author: Dillard, Judge.

text:
    A16A0755.
    EDWARDS v. CAMPBELL.
    (792 SE2d 142)
   Dillard, Judge.

Seth Edwards appeals the trial court’s grant of summary judgment to David Campbell in his negligence action, contending that Campbell provided negligent tire-installation training to Joel Lan-ham and employees of Campbell Tire Company (“CTC”) when Campbell sold CTC to Lanham’s company, Lanham Enterprises, LLC. Specifically, Edwards alleged that, based on this negligent training, CTC installed two new tires on his grandmother’s car in such a way that rendered it dangerous and unstable, which, in turn, resulted in a car accident that seriously and permanently injured him. On appeal, Edwards argues that the trial court erred in granting summary judgment to Campbell on the basis that the negligent training was not the proximate cause of his injuries because (1) Edwards was not given full and fair notice and an opportunity to respond to the issue of proximate cause, and (2) alternatively, that the court erred in finding that, as a matter of law, Edwards could not establish the proximate-cause element of his negligence claim. For the reasons set forth below, we affirm.

Viewing the evidence in a light most favorable to Edwards, the nonmoving party, the record shows that Campbell and his wife owned CTC for over 20 years, during which time they operated the business under the trade name “Campbell Tire Company.” But on April 1, 2009, Campbell, in his capacity as president and a shareholder of CTC, executed an asset-purchase agreement, selling the business and all of its assets to Lanham Enterprises, LLC. As part of the sales contract, Campbell, in his personal capacity as a shareholder of CTC, agreed to provide 60 days of training to Lanham, who had no prior experience in the tire business. And while the other CTC employees “had been there for a long time,” Lanham’s understanding was that everyone working there had been “primarily trained by . . . Campbell.” As to tire installation specifically, Campbell instructed Lanham that “two new tires should be placed on the front axle if only two tires are purchased for a four-tire vehicle.” Lanham believed that this procedure was “pretty normal in the industry.”

On April 14, 2011, Edwards’s grandmother, who is not a party to this action, purchased two new tires from CTC and had them installed on her vehicle. According to Edwards, shortly thereafter, on May 3, 2011, he was driving his grandmother’s car when he lost control of the vehicle and was injured in the resulting collision. Nearly two years later, in April 2013, Edwards filed a complaint against Campbell, alleging, in relevant part, that Campbell’s failure to ensure that the service provided by CTC employees was consistent with accepted automotive and engineering principles and his failure to properly train Lanham and CTC employees on tire installation, in breach of his contract with Lanham Enterprises, rendered Edwards’s vehicle “unreasonably dangerous and defective.” Specifically, Edwards contended that the new tires his grandmother purchased were negligently installed on the car’s front axle instead of on the rear axle, which exposed him to danger and resulted in the car accident.

Discovery ensued, and in January 2015, Campbell filed a motion for summary judgment, arguing that the undisputed evidence showed that he did not owe a legal duty to Edwards as to his dealings with CTC, which occurred two years before the allegedly negligent tire installation. Ultimately, after a hearing on the matter, the trial court granted Campbell’s motion for summary judgment, finding that, although he owed a duty to train CTC employees correctly, two years passed between the alleged negligent training and the incident at issue, and as a matter of law, any proximate cause for Edwards’s injuries would flow from Lanham and his employees, not Campbell. This appeal follows.

To begin with, we note that summary judgment is appropriate when “the moving party can show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law.” And a defendant satisfies this burden when the court is shown 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 plaintiff’s case.” Finally, if the moving party meets this burden, “the nonmoving party cannot rest on its pleadings, but must point to specific evidence giving rise to a triable issue.” With these guiding principles in mind, we turn now to Edwards’s specific claims of error.

1. In two enumerations of error, Edwards argues that the trial court erred in basing its grant of summary judgment to Campbell on the lack of proximate cause because that issue was not raised in Campbell’s initial summary-judgment motion, and Edwards was not given a full and fair opportunity to be heard on it before the court entered its judgment. We disagree.

Edwards is indeed correct that a trial court must ensure that “the party against whom summary judgment is rendered is given full and fair notice and opportunity to respond prior to entry of summary judgment.” In this regard, the crucial point is “to ensure that the party against whom summary judgment is sought has had a full and final opportunity to meet and attempt to controvert the assertions against him.” But a plaintiff is not required to “respond to issues which are not raised in the motion for summary judgment or to present its entire case on all allegations in the complaint—even on issues not raised in the defendants’ motion.” Indeed, until the defendant pierces the allegations of the complaint on a particular issue, the plaintiff is “neither required to respond to the motion on that issue, nor ... to produce evidence in support of his complaint on that issue.”

As previously noted, Edwards contends that the trial court granted summary judgment based on the lack of proximate cause without giving him fair notice and an opportunity to respond to that issue prior to the entry of summary judgment; but this claim is belied by the record. As noted by Edwards, Campbell’s initial motion for summary judgment was based solely on the argument that he could not be liable for any negligent training because he owed no legal duty of care to Edwards. Specifically, Campbell argued that he owed no legal duty to Edwards because the injury occurred after he sold the business, over which Campbell did not retain any ownership, control, or responsibility. In response, Edwards argued that, under the 2009 sales contract, Campbell “undertook the duty to provide training” to Lanham in a “non-negligent manner.”

Then, Campbell filed a reply brief, contending that, in responding to his motion for summary judgment, Edwards attempted to “recast” his claims against Campbell as “direct negligence claims.” And in addressing those claims, Campbell expressly argued, inter alia, that, even if Edwards could show that he misinformed Lanham as to the proper method for installing tires in 2009, Edwards could not establish that this purportedly negligent conduct was the proximate cause of his injuries. In support, Campbell relied on Lanham’s deposition testimony that, since being trained by Campbell in 2009, he has continued to conduct independent research regarding the “debate within the industry regarding tire placement,” and that, if he learned that Campbell’s training was incorrect, he would change his tire-installation policy to comply with the law. Indeed, according to Campbell, this “independent investigation, research, and business decision made by Lanham” rendered any deficiency in Campbell’s training “too remote to be the proximate cause of [Edwards’s] injuries . . .

Although Edwards did not file a written response to Campbell’s proximate-cause argument, Campbell raised the issue again during the summary-judgment hearing. Specifically, Campbell reiterated his argument that Lanham’s independent research and decision not to change the tire-installation policy “sever [ed] any causal nexus that could have possibly been created by the negligent training . . . And in doing so, Campbell specifically reminded the trial court and Edwards that Edwards had not yet responded to this causation argument. Nevertheless, instead of responding to Campbell’s proximate-cause argument, Edwards addressed unrelated issues that he contended were still subject to further discovery and not ripe for review. In sum, because Campbell briefed the issue of proximate cause before the hearing, presented oral argument on the issue, and specifically highlighted Edwards’s failure to respond to it at the summary-judgment hearing, Edwards’s claim that he was not given a full and fair opportunity to respond to the issue of proximate cause prior to the entry of summary judgment is unavailing.

2. Turning now to the merits of Edwards’s negligence claim, he argues that the trial court erroneously entered a “facially invalid order,” which found that the passage of two years alone—between Campbell’s negligent training and Edwards’s accident—“equal[ed] a break in proximate cause.” Again, we disagree.

To prevail on a cause of action for negligence, Edwards is required to prove the following essential elements: “a legal duty to conform to a standard of conduct; breach of the duty; a legally sufficient causal connection (proximate cause) between conduct breaching the duty and the resulting injury, and damage flowing from the breach.” And before any negligence, even if proven, can be actionable, that negligence “must be the proximate cause of the injuries sued upon.” Indeed, the requirement of proximate cause “constitutes a limit on legal liability; it is a policy decision that, for a variety of reasons, e.g., intervening act, the defendant’s conduct and the plaintiff’s injury are too remote for the law to countenance recovery.” Furthermore, proximate causation includes “all of the natural and probable consequences of the tortfeasor’s negligence, unless there is a sufficient and independent intervening cause.” Specifically,

the general rule is that if, subsequently to an original wrongful act, a new cause has intervened, of itself sufficient to stand as the cause of the misfortune, the former must be considered as too remote, still if the character of the intervening act claimed to break the connection between the original wrongful act and the subsequent injury was such that its probable or natural consequences could reasonably have been anticipated, apprehended, or foreseen by the original wrong-doer, the causal connection is not broken, and the original wrong-doer is responsible for all of the consequences resulting from the intervening act.

Finally, although the question of proximate cause is “usually submitted to the jury as a question of fact, it may be decided as a matter of law [when] the evidence shows clearly and palpably that the jury could reasonably draw but one conclusion, that the defendant’s acts were not the proximate cause of the injury.”

