author: ANDREWS, Presiding Judge.

text:
    A12A1933.
    DOUGLAS ASPHALT COMPANY et al. v. LINNENKOHL et al.
    (741 SE2d 169)
   ANDREWS, Presiding Judge.

Douglas Asphalt Company appeals after the trial court granted summary judgment to Harold Linnenkohl based on OCGA § 50-21-25 (a) which grants immunity to State employees for acts within the scope of their employment. For reasons that follow, we affirm.

The record shows that the Georgia Department of Transportation (DOT) hired Douglas Asphalt to do asphalt paving work on certain highways in the state. It was determined in testing done by Applied Technical Services (ATS) that there were lime deficiencies in the asphalt on portions of the 1-95 and 1-75 projects worked on by Douglas Asphalt. Douglas Asphalt was declared in default on the projects, and subsequently filed suits in state court and federal court against the DOT and ATS. In the federal suit, filed against QORE, an engineering and materials testing company, ATS, and several individual Georgia DOT officials, Douglas Asphalt claimed:

[N]one of the tests that QORE or ATS performed was capable of accurately quantifying the amount of hydrated lime in the asphalt samples; it also alleged that QORE, ATS, and the named GDOT officials were all aware of this before the completion of those tests. Douglas asserted that by performing what it called fraudulent tests and enabling GDOT to rely upon them to declare it in default on both projects, the defendants had violated the federal Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-1968. The complaint also contained state-law claims for negligent misrepresentation, fraud, and defamation against QORE and ATS.

Douglas Asphalt Co. v. QORE, 657 F3d 1146, 1150 (11th Cir. 2011).

In the case before us, Douglas Asphalt claims that Linnenkohl stated while he was commissioner of the DOT that the atomic absorption test used by ATS was reliable; but in 2009, Linnenkohl testified in the federal suit that he never considered the atomic absorption tests to be reliable and that he did not rely on the absorption tests. Douglas Asphalt claims this was negligence, contending that Linnenkohl owed a duty to Douglas Asphalt not to employ flawed tests as a basis for placing it in default. Douglas Asphalt is also claiming fraud and deceit, contending that Linnenkohl misrepresented that the atomic absorption tests were valid.

Linnenkohl filed a motion to dismiss, stating that he was employed by the DOT for 39 years and served as commissioner of the DOT during the time that the actions complained of were taken and that all actions complained of were within the scope of his official duties. A hearing was set for March 30, 2011, on the motion to dismiss, converted by the trial court into a motion for summary judgment. Douglas Asphalt sent a notice for a video conference deposition of Linnenkohl for March 28, 2011. Linnenkohl filed a motion for a protective order, arguing that the trial court gave the parties 30 days from November 5,2010, to present all materials pertinent to a motion for summary judgment; therefore, the notice of deposition was untimely because the first request for deposition was filed outside the 30-day period. Linnenkohl also stated that the deposition was unnecessary because the plaintiffs had already taken two depositions and cross-examined him at trial on this same subject in the federal case.

After the hearing, the trial court gave Douglas Asphalt the opportunity to set out the matters that it intended to bring up at the deposition. The trial court subsequently granted the motion for summary judgment based on immunity, and this appeal followed.

1. In its first enumeration of error, Douglas Asphalt contends that the trial court erred in granting summary judgment without allowing further discovery that would show that Linnenkohl’s tortious activity occurred when he was no longer acting as a State employee. OCGA § 9-11-26 (c) provides:

Upon motion by a party or by the person from whom discovery is sought and for good cause shown, the court in which the action is pending or, alternatively, on matters relating to a deposition, the court in the county where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. . . .

“The grant or denial of a motion for protective order generally lies within the sound discretion of the trial court. We therefore will not reverse absent an abuse of that discretion. The trial court is in the best position to make determinations on these issues, and we will not overrule its judgment if there is any reasonable evidence to support it.” (Citations and punctuation omitted.) Anderson v. Mergenhagen, 283 Ga. App. 546, 548 (642 SE2d 105) (2007).

Douglas Asphalt informed the court that it wanted to ask Linnenkohl about any efforts made to review DOT records before testifying in federal court in September 2009; the date of his retirement from DOT; conversations or correspondence between Linnenkohl and DOT after his retirement; and conversations or correspondence between Linnenkohl and counsel for the testing company after his retirement. On appeal, Douglas Asphalt does not argue specifically what this further questioning of Linnenkohl could have revealed beyond what was already covered in its previous depositions and cross-examination in the federal case; nor does it give any reason for the untimely notice of deposition. Counsel for Douglas Asphalt stated at the hearing that he did “not have an answer of why we did not address this earlier.” Accordingly, we conclude there was no abuse of discretion in the trial court’s grant of DOT’s motion for protective order. See Anderson, supra; Exxon Corp. v. Thomason, 269 Ga. 761, 763 (504 SE2d 676) (1998) (“It is well settled that the conduct of discovery is within a trial court’s broad discretion.”).

2. Douglas Asphalt also enumerates as error the trial court’s grant of summary judgment to Linnenkohl under OCGA § 50-21-25. It once again reiterates that it was not permitted discovery to show that acts taken after Linnenkohl retired were not protected by sovereign immunity but fails to support the claim that Linnenkohl was not entitled to sovereign immunity with any argument or citation to authority or facts in support of this enumeration beyond a sentence stating that “[e]ven with the limited evidence Appellants were able to put forth, consideration of the facts in the light most favorable to the Appellants does not support a legal conclusion that sovereign immunity applied.”

“We review de novo a trial court’s ruling on a motion to dismiss based on sovereign immunity grounds, which is a matter of law. Factual findings are sustained if there is evidence supporting them, and the burden of proof is on the party seeking the waiver of immunity.” (Citations and punctuation omitted.) Ga. Dept. of Transp. v. Smith, 314 Ga. App. 412, 413 (724 SE2d 430) (2012).

OCGA § 50-21-25 (a) provides:

This article constitutes the exclusive remedy for any tort committed by a state officer or employee. A state officer or employee who commits a tort while acting within the scope of his or her official duties or employment is not subject to lawsuit or liability therefor. However, nothing in this article shall be construed to give a state officer or employee immunity from suit and liability if it is proved that the officer’s or employee’s conduct was not within the scope of his or her official duties or employment.

OCGA § 50-21-21 (b) provides in pertinent part:

. . . [T]he proper functioning of state government requires that state officers and employees be free to act and to make decisions, in good faith, without fear of thereby exposing themselves to lawsuits and without fear of the loss of their personal assets. Consequently, it is declared to be the public policy of this state that state officers and employees shall not be subject to lawsuit or liability arising from the performance or nonperformance of their official duties or functions.

Here, in the complaint and at the hearing, the claims of negligence and fraud concerned allegations that Linnenkohl lied while he was commissioner of the DOT and as a result Douglas Asphalt was defaulted on its contracts. Further, the record shows that Linnenkohi’s deposition testimony in the federal case was taken on May 27, 2007, when he was still DOT commissioner. His testimony at trial was on September 30, 2009, based upon actions taken while he was commissioner. Accordingly, the trial court properly granted summary judgment to Linnenkohl based upon his immunity for acts taken within the scope of his official duties.

Decided March 15, 2013.

Savage, Turner, Pinson & Karsman, Brent J. Savage, Sherri N. Watts, Kenneth E. Futch, Jr., for appellants.

Samuel S. Olens, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Loretta L. Pinkston, Senior Assistant Attorney General, Joan G. Crumpler, Assistant Attorney General, for appellee.

Judgment affirmed.

Doyle, P. J., and Phipps, P. J., concur.


source: Caselaw Access Project

author: BARNES, Presiding Judge.

license: Public Domain

text:
    A12A2099.
    GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY v. WILLOUGHBY.
    (741 SE2d 172)
   BARNES, Presiding Judge.

We granted the application of Georgia Farm Bureau Mutual Insurance Company (“GFB”) for interlocutory appeal to consider the trial court’s treatment of our decision in Geiger v. Ga. Farm Bureau Mut. Ins. Co., 305 Ga. App. 399 (699 SE2d 571) (2010). The facts are set forth in that opinion and will not be restated here. GFB contends the trial court erred by failing to apply the holdings in the first decision. We agree and reverse.

1. In Geiger, we reversed the trial court’s grant of summary judgment on Jimmy Willoughby’s claims against GFB and held that questions of fact remained “as to whether Willoughby was a member of the [named insureds’] household and, thus, whether he was an insured to whom GFB had a duty to defend.” 305 Ga. App. at 400. We further held that, because a factual question exists, the trial court erred in finding that GFB had no duty to defend Willoughby. In the final division we concluded, “Based on our holding in Division 1, we do not address the Appellants’ remaining enumerations with regard to Willoughby’s claims against GFB.” Id. at 404 (3).

Nevertheless, in subsequent proceedings, the trial court found that “the issue of the insured status of Willoughby was not an appropriate issue to be considered by the jury, particularly as a predicate for the prosecution of [Willoughby’s] tort action.” Instead, the trial court held, Willoughby’s claim for coverage made him a “quasi-insured” and created a “special or fiduciary relationship” that required GFB to afford him some degree of protection from harm while it resolved the coverage issue.

The trial court then found that GFB had breached this special fiduciary duty to protect Willoughby, and that this breach caused him harm because it resulted in a default judgment against him. Having found the existence of a fiduciary relationship and a breach of that duty, the court concluded that the only jury issues were whether Willoughby sustained special damages as a result of the breach, the amounts of those damages, and if so, whether he was entitled to punitive damages and attorney fees.

GFB argues on appeal that the trial court committed reversible error by (1) not allowing a jury to determine whether Willoughby was a member of the named insureds’ household, and thus an insured to whom GFB owed a duty to defend; (2) holding that a fiduciary relationship arose as a matter of law when someone who is not a named insured makes a claim for coverage; and (3) allowing Willoughby to pursue tort and punitive damages based on GFB’s failure to defend but prohibiting it from raising lack of coverage as a defense.

