author: Miller, Presiding Judge.

text:
    A11A0837.
    A11A0838.
    ROBINSON v. THE STATE. ROGERS v. THE STATE.
    (719 SE2d 601)
   Miller, Presiding Judge.

Co-defendants George Robinson and Larry Rogers were indicted and convicted on one count of conspiracy to commit theft by receiving stolen property, OCGA §§ 16-4-8, 16-8-7, as well as twelve counts of theft by receiving stolen property, OCGA § 16-8-7 (a). Robinson and Rogers each subsequently filed and amended motions for new trial, which were denied by the trial court. Robinson and Rogers each filed notices of appeal.

In Case No. A11A0837, Robinson contends that (i) there was insufficient evidence to sustain his convictions on several counts, on the grounds that the State presented only hearsay evidence in support of certain elements of those crimes; (ii) the trial court erred by denying his motion for new trial; (iii) he received ineffective assistance of counsel; and (iv) the trial court erred in denying his motion to suppress, denying his motion for mistrial, charging the jury on “deliberate ignorance,” and overruling his objection to the State’s use of his prior conviction for impeachment. As further detailed in Division 4 (d) below, we remand Case No. A11A0837 with direction that the trial court enter express findings on the record as to whether Robinson’s prior conviction was admissible under the balancing test required by OCGA § 24-9-84.1 (b). If the trial court determines that the prior conviction was inadmissible after engaging in this balancing test, then a new trial will be required. If the trial court determines that the prior conviction was admissible, then a new trial will not be mandated, in which case we affirm as to Robinson’s remaining enumerations of error.

In Case No. A11A0838, Rogers contends that (i) the trial court erred in allowing similar transaction evidence; (ii) he was denied conflict-free assistance of counsel; (iii) the trial court erred by failing to recuse itself; (iv) the trial court erred by allowing the State to inform the jury that Rogers fled during his first trial; and (v) the trial court erred by denying his motion for continuance. Discerning no error, we affirm as to all of Rogers’s enumerations of error.

On appeal from a criminal conviction, we view the evidence in a light most favorable to the jury’s verdict to determine whether the evidence was sufficient to prove guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979); Goss v. State, 305 Ga. App. 497, 497 (699 SE2d 819) (2010).

So viewed, the stolen property identified in this case was primarily recovered from several warehouses — including one at 2520 Park Central Boulevard (“Park Central”) and one at 2372 South Stone Mountain Lithonia Road (“South Stone Mountain”) — and a clothing store called Vibez. Documents seized from the Park Central warehouse indicated that a trucking company called Robin Express was being operated from the warehouse. The Park Central warehouse also contained a number of the documents on which Robinson’s and Rogers’s names appeared, including a letter addressed to “Robin Express, care of George Robinson.”

Robin Express was formerly known as Starlight Enterprise, which was formed in 1984 by long-time business partners, Robinson and Rogers; Robinson was named as the CEO. Robin Express became defunct approximately two years later, but was reactivated in 1999 by Robinson’s daughter and Rogers, with Robinson’s daughter replacing Robinson as the CEO. Rogers ran the Robin Express trucking business, along with Robinson’s daughter, out of the Park Central warehouse. An employee of Starlight Enterprise, and later Robin Express, likewise testified that the company’s office was located at the Park Central warehouse. During his employment, the employee owned and operated his own truck and would haul a load of goods from the Park Central warehouse about once a week. The employee saw both Robinson and Rogers at the Park Central warehouse. Based on the truck driver’s observations and interactions with people in the company, he understood Robinson to be the person in charge of the entire organization and Rogers to be the second-in-command.

According to witness Deb Wright, who had been in the business of brokering deals between people stealing truckloads of goods and people who were willing to buy them, Robinson and Rogers ran a trucking company out of a warehouse located at Park Central Boulevard. Wright brokered deals to help Robinson and Rogers sell truckloads of stolen items. Wright claimed that she had spent time at the Park Central warehouse and knew that both Robinson’s daughter and Rogers had offices there. Wright recalled seeing stolen washing and drying machines, goods which she had in fact brokered, in the Park Central warehouse. On the occasions when Wright was present during the unloading of stolen truckloads, she saw Robinson pay cash to the individuals delivering the stolen goods.

Robin Express also utilized another smaller warehouse at South Stone Mountain. Wright knew that Robinson and Rogers ran this warehouse because she had gone there to broker a deal for stolen mattresses. A tractor and trailer belonging to Robin Express were ultimately seized from the South Stone Mountain warehouse, and their corresponding title information was recovered from the Park Central warehouse. A number of stolen articles seized from the South Stone Mountain warehouse were of the same type as those recovered from the Park Central warehouse.

According to the Robin Express employee, the same people who ran the Park Central warehouse, including Robinson and Rogers, also owned and operated Vibez. Deb Wright, who was a customer of Vibez, described it as a store that sold discounted clothing and other various housewares. According to Wright, she did not have to pay sales tax when she made purchases at Vibez. She also stated that it was possible to negotiate a lower purchase price for Vibez merchandise, but that generally only Robinson and Rogers had authority to approve a lower price. Wright testified that Rogers worked at Vibez in an office at the back of the store. Some of the stolen merchandise seized from the Vibez clothing store was the same as that found at the Park Central and South Stone Mountain warehouses.

Following their arrests and indictment, Robinson, Rogers, and their other implicated co-defendants were scheduled for a joint trial commencing September 19, 2005. During a break at the beginning of trial, however, Robinson, Rogers, and Robinson’s son fled the courtroom, and the trial did not go forward. Within a few days after their flight, Robinson and Rogers obtained fake Mississippi driver’s licenses using aliases. Robinson and Rogers were subsequently captured and tried together before a jury in December 2008.

Case No. A11A0837

1. In his first enumeration of error, Robinson sets forth insufficiency claims concerning certain elements of three theft offenses of which he was convicted, specifically challenging Counts 4, 7, and 18 of the indictment. Addressing only the specific grounds of sufficiency challenged in Robinson’s enumeration, we consider each of Robinson’s contentions in turn under the Jackson standard, supra, 443 U. S. at 319 (III) (B), set forth above.

(a) Count 4 of the indictment charged Robinson with theft by receiving stolen property, specifically, Maytag washing machines valued at over $500 and belonging to Jacobson Transportation Company.

A person commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen unless the property is received, disposed of, or retained with intent to restore it to the owner. “Receiving” means acquiring possession or control ... of the property.

(Punctuation omitted.) OCGA § 16-8-7 (a).

Robinson argues that there was insufficient evidence to support Count 4 based solely upon his claim that there was no nonhearsay evidence presented as to either the location from which the Maytag washing machines were recovered, or the value of the Maytag washing machines. First, the value of the stolen property is not an essential element of the crime of theft by receiving stolen property and is relevant only in order to distinguish between a felony and a misdemeanor for purposes of sentencing. Duncan v. State, 278 Ga. App. 703, 704 (1) (629 SE2d 577) (2006). “As long as it appears that the stolen property is of some value, the conviction can be sustained.” (Citation and punctuation omitted.) Id. At trial, a Jacobson Transportation Company employee testified that a load of 126 Maytag washing and drying machines, valued at approximately $35,000, was stolen from the company in 2003. The employee testified that a portion of the stolen equipment, valued at approximately $20,000, was later recovered in a DeKalb County warehouse and was retrieved by one of the company’s truck drivers. This testimony, which the record reflects as being based upon the employee’s personal knowledge, was sufficient to show that the stolen Maytag washing machines were of some value.

Second, evidence as to the specific location from which the Maytag washing machines were recovered was required to show that Robinson had possession or exercised control over the stolen Maytag washing machines. See Buchanan v. State, 254 Ga. App. 249, 250 (1) (562 SE2d 216) (2002) (“Receiving [under OCGA § 16-8-7 (a)] means . . . that the person had the right to exercise power over a corporeal thing, or there exists some evidence, either direct or circumstantial, that the accused was a party to the crime by aiding and abetting its commission.”) (punctuation and footnote omitted); see also Brady v. State, 169 Ga. App. 316, 318 (3) (312 SE2d 632) (1983) (“[0]ne need not be the owner of [a] premises in order to be deemed in possession of the goods contained therein.”) (citation and emphasis omitted). Here, the Jacobson Transportation Company employee testified from personal knowledge that the company’s stolen Maytag washing machines were recovered from a warehouse in DeKalb County. In relaying the specific location of the DeKalb County warehouse, however, the employee mistakenly identified its address as “2520 Park Continental Boulevard” and “Park Centennial Boulevard,” rather than the 2520 Park Central Boulevard address reflected in the police property and evidence sheet. Nevertheless, the witness’s misstatements concerning the specific address of the DeKalb County warehouse did not render the evidence insufficient as to the location from where the stolen property was recovered. Cf. Schofield v. State, 261 Ga. App. 70, 70-71 (582 SE2d 11) (2003) (holding that witness’s misstatement concerning the address of the crime scene did not render evidence of venue insufficient where testimony given otherwise supported the fact that the crime scene was in Fulton County and concluding that “[a]ny conflict in the evidence created by a misstatement of the address was resolved by the jury, as it is authorized to do, in favor of venue in Fulton County”) (citation and footnote omitted). Even without considering the police property and evidence sheet, the employee’s testimony taken as a whole was sufficient for the jury to infer that Park Central was the DeKalb County warehouse from where the stolen Maytag washing machines were recovered. Therefore, Robinson’s insufficiency arguments as to Count 4 are meritless.