As previously mentioned, Edwards argues that the trial court erred by relying solely on the two-year lapse between Campbell’s training in 2009 and Edwards’s 2011 car accident in finding that Edwards failed to satisfy the proximate-cause element of his negligence claim. But Edwards points to no legal authority to support this contention that a substantial length of time can never be the sole basis for determining that the chain of causation flowing from an initial negligent act has been broken—i.e., that the second negligent act was not reasonably foreseeable as a matter of law to the first negligent actor. Nevertheless, contrary to Edwards’s assertion, it does not appear from the trial court’s order that the court relied solely on the two-year lapse in making its proximate-cause determination. Indeed, the court also found that, under the particular circumstances of this case, “any proximate cause would flow from Lanham and his employees, not . . . Campbell.” Thus, it appears that the trial court concluded that the negligent actions of Lanham and his employees in 2011 were intervening acts sufficient to break any chain of causation flowing from Campbell’s negligent training. But regardless of the trial court’s stated reasons for its decision, it is well settled that “an appellate court will affirm a judgment if it is correct for any reason, even if that reason is different than the reason upon which the trial court relied.”

Here, the relevant claim against Campbell was that he negligently trained “the Lanham Defendants” to install new tires on the front axle when two new tires are purchased for a vehicle with four wheels, and that Lanham and his employees relied “entirely on the negligent and reckless training provided by Campbell” when they installed his grandmother’s tires in that manner. In response, Campbell contends that Lanham’s ongoing independent decision, over the course of two years, not to change the allegedly improper tire-installation policy was an intervening cause that broke any chain of causation flowing from Campbell’s training. As previously explained, subsequent intervening acts are sufficient to break the chain of causation flowing from a first negligent act when the subsequent acts are not reasonably foreseeable to the first negligent actor. In this regard, we have held that foreseeable consequences are “those which are probable, according to ordinary and usual experience,” and “those which, because they happen so frequently, may be expected to happen again.” Similarly, the Supreme Court of Georgia has explained that

[o]ne is bound to anticipate and provide against what usually happens and what is likely to happen; but it would impose too heavy a responsibility to hold him bound in like manner to guard against what is unusual and unlikely to happen or what, as it is sometimes said, is only remotely and slightly probable.

Here, it is undisputed that Campbell, who had owned and operated CTC for 20 years, was competent to train Lanham on proper tire-installation policies and that, in adopting those policies, Lanham specifically incorporated Campbell’s instruction that tires should be installed on the front axle of a vehicle when only two tires are purchased for a vehicle with four wheels. Indeed, Lanham testified that CTC’s policy of installing tires on the front axle, rather than the rear axle, in such circumstances had been in place for 27 years, and he had not altered that policy since purchasing the business in 2009. But notwithstanding Lanham’s initial reliance on Campbell’s training regarding this policy, his undisputed testimony, set forth infra, shows that he did not exclusively rely on Campbell’s training after he purchased the business and continued to leave that policy in place. Significantly, as a business owner, Lanham had certain legal obligations to ensure, on an ongoing basis, that his company was selling and installing tires in a manner that would not render his customers’ vehicles unsafe, or at the very least, to warn his customers of any potential danger resulting from CTC’s work. And in fact, Lanham satisfied these obligations when he independently decided, after researching the matter extensively, to keep the relevant policy for tire installation in place.

Specifically, Lanham testified that, since entering the tire industry in 2009, he has spent “countless hours talking to customers and studying tires and researching and reading trade magazines.” Lan-ham further indicated that if he discovered Campbell had given him incorrect information regarding any particular procedures, he would have personally investigated the matter so that he could follow the correct ones. As to tire installation, Lanham’s initial research revealed that there was “no consensus” regarding whether the tires should be installed on the front or rear axle when only two tires are purchased, but he continued researching the issue so that he could adopt policies for CTC that were “the most safe.” Indeed, Lanham was fully aware of the “debate within the industry regarding tire placement,” and he sought to enact tire-installation policies that complied with the law and best practices. And according to Lanham, other than the instant case, he has never received any complaints regarding incidents or accidents that occurred because new tires were placed on the front axle rather than the rear axle.

In light of Lanham’s legal obligations, as a business owner, to ensure the safe installation of CTC tires, it was not reasonably foreseeable to Campbell—i.e., the natural or probable consequence of any negligent training he provided in 20 0 9—that Lanham would blindly follow his instructions on tire installation for two years without independently confirming that CTC’s tire-installation procedures complied with industry standards and without altering any policies that he discovered were improper or unsafe. Indeed, Campbell was not bound to anticipate that Lanham would, as Edwards apparently contends, rely “exclusively” on the 2009 training as to Campbell’s tire-installation policies, while completely disregarding his legal obligations to CTC customers, because any new business owner doing so would be “unusual” and “only remotely and slightly probable.” Thus, under the particular circumstances of this case, we conclude that the trial court did not err in finding that, as a matter of law, Edwards cannot show that Campbell’s negligent training was the proximate cause of his injuries.

Decided October 14, 2016

Brodhead Law, Ben C. Brodhead III, Jennifer S. Mundy, for appellant.

Rubin Lublin, Jody C. Campbell, for appellee.

For all of the foregoing reasons, we affirm the trial court’s grant of summary judgment to Campbell.

Judgment affirmed.

Phipps, P. J., and Peterson, J., concur.

        See, e.g., Swanson v. Tackling, 335 Ga. App. 810, 810 (783 SE2d 167) (2016).

       We note that Campbell and his wife were the sole shareholders of CTC, the training provision of the sales contract refers to Campbell as “David,” and it is undisputed by the parties that Campbell contracted to provide the 60 days of training in his individual capacity.

       Edwards presented no evidence regarding the nature of the car accident or his resulting injuries to support the allegations in his complaint. Indeed, the only evidence that Edwards submitted to support his response to Campbell’s motion for summary judgment was a one-page excerpt from a tire-safety manual, an excerpt from Lanham’s deposition transcript (who claimed no personal knowledge of the transaction with Edwards’s grandmother or the accident), documents related to the sale of CTC to Lanham Enterprises, and his grandmother’s receipt for purchasing the tires at issue. Nevertheless, Campbell does not dispute Edwards’s account of the accident.

       In addition to Campbell, Edwards asserted several claims against numerous other defendants who are not parties to this appeal. And it is worth noting that, while Campbell is the only appellee, each of the negligence claims against him were also asserted against CTC, Lanham Enterprises, Lanham, Campbell and Lanham’s wives, and various John Doe defendants.

         Swanson, 335 Ga. App. at 811 (punctuation and footnote omitted).

        Id, (punctuation omitted).

        Id. at 811-12 (punctuation omitted).

        Haygood v. Head, 305 Ga. App. 375, 378 (1) (699 SE2d 588) (2010) (punctuation omitted); accord BAC Home Loans Servicing, L.P. v. Wedereit, 297 Ga. 313, 314 (773 SE2d 711) (2015); Aycock v. Calk, 222 Ga. App. 763, 764 (476 SE2d 274) (1996).

        Haygood, 305 Ga. App. at 378 (1) (citations and punctuation omitted); accord Aycock, 222 Ga. App. at 764.

        Hodge v. SADA Enters., Inc., 217 Ga. App. 688, 690 (1) (458 SE2d 876) (1995); accord Little v. All. Fire Prot., Inc., 291 Ga. App. 116, 119 (661 SE2d 173) (2008).

        Hodge, 217 Ga. App. at 690 (1) (citations omitted); accord Little, 291 Ga. App. at 119.

        See Perkins v. Kranz, 316 Ga. App. 171, 172 (1) (728 SE2d 804) (2012) (“[T]he threshold issue in a negligence action is whether and to what extent the defendant owes a legal duty to the plaintiff.” (punctuation omitted)).

       Campbell also noted that, although Edwards named Campbell’s wife and “Campbell Tire Company, Inc.” as defendants, “none of the purported conduct addressed in [Edwards’s] response” involved either of those defendants. Although not entirely clear from the record, it appears that Campbell’s wife and the company he owned with her may have been dismissed from the case, but regardless, Campbell is the only defendant at issue in this appeal.

        See Tidwell v. Tidwell, 251 Ga. App. 863, 864 (554 SE2d 822) (2001) (affirming a trial court’s grant of summary judgment based on a finding that the relevant claim was barred by the applicable statute of limitation even though the defendant’s written motion for summary judgment was based only on res judicata because there was no transcript to confirm the appellant’s contention that the statute-of-limitation issue was not raised during the summary-judgment hearing). Cf. Choice Capital Corp. v. Phillips, 256 Ga. App. 773, 775 (569 SE2d 580) (2002) (noting that a nonmovant is denied a full and fair opportunity to respond to an issue “in circumstances where the record shows that neither party briefed or presented oral argument on the claim”); Dixon v. MARTA, 242 Ga. App. 262, 266 (3) (529 SE2d 398) (2000) (concluding that the appellants did not have a full and fair opportunity to respond to the assertions made with respect to certain claims when the parties did not brief or present oral argument on them, and thus, reversing the trial court’s grant of summary judgment as to those claims).

