text:
    A11A1842.
    WEBB v. THE STATE.
    (722 SE2d 360)
   PHIPPS, Presiding Judge.

After a stipulated bench trial, Dustin Webb was convicted of possession of marijuana. Webb appeals his conviction, contending that the court erred by denying his motion to suppress evidence confiscated during a search of the vehicle he had been driving. Webb asserts that the search stemmed from an unconstitutional traffic stop. Because there was the requisite articulable suspicion to warrant the investigatory stop, we affirm.

When an appellate court reviews a trial court’s order concerning a motion to suppress evidence, the appellate court should be guided by three principles with regard to the interpretation of the trial court’s judgment of the facts. First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support [them]. Second, the trial court’s decision with regard to questions of fact and credibility . . . must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.

Construing it most favorably to support the trial court’s findings and judgment, the evidence introduced at the hearing on the motion to suppress shows the following. A church pastor testified that on June 10, 2010, at about 6:00 p.m., he noticed a truck he did not recognize parked in the church parking lot, which was private property. There were no church activities underway at the time and “everyone was gone.” Two young men were inside the truck, which was parked behind the church in the back area of the parking lot. As the pastor watched the truck from inside the church, he saw the men smoking “a cigarette or . . . something lit up.” At one point, one of the men passed the object to the other man. The men then got out of the truck, “went around back,” and got back into the truck. The pastor telephoned a sheriffs deputy and told him that a black Ford F150 truck with two males “hanging out” was in the church parking lot; the pastor asked him to come and investigate.

The pastor testified that in the past there had been problems involving vehicles in the parking lot, with young people drinking alcohol, “making out,” and participating in “other activities when people are not there.” Beer bottles, condoms, “and things like that” had been found in the parking lot, and the pastor “wanted to make sure none of that” or any vandalism was occurring. He had called the deputy previously about such problems, and the deputy had been to the property to investigate. After calling the deputy, the pastor continued to watch the men for about ten to fifteen minutes, until the deputy arrived. He saw the deputy enter the parking lot as the truck was exiting, and watched the deputy initiate a stop of the truck.

The deputy testified that the pastor called him regarding a black Ford F150 truck with two male occupants in the church parking lot, and that the pastor described “what was going on.” As the deputy drove into the parking lot, he saw a black Ford FI50 truck with two male occupants exiting the parking lot; the deputy testified that the vehicle was “an exact match” of the description given to him by the pastor. After initiating a stop of the truck, the deputy exited his vehicle and approached it. He immediately detected the odor of marijuana. Webb was in the driver’s seat. The deputy asked the men for identification, about their activities on the premises, and whether Webb would consent to a search of his truck. Webb consented. A search of the truck revealed marijuana and a “bong”; the men told the deputy that they had used the “bong” about an hour earlier for smoking.

Webb contends that the court erred in denying his motion to suppress the evidence obtained as a result of the traffic stop because the deputy lacked reasonable suspicion to conduct the investigatory stop. Specifically, Webb asserts that the deputy lacked information regarding the make or model of the vehicle reported, and was neither told of nor observed any illegal or suspicious activity. We disagree.

Although an officer may conduct a brief investigative stop of a vehicle, such a stop must be justified by specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.
Investigative stops of vehicles are analogous to Terry stops, and are invalid if based upon only unparticularized suspicion or hunch. An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity. This suspicion need not meet the standard of probable cause, but must be more than mere caprice or a hunch or an inclination. Therefore, even if there is no probable cause to arrest for a traffic or other offense, the Fourth Amendment allows police to stop a vehicle to investigate a reasonable suspicion of criminal activity.

The totality of the circumstances is to be taken into account in determining whether the detaining officer has a particularized and objective basis for suspecting the particular person stopped of criminal activity. Notably, “[w]hen hearsay information is supplied by an identified interested citizen, the citizen’s credibility is not as suspect and the analysis is not as stringent as when information is given by an anonymous tipster; a law-abiding concerned citizen has a built-in credibility and is deemed to be reliable.”

In this case, the information was supplied to the deputy by an identified interested citizen who testified at the suppression hearing and who had the opportunity to observe the truck and its occupants. The citizen gave the deputy specific information about the model and color of the truck, as well as where it was parked and the gender and number of its occupants. The deputy corroborated these details through his personal observations prior to the stop. Thus, the stop was not based upon a “mere hunch, caprice or inclination.” The totality of the circumstances, including the truck’s location, the activities of the truck’s occupants as observed by the identified interested citizen, and the history of unlawful activity on the property, created a justifiable suspicion concerning the occupants’ conduct and warranted a limited investigative detention to determine whether a crime was taking place or had taken place on the premises. Because there existed a reasonable articulable suspicion for a brief, investigatory stop of the vehicle, the trial court did not err in denying the motion to suppress.

Judgment affirmed.

Andrews and McFadden, JJ., concur.

Decided January 19, 2012.

Smith, Welch, Webb & White, Christopher E. Chapman, for appellant.

Jamie K. Inagawa, Solicitor-General, Joseph B. Myers, Jr., Assistant Solicitor-General, for appellee.

        Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994) (citations, emphasis and punctuation omitted); Arnold v. State, 304 Ga. App. 90, 91 (1) (695 SE2d 402) (2010).

       See Miller v. State, 288 Ga. 286, 288 (1) (702 SE2d 888) (2010).

       After his motion to suppress was denied, Webb stipulated that the substance recovered was marijuana and that the state had proved its prima facie case for the offense of possession of marijuana.

        Vansant v. State, 264 Ga. 319, 320 (2) (443 SE2d 474) (1994) (citations and punctuation omitted).

        Darden v. State, 293 Ga. App. 127, 130 (1) (666 SE2d 559) (2008) (citations, punctuation and footnote omitted).

        Vansant, supra.

        Yearwood v. State, 239 Ga. App. 682, 683 (521 SE2d 689) (1999) (citation omitted).

       See id.; Darden, supra.

       See State v. Carter, 240 Ga. 518 (242 SE2d 28) (1978) (motion to suppress properly denied where officer saw van leaving rear parking lot of elementary school at 1:30 a.m., a nearby high school had recently been burglarized, and he had heard a police radio alert concerning a similarly-colored van occupied by two men seen cruising a nearby neighborhood in suspicious manner); LeRoux v. State, 300 Ga. App. 310, 312-313 (684 SE2d 424) (2009) (affirming denial of motion to suppress based on alleged unjustified stop where officer observed no traffic violations, but defendant was driving through a private golf course at 2:30 a.m., and there had been crimes committed on the golf course after hours); Lacy v. State, 285 Ga. App. 647, 649 (647 SE2d 350) (2007) (motion to suppress properly denied where deputy conducted investigatory stop based upon information of a domestic dispute in the subdivision and information that the man involved in the dispute might have been drinking and had just left the house in a red pickup truck; the deputy saw a red pickup truck leaving the subdivision, and there were few other vehicles on the road); Bozeman v. State, 196 Ga. App. 743, 743-744 (1) (397 SE2d 30) (1990) (officer was authorized to conduct a brief investigative detention to question vehicle’s occupants regarding what they were doing in car parked, for no apparent reason, in remote area of motel parking lot in a high-crime area at 4:45 a.m.); Jones v. State, 156 Ga. App. 730 (275 SE2d 778) (1980) (officer was justified in stopping vehicle in an uncompleted subdivision in an area with no other outlets, to ascertain occupants’ purpose for being in the area and to determine what their actions had been while there, when there had been vandalism in the past and reports of various problems in new subdivisions throughout the county).

       See Hudson v. State, 253 Ga. App. 210, 211-212 (558 SE2d 420) (2001).

       Id. at 212.


source: Caselaw Access Project

author: Adams, Judge.

license: Public Domain

text:
    A10A0330.
    WORLEY v. PEACHTREE CITY.
    (722 SE2d 363)
    Decided January 20, 2012.

      Page Perry, David J. Worley, pro se.

      Sumner & Meeker, Theodore P. Meeker III, for appellee.
   Adams, Judge.

In Scarbrough Group v. Worley, 290 Ga. 234 (719 SE2d 430) (2011), the Supreme Court found that the issues before this Court in Worley v. Peachtree City, 305 Ga. App. 118 (699 SE2d 94) (2010), were moot. The Supreme Court therefore reversed the judgment of this Court and remanded with direction that we vacate the judgment and dismiss the appeal as moot. In accordance with that decision, we therefore vacate our opinion in Worley v. Peachtree City, 305 Ga. App. 118, and make the Supreme Court’s decision the judgment of this Court. This appeal is therefore dismissed.

Appeal dismissed.

Mikell, P J., and Boggs, J., concur.


text:
    A11A1921.
    In the Interest of I. M. W., a child.
    (722 SE2d 586)
   Adams, Judge.

Following a bench trial, this 13-year-old juvenile was adjudicated delinquent for a violation of OCGA § 16-11-38, which prohibits wearing a mask, hood, or other device that conceals the identity of the wearer, and a violation of OCGA § 16-11-36, for loitering or prowling. On appeal, he contends the juvenile court should have granted his motion to dismiss, that the court erred by allowing the testimony of two of the witnesses, and that the evidence was insufficient to support the adjudication on each count.

Construed in favor of the adjudication, the evidence shows that on December 4, 2010, Cassie Morrow was in her home in Watkins-ville when her doorbell rang. When she answered the door two male youth were there; one was wearing a black ski mask, and the other was wearing a hooded sweatshirt and had his hands in his pockets fiddling for something. Morrow was worried that the second youth had a gun. The youth in the mask put his hands up to his face and stood staring at Morrow. Morrow, who was pregnant, was scared. Morrow’s daughter started screaming, and her fiancé shut the door and locked it. The doorbell then rang 15 more times, after which the boys ran off. Morrow’s fiancé then ran outside.

An officer who received a call, arrived promptly and saw Morrow’s fiancé running after one of the young men. He pursued down a nearby road. He made contact with both boys, who did not run from him; one was wearing a black ski mask, and the second was wearing a gray sweater. The officer could not identify the masked boy when he had the mask on. The officer told the boy in the mask to remove it, and the boy, who was smiling at the time, complied. The officer testified that I. M. W gave his name when asked and said that he thought he was doing something funny. The second boy was not charged with a crime. The two boys were taken to their homes; I. M. W lives in the neighborhood where the incident occurred. The officer identified I. M. W in court as the boy who removed the mask.

