author: Branch, Judge.

text:
    A13A0770.
    BENJAMIN v. THE STATE.
    (743 SE2d 566)
   Branch, Judge.

James Troy Benjamin was tried and convicted of rape and kidnapping with bodily injury and sentenced to two concurrent life sentences. Following the denial of his motion for new trial, Benjamin appeals, contending that trial counsel was ineffective and that the trial court failed to properly answer a question from the jury.

Construed in favor of the guilty verdict, the evidence presented at trial shows that at about 2:00 a.m. Saturday morning July 19, 2008, a man spoke to the 57-year-old female victim and then attacked her, choked her, dragged her behind a house located at 2405 Amsterdam Drive, and raped her. After the assault, the police were called, and the victim gave a detailed description of her assailant to the police that strongly corresponded to the description of Benjamin on his booking report. Moreover, although she did not know the assailant’s name, the victim told the first responding officer that she knew of her assailant and his brothers, and she pointed out where her assailant was staying in the neighborhood, which was 2370 Amsterdam Drive in Richmond County, a three or four minute walk from the site of the attack. On the night of the assault, the officer was unable to get anyone to respond at the identified address. The victim went to the emergency room before morning, and medical evidence supported the fact of rape. Finally, a witness testified that he had seen both Benjamin and the victim that night and saw Benjamin walking toward the victim.

Three days after the assault, the victim told an investigator that her assailant’s name was James Benjamin and that he could be found at the 2370 Amsterdam Drive address. The investigator drove the victim to the location where she identified Benjamin as her assailant from among several men who were sitting outside. The investigator dropped the victim off elsewhere, returned to the location, asked Benjamin to come with him, and took Benjamin in his patrol car to where the victim was waiting. There, while Benjamin was sitting in the patrol car, the victim again identified Benjamin as the assailant. Benjamin had some scrapes on his knees and a scratched cheek at the time. The investigation did not produce any DNA, fingerprint or other scientific evidence, however; and Benjamin willingly gave a sample of his own DNA during the investigation. The victim also identified Benjamin at trial as the person who attacked and raped her.

Benjamin testified in his own defense and denied attacking and raping the victim. He also testified that his brother lives at 2370 Amsterdam Drive and that although he generally stayed at his brother’s home on weekends, he slept at his mother’s house on Friday night, July 18, 2008, and did not leave until 11:30 a.m. Saturday. He only went to his brother’s house that Saturday night.

1. Benjamin contends his trial counsel was ineffective for failing to call his mother as an alibi witness. Under Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984), the appellant “must prove both that his trial counsel’s performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance.” (Citation omitted.) White v. State, 283 Ga. 566, 569 (4) (662 SE2d 131) (2008). On claims of ineffective assistance of counsel, we will uphold a trial court’s findings of fact unless they are clearly erroneous but review legal conclusions de novo. Hunter v. State, 281 Ga. 526, 528 (2) (a) (640 SE2d 271) (2007); Cherry v. State, 283 Ga. App. 700 (1) (642 SE2d 369) (2007).

The relevant facts show that at the beginning of the trial, with the jury present, the court swore in all potential witnesses who happened to be present. Benjamin’s mother, who was present, did not stand as a witness. A bench conference ensued, during which the State explained “it doesn’t look like the defense is going to call the defendant’s mother. . . . It’s possible that I will call her because of a conversation I have had with her, so I would ask her to also be invoked [sic] and have to step outside too.” The bench conference ended, and the court then addressed Benjamin’s mother in the presence of the jury: “I think that you may be a witness in the case they’ve decided. I’m going to ask you to raise your right hand”; whereupon, she was given the oath for witnesses. Opening statements were not transcribed.

The State then presented its case-in-chief (but did not call Benjamin’s mother), following which Benjamin chose to testify in his own defense. On direct, he testified that he spent Friday night July 18, 2008, at his mother’s house, that he slept there, and that he did not leave until 11:30 Saturday morning. On cross-examination, the State forced Benjamin to concede that his mother was present in the courthouse and available to testify. Following Benjamin’s testimony, Benjamin’s trial counsel did not call his mother (or anyone else) as a witness; rather, the defense rested. Although closing argument was not transcribed, during colloquy at trial, the State explained to the court that during closing argument it argued that the defense had the power and ability to call material witnesses to testify.

The case was submitted to the jury, and, during the deliberations, the jury submitted a question to the court: “Why doesn’t Benjamin’s mother or any other witnesses give a statement to testify in his behalf?” In response, the trial court further instructed the jury that all the evidence had been presented and all the witnesses had testified. In response to the court asking for objections to the instruction, Benjamin’s counsel then asked the court to re-instruct the jury on the burden of proof, specifically that the defendant does not have any burden to present any evidence. The court declined to do so. At the sentencing hearing that immediately followed the trial, Benjamin’s mother spoke in support of her son and said, “Your Honor, I don’t think my child did that because he was at my house; he couldn’t have did it.” Benjamin’s mother did not testify at the hearing on the motion for new trial.

Remembering that there is a “strong presumption that counsel’s performance fell within the broad range of professional conduct,” Griffin v. State, 292 Ga. 321, 325 (6) (a) (737 SE2d 682) (2013), we hold that counsel’s performance was not deficient and that even if it was, Benjamin could show no harm.

(a) At the hearing on the motion for new trial, trial counsel testified that her theory of the case was misidentification, i.e., that Benjamin was not involved in the crime. Trial counsel admitted that when the trial court gave Benjamin’s mother the oath at the beginning of trial it could have led the jurors to expect that she would be called as a witness. But trial counsel testified that although she could not remember it, she had a reason for not calling Benjamin’s mother as a witness: “if I didn’t feel that her testimony was significant to the facts of the case or to any of the issues ... if she didn’t have any information to provide with relation to an identification, I wouldn’t have called her.” Trial counsel added, “I just know that there was a reason that I didn’t call her, but don’t remember what that reason was. But I didn’t call her for a reason.”

Trial counsel’s testimony is supported by the fact that the prosecutor told the court in a bench conference prior to opening statements that “it doesn’t look like the defense is going to call the defendant’s mother.” In other words, defense counsel had already made a decision not to call the mother. Moreover, the prosecutor suggested that based on his own conversation with Benjamin’s mother, there was a possibility that the State would call her as a part of its case-in-chief, suggesting that her testimony was favorable to the State. “[T]he determination of which witnesses to call... is a strategic and tactical decision within the exclusive province of the attorney after consultation with the client. [Cit.]” Fairclough v. State, 276 Ga. 602, 605 (4) (581 SE2d 3) (2003). Here, Benjamin has not overcome the strong presumption that counsel engaged in professional conduct.

(b) Even if counsel’s performance were deficient, however, Benjamin has failed to show prejudice. To prove the prejudice prong of Strickland on a claim that trial counsel failed to call a witness, a defendant must show the witness’s expected testimony by presenting either live testimony of the witness, an affidavit from the witness, or a “legally recognized substitute for the uncalled witness’s testimony”; a proffer by counsel is insufficient. (Footnote omitted.) Dickens v. State, 280 Ga. 320, 322 (2) (627 SE2d 587) (2006). See also Goodwin v. Cruz-Padillo, 265 Ga. 614, 615 (458 SE2d 623) (1995) (movant must “make an affirmative showing that specifically demonstrates how counsel’s failure would have affected the outcome of his case”). Benjamin’s mother did not testify at the hearing on the motion for new trial or submit an affidavit. Benjamin argues that his mother’s statement at the sentencing hearing, which immediately followed the trial at which she was sworn in as a witness, constitutes a legally recognized substitute for his mother’s testimony at the hearing on the motion for new trial.

Pretermitting this issue, however, we hold that Benjamin’s mother’s statement is insufficient to show that there is a reasonable probability that the trial result would have been different if she had testified at trial. Her statement contains no specific information such as the time Benjamin arrived at her house, whether she saw him during the night, whether he ever left the house, whether he had a vehicle at his disposal, whether she slept through the night, or where her house was in relation to the scene of the crime. Without such detail, Benjamin cannot show that his mother’s statement was, in fact, relevant alibi testimony, i.e., that it showed the impossibility of Benjamin’s presence at the scene of the crime, sufficient to require a new trial.

The defense of alibi involves the impossibility of the accused’s presence at the scene of the offense at the time of its commission. The range of the evidence in respect to time and place must be such as reasonably to exclude the possibility of presence.

OCGA § 16-3-40. See also Moore v. State, 268 Ga. App. 398, 399 (6) (601 SE2d 854) (2004). “Counsel is not ineffective because he does not call additional witnesses whose vague testimony could not corroborate appellant’s alibi.” (Citation omitted.) Palmer v. State, 274 Ga. 796, 797-798 (5) (560 SE2d 11) (2002) (counsel not ineffective when uncalled alibi witness’s testimony “could not exclude the possibility of appellant’s presence at the crime scene when the murders occurred”). Because Benjamin submitted no other evidence to show any alleged prejudice resulting from trial counsel’s failure to call Benjamin’s mother as a witness, we hold that Benjamin failed to meet the requirements of Strickland v. Washington. The trial court, therefore, did not err by denying the motion for new trial on this ground.

2. Benjamin also contends the trial court erred by failing to re-instruct the jury that Benjamin had no obligation to present evidence after the jury asked “Why doesn’t Benjamin’s mother or any other witnesses give a statement to testify in his behalf?” Alternatively, Benjamin contends that trial counsel was ineffective for failing to raise a contemporaneous objection to the trial court’s response to the jury’s question.

(a) We first find that, under the circumstances, trial counsel did not waive an objection. The court responded to the jury without offering an opportunity for the parties to object, following which the court asked the parties if they had any objection. Although defense counsel initially responded in the negative, she immediately thereafter raised an objection in which she asked the court to re-charge “the entire burden of proof issue” because the jury appeared to believe that the defendant had a burden to present evidence. It is clear that the trial court entertained the objection.

(b) When a jury does not ask for a recharge of one or more jury instructions but instead requests further explanation of the law or raises other questions “it [is] within the trial court’s sound discretion to determine the need, breadth, and formation of any additional jury instructions.” (Citation omitted.) Holloman v. State, 291 Ga. 338, 344 (7) (729 SE2d 344) (2012). See also Litmon v. State, 186 Ga. App. 762, 763 (2) (368 SE2d 530) (1988) (“the necessity, extent, and character of any supplemental instructions to the jury are matters within the sound discretion of the trial court”).