        Cieplinski v. Caldwell Elec. Contractors, Inc., 280 Ga. App. 267, 272 (633 SE2d 646) (2006); see also Rasnick v. Krishna Hosp., Inc., 289 Ga. 565, 566 (713 SE2d 835) (2011) (“In order to have a viable negligence action, a plaintiff must satisfy the elements of the tort, namely, the existence of a duty on the part of the defendant, a breach of that duty, causation of the alleged injury, and damages resulting from the alleged breach of the duty.”).

       For the purpose of resolving this appeal, we assume, without deciding, that the training Campbell provided to Lanham was negligent and that he breached his contractual duty to provide proper training. But we acknowledge that, throughout this litigation, Campbell has “vigorously dispute[d] ” that he trained Lanham in a manner that was “negligent or violated the standard of care that existed in the automobile repair industry in April of 2009.” Campbell has also noted, in passing, that even though discovery was ongoing for almost two years, Edwards presented “absolutely no evidence regarding the standard of care” in the tire industry as of 2009. And indeed, while Edwards stated during oral argument that the industry standard for tire installation was not “a reasonably contested issue” and that experts were “available,” the only evidence he presented regarding the standard of care for tire installation is a one-page excerpt from a publication authored by the Rubber Manufacturers Association, which bears no publication date. But despite highlighting this lack of evidence for the trial court, Campbell nevertheless asserted that, because Edwards cannot establish proximate cause, the court need not reach the issue of whether Campbell, in fact, breached the applicable standard of care when he trained Lanham. Not surprisingly, neither Edwards nor the trial court addressed the breach element of his claim, and it was not briefed by the parties on appeal. Thus, like the trial court, we will not consider whether the training that Campbell provided in 2009 was, in fact, negligent. See Smyrna Dev. Co. v. Whitener Ltd. P’ship, 280 Ga.App. 788, 790 (2) n.3 (635 SE2d 173) (2006) (declining ‘to address any .. . issues that might be lurking in the record but are not specifically supported in the brief by argument and citation to authority” (punctuation omitted)).

        Granger v. MST Transp., LLC, 329 Ga. App. 268, 270 (1) (764 SE2d 872) (2014) (punctuation omitted); accord Bacon v. Mayor & Aldermen of City of Savannah, 241 Ga.App. 211, 212 (525 SE2d 115) (1999); see also Toyo Tire N. Am. Mfg., Inc. v. Davis, 299 Ga. 155, 158 (2) (787 SE2d 171) (2016) (“Causation is an essential element of . . . negligence claims. To establish proximate cause, a plaintiff must show a legally attributable causal connection between the defendant’s conduct and the alleged injury.” (citation and punctuation omitted)).

        Delta Airlines, Inc. v. Townsend, 279 Ga. 511, 515 (1) (614 SE2d 745) (2005) (punctuation omitted); accord Reed v. Carolina Cas. Ins. Co., 327 Ga.App. 130, 132 (2) (762 SE2d 90) (2014); Bacon, 241 Ga. App. at 212.

        Granger, 329 Ga. App. at 270 (1) (citation and punctuation omitted); accord Cowart v. Widener, 287 Ga. 622, 627-28 (2) (b) (697 SE2d 779) (2010).

        Ontario Sewing Mach. Co. v. Smith, 275 Ga. 683, 686 (2) (572 SE2d 533) (2002) (citation and punctuation omitted); accord Granger, 329 Ga. App. at 270 (1); Govea v. City of Norcross, 271 Ga. App. 36, 44-45 (3) (608 SE2d 677) (2004).

        Atlanta Gas Light Co. v. Gresham, 260 Ga. 391, 393 (4) (394 SE2d 345) (1990) (citation and punctuation omitted); accord Beasley v. A Better Gas Co., 269 Ga. App. 426, 427-28 (1) (604 SE2d 202) (2004).

        See supra note 20 & accompanying text. To support his argument that a proximate-cause determination may not be based solely on the lack of temporal proximity when there are two distinct negligent acts, Edwards merely relies on two cases in which Georgia courts, in addressing the issue of proximate cause, focused generally on whether the intervening negligent act was reasonably foreseeable to the defendant, without referencing any particular lapses of time. See Pearson v. Tippmann Pneumatics, Inc., 281 Ga. 740, 741 n.1, 744 (3) (642 SE2d 691)(2007) (holding that the trial court erred by failing to accurately instruct the jury on the legal principles of proximate cause and the foreseeability of intervening acts when the trial court instructed the jury, inter alia, that “(p)roximate cause is that which is nearest in the order of responsible causes, as distinguished from remote, that which stands last in causation, not necessarily in time or place, but in causal relation”); Govea, 271 Ga. App. at 44-46 (3) (addressing the issue of proximate cause in terms of whether certain intervening causes were reasonably foreseeable to the defendant, without referencing the particular time frame involved).

        See supra note 20 & accompanying text.

        City of Gainesville v. Dodd, 275 Ga. 834, 835 (573 SE2d 369) (2002).

        See supra notes 18-20 & accompanying text.

        Dowdell v. Wilhelm, 305 Ga.App. 102, 105 (699 SE2d 30) (2010); accord Brown v. All Tech Inv. Grp., Inc., 265 Ga. App. 889, 894 (1) (595 SE2d 517) (2004).

        Gresham, 260 Ga. at 392-93 (4) (punctuation omitted).

        See Vulcan Materials Co. v. Driltech, Inc., 251 Ga. 383, 387 (3) (306 SE2d 253) (1983) (noting, in the context of product manufacturers, that the law imposes a duty on such manufacturers “to produce safe items, regardless of whether the ultimate impact of the hazard is on people, other property, or the product itself” (punctuation and emphasis omitted)); City of Atlanta v. Benator, 310 Ga. App. 597, 605 (5) (714 SE2d 109) (2011) (acknowledging, in a negligent-construction case, that there is a duty implied by law to perform work in accordance with industry standards); Underwood v. Select Tire, Inc., 296 Ga. App. 805, 812-13 (3) (676 SE2d 262) (2009) (holding that companies that sold and installed tires assumed a “duty of discovery and warning” when they made representations regarding a tire’s quality and fitness for use); Boyce v. Gregory Poole Equip. Co., 269 Ga. App. 891, 896 (1) (c) (2) (605 SE2d 384) (2004) (“[W]hen [the seller of a product] made investigations into the product’s expected use, the seller should have recognized danger in such use and known that the purchaser and third parties would rely upon such determination; such seller is under an additional duty over the general duty regarding warning because it has assumed a duty to exercise ordinary care in making its investigation and recommendation . . . .”).

        See supra note 19 & accompanying text.

        Dowdell, 305 Ga. App. at 105 (punctuation and footnote omitted); see supra note27 and accompanying text.

        See, e.g., Townsend, 279 Ga. at 511, 514-15 (1) (noting—in the context of evaluating an airline’s liability for claims based on the Georgia Dram Shop Act and common law negligence— that “[t]he proximate connection between the consumption of alcohol by an airline passenger during a flight and his subsequent act of drunk driving is much more remote and attenuated” than it is between land-based establishments and a drunk driver); Gresham, 260 Ga. at 392-93 (4) (holding that, as a matter of law, it was not reasonably foreseeable to a company that installed and maintained a pipe located more than two feet from the steps of a mobile home in a place “no one had reason to go” that one of that home’s occupants would trip while exiting the home, fall on the pipe, and suffer injuries as a result); Blakely v. Johnson, 220 Ga. 572, 573-74, 577 (140 SE2d 857) (1965) (holding that, as a matter of law, it was not reasonably foreseeable to agents of their employer (an owner of a gas station)—who “blew whistles and shouted and otherwise made loud noises for the purpose of attracting attention and customers into [a gas station]”—that such conduct would distract a nearby driver to the extent that he collided with the plaintiff’s car, thereby causing her injuries, and noting that the employees “were not bound to anticipate that a passing motorist would negligently disregard his own safety because of their advertising acts, and that such motorist would violate traffic laws and cause injuries to third persons”) (emphasis supplied); Duncan v. Klein, 313 Ga. App. 15, 22-23 (3) (720 SE2d 341) (2011) (physical precedent only) (holding that it was unforeseeable to an attorney and his law firm that, as a result of giving incorrect advice to the plaintiff about the merits of his discrimination claims against his then-current employer, the plaintiff “would elect to enroll in a law school in a faraway place, leave his family behind, and refinance his home to cover the costs of law school and the expenses of his family in the meantime],]” and therefore, the bad legal advice was not the proximate cause of those costs and expenses as a matter of law); Rustin Stamp & Coin Shop, Inc. v. Ray Bros. Roofing & Sheet Metal Co., 175 Ga. App. 30, 32 (1) (332 SE2d 341) (1985) (physical precedent only) (holding that an air conditioning repair company, which negligently failed to mark an unsupported opening in the roof, was not the proximate cause of rain damage to a business when the store owner could have recognized the problem and

        corrected it or notified the repair company of the issue); see also Ontario Sewing Mach., 275 Ga. at 686 (2) (“The rule that an intervening and independent wrongful act of a third person producing the injury, and without which it would not have occurred, should be treated as the proximate cause, insulating and excluding the negligence of the defendan t, would not apply if the defendant had reasonable grounds for apprehending that such wrongful act would be committed.” (punctuation omitted) (emphasis supplied); Reed, 327 Ga. App. at 132 (2) (“The requirement of proximate cause constitutes a limit on legal liability; it is a policy decision that, for a variety of reasons, e.g., intervening act, the defendant’s conduct and the plaintiff’s injury are too remote for the law to countenance recovery.” (citation and punctuation omitted)); Bacon, 241 Ga. App. at 212 (same).