2. GFB contends the trial court erred in concluding that the jury should not consider whether Willoughby was an insured under the insurance policy issued to the Geigers. We agree. Absent a change in the evidentiary posture, the rulings of this court are binding on the trial court in all subsequent proceedings in this case and may not be disregarded. OCGA § 9-11-60 (h). “The decision and direction [of the appellate court’s opinion] shall be respected and carried into full effect in good faith by the court below.” OCGA § 5-6-10; Security Life Ins. Co. v. Clark, 273 Ga. 44, 46 (1) (535 SE2d 234) (2000); Eastgate Assoc. v. Piggly-Wiggly Southern, 200 Ga. App. 872 (1) (410 SE2d 129) (1991).

Willoughby argues that the evidentiary posture of this case has changed and that GFB waived its right to claim he was not insured by settling with the injured party in exchange for a complete release from the $1.2 million judgment. While GFB’s petition for certiorari to the Supreme Court of Georgia from the decision in Geiger was pending, Willoughby’s attorneys filed a declaratory judgment action against GFB, basically seeking to ensure that their attorney lien in the Geiger case attached to any payment GFB made to the injured party in the underlying premises liability suit, which ultimately resulted in a second appeal to this court in McRae, Stegall, Peek, Harman, Smith & Manning v. Ga. Farm Bureau Mut. Ins. Co., 316 Ga. App. 526 (729 SE2d 649) (2012). They also sought a declaration that satisfaction of the underlying suit would not extinguish Willoughby’s claims for relief against GFB, that those claims “arose” when his assets were exposed to liability for the default judgment, and that his damages were at least $1.2 million plus interest, subject to credit for sums GFB might pay to satisfy the judgment in the underlying suit. Id. at 527-528.

While the declaratory judgment action was pending in the trial court and GFB’s petition for certiorari was still pending in the Geiger case, GFB paid $690,000 directly to the estate of the injured plaintiff who had obtained the $1.2 million default judgment against him without notifying Willoughby. McRae Stegall, 316 Ga. App. at 528. In exchange, the estate filed with the trial court in the underlying premises liability case “a full and final satisfaction ‘of the entire Judgment, specifically including but not limited to all costs, pre- and post-judgment interest, and attorney[ ] fees.’ ” Id. The estate also released any other claims it might have against GFB. Id.

In a subsequent evidentiary hearing in the McRae Stegall case, GFB explained that it made the payment based on “a ‘calculated business decision’ to mitigate damages in the event that a jury in the [Geiger] case determined that Willoughby was an insured under the Geiger policy and that GFB had therefore breached its duty to defend him in the [premises liability] case.” 316 Ga. App. at 528. The trial court dismissed the declaratory judgment action, concluding that the issues were the same as those raised in Geiger and that the rights of the parties had already accrued, thus presenting no justiciable controversy under the Declaratory Judgment Act. Id. at 531. This court affirmed but remanded for the entry of an order dismissing the claim without prejudice. Id.

We disagree that GFB’s settlement of the underlying judgment constitutes a waiver of any defenses to liability in this suit. Paying off the injured party’s estate was not an admission of liability. The question of whether Willoughby was a member of the Geigers’ household and therefore insured remains, as do the questions of negligence and fraud related to GFB’s investigation of coverage and failure to inform Willoughby that it was not going to defend the suit. We do not address whether or to what extent the settlement affects Willoughby’s claims for damages, as that question is not before us.

Thus, because the substantive evidentiary posture of this case remains essentially unchanged, the trial court’s determination that the jury should not consider whether Willoughby was a covered insured contradicts this court’s previous ruling and directive, and is therefore reversed.

3. GFB argues that the trial court erred in ruling that Willoughby’s claim to coverage created a fiduciary relationship between him and GFB as a “quasi-insured.” We agree that the trial court erred in finding as a matter of law that Willoughby had a justiciable claim of insured status because GFB could not unambiguously exclude coverage under the policy, citing Penn-America Ins. Co. v. Disabled American Veterans, 224 Ga. App. 557, 559 (481 SE2d 850) (1997). The contract in Penn-America, however, included the standard provision that the insurer will defend even “groundless, false or fraudulent” suits, and the insurer thus had a duty to “defend [even groundless] claims asserting liability under the policy.” Id. at 558-559. GFB’s policy contains no such provision, and the trial court erred in concluding as a matter of law that GFB had a special relationship with Willoughby and that Willoughby suffered harm based on GFB’s failure to protect his interest in the underlying personal injury suit.

4. Finally, GFB contends that the trial court erred in holding that Willoughby could pursue tort damages, asserting that this court previously determined that his claims are limited to breach of contract. In making this argument, GFB quotes from Division 2 of Geiger, in which we affirmed the trial court’s dismissal of all of the Geigers’ claims against GFB, finding that they suffered no damages as a result of GFB’s failure to defend Willoughby. Geiger, 305 Ga. App. at 403 (2). We noted in that Division that “mere failure to perform a contract does not constitute a tort,” and determined that all the duties that the Geigers claimed were breached by GFB arose directly from the insurance policy. Id. Absent a contractual duty, we concluded, GFB breached no independent duty. Id. Based on this language, GFB contends that this court “expressly declined to reverse the trial court’s grant of summary judgment on Willoughby’s other claims.”

To the contrary, however, in Division 1 of Geiger, we simply found questions of fact regarding Willoughby’s status as an insured, held that the trial court erred in finding that GFB had no duty to defend him, and reversed the trial court’s grant of summary judgment to GFB “as to Willoughby’s claims,” plural. Geiger, 305 Ga. App. at 403 (1) (d). In other words, all of Willoughby’s claims were reinstated. In Division 3, we said, “Based on our holding in Division 1, we do not address the Appellants’ remaining enumerations with regard to Willoughby’s claims against GFB.” Id. at 404 (3). We did not address the merits of those claims, much less decide them against Willoughby, but remanded the case to the trial court for further proceedings. Id. at 404 (3). Further, in McRae Stegall, we described this action as “Willoughby’s tort claim against GFB for failure to defend him” and as “a tort action against GFB for money damages for the alleged breach of GFB’s duty to defend Willoughby[.]” (Emphasis supplied.) 316 Ga. App. at 527, 529. Willoughby’s tort claims are not foreclosed by this court’s previous opinion. It follows, of course, that the trial court also erred in prohibiting GFB from arguing that it was not liable for damages in tort because Willoughby was not covered under the policy.

Decided March 15, 2013.

Brinson, Askew, Berry, Seigler, Richardson & Davis, Mark M. J. Webb, James, Bates, Brannan & Groover, Duke R. Groover, for appellant.

McRae, Stegall, Peek, Harman, Smith & Manning, Julius W. Peek, Jr., Jackson B. Harris, for appellee.

This case is not a simple insurance coverage case. GFB did not simply decline to defend Willoughby because it made a good-faith determination that he was not insured. The record contains evidence that GFB investigated the injury claim for a year and declined to pay because it determined that the injury was caused solely by the injured person’s negligence. When the injured party sued Willoughby, the company first said it was not going to defend the case, which prompted Willoughby to contact a private attorney. Then GFB changed its mind and said it would defend the suit, and Willoughby relied on that representation to cancel his appointment with an attorney. GFB then changed its mind again, without investigating the circumstances of Willoughby’s residency or notifying him, and decided not only that he was not covered, but that it was not going to answer the suit. Considering these disputed facts, in addition to the insurance coverage issue, factual issues exist relating to GFB’s promise and failure to defend him, which Willoughby contends caused the personal injury suit to go into default and led to the very large uncontested damages award. The injured plaintiff recorded a fi. fa. and began post-judgment discovery, forcing Willoughby to hire counsel to try to preserve his present and future assets. Even now, more than four years post-judgment, Willoughby is still battling with GFB, which now contends that, because it paid off the underlying judgment, Willoughby has no valid claims against it.

The trial court’s pretrial order establishing the issues for trial is reversed, and the case is remanded for further proceedings in accordance with this decision.

Judgment reversed.

Ellington, C. J., and Phipps, P. J., concur.


author: Ellington, Chief Judge.

text:
    A12A2496.
    OLAGBEGI et al. v. HUTTO.
    (740 SE2d 190)
   Ellington, Chief Judge.

The defendants/appellants, Martin Olagbegi and Nile, Inc. (collectively, “Olagbegi”), appeal from the trial court’s award of damages to the plaintiff/appellee, Daniel Hutto, in this breach of contract case. Olagbegi contends that the trial court abused its discretion in permitting Hutto’s attorney to represent him at trial and erred in awarding Hutto $67,749.55 in consequential damages. For the following reasons, we affirm the court’s judgment in part and reverse in part.

1. Olagbegi contends that the trial court abused its discretion in permitting an attorney, who is admitted to practice law in South Carolina but not in Georgia, to appear pro hac vice and be the sole attorney for Hutto at trial. In support of this contention, Olagbegi argues that the attorney failed to submit a complete, verified application to appear pro hac vice and timely pay a required filing fee and that, because the application was incomplete, the attorney could not represent Hutto at trial without being accompanied by an active member of the State Bar of Georgia.

The record shows that, on March 2, 2012, Hutto’s attorney filed an application to appear pro hac vice in the trial court after serving Olagbegi’s attorney and the State Bar of Georgia with the application. Neither Olagbegi nor his attorney objected to the attorney’s application before trial. See USCR 4.4 (D) (2) (a party may file an objection to the application or seek the court’s imposition of conditions to its being granted); see also footnote 3, infra. At the beginning of the bench trial on March 7, Olagbegi’s attorney made the following statement:

[A] pro hac vice motion . . . was filed sometime around February 29th, and the certificate of service was signed by [Hutto] and not the lawyer. As far as my certification [of service] is concerned[,] the only two people that were served at all is myself and somebody... from [Walton] County. The Bar is not served on my certificate of service and... the local attorney... did not submit written notice of appearance and that is all I want to get on the record.

(Emphasis supplied.) Without directly responding to this purported objection, the trial court judge said, “All right, [Hutto’s attorney] may proceed on behalf of the plaintiff.” Neither Olagbegi nor his attorney asked for the judge to expressly rule on the objection, objected to proceeding with the trial without further discussion on the issue of the opposing attorney’s appearance pro hac vice, proffered a factual basis for the objection for the record, or made any further statement about the matter during the trial.