Here, after the jury asked why Benjamin’s mother or other witnesses did not testify on his behalf, the trial court instructed the jury as follows:

The lawyers have rested their case. All of the witnesses who are going to testify have testified. All of the evidence that... is to be presented has been presented. You will take the facts as you understand them to be and apply the law that I gave you in [the] charge and reach a verdict in this case.

We find no abuse of discretion. During the main charge, the trial court instructed the jury on the burden of proof:

The burden of proof is upon the State to prove every material allegation of the indictment and every essential element of the crime charged beyond a reasonable doubt. There is no burden of proof upon the defendant whatever and the burden never shifts to the defendant to prove his innocence. When a defense is raised by the evidence, the burden is on the State to negate or disprove it beyond a reasonable doubt. ... If the State fails to prove the defendant’s guilt beyond a reasonable doubt, it would be your duty to acquit the defendant.

The court also charged on alibi and charged that the State had the burden of proving beyond a reasonable doubt that the defendant was at the scene of the crime.

“[J]ury instructions must be read and considered as a whole in determining whether the charge contained error.” (Citations and punctuation omitted.) Sullivan v. Sullivan, 273 Ga. 130, 132 (2) (539 SE2d 120) (2000). Here, the trial court thoroughly charged the jury on the burden of proof and alibi. Thus, the trial court properly charged the principle requested by Benjamin in his objection. The court’s decision not to repeat the charge on burden of proof in response to the jury’s question about witnesses is not an abuse of discretion. See, e.g., Simon v. State, 321 Ga. App. 1, 5 (2) (740 SE2d 819) (2013) (under the circumstances presented, trial court did not err by refusing to recharge on burden of proof for an insanity defense and by referring the jury to charge already given).

With regard to Benjamin’s argument that a recharge on burden of proof was warranted because circumstances at trial might have led the jury to expect that Benjamin’s mother would testify, we note that it is acceptable for the State and the defense to comment on the failure of the other party to call witnesses who could have helped their case:

[W]hen a criminal defendant testifies at trial about the existence of a witness with knowledge of relevant facts, and the witness does not testify, the prosecutor is entitled to comment in closing argument on the defendant’s failure to produce the witness, and this does not improperly shift the burden of proof to the defendant.

(Citation omitted.) Latty v. State, 297 Ga. App. 233, 234 (2) (676 SE2d 882) (2009). See also Spear v. State, 270 Ga. 628, 630 (3) (513 SE2d 489) (1999) (“defense and prosecuting counsel are equally able to comment on the failure of the other to present certain witnesses as long as that argument is derived from evidence properly before the factfinder”) (citation and punctuation omitted); Morgan v. State, 267 Ga. 203, 207 (4) (476 SE2d 747) (1996).

Decided May 23, 2013.

Charles A. Jones, Jr., for appellant.

Ashley Wright, District Attorney, Madonna M. Little, Assistant District Attorney, for appellee.

For the above reasons, we conclude that the trial court did not abuse its discretion when it responded to the jury’s question.

Judgment affirmed.

Ellington, C. J., concurs. Phipps, P. J., concurs in Division 1 and in the judgment.


source: Caselaw Access Project

author: ANDREWS, Presiding Judge.

license: Public Domain

text:
    A13A0483.
    FIRST OPTION MORTGAGE, LLC v. S & S FINANCIAL MORTGAGE CORPORATION.
    (743 SE2d 574)
   ANDREWS, Presiding Judge.

First Option Mortgage, LLC (“First Option”), filed an application to vacate an interim arbitration award entered in favor of S & S Financial Mortgage Corporation (“S & S”) in the Superior Court of Gwinnett County. S & S thereafter filed its cross-petition and motion for confirmation of the award. The trial court confirmed the interim arbitration award and entered judgment. First Option appeals, contending that the interim award was not subject to confirmation because (a) it was not a final determination severable from the merits of S & S’s breach of contract claim and its defenses, and (b) it was entered “manifestly and consciously [in disregard of] Georgia law with regard to burdens of proof and set-off.” We disagree and affirm.

“In reviewing a trial court’s order confirming an arbitration award, this Court will affirm unless the trial court’s ruling was clearly erroneous.” (Citation and punctuation omitted.) Yates v. CACV of Colorado, 303 Ga. App. 425 (693 SE2d 629) (2010).

The instant arbitration arises out of the transfer of Stefen Shibley’s interest in Lenox Financial Mortgage, LLC (“Lenox”), to First Option. In exchange for Shibley’s interest in Lenox, First Option agreed to pay Shibley to provide general management services to Lenox’s former branch locations in Buckhead. The agreement of the parties (the “Agreement”) was executed on December 29, 2010 by Shibley, as President of S & S, and by Tim Burford as Managing Partner and CEO of First Option.

Among other provisions, the Agreement contained a broad arbitration clause in which the parties expressly agreed that Commercial Arbitration Rules (“Arbitration Rules”) of the American Arbitration Association (“AAA”) would govern as follows:

Resolution by Arbitration. If the Parties are unable to resolve the Dispute within the above described period or through mediation as provided above, then the Parties shall enter into binding arbitration as set forth herein. Any Dispute shall be resolved by binding arbitration in Atlanta, Georgia, pursuant to the Commercial Arbitration Rules (“Rules”) of the [AAA]. The arbitration tribunal shall consist of a sole neutral arbitrator appointed by the AAA pursuant to the Rules.

Further, the parties agreed that any award rendered by the arbitrator would be final and subject to entry of a final judgment thereon by “any court having jurisdiction over the Party.”

The Agreement required First Option to make three types of payments to S & S: management fees, equity consideration payments, and profit consideration payments. The amount of the foregoing payments turned on performance benchmarks; however, the minimum monthly management fee due S & S from First Option was not so limited, such fee as payable only “in accordance with [First Option’s] policy for the scheduling of salary payments to employees as in effect from time to time.” Further, the Agreement obligated First Option to continue such payments throughout the entire five-year term of the Agreement unless it terminated the Agreement for cause or S & S terminated the Agreement without good reason.

On April 22, 2011, First Option suspended S & S with pay for a period of one week while it addressed allegations that S & S employees under Shibley’s supervision had been allowed to consume alcohol on company premises. Two days earlier First Option had given S & S notice of its dissatisfaction with S & S’s performance of the services it was required to provide under the Agreement. On May 17, 2011, S & S terminated the Agreement for good reason alleging, among other things, that First Option had breached the Agreement by refusing to pay the management fee, by relocating the Buckhead branch locations to its call center without its prior written consent, and by improperly suspending S & S. Later the same day, First Option terminated the Agreement for cause asserting that S & S had not pointed to reasons sufficient to terminate the Agreement for good reason.

On January 12, 2012, S & S filed a statement of claim against First Option with AAA under the arbitration provisions of the Agreement, alleging breach of contract and fraud. First Option answered and counterclaimed on similar grounds. S & S filed its motion for interim relief seeking its minimum management fee under the Agreement on May 16,2012. Such motion sought interim relief under the Agreement of $772,250 ($25,750 for the first two quarters of the Agreement and $12,875 for every month thereafter). Following a telephonic hearing, the arbitrator granted S & S’s request in part in the amount of “$151,000 less the amount that First Option . . . paid in Management Fees . . . during the first two quarters of 2011 [,] . . . $12,875 per month beginning in July 2011 and continuing until further order of the Arbitrator ...[,] and ... interest at the statutory rate.” Thereafter, First Option moved for clarification and modification of the interim award, which motion the arbitrator denied sub silentio stating that “[i]t was not my intention that the Ruling on the Motion for Interim Relief constitute a final, dispositive Ruling on the breach of contract claim filed by [S & S]. That issue remains open for consideration later in the case.” The trial court’s confirmation of the interim award followed on September 4, 2012.

1. First Option contends that the trial court erred in confirming the interim award, arguing that it was a nonfinal determination severable from the merits of S & S’s breach of contract claim and its counterclaim and defenses, among them the defense of set-off. Asserting that the issue is one of first impression, First Option asserts that such an arbitration award is not subject to confirmation because it does not finally and definitely dispose of a claim separate and independent of its alleged liability on S & S’s breach of contract claim. We are not persuaded.

Georgia law holds that interim arbitration awards may be confirmed, even awards for payment prior to application of a set-off defense. Southwire Company, NSA v. American Arbitration Assn., 248 Ga. App. 226, 228 (3) (545 SE2d 681) (2001). There, Southwire withheld more than $500,000 from Pamas & Company, Inc. as a set-off from contract payments allegedly due Pamas under the contract at issue. After conducting a preliminary hearing, the arbitration panel awarded Pamas $253,809 in damages as interim relief. “Southwire argues that the arbitrators’ grant of interim relief contravened a clause in the parties’ contract stating that monies due from Southwire would be subject to deduction for set-off or counterclaim arising out of any contract between the parties.” Id. at 228-229. The trial court held that “no ground for vacation of the award” had been established because the contract of the parties required South-wire to set forth in writing its reasons for withholding the money at issue as a condition precedent to exercising its right to a set-off which Southwire had failed to do. Id. While the foregoing did not resolve the dispute of the parties which remained pending, it did finally determine the sum due Pamas under the contract during the pendency of the arbitration and any subsequent proceedings with respect to the award. Id.

Here, unlike Southwire, the Agreement does not include any clause authorizing First Option a right of set-off. However, the Agreement plainly requires that First Option pay S & S its minimum monthly management fee for the five-year term of the Agreement, absent First Option’s termination of the contract for cause. The conflicting substantive claims of the parties remain to be determined. Absent that determination, the Agreement and the arbitrator’s interpretation thereof are final to protect the status quo of the parties in the interim. “An arbitrator has inherent power to fashion a remedy as long as the award draws its essence from the contract or statute.” (Citation and footnote omitted.) Greene v. Hundley, 266 Ga. 592, 595 (468 SE2d 350) (1996). This the arbitrator did.

Accordingly, the trial court’s confirmation of the interim award was not clearly erroneous. Yates, supra, 303 Ga. App. at 425.