source: Caselaw Access Project

author: ANDREWS, Presiding Judge.

license: Public Domain

text:
    A16A1269.
    COLLINS v. THE STATE.
    (792 SE2d 134)
   ANDREWS, Presiding Judge.

More than 17 years after completing a sentence of probation under the First Offender Act, Timothy Curtis Collins filed a “Motion for Discharge and Exoneration” challenging a 1998 order of the Superior Court of Clayton County which found that Collins’ performance of his sentence of probation was “unsatisfactory” The trial court denied Collins’ motion, and he appeals. Because we construe Collins’ motion as one to correct a void sentence, and because we further conclude that the trial court’s 1998 sentencing order was void, we reverse and remand this case for entry of an order of exoneration and discharge consistent with the First Offender Act.

On February 7, 1995, Collins entered a negotiated plea of guilty to one count of theft by taking and one count of theft by receiving stolen property. The Superior Court of Clayton County sentenced Collins to three years to be served on probation under the provisions of the First Offender Act. On Friday, February 6, 1998, a Clayton County probation officer completed a “Petition Seeking Adjudication of Unsatisfactory Performance Under First Offender Sentence.” The petition alleged that Collins failed to fulfill the requirements of first offender probation in view of Collins’ three traffic violations committed during the term of probation. The petition did not seek an adjudication of guilt or revocation of Collins’ probation. See OCGA § 42-8-38 (1998) (revocation of probation); OCGA § 42-8-60 (b) (1998). Of note, the record does not contain any evidence that the petition was filed with the clerk of court or the trial judge or that the petition was served upon Collins or his counsel. On Monday, February 9, 1998, the trial court executed an order granting the State’s petition, concluding that Collins’ performance “under the First Offender sentence is found to be unsatisfactory” As a result, the trial court found that Collins “is not entitled to discharge and exoneration as provided in Sec. 42-8-62. . . There is no indication in the record that the trial court conducted a hearing on the State’s petition. The trial court filed its order on February 11, 1998.

Some 17 years later, on October 5, 2015, Collins filed a “Motion for Discharge and Exoneration” in which he asked the trial court for an order “formalizing [Collins’] exoneration” under the First Offender Act. The trial court concluded that Collins failed to show “any abuse of discretion in the Court’s 1998 determination that [Collins] was not entitled to relief under the First Offender Act” and denied his motion. Collins’ appeal followed.

1. We are obligated to question our jurisdiction “in any case in which there may be a doubt about the existence of such jurisdiction.” Sanders v. State, 280 Ga. 780, 782 (1) (631 SE2d 344) (2006). Here, Collins filed a motion in 2015 to challenge a 1998 order denying him exoneration and discharge under the First Offender Act. Collins could have sought an appeal from that order as late as March 13, 1998, but no appeal was filed and his opportunity to appeal that order expired long ago. See OCGA § 5-6-38 (a). Accordingly, unless Collins’ motion is of a kind which may be brought at any time, and Collins invoked the correct procedure to appeal the order denying his motion, we lack jurisdiction and Collins’ appeal must be dismissed.

Collins points to no law which authorizes the specific motion he filed. See, e.g., State v. Green, 308 Ga. App. 33, 34 (1) (706 SE2d 720) (2011) (“[A] motion to vacate a judgment of conviction is not an established procedure for challenging the validity of a judgment in a criminal case.”). See also Harper v. State, 286 Ga. 216, 217 (1) (686 SE2d 786) (2009). He does not challenge the trial court’s judgment of conviction, but essentially asks the trial court to remove a sentencing provision (i.e., the prohibition against exoneration and discharge), which is not authorized under Georgia law. See Spargo v. State, 332 Ga. App. 410, n. 1 (773 SE2d 35) (2015) (“[a] claim challenging a conviction and a claim challenging the resulting sentence as void are not the same”). As a result, Collins’ motion most closely resembles a motion to correct a void sentence. See Davis v. State, 330 Ga. App. 711, 712 (769 SE2d 133) (2015) (“there is no magic in mere nomenclature, and pleadings are construed to serve the best interests of the pleader, and are judged by function rather than name”).

A motion to correct a void sentence may be filed at any time. See OCGA § 17-9-4; Rooney v. State, 287 Ga. 1, 2 (2) (690 SE2d 804) (2010); Spargo, 332 Ga. App. at 410. “[T]he only ground for authorizing a trial court to correct a sentence at any time is that the sentence is void. A sentence is void if the court imposes punishment that the law does not allow.” (Citation and punctuation omitted.) Spargo, 332 Ga. App. at 411. “When the sentence imposed falls within the statu - tory range of punishment, (however,) the sentence is not voidQ” (Citation and punctuation omitted.) Id.

Under the First Offender Act, a person is either exonerated of guilt and stands discharged as a matter of law upon completion of the term of probation (OCGA § 42-8-60 (e) (1) (2016)) or adjudicated guilty in a petition filed prior to the expiration of the sentence (OCGA § 42-8-60 (d) (2016)); the statute does not provide for any other alternative. Stated differently:

A first offender’s guilty plea does not constitute a “conviction” as that term is defined in the Criminal Code of Georgia. Rather, under the first offender statute, until an adjudication of guilt is entered, there is no conviction. The case has, in effect, been suspended during the period of probation until eventually the probation is either revoked or it is discharged; unless it is revoked, there is no conviction.

(Punctuation and footnotes omitted; emphasis supplied.) Cook v. State, 338 Ga. App. 489, 497 (4) (790 SE2d 283) (2016), citing Davis v. State, 273 Ga. 14, 15 (537 SE2d 663) (2000). A punishment which deviates from these limited options is not available and, therefore, it is void. See Spargo, 332 Ga. App. at 411. In this case, Collins’ motion attacked a sentence imposed by the trial court that was not permitted. See Shaheed v. State, 274 Ga. 716, 717 (559 SE2d 466) (2002) (“When the trial court amended [Collins’] sentence to eliminate first offender status, it effectively imposed an enhanced sentence....”). As a result, we construe Collins’ motion as a motion to correct a void sentence. See Davis, 330 Ga. App. at 712. Orders on motions to correct a void sentence may be appealed directly, and Collins timely filed a notice of appeal from the trial court’s order denying his “Motion for Discharge and Exoneration.” See Williams v. State, 271 Ga. 686, 689 (1) (523 SE2d 857) (1999) (“the denial of a petition to correct a sentence on the ground that the original sentence was void is appeal-able as a matter of right”). Accordingly, we have jurisdiction.

2. In view of our analysis in Division 1, supra, the State’s motion to dismiss Collins’appeal is denied. See Williams, 271 Ga. at 689 (1). Compare OCGA § 42-8-64; Hawkins v. State, 330 Ga. App. 547 (768 SE2d 523) (2015) (appeal from order denying petition to remove listing from sexual offender registry is by discretionary appeal); Mobley, 192 Ga. App. at 719 (appeal from an order of adjudication of guilt and revocation of sentence issued pursuant to First Offender Act is by discretionary appeal).