I. M. W. testified and admitted that he put on a mask and, with his friend, went to the Morrows’ house and rang the doorbell. He admitted someone opened the door, that a man came to the door and closed it, that he did not have the opportunity to talk, that he and his friend rang the doorbell again, and that when they left, the police arrived. He testified that he and his friend had intended to go to another friend’s house to surprise him and “play games,” but that they accidentally went one or two houses away from his friend’s house. I. M. W admitted at trial that he did not tell the officer about how they intended to go to a different house.

1. The evidence was sufficient to establish violations of both crimes.

[W]hen a juvenile challenges the sufficiency of the evidence, we apply the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), and we consider whether the evidence adduced at the hearing would permit a rational trier of fact to conclude beyond a reasonable doubt that the juvenile committed the acts with which he is charged. In considering the sufficiency of the evidence, we view the evidence in the light most favorable to the adjudication below, keeping in mind that it is for the trier of fact, not this Court, to weigh this evidence, resolve any conflicts in the evidence, and assess the credibility of witnesses.

(Citations and punctuation omitted.) In the Interest of H. A., 311 Ga. App. 660, 661 (716 SE2d 768) (2011).

(a) OCGA § 16-11-38 (a) provides that, with certain enumerated exceptions that are not applicable here:

A person is guilty of a misdemeanor when he wears a mask, hood, or device by which any portion of the face is so hidden, concealed, or covered as to conceal the identity of the wearer and is upon any public way or public property or upon the private property of another without the written permission of the owner or occupier of the property to do so.

Our Supreme Court has explained that the statute includes a mens rea requirement: “either ‘intention or criminal negligence’ must be present.” Daniels v. State, 264 Ga. 460, 464 (2) (b) (448 SE2d 185) (1994). That Court restated the requirements for obtaining a conviction under the Anti-Mask Act to include the mens rea requirement:

[T]he state must show that the mask-wearer (1) intended to conceal his identity, and (2) either intended to threaten, intimidate, or provoke the apprehension of violence, or acted with reckless disregard for the consequences of his conduct or a heedless indifference to the rights and safety of others, with reasonable foresight that injury would probably result.

Id. “While the reaction of the mask-wearer’s audience may be some evidence of the mask-wearer’s state of mind, such evidence is not necessarily determinative.” Id. at 463 (2) (a).

Here, the appellant in a mask and his friend in a hooded sweatshirt stood at the door to a stranger’s house and frightened the occupants by standing motionless and silent as to their intentions. After the occupants closed the door, the youths rang the doorbell numerous times. Further, the appellant’s defense is that there was a mistake, but he did not react on the scene as if there had been a mistake. He did not remove the mask or otherwise try to explain to the household occupants that a mistake had been made or that they did not mean to frighten them. In fact, the appellant did not tell the officer that they had approached the wrong house by mistake. The appellant’s statement to the officer that he thought he was doing something funny, without an explanation that there was a mistake about the house, could be seen as an admission that he was trying to scare strangers. Finally, the judge was authorized to disbelieve the appellant’s version of events. See Franklin v. State, 258 Ga. App. 281, 282 (574 SE2d 361) (2002).

Under these facts, we conclude there was sufficient evidence to permit a rational trier of fact to conclude beyond a reasonable doubt that the appellant intended to conceal his identity and to threaten, intimidate, or provoke the apprehension of violence.

(b) OCGA § 16-11-36 (a) provides as follows:

A person commits the offense of loitering or prowling when he is in a place at a time or in a manner not usual for law-abiding individuals under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.

The evidence supports the conclusion that because the appellant was wearing a mask, he was at the Morrows’ door “in a manner not usual for law-abiding individuals.” Further, the circumstances and the appellant’s actions, together with his friend’s, support the conclusion that a justifiable and reasonable alarm or immediate concern for the safety of the Morrows was warranted. And, as shown above, the appellant’s explanation to the officer could be read as an admission of intending to scare the Morrows. The fact that the appellant “did not attempt to flee from [the officer], did not refuse to identify himself, or did not attempt to conceal himself [from the officer],” standing alone, does not mean that the evidence was insufficient to support a finding of prowling or loitering. In the Interest of R. F., 279 Ga. App. 708, 711 (2) (a) (632 SE2d 452) (2006). The evidence was sufficient to support the juvenile court’s decision.

2. The appellant contends the trial court erred by denying his motion to dismiss because the State failed to comply with the strict requirements of OCGA § 15-11-39 (a). That Code section establishes the applicable timing: for children who are not in detention, like I. M. W, the statute provides that “the court shall set a hearing thereon which shall be not later than 60 days from the date of the filing of the petition.” OCGA § 15-11-39 (a).

The petition against I. M. W was filed on December 16, 2010; 60 days from that day would land on February 14, 2011. The case was scheduled for arraignment on January 12, 2011. Because of a snow storm, the arraignment was continued to February 1. On the day of the arraignment, at which the appellant pled not guilty, the appellant served discovery requests on the State. On February 8, the appellant was served with a summons to appear at a hearing to be held on February 23, 2011. On February 18, 2011, the appellant filed a motion to dismiss for failure to comply with the 60-day provision. On February 23, the hearing commenced with an argument on the motion to dismiss, which was denied. Thereafter, the State admitted that it had not complied with the appellant’s discovery request, and for that reason, the appellant requested a continuance of the adjudicatory hearing. The adjudicatory hearing ultimately was held on March 23, 2011.

Thus the adjudicatory hearing was neither set for nor held within 60 days of the date of the petition. “The language of OCGA § 15-11-39 (a) is mandatory and the adjudicatory hearing must be set for a time not later than that prescribed by the statute.” (Punctuation and footnote omitted.) In the Interest of A. S., 293 Ga. App. 710, 711 (1) (667 SE2d 701) (2008). Nevertheless, the requirements of OCGA § 15-11-39 (a) “can be waived, or continued for the securing of legal representation, OCGA § 15-11-30 (b), or for reasons within the discretion of the juvenile court.” (Citations omitted.) In the Interest of R. D. F., 266 Ga. 294, 295 (1) (466 SE2d 572) (1996).

During the argument regarding the motion to dismiss, the appellant’s mother — his representative and apparently an attorney — acknowledged that she did not object when, at the arraignment hearing, it was announced that the adjudicatory hearing would be set for February 23, outside of the 60-day window. She also did not object within the statutorily prescribed 60-day time period; the motion to dismiss was filed outside of the 60-day requirement. This Court has held that under similar procedural facts, the juvenile court did not err in denying the appellant’s motion to dismiss for failure to comply with OCGA § 15-11-39 (a). In the Interest of A. T., 302 Ga. App. 713, 714 (1) (691 SE2d 642) (2010) (at arraignment, appellant did not object to hearing date set beyond required time and did not object within the same time frame).

3. The appellant contends the juvenile court erred by allowing the testimony of two witnesses for the State.

(a) The State called Steve Hollis as its first witness, and the appellant objected on the ground that he “was not present on the day of the incident” and that he had no knowledge of the events charged in the indictment, which pertained to the boys “entering” the property wearing a mask. The court reserved ruling on the objection until hearing the witness’s testimony.

Hollis testified that he lived on the same street where the incident occurred; that on the day of the incident after lunchtime, he received a call, left his residence, went down the street in his car, and saw a boy in a mask and another boy coming away from the front door of a house, with the occupants chasing and yelling at them. The police arrived immediately thereafter and told the boy to take off the mask. Hollis identified the appellant as the boy who took off the mask. Hollis heard the boys say that “they were having fun.” He testified that as a result of the incident he was “angry, disturbed, concerned for young men who obviously don’t understand the consequences of their behaviors,” and concerned for his personal and family’s safety and for the safety of his property. He admitted that he did not see what happened when the boys entered the Morrow property and went to the door.

Obviously, the witness was present on the day of the incident; and he saw the boys in the victims’ yard, saw the appellant take off the mask, and heard the boys’ statement to the police. The evidence was relevant for identifying the appellant as the person in the mask and showing the boys’ behavior as they left the Morrow property, which may have shed some light on the boys’ intent. We find no breach of the trial court’s discretion regarding admitting relevant evidence. See Johnson v. State, 289 Ga. 498, 502 (5) (713 SE2d 376) (2011) (standard of review is abuse of discretion).

The appellant also argues that the State used the witness to establish prior acts of mischief in the neighborhood, which was “for the sole purpose of instilling bias and prejudice and fueling improper speculation by the court.” When Hollis testified that “we had been having issues with someone ringing doorbells, throwing items at houses,” the appellant objected on the ground that such information was irrelevant and prejudicial. But OCGA § 16-11-36 itself is concerned with the “circumstances” under which the crime was committed. And “[djuring a nonjury trial, it is presumed that the court is able to ‘sift the wheat from the chaff and select only the legal evidence.’ [Cit.]” In the Interest of C. G. B., 242 Ga. App. 705, 711 (4) (531 SE2d 107) (2000). We find no error in allowing Hollis’s testimony.

(b) Finally, the appellant contends the juvenile court erred by allowing Morrow’s fiancé, Kenneth Kanca, to testify as a rebuttal witness. Whether to allow an unidentified rebuttal witness to testify is a decision within the trial court’s discretion. Thompson v. State, 237 Ga. App. 91, 93 (2) (514 SE2d 870) (1999).

In his own defense, the appellant testified that Morrow’s door was only open for one second; that he did not have time to speak while the door was open; and that they only rang the bell one more time after the door was closed. After the defense rested, the State called Kanca in rebuttal. The appellant objected on the ground that he was not on the witness list; indeed, the State concedes that it had not disclosed Kanca as a potential witness. Among other things, Kanca testified that the door was open for two or three minutes; that he asked the boys what they wanted; and that the boys just stood there “and stared at me in the mask.” The State elicited very little additional information from Kanca. We find no abuse of discretion. See Thompson, 237 Ga. App. at 93 (2). The case of Allison v. State, 256 Ga. 851, 853 (8) (353 SE2d 805) (1987), is distinguishable because in that case, the undisclosed witnesses “were an important part of the state’s main case, rather than true rebuttal witnesses.” Id. at 854 (8).