2. Neither did the trial court err in confirming the interim award of the arbitrator as not in manifest disregard of Georgia law. First Option argues that the arbitrator disregarded the law by shifting S & S’s burden of proof on its breach of contract claim to First Option and by not allowing First Option any set-off against S & S’s breach of contract damages.

At issue is the fifth ground for review of an arbitrator’s award, OCGA § 9-9-13 (b) (5). In such regard,

an arbitrator’s award may be vacated if it can be shown that the arbitrator manifestly disregarded the proper law applicable to the case before him. This disregard must be both evident and intentional. An arbitration board that incorrectly interprets the law has not manifestly disregarded it. It has simply made a legal mistake. To manifestly disregard the law, one must be conscious of the law and deliberately ignore it.

(Citation and punctuation omitted.) ABCO Builders v. Progressive Plumbing, 282 Ga. 308, 309 (647 SE2d 574) (2007).

Thus,

to prove that a manifest disregard of the law has occurred, a party wishing to have an arbitration award vacated must provide evidence of record that, not only was the correct law communicated to an arbitrator, but that the arbitrator intentionally and knowingly chose to ignore that law despite the fact that it was correct.

(Emphasis supplied.) Id. Such evidence must be in the form of a transcript or findings of fact in the arbitrator’s award. See, e.g., Azordegan v. Ebrahimi, 311 Ga. App. 509 (1) (716 SE2d 528) (2011); Ordner Constr. Co. v. Parkside Crossing, 300, 276 Ga. App. 753, 754 (1) (624 SE2d 206) (2005).

Here, there is no transcript of the proceedings below or findings of fact in the award. Nor did First Option request such a transcript. First Option having failed to carry its burden to establish by evidence of record the statutory ground of manifest disregard under OCGA § 9-9-13 (b) (5), there is nothing for this Court to review on appeal. Humar Properties v. Prior Tire Enterprises, 270 Ga. App. 306, 308 (605 SE2d 926) (2004). Under these circumstances, the trial court’s confirmation of the interim award cannot be clearly erroneous. Yates, supra, 303 Ga. App. at 425. There is no evidence to find otherwise.

Decided May 24, 2013.

Bryan Cave, Theresa B. Hubbard, for appellant.

McGuireWoods, David J. Forestner, for appellee.

Judgment affirmed.

Dillard and McMillian, JJ., concur.

       The Agreement defined “Cause” as any of the following events:
      (a) [S & S] or any of its Affiliates is convicted of or pleads guilty to any felony or any act of fraud, misappropriation or embezzlement; and
      (b) [S & S] or any of its Affiliates engages in gross and willful misconduct during the Term that demonstrably has a material adverse effect on, or results in a material adverse change in Company, monetarily or otherwise. For purposes of this Agreement, an act, or a failure to act, shall not be deemed willful or intentional unless it is done, or omitted to be done, by [S & S] in bad faith or without a reasonable belief that such action or omission was in the best interest of [First Option], Failure to meet performance standards or objectives, by itself, does not constitute “Cause.”

       The Agreement defined" ‘Good Reason’ [as] a material breach of this Agreement by [First Option] that is not cured within fourteen (14) business days after notice of such breach is given to [First Option] by [S & S].”

       The Agreement was effective on December 29, 2010.

       By paragraph 9 of the Agreement, First Option specifically agreed
      THAT ITS OBLIGATION TO PAY [S & S] THE TOTAL CONSIDERATION . . . SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT; PROVIDED, HOWEVER, THAT [FIRST OPTION]’S OBLIGATION TO PAY [S & S] THE MANAGEMENT FEE . . . SHALL TERMINATE UPON (A) [FIRST OPTION] TERMINATING THIS AGREEMENT FOR CAUSE, OR (B) [S & S] TERMINATING THIS AGREEMENT WITHOUT GOOD REASON....q (emphasis in original.)
      Further, paragraph 9 provided that the
      CONTINUED OBLIGATION OF [FIRST OPTION] TO PAY THE MANAGEMENT FEE . . . WAS AN ESSENTIAL ELEMENT IN SETTING CONSIDERATION UNDER [THE] AGREEMENTAND IN [S & S] ENTERING INTO [THE] AGREEMENT.


author: Miller, Judge.

text:
    A13A0727.
    LNV CORPORATION v. STUDLE et al.
    (743 SE2d 578)
   Miller, Judge.

LNV Corporation (“LNV’) sued Charles and Daniel Studle to recover amounts owed on two commercial promissory notes. After the parties engaged in settlement discussions, the Studies filed a motion to enforce a settlement agreement between the parties. The trial court granted the Studies’ motion, finding that e-mails exchanged between the parties constituted a valid settlement offer and acceptance thereof. LNV appeals, contending that the trial court erred in (1) not admitting parol evidence concerning ambiguities in the purported offer and acceptance, and (2) granting the Studies’ motion to enforce the settlement agreement. For the reasons that follow, we affirm.

We apply a de novo standard of review to a trial court’s order on a motion to enforce a settlement agreement. Because the issues raised are analogous to those in a motion for summary judgment, in order to succeed on a motion to enforce a settlement agreement, a party must show the [C]ourt 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 the Appellant’s case. Thus, we view the evidence in a light most favorable to the nonmoving party.

(Citations and punctuation omitted.) Johnson v. DeKalb County, 314 Ga. App. 790, 791 (726 SE2d 102) (2012).

So viewed, the record shows that on September 27, 2005, the Studies executed a promissory note (“Note 1”) payable to FirstBank Financial Services in the principal amount of $25,288. Note 1 was renewed on November 20, 2006, and again on July 17, 2008, in the principal amount of $25,150. On June 12, 2008, Daniel Studle executed a promissory note (“Note 2”) payable to FirstBank in the principal amount of $4,193.41. BothNote 1 and Note 2 (collectively the “Notes”) were subsequently assigned to LNV. On August 1, 2011, LNV filed suit against the Studies to recover the principal due on the Notes, plus accrued and unpaid prejudgment interest and attorney fees.

After the Studies filed their answer and defenses, the parties entered into settlement discussions via e-mail and by telephone. The parties’ settlement discussions included telephone conversations about a down payment of accrued and unpaid interest.

On March 21, 2012, the Studies’ counsel sent an e-mail to LNV’s counsel offering to settle the case for a total of $34,757.74, including a $5,000 down payment, with the remaining balance payable over 60 months at six percent interest. The offer also requested title to a 1999 GMC truck upon payment of the initial amount. Between March 21 and April 17, 2012, the parties exchanged a series of e-mails discussing a continuance of the trial date in this case, the status of the Studies’ March 21 settlement offer and the reduction in Charles Studle’s income.

On April 17, 2012, LNV’s counsel responded via e-mail to the Studies’ counsel with a counteroffer approved by LNV’s loan committee, which set forth the .terms under which the Notes would be modified to consolidate all current principal, charges and fees due as of April 15, 2012. LNV’s April 17 e-mail stated that the terms approved by the loan committee varied from the Studies’ March 21 offer in that the loan committee proposed a two-year term, with a sixty-month amortization. The April 17 e-mail also stated that the Studies would be required to enter into consent judgments, only to be recorded in the event of default. LNV’s counteroffer, however, did not mention the proposed $5,000 down payment or title to the GMC truck.

It is undisputed that on April 20, the Studies’ counsel sent an e-mail to LNV’s counsel, stating that the Studies accepted LNV’s offer as proposed. The April 20 e-mail also asked LNV’s counsel to draft the proposed modifications and consent judgments. The Studies’ counsel received an e-mail on May 17, 2012 with copies of the amended Notes and the modification agreement requiring the Studies to make an up-front payment of $5,949.08 in accrued interest. The Studies objected to this up-front payment, and they subsequently filed a motion to enforce a settlement agreement based on the April 17 and April 20 e-mails between the parties.

The trial court granted the Studies’ motion to enforce the purported settlement agreement, finding that the April 17 e-mail outlined LNV’s unambiguous settlement offer as approved by its loan committee, and the April 20 e-mail constituted the Studies’ acceptance of LNV’s settlement offer as proposed. The trial court also refused to consider parol evidence regarding conversations and e-mails that occurred prior to the formation of the settlement agreement.

1. LNV contends that the trial court erred by failing to admit parol evidence concerning ambiguities in the purported offer and acceptance. We disagree.

A settlement agreement is a contract and must meet the same requirements of formation and enforceability as other contracts.... Because a settlement agreement is a contract, it is subject to the usual rules of statutory construction. While the cardinal rule of construction is to determine the intention of the parties, no construction is required or permitted when the language employed by the parties in the contract is plain, unambiguous, and capable of only one reasonable interpretation.

(Punctuation and footnotes omitted.) Lamb v. Fulton-DeKalb Hosp. Auth., 297 Ga. App. 529, 533 (2) (677 SE2d 328) (2009). Moreover, it is well settled that parol negotiations preceding the making of a written contract are merged in the written contract, and parol evidence is inadmissible to vary or contradict the terms of a written contract which is valid on its face. See Parrish v. Jackson W. Jones, P.C., 278 Ga. App. 645, 647 (1) (629 SE2d 468) (2006); Green v. Ford Motor Credit Co., 146 Ga. App. 531, 532 (1) (246 SE2d 721) (1978). As more fully set forth in Division 2 below, the settlement agreement based on the two e-mails between the parties was clear, unambiguous, and enforceable on its face. Accordingly, the trial court did not err in refusing to consider parol evidence of conversations and e-mails occurring prior to the formation of the settlement agreement.

2. LNV contends that the trial court erred in granting the Studies’ motion to enforce the settlement agreement, because no enforceable agreement existed between the parties, and the trial court failed to view the evidence in the light most favorable to LNV.

Settlement agreements “are highly favored under the law and will be upheld whenever possible as a means of resolving uncertainties and preventing lawsuits.” (Punctuation and footnote omitted.) Triple Eagle Assoc. v. PBK, Inc., 307 Ga. App. 17, 20 (2) (704 SE2d 189) (2010).