3. Prior to the expiration of Collins’ sentence, the State completed, but the record contains no indication that it filed, a petition “seeking adjudication of unsatisfactory performance.” Bearing in mind the two options available under the First Offender Act, there are two primary deficiencies with the State’s petition. First, to the extent the petition sought an adjudication of guilt, it was untimely. See OCGA § 42-8-38 (a) (1998); State v. Mills, 268 Ga. 873, 874 (495 SE2d 1) (1998) (failure of State to file a petition to revoke defendant’s probation during the term of probation precluded State’s argument that defendant failed to fulfill the terms of his probation). Compare Jones, 322 Ga. App. 269; State v. Boyd, 189 Ga. App. 617, 617-618, 619 (377 SE2d 11) (1988) (State filed petition for adjudication of guilt prior to expiration of sentence; “We do not reach the issue of whether a different result would obtain if the state had failed to file its ‘Petition for Adjudication of Guilt and Imposition of Sentence’prior to the expiration of the period of first offender probation. . . .”). Second, and of particular relevance, Georgia law does not recognize the trial court’s sentence denying Collins’ exoneration and discharge as sought by the State. See Division 1, supra; Shaheed, 274 Ga. at 717; Davis, 273 Ga. at 15 (“[u]nder the first offender statute, until an adjudication of guilt is entered, there is no conviction”); Mills, 268 Ga. at 875 (“Nothing in [the Act] expressly provides that a ‘discharge’ from first-offender probation is not. . . automatic, but must be formalized to become effective.”). Thus, “if a first-offender probationer is not ‘discharged’pursuant to OCGA § 42-8-62, it is only because he did not successfully complete his term of probation.” Id. “Successful completion” of the term of probation is measured by whether the State timely filed a petition for revocation. See OCGA § 42-8-60 (e), (g) (2016); Mills, 268 Ga. at 875. In this case, it did not. Therefore, we conclude that the trial court’s sentence denying Collins’ exoneration and discharge is void as a matter of law. As a result, the trial court’s order denying Collins’ motion is reversed, and this case is remanded for entry of an order of exoneration and discharge consistent with the First Offender Act. See OCGA § 42-8-60 (e), (g), (h).

Decided October 14, 2016.

John R. Monroe, for appellant.

Tracy Graham Lawson, District Attorney, Elizabeth A. Baker, Assistant District Attorney, for appellee.

Judgment reversed and case remanded.

Doyle, C. J., and Ray, J., concur.

       OCGA § 42-8-60 et seq.

       A third count, fleeing or attempting to elude a police officer, was resolved by an order of nolle prosequi.

       Approximately three months after sentencing, the State filed a motion to revoke Collins’ probation. Following a hearing, the trial court determined that “the terms of probation had not been violated” and denied the State’s motion.

       See OCGA § 17-1-1 (a) (service of pleadings upon each party); (b) (manner of service of pleadings); (c) (filing of pleadings with court “either before service or immediately thereafter”); (d) (filing of pleadings accomplished by filing with the clerk of court “unless the judge permits the papers to be filed with him, in which event he shall note thereon the filing date and transmit them to the office of the clerk”); (e) (proof of service) (1998).

       See OCGA § 42-8-64 (1998). We need not decide here whether Collins should have pursued a direct or discretionary appeal inasmuch as no effort to appeal was made. See OCGA §§ 5-6-34 (a), 5-6-35 (a). Compare OCGA § 42-8-64; Mobley v. State, 192 Ga. App. 719 (386 SE2d 384) (1989) (appeal from an order of adjudication of guilt and revocation of sentence issued pursuant to First Offender Act is by discretionary appeal).

       There is no allegation in the record that Collins did not receive notice of the order, which otherwise might have triggered the available out-of-time appeal procedure. See, e.g., Porter v. State, 271 Ga. 498, 499-500 (521 SE2d 566) (1999); Whitfield v. State, 313 Ga. App. 297, 299 (1) (721 SE2d 211) (2011).

       Unlike a petition to remove a listing on the sexual offender registry, there is no similar statutory procedure under the First Offender Act to address the trial court’s judgment in this case. Compare OCGA § 42-1-19. Furthermore, we note that recent revisions to the Act by the 2016 General Assembly, effective July 1, 2016, provide for: (1) filing a petition in the sentencing court to seal certain records following exoneration and discharge (see OCGA § 42-8-62.1 (c) (2016)); and (2) filing a petition for exoneration and discharge in the county of conviction for defendants who originally qualified for first offender treatment but were not informed of their eligibility. See OCGA § 42-8-66 (2016). Neither situation is present in this case.

       As a result, irrespective of the timeliness of his motion, Collins’ motion cannot be characterized as a petition for habeas corpus, a motion to withdraw a guilty plea, or a motion in arrest of judgment, each of which challenges the underlying judgment of conviction rather than the sentence. See also Harper, 286 Ga. at 217 (1). Nor does the motion qualify as an extraordinary motion for new trial in view of Collins’ guilty plea. See OCGA § 5-5-41; Spargo v. State, 332 Ga. App. 410, n. 1 (773 SE2d 35) (2015).

       Although the 2016 General Assembly passed substantial revisions to the First Offender Act which took effect July 1,2016, and which we apply here, the General Assembly did not alter the two options long available under the Act - adjudication of guilt or discharge. See OCGA § 42-8-60 (b) (1998), (2015) (adjudication of guilt); OCGA § 42-8-62 (a) (1998), (2015) (discharge). See also Hill v. Willis, 224 Ga. 263, 265 (1) (161 SE2d 281) (1968) (“a reviewing court should apply the law as it exists at the time of its judgment rather than the law prevailing at the rendition of the judgment under review”); Hammond v. State, 334 Ga. App. 781, 784, n. 12 (780 SE2d 440) (2015) (same).

       This case is dissimilar to Jayko v. State, 335 Ga. App. 684, 686 (782 SE2d 788) (2016), because, rather than challenge “a sentence condition to which [he] is no longer subject],]” Collins challenges a condition to which he is, but should not be, subject (i.e., the stigma of a conviction). See State v. Mills, 268 Ga. 873, 875 (495 SE2d 1) (1998).

       The State’s argument that Collins’ motion is subject to discretionary appeal procedures because it addresses probation revocation is misplaced. See Jones v. State, 322 Ga. App. 269 (745 SE2d 1) (2013); Zamora v. State, 226 Ga. App. 105 (485 SE2d 214) (1997). First, the State’s 1998 petition did not seek, and the trial court did not impose, a revocation of Collins’ probation. Second, at the time the State’s 1998 petition was filed, Collins’ sentence had expired; as a result, there was no probation to revoke. Compare Jones, 322 Ga. App. at 269 (“Before the expiration of the probationary period, the state filed a petition for adjudication of guilt and imposition of sentence. . . .”).

       We emphasize that, generally, such an order is not required. See OCGA § 42-8-60 (e), (g) (2016); Mills, 268 Ga. at 875 (“Nothing in [the Act] expressly provides that a ‘discharge’ from first-offender probation is not . . . automatic.”).


author: PHIPPS, Presiding Judge.

text:
    A16A1312.
    WILSON v. WILSON.
    (792 SE2d 139)
   PHIPPS, Presiding Judge.

In this case, a mother appeals from the trial court’s order modifying custody of her minor daughter, A. W, in favor of the appellee father. The mother contends that the trial court abused its discretion in determining the best interest of the child and relied too heavily on the opinion of the guardian ad litem, who focused primarily on the mother’s conduct in hindrance of A. W.’s communication with the father. For the following reasons, we affirm.

The record shows that the parties married in September 2003 and divorced in June 2012. During the marriage, the father served in the military While deployed, the father did not have much contact with A. W. At the time of the divorce, the father had finished active military duty and was living in New Mexico where he worked as a police officer.

In the parties’ divorce decree, the mother was awarded primary physical custody of A. W, then eight years old, and the father was awarded visitation, including during most of the summer break from school. In 2013, the father obtained a court order to enforce summer visitation. Around the same time, the mother filed a petition to modify the custody and visitation arrangement.

In her petition, the mother alleged that the father had not provided her with his current address, had not maintained health insurance coverage for A. W., had endangered A. W., and had performed lewd acts in front of her. In addition, the father was “always surrounded by pornography,” and A. W. was being “psychologically abused.” However, the mother did not produce evidence to support any of these allegations.

In August 2013, the trial court appointed a guardian ad litem. The guardian ad litem conducted an investigation, submitted a report, and testified at the final modification hearing in October 2014. The guardian ad litem recommended that the father have primary physical custody of A. W., noting that the mother had interfered with the father’s telephone visitation with A. W., refused to cooperate in facilitating A. W.’s visits to New Mexico, and discouraged A. W. from having a relationship with the father. For example, the guardian ad litem testified that she overheard the mother tell A. W. in a recorded telephone conversation: “Your father is trying to take you away from me.”