Decided January 20, 2012

Ronda E. Hobby, for appellant.

Kenneth W. Mauldin, District Attorney, Kristopher M. Bolden, Kristin Moore Waller, Assistant District Attorneys, for appellee.

Judgment affirmed.

Barnes, E J., and Blackwell, J., concur.

       In 2000, the statute was modified and renumbered from OCGA § 15-11-26.


author: Ellington, Judge.

text:
    A11A1711.
    FOOTHILLS PHARMACIES, INC. v. POWERS.
    (722 SE2d 331)
   Ellington, Judge.

Pauline Powers brought this action against Foothills Pharmacies, Inc. (“Foothills”) in the Superior Court of Franklin County seeking to recover damages for personal injuries she sustained when her motorized scooter tipped over while she was operating it in her yard. Powers alleges that Foothills is liable to her pursuant to theories of negligent misrepresentation and breach of express warranty because Foothills’ agent represented to her that the three-wheeled scooter was safe for use in her yard. Following a hearing, the trial court denied Foothills’ motion for summary judgment regarding both claims. We granted Foothills’ application for an interlocutory appeal. Foothills appeals contending, inter alia, that Powers failed to adduce any evidence that the scooter was not in fact safe for use in her yard and, therefore, that Powers failed to identify any evidence that Foothills supplied her with false information or breached a warranty. For the reasons explained below, we reverse.

To prevail at summary judgment under OCGA § 9-11-56,

the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. . . . [T]he burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. Our review of the grant of summary judgment is de novo, and we construe the evidence and all inferences therefrom in favor of the nonmoving party.

(Citations and punctuation omitted.) Henson v. Ga.-Pacific Corp., 289 Ga. App. 777, 777-778 (658 SE2d 391) (2008).

Viewed in the light most favorable to Powers, the record shows the following. Powers received a prescription from her doctor for a mobility scooter, which she took to Foothills’ pharmacy, accompanied by her daughter. According to Powers, the Foothills’ salesman, David Ray, assured them that the Invacare Lynx L-3B three-wheeled scooter would be safe for her to use in her yard. For approximately the next ten months, Powers used the scooter without incident, primarily in her yard. Then, in April 2008, as she drove the scooter around the corner of a fence, in a flat area, the scooter tipped onto its side. Powers had traveled the same route in the scooter at least five times before. In her deposition, Powers testified that she did not know what caused the scooter to flip, and she offered no expert witness or other evidence on the subject.

In her claim for negligent misrepresentation, Powers alleged that Ray negligently misrepresented to her that the Lynx L-3B scooter was safe to use on gravel and grass surfaces. In her claim for breach of an express warranty, Powers alleged that Ray told her that the Lynx L-3B scooter was safe to use on nonpaved and sloped surfaces.

1. Foothills contends that, because Powers failed to adduce any evidence regarding why her scooter tipped over, there is no evidence that Ray’s statement that the three-wheeled scooter was safe for use in her yard conveyed false information. As a result, Foothills contends, it is entitled to judgment as a matter of law on Powers’ claim for negligent misrepresentation.

Under Georgia law, the essential elements of the tort of negligent misrepresentation are: (1) the defendant’s negligent supply of false information to foreseeable persons, which included the plaintiff; (2) the plaintiffs reasonable reliance upon that false information; and (3) injury proximately resulting from such reliance. Hardaway Co. v. Parsons, Brinckerhoff &c., Inc., 267 Ga. 424, 426 (1) (479 SE2d 727) (1997). In this case, Powers has not identified any evidence that Ray’s statement that the Lynx L-3B scooter was safe to use on gravel and grass surfaces was false. Although Powers, as the nonmovant, is entitled to all reasonable inferences drawn from the evidence, “an inference cannot be based upon evidence which is too uncertain or speculative or which raises merely a conjecture or possibility.” (Citations and punctuation omitted.) Greyhound Lines v. Williams, 290 Ga. App. 450, 452 (1) (659 SE2d 867) (2008). The mere fact that the scooter tipped over, resulting in Powers’ injury, is not evidence that the scooter was not safe to use on gravel and grass surfaces. Powers can only speculate that the scooter tipped over because it was generally unsuitable for use on gravel and grass surfaces rather than because of how she operated it that particular day or due to any other possible cause. Because such speculation is insufficient to raise an issue for resolution by a jury, the trial court erred in denying Foothills’ motion for summary judgment on this claim. Greyhound Lines v. Williams, 290 Ga. App. at 451-452 (1); Ford v. Bank of America Corp., 277 Ga. App. at 708, 709-710 (627 SE2d 376) (2006).

2. Foothills contends that, because Powers failed to adduce any evidence regarding why her scooter tipped over, there is likewise no evidence that Foothills breached any warranty regarding the scooter’s suitability for her intended use. As a result, Foothills contends, it is entitled to judgment as a matter of law on Powers’ claim for breach of an express warranty.

In pertinent part, OCGA § 11-2-313 (1) (b) provides that “[a]ny description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.” Powers failed to present any evidence that the scooter was generally unsuitable for use on nonpaved and sloped surfaces, and, therefore, she has not identified any evidence that the Lynx L-3B scooter did not conform to Ray’s description. Cf. Thompson v. Huckabee Auto Co., 190 Ga. App. 540, 541 (1) (379 SE2d 411) (1989) (evidence that a car had been damaged and repaired presented a jury question regarding whether the car conformed to the seller’s description that the car was new); Horne v. Claude Ray Ford Sales, 162 Ga. App. 329, 330 (4) (290 SE2d 497) (1982) (accord). Accordingly, the trial court erred in denying Foothills’ motion for summary judgment on this claim.

Judgment reversed.

Miller, P. J., and Doyle, J., concur.

Decided January 6, 2012

Reconsideration denied January 23, 2012.

Blasingame, Burch, Garrard & Bryant, Matthew A. Moseley, M. Steven Heath, for appellant.

Douglas T. Kidd, Margaret N. Dyal, for appellee.

       See Turner v. Masters, 304 Ga. App. 855, 857 (1) (698 SE2d 346) (2010) (“It is axiomatic that the mere fact that an accident happened and the plaintiff may have sustained injuries or damages affords no basis for recovery against a particular defendant unless the plaintiff carries the burden of proof and shows that such accident and damages were caused by specific acts of negligence on the part of that defendant.”) (citation and punctuation omitted); Hunsucker v. Belford, 304 Ga. App. 200, 202 (1) (695 SE2d 405) (2010) (“Negligence is not to be presumed, but is a matter for affirmative proof. . . . [Gluesses or speculation which raise merely a conjecture or possibility are not sufficient to create even an inference of fact for consideration on summary judgment.”) (punctuation and footnotes omitted); Ford v. Bank of America Corp., 277 Ga. App. 708, 709 (627 SE2d 376) (2006) (“Merely stating that a condition is dangerous does not constitute evidence that it is so.”) (citation omitted).


author: Blackwell, Judge.

text:
    A11A1660.
    THE STATE v. REID.
    (722 SE2d 364)
   Blackwell, Judge.

Reggie Reid was charged with possession of marijuana with intent to distribute, based on evidence that was obtained in the course of a traffic stop. Reid moved to suppress this evidence, contending that there was no proper basis for the stop. The court below agreed, and it granted the motion to suppress. The State appeals, and finding no error in the decision of the court below, we affirm.

When an appeal is taken from the grant of a motion to suppress, we owe no deference to the way in which the court below resolved questions of law, Barrett v. State, 289 Ga. 197, 200 (1) (709 SE2d 816) (2011), but we must accept its factual findings “unless clearly erroneous,” and we must view the evidence in the light most favorable to the decision of the court below. Miller v. State, 288 Ga. 286, 286-287 (1) (702 SE2d 888) (2010). So viewed, the record in this case shows that a Walton County deputy sheriff saw Reid driving a car that had no side view mirrors, and the deputy began to follow it. After a while, the deputy said, he saw a passenger throw “a small, white object” from the car, and the deputy stopped the car. The deputy determined that a warrant was outstanding for the arrest of the passenger, and he arrested the passenger and asked Reid for consent to search the car. Reid gave consent, and the deputy found a bag of marijuana in the trunk. The deputy then arrested Reid for possession of the marijuana, and after the deputy read the Miranda warnings, Reid admitted that the marijuana was his. The stop was recorded on video, and the video was shown to the court below at the hearing on the motion to suppress, but no copy of the video appears in the record on appeal.

Reid moved to suppress the marijuana and other evidence obtained as a result of the stop, asserting that the deputy had no proper basis for the stop. In response, the State argued that the deputy had two distinct grounds for stopping Reid, namely that Reid was driving a car without side view mirrors and that someone in the car had littered by throwing something from the car. The court below rejected the justifications that the State offered for the stop. The court reasoned that no law absolutely requires that a car be equipped with side view mirrors, and even if an officer properly may stop a person based merely on his good faith belief that the person has violated the law, see McConnell v. State, 188 Ga. App. 653, 654 (1) (374 SE2d 111) (1988) (physical precedent only), the court found that the deputy did not really believe at the time of the stop that the absence of side view mirrors supplied proper grounds for a stop. The court also found, after viewing the video of the traffic stop, that the deputy did not, in fact, see anyone toss anything from the car, and there was, therefore, no reason to stop the car for littering.

On appeal, the State just ignores the factual findings of the court below, and it argues that the deputy was entitled to stop the car because he really believed that the absence of side view mirrors is unlawful and because he really saw someone littering. We cannot, however, just ignore those factual findings, and on the record before us, we cannot find that they are clearly erroneous. Those findings are based not only upon the video that is absent from the record on appeal, but also upon an assessment of the credibility of the deputy, and we especially must defer to the court below about questions of credibility, inasmuch as it had the opportunity to see and hear from the witnesses in person. See Santos v. State, 306 Ga. App. 772, 775 (1) (703 SE2d 140) (2010). Accepting the facts as found by the court below, we see no error in the way in which that court applied the law to those facts. Consequently, we affirm the judgment below.