(b) Count 7 of the indictment charged Robinson with theft by receiving stolen property, specifically, United Parcel Service (“UPS”) items valued at over $500 and belonging to Norfolk Southern Railroad. Robinson’s insufficiency argument rests solely upon his claim that no nonhearsay evidence was presented as to whether the UPS items were the property of Norfolk Southern Railroad. However, “the identity of the owner is not a material element of the crime of theft by receiving. The State need only show that the stolen property belonged to someone other than the defendant.” (Citations omitted.) Cheney v. State, 307 Ga. App. 66, 68 (703 SE2d 664) (2010); Greeson v. State, 253 Ga. App. 161, 165 (4) (558 SE2d 749) (2002) (“[OJwnership is important only in the sense of whether the goods were owned by someone other than the accused.”) (citation and footnote omitted). Here, a UPS security department employee testified that, at the request of Norfolk Southern Railroad, he retrieved stolen UPS items from the Park Central warehouse and identified them as the UPS items stolen from the possession of Norfolk Southern Railroad in 2000. This testimony, which the record reflects as being based upon the UPS employee’s personal knowledge, was sufficient to show that the UPS items were owned by someone other than Robinson. His sufficiency argument as to Count 7 is therefore without merit.

(c) Count 18 of the indictment charged Robinson with theft by receiving stolen property, specifically, Sealy mattresses valued at over $500 and belonging to Sealy Mattress Company. Like his other sufficiency claims, Robinson’s argument is based solely upon his claim that no nonhearsay evidence was presented as to either the location from which the Sealy mattresses were recovered or the value of the Sealy mattresses.

As discussed in Division 1 (a) above, the State need only show that the stolen Sealy mattresses were of some value to sustain Robinson’s conviction. Duncan, supra, 278 Ga. App. at 704 (1). Thus, the testimony of a Sealy Mattress Company plant manager that, based on his own personal knowledge, the stolen mattresses were worth more than $500, was sufficient. Moreover, contrary to Robinson’s contention otherwise, the State did present nonhearsay evidence as to the specific locations from which the stolen Sealy mattresses were recovered. Notably, two of the investigating officers testified from their own personal knowledge that they recovered stolen Sealy mattresses from both the Park Central and South Stone Mountain warehouses. See Smith v. State, 304 Ga. App. 708, 709-710 (1) (699 SE2d 742) (2010) (“We have frequently held that an investigating officer’s testimony concerning his personal knowledge of the crimes investigated by him is not hearsay.”) (citations omitted). Thus, Robinson’s insufficiency arguments regarding Count 18 lack merit.

2. Robinson contends that the trial court improperly denied his motion for new trial, expressly arguing that the verdict was contrary to the evidence and the principles of justice and equity, and decidedly against the weight of the evidence. Robinson also claims that the State failed to prove he was guilty beyond a reasonable doubt, and regardless, the evidence was sufficiently close to warrant the trial court to exercise its discretion in granting a new trial. Of course, such arguments “may only be made to a trial court in a motion for new trial, not to an appellate court on appeal. We do not have the discretion to grant a new trial on these grounds.” (Citations and punctuation omitted.) Lewis v. State, 304 Ga. App. 831, 833 (1) (698 SE2d 365) (2010). “The grant or denial of a motion for new trial is a matter within the sound discretion of the trial court and will not be disturbed if there is any evidence to authorize it.” (Footnote omitted.) Taylor v. State, 259 Ga. App. 457, 460 (2) (576 SE2d 916) (2003); see also Souder v. State, 301 Ga. App. 348, 352 (3) (687 SE2d 594) (2009) (“A trial judge’s denial of a motion for new trial on eviden-tiary grounds will be reversed on appeal only if there is no evidence to support the verdict.”) (citation and punctuation omitted).

[Where] an appellant is asking this court to review a lower court’s refusal to grant a new trial. . ., this [CJourt can only review the case under the standard espoused in Jackson v. Virginia, [supra, 443 U. S. 307] to determine if the evidence, when viewed in the light most favorable to the prosecution, supports the verdict.

(Citations and punctuation omitted.) Colzie v. State, 289 Ga. 120, 121 (1) (710 SE2d 115) (2011).

Although circumstantial, the evidence viewed in the light most favorable to the prosecution was enough for a rational trier of fact to find Robinson guilty of the conspiracy and theft offenses of which he was convicted. Therefore, the trial court did not err in refusing to grant Robinson’s motion for new trial. See Taylor, supra, 259 Ga. App. at 461 (2).

3. Robinson contends that he was denied effective assistance of counsel. To establish ineffective assistance of counsel under Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), a criminal defendant bears the burden of showing “that counsel’s performance was deficient and that the deficient performance so prejudiced defendant that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different.” (Citations omitted.) Johnson v. State, 287 Ga. 767, 769 (2) (700 SE2d 346) (2010). “[T]here is no reason for a court deciding an ineffective assistance claim ... to address both components of the inquiry if the defendant makes an insufficient showing on one.” (Punctuation omitted.) Strickland, supra, 466 U. S. at 697 (IV). “The trial court’s determination with respect to effective assistance of counsel will be affirmed unless its findings are clearly erroneous.” (Citation omitted.) Johnson, supra, 287 Ga. at 769 (2).

For the reasons set forth below, we conclude that the record and the law in this case support the trial court’s finding that the conduct of which Robinson complains did not amount to ineffective assistance of trial counsel.

(a) In a one-sentence argument, Robinson first contends that his trial counsel was ineffective by failing to file a motion to sever Robinson’s trial from that of his co-defendant, Rogers. There is no merit to Robinson’s claim.

Robinson’s ineffectiveness argument is based solely upon his conclusory statement that the outcome of his trial would have been different had his trial counsel moved to sever his case from Rogers’s case. At the motion for new trial hearing, trial counsel explained that he did not seek a severance because he did not see any grounds upon which to move for one, specifically once it was established that Robinson and Rogers would be tried for their involvement in the same conspiracy. As an initial matter, the decision regarding whether to file a motion to sever is a matter of trial tactics and strategy, and the fact that such a motion was not filed does not require a finding that trial counsel was ineffective. Clowers v. State, 299 Ga. App. 576, 579 (2) (c) (683 SE2d 46) (2009); Mitchell v. State, 220 Ga. App. 264, 265 (469 SE2d 707) (1996). Moreover, Robinson completely “fails to show that a motion to sever would have been granted. ...” (Footnote omitted.) Clowers, supra, 299 Ga. App. at 579 (2) (c). “Such decisions are within the discretion of the trial court, and a defendant must do more than raise the possibility that a separate trial would give him a better chance of acquittal. He must make a clear showing of prejudice and a consequent denial of due process.” (Citation and punctuation omitted.) Mitchell, supra, 220 Ga. App. at 266. Robinson failed to do so here.

Accordingly, Robinson cannot demonstrate that trial counsel was ineffective on the grounds that he did not file a motion to sever.

(b) In a similar one-sentence argument, Robinson claims that his trial counsel was also ineffective by failing to object to the trial court’s jury charge that the State’s burden to prove venue for the conspiracy charge was “beyond a reasonable belief,” rather than “beyond a reasonable doubt.”

The trial court instructed the jury that

it is not necessary in order to establish venue that the State prove that the defendants ever entered into the county or ever came into the county, provided you find beyond a reasonable belief that the substantive offense was committed in this county and you find that the defendant was a party to it or a conspirator.

When later questioned about why he failed to object to this jury instruction, trial counsel explained that he had not noticed the trial court’s misstatement. Even if trial counsel’s failure to object rendered his performance deficient, however, Robinson failed to demonstrate that such deficiency so prejudiced him that there is a reasonable likelihood that, but for trial counsel’s error, the outcome of the trial would have been different. See Render v. State, 288 Ga. 420, 424 (2) (b) (704 SE2d 767) (2011).

The instruction as given must be considered by this Court in the context of the trial court’s charge as a whole. This is also the case when the challenge to a specific jury instruction is made in the context of a claim of the ineffective assistance of counsel. ... [A]s a general rule, the existence of a mere verbal inaccuracy in a jury instruction, resulting from a palpable “slip of the tongue” and which could not have misled or confused the jury will not provide a basis for reversal of a defendant’s conviction.

(Citation and punctuation omitted.) Id. In this case specifically, where the record reveals that the trial judge used the correct phrase, “beyond a reasonable doubt,” numerous times prior to his “slip of the tongue,” and where the concept of reasonable doubt was repeatedly and accurately conveyed to the jury, no reversible error occurred. Cf. Hann v. State, 292 Ga. App. 719, 723-724 (7) (665 SE2d 731) (2008) (holding trial court’s reference to “reasonable certainty” did not constitute reversible error where “the charge given as a whole repeatedly and accurately conveyed the concept of reasonable doubt”); Mendoza v. State, 274 Ga. App. 662, 664 (2) (618 SE2d 712) (2005) (“In looking at the entirety of the jury instructions, it is clear that no harm was committed, as the trial transcript reflects that the judge used the correct phrase, ‘beyond a reasonable doubt,’ several times, both before and after the erroneous charge [that the jury would be authorized to convict if it found defendant guilty ‘behind’ a reasonable doubt].”).

“Under these circumstances, we cannot conclude that reversal is required on ineffectiveness grounds.” Henderson v. State, 252 Ga. App. 295, 298 (1) (b) (556 SE2d 204) (2001).

4. In a single enumeration, Robinson sets forth four different errors of law that were allegedly committed by the trial court below. Specifically, Robinson claims that it was error for the trial court to (a) deny Robinson’s motion to suppress certain evidence that was improperly seized; (b) deny Robinson’s motion for mistrial; (c) give the State’s requested jury instruction on “deliberate ignorance”; and (d) allow the State to impeach Robinson with his prior bail-jumping conviction. Each of these claims generally consist of little more than Robinson’s conclusory statement that the trial court’s conduct violated his rights under the state and federal constitutions.