In November 2013, the trial court ordered a forensic evaluation. At the hearing, the trial court made the forensic psychiatrist’s written report part of the record. The psychiatrist ultimately recommended that A. W. stay with her mother, given the child’s stronger emotional bond with her mother, the importance of continuity, and the likely disruption if custody was changed. He noted, however, that the father was “better equipped to provide an emotionally secure . . . home” for A. W. and would be more likely to facilitate A. W.’s relationship with the other parent. The psychiatrist found “strong evidence” that the mother had not been fostering A. W.’s relationship with the father and “substantial evidence” that she had “displayed behaviors which disrupt a healthy attachment between father and daughter.”

According to the report:

These [behaviors] include arguing with [the father] during his attempted phone conversations with [A. W] and telling [A. W] that her father has not wanted a relationship with her. . . . Evidence [that the mother has used school, psychiatric, and other excuses to stop visitation] includes:
1) [The mother] calling 911 in May 2012, citing that [the father] was harassing her when he was in fact on a court-ordered visitation.
2) [The mother] accusing [the father] of not following court [-] ordered phone visitation and reprimanding him for calling other phones in the household, during his attempted conversations with [A. W.].
3) [The mother] refusing visitation after citing an emergency psychiatric appointment in December 2012, despite [the psychiatrist’s] records suggesting this was a routine visit and documenting that her presentation was actually improved.
4) [The mother] refusing summer visitation in June 2013, citing an educational scholarship.
5) [The mother] making allegations to Child Protective Services in June 2013, and again in September 2013, that were both unsubstantiated.
6) [The mother] asking to reschedule summer visitation in June 2014, citing required summer school.

At the hearing, the father testified that the mother generally did not communicate directly with him and that it was difficult to communicate with her. He believed that the mother had created a contentious environment, casting him as a “villain” or “enemy or that [he was] looking to take [A. W.] away from her mother.” The father complained that he had been unable to have scheduled telephone visitation with A. W. on at least two occasions because she was getting ready to meditate.

The mother testified that she and the father did not communicate with each other. She denied making any negative or critical remarks about the father to A. W.

The court found that the mother had demonstrated a pattern of parental alienation against the father and had engaged in a pattern of obstruction against him. The court concluded that a change of custody was appropriate, placing primary physical custody of A. W. with the father.

“A trial court faced with a petition for modification of child custody is charged with exercising its discretion to determine what is in the child’s best interest.”

Where . . . the trial court has exercised its discretion and awarded custody of children to one fit parent over the other fit parent, this [c]ourt will not interfere with that decision unless the evidence shows the trial court clearly abused its discretion. Where there is any evidence to support the decision of the trial court, this [c]ourt cannot say there was an abuse of discretion.

Under OCGA § 19-9-3 (a) (2), the best interest of the child is controlling as to custody changes. In considering the child’s best interest, the trial court

may consider any relevant factor including, but not limited to a list of seventeen factors, including subsection (a) (3) (N) — the willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interest of the child.

The trial court is not required to set forth every relevant factor upon which it relied, absent a party’s timely request that it do so.

The trial court appropriately considered evidence regarding the mother’s unwillingness or inability to facilitate A. W.’s relationship with her father. Although the mother argues that other factors, such as continuity in A. W.’s living situation, weighed in her favor, there is some evidence to support the trial court’s finding that a change in custody was in A. W.’s best interest. We thus find no abuse of discretion.

Judgment affirmed.

Dillard and Peterson, JJ., concur.

Decided October 14, 2016.

Jazmin Wilson, pro se.

Ricardo Bravo, Charles R. Sheppard, for appellee.

        Carr-MacArthur v. Carr, 296 Ga. 30, 31 (1) (764 SE2d 840) (2014) (citations and punctuation omitted).

        Roberts v. Kinsey, 308 Ga. App. 675, 678 (6) (708 SE2d 600) (2011) (citation omitted). See also Smith v. Pearce, 334 Ga. App. 84, 92 (3) (778 SE2d 248) (2015) (“We are mindful that the Solomonic task of making custody decisions lies squarely upon the shoulders of the judge who can see and hear the parties and their witnesses, observe their demeanor and attitudes, and assess their credibility. We will not disturb the superior court’s exercise of discretion if there is any evidence to support its decision.”) (citations and punctuation omitted).

        Neal v. Hibbard, 296 Ga. 882, 884 (1) (770 SE2d 600) (2015).

        Bankston v. Warbington, 332 Ga. App. 29, 33 (1) (771 SE2d 726) (2015) (punctuation omitted; emphasis in original).

        Curtice v. Harwell, 313 Ga. App. 263, 264 (1) (721 SE2d 200) (2011). See also Smith, supra at 92 (4) (“By the plain language of the statute, the list is suggestive only, and the superior court need not mechanically analyze every enumerated factor, regardless of its relevance.”) (citation omitted).

       See Bankston, supra at 33 (1).

       See id. at 30-31, 33-34 (1) (finding no abuse of discretion in custody modification where, inter alia, the mother had failed to give the father sufficient notice of her relocations, discouraged the child from making friends in her neighborhood, deprived the father of meaningful telephone contact, and discouraged the child from acknowledging her father in therapy sessions).


author: Branch, Judge.

text:
    A17A0038.
    WILLIAMS et al. v. MINERVA TAX RECEIVABLES, LLC et al.
    (792 SE2d 133)
   Branch, Judge.

Minerva Tax Receivables, LLC (“Minerva”), filed a quiet title action against Deborah Jean Richards Williams following a foreclosure sale. Williams filed counterclaims against Minerva and additional counterclaim-defendants. The trial court referred the matter to a special master, who issued a report finding that Minerva was entitled to the property and that Williams’s counterclaims were an impermissible collateral attack on the underlying foreclosure sale. Based upon the report, the trial court entered final judgment in favor of Minerva and vested it with fee simple title to the property free of Williams’s claims. The court ordered Minerva and Williams to pay $3,179.73 each in special master’s fees within 30 days. Williams appeals.

Minerva has moved to dismiss the appeal on the ground that Williams has not paid her portion of the special master’s fee. Under OCGA § 9-7-22 (c):

The fees of an auditor, as determined and fixed by the judge, shall be included in and made a part of the judgment of the court. The fees of the auditor shall be assessed as court costs and shall be paid prior to the filing of any appeal from the judgment....

In Davis v. Harpagon Co., 300 Ga. App. 644 (686 SE2d 259) (2009), we held that the term “auditor” in OCGA § 9-7-22 (c) includes a special master appointed in a quiet title action. Id. at 646 (1). Additionally, “the requirement to pay the assessed auditor fees before filing an appeal ‘is mandatory and jurisdictional.’ ” Id. (citing Sorrentino v. Boston Mut. Life Ins. Co., 206 Ga. App. 771, 772 (2) (426 SE2d 594) (1992)).

Williams concedes that she has not paid her portion of the special master’s fee. She argues, however, that the trial court should not have ordered her to pay the fee. She cites Davis v. Harpagon Co., 281 Ga. 250 (637 SE2d 1) (2006), an earlier interlocutory appeal in the Harpagon litigation, in which the Supreme Court ruled that the trial court lost jurisdiction to assess interim special master’s fees after a notice of appeal had been filed. Id. at 253 (8). That rule does not apply in this case, in which the trial court entered a final judgment including an assessment of special master’s fees before Williams filed her notice of appeal. Williams also argues that Minerva should be responsible for the entire special master’s fee because Minerva should have lost below on the merits. But Williams has no right to challenge the merits of the trial court’s ruling until she satisfies the jurisdictional requirements for a direct appeal, including paying her portion of the special master’s fee.

Decided October 14, 2016

The McKee Firm, Ira K. McKee, for appellants.

Clark Law Group, John C. Clark; Zimmerman & Associates, Barry L. Zimmerman, for appellees.

Because Williams has failed to satisfy this jurisdictional requirement, Minerva’s motion to dismiss is hereby granted, and this appeal is hereby dismissed for lack of jurisdiction. See Harpagon , 300 Ga. App. at 646 (1) (dismissing quiet title appeal because appellant “has yet to pay the special master’s fees”).

Appeal dismissed.

McFadden and Peterson, JJ., concur.


text:
    A15A0405.
    BARNES v. ROSEBURG FOREST PRODUCTS COMPANY et al.
    (792 SE2d 435)
   PHIPPS, Presiding Judge.

In Roseburg Forest Products Co. v. Barnes, the Supreme Court of Georgia reversed this court’s decision in Barnes u. Roseburg Forest Products Co. Accordingly, we vacate our earlier opinion, adopt the opinion of the Supreme Court as our own, and affirm the trial court’s judgment.

Judgment affirmed.

Doyle, C. J., and Boggs, J., concur.

Decided October 17, 2016.

Kermit S. Borough, Jr., for appellant.

Speed, Seta, Martin & Triuett, Eric L. Trivett, Danielle R. Taylor; Swift, Currie, McGhee & Hiers, Michael Rosetti, for appellees.