Given these circumstances, we conclude that Olagbegi failed to pose timely and specific objections to the alleged errors in the trial court and, thus, waived his right to appellate review of those issues. “[Objections must be specific such that the objecting party must advise the trial court as to what action it wants taken.” (Citation omitted.) Old Stone Co. I v. Hughes, 284 Ga. 259, 261 (2) (663 SE2d 687) (2008). If the trial court does not take the requested action or otherwise resolve the issue to the objecting party’s satisfaction, the party must “stand his ground and fight in order to successfully enumerate as error an alleged erroneous ruling by the trial judge.” (Citation and punctuation omitted.) Id. It is axiomatic that a “litigant cannot submit to a ruling, acquiesce in the ruling, and still complain of same” on appeal. (Citation and punctuation omitted.) Id. at 262 (3). Moreover, “[i]t is the duty of counsel to obtain a ruling on his motions or objections, and the failure to do so will ordinarily result in a waiver.” (Punctuation and footnote omitted.) Pep Boys — Manny, Moe & Jack v. Yahyapour, 279 Ga. App. 674 (2) (632 SE2d 385) (2006).

As shown in the brief statement quoted above, Olagbegi failed to raise any objection before or during trial to the substance or form of the attorney’s application to appear pro hac vice, nor did he ask the trial court to deny the attorney’s application as a consequence. Further, although he mentioned in passing that a “local attorney” had failed to submit a notice of appearance in this case, he did not articulate why that fact was significant, object to proceeding with the trial, or ask the trial court to take any action to address this alleged problem. Accordingly, these allegations of error were waived. Old Stone Co. I v. Hughes, 284 Ga. at 261-262 (2); Pep Boys — Manny, Moe & Jack v. Yahyapour, 279 Ga. App. at 674 (2); see Horan v. Pirkle, 197 Ga. App. 151, 151-153 (1) (397 SE2d 734) (1990) (During a colloquy with the court, a party referred to certain testimony as “hearsay” but did not state a specific objection to the testimony, and he was silent after the court stated that the evidence was admissible as a declaration against interest. Under these circumstances, the party failed to raise a specific, timely objection to the testimony and, thus, waived appellate review of the issue.).

2. Olagbegi also contends that the trial court erred in awarding Hutto consequential damages in the amount of $67,749.55. We agree.

“The court is the trier of fact in a bench trial, and its findings will be upheld on appeal if there is any evidence to support them. The plain legal error standard of review applies where the appellate court determines that the issue was of law, not fact.” (Citations, punctuation and footnote omitted.) Crowell v. Williams, 273 Ga. App. 676 (1) (615 SE2d 797) (2005). Viewed in favor of the trial court’s judgment, the record shows the following facts.

In 2002, Hutto began working for Nile, Inc. after Olagbegi, the sole officer and shareholder at that time, offered him partial ownership in the company. In 2004, Hutto and Olagbegi (acting on behalf of Nile, Inc.) entered into a contract wherein Hutto agreed to pay $1,500 for 1,500 shares of common stock and $156,500 for 15,650 shares of preferred stock. The contract stated that, concurrent with the execution of the contract, Nile, Inc. accepted a total of $158,000 from Hutto in full payment for the shares, and it stated that the company “irrevocably” agreed to issue the shares of stock purchased by Hutto under the agreement within one year. The contract also included a specific damages provision that addressed the possibility that Nile, Inc. would fail or be unable to issue the stock to Hutto pursuant to the contract. In such situation, Hutto would become a constructive owner of Nile, Inc. in the same percentage that would have occurred if Nile, Inc. had issued the 1,500 shares of common stock to him, and he would “be entitled to an immediate rescission of his purchase price of $156,500 for the Preferred Stock and Nile shall immediately repay [Hutto] all such funds, plus accrued dividends thereon, provided by [Hutto] to Nile for said Preferred Stock.” Finally, the contract included an “entire agreement” clause, to wit:

This Agreement constitutes the entire and sole agreement related to [the] sale and purchase of the Stock of Nile. All prior or contemporaneous promises, representations, understandings or agreements, verbal or otherwise regarding the sale and purchase of the Stock of Nile, are hereby expressly merged and superseded.

(Emphasis supplied.)

After Olagbegi failed to issue the stocks and refused to return the money paid by Hutto, Hutto filed the instant breach of contract claim. At trial, Hutto testified to the above facts. In addition, he testified that he had to withdraw some funds from his 401(k) retirement account in order to gather enough money to pay for the shares, and, in the process, he incurred about $67,749.55 in federal and state taxes, early withdrawal penalties, and interest. According to Hutto, before he withdrew the funds from his retirement account, Olagbegi had promised to reimburse him for the taxes and penalties resulting from the early withdrawal. Hutto asserted that Olagbegi’s failure to issue the shares as required by the contract or to refund the $158,000 he (Hutto) had paid for the shares caused him to incur the additional taxes, penalties, and interest, and he asked the trial court to order Olagbegi to reimburse him for those costs as consequential damages.

In response to Hutto’s evidence regarding the breach of contract, Olagbegi’s sole defense was that he never executed the contract at issue or received money from Hutto to purchase stock in Nile, Inc. Following the bench trial, the court awarded Hutto a total of $225,749.55, which included $158,000 under the contract and $67,749.55 in consequential damages as “necessary expenses,” pursuant to OCGA § 13-6-9.

On appeal, Olagbegi argues that Hutto failed to meet his burden of presenting any competent evidence to show the amount of 401(k) retirement funds that he withdrew and applied toward his $158,000 obligation on the stock purchase agreement, that it was necessary for him to withdraw the retirement funds in order to comply with the contract, or that he actually incurred $67,749.55 in taxes, penalties, and interest as a result of his early withdrawal of his retirement funds. We agree.

It is axiomatic that “[i]t is the plaintiff’s burden to prove its damages. Damages must be proved by evidence which furnishes the jury with sufficient data to enable them to calculate the amount with reasonable certainty. Proof of damages cannot be left to speculation, conjecture and guesswork.” (Citations and punctuation omitted.) Hurst Boiler & Welding Co. v. Firstline Corp., 206 Ga. App. 446, 447 (1) (426 SE2d 22) (1992). Under OCGA § 13-6-8, “[r]emote or consequential damages are not recoverable unless they can be traced solely to the breach of the contract or unless they are capable of exact computation . . . and are independent of any collateral enterprise entered into in contemplation of the contract.” Further, the plain language of OCGA § 13-6-9 provides that, in order to support a claim for consequential damages under that statute, a party must prove that he or she only incurred the expenses at issue because they were, in fact, necessary in order for him or her to comply with the contract. See Price v. Burns, 43 Ga. App. 821 (160 SE 531) (1931) (“[E]vidence that the plaintiff had incurred expenses in making trips and telephone calls in preparing to improve the premises pursuant to an option to do so which the plaintiff had in the lease, did not show the necessity for such expenses, where it did not appear how and why it was necessary to the performance of the contract by the plaintiff that such trips and telephone calls be made.”) (citations omitted); see also generally Hopper v. M&B Builders, 261 Ga. App. 702, 706 (3) (583 SE2d 533) (2003).

In this case, the only evidence Hutto presented to support this consequential damages award was as follows. When Hutto’s counsel asked him where he had obtained the $158,000 to pay for the Nile, Inc. stock, Hutto testified that “the majority of the money came out of my [401(k)] savings and some of it was cash that I generated through sales of stock ownership I had in my previous company.” However, Hutto offered no evidence of the total amount of retirement funds he had withdrawn or when he withdrew those funds. Later, Hutto’s counsel asked him if he had incurred “federal and state tax[es]” totaling $67,749.55 as a result of his withdrawal of the 401(k) retirement funds, and Hutto responded, “[t]hat sounds about right.” But Hutto failed to present any official documentary evidence, such as bank receipts or statements or tax returns, to substantiate that amount or otherwise support his claim. See Consolidated Engineer ing Co. v. U. I. R. Contractors, 136 Ga. App. 923, 924 (222 SE2d 692) (1975) (“Where checks and vouchers are accessible, they are the best evidence of the expenses sought to be recovered, and parol testimony as to the approximate expenses incurred is inadmissible.”) (citations omitted).

Decided March 15, 2013.

Toby EL L. Morgan, for appellants.

Daniel Hutto, pro se.

In fact, the only document Hutto presented to support this consequential damages claim was a handwritten document, dated March 2012; the document stated “Consequential damages . . . Taxes/Nile... Federal $56,062.55 (includes penalties and interest)... State $11,687.00 (does not include penalties and interest!)] ... Total $67,749.55[.]” That document, however, failed to show that the amounts recited therein were in any way related to Hutto’s withdrawal of the 401(k) retirement funds or to the stock purchase contract at issue. As a result, it provided no support for a finding that the amounts shown constituted consequential damages that necessarily arose from Hutto’s compliance with the contract. See OCGA §§ 13-6-8; 13-6-9; Hurst Boiler & Welding Co. v. Firstline Corp., 206 Ga. App. at 447 (1); Price v. Burns, 43 Ga. App. at 822; see also Consolidated Engineering Co. v. U. I. R. Contractors, 136 Ga. App. at 924 (‘Where more certain and satisfactory evidence is available to a party who instead produces evidence of a weaker and inferior nature, a presumption arises against him for withholding the evidence.”) (citation omitted).

Consequently, we conclude that Hutto failed to present any competent evidence to support his claim for $67,749.55 in consequential damages and, as a result, the trial court erred in awarding him that amount. That portion of the trial court’s award is reversed, while the remaining award of $158,000 is affirmed.

Judgment affirmed in part and reversed in part. Phipps, P. J., and Dillard, J., concur.

       In addition to breach of contract, Hutto’s complaint asserted claims for fraud, securities fraud, and breach of labor laws. The trial court, however, granted Olagbegi judgment on the pleadings as to those claims after finding that they were barred by the applicable statutes of limitation.

       Whether to permit an attorney licensed in another state to appear in a specific case in the courts of Georgia is generally a matter within the discretion of the trial court, and this Court will affirm the trial court’s decision absent an abuse of such discretion. CSX Transp, v. McCord, 202 Ga. App. 365, 367-368 (3) (414 SE2d 508) (1991).