In considering the enforceability of an alleged settlement agreement, however, a trial court is obviously limited to those terms upon which the parties themselves have mutually agreed. Absent such mutual agreement, there is no enforceable contract as between the parties. It is the duty of courts to construe and enforce contracts as made, and not to make them for the parties. The settlement agreement alleged to have been created in this case [was] the product of the attorneys for the parties. As the existence of a binding agreement is disputed, the proponent of the settlement must establish its existence in writing. The writing which will satisfy this requirement ideally consists of a formal written agreement signed by the parties. However, letters or documents prepared by attorneys which memorialize the terms of the agreement reached will suffice.

(Citation and punctuation omitted.) Johnson, supra, 314 Ga. App. at 793 (1).

Here, the settlement agreement consisted of the April 17 and April 20 e-mails between the parties. The April 17 e-mail from LNV’s counsel to the Studies unambiguously set forth the terms under which the Notes would be modified, as approved by LNV’s loan committee. In that e-mail, LNV’s counsel specifically referred to the pending suit on the Notes, identified the Notes as set forth in LNV’s complaint, and stated that the loan committee had approved the following settlement terms:

In respect of Note 1 — LNV and Charles M. Studle and Daniel Blake Studle enter into a loan modification, consolidation of all current principal, charges and fees as of April 15, 2012 in the amount of $24,628.80 with interest accruing at the U.S. prime rate*as published in the Wall Street Journal plus 2.75%, floor of 6%, adjusted quarterly, the term is a 2 year note based upon a sixty month amortization, with payments of $476.15 per month beginning 5/15/2012, payments adjusted quarterly. Maturity date of April 15, 2014. We also enter into a consent judgment in respect of Count I, only to be recorded in the event of a default in repayments. (Emphasis supplied.)
In respect of Note 2 — LNV and Daniel Blake Studle enter into a loan modification, consolidation of all current principal, charges and fees as of April 15, 2012 in the amount of $4,258.77, with interest accruing at the U.S. prime rate as published in the Wall Street Journal plus 2.75%, floor of 6%, adjusted quarterly, the term is a 2 year note based upon a sixty month amortization, with payments of $825.33 per month beginning 5/15/2012, payments adjusted quarterly. Maturity date of April 15, 2014. We also enter into a consent judgment in respect of Count II, only to be recorded in the event of a default in repayments.

(Emphasis supplied.) The April 20 e-mail from the Studies’ counsel to LNV unequivocally stated that “[m]y clients accept the offer as you proposed.”

(a) LNV argues that the April 17 e-mail shows that there was no mutual assent to a modification of the Notes without a down payment, because the e-mail conflicts with the parties’ prior communications, and that LNV’s conduct in delivering modified notes which included down payments confirms that there was no mutual understanding between the parties. We do not agree.

Where, as here, the terms of a written contract are clear and unambiguous, the trial court will look to the contract alone to find the intention of the parties, and parol evidence is without probative value to vary the terms of the written contract. See Paige v. Jurgensen, 204 Ga. App. 524, 525 (1) (419 SE2d 722) (1992). The April 17 e-mail clearly and unambiguously stated that the loan committee had approved the written terms for modification of the Notes and consolidation of all current principal, charges and fees due thereunder. To the extent LNV argues that the term “varies” in its April 17 e-mail raises an ambiguity in its counteroffer, there is no indication that this term refers to anything other than the clear and unambiguous payment and amortization schedule set forth therein. Thus, the parties’ prior settlement communications regarding a down payment, and LNV’s subsequent conduct in delivering modified notes which included down payments were inadmissible to vary or contradict the terms of LNV’s unambiguous settlement offer.

(b) LNV also argues that the trial court failed to view the evidence in the light most favorable to LNV as the nonmoving party. We discern no error.

Decided May 24, 2013.

McCullough, Payne & Haan, Christopher J. Reading, for appellant.

Wessels & Dixon, Jeremy S. Wessels, for appellees.

A party seeking to enforce a settlement agreement must show that there is no evidence in the record sufficient to create a jury issue on at least one element of the movant’s case. See Johnson, supra, 314 Ga. App. at 791. Here, the April 17 e-mail clearly and unambiguously set forth the terms of LNV’s settlement offer as approved by its loan committee, and the Studies unequivocally accepted the settlement offer in the April 20 e-mail from their counsel. Moreover, contrary to LNV’s contention, the settlement offer shows on its face that it was not contingent on the Studies making a down payment of the interest owed to date, because the settlement agreement specifically states that the loan committee approved “consolidation of all current principal, charges and fees” for both Notes. Finally, the compromise of the parties’ disputed claims provided valuable consideration for the settlement agreement. See Byers v. McGuire Properties, 285 Ga. 530, 535-536 (2) (679 SE2d 1) (2009). Accordingly, the trial court did not err in granting the Studies’ motion to enforce the settlement agreement.

Judgment affirmed.

Barnes, P. J., and Ray, J., concur.

       Although the April 17 e-mail constituted a counteroffer, the Studies’ acceptance of the counteroffer was sufficient to create a settlement agreement. See DeRossett Enterprises, Inc. v. GE Capital Corp., 275 Ga. App. 728, 729 (1) (621 SE2d 755) (2005).

       The decision in City of Albany v. Freeney, 313 Ga. App. 24, 28 (1) (720 SE2d 349) (2011) (holding that letters between attorneys do not require entry of summary judgment, and that factual issues remained with regard to the existence of a settlement between the parties), does not require a different result, because that case involved an oral settlement offer.


text:
    A13A0798.
    GRAVES v. THE STATE.
    (743 SE2d 582)
   Miller, Judge.

Following a jury trial, Rico Antwan Graves was convicted of aggravated assault (OCGA § 16-5-21 (a) (2)). Graves filed a motion for new trial, which the trial court denied. On appeal, Graves contends that the trial court improperly commented on the evidence, and that he received ineffective assistance of counsel. Discerning no error, we affirm.

Viewed in the light most favorable to the verdict, the trial evidence shows that Graves and the victim had been friends. In early 2009, Graves and the victim had a falling out, and the victim told Graves that he no longer wanted to hang out with him. Graves would call the victim thereafter, and the victim refused to answer Graves’s telephone calls. At one point, Graves went to the victim’s house, and the victim told Graves not to visit him without his permission. Graves continued to show up, uninvited, at the victim’s house, which caused verbal arguments between the two men that escalated over time. At one point, Graves told the victim to watch his back.

Shortly thereafter, in April 2009, the victim was watching television around 2:00 a.m. while his girlfriend was asleep in the same room. The victim heard a loud noise at the front door, as though it were being kicked in. The victim remained seated because he did not know what to make of the noise. When he heard the loud noise again, he walked toward the locked door. Before he reached the door, the door was forced open, and Graves was standing in the doorway. The victim asked Graves what he was doing, and Graves took off running without responding. Another individual, armed with a shotgun, then stepped out in front of the victim and shot him in the right shoulder. The victim had never seen the shooter before the incident and was unable to identify him. The shooter fled the scene, and the victim and his girlfriend called 911.

The responding officer observed a puddle of blood near the doorway and saw that the door to the victim’s residence had been kicked in. The officer secured the area, and during a search for evidence, a detective collected a 12-gauge Winchester shell casing that was located near the front door. Detectives subsequently interviewed the victim at the hospital and again after he was released. The victim recounted what happened to him and provided information to the detectives that led to Graves’s arrest. Detectives learned that Graves had purchased a 12-gauge shotgun in January 2009, and Graves claimed that the shotgun had been stolen. Police officers subsequently recovered Graves’s shotgun from a pawn shop. Forensic evidence established that the spent casing found at the crime scene was fired from Graves’s shotgun.

1. Graves contends that the trial court improperly commented on the evidence when it gave the jury a limiting instruction on what evidence the jury could consider from a detective’s testimony regarding his interview of Graves’s girlfriend. We discern no error.

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 ... to be error and the decision in the case reversed, and a new trial granted in the court below[.]

OCGA § 17-8-57. However, to constitute an improper comment under OCGA § 17-8-57, “the trial court’s statement must express an opinion about whether the evidence has proven a material issue in the case, whether a witness was credible, or whether the defendant was guilty.” (Citation and punctuation omitted.) Artis v. State, 299 Ga. App. 287, 290 (2) (682 SE2d 375) (2009).

At trial, one of the detectives testified that during his investigation of the crime, he spoke to Graves’s girlfriend. The detective stated that the girlfriend had indicated that Graves owned a shotgun and that the shotgun had been reported as having been stolen. Graves did not initially object to this testimony on hearsay grounds, but interposed such an objection when the State asked the detective whether the girlfriend had reported the gun as having been stolen from Graves’s residence. Thereafter, Graves elicited additional testimony about the girlfriend’s statement during cross-examination of the detective. On redirect, the State asked the detective whether he took a written statement from the girlfriend, and the detective responded in the affirmative. During re-cross, Graves asked the detective whether Graves’s girlfriend ever told the detective that one of Graves’s roommates used the shotgun to shoot the victim. The State objected on hearsay grounds, and the trial court sustained the objection. Following the detective’s testimony, the trial court informed the parties that it allowed the detective to testify about the girlfriend’s statement only to the extent that she had told officers the shotgun had been stolen, and it only allowed this testimony because it pertained to Graves’s defense. The trial court subsequently instructed the jury that the detective’s testimony with respect to the girlfriend’s statement was hearsay and was not to be considered with one exception — it could consider the detective’s testimony about obtaining a statement from the girlfriend about the shotgun allegedly being stolen.

To the extent Graves challenges the trial court’s admission of the hearsay statements from his girlfriend, he did not make a contemporaneous hearsay objection at the time the testimony was introduced. Consequently, he has waived the hearsay objection on appeal. See Watson v. State, 278 Ga. 763, 767 (2) (b) (604 SE2d 804) (2004); see also Wood v. State, 304 Ga. App. 52, 52-53 (2) (695 SE2d 391) (2010).