Decided January 23, 2012.

Layla H. Zon, District Attorney, Marie E. Greene, Erie J. Newton III, Assistant District Attorneys, for appellant.

Donna L. Clement, for appellee.

Judgment affirmed.

Barnes, P. J., and Adams, J., concur.

       See OCGA § 16-13-30 (j).

       The State does not dispute the findings of the court below about what is depicted by the video, and in fact, it does not even mention the video in its brief. Although Reid discusses the video extensively in his own brief, the State seems to argue the case as if there were no such recording. If the State thought that the video recording had been misconstrued by the court below, or if the State thought that the video might be helpful to its appeal, we can only assume that the State would, at the least, mention the video somewhere in its brief. No one has asked us to order the supplementation of the record, and under the circumstances of this case, we decline to exercise our discretion to do so sua sponte. See generally Frazier v. State, 311 Ga. App. 293, 297 (715 SE2d 712) (2011) (“[I]t is not the responsibility of this Court to ensure that the appellate record is complete.”) (on motion for reconsideration).

       According to OCGA § 40-8-72 (a), “every motor vehicle which is so constructed or loaded as to obstruct the driver’s view to the rear thereof from the driver’s position shall be equipped with a mirror so located as to reflect to the driver a view of the highway for a distance of at least 200 feet to the rear of such vehicle.” (Emphasis supplied.) Here, although the record shows that Reid was driving a car without side view mirrors, the deputy admitted that he could not recall whether the car had a rear view mirror, and the deputy assumed that it did.

       The court explained that, if the deputy had, in fact, believed that the operation of a car without side view mirrors is unlawful, the deputy would not have followed the car for so long before he stopped it.

       In its order, the court below noted that the video shows nothing tossed from the vehicle, a finding that we, of course, must accept because the video recording is not in the record on appeal. See Brown v. Host/Taco Joint Venture, 305 Ga. App. 248, 251, n. 1 (699 SE2d 439) (2010) (“To the extent that the proof necessary for determination of the issues on appeal has been omitted from the record, we must assume that the judgment below was correct and affirm.”); see also Laster v. State, 311 Ga. App. 360, 363 (3) (715 SE2d 768) (2011) (“A party alleging error carries the burden of showing it affirmatively by the record, and when that burden is not met, the judgment is assumed to be correct and will be affirmed.”) (citation and punctuation omitted). Because the video shows nothing tossed from the car, the court reasoned, “it is difficult to understand” how the deputy could have seen something tossed from the car, as he testified he had, and then have been able to describe it with as much detail as he did. Although the court did not say so explicitly, it is apparent to us that the court found the testimony of the officer on this point not credible.


author: MlKELL, Presiding Judge.

text:
    A11A1505.
    GOWER v. THE STATE.
    (722 SE2d 383)
   MlKELL, Presiding Judge.

Joshua Gower appeals from the judgment of conviction and sentence entered on his nonnegotiated guilty plea on one count of burglary, arguing that defense counsel was ineffective and that the trial court erred by denying his motion to withdraw his plea. Finding no error, we affirm.

The predicate facts developed at the guilty plea hearing show that after Elizabeth Summerland and her son, Chris, arrived at home, Chris found their neighbor, Joshua Gower, under his bed. Gower told law enforcement that he had permission from Elizabeth Summerland’s husband, Edward Summerland, to obtain items from the home. According to a responding law enforcement officer, Edward denied this. The co-defendant in this case, Matthew Barber, who had already entered a guilty plea, stated to law enforcement that he was the lookout for Gower. Gower was then arrested and indicted on one count of burglary. On July 8, 2010, a week before his scheduled trial, Gower entered a nonnegotiated plea of guilty to one count of burglary. Gower subsequently filed a motion to withdraw this plea, and the motion was denied. Gower appeals and argues that he received ineffective assistance of counsel.

Initially, we note that although a guilty plea may be withdrawn anytime before sentencing, “once a sentence has been entered, a guilty plea may only be withdrawn to correct a manifest injustice and a trial court’s refusal to allow withdrawal will not be disturbed on appeal absent a manifest abuse of discretion.” In reviewing the motion, “the trial court is the final arbiter of all factual disputes raised by the evidence. If evidence supports the trial court’s findings, we must affirm.” The trial court’s legal conclusions are reviewed de novo.

When a defendant pleads guilty and seeks to overturn his conviction because of counsel’s errors, he “must show both that counsel’s performance was deficient and that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” When evaluating counsel’s performance to determine whether it was deficient, “there is a strong presumption that counsel’s conduct falls within a wide range of reasonable professional assistance.” Gower has not satisfied either prong of this test.

Gower argues that he pled primarily because he feared proceeding to trial because his counsel was not adequately prepared. In support of this contention, he maintains that his lawyer failed to properly investigate the facts by not interviewing Elizabeth Sum-merland, her son, or co-defendant Barber. However, nothing on the record shows that his counsel was inadequately prepared. At the motion to withdraw hearing, plea counsel testified that she had met with Gower and spoken to him on the phone several times before the trial calendar; she met with Edward Summerland in her office and explored the possible defense that Gower had permission to be in the home at the time of his arrest; she spoke with the attorney for co-defendant Barber regarding his testimony; and she had attempted to contact Elizabeth and another individual who was present, but was unable to do so.

Gower also contends that he received ineffective assistance because counsel prematurely advised him that Edward’s credibility likely would be impeached at trial and he felt pressured to take a plea. Plea counsel had informed Gower that Edward’s testimony might not be credible due to his prior felony convictions over a decade ago even though the trial court had not yet had a hearing to determine their admissibility. However, plea counsel testified at the motion for new trial hearing that she was aware of the convictions and the possibility that they might not be admitted, but that these prior felonies were not the only basis for possible impeachment of Edward’s credibility. Plea counsel further testified that she informed Gower that he had the right to a jury trial, but that it would be the jury’s decision to weigh the credibility of the testimony of Edward as a potential exculpatory witness and that his testimony might be impeached not only because of his felony convictions, but also because he made an inconsistent statement to law enforcement on the night of the arrest, and because he was in jail on the night of the arrest. Accordingly, the record shows that counsel’s preparation and assessment of the evidence and potential defenses was reasonable and does not support the conclusion that counsel’s performance was deficient.

Finally, Gower did not produce any affirmative evidence at the motion to withdraw the guilty plea hearing that but for his counsel’s ineffective assistance, he would have insisted on going to trial. Rather, Gower testified, and his counsel confirmed, that the reason he pled guilty was so he could remain out of jail on bond until his sentencing hearing so that he could assist law enforcement with other criminal investigations and possibly receive consideration for that help during his sentencing. Although Gower did provide some conflicting testimony in the motion to withdraw the guilty plea hearing that he was pressured into accepting a plea by his counsel, the trial court is authorized to disbelieve self-serving testimony in favor of defendant’s counsel.

Ample evidence sustained the trial court’s findings that supported its conclusion that Gower failed to carry his burden of showing ineffective assistance of counsel. Accordingly, the trial court did not abuse its discretion in denying Gower’s motion to withdraw his guilty plea.

Decided January 24, 2012.

Charles E. W. Barrow, for appellant.

Layla H. Zon, District Attorney, Clint C. Malcolm, Assistant District Attorney, for appellee.

Judgment affirmed.

Dillard and Boggs, JJ., concur.

       (Punctuation and footnotes omitted.) Earley v. State, 310 Ga. App. 110, 112 (712 SE2d 565) (2011).

       (Footnote omitted.) Trapp v. State, 309 Ga. App. 436-437 (710 SE2d 637) (2011).

        Navarrette v. State, 298 Ga. App. 637 (680 SE2d 649) (2009).

       (Citation and punctuation omitted.) Rios v. State, 281 Ga. 181 (2) (637 SE2d 20) (2006).

       (Punctuation and footnote omitted.) Murray v. State, 307 Ga. App. 621, 624 (705 SE2d 726) (2011).

        Jones v. State, 287 Ga. 270, 271-272 (695 SE2d 271) (2010) (Counsel did not provide ineffective assistance when, despite her efforts to do so, she was unable to locate several witnesses using the names and addresses provided by the state).

       See Quiroz v. State, 291 Ga. App. 423, 427-428 (4) (662 SE2d 235) (2008) (requiring court to make express findings on the record before admitting felonies for impeachment purposes) and OCGA § 24-9-84.1 (b) (evidence of a conviction is “not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness . . . unless the court determines, in the interest of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect”).

        Williams v. State, 296 Ga. App. 270, 273-274 (1) (b) (674 SE2d 115) (2009).

        Jones, supra.

        Pattillo v. State, 304 Ga. App. 344, 345 (696 SE2d 370) (2010).


author: DOYLE, Presiding Judge.

text:
    A11A1589.
    In the Interest of T. M. M. L., a child.
    (722 SE2d 386)
   DOYLE, Presiding Judge.

Robert W. Leavenworth appeals the juvenile court’s denial of his motion for attorney fees pursuant to OCGA § 9-15-14 in a deprivation action filed by Robert and Janet Belli. We affirm, for the reasons that follow.

The record shows that Leavenworth had custody of his daughter, T. M. M. L., following his ex-wife’s death. T. M. M. L.’s maternal grandparents, the Beilis, had visitation rights pursuant to a Massachusetts court order. The Beilis filed a deprivation complaint, alleging that Leavenworth had entered a drug rehabilitation facility, leaving T. M. M. L. “attended only by rotating maids.” Following a hearing, which included the testimony of T. M. M. L., the trial court entered an order dismissing the complaint on the basis that the “child is not currently deprived.”

Thereafter, Leavenworth filed a motion for an award of attorney fees and costs against the Beilis pursuant to OCGA § 9-15-14, alleging that the Beilis’ complaint, “[a]t best, . . . lacked any substantial justification[, and a]t worst, there is such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept it.” The trial court denied the motion, concluding that the Civil Practice Act does not apply to juvenile court proceedings. We granted Leavenworth’s subsequent application for discretionary review, and he now appeals the juvenile court’s order.