Georgia Legal Foundation, Dylan A. Bess, Todd K. Maziar, Pamela M. Orenstein, amici curiae.

       299 Ga. 167 (787 SE2d 232) (2016).

       333 Ga. App. 273 (775 SE2d 748) (2015).


author: PHIPPS, Presiding Judge. DILLARD, Judge,

text:
    A16A1199.
    BISNOTT v. NORFOLK SOUTHERN RAILWAY.
    (792 SE2d 436)
   PHIPPS, Presiding Judge.

After injuring his back at work, Delroy Bisnott sued his employer, Norfolk Southern Railway, for damages under the Federal Employers’ Liability Act (“FELA”) and the Federal Safety Appliance Act (“FSAA”). The trial court granted summary judgment to Norfolk Southern, and Bisnott appeals. For reasons that follow, we reverse.

Summary judgment is appropriate when no genuine issues of material fact remain and the moving party is entitled to judgment as a matter of law. We review the grant of summary judgment de novo, construing the evidence and all reasonable conclusions and inferences therefrom in the light most favorable to the nonmovant.

So viewed, the record shows that Norfolk Southern employed Bisnott as a train conductor. On January 23, 2008, Bisnott was working with an engineer and a brakeperson, preparing and coupling train cars for transport. The United States Supreme Court has described the coupling process as follows:

Railroad cars in a train are connected by couplers located at both ends of each car. A coupler consists of a knuckle joined to the end of a drawbar, which itself is fastened to a housing mechanism on the car. A knuckle is a clamp that interlocks with its mate, just as two cupped hands — placed palms together with the fingertips pointing in opposite directions — interlock when the fingers are curled. When cars come together, the open knuckle on one car engages a closed knuckle on the other car, automatically coupling the cars.

Although the process anticipates automatic coupling, some manual involvement by railroad employees may be necessary The Supreme Court explained:

The drawbar extends the knuckle out from the end of the car and is designed to pivot in its housing, allowing the knuckled end some lateral play to prevent moving cars from derailing on a curved track. As a consequence of this lateral movement, drawbars may remain off center when cars are uncoupled. This misalignment, if not corrected, may prevent cars from coupling by allowing the knuckles to pass by each other. To ensure proper coupling, railroad employees must realign drawbars manually.

As the conductor, Bisnott oversaw the coupling on January 23, 2008, and several train cars were coupled without incident. He then noticed a misaligned drawbar on a car that needed to be coupled. Like allNorfolk Southern conductors, Bisnott hadbeentrainedto straighten a misaligned drawbar manually using the “backup method,” in which the employee “plac[es] his back against [the drawbar] and use[s] his lower body to move it into place.” The railroad instructed employees not to overexert themselves while aligning a drawbar. Bisnott’s supervisor testified: “If an employee cannot move a drawbar using reasonable effort, then the employee is required to seek assistance from a fellow employee.”

Bisnott described his initial effort to move the drawbar as follows:

I went over — same thing that we were taught to do — and got my back behind it. One arm on one side of the knuckle, the other one on the draw [bar]. And using your legs for leverage, pushed on it and pushed up and pushed at the same time with your back against it to try to get it moved. So you’re trying to kind of lift up on it a little bit and push at the same time. And I did that at first, and it didn’t move.

When the drawbar failed to move, Bisnott considered asking Julia Wise, the crew’s brakeperson, to help him. But, he asserted: “[S]he’s a female. And I’ll say she didn’t look like she was a person to be lifting a draw [bar] knuckle. . . . And so I went back and tried to exert a little more pressure to see if I could get it moved again.” As he applied additional pressure, he felt pain in his lower back. Although Bisnott finished moving the drawbar, coupled the car, and completed his other tasks, he was in excruciating pain by the end of the day.

Bisnott told his supervisor about the injury and completed an incident report. Following the incident report, a Norfolk Southern mechanic inspected the train car and coupler at issue. The mechanic found that the coupler mechanism, including the drawbar, was in good condition with “no defects,” and he was able to move the drawbar easily using the backup method.

Bisnott sued Norfolk Southern under the FELA and the FSAA, alleging that the drawbar was defective and the workplace was unsafe, causing him injury and resulting damages. The trial court granted summary judgment to Norfolk Southern on both claims. This appeal followed.

1. FELA “is a federal statute that gives a railroad employee the right to sue his employer in state or federal court for injury or death resulting in whole or in part from the railroad company’s negligence.” A railroad has a duty under FELA “to use reasonable care in furnishing its employees with a safe place to work.” To prevail on a FELA claim, a railroad employee must prove the common law elements of negligence — duty, breach, foreseeability, and causation.

Norfolk Southern did not question below that it owed a duty to Bisnott. It instead argued — and the trial court found — that Bisnott had not satisfied the remaining FELA elements as a matter of law. We disagree.

(a) Breach of duty. A FELA claimant establishes breach “by demonstrating that the railroad failed to observe that degree of care which people of ordinary prudence and sagacity would use under the same or similar circumstances.” Bisnott asserted that Norfolk Southern breached its duty of care by failing to provide a properly working, nondefective drawbar. He offered expert testimony that a coupler mechanism’s drawbar “should easily and smoothly move laterally” with human force. His expert further asserted that “[a] coupler which fails to easily and smoothly move laterally upon application of appropriate and reasonable human force does not perform its intended function[,] ... is defective[,] . . . and is a hazard to transportation employees.” Moreover, Bisnott testified that he was injured while using “appropriate” force to move the drawbar. Such testimony raised material questions of fact as to defect and breach.

Bisnott also alleged that Norfolk Southern did not give him adequate tools to safely straighten the drawbar. In support, Bisnott presented evidence that alternative tools/methods for realigning a drawbar were available in the industry and at certain Norfolk Southern train yards, but not offered to him. Unlike the backup method, at least one of these alternatives allowed an employee to realign a drawbar without placing stress on the employee’s back. This evidence created a jury question regarding the reasonableness of the backup method — the procedure Norfolk Southern required Bisnott to use for drawbar realignment.

(b) Foreseeability. “A plaintiff suing under FELA must also establish the reasonable foreseeability of harm.” Even if a defective condition exists, therefore, it will not result in liability unless the railroad has some knowledge — either actual or constructive — of the defect.

Norfolk Southern argued below that it lacked knowledge of any defect in the drawbar, precluding a foreseeability finding. Bisnott, however, offered expert evidence that lubrication is necessary for a drawbar to function properly. Moreover, the mechanic who inspected the coupler after Bisnott’s injury testified that the drawbar was not lubricated, explaining that “you’re not supposed to lubricate [it]” and that, to his knowledge, Norfolk Southern had stopped lubricating coupler mechanisms.

We recognize that the mechanic later amended this testimony, asserting that a photograph of the railcar shows that “there was lubricant on the drawbar.” But the record does not establish when the referenced photograph was taken. And even if the photograph revealed the coupler’s condition at the relevant time, it does not unequivocally demonstrate that the drawbar was lubricated. Rather than resolving the foreseeability issue, the mechanic’s contradictory testimony raised jury questions regarding the existence of lubrication, whether the drawbar was able to perform as intended, and Norfolk Southern’s knowledge of the alleged defect. Furthermore, Norfolk Southern knew about alternatives to the backup method for drawbar realignment, including an alternative that placed no strain on employees’ backs. Foreseeability, therefore, was a jury issue.

(c) Causation. FELA’s causation requirement is “extremely relaxed.” A claimant survives summary judgment by “producing evidence from which the jury could justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought.” Despite this relaxed standard, Norfolk Southern argues that it was entitled to judgment as a matter of law because Bisnott proximately caused his own injuries. The railroad claims that Bisnott should have asked another crew member for help moving the drawbar when he was unable to realign it on his first attempt. According to the railroad, Bisnott violated Norfolk Southern’s instructions regarding the backup method, thereby injuring himself.

The evidence shows that Norfolk Southern instructed employees (1) to use only reasonable effort when aligning a drawbar, (2) not to overexert themselves, and (3) to seek assistance if more than reasonable effort was needed. Without dispute, Bisnott did not request assistance after he initially failed to move the drawbar, choosing instead to try to realign it a second time. He testified, however, that he used appropriate effort in this second attempt, force that he did not believe would result in injury. Construed favorably to Bisnott, Norfolk Southern’s instructions did not forbid a second attempt. They only prohibited Bisnott from overexerting himself. And Bisnott asserted that he used appropriate force in both his first and second realignment efforts.

Given Bisnott’s testimony, material questions of fact exist as to his compliance with the backup method. These questions, as well as jury issues regarding the alleged defect, Norfolk Southern’s knowledge of the defect, and the reasonableness of the backup method, precluded summary judgment on the FELA claim.