Graves argues that the trial court violated OCGA§ 17-8-57 when it instructed the jury that it may consider only a portion of the detective’s testimony regarding the girlfriend’s statement. Contrary to Graves’s argument, the trial court did not instruct the jury to conclude, as a matter of fact, that his girlfriend made a statement to police or that she informed police about the gun being stolen. Rather, the trial court instructed the jury that it could consider only a limited portion of the detective’s testimony regarding the girlfriend’s statement. The trial judge’s instructions did not express or intimate its opinion with regard to the defendant’s guilt or innocence or make a statement with respect to what had been proven. “Pertinent remarks made by a trial court in discussing the admissibility of evidence or explaining its rulings do not constitute prohibited expressions of opinion.” (Citations and punctuation omitted.) Boyd v. State, 286 Ga. 166, 168 (3) (686 SE2d 109) (2009); see also Bolden v. State, 281 Ga. App. 258, 260 (2) (636 SE2d 29) (2006) (remarks of a judge assigning a reason for a ruling do not constitute an expression of opinion or a comment on the evidence). Accordingly, the trial court’s instructions did not violate OCGA § 17-8-57, and this argument presents no basis for reversal.

2. Graves also contends that his trial counsel was ineffective for withdrawing a request to charge the jury on mere presence. We disagree.

To establish an ineffective assistance claim, an appellant must show not only that his counsel’s performance was deficient but also that the deficiency so prejudiced him as to create a reasonable probability that but for counsel’s errors, the outcome of the trial would have been different. Failure to satisfy both requirements is fatal to an ineffectiveness claim.

(Footnotes omitted.) Mitchell v. State, 250 Ga. App. 292, 295-296 (2) (551 SE2d 404) (2001). “[Cjounsel’s decision as to which requests to charge to pursue in light of the defense theory is a strategic one. As a general rule, matters of tactics and strategy, whether wise or unwise, [do] not amount to ineffective assistance of counsel.” (Citations and punctuation omitted.) Newton v. State, 303 Ga. App. 852, 854 (2) (a) (695 SE2d 79) (2010).

Prior to trial, trial counsel had submitted a written request to charge on the law of mere presence. Graves testified at his trial, and he denied being present at the scene of the offense. During the charge conference, trial counsel withdrew his request to charge on mere presence. At the motion for new trial hearing, trial counsel testified that he withdrew the request because the defense changed during Graves’s trial. Trial counsel explained that while Graves initially contended that he was not the shooter, the defense changed when Graves testified that he was not present at the scene of the offense. Under these circumstances, we cannot agree that trial counsel’s decision to withdraw the mere presence jury charge was unreasonable. See Williams v. State, 300 Ga. App. 839, 843 (2) (c) (686 SE2d 446) (2009). Moreover,

Decided May 24, 2013

Brian Steel, Max C. Richardson, Jr., for appellant.

Robert D. James, Jr., District Attorney, Daniel J. Quinn, Assistant District Attorney, for appellee.

the rule that mere presence at the scene of a crime is insufficient to convict is actually a corollary to the requirement that the State prove each element of the offense charged. Here, the trial court correctly instructed the jury on the duty of the State to prove each element of the crime beyond a reasonable doubt.

(Punctuation and footnote omitted.) Id.; see also Torres v. State, 298 Ga. App. 158, 158-159 (1) (679 SE2d 757) (2009) (no error in failing to charge jury on sole defense of “mere presence” where trial court instructed jury as to State’s burden to prove each element of the offense). Consequently, Graves has failed to establish that any deficiency prejudiced his defense.

Judgment affirmed.

Barnes, P. J., and Ray, J., concur.

       See Goss v. State, 305 Ga. App. 497 (699 SE2d 819) (2010).


text:
    A13A0158.
    RAMOTAR et al. v. THE KROGER COMPANY et al.
    (743 SE2d 591)
   Miller, Judge.

Rampersand and Rohinika Ramotar sued The Kroger Company to recover for personal injuries Mr. Ramotar allegedly sustained when he fell after slipping on a puddle of oil at a Kroger store in Loganville, Georgia. Kroger filed a motion for summary judgment, which the trial court granted. The Ramotars appeal, contending that the trial court erred in finding that there was no constructive notice of the oil on the store’s floor. Because we find that an issue of fact remains regarding Kroger’s constructive knowledge of the alleged hazard, we reverse.

On appeal from the grant or denial of a motion for summary judgment, we conduct a de novo review of the law and evidence, viewing the evidence in the light most favorable to the nonmovant, to determine whether a genuine issue of material fact exists and whether the moving party is entitled to judgment as a matter of law. A defendant may prevail on summary judgment 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 plaintiff’s case.

(Citations and punctuation omitted.) Belk Dept. Store v. Cato, 267 Ga. App. 793, 793-794 (600 SE2d 786) (2004).

So viewed, the evidence shows that Nigel Vereen was the unit manager of the Kroger store located on Athens Highway in Logan-ville, Georgia. On May 28, 2009, at approximately 8:30 a.m., Vereen inspected the tile floor in aisle five of the store to make sure the area was clean from debris and spills. That same day, from approximately 8:30 to 10:45 a.m., aKroger employee went back and forth to aisle five while she was stocking cooking oil and spices on shelves in that aisle. The employee did not see any oil on the floor of aisle five while she was stocking the shelves, and she did not see any leaking oils.

Mr. Ramotar went to the store on May 28 to buy some groceries. At approximately 11:30 a.m., Mr. Ramotar was pushing a shopping cart down aisle five toward the back of the store when he slipped on a two-foot puddle of oil located on the tile floor by the aisle’s oil section. Mr. Ramotar fell onto the floor, and the shopping cart fell on top of him, injuring his shoulder and left knee. After Mr. Ramotar fell, Vereen and two other employees assisted him onto a scooter chair, drove him to the front of the store and cleaned the oil off his shoes. Mr. Ramotar did not see the oil on the floor until after Vereen and the other employees picked him up.

At the time of Mr. Ramotar’s fall, Kroger had no set policy regarding regular inspections, and the store’s employees had no specific time periods during which they regularly inspected the store aisles or swept its floors. Although employees were told to always be on the lookout for spills when they were going down one of the store’s aisles, no evidence showed that any Kroger employee inspected or checked aisle five for at least 45 minutes prior to Mr. Ramotar’s fall.

The Ramotars contend that the trial court erred in finding that Kroger had no constructive notice of the puddle of oil on which Mr. Ramotar slipped and fell. We agree.

“[A]n owner/occupier of land owes persons invited to enter the premises a duty of ordinary care to have the premises in a reasonably safe condition and not to expose the invitees to unreasonable risk.” (Punctuation andfootnote omitted.) American Multi-Cinema v. Brown, 285 Ga. 442, 447 (3) (679 SE2d 25) (2009). To survive Kroger’s motion for summary judgment in their slip and fall action, the Ramotars had to come forward with evidence showing that Kroger had actual or constructive knowledge of the hazard, and that Mr. Ramotar lacked knowledge of the hazard or for some reason due to Kroger was prevented from discovering it. See Davis v. Bruno’s Supermarkets, 263 Ga. App. 147, 148 (1) (587 SE2d 279) (2003).

The Ramotars presented no evidence that Kroger had actual knowledge of the hazard that caused Mr. Ramotar’s fall. Instead, the Ramotars argue that Kroger had constructive notice of the oil spill. To establish constructive knowledge, the Ramotars had to show that “(1) a store employee was in the immediate area of the hazard and could have easily seen the substance or (2) the foreign substance remained long enough that ordinary diligence by the store employees should have discovered it.” (Citation and punctuation omitted.) Food Lion v. Walker, 290 Ga. App. 574, 576 (1) (660 SE2d 426) (2008).

Constructive knowledge may be inferred when there is evidence that the owner lacked a reasonable inspection procedure. In order to prevail at summary judgment based on lack of constructive knowledge, the owner must demonstrate not only that it had a reasonable inspection program in place, but that such program was actually carried out at the time of the incident. In addition, to withstand a motion for summary judgment, the plaintiff need not show how long the hazard had been present unless the owner has demonstrated its inspection procedures.

(Citation and punctuation omitted.) Id. Whether an inspection procedure is reasonable as a matter of law depends on the nature of the business, the size of the store and the number of customers. See Shepard v. Winn Dixie Stores, 241 Ga. App. 746, 748 (1) (527 SE2d 36) (1999); Food Lion, supra, 290 Ga. App. at 576 (1). Because conditions in supermarkets cause slip and falls to occur with some frequency, we have held that supermarket owners have a duty to inspect with greater frequency. See Food Lion, supra, 290 Ga. App. at 576 (1). Moreover,

summary adjudication as to constructive knowledge arising from the duty to inspect is not authorized absent plain, palpable and undisputable proof that customary inspection procedures or cleaning practices were in place, were actually followed and were adequate to guard against known or foreseeable dangers at the time of the patron’s alleged injuries. The evidence in the case sub judice does not satisfy these criteria.

Decided May 29, 2013.

Mark L. Stuckey, for appellants.

Taylor, English & Duma, Stephanie F. Capezzuto, Douglas A. Wilde, for appellees.

(Citations and punctuation omitted.) Burnett v. Ingles Markets, 236 Ga. App. 865, 867 (514 SE2d 65) (1999).

Here, when viewed in the light most favorable to the Ramotars, the evidence showed that the store’s seafood counter was open at the time of Mr. Ramotar’s fall, and employees working at the seafood counter had an unobstructed view of aisle five where Mr. Ramotar fell. Accordingly, the evidence raised a factual question regarding whether store employees were in the immediate area of the oil puddle and could have easily seen it.

Moreover, a factual question remains regarding whether the oil remained on the floor long enough that Kroger employees should have discovered and removed it during a reasonable inspection. Notably, the evidence showed that Kroger had no set policy regarding regular inspections, and the store’s employees had no specific time periods during which they regularly inspected the store aisles or swept its floors. Additionally, no evidence showed that any Kroger employee inspected or checked aisle five for at least 45 minutes prior to Mr. Ramotar’s fall. In the absence of reasonable inspection procedures, we cannot conclude as a matter of law that Kroger lacked constructive notice of the alleged hazard. See Davis, supra, 263 Ga. App. at 150 (1). Accordingly, the trial court erred in granting summary judgment to Kroger.

Judgment reversed.

Barnes, P. J., concurs. Ray, J., concurs in judgment only.

       The Ramotars also sued Kroger store manager Nigel Vereen. The trial court granted summary judgment to Vereen, and the Ramotars do not challenge this ruling.


text:
    A13A0204.
    FORD v. THE STATE.
    (743 SE2d 594)
   Miller, Judge.