OCGA § 9-15-14 provides for the imposition of attorney fees under both subsections (a) and (b) “[i]n any civil action in any court of record. . . .” Pursuant to OCGA § 15-11-4 (b), “[t]he juvenile court is a court of record. ...” The Civil Practice Act

governs the procedure in all courts of record of this state in all actions of a civil nature whether cognizable as cases at law or in equity, with the exceptions stated in Code Section 9-11-81. This chapter shall be construed to secure the just, speedy, and inexpensive determination of every action. This chapter shall also apply to courts which are not courts of record to the extent that no other rule governing a particular practice or procedure of such courts is prescribed by general or local law applicable to such courts.

OCGA § 9-11-1. OCGA § 9-11-81 provides that the Civil Practice Act

shall apply to all special statutory proceedings except to the extent that specific rules of practice and procedure in conflict herewith are expressly prescribed by law; but, in any event, the provisions of this chapter governing the sufficiency of pleadings, defenses, amendments, counterclaims, cross-claims, third-party practice, joinder of parties and causes, making parties, discovery and depositions, interpleader, intervention, evidence, motions, summary judgment, relief from judgments, and the effect of judgments shall apply to all such proceedings.

Despite this statutory language, the Supreme Court held in English v. Milby that juvenile courts are not hound by the rules of procedure set forth in the Civil Practice Act, explaining that

[t]he Juvenile Court Code ([OCGA § 15-11-1 et seq.]) establishes a unique court system for the protection and rehabilitation of children under 17 years of age. The General Assembly has provided that the Title shall be liberally construed to effectuate its purpose. [OCGA § 15-11-1]. The provisions of the Juvenile Court Code dealing with the commencement of proceedings . . . , the petition . . . , the modification or vacation of orders . . ., and other matters, indicate a legislative intent to make it a court with its own distinctive rules of procedure. It would be contrary to the spirit and expressed purpose of the Juvenile Court Code . . . to require the Juvenile Courts to conform to the provisions of the Civil Practice Act.

The Court further held that the “rules [set forth in the Civil Practice Act] may be adopted by the Juvenile Courts as to all procedures not specifically provided for in the Juvenile Court Code.”

Decided January 24, 2012.

Flynn & Gottlieb, Jon A. Gottlieb, for appellant.

Paul R. Koehler, for appellee.

Leavenworth points out that there is no provision in the Juvenile Court Code for an award of attorney fees for frivolous claims. Thus, he argues, juvenile courts are free to adopt OCGA § 9-15-14 for application in juvenile court. Leavenworth relies on three cases in which one of the parties in a juvenile case made a claim for attorney fees under OCGA § 9-15-14; in each case, this Court reversed the imposition of an OCGA § 9-15-14 fee award. Although those cases may appear to suggest that juvenile courts have authority to award attorney fees under OCGA § 9-15-14, none of the cases specifically addresses such authority, and Leavenworth’s reliance on these cases is misplaced.

Because the juvenile court has not adopted OCGA § 9-15-14, and there is no implicit attorney fee award for frivolous litigation in the Juvenile Court Code, and given the Supreme Court’s holding in English that the Civil Practice Act does not apply to juvenile courts, the juvenile court in the instant case properly concluded that it had no authority to impose attorney fees under OCGA § 9-15-14.

Judgment affirmed.

Ellington, C. J., and Miller, J., concur.

       233 Ga. 7 (209 SE2d 603) (1974).

       (Punctuation omitted; emphasis supplied.) Id. at 9 (1). See also Coleman v. Coleman, 238 Ga. 183 (232 SE2d 57) (1977) (“The Civil Practice Act. . . does not apply to juvenile courts.”).

       (Emphasis supplied.) English, 233 Ga. at 9-10 (1).

       See Segal v. Dorber, 250 Ga. App. 688, 689-690 (2) (552 SE2d 873) (2001) (holding that juvenile court lacked jurisdiction to award fees under OCGA § 9-15-14 because it entered the award after it had transferred the case to superior court and concluding that there was no factual basis for the fee award); In the Interest of M. A. K., 202 Ga. App. 342 (1) (414 SE2d 288) (1991) (reversing OCGA § 9-15-14 (b) attorney fee award because the application was untimely pursuant to OCGA § 9-15-14 (e)); In re N. S. M., 183 Ga. App. 398, 400 (3) (359 SE2d 185) (1987) (reversing OCGA § 9-15-14 attorney fee award to a witness because only parties are entitled to a fee award under the statute and noting that there is no Juvenile Court Code provision authorizing such an award).

       Compare Titelman v. Stedman, 277 Ga. 460, 461 (591 SE2d 774) (2003) (stating that OCGA § 9-11-58 (a), which requires a judge’s signature on all judgments under the Civil Practice Act, “was adopted verbatim in Uniform Juvenile Court Rule 17.1.”).

       Compare Coleman, 238 Ga. at 183-184 (holding that the Juvenile Court Code contains an implicit requirement that juvenile courts make specific findings of fact when disposing of a contested custody case because the Code requires such findings of fact in other types of juvenile cases and requires court-appointed referees to make findings after juvenile hearings).


text:
    A11A1681.
    McLEMORE et al. v. GENUINE PARTS COMPANY.
    (722 SE2d 366)
   DOYLE, Presiding Judge.

Evelyn L. and Bobbie H. McLemore filed suit against Genuine Parts Company d/b/a Napa Auto Parts (“GPC”) after Evelyn sustained injuries when she fell from a curb in a GPC parking lot. The McLemores appeal the trial court’s grant of summary judgment to GPC. We affirm, for the reasons that follow.

Summary judgment is appropriate when no genuine issues of material fact remain and the movant is entitled to judgment as a matter of law. On appeal, we review the grant or denial of summary judgment de novo, construing the evidence and all inferences in a light most favorable to the nonmoving party.

So viewed, the record shows that at approximately 11:00 a.m. on November 13, 2007, a GPC store in Columbus hosted a tool show in the store parking lot, including a customer cookout with tables and chairs. On that day, Evelyn drove her husband, Bobbie, to the GPC store to buy hydraulic fluid. According to Evelyn, because the GPC parking lot was filled with people, she parked in a separate lot across the street from the store.

As Evelyn approached the store, she stepped up onto a curb and then fell backward, landing on a nearby chair. Several men assisted her and set her in a chair, where she waited for five to ten minutes before she and Bobbie entered the GPC store and purchased hydraulic fluid. Evelyn and Bobbie then exited the store using the handicap ramp and walked to their car. Thereafter, they stopped at a restaurant and then went to the emergency room, where x-rays revealed that Evelyn had two broken ribs. The next morning, Evelyn’s doctor concluded that she also had a broken hip, which required surgery.

Evelyn later deposed that she and her husband had shopped at the GPC store on three or four occasions prior to her fall. They had a handicap sticker on the car for Bobbie, who was partially blind, and therefore they parked in the handicap parking space and used the handicap ramp to enter and exit the store on their previous visits. Evelyn testified that there “was a lot of distraction” in the parking lot on the day of her fall. There were tables and chairs set up in front of the store to her left as she attempted to step onto the curb to enter the store. Evelyn deposed that the curb, which she was able to see as she approached it, was “higher than usual” and that it was “a higher step than other curbs.” Although she “[did not] think [she would have fallen] if it had been a regular height curb,” Evelyn conceded that she did not know “what it was that made [her] fall backwards.” In a subsequent affidavit, Evelyn testified that when she and Bobbie entered the parking lot, she “was unable to see or walk over to the ramped entrance to the store because of all of the luncheon activities taking place, which blocked [her] path.” The GPC store manager, however, testified that the handicap ramp was not obstructed by the tool show or in any other manner on the day of Evelyn’s fall.

As the McLemores walked toward the store together, Bobbie stepped onto the curb and then saw Evelyn step up “almost simultaneously.” According to Bobbie, he “could see the curb and . . . the sidewalk in front of [him]” as he approached them, and nothing obstructed his view of the curb, which he could tell “was taller or higher than the average curb.”

The McLemores’ expert engineer, Herman Hill, averred that the curb where Evelyn fell

was defectively created, designed, built, and maintained by [GPC], and that it constituted a trip hazard. I am familiar with the Georgia State Minimum Standard Building Code requirements and other industry standards applicable to proper stair design and safety. It is my opinion that [GPC] failed to substantially comply with the standards referred to above . . . because the stair riser height where the fall occurred exceeded the maximum allowable height by at least one inch.

Hill further opined that GPC

negligently operated this commercial facility in violation of the applicable regulations and standards for maintenance of accessible features at a public accommodation and commercial facility under the Americans with Disabilities Act (ADA) and that such negligence was a proximate cause of the serious injury to . . . Evelyn. . . .

On appeal, the McLemores contend that the trial court erred by granting summary judgment to GPC on their premises liability claim. We disagree.

Pursuant to OCGA § 51-3-1,

[w]here an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.

To prevail on a “trip and fall” claim,

the plaintiff must prove that (1) the premises owner had actual or constructive knowledge of the hazard; and (2) the plaintiff lacked knowledge of the hazard, despite her exercise of ordinary care, due to actions or conditions within the owner’s control. However, the plaintiffs evidentiary burden concerning the second prong is not shouldered until the owner establishes that the plaintiff was negligent, that is, she intentionally and unreasonably exposed herself to a hazard of which she knew or, in the exercise of reasonable care, should have known existed. With respect to the second prong, we determine whether the record shows plainly, palpably!,] and without dispute that plaintiff had knowledge of the hazard equal or superior to that of defendants or would have had equal or superior knowledge had the plaintiff exercised ordinary care for personal safety.

When the claim

involves allegations of a static, dangerous condition, the rule is well established that the basis of the proprietor’s liability is his superior knowledge and if his invitee knows of the condition or hazard there is no duty on the part of the proprietor to warn him and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does.

“If nothing obstructs the invitee’s ability to see the static condition, the proprietor may safely assume that the invitee will see it and will realize any associated risks.”

Thus, even if GPC had knowledge of the allegedly hazardous condition of the curb, the McLemores cannot recover if Evelyn had equal or superior knowledge or if her ability to see the curb was unimpeded. Although Evelyn testified that “ [i]t . . . seemed like [there] was a lot of distraction” in the parking lot, meaning there were “a lot of people . . . moving around . . .,” she also testified that she was able to see the curb, including its height, as she approached it. Bobbie, who was traversing the parking lot and curb at the same time, conceded that he was able to see the curb as he approached it and observed that it was higher than average.