(a) Robinson asserts that the trial court erred by denying his motion to suppress all evidence obtained following the execution of search warrants for three warehouse locations, the Vibez clothing store, and Robinson’s vehicle and residence, claiming that the search warrants “for said locations were improperly and unconstitutionally issued without sufficient probable cause.”

When we review a trial court’s decision on a motion to suppress, the evidence is construed most favorably to uphold the findings and judgment of the trial court; the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous and will not be disturbed if there is any evidence to support them.

(Punctuation and footnote omitted.) Brown v. State, 307 Ga. App. 797, 801 (2) (706 SE2d 170) (2011).

So viewed, the evidence adduced at the suppression hearing includes the affidavits submitted in support of the search warrants for Robinson’s residence, as well as the three warehouses, including Park Central and South Stone Mountain. These “affidavit[s] on [their] face provided the magistrate with enough information to come to the ‘practical, common-sense’ conclusion that there was a fair probability that evidence of a crime could be found at [each of those locations].” State v. Hunter, 282 Ga. 278, 279 (646 SE2d 465) (2007). In light of the substantial deference we must give to a magistrate’s finding of probable cause, we conclude that the trial court did not err in denying Robinson’s motion to suppress the evidence obtained from the three warehouses and his residence.

We likewise affirm the trial court’s ruling with respect to the evidence obtained from Robinson’s vehicle. Notably, such evidence included only a framed stamp and coin collection. Because the framed stamp and coin collection did not form the basis of any of the crimes for which Robinson was convicted, “we find no reasonable possibility that the evidence may have contributed to the verdict.” Ramirez v. State, 279 Ga. 569, 575 (6) (619 SE2d 668) (2005). Thus, even if such evidence was acquired “as the result of an unlawful seizure, we nevertheless affirm the trial court’s denial of the motion to suppress because any error in that ruling was harmless beyond a reasonable doubt.” Id. at 574 (6); accord White v. State, 258 Ga. App. 546, 548 (2) (574 SE2d 629) (2002).

Finally, as to the evidence obtained from the Vibez clothing store, the trial court found that such was lawfully seized pursuant to the plain view exception to the search warrant requirement. We agree.

Objects within the plain view of an officer who is in a lawful position are subject to seizure and may be introduced into evidence. The plain view rule applies only if (1) the initial intrusion which afforded the plain view was lawful, (2) the discovery of the evidence was inadvertent, and (3) the incriminating nature of the evidence was immediately apparent.

(Citation omitted.) Reid v. State, 298 Ga. App. 889, 891 (2) (681 SE2d 671) (2009). According to the investigating officer’s testimony at the motion to suppress hearing, the police entered Vibez during business hours in search of Robinson’s son, who purportedly owned the store, to execute an outstanding warrant relating to an investigation of stolen property located at the Park Central warehouse. The door to the store was open and unlocked, and there were no signs indicating the store’s hours or that the store was otherwise closed. As no salesperson was present inside the store, the investigating officers proceeded to look around the store for Robinson’s son. While doing so, the officers saw a sales display containing some of the same stolen merchandise that they had previously uncovered from the Park Central warehouse. This evidence authorized the determination that the stolen merchandise was in plain view, and likewise supported the trial court’s denial of Robinson’s motion to suppress the evidence seized from Vibez. Cf. id. at 892 (2).

(b) Robinson challenges the trial court’s denial of his motion for mistrial, contending that his character was improperly placed into evidence when the trial court read certain “unproven and unsubstantiated allegations” set forth in Count 2 of the indictment, charging Robinson with conspiracy to commit the offense of theft by receiving stolen property. “The abuse of discretion standard applies to the review of the denial by the trial court of a motion for mistrial.” (Citation omitted.) Underwood v. State, 218 Ga. App. 530, 534 (3) (462 SE2d 434) (1995).

Robinson specifically points to the third overt act set forth in Count 2, which accused Robinson of threatening an unindicted co-conspirator, following his arrest for delivering stolen property, to ensure said co-conspirator would not cooperate with law enforcement. As an initial matter, the trial court’s reading of this portion of the indictment does not necessarily equate with an improper introduction of character evidence. Notably, the trial court repeatedly instructed the jury that it was not to consider the indictment as evidence in the case.

Moreover, even if we were to assume that the trial court’s reading of this overt act incidentally placed Robinson’s character into evidence, we discern no abuse of discretion in denying Robinson’s motion for mistrial on such ground.

The | s]urrounding circumstances constituting part of the res gestae may always be shown to the jury along with the principal fact, and their admissibility is within the discretion of the trial court. Hence, acts and circumstances forming a part or continuation of the main transaction are admissible as res gestae[,] and it does not matter that the act is another criminal offense and does not tend to establish the main offense.

(Citation omitted.) Gumbs v. State, 258 Ga. App. 230, 231 (2) (573 SE2d 485) (2002). Here, the main transaction was the conspiracy to commit the offense of theft by receiving stolen property, and the threatening of an unindicted co-conspirator following his arrest for delivering stolen property was an overt act in continuation of that transaction. Cf. id. “The fact that such part of the res gestae incidentally placed [Robinson’s] character in issue does not render it inadmissible.” (Citation and punctuation omitted.) Roberts v. State, 221 Ga. App. 196, 198 (2) (471 SE2d 27) (1996).

Accordingly, we affirm the trial court’s denial of Robinson’s motion for mistrial.

(c) Robinson argues that it was error for the trial court to give the State’s requested jury instruction on “deliberate ignorance.” “It is well established that in reviewing an allegedly erroneous jury instruction, we apply the plain legal error standard of review.” (Punctuation and footnote omitted.) Judice v. State, 308 Ga. App. 229, 232 (3) (707 SE2d 114) (2011).

Robinson specifically argues that the trial court’s deliberate ignorance charge “was inappropriate for the evidence admitted at trial.” We disagree. “The deliberate ignorance instruction is based on the alternative to the actual knowledge requirement at common law that if a party has his suspicions aroused but then deliberately omits to make further enquiries, because he wishes to remain in ignorance, he is deemed to have knowledge.” (Citation and punctuation omitted.) Perez-Castillo v. State, 257 Ga. App. 633, 634 (572 SE2d 657) (2002).

An instruction on deliberate ignorance is appropriate when the facts support the inference that the defendant was aware of a high probability of the existence of the fact in question and purposely contrived to avoid learning all of the facts in order to have a defense in the event of a subsequent prosecution.

(Citation and punctuation omitted.) Aguilera v. State, 293 Ga. App. 523, 525 (1) (667 SE2d 378) (2008). Testimony supporting such an inference existed in this case.

Notably, Robinson specifically denied that he had anything to do with Robin Express or that he knew anything about it. Robinson nevertheless conceded that Robin Express was the name on his cell phone account. Robinson likewise denied any involvement in the trucking business and claimed that he and Rogers were partners only in an unrelated loan business. He admitted, however, that a substantial amount of his loan business documents were found at the Park Central warehouse. Robinson also testified that he had been to the Park Central warehouse about 15 to 20 times, but that he would go only for the purpose of visiting. When asked why he would sometimes answer the Park Central warehouse phone, Robinson gave inconsistent responses, including “to set up stuff,” he did not “really know why [he] answered the phone,” and “it was because somebody told [him] to go over there at a certain time.” Robinson also denied any connection to Vibez, but admitted he was there all the time because he brokered numerous loans at the barbershop next door. In response to whether he had authority to decide purchase prices for Vibez merchandise, Robinson maintained that he had nothing to do with Vibez, but explained that a Vibez receipt might say “this sale is okay per George,” because he would help the store in “playing up the customer.” Finally, Robinson testified that the reason he fled the courtroom in 2005 was because it looked like he was “getting wrapped up into something that nobody really had no involvement with other than [his] son and daughter”

“This evidence was more than sufficient to support the instruction to the jury.” Polite v. State, 273 Ga. App. 235, 242 (8) (614 SE2d 849) (2005) (“To authorize a jury instruction on a subject, there need only be produced at trial slight evidence supporting the theory of the charge.”) (citation and punctuation omitted). Therefore, the trial court’s instruction on deliberate ignorance was not error. Aguilera, supra, 293 Ga. App. at 525 (1).

(d) Robinson argues that it was error to allow the State, over Robinson’s objection, to impeach him with his prior bail-jumping conviction. A trial court’s finding of the admissibility of prior convictions “is subject to scrutiny for harmless error and a new trial is not automatically required.” (Citations and punctuation omitted.) Lawrence v. State, 305 Ga. App. 199, 203 (3) (699 SE2d 406) (2010).

On cross-examination, the State was permitted to impeach Robinson’s credibility by introducing a certified copy of his 1984 conviction for bail jumping. When ruling upon the admissibility of a defendant’s prior conviction that is more than ten years old, the trial court is authorized to admit such evidence only when it “determines, in the interest of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.” OCGA § 24-9-84.1 (b). This Court requires “that the trial court’s findings be made expressly on the record to ensure compliance with the procedural safeguards provided under the statute.” (Citation and footnote omitted.) Miller v. State, 298 Ga. App. 792, 797 (4) (681 SE2d 225) (2009).

With respect to a defendant’s prior convictions that are less than ten years old, we have found it to be error where a trial court admits such without making an express ruling that the probative value of admitting the evidence substantially outweighs its prejudicial effect to the defendant, as required by OCGA § 24-9-84.1 (a) (2). See, e.g., Johnson v. State, 307 Ga. App. 791, 793 (706 SE2d 150) (2011); Lawrence, supra, 305 Ga. App. at 202-203 (3). In so holding, this Court has reasoned “that the legislature, in using the word ‘substantially’ in OCGA § 24-9-84.1 (a) (2) for the impeachment of a defendant, intended to create a standard different from that provided in OCGA § 24-9-84.1 (a) (1)[] for the impeachment of a witness.” Lawrence, supra, 305 Ga. App. at 202 (3); accord Johnson, supra, 307 Ga. App. at 793.