       See USCR 4.4 (D) (2) (objections to applications must state a factual basis for the objection); see also USCR 4.4 (D) (3) (“An application ordinarily should be granted unless the court or agency finds reason to believe that such admission: a. may be detrimental to the prompt, fair and efficient administration of justice, b. may be detrimental to legitimate interests of parties to the proceedings other than the client(s) the applicant proposes to represent, c. one or more of the clients the applicant proposes to represent may be at risk of receiving inadequate representation and cannot adequately appreciate that risk, d. the applicant has engaged in such frequent appearances as to constitute regular practice in this state, or e. should be denied, if that applicant had, prior to the application, filed or appeared in an action in the courts of this State without having secured approval pursuant to the Uniform Superior Court Rules.”).

       Notably, the trial court prohibited Olagbegi from pursuing this defense because he had admitted executing the contract in his answer to Hutto’s complaint.

       OCGA § 13-6-9 states: “Any necessary expense which one of two contracting parties incurs in complying with the contract may be recovered as damages.”

       See also OCGA § 13-6-2 (“Damages recoverable for a breach of contract are such as arise naturally and according to the usual course of things from such breach and such as the parties contemplated, when the contract was made, as the probable result of its breach.”).

       Cf. Freightliner Chattanooga v. Whitmire, 262 Ga. App. 157, 161-162 (1) (b) (584 SE2d 724) (2003) (When a defendant’s breach of contract caused a dump truck owner to lose income and its senior status with an account, compensation for lost income was recoverable as consequential damages because the dump truck owner’s lost profits claim was supported by tax returns and income records.).

       Olagbegi objected to the document as irrelevant at trial, but the court admitted the document over his objection.

       Given this decision, Olagbegi’s remaining arguments as to why we must reverse the trial court’s award of consequential damages are moot.


author: Miller, Judge.

text:
    A11A0284, A11A0285.
    HOOVER v. MAXUM INDEMNITY COMPANY; and vice versa.
    (740 SE2d 194)
    Decided March 18, 2013.

      Lance A. Cooper, for appellant.

      Freeman, Mathis & Gary, Philip W. Savrin, Dari H. Champion, Jr., for appellee.
   Miller, Judge.

The Supreme Court of Georgia granted certiorari in these cross-appeals, and in Hoover v. Maxum Indem. Co., 291 Ga. 402 (730 SE2d 413) (2012), reversed the judgment of this Court. We therefore vacate our prior opinion in Hoover v. Maxum Indem. Co., 310 Ga. App. 291 (712 SE2d 661) (2011), and adopt the judgment of the Supreme Court as the judgment of this Court.

Judgment reversed.

Ellington, C. J., and Doyle, P. J., concur.


author: Ray, Judge.

text:
    A12A1841, A12A1842.
    EMORY UNIVERSITY et al. v. METRO ATLANTA TASK FORCE FOR THE HOMELESS, INC.; and vice versa.
    (740 SE2d 219)
   Ray, Judge.

These cross-appeals stemfrom a complaint filed by Metro Atlanta Task Force for the Homeless, Inc. (“Metro”) which asserted claims against Emory University and Emory Healthcare, Inc. (“Emory”) for tortious interference with business and contractual relations, violation of the Georgia Racketeer Influenced and Corrupt Organizations (RICO) Act, and defamation. Emory moved to dismiss or to strike the complaint based on Metro’s failure to comply with the verification requirements of OCGA § 9-11-11.1, Georgia’s anti-SLAPP (Strategic Lawsuits Against Public Participation) statute. Metro then filed verifications “out of an abundance of caution.” After a nonevidentiary hearing, the trial court denied the motion to dismiss or to strike the complaint, finding that the claims did not come within the scope of the anti-SLAPP statute. The trial court further found that, had the anti-SLAPP statute applied, Metro had been placed on notice of such defense at the time of Emory’s answer and that Metro’s subsequent filing of the verifications was untimely. Emory filed a request for a certificate of immediate review, but Metro voluntarily dismissed its complaint without prejudice before the trial court could address the request. Emory then filed a motion to strike the voluntary dismissal, which the trial court denied.

The cross-appeals in the instant action are consolidated for our review. In Case No. A12A1841, Emory contends that the trial court erred (1) in denying its motion to dismiss or to strike the complaint for failure to timely file the verifications required under OCGA § 9-11-11.1 and (2) in denying its motion to strike Metro’s voluntary dismissal without prejudice. In Case No. A12A1842, Metro contends that the trial court erred in determining that Emory’s answer placed Metro on notice of the OCGA § 9-11-11.1 defense, thus making Metro’s subsequent verifications untimely if the anti-SLAPP statute applies in this case. For the reasons that follow, we affirm the judgment in Case No. A12A1841 and dismiss as moot the appeal in Case No. A12A1842.

On appeal, we conduct a de novo review of the denial of a motion to dismiss. In reviewing the trial court’s order, “we construe the pleadings in the light most favorable to the plaintiff with any doubts resolved in the plaintiff’s favor.”

The complaint indicates that Metro is a nonprofit enterprise that relies on government grants and private donations to provide shelter and other services to the homeless population in Atlanta. In 1997, Metro obtained a 95,000 square-foot facility in which to base its operations on the corner of Peachtree and Pine streets in midtown Atlanta (“Peachtree Pine building”). Thereafter, Metro received $900,000 in loans from private entities to renovate the facility. These loans were secured by security deeds on the property.

In its complaint, Metro alleged that Emory initiated efforts to interfere with its business operations and oust it from the Peachtree Pine building. Metro generally alleged that Emory, acting alone or through unidentified co-conspirators, engaged in “deceptive, covert, and malicious actions designed to drive [Metro] from the Peachtree Pine building.” The alleged actions included Emory’s efforts to undercut public and private funding using a “defamatory propaganda campaign,” as well as efforts to “deceptively purchase the notes on the Peachtree Pine building and oust [Metro] from the property through a foreclosure process.” Metro further alleged that, as a consequence of these actions, it sustained a loss of public and private funding which resulted in its loss of title to the Peachtree Pine building. It is this alleged conduct that forms the general basis of each of the claims in the complaint.

Case No. A12A1841

1. Emory argues that the trial court erred in denying its motion to dismiss or strike Metro’s complaint because of the alleged untimely verifications. Specifically, Emory argues that the trial court erred in finding that the anti-SLAPP statute does not apply to the claims asserted in Metro’s complaint and that Metro was not required to file verifications in accordance with OCGA§ 9-11-11.1 (b). Finding no error, we affirm.

“If the anti-SLAPP statute applies to a claim asserted in a complaint, and the plaintiff fails to timely file the required subsection (b) verifications, the defendant is entitled to have the claim stricken and the complaint dismissed.” However, where a complaint asserts multiple claims and allegations, only those claims that are based on an act that falls under the scope of the anti-SLAPP statute are afforded the procedural protections of the statute and are subject to its verification requirements.

The purposes of Georgia’s anti-SLAPP statute are to encourage citizens to participate in matters of public significance by exercising their constitutional rights to free speech and to petition the government for redress of grievances, and to prevent the chilling of those rights through abuse of the judicial process. To those ends, the statute requires the timely filing of a written verification when the complaint asserts a claim “against a person or entity arising from an act by that person or entity which could reasonably be construed as an act in furtherance of the right of free speech or the right to petition government for a redress of grievances... in connection with an issue of public interest or concern.” The statute defines such an act as

any written or oral statement, writing, or petition made before or to a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, or any written or oral statement, writing, or petition made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law.

In denying Emory’s anti-SLAPP motion to dismiss, the trial court found that the claims did not fall within the scope of the anti-SLAPP statute because “the statements at issue in the Complaint were made neither to any official proceeding authorized by law nor in connection with an issue under consideration by any official proceeding.”

On appeal, Emory contends that the trial court’s denial is in error and argues that two types of official proceedings were implicated by Metro’s claims: (1) any legislative proceedings involving Metro’s public funding, and (2) the foreclosure proceeding regarding the Peachtree Pine building. However, no specific legislative proceeding was identified in the record or mentioned in the pleadings, and there were no allegations or evidence that any statements were made in relation to the foreclosure proceeding involving the Peachtree Pine building.

For the procedural protections of the anti-SLAPP statute to apply, there must be a threshold showing that the claims could reasonably be construed as a statement or petition made in relation to or in connection with an actual official proceeding. In this case, the actions and statements that form the basis of the claims are not specified in the complaint. Although Metro alleged that Emory used a “defamatory propaganda campaign” to undercut Metro’s public and private funding, the pleadings do not identify who made the statements, who the recipients of the statements were, the date of the statements, the content of the statements, or the context in which the statements were made. The pleadings do not indicate that such statements were made in relation to a particular official proceeding or in connection with an issue under or about to be under consideration or review by such a proceeding. Nor do the pleadings indicate that Emory sought to initiate a particular official proceeding regarding a matter of public concern. Furthermore, the complaint indicates that Metro’s claims were also based, at least in part, on Emory’s alleged “efforts to deceptively purchase the notes on the Peachtree Pine building,” which are actions that may not involve any official proceeding at all.

Emory concedes that the complaint was “extremely vague” with respect to the underlying facts on which Metro based its claims, but it argues that Metro should not be allowed to circumvent the requirements of the anti-SLAPP statute through vague and evasive pleading. This argument lacks merit.

Although OCGA § 9-11-11.1 (d) provides that all discovery and any pending hearings or motions in the action are stayed upon the filing of a motion to dismiss or a motion to strike based on a plaintiffs failure to file the verifications required by the anti-SLAPP statute, subsection (d) also provides that the trial court, upon motion, may lift the stay and “order that specified discovery or other hearings or motions be conducted.” Thus, a party seeking to obtain additional facts or evidence to establish whether the anti-SLAPP statute applies could petition the court to do so.

The Court notes that, at the time of the hearing on its antiSLAPP motion, Emory had a pending motion to dismiss for failure to state a claim or, in the alternative, for a more definite statement. However, Emory did not petition the trial court to lift the stay to obtain a ruling on this motion, nor did it seek to avail itself of the specified discovery provisions of OCGA § 9-11-11.1 (d) “to obtain evidence for use in resolving [its] motion to dismiss pursuant to OCGA § 9-11-11.1 (b).” Accordingly, Emory “cannot now raise this issue on appeal where [it] has failed to avail [itself] of this remedy in the trial court.”