As we noted in Wright v. JDN Structured Finance,

[ojccupiers of premises whereon the public is invited to come are not required to keep their parking lots and other such areas free from irregularities and trifling defects. One coming upon such premises is not entitled to an absolutely smooth or level way of travel. The ultimate issue is whether [GPC] was negligent in maintaining a hazardous condition on the property, and in everyday life, persons are required to negotiate floors, steps[,] and doorways. Even if the curbed sidewalk was hazardous as [the McLemores] assert[ ], the condition was open and obvious, and thus, in the exercise of ordinary care, [Evelyn] could have avoided it. There is no duty to warn of the obvious.

We similarly reject the McLemores’ argument that the “distraction theory” precludes summary judgment.

The distraction theory covers situations where the plaintiffs attention is distracted by a natural and usual cause, and this is particularly true where the distraction is placed there by the defendant or where the defendant in the exercise of ordinary care should have anticipated that the distraction would occur.
The relevant inquiry, however, is whether appellant’s view of the [hazard] was obstructed at the point immediately before [s]he was about to step [o]nto it. . . . Where an obstruction is perfectly obvious and apparent, so that one looking ahead would necessarily see it, the fact that the plaintiff merely failed to look will not relieve h[er] from the responsibility for h[er] misadventure.

Decided January 24, 2012.

Matthew N. Pope, for appellants.

Hawkins, Parnell, Thackston & Young, Stephen C. Collier, for appellee.

Here, Evelyn did not testify that the purported distraction of people attending the tool show in any way obstructed her view of the curb. “The proof offered clearly puts this case within the line of cases involving the plain view doctrine and effectively eliminates any distraction theory.”

We agree with the trial court that Evelyn had equal knowledge of any hazard presented by the height of the curb. Accordingly, the trial court did not err by granting summary judgment to GPC.

Judgment affirmed.

Ellington, C. J., and Miller, J., concur.

       (Footnote omitted.) Pirkle v. Robson Crossing, LLC, 272 Ga. App. 259 (612 SE2d 83) (2005).

       Although the store manager helped to set up the tool show and to break it down at the end of the day, he remained in the store during the course of the day.

       (Punctuation and footnote omitted.) Id. at 260-261.

       (Punctuation omitted.) Perkins v. Val D’Aosta Co., 305 Ga. App. 126, 128 (699 SE2d 380) (2010).

       (Punctuation omitted.) Becton v. Tire King of North Columbus, 246 Ga. App. 57, 59 (539 SE2d 551) (2000).

       239 Ga. App. 685 (522 SE2d 4) (1999).

       (Citation and punctuation omitted.) Id. at 686-687 (2).

       (Punctuation omitted.) Gray v. Alterman Real Estate Corp., 196 Ga. App. 239, 239 (396 SE2d 42) (1990).

       (Citations omitted; emphasis in original.) Id. at 240-241.

       (Punctuation omitted.) Id. at 241

       See Pirkle, 272 Ga. App. at 262; Wright, 239 Ga. App. at 687 (2); Warnke v. Pace Membership Warehouse, 215 Ga. App. 33, 34 (449 SE2d 629) (1994). Compare Perkins, 305 Ga. App. at 129-130 (reversing summary judgment to defendant because the plaintiff, who was injured when he stepped off a high curb, presented evidence that “the step down from the curb was difficult to see when approached from above due to lighting conditions, darkened surfaces!,] and lack of warning”).


author: Ellington, Chief Judge.

text:
    A11A1927.
    MEDICAL STAFFING NETWORK, INC. v. CONNORS et al.
    (722 SE2d 370)
   Ellington, Chief Judge.

Janet Rowland, the widow of William Rowland, and the estate of William Rowland (collectively, “the Rowlands”) brought this medical malpractice action in the State Court of DeKalb County against DeKalb Medical Center (“the hospital”) and Medical Staffing Network, Inc., a temporary staffing agency. The hospital filed a cross-claim for indemnification against Medical Staffing, which employed a nurse whose negligence allegedly injured William Rowland and caused his death. A jury trial resulted in a verdict in favor of the Rowlands. Ultimately, the trial court entered judgment in favor of the Rowlands on the jury’s verdict and in favor of the hospital on its cross-claim. Medical Staffing appeals, challenging the judgment along with the trial court’s rulings on a number of post-trial motions.

The following facts are undisputed. In July 2005, William Rowland was seriously injured in a vehicular accident and received long-term acute care at the hospital. At the time, Medical Staffing was under contract with the hospital to supply the hospital with temporary medical personnel as needed. Peggy Howard, a licensed practical nurse employed by Medical Staffing, worked the overnight shift from 7:00 p.m. on August 13 to 7:00 a.m. on August 14, 2005, and was primarily responsible for William Rowland’s care that night. William Rowland developed hypotension (low blood pressure) that night, but Howard did not discover his worsening condition until she checked on him at 5:20 a.m.

The Rowlands brought suit against the hospital on December 7, 2007, claiming that Howard negligently failed to monitor William Rowland’s vital signs and that, as a result of the delay in treatment, he suffered injuries, including severe brain damage, which resulted in his death on December 8, 2005. They added Medical Staffing as a party defendant in March 2008.

In her deposition, Howard testified that a nursing assistant was responsible for taking her patients’ blood pressure and reporting the results to her. According to Howard, the delay in treatment was the nursing assistant’s fault because he failed to inform her of William Rowland’s low blood pressure readings. Tyrone Ogburn, an employee of the hospital, was identified as that nursing assistant.

The hospital stipulated that Howard was its apparent agent and, therefore, that it was liable if she committed malpractice. In addition, Medical Staffing stipulated that, pursuant to an indemnity provision in its staffing contract with the hospital, Medical Staffing would be responsible for any damages the jury awarded the Row-lands to the extent the jury apportioned the fault to Howard.

The trial court submitted the case to the jury using a special verdict form. The jury found that both Howard and Ogburn were negligent and that their negligence proximately caused William Rowland’s injury and death. The jury apportioned fault 95 percent to Howard and 5 percent to Ogburn. The jury awarded the estate $364,279.40 for William Rowland’s medical bills and $1 million for his pain and suffering and awarded Janet Rowland $2.5 million on her wrongful death claim.

1. Medical Staffing contends that the trial was fundamentally unfair because the Rowlands and the hospital concealed until after the verdict that, on the first day of trial, they had entered into an agreement which allowed the hospital to reduce or eliminate its financial exposure in exchange for certain conduct during the litigation that would increase Medical Staffing’s liability. As a result, Medical Staffing contends, the trial court erred in denying its motion for a new trial based on the existence of the secret litigation agreement.

A trial court may grant a new trial

in any case where any material evidence, not merely cumulative or impeaching in its character but relating to new and material facts, is discovered by the applicant after the rendition of a verdict against him and is brought to the notice of the court within the time allowed by law for entertaining a motion for a new trial.

OCGA § 5-5-23. To satisfy this standard, the applicant must show, inter alia, that the newly discovered evidence “was so material as to make a different verdict likely[.]” (Citation omitted.) Flowers v. Union Carbide Corp., 271 Ga. App. 438, 443 (3) (b) (610 SE2d 109) (2005). “The grant or denial of a new trial on the ground of newly discovered evidence is not favored and is addressed to the trial court’s sound discretion.” (Footnote omitted.) Gill v. Spivey, 264 Ga. App. 723, 724 (1) (592 SE2d 132) (2003). Accordingly, “[a] trial court’s denial of a motion for new trial on the ground of new evidence will not be reversed absent an abuse of discretion.” (Citation omitted.) Flowers v. Union Carbide Corp., 271 Ga. App. at 443 (3) (b).

The record shows that the agreement the Rowlands and the hospital executed on the first day of trial provided as follows:

(1) In the event of a verdict against the Rowlands and in favor of the hospital, the hospital would pay the Rowlands $50,000.

(2) In the event of a verdict in favor of the Rowlands and against the hospital, the hospital would diligently pursue its cross-claim against Medical Staffing and, if it prevailed, it would pay the Rowlands the amount it recovered from Medical Staffing. The Rowlands agreed, in that event, not to enforce the remainder of the judgment (if any) against the hospital.

(3) In the event of a verdict in favor of the Rowlands and against the hospital, and in the event the hospital failed to .prevail on its cross-claim against Medical Staffing, the hospital agreed to pay the Rowlands $50,000 if the verdict was $50,000 or less; the amount of the verdict, if the verdict was more than $50,000 but less than $100,000; or $100,000, if the verdict was $100,000 or more. Again, the Rowlands agreed not to enforce the remainder of the judgment against the hospital.

Thus, the Rowlands were assured of receiving at least $50,000, and the hospital’s ultimate financial exposure was limited to $100,000.

Medical Staffing contends that

[t]he sole purpose of this secret Agreement was to avoid liability of [the hospital] and to obtain an inflated damages verdict against [Medical Staffing], so that [the hospital] could later collect on the verdict as the fiduciary for [the Rowlands], and based on an indemnification theory against [Medical Staffing], give the monies to [the Rowlands], $2,500,000 of which was actually barred against [Medical Staffing] because the statute of limitation [ ] on the wrongful death claim had expired [before the Rowlands amended their complaint to add Medical Staffing as a party defendant]. The Agreement smacks of such questionable contractual obligations that [the Rowlands] and [the hospital] had an affirmative duty to voluntarily disclose the Agreement to [Medical Staffing] and to the Trial Court[.]

(Emphasis in original.)

First, we note that the fact that the statutory limitation period expired before the Rowlands asserted the wrongful death claim against Medical Staffing did not shield it from those damages, given that the claim was timely as to the hospital, which was derivatively liable for Howard’s negligence on the basis of apparent agency, and that Medical Staffing was contractually obligated to indemnify the hospital for any claims and liabilities relating to Howard’s acts and omissions. See Division 4, infra.