Following a jury trial, David Ford was convicted of three counts of child molestation (OCGA § 16-6-4 (a) (1)). Ford appeals from the denial of his motion for new trial, contending that (1) OCGA § 16-6-4 is unconstitutionally vague; (2) the trial court erred in allowing a victim/witness advocate to accompany the victim to the witness stand and to sit in front of the jury at the victim’s feet while she testified; and (3) the trial court erred in allowing the jury to hear perjured or misleading testimony. For the reasons that follow, we affirm.

Viewed in the light most favorable to the jury’s verdict, the evidence shows that the first victim, who was 11 years old at the time of trial, was Ford’s niece. When the first victim was eight years old, she went over to Ford’s house in Decatur County, Georgia to get some medicine for an earache. While she was there, Ford put a blanket over her, put his hand in her shorts and scratched her private part for a few minutes.

The second victim was Ford’s stepdaughter, who sometimes slept with her mother and Ford. One night, when the second victim was eleven or twelve years old, she woke up on Ford’s side of the bed. Ford had his arm around the second victim, and his erect penis was pressed up hard against her rear end. Ford was “moaning and groaning,” and telling the second victim to “touch me here, touch me there.”

On other occasions, the second victim woke up in the middle of the night or in the morning, Ford pulled the covers back and he rubbed her back or stomach. Ford also touched the second victim’s breast and waistband with his hand. When the victim was fifteen or sixteen, Ford came into her room one night and put a vibrator on her nightstand. Ford told the second victim that “this would help.”

The third victim was a friend of Ford’s stepdaughter. When the third victim was 13 years old, she went over to Ford’s house for a girls’ sleepover. That night, the third victim got sick, so she slept in the bed in Ford’s stepdaughter’s room, while the other girls slept in the living room. The next morning, when the third victim woke up, Ford was sitting on the side of the bed in his briefs and he was rubbing the third victim’s side up and down from the top of her back down to her legs. Ford told the third victim “good morning, Beautiful” or “good morning, Princess.” The third victim then ran into the living room and told Ford’s stepdaughter and another girl what happened.

1. Ford contends that OCGA § 16-6-4 (a) (1) is unconstitutionally vague and violates due process. We disagree.

OCGA § 16-6-4 (a) (1) pertinently provides: “A person commits the offense of child molestation when such person . . . [d]oes any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person[.]” Although the Supreme Court of Georgia generally addresses constitutional questions, it is not necessary to transfer Ford’s appeal because the law is well settled, and this issue has already been resolved adversely to Ford. See McCord v. State, 248 Ga. 765, 766 (285 SE2d 724) (1982); Veasey v. State, 234 Ga. App. 795, 796 (3) (507 SE2d 799) (1998). The child molestation statute is definite and certain in its meaning, and does not violate due process. See McCord, supra, 248 Ga. at 766. Accordingly, the trial court properly denied Ford’s motion for a new trial on this ground.

2. Ford contends that the trial court erred in allowing a victim’s advocate to accompany the first victim to the witness stand and sit by her in front of the jury while she testified. We discern no error.

When the first victim took the stand to testify at Ford’s trial, the trial court cleared the courtroom of all spectators, pursuant to OCGA § 17-8-54, with the exception of a victim advocate who accompanied the first victim to the witness stand and sat on the floor next to the first victim while she testified. The trial court carefully observed the advocate’s presence and demeanor during the first victim’s testimony and saw no inappropriate or prejudicial conduct or behavior.

The trial court has broad discretion in controlling the trial of a case and has a great deal of latitude in the examination of young witnesses. See Gonzalez v. State, 310 Ga. App. 348, 351 (3) (714 SE2d 13) (2011). Moreover, this Court has held that a trial court does not abuse its discretion in allowing a victim-witness advocate to sit with the victim during testimony. See id.

Ford argues that the victim advocate was not within the group of people authorized to remain in the courtroom under OCGA § 17-8-54, which pertinently provides:

In the trial of any criminal case, when any person under the age of 16 is testifying concerning any sex offense, the court shall clear the courtroom of all persons except parties to the cause and their immediate families or guardians, attorneys and their secretaries, officers of the court, jurors, newspaper reporters or broadcasters, and court reporters.

Contrary to Ford’s contention, OCGA § 17-8-54 protects the interest of the child witness, not the defendant, and a trial court’s failure to follow the statute does not violate a defendant’s rights. See Driggers v. State, 295 Ga. App. 711, 716 (3) (673 SE2d 95) (2009). Moreover, no evidence in the record shows that the victim advocate improperly influenced the first victim’s testimony. See id. at 716-717 (3). Consequently, Ford has not shown that the trial court abused its discretion in allowing the advocate to sit with the first victim during her testimony.

Decided May 29, 2013

Gilbert J. Murrah, for appellant.

Joseph K. Mulholland, District Attorney, for appellee.

3. Ford contends that the trial court erred in allowing a rebuttal witness to give perjured or misleading testimony. We disagree.

Ford’s wife, who is the second victim’s mother and the first victim’s aunt, testified at his trial. On cross-examination, Ford’s wife testified on cross-examination that she left her bookkeeping job after 14 years because she was “finally in a financial position ... to stay at home.” Ford also took the stand at his trial and testified that his wife quit work because they were financially stable.

After the defense rested, the president of the company where Ford’s wife worked testified as a rebuttal witness for the State. The company president testified that he spoke to Ford’s wife in April 2011 about bookkeeping inconsistencies. The company president further testified that Ford’s wife could not explain the inconsistencies, and that she resigned later that day. The company president concluded his testimony by stating that “it was one of those situations where you’re either going to resign or we’re going to let you go. That’s the scenario.” Subsequently, at Ford’s motion for new trial hearing, the company president testified that he never told Ford’s wife that she had a choice of either being fired or resigning.

Although Ford argues that the company president’s trial testimony was perjured, he asserted no perjury objection at trial, consequently this claim has not been preserved for appellate review. See Brown v. State, 291 Ga. 750, 753 (3) (733 SE2d 300) (2012). Moreover, the trial court heard testimony from the company president both at trial and at the motion for new trial hearing, and this Court will not second guess thestrial court’s determination that Ford presented no credible evidence of any misleading testimony. See Varnadoe v. State, 227 Ga. App. 663, 666 (4) (490 SE2d 517) (1997).

Judgment affirmed.

Barnes, P. J., and Ray, J., concur.

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

       Without citation to any authority, Ford also argues that allowing the advocate to sit with the first victim violated his rights to effective assistance of counsel, confrontation, due process, and a fair trial. Ford waived these grounds as they were neither raised nor ruled upon in the trial court. See Rogers v. State, 290 Ga. 401, 411 (5) (721 SE2d 864) (2012).


author: BARNES, Presiding Judge.

text:
    A13A0243.
    McCLARY v. THE STATE.
    (743 SE2d 624)
   BARNES, Presiding Judge.

Corey M. McClary appeals from the trial court’s denial of his motion for new trial, contending that the evidence was insufficient to support his convictions of felony obstruction of an officer, attempted removal of a firearm from an officer, and misdemeanor obstruction of an officer. For the reasons that follow, we affirm.

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

(Citations and punctuation omitted.) Brown v. State, 318 Ga. App. 334, 334-335 (733 SE2d 863) (2012). See Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

So viewed, the evidence shows that McClary was walking along a street near Valdosta State University at approximately 4:00 a.m. Because there had been a string of car break-ins at a nearby campus parking lot, a uniformed state university police officer stopped his marked cruiser and approached McClary on foot to inquire as to what he was doing in that particular area by himself at that time of night. Based upon his conversation with McClary, the officer became concerned that McClary might have been involved in a domestic violence incident. The officer then radioed the police dispatcher and requested information as to whether there had been any recent domestic violence reports for the street where McClary lived.

As soon as the officer radioed the dispatcher, McClary fled into the woods. The officer gave chase. He repeatedly ordered McClary to stop, but McClary did not heed the orders. The officer eventually caught up with McClary and tackled him from behind. Both of them “went to the ground.” At that point, McClary began struggling with the officer, grabbing and squeezing the officer in his private area with one hand and attempting to grab his handgun out of the holster with the other hand. During the struggle, the officer struck McClary several times with his flashlight in an effort to get McClary to let go of him and the handgun. Backup officers then arrived and were able to subdue McClary and handcuff him.

Decided May 29, 2013.

Wade N. Krueger, for appellant.

McClary was arrested and indicted on charges of felony obstruction of an officer, attempted removal of a firearm from an officer, and misdemeanor obstruction of an officer. At the ensuing jury trial, the officer who had chased and struggled with McClary testified to the events as set out above. The State also introduced a video recording from the camera inside the officer’s patrol car that recorded some of the encounter between McClary and the officer. Additionally, one of the backup officers also testified that he saw McClary struggling with the other officer and trying to take the officer’s handgun out of the holster before McClary was subdued and handcuffed.

McClary also chose to testify at trial. He admitted fleeing from the officer but contended that he never grabbed the officer in his private area and never tried to get the officer’s handgun. According to McClary, the officer tackled him in the woods and began beating him with the flashlight without any provocation on his part.

After hearing the conflicting testimony, the jury found McClary guilty of the charged offenses. McClary filed a motion for new trial, which the trial court denied, resulting in this appeal.

We conclude that the evidence presented at trial was sufficient for a rational jury to find McClary guilty beyond a reasonable doubt of the offenses for which he was convicted. See Jackson, 443 U. S. at 319 (III) (B). The testimony of the officers, standing alone, was sufficient to sustain the convictions. See Sutton v. State, 261 Ga. App. 860, 862 (1) (583 SE2d 897) (2003). While McClary challenges the credibility of the officers, “the credibility of the witnesses and the weight to be given the evidence are the sole province of the jury, and it is not for appellant or this Court to decree which witness is credible and whose testimony is consistent, self-serving or less weighty.” (Citation, punctuation and footnote omitted.) Id. We therefore affirm McClary’s convictions and the trial court’s denial of his motion for new trial.

Judgment affirmed.

Miller and Ray, JJ., concur.

J. David Miller, District Attorney, Jessica W. Clark, Assistant District Attorney, for appellee.

       After the trial court denied McClary’s motion to suppress, we granted his application for interlocutory appeal from that order. In McClary v. State, 292 Ga. App. 184 (663 SE2d 809) (2008), we affirmed the trial court’s denial of the motion to suppress.


author: Boggs, Judge.

text:
    A13A0292.
    HEARD v. THE STATE.
    (743 SE2d 597)
   Boggs, Judge.