We construe OCGA § 24-9-84.1 (b) in the same light, again recognizing that “where the legislature uses certain language in one part of the statute and different language in another, the [C]ourt assumes different meanings were intended.” (Citation and punctuation omitted.) Lawrence, supra, 305 Ga. App. at 202 (3). Accordingly, we assume that the legislature intended to address “the slight probative value of over-age convictions,” Hinton v. State, 280 Ga. 811, 819 (7) (631 SE2d 365) (2006), by creating a standard different from those provided in OCGA § 24-9-84.1 (a) (1) and (2). Thus, when ruling on the admissibility of prior convictions under OCGA § 24-9-84.1 (b), a trial court is required to make express findings that in the interest of justice, the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. As we have held with respect to the express balancing test required under OCGA § 24-9-84.1 (a) (2), “[f] actors to be considered include the kind of felony involved, the date of the conviction, and the importance of the witness’s credibility.” (Footnote omitted.) Quiroz v. State, 291 Ga. App. 423, 428 (4) (662 SE2d 235) (2008).

Here, the trial court ruled that “given [Robinson’s] testimony and given the facts of this case,” his 1984 bail-jumping conviction was “something that the jury [could] consider.” Although the trial court made a ruling that Robinson’s prior conviction was admissible, it failed to make the required express findings under the proper standard. Although the trial court’s error is subject to scrutiny for harmless error, the fact that Robinson’s convictions were primarily based upon circumstantial evidence forecloses the conclusion that the overwhelming evidence established Robinson’s guilt so as to make the admissibility of the prior conviction harmless beyond a reasonable doubt. Miller, supra, 298 Ga. App. at 797 (4). “Under these circumstances, we are unable to conclude whether a new trial is required at this time.” Id. Instead, we must remand this case with direction to the trial court to enter express findings on the record as to whether, in the interest of justice, the probative value of Robinson’s 1984 bail-jumping conviction substantially outweighed its prejudicial effect, considering the factors set forth in Quiroz. See id. If the trial court determines that the prior conviction was inadmissible after engaging in the balancing test required under OCGA § 24-9-84.1 (b), then a new trial will be required. See id. “But, if the trial court determines that the prior conviction was admissible, a new trial will not be mandated, subject to appellate review for an abuse of discretion.” (Citation omitted.) Id.

Case No. A11A0838

5. Rogers first argues that the trial court erred by allowing similar transaction evidence. “Absent an abuse of discretion, we will not disturb a trial court’s determination that similar transaction evidence is admissible.” (Citation omitted.) Porter v. State, 264 Ga. App. 526, 531 (4) (591 SE2d 436) (2003).

The Supreme Court of Georgia in Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991), established that the State, at a Uniform Superior Court Rule (“USCR”) 31.3 (B) hearing, “must make three affirmative showings as to each independent offense or act it seeks to introduce.” Specifically, the State must show

that it is seeking to introduce the evidence for a permissible purpose; there is sufficient evidence that the accused committed the independent offense or act; and there is a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter.

(Punctuation and footnote omitted.) Mattox v. State, 287 Ga. App. 280, 282 (1) (651 SE2d 192) (2007).

Before trial, the State filed a notice of intent to present evidence of Rogers’s June 6, 2007, arrest in Cobb County for theft by receiving stolen property as similar transaction evidence. During the USCR 31.3 (B) hearing, the State set forth the similar transaction evidence, and then went on to inform the trial court of how the evidence satisfied the three Williams requirements. The State asserted that the 2007 Cobb County arrest and the theft and conspiracy crimes charged all involved Rogers’s participation in the warehouse deliveries and cash sales of truckloads of stolen goods. Notably, evidence of the 2007 Cobb County arrest showed that Rogers was observed backing a Ryder box truck, which had been rented under the name of Rogers’s alias, directly into the loading dock of a warehouse. Accompanying the truck was a separate vehicle driven by Robinson’s daughter. Robinson’s daughter and Rogers went into the warehouse for approximately 15 minutes. Shortly after leaving the warehouse, their respective vehicles were stopped and searched by the police. The cargo area of the Ryder truck was found to be empty with the exception of several of the same stolen Casio calculators that were later recovered from a search of the warehouse. A search of the vehicle driven by Robinson’s daughter revealed $10,000 in cash that was bundled in the same manner as $30,000 in cash recovered from a search of the warehouse. We agree with the trial court that this evidence was admissible for the purpose of showing a common scheme or plan, or a modus operandi; that there was sufficient evidence to find that Rogers was the person who committed the act; and that there was sufficient similarity between the prior Cobb County arrest and the crimes charged. Thus, the trial court did not abuse its discretion in admitting evidence of Rogers’s prior Cobb County arrest as similar transaction evidence. See Woods v. State, 275 Ga. App. 340, 342 (1) (a) (620 SE2d 609) (2005) (concluding that details of prior arrest were admissible as similar transaction evidence where such involved circumstances similar to those giving rise to defendant’s theft charges, even though defendant was never prosecuted for prior arrest).

6. Rogers raises ineffective assistance in his second enumeration, contending that he was denied his right to conflict-free assistance of counsel. Specifically, Rogers argues that trial counsel should have withdrawn upon learning that Rogers had filed a lawsuit against him. We will not disturb a trial court’s findings regarding a defendant’s claim of ineffective assistance of counsel unless clearly erroneous. Williams v. State, 273 Ga. App. 213, 217 (3) (614 SE2d 834) (2005).

In order for a criminal defendant to prevail on a claim that his attorney was ineffective due to a conflict of interest, he must show that an actual conflict of interest adversely affected his lawyer’s performance. Furthermore, the conflict of interest must be palpable and have a substantial basis in fact. A theoretical or speculative conflict will not impugn a conviction which is supported by competent evidence.

(Citation, punctuation and footnote omitted.) Holsey v. State, 291 Ga. App. 216, 221 (3) (b) (661 SE2d 621) (2008).

Here, Rogers filed a pro se lawsuit against trial counsel seeking damages for purported deficiencies in his performance prior to Rogers’s December 2008 trial. Rogers filed the lawsuit on the first day of his trial in December 2008; on the same day, Rogers also filed a pro se motion to continue his trial, identifying his lawsuit against trial counsel as one of the grounds warranting a continuance. The trial judge refused to entertain Rogers’s request for a continuance of his third scheduled trial on the basis of Rogers’s lawsuit. Rogers’s lawsuit against trial counsel was ultimately dismissed for want of prosecution. On appeal, Rogers’s ineffectiveness argument rests solely upon his claim that the filing of this lawsuit created an “actual conflict” that should have resulted in his trial counsel’s withdrawal. However, even the case authority upon which Rogers primarily relies, Mickens v. Taylor, 535 U. S. 162 (122 SC 1237, 152 LE2d 291) (2002), required Rogers to show more than the mere existence of an “actual conflict.” That is, he must establish, at a minimum, that the conflict of interest adversely affected his counsel’s performance. Id. at 170-172 (II). Rogers nevertheless showed nothing more than the mere existence of a lawsuit that he filed pro se against trial counsel. Rogers failed to show that such was anything more than a specious delay tactic, let alone present evidence of a conflict that would warrant counsel’s withdrawal from the case. Cf. Williams, supra, 273 Ga. App. at 218 (3) (c) (rejecting defendant’s claim of ineffective assistance due to a conflict where defendant’s argument was based solely upon trial counsel’s failure to withdraw after learning that defendant intended to sue him). Significantly, Rogers failed to set forth any “evidence that the attorney-client relationship had deteriorated such that counsel was unable to be effective.” Id. Thus, the trial court did not clearly err in finding that Rogers failed to carry his burden of proving that trial counsel’s refusal to withdraw constituted ineffective assistance.

7. Although Rogers did not make a written motion to recuse the trial judge, he enumerates as error that the trial judge should have sua sponte recused himself from Rogers’s trial. On appeal, a trial judge’s failure to sua sponte recuse himself will be reversed “only where the conduct or remark of the judge constitutes an egregious violation of a specific ethical standard, and it must support the inescapable conclusion that a reasonable person would consider the judge to harbor a bias that affects his ability to be impartial.” (Citations and punctuation omitted.) Lemming v. State, 292 Ga. App. 138, 141 (1) (663 SE2d 375) (2008).

Rogers specifically contends that the trial judge erred in refusing to recuse himself after being made aware that he was named as a defendant in a federal lawsuit Rogers filed pro se on the same day that Rogers’s trial commenced. “There is no duty for a trial judge to sua sponte recuse himself absent a violation of a specific standard of OCGA § 15-1-8 or Canon 3 (E) (1) (a) through (c) of the Code of Judicial Conduct.” (Citation and punctuation omitted.) Lemming, supra, 292 Ga. App. at 141 (1). Generally, “[e]ven when the defendant sue[s] the trial judge, arising out of the case before the judge, such suit d[oes] not provide grounds for recusal; otherwise, parties could file frivolous suits against the trial judge for delay and to judge shop.” (Citation omitted.) Baptiste v. State, 229 Ga. App. 691, 697 (1) (494 SE2d 530) (1997). Here, recognizing the potential of defendants filing “spurious lawsuits [to] get out of going to trial for that reason,” the trial judge decided to move forward with Rogers’s trial notwithstanding the lawsuit.