Our analysis of the applicability of the anti-SLAPP statute to the claims in this case was limited by the generalized averments of the complaint and the vagueness of the claims contained therein. Thus, we cannot make a threshold finding that the statements or acts alleged in the complaint were made in relation to some official proceeding. Accordingly, we find that the trial court did not err in finding that the anti-SLAPP statute did not apply in this case; thus, the trial court did not err in denying Emory’s motion to dismiss or strike the complaint.

Decided March 18, 2013

Arnall, Golden & Gregory, Robert L. Rothman, Henry Chalmers, for appellants.

Mark E. Murray, for appellee.

2. Emory contends that the trial court erred in denying the motion to strike Metro’s voluntary dismissal of the complaint, arguing that Metro’s right to voluntarily dismiss its complaint is limited by the requirements of the anti-SLAPP statute. Based on our holding in Division 1, we find that Metro was authorized to voluntarily dismiss its complaint under OCGA § 9-11-41 (a). We discern no error.

Case No. A12A1842

3. In light of our holding in Divisions 1 and 2 above, Metro’s cross-appeal in Case No. A12A1842 is dismissed as moot.

Judgment affirmed in Case No. A12A1841. Appeal dismissed as moot in Case No. A12A1842.

Miller, P. J., and Branch, J., concur.

       (Citation omitted.) Center for a Sustainable Coast v. Ga. Dept. of Natural Resources, 319 Ga. App. 205 (734 SE2d 206) (2012).

       (Citation omitted.) Id. at 205-206.

       (Citations omitted.) Lovett v. Capital Principles, 300 Ga. App. 799, 800 (686 SE2d 411) (2009).

        Denton v. Browns Mill Dev. Co., 275 Ga. 2, 6 (561 SE2d 431) (2002).

       OCGA § 9-11-11.1 (a); Atlanta Humane Society v. Harkins, 278 Ga. 451,452 (1) (603 SE2d 289) (2004).

       OCGA § 9-11-11.1 (b).

       OCGA § 9-11-11.1 (c).

        Ga. Community Support & Solutions v. Berryhill, 275 Ga. App. 189, 192 (1) (620 SE2d 178) (2005), aff’d, Berryhill v. Ga. Community Support & Solutions, 281 Ga. 439, 442 (638 SE2d 278) (2006) (Where there was no evidence of an actual official proceeding either before or after statements were made, and where the statements contained nothing that could be construed as a request for any official investigation or proceeding, the acts could not reasonably be construed as a statement or petition within the definition of the anti-SLAPP statute).

       Id.

        Metzler v. Rowell, 248 Ga. App. 596, 600-601 (3) (547 SE2d 311) (2001).

       (Citation omitted.) Atlanta Humane Society, supra at 453. See also Lovett, supra at 803 (Barnes, J., concurring specially).

        Davis v. Emmis Publishing Corp., 244 Ga. App. 795, 796 (1) (536 SE2d 809) (2000).

       See Ga. Community Support & Solutions, supra at 192 (1).

       See Chatham Orthopaedic Surgery Center v. Ga. Alliance of Community Hospitals, 262 Ga. App. 353, 357 (2) (585 SE2d 700) (2003) (overruled on other grounds).


author: DOYLE, Presiding Judge.

text:
    A12A1946.
    COOK v. BOARD OF REGISTRARS OF RANDOLPH COUNTY.
    (740 SE2d 223)
   DOYLE, Presiding Judge.

In this discretionary appeal, Henry Cook appeals the trial court’s ruling that he is not a resident of Randolph County and therefore not an elector qualified to vote in that county. Because there is an absence of evidence to support a finding that Cook intended to remove his domicile to another jurisdiction, we reverse.

In an earlier proceeding, the Supreme Court of Georgia summarized the procedural history of this case as follows:

On October 25, 2010, after a hearing held pursuant to OCGA § 21-2-228, the Appellee Board of Registrars of Randolph County [the “Board”] ruled that Cook, who was then serving on the Randolph County Board of Education, was not a resident of Randolph County and therefore was not an elector qualified to vote in that county. See OCGA § 21-2-216 (a) (4) (to vote in a primary or general election, a person must be a “resident of this [S]tate and of the county ... in which he or she seeks to vote”). Appellant appealed that ruling to the superior court, see OCGA § 21-2-228 (f), and filed a motion for an emergency hearing and a motion for stay and/or supersedeas, basing the motions in part on the ground that he had qualified to be on the ballot as a candidate for the School Board at the November 2, 2010, general election. Before the trial court ruled, Cook voted in and won the November 2 election; the following day, the court stayed the Board of Registrars’ ruling.
On November 29, 2010, the trial court issued an order directing that this case be tried with a separate case that Cook had filed against the Board of Elections of Randolph County, apparently after he learned that the elections board was contemplating filing a challenge to Cook’s qualifications as a candidate for the November 2 election based on the Board of Registrars’ ruling. On December 29,2010, however, the trial court announced that it was dismissing the lawsuit challenging Cook’s candidacy as moot because the election had already occurred. The court proceeded only with the hearing on the appeal of the Board of Registrars’ decision regarding Cook’s qualifications as a voter.
The trial court heard extensive evidence from both parties regarding Cook’s residency.[] On April 15, 2011, the court entered an order concluding that Cook was not a resident of Randolph County and therefore was not an elector qualified to vote there.

Cook now appeals that ruling.

“Findings of fact regarding voters’ residency shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” Further, we note:

Wherever a form of the word “reside” occurs either in the statutes or in the constitution of Georgia with respect to voting, it should be construed to mean “domicile.”... [So t]he word “reside” here is used in the sense of “domicile.” This meaning of residence is consistent with the rules for determining residence in the sense of domicile in the Election Code. OCGA § 21-2-217[, which applies in this case].

The determination as to domicile is a mixed question of law and fact normally for the factfinder, but it may become a question of law in plain and palpable cases.

1. Cook contends that the trial court erred by concluding that the Board was authorized to remove him from the list of eligible electors of Randolph County. The genesis of this dispute arose when Cook, a life-long resident of Randolph County and an elected member of the Randolph County Board of Education, bought a house in Dothan, Alabama, after his Randolph County house, located on Howell Mill Road, burned down in October 2008.

There is no dispute that until the fire, Cook was domiciled in Randolph County at the Howell Mill house. At the hearing before the trial court, Cook testified that after his house burned, he stayed at his ailing mother’s house until his mother’s death in September 2009. In the interim between the house fire and his mother’s death, Cook purchased a house across the state line in Dothan, Alabama, in February 2009, and it is apparent that he spent some time there. Cook also testified that he also spent some portion of his time living at a house owned by his sister (or her heirs), located in Randolph County. In April 2009, Cook applied for a homestead exemption at his sister’s house, believing that he could claim it as his residence, but it was denied after the county property appraiser visited the property in July and early August 2009 and found it to be uninhabited.

As evidence that Cook had not resided in Randolph County since the time of the fire, the trial court found that the power company records showed no usage at Cook’s sister’s house from January to May 2009. Likewise, the city water records indicated no water use at the sister’s house from March 2009 to January 2010, when it was switched to the name of Cook’s nephew. Cook testified that he allowed his nephew to move into the house while the nephew saved money for his own home. The trial court also noted that Cook failed to produce certain subpoenaed utility or bank records associated with his Dothan property.

Based on the evidence from the hearing, the trial court found that the Board was authorized to remove Cook’s name from the list of electors qualified to yote in Randolph County.

OCGA § 21-2-216 (a) (4) provides that no person shall vote in any election unless the person is, inter alia, “[a] resident of this [SJtate and ofthe county.. .in whichhe or she seeks to vote.” OCGA § 21-2-217 (a) provides the rules for determining residence for purposes of voting. These rules are as follows, in relevant part:

(1) The residence of any person shall be held to be in that place in which such person’s habitation is fixed, without any present intention of removing therefrom;
(2) A person shall not be considered to have lost such person’s residence who leaves such person’s home and goes into another state or county or municipality in this [S]tate, for temporary purposes only, with the intention of returning, unless such person shall register to vote or perform other acts indicating a desire to change such person’s citizenship and residence;
(4) If a person removes to another state with the intention of making it such person’s residence, such person shall be considered to have lost such person’s residence in this [S]tate;
(5) If a person removes to another state with the intention of remaining there an indefinite time and making such state such person’s place of residence, such person shall be considered to have lost such person’s residence in this [S]tate, notwithstanding that such person may intend to return at some indefinite future period;
(9) The mere intention to acquire a new residence, without the fact of removal, shall avail nothing; neither shall the fact of removal without the intention;
(13) If a person goes into another state and while there exercises the right of a citizen by voting, such person shall be considered to have lost such person’s residence in this [S]tate;
(14) The specific address in the county or municipality in which a person has declared a homestead exemption, if a homestead exemption has been claimed, shall be deemed the person’s residence address; and
(15) For voter registration purposes, the board of registrars and, for candidacy residency purposes, the Secretary of State, election superintendent, or hearing officer may consider evidence of where the person receives significant mail such as personal bills and any other evidence that indicates where the person resides.
(b) In determining a voter’s qualification to register and vote, the registrars to whom such application is made shall consider, in addition to the applicant’s expressed intent, any relevant circumstances determining the applicant’s residence. The registrars taking such registration may consider the applicant’s financial independence, business pursuits, employment, income sources, residence for income tax purposes, age, marital status, residence of parents, spouse, and children, if any, leaseholds, sites of personal and real property owned by the applicant, motor vehicle and other personal property registration, and other such factors that the registrars may reasonably deem necessary to determine the qualification of an applicant to vote in a primary or election. The decision of the registrars to whom such application is made shall be presumptive evidence of a person’s residence for voting purposes.

In the present case, the trial court found that Cook had removed his habitation to the Dothan house based on the inconsistent evidence about the time he spent habitating in either his mother’s or sister’s house. Because the trial court was the factfinder and evaluated the live testimony before it, we credit its factfindings and resolve any inconsistencies in favor of the trial court’s ruling.