A jury found Donald Heard guilty of child molestation, aggravated child molestation, and incest on the person of his natural daughter. His amended motion for new trial was denied, and he appeals, asserting insufficiency of the evidence and improper bolstering and testimony as to the ultimate issue. Finding no error in any respect, we affirm.

1. Construed in favor of the verdict, the evidence shows that the victim testified that her father had vaginal intercourse with her on a regular basis, three or four times a week, as well as anal intercourse and oral sex less frequently. This began in November 2007, when she was 11 years old, and it continued until after she made outcry to her mother in March 2009. The victim testified that the abuse began after she called the police because her parents were fighting and her mother was arrested, and her father told her she had to have sex with him to “make it up, for making my mom go to jail.” The victim also described the sexual abuse during a video-recorded forensic interview by a police investigator; that recording was played for the jury. This investigator also attempted to confirm independently the details of the victim’s testimony, and she was able to verify information such as the date of the mother’s arrest and descriptions of locations where the victim stated that sexual abuse took place. The victim’s younger sister also testified that the father would take the victim into their parents’ bedroom after her mother left for work and they would stay “for a long time.”

The victim’s testimony alone is sufficient to sustain a conviction for child molestation, Reid v. State, 319 Ga. App. 782, 783-784 (1) (738 SE2d 624) (2013), and incest. Stott v. State, 304 Ga. App. 560, 561 (1) (697 SE2d257) (2010). While Heard points to inconsistencies between the victim’s testimony, her forensic interview, and testimony she gave in Heard’s probation revocation hearing in 2009, we do not judge witness credibility or weigh testimony; that is the province of the jury. Id. The jury was authorized to find Heard guilty beyond a reasonable doubt under the standard set out in Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

2. Heard next complains that testimony by the victim’s mother and a police investigator improperly bolstered the victim’s testimony and went to the ultimate issue in the case. The State was questioning the mother regarding her initial failure to report her daughter’s outcry to the police, and the mother testified, “I just, in the back of my mind, I didn’t want to believe it. I couldn’t believe it because of the relationship they had.” Asked why she ultimately did call the police, the mother testified to her observations and then added, “also this [was] how I knew that she was telling the truth because she said that they were — .” At this point, Heard objected on the basis of speculation and ultimate issue, but raised no objection on the basis of bolstering. The objection was overruled, but the witness did not return to that line of testimony.

During the police investigator’s testimony, she was asked a question regarding her interview techniques and why she represented to Heard that the victim had undergone a medical examination, although no such examination had taken place. The investigator responded that she used this technique “whenever we work these types of cases and it is such a close family member that is the one that is perpetrating the abuse,” in order to encourage admissions, and “oftentimes when we interview child molesters, we allow them an out so that they can be honest about what they’ve done without having to feel so bad about what they’ve done.” Heard did not object to this testimony on any ground, but now contends that the investigator’s general references to “child molesters” during a description of her interview technique constituted bolstering and went to the ultimate issue in the case.

Citing Putnam v. State, 231 Ga. App. 190 (498 SE2d 340) (1998) (physical precedent only), Heard argues that these alleged errors may be considered under a “plain error” analysis. This is incorrect.

In appeals of criminal cases, plain error review is currently limited to alleged error in three circumstances: the sentencing phase of a trial resulting in the death penalty, a trial judge’s expression of opinion..., and a jury charge affecting substantial rights of the parties....The new Evidence Code will change this rule in cases tried after January 1, 2013, allowing a court to consider plain errors affecting substantial rights although such errors were not brought to the attention of the court.

Decided May 29, 2013.

Teresa L. Smith, for appellant.

Layla H. Zon, District Attorney, Kimberly M. Minicozzi, Assistant District Attorney, for appellee.

(Citations and punctuation omitted.) Durham v. State, 292 Ga. 239, 240 (2) (734 SE2d 377) (2012). Heard was tried in 2011; therefore, “plain error review does not currently apply to allegations regarding the improper admission of evidence,” id., and Heard having failed to object to the detective’s testimony at all or to the mother’s testimony on the basis of bolstering, those claims of error are not properly before this court. Jackson v. State, 292 Ga. 685, 690 (5) (740 SE2d 609) (2013) (bolstering claim not properly before the court due to failure to object and not subject to plain error review).

With respect to Heard’s remaining claim that the mother’s testimony went to the ultimate issue in the case, we note that the victim’s mother is not an expert witness, but “a presumptively-biased parent. Her testimony merely showed that she believed her child, and it did not impermissibly intrude upon the jury’s fact-finding function.” Thomas v. State, 318 Ga. App. 849, 854 (4) (a) (734 SE2d 823) (2012).

Judgment affirmed.

Doyle, P. J., and McFadden, J., concur.

       In Putnam, a social worker testified repeatedly to “her unsupported opinion and the opinion of DFACS that the alleged victim was in fact abused and that Putnam was the ‘perpetrator.’ ” Id. at 192. In addition, she read to the jury her own letters on official DFACS stationery that the abuse “‘was confirmed’” and “‘did happen’,” that Putnam was the “ ‘perpetrator’,” and that he had been placed on an official sex offender list. Id. at 193. Finally, those letters went out with the jury. Id. at 190. But the conclusion that this constituted plain error despite failure to object was not concurred in by all judges, and the opinion therefore has no precedential value. Court of Appeals Rule 33 (a). Moreover, as discussed below, our Supreme Court has expressly held that plain error review did not apply to the improper admission of evidence before the revision of the Evidence Code as of January 1, 2013.


text:
    A13A0296.
    KENNEDY DEVELOPMENT COMPANY, INC. v. NEWTON’S CREST HOMEOWNERS’ ASSOCIATION.
    (743 SE2d 600)
   Boggs, Judge.

This litigation appears before us for the second time after an intervening journey to the Supreme Court of Georgia. And for the second time, we find that summary judgment was appropriate on the third-party complaint of Kennedy Development (“Kennedy”) against Newton’s Crest Homeowners’ Association (“the NCHA”), and we therefore affirm the judgment of the trial court.

The underlying facts are laid out in detail in Newton’s Crest Homeowners’ Assn. v. Camp, 306 Ga. App. 207 (702 SE2d 41) (2010). To summarize, downstream landowners brought the main action against Kennedy Development (“Kennedy’) and others because of stormwater runoff onto their property from the Newton’s Crest subdivision, which was developed by Kennedy. Id. at 209-210. Over a year after suit was filed, and while the litigation was pending, Kennedy by written agreement conveyed all its interest in the subdivision to the NCHA. No evidence was presented that Kennedy notified the NCHA of the pending litigation. See id. at 214-215 (2). The “Assignment and Assumption Agreement” contained an indemnification clause for all claims arising from Kennedy’s development of the property, including those that arose prior to the date of the agreement. Id. at 214-215 (2), n. 5.

Over eight months later, Kennedy brought a third-party complaint against other upstream developers (Oak Ridge Homes, LLC and D. G. Jenkins Development Corporation), the entity that sold Kennedy the property (Tycor, Inc.), and the NCHA. In that complaint, Kennedy’s allegations against the NCHA in their entirety (other than its jurisdictional allegations) were as follows:

11.
Newton’s Crest owns the detention pond at issue in Plaintiffs’ Complaint. Pursuant to the Assignment and Assumption Agreement between Newton’s Crest, and Kennedy, dated April 23, 2007, Newton’s Crest is responsible for the maintenance and repair of the pond. See Exhibit “B.” Moreover, in that agreement, Newton’s Crest agreed to defend andindemnify Kennedy for any claims, actions or damages related to the construction, maintenance, repair or operation of Newton’s Crest Subdivision in the Detention Facility Agreement.
12.
Liability is expressly denied by Kennedy; however, if any finding of liability is made against Kennedy, then Newton’s Crest is liable to Kennedy and Kennedy is entitled to indemnity or contribution from Newton’s Crest for its share of any sum which may be adjudged due and owing from Kennedy to Plaintiffs.

The NCHA moved for summary judgment on Kennedy’s third-party claim, and Kennedy moved for summary judgment on the landowners’ claims against it. The trial court denied summary judgment both to Kennedy and to the NCHA, and both appealed.

We affirmed the denial of summary judgment on the main claim, 306 Ga. App. at 212-213 (1), but we reversed the trial court’s denial of summary judgment to the NCHA on Kennedy’s third-party claim, holding that the indemnity provision was void and unenforceable under OCGA § 13-8-2 (b) and that the trial court “erred in denying the NCHA’s motion for summary judgment on Kennedy’s third-party complaint.” Id. at 217 (2) (b). The Supreme Court of Georgia granted certiorari on the limited issue of the application of OCGA § 13-8-2 (b) and affirmed, holding that the Code section applied “to invalidate an indemnification clause within an assignment and assumption agreement transferring responsibility for the management and operation of a newly developed subdivision to its homeowners’ association.” Kennedy Dev. Co. v. Camp, 290 Ga. 257 (719 SE2d 442) (2011).

After the Supreme Court issued its opinion, the remittitur issued, and judgment on the remittitur was entered in favor of the NCHA. Kennedy then filed an amended third-party complaint in the trial court, alleging that the NCHA was liable to it under the theory of “common law indemnity and/or contribution.” The NCHA filed a second motion for summary judgment, asserting that Kennedy’s amended complaint was barred under the theory of res judicata. The trial court agreed that res judicata barred the claim and granted summary judgment. This appeal followed.

OCGA § 9-12-40 provides:

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.
The 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. 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. 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.

(Citations, punctuation and footnotes omitted; emphasis supplied.) Waldroup v. Greene County Hosp. Auth., 265 Ga. 864, 865-866 (1) (463 SE2d 5) (1995).

There is no dispute as to the identity of the parties: in both cases Kennedy is the third-party plaintiff and the NCHA is a third-party defendant. With respect to identity of the cause of action, Kennedy’s amended third-party complaint did not change the factual basis of its claim for contribution or indemnity. The new factual allegations against the NCHA repeat almost verbatim those of the original pleading, other than omitting any reference to the void indemnity agreement. And Kennedy’s amended allegation of liability merely inserted the words “common law” into a slightly reworded but identical claim for indemnity or contribution.