Rogers nevertheless claims that “[bjecause the matter was currently pending in federal court, the trial [judge] had a direct, certain and immediate pecuniary interest in the outcome of the matter, which should have disqualified him.” See OCGA § 15-1-8 (a) (1) (disqualifying a judge from sitting “in any case or proceeding in which he is pecuniarily interested”). Rogers’s conclusory assertion, however, speaks only to the judge’s pecuniary interest in the outcome of Rogers’s federal civil lawsuit against the judge. Significantly, Rogers’s argument fails to address any pecuniary interest the trial judge may have had in the subject of Rogers’s criminal case, which is in fact the case from which Rogers claims the judge should have been disqualified. To warrant recusal from a case, “[t]he liability or pecuniary gain or relief to the judge must occur upon the event of the suit, not result remotely in the future . . . .” (Citation and punctuation omitted.) Reese v. State, 252 Ga. App. 650, 654 (5) (556 SE2d 150) (2001). Rogers cannot show that the trial judge had any direct and immediate interest in the outcome of Rogers’s criminal case; the effect of Rogers’s criminal trial on Rogers’s seemingly spurious lawsuit against the judge is a matter of speculation. See id. Accordingly, the trial judge was not required to recuse himself under OCGA § 15-1-8 (a) (1).

To the extent Rogers alleges a violation of the Code of Judicial Conduct, which provides a coextensive, but “broader rule of disqualification than that provided in the statute,” (citation and punctuation omitted) Gillis v. City of Waycross, 247 Ga. App. 119, 119-120 (543 SE2d 423) (2000), Canon 3 (E) (1) (a) states that judges shall disqualify themselves in any proceeding in which their impartiality might reasonably be questioned, including instances where the judge has a personal bias or prejudice concerning a party. Rogers, however, has not shown any cause for speculation that the judge was so influenced by the filing of a lawsuit — which was likewise filed against DeKalb County, the DeKalb County prosecutor, and police officers involved in the investigation, and raised as a ground purportedly supporting Rogers’s motion to continue his trial — as to have infected the trial judge with a bias of such intensity that it prevented Rogers from obtaining a fair trial. See Baptiste, supra, 229 Ga. App. at 697 (1). Accordingly, the trial judge’s refusal to sua sponte recuse himself was not error.

8. Rogers claims that the trial court erred by allowing the State to present to the jury a time line that indicated Rogers fled during his first scheduled trial in 2005. However, “[t]he State is entitled to offer evidence of flight while a defendant is awaiting trial and argue that it demonstrates consciousness of guilt.” (Citations and punctuation omitted.) Turner v. State, 237 Ga. App. 642, 644 (3) (516 SE2d 343) (1999). Accordingly, it was not error for the trial court to allow the State to inform the jury of Rogers’s escape from the courthouse on the first day of his September 2005 trial to serve as circumstantial evidence of guilt. See Smith v. State, 277 Ga. 508, 508 (2) (591 SE2d 805) (2004).

9. In his final enumeration, Rogers argues that the trial court erred by denying his motion for a continuance. “The decision to deny a motion for continuance is in the discretion of the trial court, and there must be a clear showing of abuse of that discretion in order to warrant a reversal.” (Footnote omitted.) Sanders v. State, 245 Ga. App. 701, 702 (1) (538 SE2d 772) (2000).

Rogers requested a continuance on the first morning of his trial, claiming that such was warranted because he had only just received a box of evidence from the State, and because he had not yet received an FBI file previously requested from the State. The State explained that it had not produced the entire FBI file because it contained information about other people and issues that were not relevant to Rogers’s case. With respect to the box of evidence, the State asserted that it contained only documents concerning older crimes for which Rogers was not on trial and that the State was not going to introduce them at trial.

Rogers nevertheless contends that insufficient time to prepare the case and newly discovered evidence were both valid grounds for a continuance, claiming that one day before trial was “insufficient,” and that the day of trial was “unreasonable.” However, “[mjere shortness of time for preparation does not in itself show a denial of the rights of the accused. He must also show harmful error.” (Citation and punctuation omitted.) Robinson v. State, 202 Ga. App. 576, 577 (2) (a) (415 SE2d 21) (1992). Rogers “has not shown how additional time would have benefitted him or how the lack of time harmed him,” id.; nor has he shown that the evidence of which he complains was in fact relevant to his case. Thus, the trial court did not abuse its discretion in denying Rogers’s motion for continuance.

Judgment affirmed on condition and case remanded with direction in Case No. A11A0837. Judgment affirmed in Case No. A11A0838.

Decided November 21, 2011.

Kenneth W. Sheppard, for appellant (case no. A11A0837).

Jolanda E. Herring, for appellant (case no. A11A0838).

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

Ellington and Doyle, JJ., concur.

       Robinson and Rogers were indicted along with four other co-defendants, including Robinson’s son and daughter.

       The State had given Wright immunity in exchange for her cooperation.

       Robinson also challenges the sufficiency of evidence as to Count 2 for conspiracy to commit theft by receiving stolen property. Because Count 2 was merged for purposes of sentencing, however, the trial court did not enter a judgment of conviction on that count, and we need not consider the sufficiency of the evidence as to that offense. See Mays v. State, 306 Ga. App. 507, 509 (1), n. 3 (703 SE2d 21) (2010).

         See Bearden v. State, 159 Ga. App. 892, 892 (1) (285 SE2d 606) (1981) (“[A]n enumeration of error cannot be enlarged to include other issues not made therein.”) (citation and punctuation omitted).

       The State asserts that the Park Central property and evidence sheet was admissible under the business records exception to the hearsay rule. See OCGA § 24-3-14 (b); see also Brown v. State, 274 Ga. 31, 33 (1), n. 2 (549 SE2d 107) (2001) (noting that certain routine information, such as the time, date and location of an arrest, may be properly admitted under the business records exception because unlike the narrative portion of a police report, which is inadmissible as a business record, such routine facts would not require the reporting officer to make a conclusion or express an opinion). The State nevertheless failed to lay a proper foundation through either the testimony of the Jacobson Transportation Company employee, upon which the State relies, or the testimony of the investigating officer regarding the accuracy of the property and evidence sheet. See Loyal v. State, 300 Ga. App. 65, 66-67 (684 SE2d 124) (2009) (“Before admitting a document into evidence under the business records exception, a witness must lay a foundation . . . [by testifying] that the record was made (1) in the regular course of business, and (2) at the time of the event or within a reasonable time of the event.”) (citations and punctuation omitted).

       This included a specific instruction that venue “must be proven by the State beyond a reasonable doubt as to each crime charged in the indictment, just as any other element of the offense.”

       Indeed, even where a trial court commits an error of constitutional magnitude, as Robinson claims here, a defendant’s conviction will not be reversed where such error is harmless. See Willingham v. State, 279 Ga. 886, 887 (1) (622 SE2d 343) (2005). Before a federal constitutional error is held to be harmless, however, a “court must be able to declare a belief that it was harmless beyond a reasonable doubt.” (Citation and punctuation omitted.) Little v. State, 230 Ga. App. 803, 806 (2) (498 SE2d 284) (1998).

       See Reid, supra, 298 Ga. App. at 892 (2) (“[I]t was for the trial court, not this Court, to resolve any conflicts in the record or questions concerning the credibility of the agent in deciding the motion to suppress.”) (citation and punctuation omitted).

       Additionally, the State concedes that it did not present any evidence substantiating the overt act Robinson challenges, as it had instead proffered evidence in support of the other overt acts set forth in Count 2. See Hall v. State, 241 Ga. App. 454, 460 (1) (525 SE2d 759) (1999) (“[Defendant] could be convicted of conspiracy even if . . . the jury did not believe that [defendant] had committed the one overt act which he independently was alleged to have committed, as long as one act by [any one co-conspirator] was proven to the jury’s satisfaction.”) (citations omitted).

       OCGA § 24-9-84.1 (a) (1) sets a lower standard as to when a witness can be impeached with prior-conviction evidence in that a trial court must only determine “that the probative value of admitting the evidence outweighs its prejudicial effect to the witness.”

       The State characterizes Rogers’s lawsuit as just another one of his “transparent, specious, repeated attempts” to delay his trial. The trial court agreed. Significantly, Rogers successfully delayed his first scheduled trial in September 2005 by fleeing the courthouse during a short recess. Rogers was arrested two years later. On the first day of his second scheduled trial in February 2008, Rogers filed a pro se complaint against the trial counsel who was representing Rogers at that time, as well as a motion to continue his trial because of such complaint. Before the jury was called, the judge permitted Rogers’s trial counsel to withdraw and severed Rogers’s case from the February 2008 trial.

       Under USCR 25.1, all motions to recuse or disqualify a presiding judge in a particular case “must be timely filed in writing and all evidence shall be presented by accompanying affidavits that fully set out the facts upon which the motion is founded.” Hargrove v. State, 299 Ga. App. 27, 31 (2) (681 SE2d 707) (2009).


source: Caselaw Access Project

license: Public Domain

text:
    A11A0962, A11A0963.
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al. v. HERNANDEZ AUTO PAINTING AND BODY WORKS, INC.; and vice versa.
    (719 SE2d 597)
   Miller, Presiding Judge.

Hernandez Auto Painting and Body Works, Inc. (“Hernandez Auto”) sued State Farm Mutual Automobile Insurance Company and several of its employees (collectively, “State Farm”), alleging in its complaint that State Farm steered individuals away from having repairs completed at Hernandez Auto, in violation of the Georgia Motor Vehicle Accident Reparations Act (MVARA), OCGA § 33-34-6 (a), (b), and that, in doing so, State Farm committed “trade libel/ injurious falsehood” (hereinafter, “trade libel”). State Farm moved to dismiss the lawsuit for failure to state a claim based on the grounds that there was no private cause of action under the MVARA, and that Georgia law did not recognize the tort of trade libel. The trial court granted State Farm’s motion with respect to the MVARA claim, and it denied the motion with regard to the trade libel claim.