Nevertheless, the trial court’s analysis of those facts overlooks the absence of any evidence that Cook intended to remove his domicile from Randolph County to his Dothan property. It is undisputed that Cook spends several days a week in Randolph County working at the industrial supply company he owns and operates there. Cook receives all of his mail at a post office box in Randolph County, and he began this practice years before his house fire because he experienced problems with mail being stolen from the house that burned. Cook regularly attends church in Randolph County (having never attended church in Dothan), he owns a burial plot in Randolph County, he has a Georgia driver’s license, and he has never attempted to vote or apply for a homestead exemption in Alabama. His vehicles are registered in Randolph County, and his federal income tax returns show his Randolph County post office box as his address. Cook testified that he considers Randolph County his home and domicile, and whenever he leaves, it is always with the intention of returning. In short, all of the evidence as to Cook’s intended domicile points to Randolph County as the locus.

The trial court seemed convinced that Cook’s regular habitation at his Dothan property showed that he could not be domiciled where he chose. But “a person may have several residences, [though] only one domicile.” In this case, the evidence shows that Cook does have several residences: his mother’s, his sister’s, and his Dothan property, and he testified that he keeps clothes at both his sister’s and his Dothan property. “No definite amount of time spent in a place is essential to make that place a home,” and here the only evidence of Cook’s intended home is uniformly in support of a domicile in Randolph County. Under these circumstances, there is no evidence to support a finding that Cook, who lacked a fixed habitation, removed to Dothan with the intention of making it his residence. The statutory factors that must be weighed are replete with references to the person’s intent, and the trial court erred by ignoring Cook’s stated intent along with the undisputed factual support uniformly corroborating his stated intent.

For example, in Dozier, the Supreme Court of Georgia addressed a scenario in which an elected official overtly took numerous steps to change his domicile from his long time home in DeKalb County to Clarke County after a change in the law required him to reside in a particular district (which included Clarke County) to run again for his seat. The Supreme Court explicitly focused not on the candidate’s motive for his actions, but his intention. The Court affirmed the grant of summary judgment in favor of the candidate based on his ownership of real property, driver’s license, homestead exemption, vehicle registrations, and voting record. The Court found no evidence of his intent to be domiciled in DeKalb County despite “the fact that he still uses and pays expenses for the DeKalb County home,” which was transferred to his wife, and that he “spends a majority of time at the DeKalb County house... [, and he continues to use] the DeKalb County address for checks and bank statements.” Thus, Dozier comports with the statutory requirement to focus on the person’s intent when evaluating the residency factors: “The mere intention to acquire a new residence, without the fact of removal, shall avail nothing; neither shall the fact of removal without the intention.”

There must be either the tacit or the explicit intention to change one’s domicile before there is a change of legal residence. If a person leaves the place of his domicile temporarily, or for a particular purpose, and does not take up an actual residence elsewhere with the avowed intention of making a change in his domicile, he will not be considered as having changed his domicile.

In Cook’s case, his employment, business ownership, driver’s license, mail service, voting records, community ties, vehicle registration, nearly daily visits, and tax records all support his stated intent to continue his lifelong domicile in Randolph County. Similar to Dozier, Cook’s mere ownership and periodic stays at a residence outside of the county did not support a contrary finding, and in light of the plain and palpable evidence of Cook’s intent to remain domiciled in Randolph County, the trial court erred by concluding that the Board was authorized to remove him from the list of electors in Randolph County.

Decided March 18, 2013.

Maurice L. King, Jr., for appellant.

Perry & Walters, Robert K. Raulerson, Franklin T. Coleman III, for appellee.

2. Cook’s remaining enumerations are moot.

Judgment reversed.

Barnes, P. J., and McMillian, J., concur.

       The application for discretionary review was made to the Supreme Court of Georgia, which granted the application, directing the parties to address its jurisdiction. See Cook v. Bd. of Registrars of Randolph County, 291 Ga. 67 (727 SE2d 478) (2012). Concluding that it lacked jurisdiction, the Supreme Court transferred the case to this Court. See id. at 74-75 (3).

       Cook objected to the trial court’s hearing of evidence at the hearing, arguing that the appeal should be confined to the record from the Board of Registrars hearing. Compare OCGA § 21-2-5 (e) (appeals from successful challenges of qualifications of candidates for state and federal office are made before the Superior Court of Fulton County without a jury and confined to the record before the Secretary of State). But Cook does not pursue this argument on appeal, so it is deemed abandoned. See Court of Appeals Rule 25 (c) (2).

       (Footnote omitted.) Cook, 291 Ga. at 67-68 (1).

       (Punctuation omitted.) Holton v. Hollingsworth, 270 Ga. 591, 594 (5) (514 SE2d 6) (1999).

       (Citations and punctuation omitted.) Dozier v. Baker, 283 Ga. 543, 543-544 (1) (661 SE2d 543) (2008).

       See id. at 544 (2).

       This provision also governs the residency determination with respect to a person’s qualification to run for elective office. See OCGA § 21-2-217 (a).

       (Emphasis supplied.)

        Dozier, 283 Ga. at 545 (2).

       Id. at 545 (2).

       See OCGA § 21-2-217 (a), (b).

        Dozier, 283 Ga. 543 (construing the domicile requirements of OCGA § 21-2-217).

       See id. at 545 (2).

       Id. at 544 (2).

       Id. at 545 (2).

       Without deciding the question, we do not foreclose the possibility that a person could unintentionally abandon his domicile. For example, had Cook voted in an Alabama election, he would be deemed to have lost his residence in Georgia because “[i]f a person goes into another state and while there exercises the right of a citizen by voting, such person shall he considered to have lost such person’s residence in this [S]tate.” OCGA § 21-2-217 (a) (13). But the facts before us do not support such a conclusion.

       (Emphasis supplied.) OCGA § 21-2-217 (a) (9). Cf. Kean v. Marshall, 294 Ga. App. 459, 462 (1) (669 SE2d 463) (2008) (in an action to modify child support, holding that domicile may he different from residence, the trial court’s focus on whether the person was commuting to the domicile was misplaced, and the record was devoid of any evidence showing any action by the person to change his domicile); Davis v.Holt, 105 Ga.App. 125,131 (1) (c) (123 SE2d 686) (1961) (in a case addressing attempted service of an alleged nonresident, finding no factual issue as to domicile even though the person had registered his vehicle in Alabama and held both Alabama and Georgia driver’s licenses).

       (Citations and punctuation omitted; emphasis in original.) Haggard v. Graham, 142 Ga. App. 498, 501 (1) (236 SE2d 92) (1977).

       We acknowledge that the title to the residence in Dozier had been transferred to the candidate’s wife, and Cook actually owned property in Dothan. See Holton, 270 Ga. at 594 (5) (electors’ intended domicile was supported by the evidence despite the fact that the electors owned a house in a foreign jurisdiction, because the electors “always considered [the disputed jurisdiction] to be their home”).


author: McMillian, Judge.

text:
    A12A2115.
    CARTER v. THE STATE.
    (740 SE2d 195)
   McMillian, Judge.

Michael Jerome Carter appeals the trial court’s denial of his amended motion for new trial after a jury convicted him on three counts of child molestation and two counts of aggravated sexual battery. Because we find that the State failed to establish venue as to two of the three counts of child molestation (Counts II and III) and both counts of sexual battery (Counts I and IV), we reverse as to those counts. However, we affirm Carter’s conviction on the remaining count of child molestation (Count V) for the reasons set forth below.

Viewed in the light most favorable to the verdict, the evidence at trial showed that the victim, A. W., was 11 years old at the time she testified at Carter’s trial in August 2011. Her parents were separated, and at the time relevant to the charges in this case, she lived primarily with her mother and saw her father on weekends. Carter was the boyfriend of A. W.’s mother. Beginning in the summer of2009, Carter began touching A. W.’s private part with his hand and putting his finger inside her private part. A. W. testified that this touching occurred “a lot,” between 50 and 75 times. Sometimes it happened at her mother’s house and sometimes it happened at Carter’s house. One school night in May 2010, Carter came into A. W.’s bedroom when she was in bed. He pulled down both his and A. W.’s pants and touched her private part with his penis (the “last incident”). Her mother was asleep when this incident occurred, and Carter had instructed her brother to “hide.” This incident prompted A. W. to write her mother a note stating what Carter had been doing to her. She left the note by her mother’s bed the next morning while her mother was asleep and then went to school.

After A. W.’s mother notified A. W.’s father about the note, he pulled A. W. out of school and notified the police. Although A. W. was reluctant to talk to her father about the incidents involving Carter, she described them for her grandmother, her father’s mother. A. W. later told a forensic interviewer about these incidents, and the tape of that interview was played at trial. A. W. also testified to these events at trial.

1. Carter argues that the evidence was insufficient to support his convictions for child molestation and aggravated sexual battery.

When a criminal defendant challenges the sufficiency of the evidence supporting his or her conviction, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(Citation and punctuation omitted; emphasis in original.) Knight v. State, 311 Ga. App. 367 (1) (715 SE2d 771) (2011). And “the victim’s testimony alone is generally sufficient to establish the elements of child molestation.” (Citation omitted.) Id. at 368 (1); OCGA § 24-4-8 (“The testimony of a single witness is generally sufficient to establish a fact”). Thus, “Georgia law does not require corroboration of a child molestation victim’s testimony.” (Punctuation and footnote omitted.) Barnes v. State, 299 Ga. App. 253, 254 (1) (682 SE2d 359) (2009).

A person commits the offense of child molestation when he or she “[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 . . . .” OCGA § 16-6-4 (a) (1). “A person commits the offense of aggravated sexual battery when he or she intentionally penetrates with a foreign object the sexual organ or anus of another person without the consent of that person.” OCGA § 16-6-22.2 (b).

Two of the child molestation counts (Counts II and III) charged Carter with using his hand to touch A. W.’s vagina. The two counts of aggravated sexual battery (Counts I and IV) charged Carter with using his fingers to penetrate her sexual organ without her consent. A. W. testified that Carter had touched her in both of these ways multiple times. And because a child under 16 years of age cannot consent to sexual acts, the State was not required to show that A. W. did not consent to Carter’s actions. Disabato v. State, 303 Ga. App. 68, 70 (1) (692 SE2d 701) (2010). The third child molestation count (Count V) charged Carter with using his penis to touch A. W.’s vagina, and A. W. testified regarding this last incident at trial. Prior to trial, she described these acts to her mother, her grandmother and the forensic interviewer, who all testified at trial. Viewed in the light most favorable to the verdict, this evidence was sufficient to establish the elements of the crimes of child molestation and aggravated battery as charged in the indictment beyond a reasonable doubt. “To the extent [Carter] challenges the credibility of the witnesses or any inconsistencies or conflicts in the evidence, a jury is authorized to believe or disbelieve all or any part of the testimony of witnesses, and it serves as the arbiter of conflicts in the evidence before it.” (Citation and punctuation omitted.) Maloney v. State, 317 Ga. App. 460, 461 (731 SE2d 133) (2012).