2. Pursuant to the FSAA, railroad cars must be equipped with automatic couplers that allow cars to “couple on impact.” The statute “creates an absolute duty requiring not only that automatic couplers be present, but also that they actually perform.” A railroad is liable for employee injuries caused by a violation of the FSAA. To recover under this strict liability framework, a claimant “need only show (1) the statute was violated; and (2) [he] suffered injuries resulting in whole or in part from the defective equipment.”

Bisnott asserted that Norfolk Southern violated the FSAA because the drawbar he tried to straighten was defective, failed to align as required, and did not function as intended. The trial court rejected this claim on summary judgment, finding no record evidence that the coupler mechanism was defective or unsafe. As noted above, however, Bisnott presented expert testimony that part of the coupler mechanism — specifically, the drawbar — did not perform as intended and was defective. Material questions of fact regarding defect, therefore, remain for the jury.

Relying on the United States Supreme Court’s opinion in Norfolk & Western R. Co. v. Hiles, Norfolk Southern argues that summary judgment nevertheless was appropriate because employees who suffer injury while preparing a train car for coupling have no claim under the FSAA. We disagree. In Hiles, the Supreme Court rejected an employee’s argument “that a misaligned drawbar, by itself, is a violation of the [F] SAA.” In doing so, it refused to find that “a misaligned drawbar is, as a matter of law, a malfunctioning draw-bar.” But it did not preclude a claim involving a defective or malfunctioning drawbar. And nothing in Hues’s language suggests that injuries sustained while taking steps required for automatic coupling necessarily fall outside of the FSAA.

Bisnott testified that the drawbar was substantially misaligned “all the way in the corner” and needed to be re-positioned for coupling. His expert also testified that drawbars must align for train cars to couple automatically upon impact. Although Bisnott eventually realigned the drawbar and successfully coupled the car, at least some evidence indicated that he was injured when the drawbar malfunctioned. Under these circumstances, a jury must determine whether the coupling mechanism performed as required by the FSAA. The trial court, therefore, erred in granting Norfolk Southern summary judgment on this claim.

Judgment reversed.

Peterson, J., concurs. Dillard, J., concurs in judgment only.

Decided October 17, 2016

Harrell & Harrell, James R. Holland III; Creed & Gowdy, Jessie L. Harrell, for appellant.

Hall, Bloch, Garland & Meyer, J. Steven Stewart, Walker S. Stewart, for appellee.

DILLARD, Judge,

concurring in judgment only.

I concur in judgment only because I do not agree with all that is said in the majority opinion. As such, the majority’s opinion decides only the issues presented in the case sub judice and may not be cited as binding precedent. See Court of Appeals Rule 33 (a).

       45 USC § 51 et seq.

       49 USC § 20301 et seq.

       Norfolk Southern has moved for permission to file a supplemental brief, attaching its proposed supplemental brief to the motion. In resolving this appeal, we revie wed the proposed brief and found the arguments unavailing. Accordingly, Norfolk Southern’s motion to file is denied.

        Norfolk Southern R. Co. v. Zeagler, 293 Ga. 582, 583 (1) (a) (748 SE2d 846) (2013).

       Id.

        Norfolk & Western R. Co. v. Hiles, 516 U. S. 400, 401-402 (I) (116 SCt 890, 134 LE2d 34) (1996).

       Id. at 402 (I).

        Zeagler, supra at 586 (2) (citation and punctuation omitted).

       Id. at 587 (2) (a) (citation and punctuation omitted).

       Id. at 586 (2).

       Id. at 593 (2) (c) (citation and punctuation omitted).

       See id. (“Proving breach ... requires the plaintiff to produce evidence that (1) establishes what precautions ordinary care required in the circumstances presented by his case and (2) demonstrates that the defendant did not take such reasonable precautions.”).

       See Rodriguez v. Delray Connecting R., 473 F2d 819, 821 (6th Cir. 1973) (“Generally a railroad’s responsibility in this regard is to provide tools that are reasonably safe and suitable for the use of the employee. What is ‘reasonably’ safe is affected to some extent by the alternatives.”) (citation omitted); Gorman v. Grand Trunk Western R., 2009 U.S. Dist. LEXIS 69562, at *17-18 (II) (A) (E.D. Mich. 2009) (“[W]hether any given arrangement is reasonably safe cannot be determined ... without any consideration of possible alternative arrangements. Instead, whether the conditions of a workplace are reasonably safe depends on a comparison of the marginal benefits and costs of an available safer alternative.”); Edsall v. CSX Transp., 2007 U.S. Dist. LEXIS 94900, at *10-11 (N.D. Ind. 2007) (“[EJvidence of alternative methods can be helpful in determining whether a reasonable and prudent railroad would have required use of the method that injured its employee.”); Gallagher v. BNSF R. Co., 829 NW2d 85, 93 (II) (B) (i) (Minn. App. 2013) (leaving for jury question of whether railroad breached its duty of care under FELA by “failing to make available to its employees certain assistive devices, and by failing to train its employees in the use of such devices”); Rice v. BNSF R. Co., 346 SW3d 360, 369, n. 8 (Mo. App. 2011) (“If there are two different methods of work or pieces of equipment that could be used to perform a task and an employee is injured performing the task by the method or equipment selected by the railroad, then the issue of whether the alternative method or equipment should have been used is normally one for the jury.”).

        Zeagler, supra at 592 (2) (b) (citation and punctuation omitted).

       See Georgia Southern & Florida R. Co. v. Peters, 284 Ga. App. 139, 145 (2) (643 SE2d 786) (2007) (“[A]n employer is not liable [under FELA] if it has no reasonable way of knowing that a potential hazard exists.”) (citation and punctuation omitted).

       Compare Farmer v. Wheeler/Kolb Mgmt. Co., 224 Ga. App. 834, 835 (482 SE2d 475) (1997) (“[BJlack and white photograph contained in the appellate record clearly show[ed] that the concrete bumper [on which plaintiff tripped] and the asphalt parking lot [were] made of sharply contrasting materials.”); Cowan v. Waffle House, 217 Ga. App. 273, 274 (456 SE2d 762) (1995) (photographs showed that allegedly hazardous condition in parking lot was clearly visible).

        See Zielinski v. Clorox Co., 215 Ga.App. 97, 100 (3) (a) (450 SE2d 222) (1994) (“The truth of the sworn affidavit is a question of fact for the jury, and any inconsistent statement or other evidence going to its verity may be considered by the jury to determine its truth and weight. Such inconsistencies are construed favorably to a respondent to a motion for summary judgment and where there is an apparent inconsistency in any person’s testimony and statements, the matter should be submitted to the jury.”).

        Zeagler, supra at 594 (2) (d).

       Id. (citation and punctuation omitted; emphasis in original).

        See Phelps v. CSX Transp., 280 Ga.App. 330, 334 (634 SE2d 112) (2006) (When adopting FELA, Congress “was particularly concerned that the issues of whether there was employer fault and whether that fault played any part in the injury or death of the employee should be decided by the jury whenever fair-minded men could reach these conclusions on the evidence.”) (citation and punctuation omitted); Cook v. Seaboard System R., 184 Ga.App. 838, 840 (2) (363 SE2d 56) (1987) (same).

        Hiles, supra at 408 (II) (B). See also 49 USC § 20302 (a) (1) (A).

        Hiles, supra at 408-409 (II) (B) (citations omitted).

       Id. at 408 (II) (B).

        Richards v. Consolidated Rail Corp., 330 F3d 428, 432 (II) (6th Cir. 2003) (citation and punctuation omitted).

       See id. at 432 (II) (A) (defect under FSAA “may be established by showing a failure to function, when operated with due care, in the normal, natural, and usual manner”).

       Supra.

       Id. at 412 (III). In Hiles, the claimant did not allege or attempt to prove that the drawbar at issue was defective. Id. at 409 (III), n. 12.

       Id. at 412 (III).

       See id. at 409 (III) (“[T]he failure of equipment to perform as required is sufficient to create [F] SAA liability.”) (citation omitted).

       See, e.g., id. at 410 (III), n. 14 (noting that, “at least in this case, the absence of a failed coupling attempt is of no consequence”).

       See Richards, supra (“If the plaintiff establishes that the [safety appliance governed by the FSAA] functioned inefficiently at the relevant time, it is irrelevant that the appliance worked efficiently both before and after the occasion.”) (citing Myers v. Reading Co., 331 U. S. 477 (67 SCt 1334, 91 LE 1615) (1947)); George v. Burlington Northern R. Co., 1994 U. S. Dist. LEXIS 13497, at *11-16 (C) (N.D. Ill. 1994) (railroad employee was injured while realigning drawbar that was unusually difficult to move; although employee eventually succeeded in coupling cars, questions of fact remained as to whether defect existed in coupling mechanism).