In Case No. A11A0962, we granted State Farm’s application for an interlocutory appeal of the trial court’s denial of its motion to dismiss Hernandez Auto’s trade libel claim. We reverse because Georgia does not recognize the tort of trade libel.

In Case No. A11A0963, Hernandez Auto cross-appeals from the trial court’s grant of State Farm’s motion to dismiss the MVARA claim. We affirm because the MVARA does not provide a private cause of action.

“When reviewing the grant of a motion to dismiss for failure to state a claim, we review the dismissal de novo, construing the complaint’s allegations and all possible inferences therefrom in favor of the plaintiff.” (Citation omitted.) Daly v. Mueller, 279 Ga. App. 168 (630 SE2d 799) (2006).

So viewed, the record evidence shows that Hernandez Auto filed the instant action in state court after a similar suit in federal court was dismissed for failure to state a claim. In the present state court suit, Hernandez Auto claimed that State Farm “continuously and systematically” steered potential customers away from Hernandez Auto, and to repair shops with whom State Farm had negotiated rates “below reasonable market value.” Hernandez Auto alleged that its reputation was harmed, and that it suffered economic damage when State Farm made disparaging and false remarks to insured individuals about the quality of Hernandez Auto’s services, the reasonableness of its hourly rates, and the behavior of its owner.

Case No. Al 1A0962

1. State Farm argues that the trial court erred by denying its motion to dismiss Hernandez Auto’s trade libel claim because such is not a recognized tort under Georgia law. State Farm also argues that this Court should not recognize a cause of action for trade libel because it would be duplicative of other, well-established torts, such as general defamation and tortious interference with contract. We agree.

On appeal, Hernandez Auto points to section 623A of the Restatement (Second) of Torts in support of its trade libel claim, which provides as follows:

One who publishes a false statement harmful to the interests of another is subject to liability for pecuniary loss resulting to the other if (a) he intends for publication of the statement to result in harm to interests of the other having a pecuniary value, or either recognizes or should recognize that it is likely to do so, and (b) he knows that the statement is false or acts in reckless disregard of its truth or falsity.

Restatement (Second) of Torts § 623A (1977). The Restatement also extends this section to apply “to the publication of matter disparaging the quality of another’s land, chattels or intangible things, that the publisher should recognize as likely to result in pecuniary loss to the other through the conduct of a third person in respect to the other’s interests in the property.” (Emphasis supplied.) Id. § 626. The commentary of the Restatement (Second) indicates that the particular form of injurious falsehood that involves disparagement of quality of another’s land or intangible things is commonly called “trade libel,” and that the purpose of the “action for injurious falsehood is to protect [the] economic interests of the injured party against pecuniary loss. . . .” Id. §§ 623A cmt. (g), 626 cmt.

The trial court’s order relied upon this Court’s decision in Eason Publications v. Atlanta Gazette, 141 Ga. App. 321 (233 SE2d 232) (1977), to conclude that Hernandez Auto had a cause of action for trade libel. That case, however, is inapposite. In Eason, this Court held that Georgia’s libel statute, now codified as OCGA § 51-5-1, did not preclude a corporation, as opposed to an individual, from bringing a libel action against a rival competitor based on allegations that the rival maliciously published false information to advertisers that injured the standing and business reputation of the plaintiff and exposed it to ridicule in the business and public communities. Id. at 321, 323. We reasoned that the Georgia legislature intended for the state’s defamation law to be consistent with common law, which provided corporations a cause of action for libel. Id. at 322-323 (referring to Restatement, Torts, § 561 (1), for common law definition of libel). Unlike the present case, Eason did not involve, nor was there any discussion of, trade libel or injurious falsehood. See generally id.

Review of Georgia authority reveals only one instance where trade libel was specifically discussed, in dicta, as a potential cause of action. See Ga. Society of Plastic Surgeons v. Anderson, 257 Ga. 710, 714-715 (4) (363 SE2d 140) (1987). In Anderson, the Supreme Court of Georgia pretermitted consideration of whether Georgia law recognized a cause of action “for damages resulting from disparagement of goods and services (i.e., trade libel),” because, assuming that damages would lie for trade libel, it substantially overlapped with plaintiffs claim of personal defamation. Id. The Supreme Court of Georgia noted that, while the torts of defamation and injurious falsehood, or trade libel, protect different interests, they overlap, particularly in cases of disparagement of the plaintiffs business or product. Id. at 714.

The Supreme Court of Georgia explained in Anderson:

If the statement reflects merely upon the quality of what the plaintiff has to sell or solely on the character of his business, then it is injurious falsehood alone. Although it might be possible to imply some accusation of personal incompetence or inefficiency in nearly every imputation directed against a business or a product, the courts have insisted that something more direct than this is required for defamation. On the other hand, if the imputation fairly implied is that the plaintiff is dishonest or lacking in integrity or that he is perpetrating a fraud upon the public by selling something that he knows to be defective, the personal defamation may be found. In this case it is common to sue in defamation because the damages are more comprehensive. Action may be brought in the same suit for both torts, however, so long as the damages are not duplicated.

Anderson, supra, 257 Ga. at 714-715 (4) (quoting Restatement of Torts, 2d, § 623A cmt. (g)).

Although the Supreme Court of Georgia discussed § 623A of the Restatement of Torts, 2d, however, it did not adopt this section or related § 626. See Anderson, supra, 257 Ga. at 714-715 (4). Significantly, the Supreme Court of Georgia’s discussion of trade libel in Anderson did not establish such a cause of action under Georgia law. See Monroe v. Bd. of Regents &c., 268 Ga. App. 659, 664-665 (2) (602 SE2d 219) (2004) (explaining that the mere discussion of the potential viability of a never-before recognized cause of action does not suggest that such cause of action exists under Georgia law); see also Rasnick v. Krishna Hospitality, 302 Ga. App. 260, 264-265 (1) (690 SE2d 670) (2010) (declining to impose a new, judicially-created duty based on a Restatement section that had not been adopted into Georgia’s common law). Since the Anderson case was decided more than 20 years ago, no Georgia court has expressly found a cause of action for injurious falsehood or trade libel to exist in Georgia. See Davita Inc. v. Nephrology Assoc., 253 FSupp.2d 1370, 1374-1375 (III) (A) (S.D. Ga. 2003) (noting lack of recognition of trade libel as a cause of action in Georgia since Anderson was decided).

Moreover, we discern no necessity to create the tort of trade libel under the circumstances here. In particular, as State Farm suggests on appeal, the tort of trade libel overlaps with several torts already recognized under Georgia law, particularly defamation and tortious interference with business relations. With respect to oral defamation, or slander, such can consist of “[m]aking charges against another in reference to his trade, office, or profession, calculated to injure him therein.” (Punctuation omitted.) OCGA § 51-5-4 (a) (3). Compare Restatement (Second) of Torts §§ 623A, 626. In order to recover on a claim of tortious interference with business relations, the plaintiff must establish that the defendant: “(D acted improperly and without privilege, (2) acted purposely and with malice with the intent to injure, (3) induced a third party or parties not to enter into or continue a business relationship with the plaintiff, and (4) caused the plaintiff financial injury.” (Citation and punctuation omitted.) ASC Constr. Equip. USA v. City Commercial Real Estate, 303 Ga. App. 309, 313 (1) (693 SE2d 559) (2010). Therefore, a cause of action for trade libel is subsumed by the recognized tort of interference with business relations. Accord City Ambulance of Alabama v. Haynes Ambulance, 431 S2d 537, 539 (Ala. 1983) (holding that torts of unfair competition and disparagement are subsumed by the Alabama tort of interference with business relations, and thus declining to create separate causes of action for those torts); W. Prosser, Law of Torts 917 (4th ed. 1971) (“[I]t seems clear that injurious falsehood should be regarded merely as one form of intentional interference with economic relations!.]”) (punctuation and footnote omitted).

Based on the foregoing, we decline to create a separate tort of trade libel under Georgia law. Cf. United States Fidelity &c. Co. v. Paul Assoc., 230 Ga. App. 243, 251-252 (8) (496 SE2d 283) (1998) (declining to adopt § 552B of Restatement of Torts, 2d, because existing statutory and common law adequately addressed issue of damages); Troncalli v. Jones, 237 Ga. App. 10, 12-13 (1) (514 SE2d 478) (1999) (holding that, because there was no statutory or case law to support a finding of a cause of action, this Court would not create one for stalking, and noting that there were alternative methods for handling stalking, including raising a claim of invasion of privacy). Accordingly, the trial court erred in denying State Farm’s motion to dismiss Hernandez Auto’s trade libel claim.

Case No. Al 1A0963

2. In Case No. A11A0963, Hernandez Auto cross-appeals from the trial court’s grant of State Farm’s motion to dismiss the MVARA claim. Hernandez Auto argues that a private cause of action exists under the “anti-steering” provision of the MVARA, OCGA § 33-34-6, because (i) the “default rule” is that a private right is created for the violation of any statutory duty; (ii) the language of the MVARA does not expressly limit enforcement of the said provision to state authorities; and (iii) other provisions of the MVARA have been found to create private causes of action. Hernandez Auto also submits that, as a matter of public policy, a private cause of action should be inferred in order to effect the purpose behind the “anti-steering” provision of OCGA § 33-34-6 to protect an insured’s freedom to select a repair facility. We find no merit to Hernandez Auto’s claims.