2. Carter also asserts that the State failed to establish the venue of these crimes. ‘We have held that venue is a jurisdictional fact and an essential element that the State must prove beyond a reasonable doubt for every crime.” (Citations omitted.) Lanham v. State, 291 Ga. 625, 626 (2) (732 SE2d 72) (2012). “The State may establish venue by whatever means of proof are available to it, and it may use both direct and circumstantial evidence. It must, however, come forth in all criminal prosecutions with evidence to show beyond a reasonable doubt that venue is properly laid.” Jones v. State, 272 Ga. 900, 902-903 (2) (537 SE2d 80) (2000).

A. W. testified that the incidents at issue happened both at Carter’s house and her mother’s house. A. W.’s father testified that A. W.’s mother moved frequently and that she had moved approximately three times within a year. A. W. told the forensic interviewer in June 2010 that she moved in with her father after he learned of the last incident. Before moving in with her father, she had lived with her mother and brother in a townhouse, but they had “just moved” there. One of the detectives stated that in investigating A. W.’s allegations, he visited the mother at her home. The prosecutor asked him to identify the county in which the mother’s home was located, and he indicated that it was in Clayton County. The State presented no evidence, however, regarding the mother’s prior residences. And although Carter listed his address as being in Jonesboro in his recorded interview with police, which was played at trial, the State presented no evidence establishing that the entire city of Jonesboro lies within Clayton County. It is well established that “proving that a crime took place within a city without also proving that the city is entirely within a county does not establish venue.” (Footnote omitted.) Graham v. State, 275 Ga. 290,293 (2) (565 SE2d 467) (2002). See also Powers v. State, 309 Ga. App. 262, 263 (1) (709 SE2d 821) (2011); Mock v. State, 306 Ga. App. 93, 96-97 (1) (a) (701 SE2d 567) (2010); Melton v. State, 282 Ga. App. 685, 688 (1) (a) (639 SE2d 411) (2006). Similarly,

the fact that the responding officers were employed by the [Clayton County Police Department] cannot serve as the exclusive proof that the crimes occurred in that county. As [this Court has] previously stated, the investigating officers’ county of employment does not, in and of itself, constitute sufficient proof of venue to meet the beyond a reasonable doubt standard.

(Punctuation and footnotes omitted.) Mock, 306 Ga. App. at 97 (1) (a). See also Powers, 309 Ga. App. at 264 (1).

Thus, the State proved that the mother’s townhouse was located in Clayton County but failed to prove that any of the mother’s prior residences or Carter’s residence were also in that county. The evidence supported a reasonable inference that the last incident occurred at the mother’s Clayton County townhouse, because the townhouse was the last place A. W. lived with her mother before moving in with her father after the last incident. And that incident occurred in A. W.’s bedroom on a school night with her mother sleeping nearby and her brother in the house. But the State failed to establish that any of the other incidents occurred at the mother’s townhouse. Because the State failed to prove the venue of any incident other than the last incident, we have no choice but to reverse Carter’s convictions under Counts I, II, III and IV. But we note that Carter may be retried for these crimes because the evidence at trial was otherwise sufficient. Powers, 309 Ga. App. at 264 (1); Mock, 306 Ga. App. at 97 (1) (b).

3. Carter also contends that the trial court erred in qualifying the forensic interviewer, Rebecca Kouns, as an expert in the field of child forensic interviews. “Acceptance or rejection of the qualifications of a proposed expert witness is within the sound discretion of the trial judge and will not be disturbed on appeal absent manifest abuse.” (Footnote omitted.) Bridges v. State, 279 Ga. 351, 354 (3) (613 SE2d 621) (2005).

An expert witness is anyone who, through training, education, skill, or experience, has particular knowledge that the average juror would not possess concerning questions of science, skill, trade, or the like. An expert witness may render an opinion within his area of expertise after the proper qualifications have been proven to the trial court.

(Footnotes omitted.) Fielding v. State, 278 Ga. 309, 311 (3) (602 SE2d 597) (2004). “Generally, nothing more is required to qualify an expert than that she has been educated in a particular trade or profession. This special knowledge may be derived from experience as well as study.” (Punctuation and footnote omitted.) Attaway v. State, 279 Ga. App. 781, 782 (1) (632 SE2d 397) (2006).

Kouns testified that she was the program manager at Rainbow House, Incorporated, a nonprofit “emergency shelter for children, a runaway and homeless youth program and a child advocacy center.” In her capacity as program manager, she oversaw the advocacy center and ensured compliance with applicable standards, but she spent 80 percent of her professional time conducting forensic interviews. In her ten years of experience, Kouns had conducted almost 350 forensic interviews. At the beginning of her career, Kouns underwent 40 hours of training in the field of forensic interviews. To maintain accreditation, Kouns was required to undergo monthly peer reviews, which involved additional training and required her to read journals and publications in the field; she was also required to complete 24 hours of additional training per year. Although Kouns had not earned a college degree, no degree or board certification is required for forensic interviewers in Georgia. At the time of Carter’s trial, Kouns had been qualified as an expert witness in five prior trials.

Given Kouns’ training and experience, we find no abuse of discretion in the trial court’s qualification of Kouns as an expert witness in the area of forensic interviews. See Hubert v. State, 297 Ga. App. 71, 74 (4) (676 SE2d 436) (2009) (upholding the trial court’s qualification of police detective who had participated in two special training sessions in techniques for interviewing child victims of sexual abuse and who had conducted fifty such interviews).

4. Carter further asserts that he received ineffective assistance of trial counsel because his attorney (1) failed to call an expert witness on behalf of the defense on the issue of forensic interviewing and (2) failed to object to what he contends was improper bolstering by Kouns.

In considering the trial court’s ruling on a claim of ineffective assistance of counsel, this Court accepts “the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” (Citation and punctuation omitted.) Handley v. State, 289 Ga. 786, 787 (2) (716 SE2d 176) (2011). And

[t]he two-prong test for determining the validity of a claim of ineffective assistance of counsel provided in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), asks whether counsel’s performance was deficient and, if so, whether this deficiency prejudiced the defense; that is, whether there is a reasonable probability that the outcome of the proceedings would have been different, but for counsel’s deficiency.

(Citation and punctuation omitted.) Bruce v. State, 252 Ga. App. 494, 498 (2) (555 SE2d 819) (2001). “If an appellant fails to meet his burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong.” (Citations omitted.) Kendrick v. State, 290 Ga. 873, 877 (4) (725 SE2d 296) (2012). Further, appellate courts recognize a strong presumption “that the performance of trial counsel falls within the wide range of reasonable professional assistance. The reasonableness of the conduct is viewed at the time of trial and under the circumstances of the case.” (Citation and punctuation omitted.) Williams v. State, 277 Ga. 853, 857 (6) (596 SE2d 597) (2004).

(a) Carter asserts that his trial counsel was ineffective in failing to call an expert witness to testify as to the flaws in Kouns’ forensic interview of A. W. In support of this claim, Carter’s motion counsel presented his own expert at the hearing on the motion for new trial. The expert questioned the methodology employed by Kouns and her failure to follow up on responses by A. W. that may have suggested she was motivated to lie about Carter because she disliked him and/or wanted to live with her father.

But Carter’s trial counsel testified that he made the strategic decision not to call an expert in this case based on his consideration of the victim’s age, the facts of the case and the forensic interview itself, with some small consideration given to the financial resources of Carter’s family. The attorney had won a child molestation case a few months before Carter’s trial without the benefit of an expert, and based upon his 40 years of experience practicing law and his familiarity with Clayton County jurors, he did not think that the facts of Carter’s case warranted expert testimony. He viewed the primary issue with the forensic interview as coming down “to suggestibility or bolstering the testimony,” which he addressed through cross-examination and argument. He did not think an expert was needed to present the defense. He also dealt with the issue of A. W.’s dislike of Carter and her possible motive for fabrication, which he saw as “a core piece of the defense,” in the same manner. He viewed these issues as a matter of common sense for the jury, who “can determine whether it looks like [forensic interviewers are] bolstering or they’re leading or whatever else.”

The trial court concluded that Carter failed to carry his burden of establishing deficient performance because the evidence demonstrated that Carter’s trial attorney made the decision not to call an expert based upon strategy and trial tactics. We agree. Although Carter’s current counsel would have relied upon expert testimony to present his defense, his trial counsel presented a similar defense through cross-examination and argument.

[Such t]rial strategy and tactics do not equate with ineffective assistance of counsel. Effectiveness is not judged by hindsight or by the result. Although another lawyer may have conducted the defense in a different manner and taken another course of action, the fact that appellant and his present counsel disagree with the decisions made by trial counsel does not require a finding that [Carter’s] original representation was inadequate.

(Citation, punctuation and footnote omitted.) Hazelrigs v. State, 255 Ga. App. 784, 786 (2) (567 SE2d 79) (2002).

(b) Carter also asserts that his trial counsel was deficient in failing to object to the State’s questions asking Kouns to testify as to A. W.’s veracity. Carter takes issue with the following exchange during the State’s direct examination of Kouns:

Q. Now, Ms. Kouns, [A. W] corrected you a few times during the course of the interview, did she not?
A. Yes, ma’am.
Q. Okay. Is that — what • — • does that tell you anything in your training and your experience?
A. That’s actually consistent with a child who is • — • with a child who’s consistent with their story and —

Carter is correct that Georgia law precludes a witness from testifying as to another witness’s credibility:

It is true that in Georgia, the credibility of a witness is to be determined by the jury, and the credibility of a victim may

Decided March 18, 2013.

Stanley W. Schoolcraft III, for appellant.