A cause of action has been deemed to be “the entire set of facts which give rise to an enforceable claim.” To determine what constitutes each cause of action in the present situation the subject matter and the issues raised by the pleadings in the two cases must be examined.

(Citations omitted.) Crowe v. Elder, 290 Ga. 686, 688 (723 SE2d 428) (2012). In Crowe, the plaintiff’s first suit in probate court attempted to set aside an award of a year’s support, alleging fraud on the part of the widow. Id. at 688. On appeal to superior court, summary judgment was granted and affirmed by this court. Id. at 687, n. 1. The plaintiff then filed a new action for breach of contract based on the same facts, the superior court granted summary judgment on the basis of res judicata, this court affirmed, and the Supreme Court likewise affirmed, observing that the facts pled in the original action were “identical” to those alleged in the second action, and that “[t]he recasting of the same alleged conduct... as breach of contract instead of fraud does not constitute a new or different cause of action.” Id. at 687-689.

In its sole enumeration of error, Kennedy argues that there was no “prior adjudication on the merits” as to its common law indemnity claim, contending that summary judgment was granted only as to its claims under the written indemnity agreement, not as to claims under “common law indemnity,” which it contends were contemplated though not expressly asserted in the original pleadings. This contention is without merit.

The NCHA did not move for partial summary judgment, but for “summary judgment against third-party plaintiff’s complaint.” It asserted that there were no genuine issues of material fact and that it was entitled to judgment as a matter of law “against all of third-party plaintiff Kennedy Development’s claims against it.” In Kennedy’s “Response in Opposition to Third-party Defendant Newton’s Crest Homeowners Association’s Motion for Summary Judgment,” it did not challenge the NCHA’s prayer for judgment on all claims against it, characterize the motion as one for partial summary judgment, or raise any contention that the motion addressed fewer than all its claims against the NCHA. It appears that Kennedy’s first mention of any common law indemnity claim was made in its appellee’s brief in the previous appeal. But in the opinion on that appeal, this court observed:

In its third-party complaint, Kennedy does not allege (nor did it present any evidence in the trial court to show) that NCHA did anything to cause or contribute to the Camps’ damages; instead, Kennedy’s contentions regarding NCHA’s potential liability to the Camps are based solely on the Assignment and Assumption Agreement between the parties.

Newton’s Crest, supra, 306 Ga. App. at 213 (1), n. 4.

[I]n responding to a motion for summary judgment, plaintiffs have a statutory duty to produce whatever viable theory of recovery they might have or run the risk of an adj udication on the merits of their case. Thus, although plaintiffs enjoy considerable leeway in amending the complaint before the entry of a pre-trial order, see OCGA § 9-11-15 (a), plaintiffs who have lost on appeal from a summary judgment ruling are not allowed to return to the trial court and amend the complaint to try a new theory of recovery. As this Court nicely put the point a long time ago, no party, plaintiff or defendant, is permitted to stand his case before the court on some of its legs, and if it falls, set it up again on the rest in a subsequent proceeding, and thus evade the bar of the former judgment. Restyling the complaint in terms of a theory of recovery ascertainable in the original case will not revive a cause of action that was defeated on appeal from a summary judgment ruling.

Decided May 29, 2013.

Hicks, Casey & Foster, Lisa W. Banks, for appellant.

Downey & Cleveland, Joshua S. Ruplin, for appellee.

(Citations and punctuation omitted; emphasis supplied.) Smith v. Lockridge, 288 Ga. 180, 186 (4) (702 SE2d 858) (2010) (summary judgment on original complaint seeking to set aside deed on ground of mental incompetence res judicata as to amended complaint seeking to set aside deed on grounds of undue influence, cloud on title, and mistake of fact). Here, Kennedy’s purported new theory of recovery was both ascertainable in its original third-party complaint and ruled on in the grant of summary judgment, and it is therefore barred by res judicata.

Judgment affirmed.

Doyle, P. J., and McFadden, J., concur.

       The trial court did not reach the NCHA’s alternate contention that common law indemnity does not apply here, and we likewise do not decide that issue.

       Kennedy’s argument that this court or the Supreme Court could limit the scope of summary judgment after the fact is without merit. Kennedy contends that the Supreme Court’s amendment of its opinion on motion for reconsideration to add the phrase “to the extent that Kennedy’s third-party claims against the NCHA are premised on this invalid provision,” 290 Ga. at 261, establishes that its common-law indemnity claims were not ruled on by the trial court. But the Supreme Court’s limitation of its ruling to the terms of the indemnity agreement is entirely consistent with the issue articulated in its grant of certiorari: “Did the Court of Appeals err by holding that OCGA § 13-8-2 (b) applies to the contract between Kennedy Development Company, Inc. and the Newton’s Crest Homeowner’s Association, Inc.?” It did not speak to the scope of any other issues raised in the trial court or this court.


text:
    A13A0331.
    MAYS v. TARGET CORPORATION.
    (743 SE2d 603)
   Boggs, Judge.

Brittany Mays appeals from the trial court’s order dismissing her claims against Target Corporation (“Target”) based upon the expiration of the two-year statute of limitation applicable to personal injury claims, OCGA § 9-3-33. In related enumerations of error, Mays contends the trial court erred by failing to toll the statute of limitation pursuant to OCGA § 9-3-99. We disagree and therefore affirm.

In her complaint against Target and its employee, Lonie Wacaster, Mays alleged that on December 15, 2008, Wacaster captured her image with a cellular phone while she was changing in the unisex dressing room provided by Target. She asserted that Wacaster was indicted for invasion of privacy on March 8, 2010, and that he pled guilty to this offense on September 14,2010. Mays filed her complaint on July 11, 2011, and asserted that pursuant to OCGA § 9-3-99, the statute of limitation for her claims was tolled from the date of the crime through the final disposition of the criminal charges against Wacaster.

Based upon Wacaster’s status as a convicted sex offender on the day of the incident, Mays asserted causes of action against Target for intentional infliction of emotional distress, as well as negligent hiring, supervision, training and retention. She asserted claims for invasion of privacy and intentional infliction of emotional distress against Wacaster. Mays’ complaint contains no allegations that Target should be held responsible for Wacaster’s conduct based upon theories of respondeat superior or vicarious liability.

Target moved to dismiss Mays’ complaint based upon its contention that the tolling provision of OCGA § 9-3-99 does not apply to Mays’ claims against it because no criminal charges were filed against Target. Relying upon this court’s decisions in Valades v. Uslu, 301 Ga. App. 885 (689 SE2d 338) (2009), and Columbia County v. Branton, 304 Ga. App. 149 (695 SE2d 674) (2010), the trial court granted Target’s motion to dismiss. In its written order, however, it

recognize [d] that a persuasive argument could be made that the rule announced in Branton is inapplicable to Ms. Mays’s claims against Target.... It is difficult to conceive how Ms. Mays’s tort claims against Target do not “arise out of the facts and circumstances relating to the commission of such alleged crime” as required by OCGA § 9-3-99. Given, however, the broad language in Branton declining to apply the tolling provisions to claims against those who “were not criminal defendants in a prior prosecution,” this Court is constrained to find that [OCGA] § 9-3-99 does not toll Ms. Mays’s tort claims against Target.

On appeal, Mays urges this court to distinguish our previous decisions in Valades and Branton. She contends that applying these decisions to the facts now before us would be “contrary to the plain, unambiguous language of the statute” and “undermine judicial economy as it would cause there to be separate lawsuits at separate times regarding the same issues.”

The legislature enacted OCGA § 9-3-99 as part of the “Crime Victims Restitution Act of 2005.” Ga. L. 2005, pp. 88-89, §§ 1, 2. It provides:

The running of the period of limitations with respect to any cause of action in tort that may be brought by the victim of an alleged crime which arises out of the facts and circumstances relating to the commission of such alleged crime committed in this state shall be tolled from the date of the commission of the alleged crime or the act giving rise to such action in tort until the prosecution of such crime or act has become final or otherwise terminated, provided that such time does not exceed six years.

While this Code section does not specify the party or parties against whom a victim may assert the statute of limitation has been tolled, this court has previously determined that it “tolls the statute of limitation for any cause of action in tort brought by the victim of an alleged crime while the prosecution of the defendant is pending, for a period not to exceed six years.” (Emphasis in original.) Valades, supra, 301 Ga. App. at 887-889 (1). See also Branton, supra, 304 Ga. App. at 152 (1). And in Branton, we rejected an argument that the statute of limitation should be tolled under OCGA § 9-3-99 in an action against a joint tortfeasor who was not a criminal co-defendant. 304 Ga. App. at 152-153 (1).

The preamble to the Crime Victims Restitution Act states that one of its purposes was “to amend Article 5 of Chapter 3 of Title 9 of the Official Code of Georgia Annotated, relating to tolling of limitations in civil cases, so as to provide for a statute of repose in certain tort actions brought by victims of crimes against the person accused of such crimes.” (Emphasis supplied.) Ga. L. 2005, pp. 88-89, § 1. And, “[although a preamble is not a part of the act and therefore cannot control over its plain meaning, it maybe considered as evidence of the meaning of an ambiguous, codified law.” Spalding County Bd. of Elections v. McCord, 287 Ga. 835, 837 (1) (B) (700 SE2d 558) (2010). As OCGA § 9-3-99 is ambiguous as to whether it tolls the limitation period for a crime victim’s cause of action against the person accused of the crime only, we find the preamble persuasive evidence of the legislature’s intent.

In this case, Target was not accused of any crime of which Mays was a victim. The trial court therefore properly concluded that the tolling provision of OCGA § 9-3-99 does not apply and that Mays’ causes of action against Target are barred by the two-year statute of limitation for personal injuries. OCGA § 9-3-33.

Judgment affirmed.

Doyle, P. J., and McFadden, J., concur.

Decided May 29, 2013

Jeffrey D. Reeder, Kathryn C. Reeder, for appellant.

Magill, Atkinson & Dermer, Stephen F. Dermer, Seth M. Diamond, for appellee.

       Mays perfected service against Target on August 12, 2011.

       Statements about the plain language of OCGA § 9-3-99 in Valades, supra, are nonbinding dicta.