OCGA § 33-34-6 provides:

(a) Subject to the provisions of subsection (b) of this Code section, no insurer shall represent to a person making a claim under a motor vehicle insurance policy that the use of or the failure to use a particular repair facility or particular repair facilities may result in the nonpayment of a claim.
(b) No insurer shall require a person making a claim under a motor vehicle insurance policy to use a particular repair facility or particular repair facilities in order to settle a claim if the person making the claim can obtain the repair work on the motor vehicle at the same cost from another source.

Contrary to Hernandez Auto’s contention, “it is well settled that violating statutes and regulations does not automatically give rise to a civil cause of action by an individual claiming to have been injured from a violation thereof.” (Footnote omitted.) Govea v. City of Norcross, 271 Ga. App. 36, 41 (1) (608 SE2d 677) (2004). Rather, the statutory text must expressly provide a private cause of action. See id.

Significantly, the MVAJRA does not expressly provide a private right of action for repair facilities. Instead, the General Assembly provided the Insurance Commissioner with the authority to enforce the provisions of Title 33, including OCGA § 33-34-6. See OCGA § 33-2-24; Cross v. Tokio Marine & Fire Ins. Co., 254 Ga. App. 739, 741 (1) (563 SE2d 437) (2002) (holding that OCGA § 33-3-28 (d) did not create a private right of action against an insurer that violates the statute because there was no express right created, and the “failure to comply with the statute comes within the conduct subject to sanctions by the Insurance Commissioner as the exclusive regulatory remedy”) (citation omitted).

“[T]he absence of language in OCGA § [33-34-6] creating a private right of action strongly indicates the legislature’s intention that no such cause of action be created by said statute.” (Citation and punctuation omitted.) Cross, supra, 254 Ga. App. at 741 (1). Despite Hernandez Auto’s claims otherwise, we know of no authority that would allow us to infer a private cause of action from the public policy the statute appears to promote. Cf. Anthony v. American Gen. Financial Svcs., 287 Ga. 448, 455 (2) (a) (697 SE2d 166) (2010) (“[T]he indication that the legislature meant to impose a [private cause of action] . . . must be found in the provisions of the statute at issue, not extrapolated from the public policy the statute generally appears to advance.”) (punctuation omitted). Accordingly, the trial court did not err in granting State Farm’s motion to dismiss Hernandez Auto’s MVARA claim.

Decided November 21, 2011

Brennan, Harris & Rominger, Mason White, Kyle G. Wallace, for appellants.

Savage, Turner, Pinson & Karsman, Robert B. Turner, Stanley Karsman, Christopher D. Britt, for appellee.

William V Custer, Jennifer B. Dempsey, Eric P. Schroeder, Edwin M. Cook, amici curiae.

Judgment reversed in Case No. A11A0962. Judgment affirmed in Case No. A11A0963.

Doyle, J., concurs. Ellington, J., concurs in judgment only.

       The trial court also denied State Farm’s motion to dismiss as to Hernandez Auto’s claims for attorney fees ?md punitive damages.

       In the federal lawsuit, Hernandez Auto raised claims of tortious interference, MVARA violations, unjust enrichment, injunctive relief, and bad faith.

       Given this conclusion, we need not consider State Farm’s alternative arguments on appeal.


text:
    A11A1363.
    JONES et al. v. ALLEN et al.
    (720 SE2d 1)
   Miller, Presiding Judge.

Kenneth Jones and Clara Ramon, individually and as parents and next friends of their minor son M. J. (collectively, the “Joneses”), filed a medical malpractice action, seeking damages and a declaratory judgment related to the allegedly negligent treatment their child received as a patient at the Medical College of Georgia Children’s Medical Center (“MCG”). The named defendants included M. J. Allen, D.O.; Prem Singh Shekhawat, M.D.; and Wayne Mathews, M.D. Dr. Allen moved to dismiss the complaint on the ground that she was entitled to official immunity as a state employee, and Dr. Shekhawat and Dr. Mathews filed separate motions for summary judgment on the same basis.

Following a hearing, the trial court granted Dr. Allen’s motion to dismiss, and granted Dr. Shekhawat’s and Dr. Mathews’s motions for summary judgment, finding that they were entitled to qualified immunity. The Joneses appeal, challenging both of the foregoing rulings by the trial court. For the reasons set forth below, we affirm in part and reverse in part.

We review a trial court’s order dismissing a plaintiffs complaint de novo. ... A motion to dismiss asserting sovereign immunity ... is based upon the trial court’s lack of subject matter jurisdiction, rather than the merits of the plaintiffs claim. See OCGA § 9-11-12 (b) (1). The party seeking to benefit from the waiver of sovereign immunity has the burden of proof to establish waiver, and the trial court’s pre-trial ruling on factual issues necessary to decide the OCGA § 9-11-12 (b) (1) motion is reviewed on appeal under the any evidence rule.

(Citations, punctuation and footnotes omitted.) Bonner v. Peterson, 301 Ga. App. 443 (687 SE2d 676) (2009).

We also review the grant of summary judgment de novo, construing the facts and all inferences drawn from them in the light most favorable to the nonmoving party. See Ins. Co. of Pa. v. APAC-Southeast, 297 Ga. App. 553 (677 SE2d 734) (2009). Summary judgment is appropriate if the pleadings and evidence “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law[.]” OCGA § 9-11-56 (c).

The record evidence shows the following. On December 28, 2003, MCG received a call from another hospital requesting a transfer of M. J. based on a life-threatening condition. Dr. Shekhawat, a faculty member at MCG and the attending neonatologist at MCG, directed a transport team to bring M. J. to the medical center. Dr. Shekhawat personally treated M. J. upon his arrival and also supervised Dr. Allen, then a second-year resident fellow, in her follow-up treatment of M. J.

While at MCG, M. J. underwent surgery. Dr. Mathews, a MCG faculty member, was contacted as the on-call anesthesiologist to assist in M. J.’s surgery. Prior to surgery, M. J. was intubated by a resident anesthesiologist under the supervision of Dr. Mathews. Following surgery, Dr. Mathews and the resident anesthesiologist delivered M. J. to the Neonatal Intensive Care Unit (“NICU”), and the resident anesthesiologist reported to the NICU staff that M. J.’s endotracheal tube was not secure. While he was in the NICU, M. J. had to be re-intubated by medical personnel, including Dr. Allen, on two separate occasions. At one point during his recovery, M. J.’s heart rate dropped, and he needed emergency life preserving measures that were initially directed by Dr. Allen and then later by Dr. Shekhawat. Those measures were successful, and M. J.’s condition stabilized. The Joneses sued the physician defendants, alleging that their negligence in ensuring that M. J. was adequately oxygenated during intubation resulted in his permanent disability.

1. The Joneses contend that the trial court erred in finding that Dr. Shekhawat and Dr. Mathews were entitled to official immunity, because there was a genuine issue of material fact as to whether the physicians were acting within the scope of their state employment at MCG when they treated M. J. based on the factors listed in Keenan v. Plouffe, 267 Ga. 791 (482 SE2d 253) (1997). We agree and reverse the trial court’s grant of summary judgment as to the Joneses’ claims against Dr. Shekhawat and Dr. Mathews.

Except as provided in the Georgia Tort Claims Act (“GTCA”), “officers and employees of the state or its departments and agencies shall not be subject to suit or liability, and no judgment shall be entered against them, for the performance or nonperformance of their official actions.” Ga. Const, of 1983, Art. I, Sec. II, Par. IX (d). Under the GTCA, state employees are entitled to qualified immunity for torts committed while acting within the scope of their official duties or employment. See OCGA § 50-21-25 (b).

In Keenan, the Supreme Court of Georgia ruled that an attending physician and faculty member at MCG was not acting within the scope of his state employment when he performed surgery on a “private-pay” patient — i.e., a patient whose treatment was funded by a third-party, private insurer. . . . [T]he court reasoned that the attending physician was not acting within the scope of his official duties because: (i) the patient was not one the attending physician was obligated to treat by virtue of his position as a faculty member at MCG, but was instead a private-pay patient who had employed the attending physician directly; (ii) the patient was billed separately for the professional services of the attending physician through an entity other than MCG; (iii) this same entity provided the attending physician with compensation, in the form of fringe benefits and professional liability insurance, that was separate from and in addition to the compensation he received in his capacity as a faculty member at MCG; (iv) the attending physician’s treatment of the patient was left to his sole medical discretion; and (v) the allegations of negligence related solely to the attending physician’s independent medical judgment in treating the patient.

(Citations, punctuation and footnotes omitted.) Bonner, supra, 301 Ga. App. at 450 (2) (b).

Here, as the moving parties, Dr. Shekhawat and Dr. Mathews did not establish that they were entitled to qualified immunity, as the record evidence establishes that the circumstances are similar to those present in Keenan. As in Keenan, it is undisputed that M. J. was a private-pay patient. The record evidence also shows that M. J. was billed separately for the professional services of Dr. Shekhawat through an entity other than MCG — namely, Physicians Practice Group (“PPG”) — and Dr. Mathews testified that the billing for his anesthesia services ultimately went to PPG. See Keenan, supra, 267 Ga. at 792, 793 (2). While PPG did not employ faculty members, it did provide fringe benefits to and purchased professional liability for its member physicians, including Dr. Shekhawat and Dr. Mathews. Id. Dr. Shekhawat and Dr. Mathews did not establish that their treatment of M. J. was controlled by the government or “call[ed] into play what might be termed governmental considerations,” as opposed to being left to their sole medical discretion. Keenan, supra, 267 Ga. at 793 (2).