Furthermore, we agree with the trial court’s conclusion that there is nothing in the record to show that Medical Staffing’s ignorance of the litigation agreement rendered the trial fundamentally unfair. Under the circumstances, the primary jury issue as to liability was the apportionment of fault. Because Medical Staffing had a contractual obligation to indemnify the hospital for any damages it had to pay on account of Howard’s negligence, the hospital had an obvious incentive from the outset to try to show that the Rowlands’ damages were entirely Howard’s fault, rather than solely or partly the fault of the hospital’s own employee. Both the Rowlands and the hospital freely disclosed this alignment of their interests to the jury during opening statements. Further, even if the Rowlands benefitted from the hospital’s efforts to enforce its right to indemnity, such incidental benefit did not make the hospital the Rowlands’ agent. Under the circumstances of this case, we conclude that the trial court could reasonably find that, even if the Rowlands and the hospital had disclosed their litigation agreement during trial, it is unlikely that the jury would have reached a different verdict. Thus, pretermitting whether Georgia law should limit agreements of this nature, we find no abuse of discretion in the trial court’s denial of Medical Staffing’s motion for a new trial based on the failure of the Rowlands and the hospital to spontaneously disclose their litigation agreement to Medical Staffing and the court. Gill v. Spivey, 264 Ga. App. at 724 (1).

2. In a related argument, Medical Staffing contends the trial court abused its discretion in denying its post-trial motion to compel the production of any ancillary documents addressing the formation of the litigation agreement between the Rowlands and the hospital. “[A] trial court’s decision on a discovery matter will not be disturbed unless a clear abuse of discretion is shown. Also, to prevail on appeal, [Medical Staffing] must show that the alleged error was harmful.” (Punctuation and footnote omitted.) Bd. of Regents &c. v. Ambati, 299 Ga. App. 804, 812 (4) (b) (685 SE2d 719) (2009).

Pretermitting whether Medical Staffing’s discovery request was procedurally valid, the record shows that Medical Staffing already had a copy of the written litigation agreement when it filed its motion to compel. Further, the record shows that the litigation agreement contained a merger clause, providing:

This Agreement constitutes the entire agreement between the parties and is intended to supersede any prior discussions, agreements, or understandings between the parties on this subject matter. . . . There are no promises, representations, or agreements between the parties other than as set forth herein.

Given that the document contained the entire litigation agreement, any ancillary documents addressing the formation of the agreement could be expected to shed little, if any, light on the issue of whether the post-trial disclosure of the agreement warranted a new trial. See Division 1, supra. We find no abuse of discretion in the trial court’s denial of Medical Staffing’s motion to compel. Bd. of Regents &c. v. Ambati, 299 Ga. App. at 812 (4) (b).

3. Before the trial court entered judgment on the jury’s verdict, the parties negotiated a settlement and executed a written agreement. The Rowlands later filed a motion to declare that the post-trial settlement agreement was rescinded, and Medical Staffing filed a motion to enforce and enter judgment on that settlement agreement. After the hearing on the parties’ post-trial motions, the trial court determined that Medical Staffing had materially breached the post-trial settlement agreement and that the Rowlands had, with authority, rescinded the agreement. Based on this determination, the trial court granted the Rowlands’ motion and denied Medical Staffing’s motion. Medical Staffing appeals from the denial of its motion to enforce the settlement agreement.

The stated purpose of the settlement agreement was “to provide for certain payments in full settlement and discharge of all claims against [Medical Staffing and the hospital] which [were], or might have been, the subject matter of the [Rowlands’] Complaint.” Medical Staffing agreed to pay the Rowlands $919,314.85, as well as reimbursing Medicare $130,685.15 (a total of $1,050,000), and the hospital agreed to pay the Rowlands $100,000. Within two weeks of executing the agreement, however, Medical Staffing informed the Rowlands that it was not going to pay as promised and tendered two checks from its insurer, $131,461.92 payable to the Rowlands and $130,685.15 payable to Medicare. The Rowlands immediately notified Medical Staffing and the hospital that they were rescinding the settlement agreement due to Medical Staffing’s refusal to honor it.

Generally, one injured by a breach of a contract

has the election to rescind or continue under the contract and recover damages for the breach. But to justify rescission, there must be a material nonperformance or breach by the opposing party. If the breach is not material, the party is limited to a claim for damages and cannot rescind the contract. A breach is material when it is so substantial and fundamental as to defeat the object of the contract. In other words, to trigger the right to rescission, the act failed to be performed must go to the root of the contract. A breach which is incidental and subordinate to the main purpose of the contract does not warrant termination.

(Citation and punctuation omitted.) Vidalia Outdoor Products v. Higgins, 305 Ga. App. 836, 837-838 (701 SE2d 217) (2010). See also OCGA §§ 13-4-62 (“A party may rescind a contract without the consent of the opposite party on the ground of nonperformance . . . when both parties can be restored to the condition in which they were before the contract was made.”); 13-4-20 (“Performance [of a contract], to be effectual, must be . . . completed within a reasonable time.”).

In this case, as the trial court found, it is undisputed that, shortly after Medical Staffing entered into the settlement agreement, it announced that it would not make the payments it had agreed to make. Because the entire purpose of the contract was the exchange of certain sums for a release from liability, the trial court did not err in ruling that the Rowlands had, with authority, rescinded the post-trial settlement agreement and in denying Medical Staffing’s motion to enforce and enter judgment on the agreement. See Vidalia Outdoor Products v. Higgins, 305 Ga. App. at 837-838; Lanier Home Center v. Underwood, 252 Ga. App. 745, 746 (1) (557 SE2d 76) (2001).

4. Medical Staffing contends that the trial court erred in granting the hospital’s motion for entry of judgment in its favor on its cross-claim. Specifically, it contends that the hospital essentially conceded the Rowlands’ case, in terms of the standard of care, Howard’s breach of that standard, apparent agency, causation, and the amount of damages, and, therefore, that the judgment the hospital suffered is a voluntary payment, which constitutes a waiver of the hospital’s right to indemnity, citing GAF Corp. v. Tolar Constr. Co., 246 Ga. 411 (271 SE2d 811) (1980). In addition, Medical Staffing contends that, because Janet Rowland was barred by the statute of limitation from asserting a wrongful death claim against it, it cannot be required to indemnify the hospital for that claim. Finally, Medical Staffing contends that the litigation agreement capped the hospital’s liability at $100,000 and, therefore, that the maximum amount the hospital is entitled to collect against Medical Staffing is $100,000. We apply the plain legal error standard of review to the question of whether the trial court correctly entered judgment on the cross-claim. State Farm &c. Ins. Co. v. Wright, 245 Ga. App. 493, 494 (538 SE2d 147) (2000).

(a) GAF Corp. v. Tolar Constr. Co. does not support Medical Staffing’s argument. In that case, the Supreme Court of Georgia held that a defendant that deliberately waived its defense under the statute of limitation essentially committed itself to a voluntary payment and, therefore, could not seek contribution or indemnification from a co-defendant, whose own potential liability on the plaintiffs claim was barred by the statute of limitation. 246 Ga. at 411-412. In this case, the hospital was not guilty of a failure to raise such a bar to liability — it is undisputed that the Rowlands asserted the wrongful death claim against the hospital in a timely manner. Although the record does show that, in light of the indemnity agreement that applied only to claims and liabilities arising out of Howard’s acts and omissions, the hospital focused its defense on minimizing the proportion of fault attributed to Ogburn, Medical Staffing identified no legal precedent that such a defense strategy constitutes a waiver of a complete defense such that the hospital’s liability to the Rowlands could be deemed a voluntary payment.

(b) In addition, when Medical Staffing agreed to indemnify the hospital and hold it harmless from all claims and liabilities arising out of Howard’s acts or omissions, it did not condition that obligation on the injured person also having a viable claim directly against Medical Staffing. Thus, contrary to Medical Staffing’s argument, the Rowlands can “get through [the hospital] what [they] cannot get directly against [Medical Staffing].”

(c) Finally, Medical Staffing contends that the litigation agreement capped the hospital’s liability at $100,000 and, therefore, that the maximum amount the hospital is entitled to collect against Medical Staffing is $100,000. This argument also fails. While it is true that the hospital may not collect from Medical Staffing more than it (the hospital) ultimately pays the Rowlands in satisfaction of the judgment against it, it is still entitled to a judgment against Medical Staffing on its cross-claim in an identical amount to the judgment obtained against it on account of Howard’s acts and omissions. Woodall v. Beauchamp, 142 Ga. App. 543, 545 (2) (236 SE2d 529) (1977). Based on the jury’s apportionment of fault and award of damages, the hospital was entitled to judgment on its cross-claim for 95 percent of the total award.

Decided January 24, 2012

Insley & Race, Brynda R. Insley, Aynsley M. Harrow, for appellant.

Bendin, Sumrall & Ladner, Timothy H. Bendin, Kristin L. Hiscutt, Cash, Krugler & Fredericks, Alwyn R. Fredericks, John G. Mabrey, James D. Summerville, for appellees.

Based on the foregoing, we conclude that the trial court did not plainly err in granting the hospital’s motion for entry of judgment on its cross-claim. Woodall v. Beauchamp, 142 Ga. App. at 545 (2).

Judgment affirmed.

Doyle, P. J., and Miller, J., concur.

       Debra Connors and Melinda McCune, Janet Rowland’s representatives, filed suit on her behalf.

       The agreement between the hospital and Medical Staffing provided: “[Medical Staffing] agrees to indemnify and hold harmless [the hospital] . . . from claims and liabilities . . . relating to any property damage, personal injuries, or death . . . arising out of its acts or omissions of [Medical Staffing] in connection with [its] duties and services provided under this agreement.’’