Tracy Graham-Law son, District Attorney, Elizabeth A. Baker, Assistant District Attorney, for appellee.

not be bolstered by the testimony of another witness. Thus, a witness may not give an opinion as to whether the victim is telling the truth. Furthermore, Georgia law generally precludes a witness from testifying as to his or her opinion regarding an ultimate issue in the case because to do so would invade the province of the jury.

(Footnote omitted.) Canty v. State, 318 Ga. App. 13,16 (2) (733 SE2d 64) (2012). But Kouns’ testimony merely indicated that A. W. was consistent in her story. She did not address whether A. W.’s story was believable nor did she opine that it was truthful. Thus, Kouns “did not directly comment on [A. W.’s] credibility and did not impermissibly address the ultimate issue of whether [Carter] improperly touched [A. W.]” (Punctuation omitted.) Id. Therefore, “[s]ince the testimony was admissible, an objection to it would have been without merit, and failure to make a meritless objection does not constitute ineffective assistance of counsel.” (Punctuation and footnote omitted.) Breazeale v. State, 290 Ga. App. 632, 634 (2) (660 SE2d 376) (2008).

Moreover, Carter bore the burden on his motion for new trial of showing his trial counsel’s deficiency, and his motion counsel never questioned the trial attorney about why he failed to object to this evidence. Thus, he made no affirmative showing that his trial counsel’s failure to object demonstrated inadequate performance instead of a strategic decision. The presumption of reasonable trial strategy is extremely difficult to overcome in the absence of such evidence. See Boykin v. State, 264 Ga. App. 836, 841 (5) (592 SE2d 426) (2003); Morgan v. State, 275 Ga. 222, 227 (10) (564 SE2d 192) (2002). In any event, Carter has not established that an objection to this testimony would have raised a reasonable probability of a different outcome.

Accordingly, we affirm the trial court’s denial of Carter’s claims of ineffective assistance of counsel.

Judgment affirmed in part and reversed in part.

Barnes, P. J., and McFadden, J., concur.

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

       Moreover, we note that Carter’s trial counsel did not object to Kouns’ qualification as an expert witness. Instead, he stated, “The standard for what is an expert is almost non-existent in Georgia courts. The jury will decide if they believe she is an expert.”


author: MCFADDEN, Judge. MCMILLIAN, Judge,

text:
    A12A2159.
    KELLEY v. THE STATE.
    (740 SE2d 201)
   MCFADDEN, Judge.

Ron O’Neal Kelley was charged with possession of cocaine, OCGA § 16-13-30 (a), and possession of tools for the commission of crime, OCGA § 16-7-20, after a law enforcement officer found cocaine and a digital scale in his pants pockets during the stop of a vehicle in which he was a passenger. The trial court denied Kelley’s motion to suppress these items, and we granted interlocutory review. Because the search of Kelley’s pockets exceeded the scope of a constitutionally permissible pat-down search, we reverse.

The officer who searched Kelley was the only person to testify at the suppression hearing, and the relevant facts are not in dispute. We review de novo the trial court’s application of the law to these undisputed facts. State v. Underwood, 283 Ga. 498, 500 (661 SE2d 529) (2008); Nunnally v. State, 310 Ga. App. 183, 185 (2) (713 SE2d 408) (2011).

The officer testified that, on November 10, 2010, he attempted to stop a car that he observed speeding. The driver did not stop immediately but instead drove to a residence and parked in its driveway. The officer placed the driver in custody for attempting to elude police. By that time, a group of people had gathered around Kelley, who was sitting in the passenger seat of the car with his hands sticking out of the window. The officer dispersed the people and asked Kelley to get out of the car. He then performed a pat-down search of Kelley while Kelley held his hands in the air. During the pat-down search, he felt in one of Kelley’s pockets a round object, slightly smaller than a piece of candy, that he could not identify. When he asked Kelley to identify the object, Kelley reached toward his pocket. At that point, the officer handcuffed Kelley, reached into his pocket and extracted a small bag of a substance later determined to be crack cocaine. He found a digital scale in one of Kelley’s other pockets.

Kelley moved to suppress the items found in his pockets. The state, in opposing this motion, had the burden of proving that the officer’s search was lawful. Foster v. State, 285 Ga. App. 441, 442 (646 SE2d 302) (2007). There is no evidence that the search was conducted either pursuant to a warrant or with Kelley’s consent and, as Kelley points out, the officer did not testify that, at the time of the pat-down search, he believed Kelley was armed and dangerous. See Molina v. State, 304 Ga. App. 93, 95-96 (695 SE2d 656) (2010) (officer must be able to point to particular facts from which he reasonably inferred that a person was armed and dangerous in order to perform self-protective search for weapons); Teal v. State, 291 Ga. App. 488, 489 (662 SE2d 268) (2008) (officer cannot, as a matter of general practice, pat down any person asked to exit a car, but instead must have a reasonable basis for concluding that the person is armed and presents a danger to the officer or others). Instead, the officer referred to his “standard operating procedure” of patting down any occupant of a car stopped for eluding, stated that he was “concerned” about the people who had approached the car at the house, and testified that he “did not know if [Kelley] was armed or not. That was the reason for the pat-down.”

Notwithstanding the officer’s failure to testify that he believed Kelley was armed and dangerous at the time of the stop, we will assume without deciding that the officer’s expressed “concerns” about the vehicle driver’s failure to immediately comply with the stop and about Kelley’s interactions with bystanders at the stop gave the officer a reason to believe that Kelley was armed and dangerous and that the pat-down search thus was constitutionally permissible under Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968). We nevertheless agree with Kelley that the state has failed to show the officer was authorized to go beyond the pat-down search and reach into Kelley’s pockets.

A Terry pat-down [search], unlike a full search, is conducted for the purpose of ensuring the safety of the officer and of others nearby, not to obtain evidence for use at trial. It is a minimal intrusion reasonably designed to discover guns, knives, clubs, or other weapons that could prove dangerous to a police officer.

(Citation omitted.) Sudduth v. State, 288 Ga. App. 541, 542 (2) (654 SE2d 446) (2007). Accordingly, an officer may intrude beneath the surface of a suspect’s outer clothing in only two instances: “(1) if he comes upon something that feels like a weapon, or (2) if he feels an object whose contour or mass makes its identity as contraband immediately apparent.” (Citation omitted.) Id. The officer must express a degree of certainty in identifying the item as contraband, id., although the officer need not “conclusively identify” it as a specific drug. Holmes v. State, 267 Ga. App. 651, 653 (601 SE2d 134) (2004).

The officer’s testimony in this case does not support his intrusion into Kelley’s pockets. He stated that he retrieved the round object in Kelley’s pocket “for officer safety” because he was concerned about Kelley putting his hands on that item. But when asked whether he thought the round object was a weapon, the officer responded, “I didn’t know at that particular time that I had my hand on it. It was still inside his pocket.” The officer then reiterated, “I didn’t know what [the object] was at the time it was in his pocket and I could not see that object.” We have held that an officer is not authorized during a pat-down search to intrude into a defendant’s pocket to retrieve an item that the officer cannot identify, simply because the officer believes the item could be a weapon or could contain a weapon. See Brown v. State, 293 Ga. App. 564, 565-566 (1) (667 SE2d 410) (2008) (officer testified that he felt a “hard foreign object” in the defendant’s pocket, that he did not know what the object was, but that “anything can house a weapon”); Howard v. State, 253 Ga. App. 158, 159-161 (558 SE2d 745) (2002) (officer testified that he felt in defendant’s pocket a “very hard and round object,” that he was “really unsure of what it was at that time,” and that he “could not rule out ‘specifically’ that the object. . . might be a weapon”). While an officer need not

be absolutely positive that an object is a weapon in order to protect himself by looking to make sure[,] ... to satisfy the Fourth Amendment when dealing with what may be an unusual weapon, an officer must provide specific and articulable facts which reasonably support a suspicion that the particular suspect is armed with an atypical weapon which would feel like the object felt during the pat-down [search].

(Citations and punctuation omitted.) Howard, 253 Ga. App. at 161. Cf. Mohamed v. State, 276 Ga. 706, 710 (2) (583 SE2d 9) (2003) (officer authorized to intrude into defendant’s pocket after feeling what he believed to be firm plastic cards where his testimony showed that, at time he reached into pocket, he knew defendant had already lied about two items in his pockets that could be used as weapons and he knew that the sort of objects he felt in the pocket could be fashioned into weapons).

The state cites Pace v. State, 219 Ga. App. 583 (466 SE2d 254) (1995), for the proposition that Kelley’s act of moving his hand toward his pocket gave the officer a basis to search his pockets. But the officer in Pace, who had searched the defendant’s pocket without first conducting a pat-down search, testified that the defendant “was obviously reaching for something that we felt was a threat to us” and pointed to other, specific facts that supported a reasonable belief that the defendant was reaching for a weapon. Id. at 584-586. Here, in contrast, even after having felt the object in Kelley’s pocket, the officer was unable to state that he thought it was a weapon of any kind or point to any other, specific facts that would support such a belief.

Because the officer did not testify either that the object he felt in Kelley’s pocket felt like a weapon or that its identity as contraband was immediately apparent from its contour or mass, the trial court erred in refusing to suppress the evidence seized from Kelley’s pockets. See Brown, 293 Ga. App. at 566 (1).

Decided March 18, 2013.

James W. Smith, for appellant.

Robert W. Lavender, District Attorney, James W. Webb, Assistant District Attorney, for appellee.

Judgment reversed.

Barnes, P. J., concurs. McMillian, J., concurs specially and in judgment only.

MCMILLIAN, Judge,

concurring specially and in judgment only. I concur in the judgment only. Although I agree with the outcome of this case, I do not believe that the majority needs to reach the issue of whether the search of Kelley’s pockets exceeded the scope of the pat-down search because the pat-down search was not constitutionally permissible under Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968). See Molina v. State, 304 Ga. App. 93, 95 (695 SE2d 656) (2010) (holding that “an initial frisk must be ‘supported by a reasonable belief that [the defendant] was armed and presently dangerous, a belief which this Court has invariably held must form the predicate to a pat-down of a person for weapons.’ ”) (Citation omitted.). Here, the officer unequivocally testified that he did not intend to arrest Kelley when he asked Kelley to exit the vehicle and that he had no reason to believe that Kelley was armed at that time. Accordingly, the trial court erred in denying Kelley’s motion to suppress.