Dr. Shekhawat and Dr. Mathews assert that they were entitled to qualified immunity because the evidence showed that they were acting within the scope of their employment as MCG faculty based on their obligations to treat patients and to supervise and train residents and fellows in providing treatment to patients. As stated in Keenan, however, “although it could be argued that [Dr. Shekhawat and Dr. Mathews were] in the broadest sense acting within the scope of [their] employment because [they] had an obligation as . . . professor [s] at [MCG] to treat patients,” they also may have had distinct obligations to M. J. that were independent of their official state duties. (Punctuation omitted.) Keenan, supra, 267 Ga. at 793 (2). Similarly, to the extent Dr. Shekhawat and Dr. Mathews rely on this Court’s decision in Porter v. Guill, 298 Ga. App. 782 (681 SE2d 230) (2009), to support their claim that they were entitled to qualified immunity, Porter is distinguishable. Unlike here, Porter did not involve a private-pay patient, and the MCG physician’s medical discretion was impacted by Medicaid guidelines and regulations that “necessarily called into play considerations as to the allocation of the government’s medical resources.” Porter, supra, 298 Ga. App. at 787 (1) (b). Moreover, while the Joneses did not seek out either physician for treatment, “[a]t the point when [they] agree[d] to treat or operate on [M. J.] ... the relationship [became] the personal and confidential one of a doctor and patient, not the [state] and patient.” (Punctuation omitted.) Keenan, supra, 267 Ga. at 794 (2). Notwithstanding Dr. Shekhawat’s and Dr. Mathews’s official duties as MCG faculty members, when they acted as physicians, their primary duty was to M. J., rather than to the state. See, e.g., Howard v. City of Columbus, 239 Ga. App. 399, 415 (4) (521 SE2d 51) (1999) (holding that a jail medical director was not entitled to qualified immunity when he treated a patient as a physician); Jackson v. Miller, 176 Ga. App. 220, 221 (1) (335 SE2d 438) (1985) (holding that a physician was not entitled to qualified immunity simply by virtue of his employment by a public clinic, because his primary duty as a physician was to his patient, rather than the state or the city). Based on the foregoing, as the parties moving for summary judgment based on qualified immunity, Dr. Shekhawat and Dr. Mathews did not establish that there were no genuine issues of material fact in this regard, and therefore, we reverse the trial court’s grant of summary judgment in their favor.

2. The Joneses also contend that the trial court erred by extending the holdings in Bonner and Nelson v. Bd. of Regents &c., 307 Ga. App. 220 (704 SE2d 868) (2010), to conclude that Dr. Allen was entitled to qualified immunity. The Joneses argue that the holding of these cases — that MCG resident physicians are entitled to qualified immunity — should not be extended to Dr. Allen, who was a fellow, rather than a resident, at the relevant time. We disagree.

Significantly, in Bonner,

the record show[ed] that resident physicians, unlike attending physicians, are subject to the control and direction of others. Specifically, resident physicians work under and are supervised by attending physicians. They have no hospital privileges and they are not empowered to make any unilateral decisions regarding the treatment of patients. Patients do not make appointments with resident physicians and residents have no control over which patients they see. Instead, resident physicians treat patients who are also being treated by an attending physician. Additionally, unlike attending physicians, resident physicians receive no compensation, either directly or indirectly, from any patient. Rather their only compensation is paid by MCG, and that compensation does not vary based upon either the number of patients seen or the number of procedures performed.

Bonner, supra, 301 Ga. App. at 451 (2) (b); Nelson, supra, 307 Ga. App. at 230 (3) (quoting same); see also Gargiulo v. Ohar, 239 Va. 209, 211, 215 (V) (387 SE2d 787) (1990) (holding that a licensed, board-certified physician employed as a fellow in a state-run research program was entitled to official immunity from liability arising out of treatment she provided to patients during the course of her fellowship, because, like here, she received no compensation from patients, was not allowed to choose or refuse patients, and was under the supervision of attending physicians); DeRosa v. Shands Teaching Hosp. &c., 504 S2d 1313, 1314-1315 (Fla. Dist. Ct. App. 1987) (holding that fellows were entitled to sovereign immunity as a defense against medical malpractice claim based on fellows’ assistance during an operation as physicians in training).

Here, the record evidence showed that, during the relevant time, Dr. Allen was employed by MCG as a second-year fellow in MCG’s Graduate Medical Education Program, and was training under the general supervision of attending physicians. As a fellow, she had already completed her three-year residency program, and her duties included assisting physicians who treated patients at the MCG hospital. She was not afforded hospital privileges, and she was only able to work under the supervision of attending physicians who had such privileges. She was not permitted to choose which patients to treat, and patients could not choose to be treated by her. In fact, Dr. Allen did not have a direct “doctor-patient” relationship with any patients treated at MCG. Nor did she have a private-pay relationship with M. J. or any other patient, and her pay was limited to a fixed stipend set by the number of years she completed in her fellowship, not the number of patients she treated or procedures she performed.

Based on the foregoing, we conclude that Bonner and Nelson apply, because the circumstances presented in those cases are substantially similar to those involved in this case. See Bonner, supra, 301 Ga. App. at 451 (2) (b); Nelson, supra, 307 Ga. App. at 230 (3). To the extent the Joneses argue that we should treat a fellow more like an attending physician and less like a resident, we are not persuaded. First, while the Joneses assert that Dr. Allen was unlike a resident because she was a licensed physician, we have previously noted that resident physicians are “at least provisionally licensed to practice medicine.” (Citation omitted.) Bonner, supra, 301 Ga. App. at 449 (2) (a); see also Nelson, supra, 307 Ga. App. at 229 (3), n. 37. Second, the Joneses’ assertion that Dr. Allen exercised “unilateral” decision-making authority when she intubated M. J. and performed other procedures outside of the attending physician’s presence is without merit. The evidence established that, as a fellow, Dr. Allen was operating under the general supervision of an attending physician. See Bonner, supra, 301 Ga. App. at 444.

There is also no merit to the claim that Dr. Allen was not a state employee. MCG developed a formal employment contract with Dr. Allen, approved her leave requests, and controlled her work rotations. Additionally, Dr. Allen was paid by MCG. The Joneses nevertheless argue that “every aspect of Dr. Allen’s pay, benefits, and work-related expenses were funded 100% by . . . MCGHI.” Aside from assuming responsibility for funding educational programs from outside sources, the Joneses cite to no provision that MCGHI assumed total responsibility for funding all of MCG’s educational programs. Nor did MCGHI “fund” Dr. Allen’s position, but rather reimbursed MCG in full for the actual costs of MCG’s Housestaff services, including those of Dr. Allen. Based on the foregoing, Dr. Allen was an employee of MCG, and was not an employee or agent of MCGHI. See Johnson v. American Nat. Red Cross, 253 Ga. App. 587, 594 (4) (569 SE2d 242) (2002) (providing that the true test of an employer-employee relationship is whether the employer controls the time, manner, or method of executing the work).

Contrary to the Joneses’ suggestion, MCG’s decision to enter into a lease agreement with MCGHI did not somehow operate to waive immunity for Dr. Allen in light of the General Assembly’s intent to provide her with official immunity that cannot be waived by the state actors. See Norton v. Cobb County, 284 Ga. App. 303, 307 (2) (643 SE2d 803) (2007) (citing Ga. Const, of 1983, Art. I, Sec. II, Par. IX (d)); see also Butler v. Carlisle, 299 Ga. App. 815, 818-819 (1) (683 SE2d 882) (2009) (holding that an intergovernmental agreement, by itself, did not operate as a waiver of sovereign immunity). Moreover, MCG expressly stated that nothing in the lease agreement or associated agreements would “be deemed to waive any immunity or protection of [the Board of] Regents, any [(Indemnitee, or any other entity of the State of Georgia, including, without limitation, the protections of the Georgia Torts Claims Act[.]”

Finally, we have previously rejected the argument made here that Dr. Allen should not be granted official immunity because she was covered by liability insurance. See Nelson, supra, 307 Ga. App. at 231 (3).

While it is true that Ga. Const, of 1983, Art. I, Sec. II, Par. IX previously waived sovereign immunity to the extent that liability insurance was provided, this provision was amended, effective January 1, 1991, to delete the insurance-waiver clause, and to instead provide that the extent of the state’s waiver of sovereign immunity was provided under the GTCA. Because [the Joneses’] action accrued after January 1, 1991, the insurance waiver of sovereign immunity does not apply.

(Footnotes omitted.) Id. Accordingly, Dr. Allen was entitled to official immunity, and we affirm the trial court’s decision to grant her motion to dismiss on this basis.

Decided November 21, 2011

Blasingame, Burch, Garrard & Ashley, Josh B. Wages, for appellants.

Owen, Gleaton, Egan, Jones & Sweeney, Annarita M. Busbee, Derrick L. Bingham, Carlock, Copeland & Stair, Adam L. Appel, Kim M. Ruder, Rutherford & Christie, Vincent A. Toreno, for appellees.

Judgment affirmed in part and reversed in part.

Ellington and Doyle, JJ., concur.

       Given this conclusion, we need not consider the Joneses’ alternative arguments on appeal.

       MCG Health, Inc. (or “MCGHI”) was a nonprofit organization that assumed operational control of MCG hospitals through a lease agreement with the Board of Regents, a public body of the State of Georgia that had operated the hospital until July 2000. See MCG Health, Inc. v. Nelson, 270 Ga. App. 409, 410 (606 SE2d 576) (2004).

       The Joneses’ brief misquotes the provisions in which MCGHI agreed to support MCG in funding clinical education programs. Contrary to the Joneses’ claim, the record reflects that MCGHI agreed to fund such programs to the same extent MCG did prior to the transfer date and only “to the extent that [it] receive[d] funding earmarked for such programs from any source.”

       “Indemnitees” was defined to include all students and employees of the Regents.