       Medical Staffing likens this agreement to so-called “Mary Carter” agreements, which derive their name from the case of Booth v. Mary Carter Paint Co., 202 S2d 8 (Fla. 2d Dist. Ct. App. 1967). As the Supreme Court of Florida has explained,
      [a] “Mary Carter Agreement” ... is basically a contract by which one codefendant secretly agrees with the plaintiff that, if such defendant will proceed to defend himself in court, his own maximum liability will be diminished proportionately by increasing the liability of the other co-defendants. Secrecy is the essence of such an arrangement, because the court or jury as trier of the facts, if apprised of this, would likely weigh differently the testimony and conduct of the signing defendant as related to the non-signing defendants. By painting a gruesome testimonial picture of the other defendant’s misconduct or, in some cases, by admissions against himself and the other defendants, he could diminish or eliminate his own liability by use of the secret “Mary Carter Agreement.” Concluding that such agreements tend to mislead judges and juries and border on collusion, [the court held in Booth v. Mary Carter Paint Co.] that they must be produced for examination before trial if sought to be discovered under appropriate rules of procedure and should be admitted into evidence at trial upon the request of any other defendant who may stand to lose as a result of the agreement.
      (Citation and punctuation omitted.) Dosdourian v. Carsten, 624 S2d 241, 242-243 (Fla. 1993). Some states, including Florida, have outlawed such agreements on the basis that they tend to undermine the adversarial process, while others have adopted rules to ameliorate those effects, such as requiring that such agreements must be disclosed to nonsettling co-defendants and to the court and may be admitted into evidence. See analysis and cases collected in Christopher Vaeth, “Validity and Effect of ‘Mary Carter’ or Similar Agreement Setting Maximum Liability of One Cotortfeasor and Providing for Reduction or Extinguishment Thereof Relative to Recovery Against Nonagreeing Cotortfeasor,” 22 ALR5th 483 (Originally published in 1994, updated 2011); Dosdourian v. Carsten, 624 S2d at 245-248 (rejecting the “disclosure and admission approach” and declaring Mary Carter agreements to be void as against public policy).

       The doctrine of apparent or ostensible agency provides [that] [o]ne who represents that another is his servant or other agent and thereby causes a third person justifiably to rely upon the care or skill of such apparent agent is subject to liability to the third person for harm caused by the lack of care or skill of the one appearing to be a servant or other agent as if he were such.
      (Punctuation and footnote omitted.) Pendley v. Southern Regional Health System, 307 Ga. App. 82, 87 (1) (b) (704 SE2d 198) (2010).

       See OCGA § 10-6-1 (“The relation of principal and agent arises wherever one person, expressly or by implication, authorizes another to act for him or subsequently ratifies the acts of another in his behalf.”); Harvey v. Bank One, 290 Ga. App. 55, 57 (1) (658 SE2d 824) (2008) (“The distinguishing characteristic of an agent is that he is vested with authority, real or ostensible, to create obligations on behalf of his principal, bringing third parties into contractual relations with him.”) (citation and punctuation omitted).


text:
    A11A2332.
    McINTEE v. DERAMUS.
    (722 SE2d 377)
   MlKELL, Presiding Judge.

Following a jury verdict in favor of appellee Eric Deramus, Lonnie Mclntee appeals from the trial court’s denial of his motion for a judgment notwithstanding the verdict (j.n.o.v.) or, in the alternative, new trial. Finding no error, we affirm.

Where a jury returns a verdict and it has the approval of the trial judge, the same must be affirmed on appeal if there is any evidence to support it as the jurors are the sole and exclusive judges of the weight and credit given the evidence. The appellate court must construe the evidence with every inference and presumption in favor of upholding the verdict, and after judgment, the evidence must be construed to uphold the verdict even where the evidence is in conflict. As long as there is some evidence to support the verdict, the denial of defendant’s motion for new trial will not be disturbed.

On appeal from a trial court’s denial of a motion for j.n.o.v.,

we review and resolve the evidence and any doubts or ambiguities in favor of the verdict; judgments notwithstanding the verdict are not proper unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demands a certain verdict.

Mclntee’s sole enumeration of error is that the trial court erred in “finding that there was a basis for discounting Defendant Myers’ uncontroverted admissions. ’ ’

Because the evidence was in conflict, we view it with every presumption and inference in favor of the jury’s verdict. Deramus’s complaint alleged six causes of action against Mclntee, Joe Myers, and a third party not involved in the trial. The general verdict form and final judgment reflected a verdict against Mclntee for $105,000 and against Myers for $95,000.

According to Felicia and Eric Deramus, Myers was Eric’s cousin and he introduced them to Lonnie Mclntee while they were living in Birmingham. Because Mrs. Deramus’s father had died in September 2003, and left her mother a small inheritance, she and Eric were trying to assist her mother in investing $150,000 for her retirement. In 2003, Mclntee, who said he was a CPA and entrepreneur, drove to Birmingham to meet with them several times to discuss an investment in a line of credit for Gulf South Technologies, a company involved in L. E. D. production and development. The money was supposed to be placed in a secure account to support a line of credit for the business and to pay the Deramuses interest. On December 2, 2003, Eric Deramus gave Mclntee a cashier’s check for $150,000, payable to GSA Technologies, LLC. According to Eric Deramus, the money was to be placed in an account at Washington Mutual Bank (WAMU) which required both his and Mclntee’s signatures to remove any money. Deramus signed the account signature cards, and they were taken by Mclntee, along with the check. Deramus also signed a Shareholders Agreement for GSA Technologies, LLC, reflecting him as a shareholder along with Mclntee. Mclntee also took that document and told Deramus he would send him a copy. When Deramus eventually looked at the copy provided, documents had been swapped and Myers and others had been added to the documentation.

Instead of depositing the money into an account accessible only by Deramus and himself, however, Mclntee deposited it into another account he set up at WAMU on which he and Myers were the only signatories. Although there was a November 25, 2003, Partnership Statement of Authority for GSA Technologies, LLC at WAMU, which appeared to contain his signature, Deramus denied that he signed the document.

Once the money had been deposited, Mr. and Mrs. Deramus began having difficulty contacting Mclntee. They understood that they were to receive monthly interest payments, but received only $500 to $700. When Mrs. Deramus finally contacted Mclntee in mid-March 2004, he first told her that her mother’s funds had been “put into production” and other explanations of its use. Eventually, Mr. and Mrs. Deramus asked for the return of the $150,000, at which point Mclntee told them the money was gone. Mclntee then told them that Myers had taken the money.

Mclntee acknowledged that he received the $150,000 from Eric Deramus and that he deposited it into an account to which Myers had access. On March 9, 2004, Myers directed WAMU to close the line of credit account, the money market account, and the business checking account for GSA Technologies, LLC and to wire over $150,000 from these accounts to an account at Bank of America in the name of Myers Enterprises, LLC. On March 9, 2004, a wire transfer in the amount of over $158,000 was made on behalf of GSA Technologies, LLC to Myers Enterprises, LLC from the WAMU account into which the Deramuses’ check had been deposited. Eric Deramus denied any knowledge that Myers was to be involved in the investment in any way.

According to Myers, he spent the money for “general business expenditures.” Also, Myers issued checks to Mclntee for over $10,000 from the corporate accounts, which Mclntee cashed. Myers testified that he was authorized to make business expenditures as he saw fit based on his agreement with Mclntee. In his mind, GSA Technologies was Mclntee. Myers acknowledged that he took and kept the over $150,000 through his agreement with Mclntee, and Mclntee stated that he allowed Myers to withdraw the money.

Decided January 24, 2012.

Theodore H. Lackland, for appellant.

Clarence R. Johnson, Jr., for appellee.

Although Mclntee argues that there was no allegation that Mclntee and Myers acted in concert, a reading of the complaint shows that it does allege concerted action.

To recover damages based on a civil conspiracy, a plaintiff must show that two or more persons combined “either to do some act which is a tort, or else to do some lawful act by methods which constitute a tort. . . . [T]he conspiracy of itself furnishes no cause of action. The gist of the action ... is not the conspiracy alleged, but the tort committed against the plaintiff and the resulting damage.’”

The essential element of the alleged conspiracy is proof of a common design establishing “that two or more persons in any manner, either positively or tacitly, arrive at a mutual understanding as to how they will accomplish an unlawful design.” After the conspiracy is formed, members of the conspiracy are jointly and severally liable for acts of co-conspirators done in furtherance of the conspiracy. Whether or not inferences should have been drawn that Mclntee and Myers acted in concert in converting the $150,000 was a jury issue, and we will not disturb the trial court’s judgment where, as here, there is evidence to support the jury’s verdict.

Mclntee’s argument that the verdict against him is precluded by judicial admissions by Myers that he alone took the money is also unavailing. First, there are no admissions in pleadings or in response to requests for admissions from Myers, only his testimony at trial. Obviously, any witness’s testimony is subject to a determination of credibility by the jury.

Judgment affirmed.

Dillard and Boggs, JJ., concur.

       Appellant’s motion for permission to file a reply brief is hereby denied.

       (Punctuation and footnote omitted.) McLeod v. Robbins Assn., 260 Ga. App. 347 (579 SE2d 748) (2003).

       (Punctuation and footnote omitted.) Johnson v. Leibel, 307 Ga. App. 32, 40 (3) (a) (703 SE2d 702) (2010), cert. granted on other grounds, Leibel v. Johnson, 291 Ga. 180 (728 SE2d 554) (2012).

        McLeod, supra.

       Count 1, conversion; Count 2, fraud; Count 3, fraudulent inducement to contract; Count 4, breach of contract; Count 5, unjust enrichment; Count 6, unfair trade practices. Claims were also made for costs, attorney fees, and punitive damages.

       Myers did not file an appeal.

       (Citation omitted.) Savannah College of Art & Design v. School of Visual Arts of Savannah, 219 Ga. App. 296, 297 (464 SE2d 895) (1995).

       (Citation omitted.) Parrish v. Jackson W Jones, PC., 278 Ga. App. 645, 649 (3) (629 SE2d 468) (2006).

        Cook v. Robinson, 216 Ga. 328, 329 (2) (116 SE2d 742) (1960).

        Outside Carpets v. Indus. Rug Co., 228 Ga. 263, 269 (185 SE2d 65) (1971); John D. Stephens, Inc. v. Gwinnett County, 175 Ga. App. 379, 386 (6) (333 SE2d 396) (1985).

        Ferguson v. Duron, Inc., 244 Ga. App. 19, 20 (534 SE2d 142) (2000) (requests for admission); Wahnschaff v. Erdman, 232 Ga. App. 77, 78 (1) (502 SE2d 246) (1998) (admissions in pleadings).

       “The credibility of a witness is a matter to be determined by the jury under proper instructions from the court.” OCGA § 24-9-80.