state a valid claim for fraud. Crowe appealed the grant of summary judgment, and we affirmed the trial court’s judgment.

On July 24, 2008, Crowe filed the instant action in the Superior Court of Barrow County, alleging breach of contract based on the same facts alleged in the first action. Elder filed a motion for summary judgment, which the trial court granted on the grounds that res judicata barred Crowe’s claim. On appeal, Crowe argues that res judicata did not bar her claim, but we disagree.

OCGA § 9-12-40 codifies Georgia’s basic common law rule of res judicata. The statute provides that

[a] judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.

In other words,

[t]he doctrine of res judicata prevents the re-litigation of all claims which have already been adjudicated, or which could have been adjudicated, between identical parties or their privies in identical causes of action. Three prerequisites must be satisfied before res judicata applies — (1) identity of the cause of action, (2) identity of the parties or their privies, and (3) previous adjudication on the merits by a court of competent jurisdiction.

There is no dispute here as to the identity of parties. Crowe argues that the subject matters are not identical because the first action alleged fraud, while the instant action alleges breach of contract. A cause of action is defined as “the entire set of facts which give rise to an enforceable claim.” “The question in determining whether an issue has already been decided by another court is whether both claims arose from the same set of facts. To determine that question, we must examine the subject-matter and the issues as raised by the pleadings in the two cases.” In the instant case, Crowe’s breach of contract claim arose out of the same facts as her fraud claim, i.e., the alleged breach of an agreement to divide the decedent’s estate equally with Crowe and her three sons in exchange for Crowe’s consent to the year’s support. Thus, the subject matter is the same.

Crowe maintains that res judicata cannot apply because the probate court lacked jurisdiction to decide the breach of contract claim. Probate courts have authority to exercise original, exclusive, and general jurisdiction over the probate of wills and over all other matters and things that appertain or relate to estates of deceased persons. And where “the probate court has been given exclusive, original subject matter jurisdiction, its authority is broad.” We agree with the trial court’s conclusion that Crowe had a full and fair opportunity to litigate the existence of the alleged agreement in the probate court and in the subsequent appeal from the probate court’s order. Therefore, res judicata bars the instant action. Accordingly, we affirm the trial court’s judgment.

Decided February 1, 2011

Reconsideration denied March 18, 2011

Thomas M. Strickland, for appellant.

Fortson, Bentley & Griffin, Kevin E. Epps, J. Edward Allen, Jr., for appellee.

Judgment affirmed.

Smith, P. J., and Adams, J., concur.

       In Crowe’s first appeal to this court, Crowe v. Elder, 296 Ga. App. XXIII (decided February 16, 2009) (Crowe I), she appealed the trial court’s grant of summary judgment to Elder on her claim that Elder committed fraud when she failed to honor the same agreement. We affirmed the trial court’s judgment in accordance with Court of Appeals Rule 36.

       (Citations and punctuation omitted.) Chester v. Smith, 285 Ga. 401-402 (677 SE2d 128) (2009).

        Crowe I.

       OCGA § 9-12-40.

       (Punctuation omitted.) Body of Christ Overcoming Church of God v. Brinson, 287 Ga. 485, 486 (696 SE2d 667) (2010), citing Karan, Inc. v. Auto-Owners Ins. Co., 280 Ga. 545, 546 (629 SE2d 260) (2006) (“Res judicata prevents a plaintiff from instituting a second complaint against a defendant on a claim that has already been brought, after having previously been adjudged not to be entitled to the recovery sought on that claim”) (citation omitted).

       (Citation and punctuation omitted.) Morrison v. Morrison, 284 Ga. 112, 116 (3) (663 SE2d 714) (2008).

       (Citation and punctuation omitted.) QoS Networks Ltd. v. Warburg, Pincus & Co., 294 Ga. App. 528, 532 (1) (b) (669 SE2d 536) (2008).

       See OCGA § 15-9-30 (a) (1), (10). See also Morrison, supra at 115 (3).

       (Citation and punctuation omitted.) Greenway v. Hamilton, 280 Ga. 652, 654-655 (2) (631 SE2d 689) (2006). See Heath v. Sims, 242 Ga. App. 691, 693 (1) (531 SE2d 115) (2000) (a claim that an executor breached his fiduciary duty does not fall outside of the probate court’s jurisdiction simply because damages are sought). See also Benefield v. Martin, 276 Ga. App. 130, 131-132 (622 SE2d 469) (2005) (probate court had jurisdiction over claims for fraud and breach of contract related to allegations that executors breached their fiduciary duties to distribute the assets of an estate; equity jurisdiction was not required where plaintiff sought to recover damages, thus superior court had no basis for exercising concurrent jurisdiction).